'Nuff said

(Taking context-optional note of thought-provoking quotes)

'How many women would be enough?' Sawyer asked.
'Nine,' Ginsburg replied with a smile. 'There've been nine men there for a long time, right? So why not nine women?'

-- U.S. Supreme Court Justice Ruth Bader Ginsburg (center) (prior IntLawGrrls posts), in conversation with ABC TV News' Diane Sawyer (left). (Hat tip to Professor Sally Kenney, Executive Director, Newcomb College Institute and Newcomb College Endowed Chair, Tulane University, via IntLawGrrls guest/alumna Fionnuala Ní Aoláin) The conversation, video of which is available here, took place last October during a California conference on women. Also on the dais was the Honorable Sandra Day O'Connor (above, right), who retired in 2005 from her post as the 1st woman Justice. Today, of course, there are 3 -- in addition to Ginsburg, newcomer Justices Sonia Sotomayor (prior posts) and Elena Kagan (prior posts). Of this development, O'Connor said:

'I've got to tell you, I went to the Supreme Court recently... I sat in on an argument, and I looked up at the bench on which I sat for 25 years, and what did I see? I saw on the far right, a woman. On the far left side, a woman. And here in the middle, a woman. And it was dazzling.'

Supreme balance shift

In her essay for "Women and International Criminal Law," our special edition of International Criminal Law Review (prior posts) now in production, IntLawGrrls guest/alumna Patricia M. Wald writes that

women judges (men too of course) have to be recognised as smart, fair, and hardworking if they are to wield influence ...

It appears the 2 newest arrivals to the U.S. Supreme Court got an advance copy.

Appears, too, they've heeded this sage advice from Wald, onetime Judge on the International Criminal Tribunal for the former Yugsolavia and Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit.
Judging from recent reports, 2 voices are likely to be heard once the Court takes the bench to hear oral arguments this morning: the voices, that is, of Justices Sonia Sotomayor (above left) and Elena Kagan (above right). (credit for Dec. 26, 2010, Steve Petteway/Supreme Court / photo, also depicting Justice Ruth Bader Ginsburg at center)
Since Kagan was seated at the beginning of this October Term 2010, "the tenor of the debate has changed," David Savage, Supreme Court correspondent for the Los Angeles Times, recently reported. For years, he wrote, "Supreme Court conservatives led by Justice Antonin Scalia dominated the debates during oral arguments." But now Sotomayor and Kagan "have joined the fray and reenergized the liberal wing."
Bolstering Savage's assessment was a report by New York Times Supreme Court reporter Adam Liptak. The title pretty much said it all: "Sotomayor Guides Court’s Liberal Wing." She does so, he wrote, by close questioning and incisive commentary that, taken in combination, reveal -- dare one say empathy? Liptak preferred to say that

she has displayed a quality — call it what you will — that is alert to the humanity of the people whose cases make their way to the Supreme Court.

An example of this combination, from an article by the Wall Street Journal's Jess Bravin, regarding a recent oral argument on California prison conditions:

'When are you going to avoid the needless deaths that were reported in this record?' Justice Sonia Sotomayor said at arguments on Tuesday. 'When are you going to get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you are going to deliver care that is going to be adequate?'

Amid reports that these new, "smart, fair, and hardworking" Justices may be shifting balance on the Court, Justice Scalia publicly renewed his attacks on substantive due process applied to enforce rights of women (and, here, gays).

Coincidence?

Elena Kagan confirmed

63-37.
Not quite the 98-0 by which the Senate, in the days before polarization, confirmed John Paul Stevens. But today's 63 Senate votes were more than enough so that Solicitor General Elena Kagan (left) now succeeds him as a Justice of the U.S. Supreme Court.
Echoing a theme addressed in our prior posts on Kagan's nomination, the Washington Post noted that she'll be America's 4th-ever woman Justice. Moreover,

Kagan joins Sotomayor and Justice Ruth Bader Ginsburg in the first ever bloc of three women serving on the court at the same time.

