SBM Blog

Late-Breaking Friends of Same-Sex Marriage: Business Leaders, Republicans, and Football Players

The filing today by the Obama Administration of a brief in support of same-sex marriage (in the Prop 8 case, Perry v. Hollingsworth, to be heard March 26 by the U.S. Supreme Court) was not surprising, if not a foregone conclusion. But three amicus briefs filed this week in support of same-sex marriage did defy certain stereotypes. The first amicus brief was signed by over 130 prominent Republicans like Meg Whitman, John Huntsman, Clint Eastwood (and Michigan's David Stockman), asserting, "Although measures like Proposition 8 may rest on sincerely held beliefs, that does not sustain their constitutionality." The second brief was signed by businesses, making the case that "Prop 8 and similar laws impede efficient and productive business activity." And finally, Vikings punter Chris Kluwe and Ravens linebacker Brendon Ayanbadejo filed a brief today, found in full here on Deadspin, that asserts "Professional sports play a major role shaping public opinion and urging societal progress, like it or not." (You have to love the "like it or not."  So in your face for a legal brief.)

This Is A Free-Speech-Free Zone

Who knew there was a federal statute banning "expressive activity" inside the Supreme Court building? From the BLT: "DOJ: Dismiss Suit Over Supreme Court Visitor's 'Occupy Everywhere' Jacket." 

 

"No Black Nurse" -- A Legal Scholar's View

The story of the man who asked Flint Hurley Hospital to prevent a black nurse from caring for his newborn son last October, the hospital's possible acquiescence, and the subsequent lawsuit and settlement, has been widely covered in the state and national press. See "FAQ: Everything you need to know about the no black nurses lawsuit at Hurley hospital" and "What the national media are saying about the no black nurses lawsuit at Flint's Hurley hospital."  For a scholar's take on the issue, see this 2012 UCLA Law Review article, Patients' Racial Preferences and the Medical Culture of Accommodation, by Fordham University School of Law Kimani Paul-Emile.  From the abstract:

One of medicine’s open secrets is that patients routinely refuse or demand medical treatment based on the assigned physician’s racial identity, and hospitals typically yield to patients’ racial preferences. This widely practiced, if rarely acknowledged, phenomenon — about which there is new empirical evidence — poses a fundamental dilemma for law, medicine, and ethics. It also raises difficult questions about how we should think about race, health, and individual autonomy in this context. Informed consent rules and common law battery dictate that a competent patient has an almost-unqualified right to refuse medical care, including treatment provided by an unwanted physician. Yet the accommodation of patients’ racial preferences with respect to their choice of physician in the hospital context appears to violate antidiscrimination principles. How should we reconcile this apparent conflict between respect for patient autonomy and accepted notions of racial equality? Moreover, is the accommodation of patients’ racial preferences the type of invidious discrimination that civil rights laws were enacted to prevent?

This Article engages these questions through an evaluation of antidiscrimination norms, principles of medical ethics, and federal laws, including Titles II, VI, and VII of the Civil Rights Act. In so doing, the Article offers critical insights into why a form of discrimination that is prohibited in other contexts is tolerated in the hospital setting and draws important conclusions about the legal propriety and medical efficacy of this practice. The Article contends that the various titles of the Civil Rights Act offer no clear legal directive on this practice, and it makes the counterintuitive claim that although hospital accommodation of patients’ racial preferences appears to contravene antidiscrimination principles, it is not only consistent with our normative commitments to racial equality but, in fact, constitutes an effective means of alleviating race-based health disparities, improving health outcomes, and quite possibly, saving patients’ lives.

Chief Justice Young Lauds David Viviano as Supreme Court Pick

The press release:

Hon. David F. Viviano, appointed to the Supreme Court today by Governor Rick Snyder, is "a man of unimpeachable integrity, an exceptional trial judge, and a recognized leader on the bench," Chief Justice Robert P. Young, Jr. said today, reacting to Viviano’s appointment to the Supreme Court by Gov. Rick Snyder. "He is a welcome and wonderful addition to this Court."

Young added, "Justice Viviano is uncommonly bright and learned in the law. But it is not his legal ability alone that makes him an outstanding jurist. He also knows that the role of judges is to interpret the laws, not to make them. He understands the deference due to the legislature as the body that expresses the will of the people through legislation. He is committed to following the rule of law wherever it leads him."

Governor Snyder Appoints David Viviano to Michigan Supreme Court

Gov. Snyder has appointed the chief judge of the 16th circuit and Macomb County probate courts, David F. Viviano, to the seat vacated by former justice Diane Hathaway.  He is a graduate of the Universityof Michigan Law School, and, like his new colleagues Robert Young, Mary Beth Kelly, and Brian Zahra, worked at Dickinson Wright at one point in his legal career. He also served as City Attorney for the City of Center Line. His father, Antonio Viviano, was a Macomb County probate judge from 1993-2002, and a circuit judge from 2003-2010. His sister, Kathryn Viviano, is a Macomb County circuit judge in the family division.

As a circuit court judge, Justice Viviano was actively involved in the piloting of reforms to the jury system in Michigan and led his circuit’s efiling pilot project.  

Breaking: Governor's "High Level" Appointment at 3:00 Today Expected To Be Next MSC Justice

So says the Detroit Free Press.  Several twitter posts say that the pick is Macomb circuit judge David Viviano.

Are Lawyers Really "Inept Wielders of Words"?

