The Revival of Judicial Activism

Emily Bazelon at Slate has a good article on judicial activism with respect to the Prop 8 decision in California and the SB 1070 decision in Arizona. Although many conservatives have complained that the judges in the two cases have ignored the will of the people in reversing popular laws, Bazelon concludes, "It's not the job of the courts solely to mirror public opinion. But increasingly over time, since the beginning of the 20th century, they have come into line with it, as Barry Friedman showed in his book, Will of the People." Bazelon argues that once a majority of Americans accepts gay marriage, it will be that much easier for a judge to protect it.

UPDATE: Professor Friedman has agreed to speak on this issue at Georgetown sometime in late October or early November. Details to come.

Amending the 14th

Some Republicans are causing a firestorm with recent remarks about a movement to repeal the 14th amendment's Citizenship Clause. Linda Chavez has a good opinion piece in the WSJ here. James Carafano at Heritage argues that the Citizenship Clause is worth revisiting here. Garrett Epps takes a different view at the Atlantic here.

Criminal Disenfranchisement

Journal write on results were announced yesterday and now the Supreme Court itself will address the issue of whether the Voting Rights Act applies to state criminal disenfranchisement laws. Linda Greenhouse has an article on the subject here.

Virginia v. Obamacare

Virginia AG Ken Cuccinelli 

In the first substantive legal ruling on President Barack Obama's health care reform law, a federal judge rejected the Justice Department's request to dismiss a lawsuit from Virginia's state government challenging the reform's requirement that individuals purchase health insurance. Politico has  a story here. The Jurist has a more detailed article here outlining the subject matter jurisdiction question raised by the Obama administration. A copy of the seven page complaint can be read here. 

Death of the Amicus Brief

An important and growing trend is the rise of cert-stage amicus briefs which seem to have great influence on whether a case reaches the Court's docket. As the number of merits stage amicus briefs has grown, their influence has diminished since the justices (or their clerks) cannot or do not want to read all of them. As Tony Mauro and Marcia Coyle write here, "In the 73 cases that were granted and decided last term by signed opinions, a total of 74 amicus curiae briefs were filed before review or certiorari was granted, up from 66 the previous term and 44 the term before that."

Arizona Enjoined

The full text of Judge Bolton's order in US v. Arizona is here. The first four pages of the order quickly summarize which provisions of the Arizona law can and cannot lawfully be enforced until a final disposition of the case. The final paragraph of the order concludes: 

"A preliminary injunction would allow the federal government to continue to pursue federal priorities, which is inherently in the public interest, until a final judgment is reached in this case.

The Court by no means disregards Arizona’s interests in controlling illegal immigration and addressing the concurrent problems with crime including the trafficking of humans, drugs, guns, and money. Even though Arizona’s interests may be consistent with those of the federal government, it is not in the public interest for Arizona to enforce preempted laws. The Court therefore finds that preserving the status quo through a preliminary injunction is less harmful than allowing state laws that are likely preempted by federal law to be enforced."

Arizona is currently requesting an expedited hearing for its appeal. 

The Most Conservative Court Ever?

The New York Times ran an article last weekend arguing that based on a simplified scoring of the Supreme Court's rulings over the last five years, the Roberts court is "the most conservative one in living memory." The data analyzed show that four of the six most conservative justices of all time are sitting on the current bench, including the most conservative justice of all time: Clarence Thomas. On page 4 of the online version, the article also does a fair job of discussing how public attitudes factor into the discussion of what is a liberal or conservative ruling.

The Future of OCI?

Not Federalist related, but as EIW approaches, here is an interesting article about law firms reconsidering the structure of on campus interviews and the legal recruiting process.

Miranda Under Pressue

National Law Journal has a good summary of the Court's three Miranda decisions from last term here including a mild criticism of Scalia's arbitrary14 day rule from Shatzer that both Thomas and Stevens rejected.

Law School Applications Up 7% Nationwide

The National Law Journal ran an interesting article yesterday focusing on the continuing rise in law school applications. Law school applications increased by 7% and the number of applicants by 3% nationwide for this year's incoming class compared to last year, according to the Law School Admissions Council (LSAC). A handful of law schools saw their applicant pools swell by 30% or more. Alabama led the way with a 70% rise in applications. 

Is the Electoral College Obsolete?

The Electoral College has been a staple of American presidential elections since the nation's founding, but it may not be for long: a new legislative effort has been gaining momentum in state legislatures and could soon fundamentally change presidential elections as we know them. A California-based group, National Popular Vote, hopes to convince a critical mass of state legislatures to sign an interstate compact that will dictate a new method of allocating presidential electors: rather than states allocating electors as they do now, NPV wants states to give their electors to the winner of the national popular vote. The compact has been approved in five states (61 electoral votes) and is currently being considered in three other states (46 electoral votes). Three additional state legislatures approved the compact but did not receive gubernatorial approval (62 electoral votes). The compact goes into effect when states holding 270 electoral votes have signed the agreement. At this critical moment in the progress of NPV's legislation, 


Last week at Cato, Tara Ross and John R. Koza debated the benefits and detriments of both NPV and the Electoral College. Should the Electoral College be retained? If not, is NPV's solution a good one, or might there be unintended logistical ramifications? Should Electoral College opponents instead go through the formal constitutional amendment process? Video from the event is here. 

Republican Confirmation Votes

The New York Times has an interesting graphic showing how Republican Senators will likely vote on Kagan's nomination. The chart shows Kagan getting a yes from 8 Republicans, three of whom voted against her nomination to Solicitor General.

Justice Thomas To Speak at 2011 National Student Symposium

The 2011 Federalist Society National Student Symposium is at UVA Law in Charlottesville from February 25-26. For only the second time, a sitting justice will deliver the keynote speech at a Student Symposium. Additional info here.

Conservative (?) Justice Kennedy Not Retiring Yet

NY Daily News has this story about Justice Kennedy's plans to stay on the Court at least past the 2012 election. Kennedy is the third oldest member of the Court after Ginsburg (77) and Scalia (74).