Supreme Court

“On sundry occasions in US history, the president has defied a check that a co-equal branch of the federal government has sought to place on him (to date, the president has always been a man). Such defiance, alone, is confrontation. But confrontation soon will escalate to crisis if the legislative or judicial branch abdicates its duty fully to check unwarranted executive behavior.”

The passage is drawn from my comment in response to the question whether the United States is in a “constitutional crisis” or “confrontation.” My comment appears as part of an expert legal roundup at Vox, compiled by journalist Sean Illing.

The comment begins with the observation that the U.S. Constitution is the product of crisis, and also a bold, 230-year experiment in which “Americans dared to promise equality in an unequal world, to prescribe government by the rule of law rather than the whim of one man” Setbacks continue. Respecting the promise of equality, “persons of color, women, and others continue to struggle … for their due place in the American polity.” Respecting the prescription for rule by law, it remains to be seen whether the unfolding separation-of-powers confrontation will constitute crisis.

The full roundup is here. Also contributing were: Victoria Nourse, Georgetown Law; Keith Whittington, Princeton; Jessica Silbey, Northeastern Law; Peter Shane, Ohio State Law; Mark Tushnet, Harvard Law; Alice Ristroph, Brooklyn Law; Sanford Levinson, Texas Law; Aziz Huq, Chicago Law; Tom Ginsburg, Chicago Law; and Ilya Somin, George Mason Law.

gassed

In this month that marks the centenary of World War I, the U.S. Supreme Court evoked an epic image of that global conflict. Thus was rejected today the prosecutorial conflation of chemical warfare with what the Court in Bond v. United States called an “unremarkable local offense.”

The image is the one above: John Singer Sargent’s 1919 painting, Gassed. Fully 20 feet wide and 7-1/2 feet tall, it hangs in the Imperial War Museum in London. (image credit) Writing for a 6-member majority, Chief Justice John G. Roberts, Jr., described the scene, one that Sargent had encountered in 1917 on a battlefield in France:

‘[T]wo lines of soldiers, blinded by mustard gas, clinging single file to orderlies guiding them to an improvised aid station. There they would receive little treatment and no relief; many suffered for weeks only to have the gas claim their lives. The soldiers were shown staggering through piles of comrades too seriously burned to even join the procession.’

The tragedy, Roberts wrote, contributed “to an overwhelming consensus in the international community that toxic chemicals should never again be used as weapons against human beings” – a consensus reflected in instruments like the 1992 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, which today has 190 parties. Among them is the United States, which, Roberts explained, “gave domestic effect” to the obligations it had assumed under that treaty in 1998, when it passed the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229 et seq. The statute makes the use of “chemical weapons,” a federal crime, punishable by death if the use resulted in death. It “‘goes without saying,'” Roberts concluded, that Congress had in mind tragedies along the lines depicted above – or at least as grave as the mid-1990s sarin gas attacks in Japan. He deemed well out of Congress’ mind the facts at bar: “an amateur attempt by a jilted wife to injure her husband’s lover, which ended up causing only a minor thumb burn readily treated by rinsing with water.”

This overturning of a federal conviction on federalism grounds did more than give perspective on the acts under review. It also avoided the asked-for reconsideration of Missouri v. Holland (1920), a precedent nearly as old as Sargent’s painting. There a unanimous Court upheld a federal statute that gave domestic effect to a 1916 treaty by regulating the hunting of birds that fly between the United States and Canada. Invoking the Constitution’s treaty-making and supremacy clauses, Justice Oliver Wendell Holmes, Jr., wrote:

‘If the treaty is valid, there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.’

Holmes’ terse reasoning invites questions, many of them bruited about in the months since the Court announced it would review the decision below in Bond. (See, for example, this article by my Georgia Law colleague Harlan Cohen.) Roberts’ majority opinion declined, but 3 Justices who disagreed with him accepted that invitation. “[T]he Treaty Power is itself a limited federal power,” Justice Clarence Thomas wrote in a concurrence-in-the-judgment that Justices Antonin Scalia and Samuel Alito, Jr., joined. In another concurrence-in-judgment Scalia, joined by Thomas, attributed others’ reluctance to revisit Holland to the nature of the case. “We would not give the Government’s support of the Holland principle the time of day,” they insisted, “were we confronted with ‘treaty-implementing’ legislation that abrogated the freedom of speech or some other constitutionally protected individual right.” Whether they are right remains a question for another day.

