Who is Harmed?

By a cross display in the desert?

Here is a brief excerpt from the First Amendment Center's analysis of the next big EC case to be decided by the Supreme Court:

A large Christian cross stands hidden inside a plywood box atop an outcropping in a California desert, symbolizing the unsettled state of First Amendment law on the placement of religious symbols on public property.

But the box might soon be removed to reveal the cross again — or the cross could come down altogether — depending on how the Supreme Court rules in a longstanding dispute over the religious display.

The Court agreed yesterday to take up Salazar v. Buono, the case of the cross that serves as a war memorial in the federal Mojave National Preserve in San Bernardino County. It will test the attitude of the new Roberts Court — especially the newest justice, Samuel Alito Jr. — on how to resolve thorny establishment-clause questions.

If the high court rules that the cross violates the First Amendment, a brief by the Veterans of Foreign Wars warns, “The destruction of this and an untold number of like veterans memorials is sealed.” The brief cites everything from the Navy Cross to crosses at Arlington National Cemetery as possible targets.

But Barry Lynn, executive director of Americans United for Separation of Church and State, says, “The federal parks belong to all Americans and are not the appropriate place for the display of religious symbols.” Lynn adds, “Men and women of many faiths and none have served our country honorably … . A Christian symbol cannot memorialize them all.”

Keep your eye on this one.

If you are riding through the desert on a horse with no name, just avert your eyes if you are offended by this display. No harm, no foul?

Incorporation of Second Amendment: "A new Second Amendment case"

From SCOTUSBLOG (link):

Alan Gura, the Alexandria, Va., attorney who won the historic Supreme Court ruling last year establishing a personal right to have a gun for self-defense at home, started a new challenge in the Supreme Court Tuesday. It seeks to have the Second Amendment right enforced against state, county and city gun control laws. The petition in McDonald, et al., v. City of Chicago, can be downloaded here. (A docket number has not yet been assigned.)

Last week, the National Rifle Association filed a separate appeal raising the same issue (NRA, et al., v. City of Chicago, docket 08-1497). It is doubtful that the Court will consider the two new cases before recessing for the summer, probably late this month.

The McDonald petition involves four Chicago residents, the Second Amendment Foundation and the Illinois State Rifle Association, all challenging a handgun ban in Chicago. Their petition said the ban is identical to one struck down by the Supreme Court in its Second Amendment ruling last June in District of Columbia v. Heller (07-290).

The Heller decision, however, applied only to laws enacted by Congress or for the federal capital in Washington. The Court expressly left open the question of whether individuals would have the same right against state and local government gun restrictions.

Arguing that the Second Amendment right is a “fundamental” one, the new petition said that means that the Fourteenth Amendment guarantees that such rights “may not be violated by any form of government throughout the United States. Accordingly, Chicago’s handgun ban must meet the same fate as that which befell the District of Columbia’s former law.”

Part of their argument is that the Justices should step in now to resolve a dispute among federal appeals courts and state supreme courts on whether the Second Amendment is absorbed (technically, “incorporated”) into the Fourteenth Amendment — a part of the Constitution that operates against state and local government.

The question posed to the Court is whether the incorporation is accomplished under either the “privileges or immunities” clause of the Fourteenth Amendment, or under its “due process” clause. The petition urges the Court to use this case as an opportunity to reexamine the meaning of the “privileges and immunities” provision, which it noted was given an “almost meaningless construction” by the Court’s controversial decision in the Slaughter- House Cases in 1873.

The split of authority in lower courts “warrants speedy resolution, as it perpetuates the deprivation of fundamental rights among a large portion of the population,” it said. It would serve no purpose to let this conflict go on, the petition contended.

And here is a post from Volokh blog about news coverage of the incorporation issue:

L.A. Times Coverage of Second Amendment Incorporation Decisions:

The Seventh Circuit decision (from Chicago), holding that the Second Amendment doesn't apply to the states, is covered in a nearly-800-word story today. The Ninth Circuit decision (from Northern California) this April, holding that the Second Amendment does apply to the states, wasn't covered at all by the Times at the time. [UPDATE: I realized that my earlier locution here, "wasn't covered at all," was ambiguous; I meant wasn't covered at the time, but in context it could be read as saying that the article about the Seventh Circuit case doesn't mention the Ninth Circuit decision -- it does, about halfway down.]

To be sure, there are possible explanations: Today's story was by the Times' Supreme Court reporter, and this case is more likely than the Ninth Circuit case to go to the Supreme Court, for reasons I described here. The underlying controversy in the Seventh Circuit (a handgun ban) is more likely to interest people than the underlying controversy in the Ninth Circuit (a ban on gun possession on county property). And it's made higher profile by the controversy about Judge Sotomayor's participation in the Second Circuit's no-incorporation decision.

At the same time, the broad legal issue — whether state and local governments are bound by the federal right to bear arms — is the same. The Ninth Circuit decision was the one that created the circuit split, and it did tee things up for the Court to consider the Second Circuit's incorporation case (again, discussed here) — perhaps not perfectly, but still in a way that strikes me as newsworthy. The Ninth Circuit decision is the one that suggests some gun laws may be unconstitutional, which seems to me a pretty newsworthy matter. And the Ninth Circuit case was more local than the Seventh Circuit case.

So it seems to me that both cases would have been newsworthy to the L.A. Times, the Ninth Circuit case at least as much as the Seventh Circuit case. But as I noted shortly after the Ninth Circuit decision, the Ninth Circuit case wasn't covered in the L.A. Times at the time

Likewise, the Washington Post mentions the Seventh Circuit case (though in a heavily Sotomayor-focused article) and didn't mention the Ninth Circuit case when that came down.

