The University of Chicago Law School Faculty Blog

The Gonzales Legacy

“The first thing we do, let’s kill all the lawyers.” Alberto Gonzales’s sorry tenure in the Bush administration would seem to give credence to Shakespeare’s oft-cited incitement against the legal profession.

The primary responsibility of the Attorney General is to uphold the Constitution and laws of the United States in a fair and even-handed manner. In failing to comprehend this responsibility, Alberto Gonzales compromised himself, his office, the Constitution, and ultimately even the President who appointed him.

Hate Crimes and the Gospel

On May 3, the U.S. House of Representatives voted to pass the Local Law Enforcement Hate Crimes Prevention Act of 2007. The Senate will take up a companion bill, known as the Matthew Shepard Act, when it returns from its summer recess. If enacted, this law would authorize the Justice Department, in certain narrowly defined circumstances, to criminally prosecute an individual who “willfully” causes bodily injury to another person or, “through the use of fire, a firearm, or an explosive ... attempts to cause bodily injury” to another person, because of that person’s race, color, religion, national origin, gender, sexual orientation, gender identity, or disability.

Despite it All, U.S. Civil Liberties Strong

On August 5, President George W. Bush signed into law legislation that amended the Foreign Intelligence Surveillance Act of 1978 (FISA). This new legislation authorises the electronic surveillance of international telephone conversations and e-mails, even if one of the participants is an American citizen on American soil, as long as the intercept is undertaken for foreign intelligence purposes and is “directed at a person reasonably believed to be located outside of the United States.”

Mollie and Andrea's Wedding

Last November, after my daughter Mollie informed me that she and Andrea had gotten engaged, I was moved to post an entry on this site ("Marriage: Scripture v. Morality" [November 14, 2006]). “Mollie and Andrea,” I wrote “are deeply committed to one another. They want to spend their lives together. Watching them over the past few years, it is easy to see why. They complement each other, take care of one another, respect each other, and love one another. They want to have children, for all the right reasons. In my experience, they are no different in their love, commitment, and aspirations than any of the other young couples whose weddings I have attended over the past half-century. But Mollie and Andrea cannot marry.”

The New FISA

     What is at stake in the legislation, signed into law last weekend by President Bush, amending the Foreign Intelligence Surveillance Act of 1978 (FISA)? To answer this question, it’s necessary to review how we came to this point.

Roberts, Alito and the Rule of Law

For the Supreme Court of the United States, this will be remembered as the year of intellectual dishonesty. In their Senate confirmation hearings, John Roberts and Samuel Alito cast themselves as first-rate lawyers, as masters of legal craftsmanship who are committed to the principle of stare decisis.

John Roberts assured the Senate Judiciary Committee that judges must “be bound down by rules and precedents.” Invoking Alexander Hamilton and James Madison, he affirmed that “the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability,” and “integrity in the judicial process.” Although acknowledging that it is sometimes necessary for judges to reconsider precedents, he stressed that this should be reserved for exceptional circumstances, where a decision has proved clearly “unworkable” over time. But in general, “a sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges equally striving to live up to the judicial oath.”

The Wrong Side of History

After the long years of the Bush administration, the United States needs to elect a president in 2008 who can inspire the nation and call upon us to be the best Americans we can be. In that light, I watched last week’s Republican presidential debate with special interest. The moment in the debate I found most revealing, most distressing, was when the moderator asked the ten Republican candidates to raise their hand if they believe gay and lesbian Americans should be allowed to serve openly in the armed forces of the United States. Not one of them raised his hand.

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

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.

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.