A good day for 'Grrls. And not a bad birthday-week present for the President who nominated 2 of the 4 women Justices, either.

Extraterritoriality in flux?

In a just-published ASIL Insight, our colleague Paul B. Stephan sees more than securities laws at stake in the recent U.S. Supreme Court trimming of extraterritoriality.

Stephan, both the John C. Jeffries, Jr., Distinguished Professor of Law and the Elizabeth D. and Richard A. Merrill Professor of Law at the University of Virginia, deftly detailed Justice Antonin Scalia's opinion for the 5-member majority in Morrison v. National Australia Bank Limited (June 24, 2010). (credit for below left photo) Other thought-provoking discussions of this decision were posted here, here, here, and here at Opinio Juris.

In Morrison, the Court affirmed dismissal of a lawsuit alleging civil fraud in violation of § 10(b) of the Securities and Exchange Act of 1934 and its implementing Rule 10b-5. The suit, to quote Stephan's Insight, "involved only foreign plaintiffs, securities issed by a foreign company, and transactions in those securities that took place exclusively in a foreign country." Scalia's opinion underscored that there is a presumption against extraterritoriality, one that requires "Congress to clearly indicate when it wanted its rules to apply to foreign conduct."

Stephan termed the decision "a firm and unambiguous rebuke" of the tendency by some lower courts to give securities laws greater extraterritorial reach. That pronouncement pretermits the contrary viewpoints of the 3 remaining Justices (Sonia Sotomayor did not participate): Stephen G. Breyer, in a separate opinion that suggested the suit yet might go forward under other federal statutes, concurred only in part, while John Paul Stevens and Ruth Bader Ginsburg concurred only in the judgment and not at in the majority's reasoning; indeed, their joint opinion opened with the declaration that they

would adhere to the general approach that has been the law in the Second Circuit, and most of the rest of the country, for nearly four decades.

Nonetheless, the pronouncement is accurate as a matter of counting current Court noses.

As interesting as the description of the judgment is Stephan's additional observation. He rightly wrote that

one must wonder what Morrison implies about other statutes.

Particularly noted is the means by which noncitizen plaintiffs have sought relief in U.S. federal courts for torts committed in violation of the law of nations or U.S. treaties. That means, of course, is Alien Tort Statute (prior IntLawGrrls posts). Alien Tort cases have involved events in all corners of the earth. "The Justice Department in several briefs has argued that the presumption against extraterritoriality applies to this statute," Stephan wrote (citing this 1 U.S. amicus brief, which dates from the 2d term of President George W. Bush). The Insight adds that "[s]cholarly support exists" for such a position. All may be tested soon: Stephan noted that the question's presented in Talisman Energy (photo credit), an Alien Tort case involving the oil field in Sudan, which the Supreme Court has been asked to review.

Another thought jumps to mind:

Any chance that a Court cutback campaign might reach to a sector in which extraterritoriality has grown steadily, with judicial approval, in the years of the so-called wars on drugs and terror? That is, to extraterritorial criminal jurisdiction?

'Nuff said

(Taking context-optional note of thought-provoking quotes)

Comparative sideglances can sometimes aid us in deciding not only what we should do, but what we should not do. A notable example: In the 'Steel Seizure Case' decided by the U. S. Supreme Court in 1952, Justice Jackson, in his separate opinion, pointed to features of the Weimar Constitution in Germany that allowed Adolf Hitler to assume dictatorial powers. Even in wartime, Jackson concluded, the U.S. President could not seize private property (in that case, the steel mills). Such a measure, in good times and bad, the Court held, required congressional authorization.
At the time Justice Jackson cast a comparative sideglance at Weimar Germany, the United States itself was a source of 'negative authority' abroad. The Attorney General pressed that point in an amicus brief for the United States filed in Brown v. Board of Education, the public schools desegregation case decided in 1954. Urging the Court to put an end to the 'separate but equal doctrine,' the Attorney General wrote:
'The existence of discrimination against minority groups in the United States has an adverse effect upon our relations with other countries. Racial discrimination . . . raises doubts even among friendly nations as to the intensity of our devotion to the democratic faith.'