Legal writing sage Bryan Garner says yes, and lays a lot of the blame on law schools:

While lawyers are the most highly paid rhetoricians in the world, we’re among the most inept wielders of words. Stop and think about that. The blame goes primarily to the law schools. They inundate students with poorly written, legalese-riddled opinions that read like over-the-top Marx Brothers parodies of stiffness and hyperformality. And they offer law students little if any feedback (on substance, much less style) from professors on exams and writing assignments. But there’s plenty of blame that falls elsewhere. Writing standards have consistently fallen over the last century in secondary and higher education. (It would take a full-scale book to unpack that set of issues.) For law firm associates, their senior lawyers too often decry any emphasis on writing style (“I’m just concerned with the substance of it! I leave style to others!”). And in general society, serious readers are becoming an endangered species.

Weapons in the Public Square: Greeks, Founding Fathers, and a Former Michigan Supreme Court Justice

There's no more fertile field in which to contemplate textualism and originalism these days than the Second Amendment. In Michigan, one need look no further than this amicus brief (PDF) authored by former Michigan Supreme Court justice Cliff Taylor, in the case about the right to carry weapons openly in public libraries, Capital Area District Library v Michigan Open Carry Inc.  In it, Taylor cites law review articles by two of his former colleagues, Chief Justice Young's, "A Judicial Traditionalist Confronts Justice Brennan's School of Judicial Philosophy," 33 Okla. City U. L. Rev. 263, 272-273 (2008), and Justice Markman's, "An Interpretivist Judge and the Media," 32 Harv. J. of L. and Pub. Pol. 149 (2009). The brief is not aimed at so much at shooting down the right to bear arms in libraries as at defending a view of statutory construction:

This Court has spent well over a decade instructing lower courts to read statutes as the Legislature actually wrote them rather than to go beyond the plain language in search of what the Legislature must have "really" intended. Contrary to that instruction, the Court of Appeals majority in this case ruled that when a party invokes the doctrine of "implied field preemption,"a court must look far beyond the language actually used by the gislature to specify the reach of a statute and must instead apply a malleable four-part test to determine how far the Legislature really intended the statute to reach. The Court of Appeals' decision is a serious departure from this Court's statutory interpretation jurisprudence. It threatens to return Michigan to an era of statutory construction "where the decisions were highly unpredictable, inconsistent, and virtually any claim was a possible winner" - a regime this Court has worked to eliminate.  

Notably, the brief supports conclusion and reasoning of the dissent (PDF) by Granholm appointee Elizabeth Gleicher over the majority opinion (PDF) of her COA colleagues Jane Beckering and Henry Saad.

Meanwhile, a Princeton historian harks back to ancient Greece to inform us about what she believes our forefathers really thought about guns in the public square, in this post at The New Yorker:

The pioneers of citizen armies were also pioneers of withdrawing weapons from the places of civilized life. The ancient Greek armies were manned exclusively by citizens who brought their own weapons into battle. Getting to serve in an élite combat unit required being wealthy enough to afford to buy one’s own armor. It was this vision of citizen militias, further developed by the Romans, that went on to inspire the English revolutionaries of the seventeenth century and the American revolutionaries of the eighteenth—so shaping the values expressed in the Second Amendment.

Nevertheless, when one early-nineteenth-century American reflected on what the new American Republic could learn from the ancient Greeks, he drew attention to another feature that was widespread in their politics: refraining from carrying weapons in public spaces. In some cities, this was a matter of custom, in others it was a matter of law. Citizens carried their weapons abroad when serving in the military for public defense. But, even in these cities, it was believed that carrying weapons at home would be tantamount to letting weapons, not laws, rule.

This point is emphasized in a study of ancient-Greek laws attributed to Benjamin Franklin, though apparently composed by the founding editor of the Western Minerva, who published it in 1820. The laws, the author insisted, “apply with peculiar energy and propriety to the circumstances of the United States.” Number fifteen in this collection of a hundred “principles of political wisdom,” drawn from the school of Pythagoras, legislators for Greek settlements on the Italian mainland, was this: “Let the laws rule alone. When weapons rule, they kill the law.”

Art: Raphael, The School of Athens, Vatican, 1509-1510

 

Just Because: Two Computers, Two Different Identities

My laptop at home has a pretty good idea of who I am -- a middle class Midwestern professional female of a certain age. Thanks to cookies, it knows what consumer items to tempt me with and what news stories I'm interested in. My PC at work, however, has it all wrong. Here my web surfing is confined to law-related news stories and research, and guess what? The pop-up ads are for testosterone supplements (especially prominent on Volokh Conspiracy). I'm not sure what that says, but it can't be good...

What Archibald Cox Told His Law Students About The Saturday Night Massacre

A TPM reader offers the following insider follow-up to yesterday's news that Richard Nixon offered Robert Bork the next Supreme Court nomination after Bork carried out Nixon's order to fire the Watergate Special Prosecutor, Archibald Cox:

The Bork story reminds me of a story Archibald Cox told an undergraduate class on Constitutional Law that I was lucky enough to take about 30 years ago. In the unit on executive privilege, Cox told us about the Saturday Night Massacre from his unique perspective — not only as the Special Prosecutor Bork fired, but as the law school professor whose former students refused to fire him. Here’s how I recall the way he told the story (not verbatim, but it captures the essence of it):

I got a call from Attorney General Richardson saying, “Professor, the President wants me to fire you.” So I said, “Well, Elliott, you do what you think is right.” And so Richardson resigned rather than fire me. Then I got a call from Deputy Attorney General Ruckelshaus, who became Attorney General when Richardson resigned. And he said, “Professor, the President wants me to fire you.” So I said, “Well, Bill, you do what you think is right” — and he resigned, too. Then I got a call from the next man in line at the Justice Department, Solicitor General Bork. He hadn’t been my student.

The whole class erupted in laughter at that point, but Cox cut us off. “Laugh now,” he said, “but just wait until you see Robert Bork nominated for the Supreme Court.”