By Joseph Schuman

High court skittishness on constitutionality of religious display

11/3/11

When it comes to debating politics and religion, even Supreme Court justices can get a little skittish. And, with one glaring exception, they are refusing to step into the tangled state of jurisprudence over the display of religious symbols on public land.

In a piece today on the New York Times' Web site, Linda Greenhouse, the paper's semi-retired Supreme Court scribe, looks at some of the court contradictions over the Establishment Clause of the First Amendment. "A crcche displayed on government property violates the Establishment Clause, except when it doesn't," she says, citing a court decision. Ditto with a menorah, a display of the Ten Commandments, and a cross. Another court ruling goes so far as to say that if there's no clear working principle on the subject, "It is our Establishment Clause jurisprudence that invites this type of erratic, selective analysis of the constitutionality of religious imagery on government property."

What's a good First Amendment advocate to do? Over the summer, Greenhouse predicted that the court would accept a case about a private highway patrolmen organization, which had erected 12-foot-high crosses on Utah roads to commemorate the deaths of officers. A federal appellate court ruled that the placement on frequently viewed public land amounted to an "endorsement" of Christianity by the state, and was therefore an unconstitutional "establishment" of religion. At least six justices decided the appeals court was right and the case didn't merit their time. But Justice Clarence Thomas felt the case warranted review so strongly that he issued a rare public dissent from the court's denial.

For Greenhouse, Thomas's dissent debunks the theory that he intellectually leads the court. More importantly, it also shows that while Thomas is ready to reject the "endorsement" test established by the court for religious-display cases, the issue makes some of the other justices a little nervous. And unless the court ultimately decides to side with Thomas or against him, she says, "those determined to claim a corner of the public square in which to display their religious devotion will keep on doing it, and we appear doomed to be ruled in this realm, as in so many others, by the case-by-case exercise of human judgment."

Dubai lawyers conference told some discussion titles aren't discussable

11/3/11

After years of planning and working with Dubai authorities, the International Bar Association was set to open its six-day 2011 annual meeting in the Persian Gulf emirate on Sunday. But then there was a hitch.

The IBA wrote to its members saying authorities decided at the last minute to renegotiate some terms, the Associated Press reports. Namely, they wanted the IBA to change the provocatively titled sessions at the conference. And what were the terms that made Dubai authorities so jumpy? Migration, the death penalty and corruption, among others. "The Arab Spring changed everything," IBA Executive Director Mark Ellis tells the AP. "It heightened concerns of authorities around the (region) and put already vigilant security services on high alert."

Of course, it's much tougher for some residents of the United Arab Emirates than it is for visiting lawyers. The Human Rights Institute, an independent arm of the IBA, was one of a coalition of human rights groups today that accused the government of violating international legal standards for prosecuting democracy advocates who could get long prison terms. Their crimes: blogging and signing an Internet petition seeking free elections.

Study: Law review membership is tied to faculty gender balance

11/3/11

Aspiring lawyers confused about where to study law may be helped or just become more confused by the following: If making the law review is the most important factor, the best law school for an ambitious female law student might not be the top-rated place, but the one with the higher percentage of women and minority faculty members.

That seems to be the conclusion of a study reported by the National Law Journal. The study was carried out by third-year law students at New York Law School, which in turn were following up on a 2010 report by the nonprofit organization Ms. JD. The earlier study looked at the top 50 law schools in the U.S. News rankings, while the more recent research instead examined the 20 schools with the highest percentage of fulltime female professors and the 20 schools with the highest percentage of minority fulltime faculty. None of these schools showed up in the U.S. News top 50.

At the U.S. News top 50, women accounted for just 44 percent of the law review membership. At the schools with more female professors, 52 percent of students on the law review were women. And where minorities were more represented on the faculty, 59 percent of law review members were women. There was a bigger disparity when it came to which schools had a female editor-in-chief of the law review: 33 percent at the U.S. News top 50, 46 percent at schools with the high share of minority faculty and 60 percent where female professors played a greater role.

Jamie Sinclair, one of the law students who did the research, tells National Law Journal the study's authors were curious to uncover any correlation between faculty make-up, law review and women lawyers. The study doesn't address the practical matter of how law firms and other employers weigh law review experience against a diploma from a higher-ranking school.

The 'stingray' and the Fourth Amendment

11/3/11

It's the constitutional equivalent of a strategic retreat.

The battle, brought to us by the Wall Street Journal, revolves around the government's use of a secret surveillance gadget known as a "stingray." The FBI used a stingray in Arizona to track Daniel David Rigmaiden, who now faces fraud charges. The stingray can find cellphones even when the user isn't making a call, and in this case authorities used it to find Rigmaiden in an apartment building.

For more than a year, Rigmaiden has been arguing that this constituted a violation of his Fourth Amendment protection against improper searches. And all this time, prosecutors have argued the stingray pursuit doesn't count as a warrant-requiring search because it uses wireless cellphone service, which doesn't come with a reasonable expectation of privacy. Next Tuesday, the government will likely be making a similar argument at the Supreme Court in a case over federal agents' use of a GPS device to track a suspect's car without a warrant. In that case, the government says there was no reasonable expectation of privacy because the suspect was on public roads.

But in Ringmaiden's case, district Judge David Campbell has been indicating he wants to learn more about the technical details of how the stingray works. And that's a road the government doesn't want to go down. So in a bid to keep the device's secrets secret, the Justice Department trying to finagle the Fourth Amendment angle. Prosecutors last week filed a memo making some contradictory points: 1. That the stingray search in this case only -- was covered by the Fourth Amendment 2. That the government had a valid court order allowing the search in this case (even if we don't know much about that order) and 3. Despite the first two, "as a factual matter, the operation did not involve a search or seizure under the Fourth Amendment."

We'll have to wait to learn just how these disparities are resolved. When WSJ rang up Justice officials, they wouldn't elaborate, and Rigmaiden's lawyers didn't immediately respond to a request for comment.

Courts wrestle with God while Congress and White House embrace the deity

11/3/11

It seems like courts are always struggling over how to separate church and state. But Congress and the executive branch don't make it any easier by frequently bringing God into the governmental equation.

Yesterday the House passed a resolution 396-9 -- with two members voting present -- that reaffirms "In God We Trust" as the official motto of the United States. (For the record, the motto only dates back to 1957 and had nothing to do with the First Amendment-loving founding fathers.) The bill goes on to support and encourage the public display of this trust in god "in all public buildings, public schools, and other government institutions." It makes no mention of the Supreme Court decisions reining in religious displays at schools, courthouses and the like. And while it doesn't require the government to spend any money, Roll Call points out that it cost more than $215,000 in members' salaries and floor operation costs.

Today, President Barack Obama got into the act during a speech promoting his jobs-creation legislation. He took a poke at the House debate on the national motto, and then said: "That's not putting people back to work. I trust in God, but God wants to see us help ourselves by putting people back to work."

Naturally, this apparent endorsement by God of the jobs bill came up at White House spokesman Jay Carney's briefing, where he was asked by a reporter if it's " a bit much to bring God into the jobs debate." Carney said the president was trying to say Americans have the capacity within ourselves to help the country. "I believe the phrase from the Bible is, 'The Lord helps those who help themselves.'"

Alas, it's not. By the time the briefing transcript was sent to reporters, his remark had an asterisked correction noting: "This common phrase does not appear in the Bible." So Summary Judgments got out its battered old 1980 edition of Bartlett's. The authority on God quoted by Obama and Carney was Benjamin Franklin.

Summary Judgments for Nov. 2

Summary Judgments for Nov. 1

Summary Judgments for Oct. 31

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