National Law Journal’s Law School Review

The National Law Journal has an interesting forum/blog that first addressed the question “Are law schools in crisis?” and that is now turning to the question “How should law schools change?”

On the first question, I found particularly interesting the responses provided by law professors William Henderson and Brian Tamanaha. Henderson discusses the factors that he believes are driving “a large, structural transformation” in legal education. Declaring that law schools “are doing fine, thank you,” Tamanaha redirects attention to the “real crisis”: “Thousands upon thousands of law graduates have debt far above what their salaries can bear.”

Professor Higginson Confirmed

Yesterday, the Senate voted 98-0 to confirm Stephen Higginson to the U.S. Court of Appeals for the Fifth Circuit.  Higginson, a law professor at Loyola University of New Orleans, was supported by both home-state Senators. (Hat tip: How Appealing)

No Guidance (For Now) on Memorial Crosses

The U.S. Supreme Court announced Monday that it would not review an important case on whether displaying a memorial cross is an unconstitutional “establishment” of religion. Justice Thomas issued a 19-page dissenting opinion noting that “the Court reject[ed] an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles.

The Court was asked to consider a decision that banned public roadside crosses honoring state troopers killed in the line of duty. The court’s decision leaves a 5–4 appellate court ruling intact, but the issue is far from over. The high court will shortly face a similar request over a memorial cross that is part of a San Diego veterans’ memorial.

ADF asked the Supreme Court to take the Utah case on behalf of our client, the Utah Highway Patrol Association. The association and family members erected memorial crosses to honor the memory of officers who paid the ultimate price while serving their community.

These plain white roadside markers, displaying photos and written tributes to the deceased officers, brought solace to families and fellow officers and a sense of solemn dignity befitting the circumstances. The memorial crosses were paid for and maintained by private funds. Although no government money was involved, the plaintiffs from American Atheists stormed into federal court, claiming they were offended by such memorials and demanded they be torn down.

The Supreme Court’s decision not to review the case contributes to a growing sense of frustration, particularly since the court has sent signals that such memorials are not constitutionally prohibited.

For example, the court recently considered a challenge to a memorial cross honoring veterans in the Mojave Desert. Justice Kennedy, writing for the Court, dismissed the challenge to the memorial on technical grounds, and so the decision did not get to the weightier question on whether the inclusion of a cross violated the Constitution. But, in anticipation of the question, Justice Kennedy expressed his view about such displays:

The goal of avoiding government endorsement does not require eradication of all religious symbols in the public realm. A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of government support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgement of religion’s role in society.

Interestingly, Justice Kennedy volunteered this guidance while the Utah trooper memorial case was pending on appeal. Despite the Supreme Court’s whopping hint, judges in the U.S. Court of Appeals for the Tenth Circuit voted 5–4 against the memorial displays. In light of these circumstances, the high court’s decision to pass on review is unfortunate, though certainly not the end of the story. There are various reasons the justices may select or decline a particular case to decide a topic. Whatever the reasons in this case, we are encouraged by Justice Kennedy’s comments, which reflect the commonsense view that a memorial cross is not an “establishment” of religion.

While we remain hopeful, the Supreme Court’s decision to pass on this case leaves the current unfortunate confusion in place. Justice Thomas’s dissent captured this, noting, “One might be forgiven for failing to discern a workable principle that explains these wildly divergent outcomes” (referring to Establishment Clause cases generally).

The Utah case is only one of an onslaught of cases filed against memorial crosses. Groups like the ACLU and American Atheists have attacked other memorial crosses honoring veterans and even the well-known steel girder cross included in the 9-11 Memorial and Museum in New York. Their crusade against memorial crosses has incensed much of the public. For example, ADF is privileged to represent the American Legion Department of California in the Mount Soledad Memorial case in San Diego. We also represent the United Retired Firefighters Association, a group of about 7,000 New York City retired firefighters, who are fired-up over the American Atheists’ lawsuit against the 9-11 cross.

Sooner or later, the Supreme Court will have an opportunity to clear up the law on memorial crosses displays. For the sake of those valiant members of society whom we honor in these memorials, let’s hope the high court gets it right.

Joseph Infranco is senior counsel with the Alliance Defense Fund, which represented the Utah Highway Patrol Association in the lawsuit filed by American Atheists.

The Court’s Establishment Clause Jurisprudence Provides Clarity … “Except When It Doesn’t”

Today (in Utah Highway Patrol Association v. American Atheists, Inc.) the Supreme Court denied petitions to review a Tenth Circuit decision that held that a private association’s efforts to memorialize slain police officers with white roadside crosses violated the Establishment Clause. In his dissent from the denial of review (available at the last 19 pages of this order), Justice Thomas complains that “our Establishment Clause precedents remain impenetrable … [and] incapable of coherent explanation,” and he offers this apt summary of the state of case law:

Since the inception of the endorsement test, we have learned that a creche displayed on government property violates the Establishment Clause, except when it doesn’t. [Case citations and summaries omitted.]