An enterprising student who is set to become part of the Georgia Law 1L class this fall recently wrote me in search of a summer reading list. In the event that my response is of wider interest, here are some superb books – nonfiction works that provide background and context, thus enriching comprehension of issues presented in courses like Public International Law, International Criminal Law, Laws of War, and Foreign Affairs/National Security Law:

wartime► Mary Dudziak, War Time: An Idea, Its History, Its Consequences (2012) (Prior post)

2019680024► John Fabian Witt, Lincoln’s Code: The Laws of War in American History (2012) (Prior post)

paris► Margaret MacMillan, Paris 1919: Six Months That Changed the World (2003) (Prior post)

aworldmadenew► Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2002) (Prior post)

gen► Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (1999) (Prior post)

telf► Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (1993) (Prior post)

Book, Thirteen Days► Robert F. Kennedy, Thirteen Days: A Memoir of the Cuban Missile Crisis (1969) (Prior post)

terr► Jess Bravin, The Terror Courts: Rough Justice at Guantanamo Bay (2013) (Prior post)

In addition, I recommended these books as means to enhance understanding of other law school courses – Constitutional Law and Federal Jurisdiction, in particular:

nine► Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (2007)

son► Sonia Sotomayor, My Beloved World (2013) (Prior post)

cliff► Cliff Sloan & David McKean, The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court (2009) (Prior post)

hab► Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (2005) (Prior post)

To that list I should have added another book:

cap► Lincoln Caplan, The Tenth Justice: The Solicitor General and the Rule of Law (1987)

And finally, here’s one that helped me prepare for my own 2L summer associateship in Manhattan:

part► James B. Stewart, The Partners: Inside America’s Most Powerful Law Firms (1983)

Other suggestions welcome. Happy summer reading!

TJ_grave

CHARLOTTESVILLE, Virginia – There is a grave-spinning serendipity in the fact that I began this week at the resting place of Thomas Jefferson. At the foot of his home, Monticello, lies the walled-in family graveyard over which the obelisk above stands sentry. Its all-caps inscription reads:

Here was buried
Thomas Jefferson
Author of the
Declaration
of
American Independence
of the
Statute of Virginia
for Religious Freedom
and father of the
University of Virginia

The Supreme Court cited that religious freedom statute Monday, along with another writing that associates Jefferson with the concept of separation of church and state. But in Monday’s judgment in Town of Greece v. Galloway, the citations did not appear in the opinion for the Court by Justice Anthony M. Kennedy, which held that the Establishment Clause of the 1st Amendment to the Constitution was not offended by the practice of opening meetings of an upstate New York town council with a prayer.

The citations occurred, rather, in the dissent that Justice Elena Kagan wrote on behalf of herself and 3 other Justices.  Contending that the principle of religious neutrality dates to the Constitution’s founding era, she cited the United States’ 1st, 3d, and 4th Presidents as examples of leaders who “consistently declined to use language or imagery associated only with” Christianity. She continued:

‘Thomas Jefferson, who followed the same practice throughout his life, explained that he omitted any reference to Jesus Christ in Virginia’s Bill for Establishing Religious Freedom (a precursor to the Establishment Clause) in order “to comprehend, within the mantle of [the law’s] protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination.”’

Then quoting Jefferson’s Virginia statute – for the principle that “opinion in matters of religion … shall in no wise diminish, enlarge, or affect … civil capacities” – Kagan articulated the dissenters’ view of what the Constitution requires:

‘Here, when a citizen stands before her government, whether to perform a service or request a benefit, her religious beliefs do not enter into the picture. … The government she faces favors no particular religion, either by word or by deed. And that government, in its various processes and proceedings, imposes no religious tests on its citizens, sorts none of them by faith, and permits no exclusion based on belief. When a person goes to court, a polling place, or an immigration proceeding—I could go on: to a zoning agency, a parole board hearing, or the DMV—government officials do not engage in sectarian worship, nor do they ask her to do likewise. They all participate in the business of government not as Christians, Jews, Muslims (and more), but only as Americans—none of them different from any other for that civic purpose. Why not, then, at a town meeting?’

