First Amendment Protects Citizens’ Rights To Record Police Activities

Yesterday the United States Supreme Court declined to review a 2-1 decision of the Seventh Circuit Court of Appeals holding that the public has a First Amendment right to record (both audio and audiovisual) the conduct of government officials, including police officers, while they are performing their official duties in public.  Although the denial of a petition for certiorari does not mean that the Supreme Court agreed with the court of appeal’s decision, the high court’s refusal to consider the case is likely to be viewed as a positive development by individuals and organizations who are concerned with the notion of a police officer arresting a bystander–who is not interfering with the officer–simply because he used his cell phone to record something the officer was doing. Read the rest of this entry »

Second Circuit Strikes Down Defense Of Marriage Act

Last week the Second Circuit Court of Appeals became the second federal circuit court (the First Circuit led the way) to strike down section 3 of the Defense of Marriage Act (“DOMA“) on equal protection grounds.  (Click here to read ruling.)   Section 3 states:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

Beyond the ultimate disposition of the case, what is striking about the Second Circuit’s decision  is that the court applied heightened scrutiny in evaluating the constitutionality of section 3, which obviously excludes gays and lesbians.  (The First Circuit had applied rational basis review to DOMA.) Read the rest of this entry »

Karl Llewellyn on Canons of Construction

Readers of several posts (here and here) may have noted my skepticism of the value of canons of construction in both statutory and contract interpretation.  In my experience, canons don’t really decide cases.  Indeed, I think they often obscure the true, but unspoken, reasons why judges decide case in particular ways.  I intend to write more on this subject over the coming weeks and months.  But a great place to start is with Karl Llewellyn’s classic article on the subject, in which he points out that there are two opposing canons on almost every point.  Please read it and send along your thoughts.  I’d love to generate a discussion amongst the members of our local and state bars.

P.S.  If you are looking for a break from this fascinating, but also potentially mindnumbing issue, click here for the latest silly lawyer songs from yours truly, aka the Barrister of the Blues!

The Amusing Life Of A Supreme Court Law Clerk

The greatest privilege of my professional life was serving as a law clerk to Chief Justice Ellen Ash Peters on the Connecticut Supreme Court in 1990-91.  It’s been all down hill since then. 🙂  People occasionally ask me how I came to clerk for the Chief Justice.  I typically answer–only half-jokingly–that I was good at taking law school exams. Read the rest of this entry »

Justice Borden on Constitutional Interpretation and the First Amendment

Former state Supreme Court justice David Borden penned an excellent commentary in the Hartford Courant this weekend.  The subject: the very serious problems with “originalism” as a mode of constitutional interpretation.  As Justice Borden points out, if the First Amendment is interpreted as it was “understood” at the time it was adopted, folks like Rush Limbaugh and Rachel Maddow  could be punished for much of what they say, which is often critical of the government and, more particularly, the men and women who govern.  This is a “must read” for lawyers and members of the general public by one of the state’s most respected and thoughtful jurists.

The MSM Debacle Reporting The Obamacare Decision

Tom Goldstein at SCOTUSblog has a great post on how CNN and Fox News blew it when they incorrectly reported that the Supreme Court had struck down the Affordable Care Act in its entirety.  By contrast, Tom’s team at SCOTUSblog, which live-blogged the release of the opinion, avoided those mistakes, took a little more time to understand the opinion, and reported the outcome correctly.  

After a similar debacle reporting much too quickly on the Supreme Court’s decision in Bush v. Gore, I had hoped that the media had learned a simple lesson: Supreme Court decisions are complex and you actually need to READ them before reporting on the outcome.   Oh well, maybe next time. . . .  Meanwhile, thank heaven for SCOTUSblog!

The Obamacare Commerce Clause Ruling: Dictum?

In my earlier post on Chief Justice Robert’s use of the doctrine of constitutional avoidance, I stated that he, along with the four dissenting justices, had actually held that the individual mandate did not pass muster under the Commerce Clause.  But a number of commentators have suggested, quite reasonably, that the entire discussion about the Commerce Clause in the Chief Justice’s opinion may be dicta. Read the rest of this entry »

The Obamacare Decision: The Chief Justice Has His Cake And Eats It Too.

So, after much nail biting, the Supreme Court, in a 5-4 decision penned by Chief Justice Roberts, largely upheld the Affordable Care Act, otherwise known as Obamacare.  Zillions of barrels of ink, both real and electronic, will be consumed in the coming days, weeks, months and years as pundits and professionals comment on the decision. Read the rest of this entry »