Likewise, a menorah displayed on government property violates the Establishment Clause, except when it doesn’t. [Case citations and summaries omitted.]  

A display of the Ten Commandments on government property also violates the Establishment Clause, except when it doesn’t. [Case citations and summaries omitted.] 

Finally, a cross displayed on government property violates the Establishment Clause, as the Tenth Circuit held here, except when it doesn’t. [Case citations and summaries omitted.] 

I gather from footnote 11 of Justice Thomas’s opinion that concerns over whether surviving family members could select a symbol other than a cross (and thus over whether the case was a good vehicle for clarifying the confusion in case law) may explain the Court’s denial of review.

This Day in Liberal Judicial Activism—October 31

1972—By a vote of 5 to 4, the en banc D.C. Circuit, in an opinion by Judge J. Skelly Wright in United States v. Robinson, rules that a police officer violated the Fourth Amendment when, in the course of searching a person whom he had lawfully arrested, he opened up a crumpled cigarette package—which turned out to contain heroin—that he found in the person’s pocket. The D.C. Circuit overturns the resulting conviction for drug offenses.

In dissent, Judge Malcolm Wilkey faults Wright for ignoring “long-established doctrine” and for what Wilkey calls Wright’s “usual flat error regarding the established facts.” On review, the Supreme Court rules 6 to 3 (with Justices Douglas, Brennan, and Marshall in dissent) that the search and seizure “were permissible under established Fourth Amendment law.”

This Day in Liberal Judicial Activism—October 30

2006—A South Dakota law enacted in 2005 sets forth informed-consent provisions for abortion, including that the woman undergoing abortion be informed that “the abortion will terminate the life of a whole, separate, unique living human being.” The law defines “human being” as an “individual living member of the species Homo sapiens.”

In Planned Parenthood Minnesota v. Rounds, a divided panel of the Eighth Circuit affirms an injunction preventing the entire 2005 law from going into effect. In her majority opinion, Judge Diana Murphy treats as a factual finding the district court’s determination that the statement that an abortion “will terminate the life of a whole, separate, unique living human being” is a value judgment, rather than a medical fact, and she relies on a declaration submitted by one of the plaintiffs to provide evidentiary support for that supposed factual finding. The statements, she concludes, “could be found to violate both the First Amendment rights of physicians and the due process rights of women seeking abortion.” In dissent, Judge Raymond Gruender points out that the statement is “an unremarkable tautology”—“a restatement of the definition of ‘abortion’”—and is “truthful, non-misleading, and non-ideological on its face.”

In June 2008, the Eighth Circuit, acting en banc, reverses the panel decision by a 7-4 vote, with Judge Gruender penning the majority opinion and Judge Murphy the dissent. 

For D.C. Circuit Junkies

I’ve recently learned of the existence of D.C. Circuit Review, a blog dedicated (as its straightforward title indicates) to news about the U.S. Court of Appeals for the D.C. Circuit. I gather that the blog started about six weeks ago. For those interested in following that court closely, it looks like a useful resource.

The blog doesn’t provide any information about who is running it. My guess is that a D.C. lawyer (perhaps a former D.C. Circuit law clerk) has found it a worthwhile avocation.

Richard Fallon on Law Professors as Signatories to Amicus Briefs

Harvard law professor Richard Fallon has written a very interesting and thoughtful paper exploring how “norms of scholarly integrity” ought to guide law professors in deciding whether and how to participate in so-called “scholars’ briefs”—that is, amicus briefs submitted by law professors who (as Fallon puts it) “represent that their only interest lies in the proper development of the law.” (H/t Orin Kerr at the Volokh Conspiracy.) Scholars’ briefs, according to Fallon, “appear to grow more common each year.” Indeed, one law professor tells me that many law professors regard these briefs as the most important thing they do.

Fallon’s central argument, while gently phrased, should sting many legal academics: “we should insist that scholars’ briefs reflect higher norms of scholarly integrity than many such briefs now satisfy.”

Fallon begins (pp. 12-18) by highlighting three “contrasts between the standards of integrity applicable to lawyers [including law professors] representing clients and those applicable to law professors in their capacity as scholars.” First, a scholar “assumes individual responsibility for having authored any writing that she publishes under her name and for having done the research or performed the analysis on which her stated conclusions depend.” Second, a scholar “is subject to the norm of trustworthiness, which demands that she sincerely believe all of her claims or arguments and that she state them in ways not intended to mislead her readers about their relation to other arguments or evidence.” Third, the confrontation norm “requires scholars to be candid in acknowledging difficulties with their arguments by confronting the most significant possible non-obvious objections to their analyses” and by stating the counterarguments “as clearly and as fairly as she can.”

