The University of Chicago Law School Faculty Blog

Sonia Sotomayor and the Hypocrisy of "Conservative" Critics

The May 30, 2009, New York Times contains two interesting articles about Sonia Sotomayor. One deals with her views of affirmative action, the other with her views of campaign finance regulation. According to these articles, Judge Sotomayor has been supportive of both policies. What this means in terms of her predicted behavior as a Justice of the Supreme Court is that she will tend to uphold the constitutionality of both policies. The articles report that conservative critics of Judge Sotomayor have begun to attack her for her positions on these issues because, by doing so, she is allegedly making inappropriate policy judgments rather than applying the law in a cautious and respectful manner.

This criticism reveals the inconsistency and, dare I say, hypocrisy of the contemporary conservative stance on constitutional interpretation. Conservatives insist that their heroes – Justices Rehnquist, Roberts, Scalia, Thomas and Alito – are judicial “passivists,” rather than judicial “activists,” who “strictly construe the Constitution,” do not substitute their own views for those of the Framers, and generally defer to the judgments of the democratically-elected branches of the government. Most fundamentally, these conservative Justices do not use the power of judicial review (the power to declare laws unconstitutional) to smuggle their own policy preferences into their interpretations of the Constitution. That vice, they say, is the vice of liberal activists.

Obama's Speech on National Security: "The Most Difficult Issue We Have to Face"

In his speech on Thursday about Protecting Our Security and Our Values, President Obama touched on many of the challenges posed by the threat of terrorism. I want to address one challenge in particular: What should we do with "detainees at Guantanamo who cannot be prosecuted yet who pose a clear danger to the American people." This is a fundamental question, because it cuts to the very heart of the concept of preventive detention.

The President explained that some detainees at Guantanamo will be be prosecuted for crimes in the federal courts of the United States. To the extent this occurs, it should be constitutionally unproblematic. The President explained further, however, that some detainees cannot realistically be prosecuted in the federal courts, because the procedural and evidentiary rules of those courts would require the exclusion of evidence that would be essential to secure their convictions.

This is most obviously the case with respect to evidence obtained through "involuntary" statements (either by the defendants or others) and various forms of hearsay evidence (for example, X testifies at trial that Y said that Z committed a terrorist act). Such evidence ordinarily would be inadmissible in federal court because its use in a criminal proceeding would violate the privilege against compelled self-incrimination, the due process clause, and/or the defendant's constitutional right to confront the witnesses against him.

What's Wrong with this Picture?

“A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both.” -- James Madison

President Barack Obama yesterday changed his mind about releasing to the public hundreds of photographs that apparently document abuse of prisoners in Iraq and Afghanistan by American military personnel between 2001 and 2005. Mr. Obama apparently changed his mind after he was reportedly warned by top Pentagon officials that publication of these images might inflame anti-American sentiment in the region and therefore endanger American soldiers.

The President is right that the dissemination of these photographs might inflame anti-American opinion and possibly put our soldiers at greater risk. But he is wrong to focus on that risk rather than on the importance of these images to public debate in the United States – debate that is at the very core of our self-governing society.

[Civil Unions]: When Reasonable Isn't Reasonable

Doug Laycock is nothing if not reasonable. But sometimes reasonable is not right. The most important area of disagreement he addresses, and the one most central to this discussion, concerns the appropriate breadth of the religious exemption that would give individuals and organizations a legally-recognized right to discriminate against gays and lesbians.

At the outset, I must concede that Doug is correct that I misread the breadth of his proposal. Or, more accurately, in my discussion of this issue I focused on Rick Garnett’s version of the exemption rather than on Doug’s. In an April 20 letter to the Speaker of the House of the Connecticut legislature, Rick and three other law professors called upon the Connecticut legislature, in the wake of the Connecticut Supreme Court’s decision holding the denial of same-sex marriage unconstitutional, to enact a law that would exempt any “individual” from any law of the state, “including but not limited to laws regarding employment discrimination, housing, public accommodations,” etc. “for refusing to provide services, accommodations, advantages, facilities, goods, or privileges,” whenever recognizing the legitimacy of a same-sex marriage would “violate their sincerely held religious beliefs.” It was primarily to this proposal that I was responding in my May 5 post.

