Recently in Supreme Court Category

Barry, I believe the Supreme Court ultimately will conclude that the plaintiff did not have legal standing here - that this challenge was legally flawed from the very start. 

 

Merely being 'offended' does not give the plaintiff a legal green light to go to court to challenge this memorial. As you know, just because the 'standing' issue did not receive a lot of attention during oral argument does not mean the Justices are ignoring it.  They won't and in the end I believe our side will carry the day on this issue.

 

Second issue: the Establishment Clause question.  Does the placement of a cross on what was once public land - but now private land - constitute a violation of the Establishment Clause?  I believe the answer is 'no' and I am hopeful that's what a majority of the court will determine. 

Jay,

It was a pleasure seeing you, too. I always am up for a great photo-op, too.



As you know, I'm heading to New York right now to appear on CNN's Lou Dobbs Tonight to discuss this very case. But here are some of my thoughts in advance.

To me, the most shocking comment of the day came from Justice Antonin Scalia. He actually said that this cross represents all veterans, even those who are not Christian. He said it was an "outrageous conclusion" that the cross is a symbol of Christianity and claims it is symbol of a "resting place."

Is Scalia seriously arguing that the cross is no longer a religious symbol? Now THAT is an outrageous conclusion. I believe our veterans deserve to be honored just as much as you do, Jay. But why do we need to use a Christian symbol to do that at the expense of excluding those of different faiths?

Barry, it was good to see you today.  I always enjoy an opportunity to sit next to you during oral arguments at the Supreme Court - especially with a case like the one we witnessed today. 

As we both know, this case is closely watched and involves the display of an 8-foot cross on a mountain top in California's Mojave Desert - a memorial honoring war veterans.  The case is Salazar, Secretary of the Interior, et al., v. Buono. (08-472)

Like most of these cases, the Justices were divided on this issue.  And, Justice Kennedy, who is often the deciding vote in these church/state cases, said little to reveal how he will vote on this case.

 

Barry, I want to offer my congratulations to you and your family.  I'm sure your son's wedding was, indeed, a great celebration.

 

I want to take a moment to discuss a topic you and I have debated from time to time - the constitutional role of displaying the Ten Commandments.   As you know, ABC News is focusing on the Ten Commandments - an issue that always seems to be in the legal spotlight thanks to you and your colleagues.  Case in point:  Ohio - where we represent Judge James DeWeese of Richland County, Ohio who has been sued repeatedly by the ACLU - this time for a poster he placed in his courtroom called "Philosophies of Law in Conflict."

 

The poster is divided into two sections.  The first is titled "Moral Absolutes," the second "Moral Relatives."  To illustrate the meaning of these two clashing moral concepts, Judge DeWeese quotes texts which support each one: for moral absolutes, the Ten Commandments; for moral relativism, the Humanist Manifestos and other sources.

When all is said and done, Jay, I'm not sure either one of us learned what we wanted to from the hearings. Many issues were discussed ad nauseum; others virtually untouched.  (The Washington Post did any excellent analysis of this in its print edition on Sunday).  I was impressed by Judge Sotomayor's demeanor, even when she was being asked endless variations of questions she had pretty much disposed of in her brief initial statement.  When you and I give speeches or have debates at colleges or on television, we use a kind of language which is more direct, more ideological, and more "human" than what we might write in a judicial opinion in the unlikely event that either one of us ever becomes a judge on anything but a reality show.  This difference is not one of substance, but of style-- which is all that remarks like "a wise Latina woman" ever were.

There were obvious "set up" questions by Democratic Senators--or at least questions which they must have known Judge Sotomayor's White House advisers had prepped her to answer.  There were also obvious efforts by Republican Senators to trip her up using carefully prepared queries from ideological staffers and, I'll bet, some outside interest groups as well.  This is pretty much what Supreme Court hearings have become.  It does not change much whether the candidate is a choice of a President Bush or a President Obama.

Barry, let me answer your questions.   First, Judge Sotomayor's answer that Roe v. Wade is "settled law" is not necessarily "a bad thing" if she is explaining the Supreme Court's jurisprudence.  Chief Justice Roberts, at his confirmation hearing, acknowledged...

Let me try to figure out your position on what Judge Sonia Sotomayor has said about a couple of issues. I have a few questions. First, you noted in your last post that she said that Roe v. Wade was...

Barry, you call it 'ideological bloviation' - I call it raising serious questions about Judge Sonia Sotomayor's judicial philosophy. There are valid issues that need to be addressed:  It's my hope that the Senate Judiciary Committee thoroughly examines Judge Sotomayor's...

Jay, of course senators on the Judiciary Committee should ask thoughtful questions about what we often refer to as "judicial philosophy" during the hearings on Judge Sonia Sotomayor.  There is only one problem: some members of the committee have already made it clear...

The much anticipated hearings for Judge Sonia Sotomayor commence before the Senate Judiciary Committee, and Barry, I am hopeful the Senators will ask the tough questions about her view of the Constitution and her judicial philosophy.   The Senate has...

Jay, give me a break.  Four of the nine Justices of the Supreme Court yesterday reached the same conclusion that Judge Sonia Sotomayor did as a judge on the Second Circuit Court of Appeals.  The other five reached an alternative...

Barry, today's Supreme Court decision in Ricci v. DeStefano is sure to be a hot topic at the upcoming hearings for Supreme Court nominee Sonia Sotomayor. The Court reversed a Second Circuit decision that was joined by Judge Sotomayor.   In...

Barry, we've discussed this before, but I wanted to bring you an update on our filing at the Supreme Court of the United States.  In the case of Salazar, Secretary of the Interior, et al., v. Buono, we have filed...

Jay, I'm certainly aware that some of the most "liberal" justices on the Supreme Court agree with your arguments in some cases.  I even agree with your arguments in a few cases.  My question to you earlier, though, was why,...

Barry, the idea that Judge Sotomayor should be welcomed by conservatives because she has cited binding precedent from cases that I argued before the Supreme Court is absurd. The fact that a judge votes in my favor some of the...

Sonia Sotomayor's judicial record is pretty sparse on many of the issue you and I debate on this blog, Jay.  This did not stop you from announcing on Fox News last Friday that she had an  "very very strict" position on the...

Barry, today's nomination of Judge Sonia Sotomayor  to replace Justice David Souter on the Supreme Court of the United States will generate serious debate about the issue of judicial activism on the nation's highest court. As we learn about Judge...

Yes, Jay, there will be a major battle about the Mojave National Preserve cross next term in the Supreme Court. In fact, it is really two battles in one.  The first is whether the plaintiff in this case is even...

Barry, we're preparing to file an amicus brief in a matter of weeks in a case that I know you are closely watching at the Supreme Court.  The high court agreed in February to take the case of Salazar v. Buono,...

Barry, don't worry about it.  I really don't think we're going to see what you label as 'excessive outreach' to the Right by President Obama regarding his pick to replace retiring Supreme Court Justice David Souter. Sure, the President is...

I have been amused over the weekend by the "sky is falling" rhetoric of the Right about the impending retirement of David Souter from the Supreme Court. Curiously, Jay, many of your colleagues concede that they don't like Souter's record,...

Barry, the big news, of course, is the reported retirement of Supreme Court Justice David Souter.  The news comes just 102 days into the Obama Administration and sets the stage for President Obama to move to put his liberal stamp on...