Federal Law & Legal System – Page 153 – Marquette University Law School Faculty Blog

Bork Reconsidered, Part II

Post author:Edward A. Fallone
Post published:June 16, 2009
Post category:Constitutional Interpretation U.S. Supreme Court

In an earlier post, I compared the nominations of Judge Sonia Sotomayor and Judge Robert Bork in order to make some observations about the role of stare decisis and its relationship to judicial activism. My argument was that a respect for the wisdom of past practice and a preference for incremental change will allow Judge Sotomayor to avoid being tagged as a radical jurist unworthy of confirmation. In contrast, Judge Bork had a record that left him vulnerable to such a charge (even if unwarranted). Also worthy of mention here is Professor David Papke’s earlier recollection of Professor Bork in the classroom.

In the discussion that follows, I will continue to use the Sotomayor/ Bork comparison in order to draw out the manner in which the Supreme Court’s interpretation of the Second Amendment threatens to undermine the very philosophy of constitutional interpretation that is most closely associated with Judge Bork.

Opponents of the Sotomayor nomination have seized on the Second Amendment as an issue with which to attack her. Portraying her as an opponent of the constitutional right to own firearms is a strategy that will certainly succeed in energizing the base of the Republican Party. If she rises to the bait during her confirmation hearings, and expresses any skepticism over the correctness of the District of Columbia v. Heller case – striking down the DC handgun ban– then efforts to paint her as a liberal jurist who is out of the mainstream might gain some traction with the public.

Seventh Circuit Case of the Week: The Jude Saga Continues

Post author:Michael M. O'Hear
Post published:June 13, 2009
Post category:Criminal Law & Process Eastern District of Wisconsin Federal Criminal Law & Process Federal Sentencing

seventh-circuit1 For a resident of Milwaukee, there can be no question about the marquee Seventh Circuit case last week: the court decided the appeals of three of the defendants convicted in the notorious Frank Jude beating. In United States v. Bartlett, the court (per Chief Judge Easterbrook) affirmed the convictions of all three defendants and the sentences of two. However, the Seventh Circuit also vacated the sentence of Jon Bartlett, who will now have to be resentenced in the lower court.

As everyone living in the Milwaukee area knows, Bartlett and his codefendants were police officers convicted of civil rights violations for the savage beating suffered by Jude, a biracial man. For many, the Jude case, which received intense local media coverage, was emblematic of the state of police-community relations in inner-city Milwaukee.

Bartlett’s “win” on appeal resulted from a discrepancy in his sentencing.

Justice Roberts Has A Little List

Post author:Edward A. Fallone
Post published:June 10, 2009
Post category:Constitutional Interpretation Judges & Judicial Process U.S. Supreme Court

The Supreme Court ruled yesterday in Caperton v. A.T. Massey Coal Company that the Due Process Clause of the United States Constitution is violated by the refusal of a judge to recuse herself when the disproportionate campaign contributions of a litigant on behalf of that judge create a serious, objective risk of actual bias. Rick Esenberg has posted on some of the issues raised by the majority opinion here. For me, the most interesting part of the case was actually the dissent by Justice John Roberts. In it, Justice Roberts objects to the uncertainty that federal judges will encounter as they attempt to apply this constitutional right in future cases with disparate fact patterns. In a bit of theatricality worthy of Gilbert & Sullivan, the Chief Justice’s dissent presents a list of 40 questions that the majority opinion leaves unanswered.

The Chief Justice makes a rather stark assertion: “The Court’s inability to formulate a ‘judicially discernible and manageable standard’ strongly counsels against the recognition of a novel constitutional right.” He cites to Veith v. Jubelirer in support of this statement, which of course held no such thing. In fact, as a plurality opinion devoted to the issue of what constitutes a “political question,” the Veith case is a fairly slender reed upon which to rest such a sweeping proposition.