Tuesday, March 17, 2015

A Judicial Attitude: Justice Stephen G. Breyer Talks to Noah Feldman About the Supreme Court

Associate Justice of the Supreme Court Stephen G. Breyer and Harvard Law School Professor Noah Feldman talked about the Court at the 92d Street Y in New York on Thursday 12 March 2015. Video of the event is above. (Introductions consume the first ten minutes of the video.)

The Remover to Remove

The role of politics on the Court dominated the discussion in some form or other. Professor Feldman, more determined perhaps than other questioners of Supreme Court Justices, first tried asking Justice Breyer directly, explicitly about the role of politics on the Court.

After some back and forth about what ‘politics’ might mean, Justice Breyer said,
[00:14:10] I did work for Senator [Edward] Kennedy for two or three years when he was Chairman of the Senate Judiciary Committee. So, when you say, ‘politics,’ I think politics. Politics for us, when I was working on the Senate staff, meant, “Where are the votes?”; “Are you a Republican or a Democrat?”; and, “Who’s popular?”; and “Which party is going to be more popular as a result of this?” 
And that, I haven’t seen. That party sense of politics, no. 
Let’s try…you mean in the sense, ideological. ‘Are you an Adam Smith free-enterpriser?’ ‘Are you a Marxist trouble-maker?’ 
Well, you see, if I think I am writing an opinion and that’s what’s moving me, I had better think again. I know I am doing the wrong thing. And my colleagues feel the same. 
Well. There is a sense, though, in which I can sort of see what you mean.

Sunday, March 15, 2015

Lyndon Johnson's The American Promise at 50

Days after violence in Alabama against peaceful civil rights advocates marching to dramatize the desire to vote and the need for voting rights, President Lyndon B. Johnson addressed Congress about civil rights and the need to pass voting rights legislation. The Congress would soon pass the Voting Rights Act of 1965, which President Johnson signed into law on 6 August 1965.

Saturday, March 7, 2015

President Obama on the Fiftieth Anniversary of the Selma to Montgomery Marches

Edmund Pettus Bridge
Selma, Alabama

[Saturday 7 March 2015]
2:17 P.M. CST

AUDIENCE MEMBER:  We love you, President Obama!

THE PRESIDENT:  Well, you know I love you back.  (Applause.)

It is a rare honor in this life to follow one of your heroes.  And John Lewis is one of my heroes.

Now, I have to imagine that when a younger John Lewis woke up that morning 50 years ago and made his way to Brown Chapel, heroics were not on his mind.  A day like this was not on his mind.  Young folks with bedrolls and backpacks were milling about.  Veterans of the movement trained newcomers in the tactics of non-violence; the right way to protect yourself when attacked.  A doctor described what tear gas does to the body, while marchers scribbled down instructions for contacting their loved ones.  The air was thick with doubt, anticipation and fear.  And they comforted themselves with the final verse of the final hymn they sung:

“No matter what may be the test, God will take care of you;
Lean, weary one, upon His breast, God will take care of you.”

And then, his knapsack stocked with an apple, a toothbrush, and a book on government—all you need for a night behind bars—John Lewis led them out of the church on a mission to change America.

President and Mrs. Bush, Governor Bentley, Mayor Evans, Sewell, Reverend Strong, members of Congress, elected officials, foot soldiers, friends, fellow Americans:

As John noted, there are places and moments in America where this nation’s destiny has been decided.  Many are sites of war—Concord and Lexington, Appomattox, Gettysburg.  Others are sites that symbolize the daring of America’s character—Independence Hall and Seneca Falls, Kitty Hawk and Cape Canaveral.

Selma is such a place.  In one afternoon 50 years ago, so much of our turbulent history—the stain of slavery and anguish of civil war; the yoke of segregation and tyranny of Jim Crow; the death of four little girls in Birmingham; and the dream of a Baptist preacher—all that history met on this bridge.

Friday, March 6, 2015

Dred Scott (6 March 1857)

Cue the Civil War.