Fallon then explores (pp. 28-31) how these general standards “applicable to scholars writing books and articles” might properly be “altered or relaxed” for scholars’ briefs. He readily acknowledges that length limitations on amicus briefs will require adjustment of the confrontation norm. By contrast, he maintains (with some qualifications) that the norm of individual responsibility should be largely unaffected:

Law professors should not join scholars’ briefs unless they have a personal basis in knowledge for affirming that all of the briefs’ principal assertions of plain fact are true (or are appropriately assumed to be so for purposes of legal argument) and that all of the briefs’ principal interpretive claims reflect the scholars’ sincere views.

As for the norm of trustworthiness, Fallon proposes this “test”:

Before signing scholars’ briefs, law professors should ask themselves how they would respond, in their roles as scholars and teachers, if the court to which the brief is addressed simply adopted the brief’s reasoning and language as its own. If a professor would applaud the court for doing so, she should have no compunctions about joining the brief.

Fallon also addresses the matter of joint letters by law professors to “non-judicial decision makers” (e.g., Congress). Adopting a standard previously proposed by law professor Ward Farnsworth, Fallon determines that a law professor “should presumptively conclude that she cannot, with integrity, take personal responsibility for the accuracy of the purportedly expert opinion that a letter expresses” unless “she would feel competent to present and defend the collective statement at a faculty workshop.”

Overall, I’m very impressed by Fallon’s paper. I think that it’s fair to say that if his advice were followed, the number of scholars’ briefs and the number of signatories to those briefs and to collective letters would fall by a huge percentage (I’d guess by 90%, give or take 10% ). I’ll offer just one criticism: I don’t think that Fallon’s proposed test for the norm of trustworthiness would be likely to accomplish much of anything, for the many law professors who don’t adhere to the norms that Fallon prescribes “in their roles as scholars and teachers” would generally be delighted if a court “simply adopted [their] brief’s reasoning and language as its own.”

Inventory of Posts on D.C. Circuit Nominee Caitlin Halligan

Amidst all the talk of other courts that face “judicial emergencies” and despite the fact that the D.C. Circuit is underworked, there is buzz that Senate majority leader Harry Reid may soon press for a floor vote on Caitlin Halligan’s nomination to the D.C. Circuit.

For the sake of convenience, I am providing here an inventory of various of my posts on Halligan’s record and testimony. (The titles below don’t exactly match the titles on the posts, as I’ve shortened many of them and tweaked others to make their topic clearer.)

Halligan on National Security

Halligan on Same-Sex Marriage

Halligan on Racial Preferences

Halligan on the Death Penalty and State “Consensus”


Halligan’s Incredible Testimony

A Rebuttal on Halligan’s Incredible Testimony

Halligan’s Testimony on Report on Indefinite Detention—Part 1

Halligan’s Testimony on Report on Indefinite Detention—Part 2

More on Halligan’s Testimony on Report on Indefinite Detention

I’ll also call attention to Gary Marx’s post on Halligan and the Second Amendment.

UT’s Missing Brief and Justice Kagan’s Recusal

The procedural battle in the college admissions case of Fisher v. University of Texas has taken an interesting twist. As National Review Online has reported, lawyers for Abigail Fisher filed a petition for certiorari with the U.S. Supreme Court asking it to overturn the decision of the Fifth Circuit Court of Appeals. A three-judge panel of the Fifth Circuit had upheld the racially discriminatory admissions policy of the University of Texas in Austin (UT) over a strong dissent written by Chief Judge Edith Jones on behalf of seven out of the 16 judges on the court who wanted to take the case en banc and reverse the panel decision.

Ed Whelan has discussed the six sets of amicus briefs filed on behalf of Abigail Fisher. But the twist comes from the fact that the time for the University of Texas to file a brief in opposition to the petition has come and gone, so Texas has informally waived its right to file. The decision to waive filing a response indicates that Texas may be trying to stall the Court’s consideration of the petition. In the typical case, waiving a response can make sense because doing so may allow the case to fly below the radar and give the Court an opportunity to deny the petition without a response.

But this is not a normal case. It’s been watched closely by the Supreme Court bar and press since the end of the Court’s last term. The Court is highly likely to ask Texas for a response. So why does Texas remain silent? The state’s refusal to address what is obviously a very strong candidate for a certiorari grant strongly suggests that either it has nothing to say and is merely delaying the inevitable, or that it wanted to see what amicus briefs said about the case before it files a brief in response to a request from the Court.

