Wednesday, March 22, 2017

Posts for March 22, 2017
These are the posts that are accumulated in our weekly newsletter which goes out throughout the school year. The posts are organized by the major units in our Constitutional Law (5th ed.) student textbook.

Supreme Court Justice Confirmation Hearing, Day 3. Here’s the C-SPAN link:

The Educational Function of Kabuki Confirmation Hearings [Justia, 3/22/17]: Professor Dorf explains the value of the confirmation hearing of Supreme Court nominee Neil Gorsuch, despite the tradition in such hearings of the nominee evading answering questions about the most divisive legal issues of the day. Dorf argues that the Gorsuch hearing provides a unique opportunity for bipartisan repudiation of President Trump’s irresponsible attacks on the judiciary.

I. Introduction to Law, the Constitution, and the Supreme Court [See TOPICS 1-10 in the 5th edition of Constitutional Law] Here are some recent articles that are relevant to this unit:

High Court Shakes Its Pom-Poms for Uniform Makers [CNS, 3/22/17]: Adding a new kind of chevron to its precedent, the Supreme Court ruled Wednesday that zig-zags and other cheerleading-uniform designs enjoy protection under copyright law.

The Gorsuch hearings
Gorsuch promises he would be independent on Supreme Court, including from President Trump [LA Times / NPR, 3/22/17]: “Nobody is above the law in this country, and that includes the president of the United States,” he said.
Joviality at Neil Gorsuch’s Hearing Masks Drama Behind the Scenes [NY Times / NPR, 3/22/17]: Judge Neil M. Gorsuch will continue to be questioned Wednesday at his confirmation hearing, but the real struggle over his nomination to the Supreme Court is already well on its way to the Senate floor.
Supreme Court nominee Neil Gorsuch evades tough questions at confirmation hearing [USA Today, 3/21/17]:
Supreme Court nominee stakes out independence from Trump [Reuters, 3/21/17]:
Gorsuch's Nomination Is the Fruit of a Broken Confirmation Process [The Atlantic, 3/21/17]: The Colorado judge's potential rise to the Supreme Court is compromised by the crudest sort of bare-knuckle partisan politics.
Can Neil Gorsuch Answer a Question? [Slate, 3/21/17]: On Day 2 of his Supreme Court confirmation hearings, it remains unclear.

Justice Jackson and Originalism [Gerard Magliocca in Concurring Opinions, 3/21/17]: Supreme Court confirmation hearings are full of rituals, and one of the recent ones is praise for Justice Jackson’s concurring opinion in The Steel Seizure Cases. Close readers of our Con Law student textbook might recognize the famous Jackson quote on our title page.

II. Defining the Political System: Federalism and Checks and Balances [See TOPICS 11-15 in the 5th edition of Constitutional Law] Here are recent articles that are relevant to this unit:

The Chevron doctrine will become a hotly-contested topic in the near future. From an opinion in the 3rd Circuit Court of appeals: “The doctrine of deference deserves another look. Chevron and Auer and their like are, with all respect, contrary to the roles assigned to the separate branches of government.”
Here is the opinion, a concurring one, in Egan v. Delaware River Port Auth.:

My Testimony on Originalism for the Gorsuch Hearings [Legal Theory blog, 3/22/17]: Lawrence Solum’s testifyies on originalism at the Gorsuch hearing.

U.S. Supreme Court hears arguments in dispute over St. Croix riverfront lot [Minneapolis Star Trib / Volokh Conspiracy, 3/21/17]: Siblings say zoning restrictions wrongly interfere with its sale.
Teacher Gets New Perspective on U.S. Supreme Court: His Own Family's Case [School Law Blog, 3/21/17]: As a veteran high school social science teacher in Minnesota, Mike Murr has taught generations of students about the Supreme Court and other governmental institutions. On Monday, he sat in the spectator rows of the high court to hear arguments in a case with his name on it.

The American Presidency [TOPIC 15]

How the FBI tailing Trump could dog his presidency [Politico, 3/21/17]: From Richard Nixon to Bill Clinton, history suggests that it is never a good thing for a president to have the FBI, with its nearly infinite resources and sweeping investigative powers, on his tail.

Trump to GOP critics of health care bill: ‘I’m gonna come after you’ [Wash Post, 3/21/17]: President Trump spent Tuesday selling the Republican health-care overhaul to skeptical House members, warning his party that failure would endanger his legislative agenda and their own political careers.