It is a question Mr. Jefferson himself might have asked.

?????Two of my colleagues, Professors Matthew I. Hall and Kent Barnett, have issued a call for papers for the 7th Annual Junior Faculty Federal Courts Workshop to be held October 10 and 11, 2014, here at the University of Georgia School of Law.

Invited to submit an abstract of a paper to be discussed at the workshop are all “untenured and recently tenured academics who teach and write in federal courts, civil rights litigation, civil procedure, and other associated topics,” including persons “who do not currently hold a faculty appointment but expect to do so beginning in fall 2014.” The deadline for e-mailing an abstract to federalcourtsworkshop@gmail.com is June 20, 2014.

Junior scholars whose work-in-progress papers are accepted (following evaluation by a committee of past participants) will be partnered with senior scholars. The latter will moderate panels and comment and lead group discussions on the papers.  Confirmed senior scholars include Professors: Janet Cooper Alexander, Stanford Law; Anthony J. Bellia, Notre Dame Law; Heather Elliott, Alabama Law; Evan Lee, California-Hastings Law; Gillian Metzger, Columbia Law; James E. Pfander, Northwestern Law; Amanda Tyler, California-Berkeley; and Stephen I. Vladeck, American University Law.

Also welcomed to attend the free workshop are scholars who wish to read and comment on, but not themselves present, papers.

wiliguseWASHINGTON – The President of the International Court of Justice spoke for a banquet room full of women and men yesterday when he said, “I am just here to share in the joy of my colleagues.” The colleagues of whom ICJ President Peter Tomka spoke were Judges Joan E. Donoghue, Julie Sebutinde, and Xue Hanqin. The three women received the Prominent Women in International Law Award during the Women in International Law Interest Group luncheon, a highlight of every American Society of International Law annual meeting. As a special treat, retired U.S. Supreme Court Justice Sandra Day O’Connor dropped in to congratulate what she called “the women’s division” of the World Court bench.

Each of the honored judges made brief but inspiring comments.

Judge Donoghue, a career U.S. State Department lawyer before she joined the ICJ in September 2010, focused her comments on gender disparity in international law. In a recent three-year period, “93 percent of the arguments judges of the ICJ heard came from men,” Donoghue said, citing “A Study of Lawyers Appearing before the International Court of Justice, 1999-2012,” a forthcoming European Journal of International Law article by Cecily Rose and Shashank Kumar. In calling for greater diversity, Donoghue reasoned:

‘We are a world court, and international law in the main is for the world.’

Flashing a broad smile, Judge Xue said, “Indeed, this is a great honor and privilege to receive this award. It’s really like an higgOscar.” Xue, a former diplomat and law professor in China, is senior to Donoghue on the court by a few months. She recalled two women who had preceded both of them – Dame Rosalyn Higgins (right), whose service from 1995 to 2009 included abastid term as the ICJ’s President, and Suzanne Bastid (left), an ad hoc judge in the 1980s. Xue said:

‘Today we have so many women on the court not because today women are so much more intelligent, but because many international lawyers, men and women – I want to stress, men and women – have fought so hard for women’s rights.’

She accepted her award “as a tribute to all women legal professionals working in the field of international law, in recognition of their dedication to international peace and development.”

Having three women on the bench, Judge Sebutinde said, “is indeed a pinch-yourself moment for me.” Sebutinde’s pre-ICJ career included service as a judge in her homeland of Uganda and on the Special Court for Sierra Leone. Sebutinde thanked her colleagues Donoghue and Xue, stating, “I don’t think I would even have had the courage to apply if they were not there.” Sebutinde urged the court to increase public outreach. It is particularly important in her own region: “It is no secret I come from eastern Africa where there has been a lot of conflict for decades. The first thing that nations think of for settling their differences is war. It is never the International Court of Justice. So it’s a great responsibility, especially for judges who come from Africa, to sell the court to our part of the world.”

