OrCon Law

Ninth Circuit rules that California prisoner is entitled to a preliminary injunction barring the compelled cutting of his hair

In Warsoldier v. Woodford, reversing the district court, the Ninth Circuit (Pregerson, J.) held that a California inmate is entitled to a preliminary injunction under RLUIPA to protect his genuinely-held religious belief that he should not cut his hair except upon the death of a loved one.  Although this is not truly a constitutional ruling, the opinion did rely heavily on the Supreme Court's decision this year in Cutter v. Wilkinson upholding the constitutionality of RLUIPA in determining whether the California Department of Corrections' hair grooming policy infringed upon the right to religious freedom protected by RLUIPA.  Additionally, the court relied in part on the standards governing injunctions to protect First Amendment interests. 

Of interest to Oregonians is the court's reliance, in part, on Oregon's hair grooming policy in its analysis of California's.  In concluding that CDC had failed to employ the "least restrictive means" for advancing a "compelling state interest," the court observed that Oregon, among other states, is able to successfully runs its prisons without a hair length policy but instead only requires that hair be maintained in a "neat and clean manner."

One more statue that can be displayed by government consistent with the Establishment Clause

In O'Connor v. Washburn University, The Tenth Circuit held yesterday that Washburn University's display of this statue did not offend the Establishment Clause by endorsing an anti-catholic message.

The Treaty Clause of the Constitution empowers the United States to enter treaties with non-sovereign nations,

according to the majority opinion in the Ninth Circuit case Wang v. Masaitis.  Dissenting, Judge Ferguson argues that the majority erred by issuing "a flawed and unnecessary constitutional ruling."  According to Judge Ferguson, the question of whether the President can enter treaties with non-sovereigns is one that is committed to the politically accountable branches of government.  As a result, the court should have dismissed the appeal as presenting a non-justiciable political question.

The determination of whether a shotgun or shotgun shell is "generally recognized as particularly suitable for sporting purposes"

is a decision that Congress can constitutionally delegate to the ATF, according to the Ninth Circuit in USA v. Thomasian., issued today.

Conservatives have a right of association, too

The news this morning is that questions have been raised about whether John Roberts belonged to the Federalist Society.  So what if he did?  It's pretty clear that he is politically conservative, and his beliefs about law and policy are probably similar to those of other Federalist Society members.  The suggestion that membership in the Society could be disqualifying is absurd -- unless someone knows something about that organization that I don't know.  Ruth Bader Ginsburg was a member of the ACLU before becoming a judge (as were some current members of Oregon's appellate courts) -- and no one seriously suggested that such membership was a disqualifying fact.

The disappointing thing about Judge Roberts as the next member of the Supreme Court is that he is another Washington insider.  Diversity is a value on the Supreme Court, as it is in most areas of society, and the Court would be a better institution if its members had more diversity of experience.  President Harding appointed a former president to the Court.  President Hoover appointed a former governor of New York (and presidential candidate).  FDR appointed a couple of senators, an SEC chairman, and a law professor.  President Eisenhower appointed a former governor.  My impression is that Judge Roberts is extremely well qualified to serve on the Court -- but wouldn't it have been better if the president had appointed a thoughtful conservative governor or senator (a conservative analog to Mario Cuomo, perhaps)?

John G. Roberts and Judicial Restraint

Today, the New York Times reports that Judge Roberts' "insistence, in the two years he has sat on the federal appeals court in Washington, that judges must engage in considerable self-restraint could add a distinctive voice to a court that has not been shy in recent years in asserting its own dominance."

John G. Roberts and the First Amendment

At the First Amendment Center, David L. Hudson, Jr., has compiled this summary of First Amendment cases litigated by Judge Roberts.  Hudson observes that although Roberts has not had an opportunity to develop any significant body of First Amendment jurisprudence on the bench, Roberts has substantial practical experience with First Amendment issues.

Judge John G. Roberts Nominated for Supreme Court

It turns out that all of yesterday's speculation about Edith Clement was wrong.  President Bush has nominated Judge John G. Roberts of the D.C. Circuit for the Supreme Court position vacated by Justice O'Connor.  With respect to potential-Justice Robert's take on constitutional issues, the New York Times reports that he is not likely to "commit himself to recapturing a distant constitutional paradise in which the court was faithful to the original intent of the framers," but rather is likely to be "comfortably in the middle rather than at the margin."

"Is the Federalism Revolution Dead?"

In this week's installment of Legal Affairs Debate Club, Professor Roderick Hills, Jr., of the University of Michigan, and Roger Pilon, the Vice-President for Legal Affairs and B. Kenneth Simon Chair of Constitutional Studies for the CATO Institute debate whether the apparent revolution in the Supreme Court's jurisprudence is over.  Professor Hills' initial response?  "Revolution, Schmevolution."

And the Nomination Goes to

Well, we won't know until 9 pm EDT tonight, but rumor -- according to this AP Report -- has it that Edith Brown Clement of the Fifth Circuit is the likely choice.