Great New Scalia Quote

From his dissent in Caperton:

A Talmudic maxim instructs with respect to the Scripture: “Turn it over, and turn it over, for all is therein.” The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed—which is why some wrongs and imperfections have been called nonjusticiable. In the best of all possible worlds, should judges sometimes recuse even where the clear commands of our prior due process law do not require it? Undoubtedly. The relevant question, however, is whether we do more good than harm by seeking to correct this imperfection through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.

Or, as I like to say, not everything bad is constitutionally forbidden, and not everything good is constitutionally required. But sometimes it seems like that is what the Court tries to accomplish.

Exam Summer 2009

The exam is a 3-hour closed book exam which consists of three questions for a total of 200 points.

Question One is a short essay of approximately 100 words or less that counts for 25 points.

Question Two is a short essay of approximately 200 words or less that counts for 50 points.

Question Three is a longer essay of approximately 1500 words or less that counts for 125 points.

The exam 4 software does have a running word count feature that allows you to keep track of your word limits.

Good luck. Together, we have survived 3 hours a day of reading Supreme Court prose. As a fellow survivor of pre-session, I will try to remember the immortal words of the Bard in their original beauty when grading your exams:

The quality of mercy is not strained.
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest:
It blesseth him that gives and him that takes.
Tis mightiest in the mightiest; it becomes
The throned monarch better than his crown.
His scepter shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings.
But mercy is above this sceptered sway;
It is enthroned in the hearts of kings;
It is an attribute of God himself;
And earthly power doth then show like God's
When mercy seasons justice.

"School Choice Is the New Civil Rights Struggle"

Today's WSJ has this article by Brendan Miniter:

Getting arrested doesn't normally bolster a politician's credibility. But when South Carolina state Sen. Robert Ford told me recently that he saw the inside of a jail cell 73 times, he did so to make a point. As a youth, Mr. Ford cut his political teeth in tumultuous 1960s civil-rights protests.

Today this black Democrat says the new civil-rights struggle is about the quality of instruction in public schools, and that to receive a decent education African-Americans need school choice. He wants the president's help. "We need choice like Obama has. He can send his kids to any school he wants."

Mr. Ford was once like many Democrats on education -- a reliable vote against reforms that would upend the system. But over the past three and a half years he's studied how school choice works and he's now advocating tax credits and scholarships that parents can spend on public or private schools.

He's not alone. Three other prominent black Democrats in South Carolina have publicly challenged party orthodoxy. In 2006 State Rep. Harold Mitchell Jr. crossed party lines to endorse Republican Karen Floyd for state education superintendent. "We have to try something different," he told me at the time. That same year, Curtis Brantley defeated a state representative in a primary fought over education reform. And last year, Ennis Bryant ran (unsuccessfully) against an anti-school-choice state representative in a primary.

These men are the most visible part of a movement joining black Democrats and political conservatives in a common cause. In recent years, school-choice candidates (black and white) have taken the seats of more than half a dozen antichoice legislators, and there have been two mass rallies for school choice at the state capitol that included black leaders.

Charter and private schools geared toward impoverished black children also are cropping up, and no wonder. There are about 700,000 students in public schools in South Carolina, more than a third of whom -- 247,000 -- are in schools considered to be failing based on test scores. Nearly 60% of the kids in these failing schools -- about 146,000 -- are African-American. Blacks make up about 39% of public-school students.

In March, a Pulse Opinion Research poll of 1,000 black voters in the state reported that 53% agreed that school choice would improve public education (28% disagreed). Support for school-choice legislation increased to 61% when Mr. Ford's name was attached to it.

Two years ago, legislation that would have created education tax credits failed in the House by a handful of votes and could pass today with the support of just a few more members. Meanwhile, Mr. Ford estimates that he is now just two votes shy in the state Senate of passing legislation that would create scholarships for poor children, and education tax credits for all parents, that would be equal to half of what the state spends per-student in each district. When Mr. Ford announced his bill in March, he held a press conference in the capitol that forced work on the House floor to come to a standstill as lawmakers made their way out to hear him thunder, "I don't give a damn about the money. I'm doing this for the kids."

The danger for Democrats still opposed to school choice is that Mr. Ford represents widespread frustration among black voters who see Mr. Obama in the White House and now expect real change to occur in their communities. Black voters could come to support conservative education policies (if not GOP candidates).

Typically, school-choice fights involve Republicans and a handful of Democrats pushing vouchers for a limited number of poor kids in inner cities. That's fine as far as it goes. But, as is evident in Washington, D.C., it doesn't go far. With just a few thousand families receiving vouchers, congressional Democrats are confident that they can kill the school-choice program in D.C. without provoking a voter backlash.

In South Carolina, however, the tax credits on the table would go to middle-class and poor parents alike and would align the interests of the vast majority of voters with those of poor families. If such tax credits take root, they will create a coalition between black Democrats and Republicans and be nearly impossible to trim back, let alone repeal.

That coalition is already starting to form. Mr. Ford is finding a ready ally in Republican Gov. Mark Sanford, who has spent the past six years pushing for school choice. The governor has already enacted charter-school legislation, created choice at the prekindergarten level, and has twice pushed for tax credits. School choice is a top goal of his in his final two years in office.

South Carolina doesn't have powerful education unions that can derail reforms, so Democrats are scrambling for alternatives. Jim Rex, the state school superintendent, is pushing to give parents more choices within the public system -- such as magnet schools and single-gender programs. He has also revamped the state's standardized tests. But Democrats are late to the game and parents are growing impatient for progress.

"[Mr.] Obama knows the right thing to do," Mr. Ford told me, noting that just a few words from the president praising education tax credits would likely swing the state senators he needs to pass his legislation. But will the president do it?