III. The Political System: Voting and Campaigns [See TOPICS 16-20 in the 5th edition of Constitutional Law] Here are some recent articles that are relevant to this unit:

Legislation and the Legislative Process (TOPIC 20)

How Democrats could bring down Obamacare repeal [Politico, 3/21/17]: Senate Democrats want House conservatives to think twice before supporting Speaker Paul Ryan's Obamacare repeal bill — because Democrats believe they can strip out key provisions used to woo the right when the bill comes over to the Senate.

New effort to extend the time needed for teachers to earn tenure [LA Times, 3/21/17]: A previous effort to extend the probationary period, led by then-Gov. Arnold Schwarzenegger, failed at the ballot box. A lawsuit, Vergara vs. California, to do away with current tenure rules and some other teacher job protections prevailed at the trial court level in Los Angeles, then was overturned on appeal.

IV. Criminal Law and Procedure (4th, 5th, 6th, and 8th amendments) [See TOPICS 21-28 in the 5th edition of Constitutional Law] Here are some recent articles that are relevant to this unit

Public Record, Astronomical Price [Marshall Project, 3/21/17]: Unable to afford a trial transcript, a journalist digs into the laws that govern them.

V. 1st Amendment (Speech, Religion, Press and Assembly) [See TOPICS 29-33 in the 5th edition of Constitutional Law] Here are some recent articles that are relevant to this unit:

How the First Amendment Applies to Trump's Presidency [New Yorker, 3/21/17]: One of the strangest sentences in American law comes from Justice Lewis F. Powell, Jr. “Under the First Amendment,” he wrote, in 1974, “there is no such thing as a false idea.” Should former President Obama sue President Trump for libel?

Is the New Travel ban Unconstitutional? It May Come Down to Whether Courts Can take Campaign Statements Seriously [Newseum, 3/22/17]: The Supreme Court has established that courts can’t just consider the words of a law when deciding whether or not the law’s purpose is discriminatory; they also have to analyze the law’s history, the context in which it was proposed, and statements made by key decisionmakers.

UN rights chief urges international community to target hate speech [Jurist, 3/21/17]: UN High Commissioner for Human Rights Zeid Ra'ad Al Hussein marked the International Day for the Elimination of Racial Discrimination Tuesday by making astatement emphasizing the importance of curtailing hate speech. Highlighting the racially motivated atrocities occurring worldwide, Zeid noted how several reputable organizations have reported an increase in hate crimes, potentially due to racially charged rhetoric. 

Gorsuch's Selective View of 'Religious Freedom' [The Atlantic, 3/21/17]: Trump's nominee to replace Justice Antonin Scalia possesses the same limited view of religious freedom supported by the conservatives currently on the Supreme Court.

Texas school board can start meetings with prayer: U.S. appeals court [Reuters / AP, 3/21/17]: In a 3-0 decision, the 5th U.S. Circuit Court of Appeals rejected an appeal by the American Humanist Association, which said the practice by the Birdville Independent School District violated the First Amendment's prohibition of a government establishment of religion.

VI. 14th Amendment, Discrimination, Privacy, Working, Citizenship & Immigration [See TOPICS 34-41 in the 5th edition of Constitutional Law] Here are some recent articles that are relevant to this unit:

No Peeking? Korematsu and Judicial Credulity [“Take Care” blog, 3/22/17]: A curious argument has become fashionable in certain circles. The argument is about President Trump’s travel bans, and goes something like this: when a court evaluates the legality of these bans, what is required is a sort of studied judicial credulity. 

Supreme Court Bolsters Rights of Learning-Disabled Students [CNS, 3/22/17]: The U.S. Supreme Court on Wednesday bolstered the rights of learning-disabled students by requiring public school districts to ensure their special education programs offer these children more than the bare minimum of instruction.
The unanimous opinion in Endrew F. v. Douglas County School Dist. RE-1 can be found at:

Unanimous Supreme Court Expands Scope of Special Education Rights [School Law Blog, 3/22/17]: In Endrew F., the high court rejected the "merely more than de minimis" standard set by the U.S. Court of Appeals for the 10th Circuit, in Denver. That language was also used in an opinion in another special education case by Judge Neil M. Gorsuch, President Donald Trump's nominee for the Supreme Court.


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