Classmate-Wearing-Yarmulka gets a job and passes the bar exam


Wednesday, July 27, 2005

Casing Classmate-Wearing-Yarmulka

There's an interesting Op-ed in the NY Times today by Vikram David Amar about 5 cases that John Roberst should be asked about during his confirmation hearings.

Amar wants the Senators to ask him if those 5 cases were correctly decided or not and why.

I know he's not asking me about the 5 cases, but hey, why not?

-Wrongly decided. If it's unconstitutional to give preference to white students because they are white, then it is unconstituional to give preference to a black student because they are black. Discrimination is a two-way street.

-Wrongly decided. Nowhere in the Constitution is there a right to have an abortion. This is a moral question that the Court has no right to interfere. Otherwise the Court is just substituting its judgment over the judgment of the state's democraticaly elected legislatures


-Wrongly decided. The 8th Amendment is tricky, as it is a judgment call. What exactly is "cruel and unusual"? Yes, the standard evolves over time, but it shouldn't be the judgment call of 9 unelected judges.

McCREARY COUNTY v. A.C.L.U. (2005)

-wrongly decided. How exactly does displaying the 10 Commandments in a state courthouse violate "Congress shall make no law respecting an establishment of religion" Does displaying the 10 Commandments establish a national religion? Which one?

-I have no idea. My knowledge of 11th Amendment issues is more limited than a liberal's understanding of economics.


Case Comments;

Grutter: Ditto. I'd also like to add that the way the Court permits race to be a factor "in addition to other factors" but forbids quotas is a distinction without a difference. If people of one "race" get a preference, it automatically comes at the expense of other "races", as the number of jobs is not increased by diversity hiring - someone must be losing out to the preferenced person. As such it shouldn't matter if the preference is explicit like a quota or implicit as Grutter permits with race being a "factor".

Stenberg: Agreed. stenberg also shows how, despite the official limitations contained in Roe about trimesters and so forth, the Court has basically made it impossible to ban any sort of abortion, even infanticide-like (like?) procedures like PBA.

Atkins: If the "cruel and unusual" standard is not to be decided by the courts, then what is the constitutional meaning of the clause? If you go with original intent, then it restricts whatever would have been cruel in the eighteenth century (not much), and legislators are free to do what they want, as anything forbidden by that reading is beyond the pale in the modern day anyhow. If it is properly an evolving standard though, then the Court, as final arbiter of the constitution (unless you want to revisit Marbury too) should be deciding how the meaning evolves. The criticism of cases like Stkins under this view (which I somewhat uneasily ascribe to)is that the clause should only be held to prohibit punishments that are generally beyond the pale in the modern day (in the U.S. only, Justice Breyer). Things where there is a significant minority in favor (like the juvenile Death penalty) should not prohibited as cruel and unusual.

McCreary: The first two might, arguably. But the display of the commandments is not a legislative ratification of the same, so that is moot anyhow.

Seminole Tribe: What you said, although it did make a slight appearance on my Civil procedure final (don't ask).
I don't know about any of these cases to throw in my opinion, but no liberal would want to confirm you, CWY.
I agree with you!! It is amazing that liberals actually support these rulings! But then again, they dont cease to amaze me with their warped view of the world!!!


NJ from NJ
Eli7- In today's poisoned climate, I would never be confirmed. But then again, Rhenquist, Scalia, and Thomas were all confirmed, so I guess I'll just have to wait for the air to clear.

That's what so confusing about the 8th Amendment. The standard is totally subjective.

I'm not advocating overturning Marbury, but considering that judical review was, arguably, not the framers intent, maybe it's just a truism?

I'm just saying that maybe the bar needs to set much higher for 8th Amendment issues.

