Constitutional Interpretation

Quotes of the Day: On Wednesdays We Wear Black!

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Justice Elena Kagan

It seems like we’re all working hard. It’s not like we’re playing golf on Wednesday afternoons.

– Justice Elena Kagan, in remarks delivered at Harvard Law School this past Friday to the National Association of Women Judges.

(A second Quote of the Day, from a circuit judge who feeds clerks to Justice Kagan, after the jump.)

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Justice Scalia at Wesleyan: Now With Photos and Video

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Protesting Justice Scalia at Wesleyan.

Yesterday I wrote about Justice Antonin Scalia delivering the distinguished Hugo Black Lecture at Wesleyan University. In my write-up of Justice Scalia’s remarks, I alluded to campus protests held immediately prior to the speech. These protests, by a group calling itself the “Scalia Welcoming Committee,” were styled “Occupy Scalia” (a somewhat unfortunate moniker, in my view.)

I took some photographs and video footage of the protestors. Check these people out….

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Justice Scalia Goes to Wesleyan

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Justice Scalia speaking last night at Wesleyan University.

Last night, Justice Antonin Scalia delivered the prestigious Hugo Black Lecture at Wesleyan University, speaking in the university’s Memorial Chapel before a packed house. Wesleyan is an uber-liberal school — the basis for the movie PCU, about a very Politically Correct University — and Justice Scalia’s visit was preceded by campus protests (dubbed “Occupy Scalia”). But I was pleasantly surprised by how respectful and appreciative the audience was of Justice Scalia’s deeply thoughtful and persuasive remarks; the protests during his speech were minor and clustered near the end.

I trekked up to Middletown from New York City to attend the lecture. What did Justice Scalia have to say? And what did the protests entail?

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Inside Straight: Torpedoing Class Actions

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In 2009, Professor Martin H. Redish of Northwestern Law School published a book arguing that class actions are in large part unconstitutional: Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit (Stanford Univ. Press 2009). Where is the practicing bar?

I understand that nobody reads law review articles or books published by an academic press. And I wouldn’t condemn any practicing lawyer to reading any issue of a law review from cover to cover. But I don’t think it’s asking too much to insist that lawyers remain gently abreast of the academic literature in their field and deploy new ideas aggressively when scholars propose them. Redish’s book shows why in-house counsel should demand more of their outside lawyers.

This post is a two-fer: I’m going both substantive — by summarizing Redish’s argument about why many class actions are unconstitutional — and pragmatic — by criticizing law firms that ignore ideas springing up in the academy that should be used in litigation. (For me, drafting that two-fer is an unusual trick. As regular readers know, it’s typically hard to find even a single thought tucked into one of my columns.)

What does Redish say about class actions, and how have most law firms been derelict?

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Quote of the Day: Intemperate Liberals Feel That Way About You

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I’m hoping the living Constitution will die.

– Justice Antonin Scalia, in remarks made yesterday before the Senate Judiciary Committee. Justice Scalia and Justice Stephen G. Breyer were invited by the Committee to discuss their views on constitutional interpretation and the proper role of judges in our democracy.

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To Be Young, An Executive, And Above the Law: Thoughts on the Debt Ceiling Impasse

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As Republicans continue to play chicken with the nation’s solvency, the idea that the president doesn’t need congressional approval to raise the debt ceiling is gaining traction. The thought bubble suggests that President Obama can raise the debt ceiling because of language in the Fourteenth Amendment stating that the nation’s debt “shall not be questioned.”

The idea has been trumpeted by none other than former president Bill Clinton. Clinton said that he would unilaterally raise the debt ceiling and “force the courts to stop me.”

Of course, President Clinton had what the scientists call “balls.” He knew how to handle a group of intractable Republicans more concerned with scoring political points than governing.

President Obama? The New York Times has his response: “I have talked to my lawyers. They are not persuaded that that is a winning argument.”

Can Aaron Sorkin please write a “Let Obama Be Obama” episode? Because sometimes Barack Obama really likes to dangle his feet in the water of whatever the hell it is he dangles his feet in, when he wants to make it look like he’s trying without pissing too many people off.

In any event, is invoking Section 4 of the Fourteenth Amendment a “winning” argument that could solve this debt crisis?

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Can We Whitewash the Alabama Constitution?

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The Constitutional Daily tweeted a very interesting question at me this morning:

Bill removing racist language from AL constitution opposed by black lawmakers – http://bit.ly/iqmDsu – @ElieNYC please explain

All right, I’ll put on my “ask a black dude” hat. And I can explain this.

But it’s complicated. And it requires understanding the subtleties of the positions of all parties involved. And it’s hard to really carve out a strident and principled position either way.

So, you know, this is a great conversation to have on the internet….

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Proposition 8 Violates the Fourteenth Amendment: A Debate

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A liveblog of what should be a most interesting debate on Prop 8 and gay marriage — taking place at the 2010 National Lawyers Convention of the Federalist Society, and pitting Professor William Eskridge against Professor Richard Epstein — after the jump.

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Quote of the Day: Was Porky Pig a Founding Father?

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The drafters could have written the Constitution as a list of specific rules and said, “That’s all, folks!” Instead, they wrote a document full of broadly written guarantees….

– Time magazine columnist Adam Cohen, criticizing Justice Antonin Scalia’s approach to constitutional interpretation. (Gavel bang: Dahlia Lithwick.)

(Please note that Quotes of the Day are selected for being interesting, thought-provoking, or funny — not because we necessarily agree with them. Personally I’m inclined to the view that originalism isn’t perfect but is probably better than any of the alternatives.)

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