Jan 31, 2014

Where was Justice Sotomayor On Tuesday Instead of The State of the Union?

Giving a talk at UCLA. She also missed Court’s session on Monday to appear at U.C. Irvine.

Recall that Justice Sotomayor asked Vice President Biden to reschedule his inauguration so she could go to New York for a book signing and appear on The Daily Show (see here, here, here, and here).

I’m sure Justice Alito stayed home, and was yelling at his TV when POTUS referenced Shelby County.

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Jan 31, 2014

Houston Astrodome Designated As Historic Landmark – But It Can Still Be Demolished

Another last ditch effort to save the 8th Wonder of the World:

The endangered Astrodome was thrown a possible lifeline as the National Park Service named the world’s first domed athletic stadium to its National Register of Historic Places.

The designation granted Thursday does not prevent Harris County from demolishing the building, but does open federal and state tax incentives for rehabilitation. The stadium, opened in 1965, long was called the “eighth wonder of the world.”

“We’d say, ‘hey great!’ but it doesn’t impede our ability as far as demolition goes,” said Joe Stinebaker, spokesman for Harris County Judge Ed Emmett. “The Dome’s status is in limbo. No decision to demolish it or rehabilitate it has been made.

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Jan 31, 2014

Constitutional Places: Miranda v. Arizona

On a recent trip to Phoenix, I visited Arizona’s historical Supreme Court Chamber where Miranda v. Arizona was argued.




Here are the lineup photo, booking sheet, and mug shot of Miranda:




This is Miranda with his lawyer, the legendary John Flynn.


This is Carroll Colley, one of the two detectives who interrogated Miranda.


The blog of the Maricopa County Bar Association has a great piece about the history of Miranda v. Arizona, with a focus on Ernesto Miranda. Here is a taste:

Miranda started working nights as a driver and warehouseman at United Produce Co. at 3rd Street and Madison in the late summer of 1962. Before and after work and before heading home to his girlfriend and new baby in Mesa, he would hang out in the “Deuce.” The downtown area around 2nd Street that would later become Symphony Hall was renowned for its seedy flophouses, rough bars and generally openly illicit atmosphere. Only a few blocks to the west were the old Maricopa County Courthouse, the Phoenix Title and Trust Building and the Paramount Theatre.  All would play important parts in Miranda becoming a household name.

As a teenager, Miranda had been accused of the attempted rape of a married woman, was dishonorably discharged from the Army for being a “Peeping Tom,” and later served time in federal prison for transporting stolen vehicles across state lines. The young felon was about 5’ 9” and weighed around 170 pounds. He had dark curly hair, wore black-rimmed glasses and had a variety of tattoos, including a large naked woman on his right leg. One doctor diagnosed him as having a chronic, undifferentiated schizophrenic reaction and another described his condition as a sociopathic personality disturbance. In general, though, he was described as neat, clean, cooperative, and a little shy.

In the months after he was hired in the produce warehouse, Miranda was linked to several downtown purse snatchings, an armed robbery (purportedly using a fingernail file) and finally, the kidnapping and rape of an 18-year-old named Patricia.

 Finally, please listen to this JoshCast I recorded with the Prosecutor who retried Miranda on remand from the Supreme Court.

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Jan 31, 2014

Trusting Government Arguments During Wartime

In Youngstown Sheet & Tube Co. v. Sawyer, the United States government made representations to the Court that if the steel workers went on strike, there would be a significant impact on the war effort, and that Americans in theater would die. We all know how the case turned out. The Court ruled that Truman could not seize the steel mills. But do you know what happened afterwards? Minutes after Sawyer relinquished control of the mills, the steel workers went on strike. And they stayed on strike for 50 days (longer than the entire steel seizure litigation took!). In case you couldn’t tell, the war effort continued. It’s unclear if the generals knew that things wouldn’t be quite this bad. (As an aside, Truman could have sough to enjoin the strike through the Taft-Hartley Act, but did not want to punish labor. If things were that dire, he could’ve done that).

I asked my students, what are we to make of a government’s representations made during wartime? Let’s put aside Justice Jackson’s memorable framework of how closely we scrutinize an executive’s claim of powers in light of his conjunction or disjunction with Congress. What is the government’s track record about making accurate claims regarding national security during times of war?

In the present day, we know that James Clapper made misrepresentations (you can call them lies if you’d like) to Congress about the scope of the surveillance program. During the Bush Administration, officials routinely misled Congress about the scope of terrorism programs.

And of course, the grand-daddy of them all is Korematsu. As Adam Liptak notes in this recent column, the government flat out lied to the Supreme Court regarding the threat of Japanese Americans in the United States. Then-acting SG Neal Katyal issued a “Confession of Error” for the SG’s lies represented to the Court. All that is great 70 years later. But at the time, the Court relied on those positions.

So, my question is, how should the Courts trust arguments made by the government during wartime? I understand that understanding issues of national security is outside the expertise of the courts. However, the government’s track record of being fair and frank with the court, especially when troops are in theater, has been less-than-perfect.

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