The democratic proccess seems to be the best way for avoiding "cruel and unusual punishment". If society is that horrified by the punishment, the punishment will be removed.
Eli7 - Your beloved University President (before he assumed the job) is one of the named parties in Grutter v. Bollinger (guess which one!)- Given your seeming admiration for the man, I'm simply shocked you don't know about the case... ;-)

On a more serious note - a question for you. As an aspiring lawyer how do you approach Supreme Court Cases in general - looking for a desired outcome, or looking at what the Constitution (or the statute, not everything the USSC does has to do with the Constitution) requires?

Classmate - I'm not really sure I understand your desired 8th Amendment approach. If you're not going to contest Marbury, then the USSC has the right, if not the duty, to strike down any legislative action that violates their interpretation of the Constitution. That being the case, the question becomes what standard the Court should use to determine that a punishment is cruel and unusual. Textualism is not really a helpful guide here, as the text itself seems relative (unless you want to go with original intent, as discussed in my previous comment). To say that anything popular enough to get passed by a Legislature is definitionally not so reviled as to be cruel and unusual is to render the clause contentless - as the only thing that will come before the Court is such a statute (one passed by a legislature). As I said before, I think the proper criticism of the Court's 8th amendment jurisprudence is the threshold they use to determine whether something is cruel and unusual, which leaves little room for items backed by a substantial minority, and has begun looking at the standards of other nations as well. Given how far we've moved from the originally prohibited practices under the 8th amendment, I'd want the court to be leery of striking down any punishment with even a moderate amount of support nationally (More than 10% - I don't really know how to go about picking a number, and opinion polls are not what I want this based on anyhow). I guess I'd want something like the "shocks the conscience" standard used in certain types of appelate review, but like you said, its fuzzy and hard to pin down. I would not go so far as to say that anything that passed a legislature is per se not cruel and unusual, though.
Honestly, I don't really have an 8th Amendment approach, every possible way has serious problems.

Justices are not supposed to take opinion polls into consideration- they often do, but that doesn't make it correct.
It's been a while since I've read Grutter, but I agree with both CWY and anon. The abortion issue is old hat, and I'm not well versed enough on the establishment clause or the cruel and unusual punishment clause, although the textualist in me would construe the former narrowly, and the originalist in me would look for original understanding in the latter.

It's been two months since my con law final, but the 11th amendment jurisprudence of the conservative wing of the Court if often used to prove that the right is as activist as the left (DovBear uses Gore v. Bush and 11th Amendment cases as his examples). The truth is the argument for denying state citizens the right to sue their state in state court is pretty weak and based on the "structure and history of the Constitution," which is a no better argument than finding privacy in the penumbras ala Griswold. I'd have to look at it more closely to see these cases are quite as bad as Roe, but they do seem to go against textualism. Gore v. Bush is a whole different matter.
OK, here's your interview, CWY:

What is your career goal, and how does that play into your life goal?

What is the one thing you never want to do?

When you play Trivial Pursuit, what color/category do you avoid like the plague?

What did your childhood smell like?

What is the emotion you feel most often?

Interview me, please!
Let's imagine that we took all the people X (say Jews) and took away _everyone's_ property and redistributed it.

People X get to live in all the worst housing, everyone else gets everything else split between them.

Then this regime is ended, and (Everyone But People X) say !No Unequal Treatment! People X and everyone else must be treated the same.

When Civil Rights was passed, everything didn't simply become "fair" overnight. It still favored whites because they were all the bosses, had most of the money and land, and almost 100% of political power.


For example, take the single most powerful position in the US Government, the President Pro Tempore of the Senate (well, for sake of argument, let's call him the 2nd most powerful, but often he's #1).

Did you realize that until Strom Thurmond stepped down, _any_ vote Democrat _or_ Republican helped advance either Strom Thurmond (Dixicrat candidate for segregation in 1948 elections) or Robert Byrd (Klan member) to this post?

I believe _some_ affirmative action is in order. I think it was disgusting the way GW Bush (at least five times) called this a quota system, when this is a lie. Your friends who say it is a "distinction without a difference" probably can't do the math, either.
Affirmative Action is discrimination no matter how you dress it up. End of story.

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