The University of Chicago Law School Faculty Blog

Résumé lies and signals

Today's news includes that of the resignation of MIT's much admired Admissions Dean, Marilee Jones, who admitted fabricating her own educational credentials. Here was a person with no undergraduate degree, who feigned one or more undergraduate and graduate degrees in order to get a low-level professional position decades ago and, then, kept up the false front with a few other misstatements, as she rose to the top of the admissions world. The tale is especially ironic or sad because the wrongdoer's own career success has included a book (and many talks) that emphasizes the importance of personal integrity.

Faith Based Justices (Again)

Among the many responses to my earlier post about Carhart, were some that accused me of "anti-Catholic bigotry." I can't say this completely surprised me, but it's surely unfortunate. Assume the following: (1) In 1954 the Supreme Court, in a closely divided decision, holds that racial segregation in public schools is unconstitutional. (2) Seven years later another case comes to the Court posing almost exactly the same issue, with only a slight variation in the underlying policy. (3) A well-trained and disinterested lawyer would conclude that the 1954 decision clearly controls the new case. (4) Because of changes in the makeup of the Court in the intervening years, by 1961 five of the Justices now come from states that had been racially segregated in 1954 and that continue to contest desegregation. (5) In its 1961 decision, the Court essentially limits the 1954 precedent to its facts, without offering a persuasive or principled legal analysis. (6) The vote is 5 to 4 and all five Justices in the majority are those from the deep South. In such circumstances, would it be rash or inappropriate to point out the possibility that the five Justices in the majority might have let their personal values and beliefs have an undue impact on the decisionmaking process?

Our Faith-Based Justices?

My colleague Professor Stone characterizes, in his recent post, the five Justices -- who are Roman Catholics -- who were in the majority in Gonzales v. Carhart as "Faith-Based Justices."  The claim, as I understand it, is that by failing to invalidate the federal partial-birth-abortion ban -- which, in Professor Stone's view, is clearly invalid under the Constitution, correctly understood -- the Justices are best seen as imposing sectarian beliefs on those who do not share those beliefs.  In my view, though -- as I have suggested elsewhere -- this charge misses the mark. 

Our Faith-Based Justices

In Gonzales v. Carhart, the Supreme Court, in a five-to-four decision, upheld the constitutionality of a federal law prohibiting so-called “partial birth abortions” (properly described as “intact dilation and evacuation” or “intact D & E”) despite the absence of an exception to protect the health of the woman. Gonzales reversed an earlier decision, Stenberg v. Carhart, in which the Court had held a virtually identical state law unconstitutional, primarily because it failed to include an exception to protect the health of the woman.

In the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation. The majority accepted  those findings even though, as Justice Ginsburg observed in an unusually scathing dissent, those findings were nothing more than political nonsense.

Posner, Barak, and Judicial Activism

Richard Posner's recent review of Aharon Barak's "The Judge in a Democracy" in The New Republic is good reading and focuses attention not only on a favorite of constitutional activists but also of many Israelis who are proud of their creative, intelligent, and extremely aggressive (recently retired) Chief Justice. Barak's activism is often glorified in American Law Schools; he often found "unreasonable" government actions illegal, and occasionally compelled government action where democratically elected officials had chosen not to act or to act differently, and thus appealed to the optimistic and wildly self-confident views of American academics. Posner, unsurprisingly and refreshingly, is much less smitten than many of the constitutional law scholars I have observed.

Equality and Abortion Rights

(The following is a mildly revised version of an op-ed that appeared in the Los Angeles Times.)

In the long run, the most important part of the Supreme Court's ruling on "partial-birth" abortions may not be Justice Anthony M. Kennedy's opinion for the majority. It might well be Justice Ruth Bader Ginsburg's dissent, which attempts, for the first time in the court's history, to justify the right to abortion squarely in terms of women's equality rather than privacy.