Friday 6 March marks a low point in our history: On this day in 1857, the Court announced its Opinion in Scott v. Sandford.

Mr Scott and his wife, Harriet Robinson, enslaved in Missouri, were taken by their en-slaver into Illinois (a free state) and a free part of the Louisiana Territory (free under the Missouri Compromise), where they lived for ten years. On returning to Missouri, and after the death of their en-slaver, Mr Scott sued for his freedom, asserting he was a free man by virtue of his residence in a free state and territory of the United States.

The Court, in a decision written by Chief Justice Roger B. Taney, held that Mr Scott was not a citizen of the United States, and therefore could not sue in court, and, moreover, that the Missouri Compromise was unconstitutional.

Wednesday, March 4, 2015

Abraham Lincoln, Second Inaugural Address

4 March 1865
Washington, DC

President Lincoln (far left) delivers his Second Inaugural Address. Source: Flickr.

At this second appearing to take the oath of the Presidential office there is less occasion for an extended address than there was at the first. Then a statement somewhat in detail of a course to be pursued seemed fitting and proper. Now, at the expiration of four years, during which public declarations have been constantly called forth on every point and phase of the great contest which still absorbs the attention and engrosses the energies of the nation, little that is new could be presented. The progress of our arms, upon which all else chiefly depends, is as well known to the public as to myself, and it is, I trust, reasonably satisfactory and encouraging to all. With high hope for the future, no prediction in regard to it is ventured.

On the occasion corresponding to this four years ago all thoughts were anxiously directed to an impending civil war. All dreaded it, all sought to avert it. While the inaugural address was being delivered from this place, devoted altogether to saving the Union without war, insurgent agents were in the city seeking to destroy it without war—seeking to dissolve the Union and divide effects by negotiation. Both parties deprecated war, but one of them would make war rather than let the nation survive, and the other would accept war rather than let it perish, and the war came.

One-eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union even by war, while the Government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with or even before the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible and pray to the same God, and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces, but let us judge not, that we be not judged. The prayers of both could not be answered. That of neither has been answered fully. The Almighty has His own purposes. "Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh." If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said "the judgments of the Lord are true and righteous altogether."

Crowd at Lincoln's Second Inaugural. Flickr.
With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.


Abraham Lincoln, Second Inaugural Address, Avalon Project (Lillian Goldman Law Library, Yale Law School) 

Image: Abraham Lincoln Delivers His Second Inaugural Address; source: Internet Archive Book Images, Flickr 

Image: The first page of a copy of Abraham Lincoln's Second Inaugural Address that President Lincoln endorsed after delivering the speech; source: Our Documents 

Image: Crowd at Lincoln's Second Inaugural; source: Library of Congress, Flickr

Tuesday, March 3, 2015

In a Word: The Supreme Court, Redistricting & Health Care

Oral argument in two Supreme Court cases of particular interest occurs this week.

Supreme Court
4 October 2014
© Fabrizio di Piazza
On Monday 2 March 2015, the Court heard argument in Arizona State Legislature v. Arizona Independent Redistricting Committee, addressing how states draw Congressional voting districts. On Wednesday 4 March 2015, the Court will hear argument in King v. Burwell, addressing the Affordable Care Act (ACA) and tax credits for health care purchased through federal health plan exchanges. Brief case summaries and resources to consider follow the jump.

Both cases ask a seemingly basic question about the meaning of a word. The Arizona case asks: What does "legislature" mean? The health care case, the second challenge to the ACA the Supreme Court has heard, asks: What does "state" mean?

The implications of these seemingly basic questions are enormous. The Arizona case, in defining what "legislature" means, will define what body of government may regulate elections and by extension whether the people of a state have the power, through referendum, to control what the state legislature (House and Senate in Arizona) may do.

The health care case, in defining the word "state," will define the power of the federal government to subsidize health care premiums in 37 states that have not set up their own health care exchanges or where the federal government helps to run a state exchange. At risk, if the Court decides that "state" means only state government and not the federal government: access to tax credits for health care premiums, an important means ACA sets up to make health care coverage affordable.