Standing Issue in Pledge of Allegiance Case
Title: Message I haven't studied or taught standing doctrine in any detail for a long time. I'd be very interested in knowing what those of you who know more than I domight think about the standing question and how the S. Ct. might resolve it. Dan Conkle ** Daniel O. Conkle Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] ** -Original Message-From: Sam Bagenstos [mailto:[EMAIL PROTECTED] Sent: Wednesday, October 15, 2003 3:29 PMTo: [EMAIL PROTECTED]Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' ReferenceThe only thing I'd say about this is that I wouldn't count any of the "Fab Four" as sure votes for the plaintiff on the standing question.
Re: Precedent Originalism: Was Scalia, Textualism, and Printz
Might not a judge--originalist or otherwise--simply conclude that stare decisis has independent value, in terms of legal stability, reliance, etc.? In this respect, is the originalist judge necessarily different from, say, a judge who believes that the Constitution should be interpreted in accordance with liberal philosophy, e.g., as understood by John Rawls? Might not either judge conclude that a mistaken decision should nonetheless be honored for reasons apart from the interpretative theory that the judge would apply if precedent were not a factor? Dan Conkle ** Daniel O. Conkle Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] ** -Original Message- From: Larry Solum [mailto:[EMAIL PROTECTED] Sent: Wednesday, October 15, 2003 1:39 PM To: [EMAIL PROTECTED] Subject: Precedent Originalism: Was Scalia, Textualism, and Printz It seems to me that the question for originalists is WHETHER a judicial decision is a superceding text adopted through a legitimate process. This question has at least two dimensions, one functional and the other normative. The functional question is whether precedents are to be treated as superceding, and if so, how, when they are out of line with the plain meaning of the constitutional text or its original meaning. Originalists may divide on precisely this point. On the one hand, some originalists may argue that adherence to precedent serves the same rule of law values as does originalism and textualism. On the other hand, other originalists may argue that precedents which depart from the text or original meaning should not be afforded precedential effect. A fully specified theory of originalism must have an answer to the functional question. The normative question concerns the political morality of treating precedents as authoritative even when they depart from text or original meaning. Different versions of originalism will take different positions on the normative question as well. Thus, popular-sovereignty originalists might take the position that judicial decisions that are not authorized by We the People, are illegitimate, and hence not binding. Other originalists/textualists emphasize rule-of-law values as the normative foundation of originalism, and these originalists may find it easier to swallow Professor Earl Maltz's position: A judicial decision is a superceding text adopted through a legitimate process (even if the mode of reasoning is not what I would choose). It goes without saying that the normative and functional questions are closely connected, but they are not the same question. Originalist/texutalists with similar normative positions might endorse different answers at the functional level, and vice versa. Larry Lawrence Solum University of San Diego http://lsolum.blogspot.com Quoting earl maltz [EMAIL PROTECTED]: I must be getting slow in my old age, but I don't see how precedent poses a greater problem for originalists than for those who take other views. A judicial decision is a superceding text adopted through a legitimate process (even if the mode of reasoning is not what I would choose). It is thus analogous to (although different from) a legitimately-adopted constitutional amendment. At 12:23 PM 10/15/2003 -0500, Richard wrote: The question of the authority of precedent is obviously a significant challenge for originalists, but Scalia does address this issue in a number of places (including in his dissent in Union Gas, if I remember correctly). Richard Dougherty University of Dallas
Justices Take Case on Pledge of Allegiance's 'God' Reference
Here's the introduction of an associated press story: Justices Take Case on Pledge of Allegiance's 'God' Reference By THE ASSOCIATED PRESS Published: October 14, 2003 WASHINGTON -- The Supreme Court said Tuesday it will decide whether the Pledge of Allegiance recited by generations of American schoolchildren is an unconstitutional blending of church and state. The case sets up an emotional showdown over God in the public schools and in public life. It will settle whether the phrase one nation under God will remain a part of the patriotic oath as it is recited in most classrooms. . . . . . Dan Conkle ** Daniel O. Conkle Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] **