Roe vs. Wade, decided in 1973, was founded on the right of privacy in the medical domain, but the court's argument was exceedingly weak. The Constitution does not mention a generalized right to privacy, and, in any case, the idea of privacy seems to describe a right of seclusion, not a right of patients and doctors to decide as they see fit. It is true that the due process clause refers to "liberty," and the right to choose abortion might be taken to be part of "liberty." But the due process clause seems to be procedural; the idea of substantive due process remains highly controversial; and the spectre of the Lochner era looms over efforts to invoke the due process clause to resolve contested political questions.

Apprendi’s Domain: Challenging the Court’s Link Between the Right of Jury Trial and the Reasonable-Doubt Rule

The Supreme Court’s decisions in Apprendi v. New Jersey and subsequent cases have extended the Sixth Amendment right of jury trial to some (but not all) disputed factual questions at sentencing. They require juries to resolve any non-recidivist sentencing fact that increases the ceiling on a defendant’s punishment, but do not extend this requirement to facts that decrease a defendant’s punishment or that establish mandatory minimums without raising the maximum allowable sentence. 

Yet the Supreme Court has simultaneously decided that all facts subject to the Sixth Amendment jury requirement must also be proved beyond a reasonable doubt, as if they were “elements” of substantive criminal offenses. In the Court’s words, a non-recidivist fact that increases a defendant’s maximum allowable sentence must be treated as “the functional equivalent of an element of a greater offense.” This has produced a regime in which prosecutors must prove certain sentencing enhancements beyond a reasonable doubt, and allege such facts in indictments in federal prosecutions, as if they were “elements” of a substantive crime. The pro-Apprendi Justices defend this outcome by claiming that sentencing enhancements had always been regarded as “elements” of substantive crimes whenever they increased a defendant’s maximum allowable punishment. To support this historical claim, they rely on Joel Prentiss Bishop’s Criminal Procedure treatise, which said that nineteenth-century indictments were required to include “every fact which is legally essential to the punishment.”

Climate Change: A Prediction

Predictions are hazardous, but here is a prediction: Within the next five years, the United States will adopt a national cap-and-trade program for greenhouse gases, modelled on the highly successful acid deposition program. The national cap will ensure significant emissions reductions as compared to what would emerge from the "business as usual" scenario. It will build on the recent California initiative on greenhouse gas emissions.

This is a risky prediction, and here is why. From the standpoint of the United States alone, the costs of a national cap-and-trade program are highly likely to exceed the benefits. The magnitude of the costs will depend on the cap, but any plausible program will impose nontrivial costs. By contrast, the benefits, for the United States and the world, are likely to be low, because a purely domestic program will produce minimal reductions in anticipated warming by (say) 2100.

Sexual Orientation: The Third Way

Legal recognition of same-sex relationships is a central issue in the so-called culture wars. Happily, for those of us who support the legal recognition of such relationships, there is now compelling evidence of a real shift in public attitudes. A recent study by The Third Way Culture Project, headed by Rachel Laser (J.D. '95), reveals "a general national warming trend on issues relating to gays and lesbians."

Nearly 90% of Americans now support equal job opportunities for gays and lesbians, and almost 80% now support gays serving openly in the military. Forty-nine of the Fortune 50 companies now include sexual orientation in their non-discrimination policies, and a majority of Fortune 500 companies provide domestic partner benefits.

Climate policy after Mass v. EPA

The Supreme Court's 5-4 decision in Massachusetts v. EPA (April 2, 2007) does not resolve all the hard questions about US climate policy; it only holds that the state petitioners have standing (potentially important in future cases), and that EPA has the authority to regulate greenhouse gases as "air pollutants" under the Clean Air Act program for motor vehicle emission standards (section 202).  It says nothing about how such regulation should be designed nor how stringent it should be.  But it could set the stage for a shift of regulatory initiative on climate from the states and the Congress to the EPA – - if EPA decides to use its authority creatively.