[Civil Unions]: A Reply to Nussbaum

Readers will not be surprised to learn that I agree with Martha Nussbaum's compelling analysis of this issue. I would be very interested, though, to hear what Rick Garnett and Doug Laycock think of it. Doug has already said that he supports same-sex marriage, so I suppose it's Rick whose response will be most interesting.

There's one element of Martha's analysis that I do want to address. Martha argues that states should permit same-sex marriage. But H.R. 2234 authorizes not same-sex marriage, but civil unions. I have struggled personally with the question whether to endorse a law allowing civil unions, but not same-sex marriage. Because I believe that discrimination against gays and lesbians is ignorant, immoral and inconsistent with our nation's most cherished constitutional values, I deeply believe that full equality, rather than some form of subordinated "separate but equal," is the only proper solution. Nonetheless, I am persuaded by those who know Illinois politics better than I that although the state legislature might legalize civil unions, it will not in the foreseeable future legalize same-sex marriage.

The quandary is whether to settle for a half-a-loaf or whether to stand on principle. On the one hand, accept civil unions while expressly reserving "marriage" for opposite-sex couples seems to me deeply offensive. It has the same moral justification of separate-but-equal in the racial context. It is stigmatizing, insulting and discriminatory. On the other hand, there are very real practical benefits to civil unions that mean a great deal to the day-to-day lives of same-sex couples. So, assuming the recognition of same-sex marriage is not in cards in Illinois at present, what to do? This is similar to the "don't ask, don't tell" question.

I'd be very interested to know what Martha, Rick and Doug think about this.

Civil Unions: A Response to Garnett and Laycock

In this post, I’d like to make four points in response to Rick Garnett and Doug Laycock.

1.  Both Rick and Doug reject the idea that it should violate the separation of church and state for the government to enact laws for the purpose of imposing one group’s religious beliefs on non-believers. This is only tangentially related to the primary issue under discussion, but it is sufficiently important to merit a reply. Suppose a city enacts a law providing: “No person may work on the Christian Sabbath because such conduct is sinful.” I daresay that such a law, or any law like it, would necessarily violate the First Amendment, as the Supreme Court itself has expressly recognized. Indeed, it is just as much a violation of the Constitution for government to enact a law in order to impose one group’s religious beliefs on non-believers as it would be for government to enact a law for the purpose of disadvantaging African-Americans, or women, or Jews. Of course, it is often very difficult to ascertain the “real” motivation underlying legislation, and groups with constitutionally impermissible motives will usually mask them behind pretextual justifications. But this doesn’t make such laws constitutional. It just makes it difficult, often impossible, for courts to ferret out the unconstitutional motivation. But they are, in principle if not in practice, surely unconstitutional.

Civil Unions: Why Illinois Should Enact H.R. 2234

The Illinois legislature will soon act onpendingHouse bill 2234, the Religious Freedom Protection and Civil Union Act, which would legally recognize civil unions in our state. The proposed legislation provides that “persons entering into a civil union” will have “the same obligations, responsibilities, protections, and benefits” as married persons. Civil unions would be available to adults “of either the same or opposite sex.” Traditional “marriage,” however, would remain available only to persons of the opposite sex.

Such legislation is currently supported by the vast majority of the American people. Recent polls show that Americans favor the legal recognition of civil unions by an extraordinary margin of 60% to 34. There has been a transformation in our thinking on this issue over the past half-century. What would once have been regarded as nothing short of weird, now seems perfectly sensible. This is the American story. It is, in part, what makes us great. Over time, we have gradually recognized the common humanity of blacks, women, Asians, Jews, Catholics, and gays, all of whom have been the victims of cruel discrimination. The legal recognition of civil unions represents an important step forward in the continuing moral progress of the United States. It is, of course, a compromise, but it is a reasonable compromise at this time in our history. That is why it is supported by the vast majority of the American people.

The most vocal opponents of this bill argue that their religious freedom would be impaired by the recognition of civil unions. It is important to consider this concern carefully and respectfully, for it is no doubt heartfelt and sincere. So, the question is: How does the legal recognition of civil unions threaten the religious liberty of those who oppose the legislation?