Another red herring has also been raised in the Fisher case in a seeming effort to influence the Court the wrong way on Abigail Fisher’s request for review by the Supreme Court. A posting over at Just Enrichment that raises “lurking procedural defects” is not just way off the mark, it is legally frivolous. The blogger confuses the issue of standing (“Has Fisher stated an injury?”) with the issue of the merits (“Does Fisher win?”).  

Abigail Fisher’s standing to maintain this case cannot be seriously questioned. UT employs race as a discriminatory factor in admissions decisions to increase the enrollment of Hispanic and African-American students. Because Abigail Fisher’s application to UT was not given equal treatment as compared to these supposedly “underrepresented” minority groups, she suffered an injury under the Equal Protection Clause.

The Supreme Court said in Grutter v. Bollinger that “whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution’s guarantee of equal protection.” Thus, as Justice Powell explained in the even earlier case of Regents of the University of California v. Bakke, a plaintiff such as Abigail Fisher “is entitled to a judicial determination that the burden [s]he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.”

That Fisher, to obtain money damages, will have to prove that she would have been admitted to UT under a race-neutral system is entirely irrelevant to the fact that she has standing to maintain this action.

The blog post cites another case, Texas v. Lesage, to bolster its claims that Fisher lacks standing to sue UT. But the Lesage decision only showed that to recover money damages, a college applicant needs to show that he or she would have been admitted under a lawful admissions program. There is no suggestion in Lesage that the plaintiff there lacked standing. Indeed, the word “standing” never even appears in that opinion.

The post concedes that Fisher has standing to seek a declaration that UT’s use of race during her admissions cycle was unlawful. But it suggests that she will not be able to obtain forward-looking injunctive relief. Whether she is entitled to prospective relief, though, is entirely irrelevant to the fact that she has standing to maintain this action. As a factual matter, UT’s admissions program operates in essentially the same biased way now as when Ms. Fisher was denied admission in 2008. Thus, a declaration that UT’s use of race was unconstitutional in 2008 effectively declares UT’s use of race in the identical manner unconstitutional in 2011.

Thus the “lurking procedural defects” are not “procedural defects” at all. Nor are they “lurking.” Texas raised these very points before the Fifth Circuit. And the Fifth Circuit Court of Appeals correctly held that Fisher has “standing to challenge [her] rejection and to seek money damages for [her] injury.” This could include not only the cost of her original application, but the difference in lifetime earnings between a law graduate of UT and the law school she ended up at.

The real issue “lurking” in the Fisher case is that Justice Elena Kagan’s has an absolute obligation to recuse herself from the case and any consideration of the petition for cert. It turns out that she was still the solicitor general when the United States filed an amicus brief on March 12, 2010, in the Fifth Circuit in support of UT’s prejudiced admissions policy. That brief argued that UT’s admissions policy was justified by a “compelling interest in attaining the educational benefits of diversity.”

Under the Justice Department’s own regulations, the solicitor general is tasked with “[d]etermining whether a brief amicus curiae will be filed by the government, or whether the government will intervene, in any appellate court.” Thus, Justice Kagan is responsible for the final decision on whether DOJ should file an amicus brief in the Fifth Circuit. Because of the role she played in the case that is now before the Supreme Court, she must recuse herself.

Indeed, that is the conclusion that Tom Goldstein reached as a general matter at the much-read SCOTUSBLOG in an analysis of “Elena Kagan and Recusal” at the time of her nomination: “there are cases in which Kagan would be recused because of her personal role in authorizing lower court litigation. The Solicitor General must personally approve any appeal, rehearing request, or amicus brief by the government” (emphasis added).

Justice Kagan’s recusal has potentially profound implications for the case. If the request for review is granted, as most court-watchers expect, then without Justice Kagan’s vote, the liberal bloc at the Court needs Justice Kennedy’s vote for a 4–4 tie. With the four more conservative Justices likely to go against UT given their prior jurisprudence and views against racial discrimination, this means that the best UT can hope for on the merits of their admissions policy is a 4–4 tie.

To be sure, a 4–4 tie would affirm the Fifth Circuit’s inequitable decision and be a victory for UT. However — and this is the important part — affirmance by an equally divided vote would mean that there is no opinion for the Supreme Court. In other words, there is no way in Fisher for the Court to move any further left on the issue of affirmative action.

On the other hand, if Justice Kennedy were to side with the more conservative Justices (and remember that he dissented from Justice O’Conner’s decision authorizing discrimination in Grutter), the Court would have an opportunity to cut back or eliminate government-sponsored racial discrimination in higher education.

With everything to lose and nothing to gain, no wonder UT is stalling.

— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation and a former Justice Department lawyer.