-- U.S. Supreme Court Justice Ruth Bader Ginsburg on "The Value of a Comparative Perspective in Constitutional Adjudication," in what SCOTUSblog's Lyle Denniston termed "a rare commentary by a member of the Supreme Court on Senate hearings for a potential colleague." He refers, of course, to the broadsides that some Senators aimed at nominee Elena Kagan (prior post). Ginsburg's comments were part of a speech she delivered yesterday at the XVIIIth International Congress of Comparative Law, about which IntLawGrrl Afra Afsharipour posted earlier this week. (hat tip: Jess Bravin) (The role of foreign context in the school desegregation litigation is, incidentally, a key aspect of the scholarship of IntLawGrrl guest/alumna Mary Dudziak.)

An interesting added note in Ginsburg's full speech, available here: her reference to judges' consultation of "any number of legal blogs." Hmmm....

Women judges & judicial legitimacy

(Thank you to IntLawGrrls for inviting me to write a guest post on the most recent nomination to the Supreme Court)

Assuming the Senate confirms Solicitor General Elena Kagan (right) following hearings set to begin June 28, 33% of U.S. Supreme Court Justices will be women.
We have never had so many women on the Court before. (Prior IntLawGrrls post.)
But does the sex of the Justices matter? Would Kagan make the Highest Court somehow more legitimate? What exactly is the relationship between sex representativeness and the legitimacy of the Court? How might the presence of groups traditionally underrepresented on the Court affect perceptions of the Court’s authority and the soundness of its rulings?
The presence of women judges may affect legitimacy, if women decide cases differently from men.
In a 2009 New York Times interview, Justice Ruth Bader Ginsburg proposed that the presence of women judges

made it possible for the courts to appreciate earlier than they might otherwise that sexual harassment belongs under Title VII [as a violation of civil rights law].

Ginsburg (left) also has admitted that her womanly perspective affected her legal analysis of the strip search of 13-year old Savana Redding in Safford Unified School District v. Redding (2009).
Empirical studies seem to back up Justice Ginsburg’s claim:
► According to then-student Jennifer L. Perisie, author of the 2005 Yale Law Journal Note entitled “Female Judges Matter: Gender and Collegial Decision-Making in the Federal Appellate Courts,” plaintiffs in sex discrimination or sex harassment cases were twice as likely to prevail if at least one woman judge sat on the federal appellate panel reviewing their cases.

► A 2007 Stanford Law Review study, of which IntLawGrrl Jaya Ramji-Nogales was a co-author, found that in asylum cases, the gender of the judge appeared to be an important factor. Men granted asylum at a rate of 37.3%, women at a rate of 53.8%; that is, 44% more frequently than their male counterparts. (Prior IntLawGrrls posts here and here.)