Adding their own words were audience members  – judges, law students, law professors, law librarians, and practicing lawyers – who took part in WILIG’s introduce-yourself tradition. Among them was International Criminal Court Prosecutor Fatou Bensouda, who recalled that as a young girl in Gambia, she had felt “helpless” after trying in vain to get police to protect a relative who was suffering domestic violence. “That is why I went to law school,” Bensouda said, and added with reference to her current work, “There must be accountability for those crimes, those who perpetrate those crimes. There must be rule of law.” Meanwhile, Washington-based attorneys Lucinda Low and Jennifer A. Hillman (a former member of the World Trade Organization Appellate Body) urged “constant vigilance” to ensure that once earned, gains in women’s participation are maintained.

A University of California-Davis Law student who hails from Kazakhstan summed up the celebratory spirit. Aigerim Dyussenova, known to her new WILIG friends as Aika, proclaimed:

‘This is the happiest day of my life.’

(In photo at top by Fionnuala Ní Aoláin, WILIG Co-Chairs Clara Brillembourg – a cardboard cutout of Eleanor Roosevelt behind her – and Christie Edwards address the luncheon audience. Looking on are, from left, Judges Xue Hanqin, Joan E. Donoghue, and Sebutinde, along with Justice O’Connor. Cross-posted at IntLawGrrls and ASIL Cables)

bbIt’s my great pleasure to announce the publication of the American Society of International Law Benchbook on International Law (2014). This represents the culmination of several years of hard work by 4 dozen contributors, international law scholars and practitioners alike. We’ve benefited greatly from advice of the ASIL Judicial Advisory Board, composed of one member from each federal circuit and several state supreme courts, chaired by U.S. Supreme Court Justice Ruth Bader Ginsburg. It has been an honor to serve as the Benchbook‘s Editor-in-Chief.

As detailed in the Preface, the Benchbook is intended as an aid to judges and litigants when foreign or international law (including treaties and customary norms) forms a part of the case before them.

It will be demonstrated at the joint meeting of ASIL and the International Law Association this week in Washington, D.C. — to be precise, as part of ASIL’s Annual General Meeting, which begins at 2:30 p.m. Thursday, April 10, in Polaris Room A/B at the Ronald Reagan Building & International Trade Center, on Pennsylvania Avenue a few blocks from the White House. (Full meeting program here.) We will give a brief demonstration and extend heartfelt thanks to all who contributed; all are welcome to attend.

The Benchbook appears online here. Readers will find the Preface and, by clicking the Table of Contents tab, the contents of this 2014 edition. Included are our dedication to the memory of David J. Bederman, followed by these units:

► Primer (International Law Defined; Sources and Evidence of International Law; Uses of International Law in U.S. Courts)

► Preliminaries (Jurisdiction; Immunities and Other Preliminary Considerations; Discovery and Other Procedures)

► Specific Topics (International Arbitration; International Law Pertaining to Families and Children; International Sale of Goods; International Air Transportation; Human Rights, comprising Alien Tort Statute, Torture Victim Protection Act, Human Trafficking, and Non-refoulement or Nonreturn; Criminal Justice; and Environment)

► Resources (Judicial Interpretation of International or Foreign Instruments; Research Resources)

Clicking on any of the above chapters will give you the pdf version of that segment of the Benchbook. If you would like to access and download the 356-page Benchbook as a whole, you may do so here.

In order to make the volume as user-friendly as possible (until our eventual transfer to html with hypertexting), we have cross-referenced throughout all chapters, and further provided several means to locate information:

Summary Table of Contents

Detailed Table of Contents

Tables of Treaties, Cases, Laws, and Scholarly Writings, along with a Keyword Index

You will see toward the end that the Benchbook includes a list with short biographies of each contributor. (The book benefited as well from the help of my colleagues and students at the University of Georgia School of Law  – Kaitlin M. Ball, but also Kent Barnett, Harlan Cohen, Erika Furlong, and the super staff at the Alexander King Campbell Law Library.)

The book also includes acknowledgments. These cannot begin to express our deep thanks to all of you for ASIL members’ support of this multiyear project. Going forward, we hope to keep the Benchbook current with periodic updating, and also to make it a hands-on training tool for judges and their staffs. We welcome members’ help in those endeavors.