In Search of Intellectual Honesty: A Belated Memoriam To Justice David M. Borden

“I hope I’ll be remembered as a judge who was intellectually honest about his craft.”

Justice David M. Borden

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Posner v. Amar On The Constitution

For many years, Slate magazine has hosted an online “Breakfast Table” discussion at the end of each Supreme Court term.  The discussions are always very interesting.

This year’s discussion features a terrific (and snarky) exchange between a great jurist, Seventh Circuit judge Richard Posner, and a great scholar, Yale Law School Professor Akhil Reed Amar.  Here’s an excerpt of Posner’s view of the value of judges studying constitutional text and history:

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Fourth Amendment Exclusionary Rule Takes A Hit

Yesterday the U.S. Supreme Court decided, 5-3, that except in cases of “flagrant misconduct,” evidence seized following an illegal stop need not be suppressed if it turns out that the person stopped happened to have an outstanding warrant. Tejas Bhatt provides an excellent analysis of the decision in Utah v. Strieff on his blog, CT Criminal Law. And Orin Kerr explains the decision over at SCOTUSblog.

The Supreme Court and 18th Century Pornography

Intrigued? Check out this post by Betsy Kellem on her wonderful blog, Drinks With Dead People.

Is The Senate Constitutionally Obligated, Ctd.

Further to my earlier post on whether the U.S. Senate has a constitutional obligation to hold hearings and schedule an up or down vote on the Garland nomination, read this interesting post by Jonathan Adler.

Is The Senate Constitutionally Obligated To Vote On A Supreme Court Nominee?

Short answer: No.

Longer answer: See this interesting post by Ilya Somin, a respected libertarian law prof.

UPDATE (3/18/16): For some other perspectives, click here, here, here.

UPDATE (3/22/16): On the question whether “shall” means “must”, click here.

Live Webstreaming Of CT Supreme Court Arguments

This is Sunshine Week, the week when we remember, and celebrate, the importance of freedom of information and government transparency. It is only appropriate to note public officials who have contributed to openness and transparency. One of those public officials is Connecticut Supreme Chief Justice Chase T. Rogers.  Since she assumed her role as Chief Justice, she has been a strong advocate for public access to the courts.

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Interesting Development In The Skakel Appeal

Only six justices were on the panel last week when the Connecticut Supreme Court heard oral argument in the Michael Skakel habeas appeal, in which Skakel seeks a new trial based on the purported failure of his trial counsel (Mickey Sherman) to provide a constitutionally adequate defense.  The Chief Justice recused herself, so the panel consisted of Justices Palmer, Zarella, McDonald, Espinosa, Robinson and Senior Justice Vertefeuille.

For reasons unknown, Justice Eveleigh was not on the panel last week.  The Supreme Court, however, has now added him to the panel.  That suggests (but does not necessarily mean) that the initial vote of the justices when they conferenced immediately after oral argument was 3-3 and that Justice Eveleigh was added to the panel to break the tie.  In other words, three justices would have affirmed the judgment of the habeas court (Bishop, JTR), which found in favor of Mr. Skakel’s Sixth Amendment ineffective assistance of counsel claim, and three justices would have reversed that judgment.

Of course, we won’t know for sure whether this hypothesis is correct until the Court issues an opinion, which will likely take at least several months.  Stay tuned.

Discussing Justice Scalia On WNPR

Tomorrow morning I have the honor and pleasure of joining host John Dankosky, his colleague Colin McEnroe and two additional great guests on The Wheelhouse, WNPR’s weekly news roundtable.  Topics include Justice Scalia and the state budget.  Listen live at 9:00 am!

UPDATE: 2/17/16: Click here to listen to a recording of the show, and click here to watch video of the show on CT-N.

An Introduction To The Power Of Judicial Review

Since the Connecticut Supreme Court decided State v. Santiago last August, which may have ended the death penalty in Connecticut, a debate has ensued about whether the decision constitutes a legitimate exercise of the power of “judicial review.” Judicial review refers to the power of federal and state courts and judges to strike down laws and executive actions if they conflict with, and thus violate, the United States Constitution or a state constitution.

The power of an appointed judge or panel of judges to tell an elected legislature that a law it debated and then passed, and that an elected governor or president signed, cannot be enforced because it is unconstitutional is truly extraordinary. It is also oft misunderstood. This post is an attempt to help readers understand the nature of the power and why its exercise is often controversial. Read the rest of this entry »