► Similarly, a 2009 Washington University Law Review study showed that African American and White judges decide racial harassment cases differently. (“Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases,” by Pittsburgh Law Professor Pat K. Chew and Carnegie Mellon Business Professor Robert E. Kelley.)
Although judicial decision-making might vary by sex and race, the inclusion of traditionally underrepresented groups does not necessarily increase legitimacy. The presence of the underrepresented group must improve the Court’s decision-making. In other words, we have to believe the Court’s decisions are substantively better because “a wise Latina”, to quote Justice Sonia Sotomayor (right), sits on the bench. Inclusion affects legitimacy if we believe many different kinds of Justices around one conference table are more likely to produce a Just result.
The link between legitimacy and inclusion may also be tied to aspirations of the general population (or maybe just the empowered parts of the population) for representativeness on institutions important to our democracy. We simply want to see women -- or not only men -- sitting on the bench, and we question the legitimacy of a body that renders important decisions without them. Maybe we’ve reached a point in our development as a nation where, as Justice Ginsburg put it when she became the sole woman on the Court, “[i]t just doesn’t look right” to have only one woman on the Court.
But what about international courts?
Consider the 65-year-old International Court of Justice. Rosalyn Higgins (left), who retired in 2009, is the only woman ever to have served as a permanent ICJ judge. It remains to be seen if women will be considered to fill any upcoming vacancy.
Similarly, the International Tribunal for the Law of the Sea has never had women judges. Only four women serve on the twenty-six member bench of the European Court of Justice, while they make up a mere 14% of the four-year-old African Court on Human and Peoples' Rights. (Among them is Judge Sophia A.B. Akuffo of Ghana (below right), Vice President of that court.) Only 6% of arbitrators in cases at the International Centre for the Settlement of Investment Disputes were women. Women participate at higher rates on most international criminal courts and regional human rights courts, but only one court – the International Criminal Court – has reached 50% participation. (Although not international courts, the International Law Commission and the Inter-American Juridical Committee also are bodies in which notoriously few women participate.)
To borrow from Justice Ginsburg, does this “look right”?
Perhaps the debate in the United States can reignite our efforts to better understand what is happening at the international level. Why are women being left behind on most of the world’s most important international courts? What does it tell us about the legitimacy of these increasingly important institutions? I am tackling these questions in my own scholarship, and invite you to join me in considering them.

US ♥ international law

Well, sort of.
Consider this excerpt from the brief just filed by the United States in a Guantánamo detainee's habeas corpus case:

Petitioner cites the panel majority’s statement that the 'premise that the war powers granted by the [Authorization for Use of Military Force (2001)] and other statutes are limited by the international laws of war * * * is mistaken.' The Government agrees that this broad statement does not properly reflect the state of the law. The Government interprets the detention authority permitted under the AUMF, as informed by the laws of war. That interpretation is consistent with the Supreme Court’s decision in Hamdi v. Rumsfeld (2006), and with longstanding Supreme Court precedent that statutes should be construed as consistent with applicable international law.

Pp. 1-2 (citations switched to hyperlinks).
So said the United States' response to the petition for rehearing of the ruling of the U.S. Court of Appeals for the District of Columbia Circuit (courthouse above right) in Al Bihani v. Obama (2010). (Prior IntLawGrrls post) Indeed, in the body of its argument (pp. 6-9), the government repeated and expanded upon its nod to international law. In so doing, it cited case law familiar to those of us who labor in this field. For example:
► Murray v. Schooner Charming Betsy (1804), a precedent from the Court of Chief Justice John Marshall, was cited for the proposition that "an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains."
► United States v. Yunis (D.C. Cir. 1991), a judgment (by a panel included then-Judge Ruth Bader Ginsburg, along with then-Chief Judge/now IntLawGrrls guest/alumna Patricia M. Wald and the opinion's author, Abner Mikva) arising out of a 1985 cross-border, terrorism-linked hijacking. Yunis was cited for the proposition that "courts will not blind themselves to potential violations of international law where legislative intent is ambiguous."
Notably, the U.S. position in this brief stands at odds with that taken in the Military Commissions Act of 2006; in section 5(a), Congress forbade anyone to "invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action ... as a source of rights in any court of the United States or its States or territories."
At both junctures of its Al-Bihani brief, however, United States argued that international law offers no reason to grant the detainee's petition for rehearing. Here's page 2:

[N]one of this changes the outcome ... The panel majority specifically addressed and properly rejected petitioner’s argument under international law. That unanimous ruling is correct and does not warrant rehearing or rehearing en banc.

What the government giveth ....

Newly Courted?

The nomination of Solicitor General Elena Kagan to the U.S. Supreme Court already has inspired, among much other press:

► Fiona's thoughtful consideration of constitutional and human rights protection;

► My own reading of intlaw tea leaves; and

► The Supremes and the Single Girl, which our guest/alumna Mary L. Dudziak posted at her own Legal History Blog.

It's also prompted thoughts about how having 3 women might affect the 9-member Court.

