Tuesday, January 18, 2005

Webcast Archive and Transcript of Justices Scalia and Breyer's 1/13/05 discussion at American University

I'm just catching-up on this one. But, in late January 2005, American University, Washington College of Law, posted links to an archived webcast and full transcript of Scalia & Breyer's 1/13/05 "conversation" on the "Relevance of Foreign Law for American Constitutional Adjudication." You can also view the webcast on c-span. (Real player required).
If you haven't viewed the webcast, or read the transcript, I highly recommend checking it out. It's great fun to watch the two best minds on the current Court having a casual chat about the use of international legal precedent in american constitutional law adjudication. During the conversation, they both agreed that the use of international precedent is analogous to the citation of legislative history to support legal arguments. So, needless to say, Breyer thinks it's OK, but Scalia does not " use foreign law in the interpretation of the United States Constitution." Although Scalia mentioned one exception to the use of foreign law as precedent:
"Old English law, because phrases like 'due process,' the 'right of confrontation' and things of that sort were all taken from English law. So the reality is I use foreign law more than anybody on the Court. But it's all old English law."
In any event, Professor Kenneth Anderson notes on his blog the ease with which the two justices discussed complex legal issues. Well, they ain't Supreme Court Justices for nothin'.


Tuesday, January 11, 2005

Justice Scalia Will Return to Ann Arbor on January 25th to Speak on Religion Clauses.

According to a post on How Appealing blog (quoting a 1/08/05 AP report), Justice Scalia will return to Ann Arbor, Michigan on 1/25/05 to speak in a lecture series sponsored by Ave Maria School of Law. The lecture is reported to be about the U.S. Constitution's First Amendment religion clauses (i.e., the Establishment and Free Exercise clauses). A visit to Ave Maria's website reveals no details on Nino's speech. But if his November 2004 speech at the University of Michigan is any guide, no recordings for broadcast will be allowed. (Check out these photos of Nino's UofM visit - how cool would it be to have Scalia lecture for your Con Law class?!) Perhaps UofM law student Heidi Bond will "live blog" the speech again?

In any case, the religion lectures ought to be fascinating. Even more so since the Court granted Certiorari in October to review the constitutionality of displays of privately donated depictions of the Ten Commandments on public property. (See, McCreary Cty. v. ACLU., (pdf) No. 03-1693, decision below: ACLU v. McCreary Cty.,(pdf) 354 F.3d 438 (6th Cir. 2003).)

Could McCreary Cty. bring the death of Lemon v. Kurtzman, 403 U.S. 602 (1971)? Certainly, Justice Scalia would like to kill off the Lemon test. Note his concurring opinion in Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 397-402 (1993), where Scalia remarked on the Court's selective application of Lemon as: "some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District."

But if Lemon were overruled, think of all the potential law review articles on the Establishment Clause that would be without a trite lemon title. (See, e.g., Bodemar, Note, School Choice Through Vouchers: Drawing Constitutional Lemon-Aid from the Lemon Test, 7o St. John's L. Rev. 273 (1996); Robertson, Squeezing Religion out of the Public Square -- The Supreme Court, Lemon, and the Myth of the Secular Society, 4 Wm. & Mary Bill Rts. J. 223 (1995).)

Friday, January 07, 2005

Justice Scalia Swears in New Texas Supreme Court Chief Justice.

The December 2004 issue of the Texas Bar Journal contains this article: "Scalia Swears In Jefferson as New Chief Justice ."(pdf) Nino swore in the new Texas Supreme Court Chief Justice in his capacity as circuit justice (pdf) for the U.S. Court of Appeals for the Fifth Circuit. The article notes that Scalia said,“I was here once before and it seemed to take pretty well with Chief Justice ‘Emeritus’ Phillips [,] I hope it will take just as well and last just as long on this occasion.”

Tuesday, January 04, 2005

Wine and Cowboy Boots for Justice Scalia!

A rather scroogish December 31st article in the Los Angeles Times (free registration req'd.) mainly discusses some $40,000 worth of gifts received by Justice Thomas, but also mentions some gifts given to Nino. The LA Times writes that between 1998 and 2003, Scalia accepted $1275.00 worth of gifts, which included, among others, cases of wine from an unnamed Virginia winery and a pair of cowboy boots from the Tarrant County, Texas, Bar Association. Really just peanuts when compared to the $5000 + gifts received by Rehnquist and O'Connor during the same period.

While the LA Times admits that a federal judge can ethically receive a gift (provided the giver is not before the court), the article still discusses the 2004 controversy over Nino's duck hunting junket with V.P. Cheney.

Professor Lubet: Liberal Argument for a Chief Justice Scalia.

In a New York Newsday editorial on 1/03/05, Northwestern University Law School Professor, Steven Lubet, makes a pragmatic argument that liberals shouldn't oppose Scalia's possible elevation to Chief Justice of the U.S. (For those current (and former) trial ad. students, he' s that Lubet.)

Lubet argues the CJ position is largely ceremonial and administrative, and Scalia would continue to have only one vote in deciding cases. Professor Lubet writes that a Democratic "scorched-earth" filibuster of a Scalia CJ nomination would be far too costly, given the current political balance in the Senate. The Democrats should hold their fire, Lubet believes, and save their ammo for the person appointed to fill the Associate Justice position vacated by Scalia.

Lubet also claims that Nino wouldn't be very effective as C. Justice. Scalia's peevishness "would likely lead to a fractured court, which could be the liberals' best hope to avoid an out-and-out shift to the extreme right." But Lubet does suggest that serving as the Court's head honcho could have a "moderating influence" on Scalia's saber-sharp legal postions. Could Nino's rhetoric ever become mellow!? This blogger and other Ninowatchers certainly hope not!

The Outside the Beltway blog posted thoughtful comments on Lubet's piece.

Monday, January 03, 2005

Justices Scalia & Breyer's "Conversation" on Foreign Law in U.S. Cases to be Webcast on January 13.

Scotusblog notes today that on January 13, 2005 (4-5:30 est), American University Law School in D.C. will host a "conversation" between Justices Scalia & Breyer on the topic of "the relevance of foreign law for American constitutional adjudication."

For an introduction to the Scalia/Breyer debate over the citation of foreign legal authority to support legal arguments in U.S. courts, see the multi-part post on American University Law Professor Kenneth Anderson's blog: Law of War & Just War Theory. Professor Anderson's post contains excerpts from his forthcoming Harvard Law Review article. Anderson notes that Scalia, being the true originalist/textualist, believes that a foreign constitution is not an appropriate source for interpreting an already written constitution (although foreign constitutions may be helpful for writing one anew). Anderson writes that "[c]onstitutions are different, insofar as they are the constitutive document of a political community."

While this debate might seem obscure, it's really quite interesting. Foreign laws are sometimes cited in briefs and opinions in cases involving civil rights (e.g, death penalty, gay rights, etc.) Anyway, for those of us in the hinterlands, thanks to American Univ. for planning a webcast of the discussion. More details will be made available beginning January 10th. Stay tuned!