Re: Presidents and the Court
This may not be directly relevant to the criminal versus non-criminal distinction, but I think the general question was debated in Congress during the Clinton impeachment proceedings, with President Clinton's defenders arguing that the standard for impeaching the President (at least) should be more restrictive than the standard for impeaching judges. On this basis, Clinton's defenders argued that even if the Senate concluded that Clinton had indeed committed the offenses with which he was charged in the impeachment, the Senate could/should probably vote to acquit him despite the Senate's own precedent in its earlier conviction of Judge Walter Nixon (in the impeachment case that reached the S. Ct. in 1993). The charges against Judge Nixon arguably were similar in some respects to those advanced against President Clinton. Dan Conkle -Original Message- From: Eastman, John [mailto:[EMAIL PROTECTED] Sent: Wednesday, October 01, 2003 5:07 PM To: [EMAIL PROTECTED] Subject: Re: Presidents and the Court I love the collaberations made possible by this list. I now have to expand my acknowledgement footnote significantly. Many thanks to all who responded. I have one more that might be equally interesting. Judges serve for good behaviour. Impeachment requires high crimes and misdemeanors. I believe we have not taken seriously the possibility of impeachment of judges for non-criminal conduct for a very long time (since Justice Chase?), but has there ever been a firm decision that the standard for impeaching judges is the same as for other officials, despite the looser standard suggested in Article III? Is there a law review article (or articles) generally regarded as definitive on this question? Many thanks, John Eastman -Original Message- From: Keith E. Whittington [mailto:[EMAIL PROTECTED] Sent: Wed 10/1/2003 2:40 PM To: [EMAIL PROTECTED] Cc: Subject: Re: Presidents and the Court That would be Andrew Jackson in response to Worcester v. Georgia, and it is generally regarded as apocryphal (though somewhat consistent with other things that he did say, predicting that such a decision would be unenforceable). He did write in a letter, the decision of the supreme court has fell still born and they find it cannot coerce Georgia to yield to its mandate. For discussion, see Charles Warren, The Supreme Court in United States History, and Richard Longaker, Andrew Jackson and the Judiciary, Political Science Quarterly (1956). Keith Whittington -Original Message- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] Behalf Of Eastman, John Sent: Wednesday, October 01, 2003 5:33 PM To: [EMAIL PROTECTED] Subject: Presidents and the Court I seem to recall a colorful claim by some president or other, opposed to a particular court ruling, along the lines of: The Court has issued its ruling, now let it enforce it. Can anyone point me to the specific President, case, and citation for this? Perhaps Truman, in response to the Steel Seizure decision? Many thanks, John Eastman
Alabama Justices Order Ten Commandments Monument Removed
FYI: Alabama Justices Order Ten Commandments Monument Removed By THE ASSOCIATED PRESS Filed at 1:12 p.m. ET MONTGOMERY, Ala. (AP) -- State Supreme Court justices overruled Chief Justice Roy Moore on Thursday and directed that his Ten Commandments monument be removed from its public site in the Alabama Judicial Building. The senior associate justice, Gorman Houston, said the eight associate justices instructed the building's manager to ``take all steps necessary to comply ... as soon as practicable.'' Some supporters of Moore vowed to fight the move through civil disobedience. [full story on NY Times web site - free subscription required] Dan Conkle ** Daniel O. Conkle Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] **
Bowers Overruled
Title: Message With Kennedy writing for 5 justices (and O'Connor concurring in the judgment), the S. Ct. invalidated the Texas sodomy statute--and by implication all other sodomy statutes. The Court relies on substantive due process and explicitly overrules Bowers. Kennedy cites and relies upon Casey and Romer, as well as Stevens' dissent in Bowers.He suggest that the history of sodomy regulation should not be understood as it was in Bowers, but he then appears to adopt more of an evolving values approach. Dan Conkle ** Daniel O. Conkle Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] **