"Women do bring different life experiences to the court," our honored guest/alumna, Judge Patricia M. Wald, wrote in the series she published here last fall. It's a point that other IntLawGrrls also have explored, many in posts (available here) on the confirmation of Justice Sonia Sotomayor last summer.

Surely, having a bench that's 1/3 women would place America's highest court closer to a global forefront regarding representation. As Justice Ruth Bader Ginsburg herself has noted, 4 out of the 9 Justices on Canada's Supreme Court are women. And a number of international tribunals have a significant mix of genders -- in some cases, like that of the International Criminal Court, where 10 of 19 Judges are women, by decree of statute. Truth be told, however, women lag elsewhere. At the United States' southern border, the Supreme Court of Mexico lists only 2 Ministras out of 11 members. On Germany's Federal Constitutional Court, 3 out of 16 Judges are women; on the Supreme Court of the United Kingdom (prior post), 1 out of 12 Justices; and on France's Conseil Constitutionnel, 1 woman out of 11 membres.

A likely consequence that gets less attention is one that might in the end have the greatest effect on our profession: opening seats for women on the high bench may in in turn open space for women to act as advocates before that same bench. Our colleague Pamela Harris, organizer of the Georgetown Law conference about women and the Supreme Court on which we posted last month, told The New York Times:

'If clients are visualizing the court as a predominantly male entity, they are going to want a lawyer who looks like the people on the bench. I think this could also be a critical moment in terms of women arguing before the Supreme Court.'

'Nuff said

(Taking context-optional note of thought-provoking quotes)

To my knowledge, and I have spoken to numerous jurists and architects worldwide, no other Supreme Court in the world — including those, such as Israel’s, that face security concerns equal to or greater than ours — has closed its main entrance to the public. And the main entrances to numerous other prominent public buildings in America remain open. I thus remain hopeful that, sometime in the future, technological advances, a Congressional appropriation, or the dissipation of the current security risks will enable us to restore the Supreme Court’s main entrance as a symbol of dignified openness and meaningful access to equal justice under law.

-- Justice Stephen G. Breyer, joined by Justice Ruth Bader Ginsburg, in the Statement Concerning the Supreme Court’s Front Entrance they released yesterday. As is apparent from this final paragraph, the 2 invoked global context in explaining opposition to the decision to close the marble-stepped main entryway of the United States' highest court. From today on, visitors must enter at the much less august side door.

Go On! Comparative law congress

(Go On! is an occasional item on symposia and other events of interest) Along with 3 D.C.-based law schools, the American Society of Comparative Law will play host this summer to a weeklong international conference.
The XVIIIth International Congress of Comparative Law will take place at American University Washington College of Law, George Washington University Law School, and Georgetown Law from July 25 to August 1, 2010.
This marks the 1st time this quadrennial conference of the Paris-based International Academy of Comparative Law will be held in the United States. The agenda includes many sessions on all aspects of comparative law, as well as a banquet at the Organization of American States headquarters (left).
Confirmed speakers include:
► U.S. Supreme Court Justice Ruth Bader Ginsburg
► Italian Constitutional Court Justice Sabino Cassese
► American Bar Association President Carolyn Lamm
Details and registration here; note that fees increase after April 30, 2010.

Women & the Court

Webcast here of Thursday's event on "Women and the Supreme Court Bar," featuring U.S. Supreme Court Justice Ruth Bader Ginsburg (left).

Hat tip to our friends at Legal History Blog.

(credit for 2007 photo)

Gender, equal protection & immigration

(IntLawGrrls is pleased to welcome back Ruthann Robson, who contributes this guest post, cross-posted from Constitutional Law Prof Blog, regarding the U.S. Supreme Court's announcement yesterday that it will review Flores-Villar v. United States. Ruthann further contributes the Go On! post below)

The question is a narrow one:

► Does decision in Nguyen v. INS (2001) permit gender discrimination that has no biological basis?