David Souter

It would appear from the latest news reports that Justice David Souter is about to part ways with the Supreme Court after a nineteen-year tenure. At the time of his nomination by President George H. W. Bush, David Souter was a virtual unknown. In his long career as a justice on the New Hampshire Supreme Court, a judge on the New Hampshire trial court, and New Hampshire’s attorney general, he seldom had occasion to express his views on controversial constitutional issues. Many critics of the nomination complained that President Bush had found a “stealth candidate” who had no “paper trail” but was secretly a rock-solid conservative determined to overturn Roe v. Wade and to outlaw affirmative action. It didn’t turn out quite that way.

Although at the time of his appointment Souter had little experience in constitutional adjudication, no one doubted his intellectual credentials. A Rhodes Scholar, Souter was a serious thinker, a prodigious reader, a hard worker, and a scrupulously careful lawyer. One public official in New Hampshire – a Democrat – described Souter as a 135 pound man, with “120 pounds of brain.” Before being tapped for the Supreme Court, he lived by himself in a ramshackle farmhouse filled with books. He lived a quiet, somewhat sheltered, contemplative life.

David Souter took the seat previously held by Justice William J. Brennan, Jr., one of the liberal lions of the Warren Court. Souter and Brennan formed a close and even touching friendship, and Brennan, ever the persuader, sought to share with his successor his own powerful vision of the unique responsibilities of the Supreme Court and the fundamental role of constitutional law in the American system of government.

Remembering the Nazis in Skokie

This morning marked the official opening of the Holocaust Museum and Education Center in Skokie, Illinois. This striking new institution is dedicated to “preserving the legacy of the Holocaust by honoring the memories of those who were lost and by teaching universal lessons that combat hatred, prejudice and indifference.”

The seeds of the Skokie Holocaust Museum were sown more than thirty years ago, when roughly thirty members of the Nazi Party of America sought to march in Skokie. The plan was for the marchers to wear uniforms reminiscent of those worn by the members of Hitler’s Nazi Party, including swastika armbands, and to carry a party banner bearing a large swastika.

At the time of the proposed march in 1977, Skokie, a northern Chicago suburb, had a population of about 70,000 persons, 40,000 of whom were Jewish. Approximately 5,000 of the Jewish residents were survivors of the Holocaust. The residents of Skokie responded with shock and outrage. They sought a court order enjoining the march on the grounds that it would “incite or promote hatred against persons of Jewish faith or ancestry,” that is was a “deliberate and willful attempt” to inflict severe emotional harm on the Jewish population in Skokie (and especially on the survivors of the Holocaust), and that it would incite an “uncontrollably” violent response and lead to serious “bloodshed.”

Student Blogger - Chicago’s Best Ideas: Geoffrey Stone on Obama’s Supreme Court

Update: Video of this talk is embedded after the jump; it is also available for download as a .mov or .mp3.

A common perception is that since the Supreme Court frequently divides 5-4, it is balanced between conservatives and liberals. The vote breakdown, however, does not tell us anything about the Court's ideological breakdown. The Supreme Court has discretionary jurisdiction, and any group of nine justices will tend to choose cases that divide them because those cases are the ones that are the most legally uncertain.

On April 14, 2009, Professor Geoffrey Stone presented a talk in the Chicago's Best Ideas lecture series entitled "Obama's Supreme Court." He discussed what he thinks the makeup of the current Court really is. (Throwing the word "Obama" in the title is a good way to get people in the door.) In a series of entries on Huffington Post, he describes what follows in more depth.

First, Professor Stone served up some facts about the current Court. Seven of the nine sitting Justices were appointed by Republicans, as were twelve of the last fourteen appointees. The so-called "swing" vote on the Court has shifted from Justice Stewart to Powell to O'Connor to Kennedy, each of whom is widely considered more conservative than the last. According to an article by Professor Landes and Judge Posner, four of the current Justices are more conservative than any Justice since 1937 except Rehnquist. Finally, there are not any "full-throated" liberals like Justice Marshall or Brennan on the Court.