In Nguyen, the U.S. Supreme Court upheld 8 U.S.C. § 1409, which imposed different requirements for a child’s acquisition of citizenship depending upon whether the citizen parent is the mother or the father. Writing for the Court, Justice Anthony M. Kennedy found that the statutory gender-based distinction – applicable when the parents were unmarried, when only parent was a citizen, and when the child was born outside of the United States – survived a constitutional challenge based on the “equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment.” The majority found that the statute served two important governmental interests:

► The importance of assuring that a biological parent-child relationship exists; and

► The importance of assuring that the child and the citizen parent have a demonstrated opportunity or potential to develop the “real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States.”

The Court in Nguyen relied on biological reasoning -- women give birth and men may not even realize their paternity -- and concluded:

Given the 9-month interval between conception and birth, it is not always certain that a father will know that a child was conceived, nor is it always clear that even the mother will be sure of the father’s identity. This fact takes on particular significance in the case of a child born overseas and out of wedlock. One concern in this context has always been with young people, men for the most part, who are on duty with the Armed Forces in foreign countries.

The Court then provided statistics about the number of military men in foreign countries in 1969, the year Nguyen was born in Viet Nam -- although, as the dissenting opinion noted, after Nguyen's parents split up, he lived with the family of his father’s new girlfriend and in 1975, before his sixth birthday, Nguyen came to the United States, where he was raised by his father. A DNA test showed a 99.98% probability of paternity, and the father obtained an order of parentage from a state court.

The Court's grant of certiorari in Flores-Villar v. United States will involve a reconsideration of Nguyen. Flores-Villar was born in Tijuana, Mexico, in 1974 to a noncitizen mother and a United States citizen father who, importantly, was 16 at the time. His father and grandmother, also a citizen, brought Flores-Villar to the United States for medical treatment when he was two months old. He grew up in San Diego with his grandmother and father, who acknowledged paternity with the Civil Registry in Mexico on June 2, 1985. Apparently, Flores-Villar was not in touch with his mother, who remained in Mexico.

The gendered differential imposed by the statute at issue in Flores-Villar was the requirement that a citizen father must have resided in the United States for at least five years after his 14th birthday to confer citizenship on his child, while a citizen mother had to reside in the United States for a continuous period of only one year prior to the child’s birth to pass on citizenship. Moreover, in the case of Flores-Villar, the INS denied a petition for citizenship on the basis that because the citizen father was 16 years old at the time of the child’s birth, it was “physically impossible” for the father to have the required physical presence after the age of 14 in order to comply with the statute.
In the 2008 appellate decision in Flores-Villar to be reviewed, a panel of the U.S. Court of Appeals for the Ninth Circuit -- comprising Judges Pamela Rymer, Cynthia Holcomb Hall, and Andrew J. Kleinfeld -- upheld the statutory scheme. It held the asserted governmental interests -- avoiding statelessness, as well as assuring a link between an unwed citizen father, and this country, to a child born out of wedlock abroad who is to be a citizen -- to be important. The means chosen, it also held, substantially further the objectives. The Court stated:

Though the fit is not perfect, it is sufficiently persuasive in light of the virtually plenary power that Congress has to legislate in the area of immigration and citizenship.

This “fit” will certainly be at issue before the U.S. Supreme Court.

Then-Justice Sandra Day O’Connor’s dissenting opinion in Nguyen, which was joined by Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer, stressed the heightened scrutiny required by the case involving single-sex education at VMI, the Virginia Military Institute. In that judgment in United States v. Virginia (1996), a closer fit was required between the “discriminatory” means chosen and gender stereotypes. The Nguyen dissenters thus reasoned that the statute at issue in Nguyen was

paradigmatic of a historic regime that left women with responsibility, and freed men from responsibility, for nonmarital children,

and added that it could easily have been rendered sex-neutral.

In Flores-Villar, because the gender differential is a residency requirement -- and not, as in Nguyen, a relationship-with-child requirement -- the “fit” may not be sufficiently tight. If the Court applies VMI, the question will be whether or not there is something unique about men that requires them to have a longer residency than women before men are truly “citizens.” However, the Court will also certainly rely on the plenary power of Congress in the area of citizenship.

Balancing gender equality and citizenship will be the task for the Court -- a task which the newest Justice, Sonia Sotomayor (right), will certainly undertake.

Comparative colloquy at the Court

Law beyond borders unexpectedly emerged as a topic for discussion at the Supreme Court a few days ago.
That foreign context would be discussed in Samantar v. Yousuf, the Alien Tort Statute case argued Wednesday (prior posts here and here), was a given. But who thought that practices abroad might inform discussion a day earlier of whether the 2d Amendment limits local gun control laws? Yet they did, and more than once.
The official transcript shows that early in oral argument, the attorney for petitioners in McDonald v. City of Chicago, Alan Gura, contended that owning a gun not only is guaranteed by the 2d Amendment, but also is among the unenumerated "privileges and immunities" guaranteed by the 1st section of the 14th Amendment. His likening of gun ownership to other privileges and immunities he said are enjoyed by U.S. citizens prompted this exchange with Justice Ruth Bader Ginsburg (below right), who concurs with the Court's occasional efforts at comparative constitutionalism but who dissented in last Term's gun-rights case, District of Columbia v. Heller:

JUSTICE GINSBURG: Did married women at that time across the nation have the right to contract, to hold property, to sue and be sued?
MR. GURA: Married women were considered citizens of the United States, just like children were considered citizens. However, the law did not always protect people fully, and we've made great strides in this country giving a greater level of protection to certain rights. We understand certain rights better today than we did 140 years ago, and the fact that First Amendment rights were not fully respected, Second Amendment rights were not always respected, Fourth Amendment rights were not always understood well –
JUSTICE GINSBURG: Does it work just one way? I mean, if the notion is that these are principles that any free society would adopt, well, a lot of free societies have rejected the right to keep and bear arms.
MR. GURA: ... American history and tradition are important to consider what rights are protected in this country. It's true that our friends overseas who have more or less civilized, free societies don't respect rights to the same level that we do. For example, England, which is a free society, has a monarchy. They have hereditary lords in parliament. They don't have First Amendment protection.
JUSTICE GINSBURG: But then it's not one expression of this unenumerated rights, natural rights, or the rights that any free society -- basic to a free society. So you -- you have to trim your definition. It's not basic to any free society. (pp. 9-10)

Analogous inquiry arose later. Chicago's attorney, James A. Feldman, asserted that no right could be held to constrain states and local governments unless it was "implicit in the concept of ordered liberty"; that is, unless it satisfied a time-honored substantive due process test, one that the Court at times has applied after consulting foreign context (a methodology about which I've written here and here). Justice Antonin Scalia (below left), author of the majority opinion in Heller, countered. He referred to the United States' jury-trial right, one that the Court, reversing precedent, held to be fundamental in Duncan v. Louisiana (1968):

JUSTICE SCALIA: Is the right to trial by jury implicit in the concept of ordered liberty? ... My goodness ... there are a lot of countries that don't give the right to trial by jury, even England does not give it in all criminal cases.
MR. FELDMAN: I think it is in the following sense, when you are talking about a procedural right that is embedded in a particular procedural system, you have to look at how that system operates and how the -- the right works within that particular system. (p. 30)

Agreement came from Chief Justice John G. Roberts, Jr. (below right), who joined the majority in Heller and who'd spoken against consulting foreign law during his confirmation hearings:

CHIEF JUSTICE ROBERTS: I think that's exactly -- that's exactly right. And that is what the Court elaborated on in Duncan. I do think the focus is our system of ordered liberty, not any abstract system of ordered liberty. You can say Japan is a free country, but it doesn't have the right to trial by -- by jury.
The -- the -- the concept only makes sense, I think, if you limit it to our system.
Under our system, as you said, the -- the right to a jury is essential.
MR. FELDMAN: I -- I agree -- I -- I -- I think that's right. ...

At this rather hesitant concession, the Chief Justice jumped in:

CHIEF JUSTICE ROBERTS: Well, if you think that's right, why wouldn't you think, for all the reasons given in Heller, that the Second Amendment right is essential to our system, whatever it may be with respect to France or England or anywhere else? (p. 31)

Roberts' rejoinder well may have left Feldman regretting this half-step into comparative constitutionalism on the matter of individual gun ownership and state regulations intended to protect public safety.

On January 28

On this day in ...

... 1916, in what The New York Times called "a complete surprise to the country," Boston-based attorney Louis D. Brandeis was nominated to become an Associate Justice of the United States' highest court. Just days before, The Times reported, Brandeis had spoken at a meeting called "to demand equal rights for the Jewish people"; upon his confirmation 5 months later, "after a tumultuous hearing process," Brandeis became the 1st Jewish man to serve on the Supreme Court. (credit for portrait of Brandeis by Andy Warhol) Other Supreme Court 1sts include (test your knowledge of Court trivia before clicking on the answer):

► 1st non-U.S.-born Justice, a man;
► 1st Roman Catholic, a man;
► 1st Asia-born Justice, a man;
► 1st African American, a man;

► 1st woman of any background;

► 1st Italian American, a man;
► 1st Jewish woman; and
► most recently, as we've posted, the 1st Latina.

(Prior January 28 posts are here and here.)

On November 11

On this day in ...
... 1839 (170 years ago today), in the town of Lexington, the Virginia Military Institute opened its doors to cadets whom it housed in an old arsenal building. For more than a century it was a public institution where men studied for bachelor's degrees. That changed after issuance of United States v. Virginia (1996), in which the U.S. Supreme Court, in an opinion by Justice Ruth Bader Ginsburg, held that the single-sex admissions policy violated the Constitution's Equal Protection Clause. (credit for 2008 AP photo, by Don Peterson, of then-Vice President Dick Cheney at VMI)

(Prior November 11 posts are here and here.)

High Court takes up child LWOP

This morning the U.S. Supreme Court's set to hear argument on the constitutionality of sentencing children to life without parole for crimes not resulting in the death of a human being.
Under review are 2 cases:
► Graham v. Florida, No. 08-7412, involving a 17 year old sentenced to life imprisonment without possibility of parole after his conviction for violating a probationary sentence, imposed a year earlier, for felony robbery.
► Sullivan v. Florida, No. 08-7621, involving a 13 year old who received the sentence following conviction for sexual battery.
Lyle Denniston's superb preview at SCOTUSblog notes the differences between the ages and prior criminal behavior of the 2 petitioners, andwonders "which of those differences may have persuaded the Court to grant both cases," rather than grant 1 and hold the other, as is its typical practice.
Critical will be how this Court views the 2005 precedent in Roper v. Simmons, in which a 5-Justice majority held that execution of juveniles violates the ban on cruel and unusual punishments in the 8th Amendment to the U.S. Constitution. Subsequent changes in the composition of the high bench likely will not have disturbed the 5-4 split on that precise precedent; the question, rather, is whether Justices will consider Simmons to have augured a similar result in these cases.
Will the findings in Simmons respecting the unformed personality of children militate in favor of a less-harsh sentence in these cases, as it did there? Will it matter that the offenses at issue here were not homicides? Conversely, will Justices focus less on the nature of the child and more on the nature of the sentences, concluding that Simmons does not control for the reason that "death is different"?
And what of the rest of the world? Will Justices go "looking beyond their borders," to quote Justice Ruth Bader Ginsburg, for guidance in interpreting the Constitution?
They sure did in Simmons, and so drew much criticism, as I've written here. Not much overt consultation of foreign and international law since then. Among those favoring a return to that methodology in these cases are Amnesty International, the Amsterdam Bar Association, the Bar Council of Hong Kong, the Bar Human Rights Committee of England and Wales, the Bar of Montreal, the Center for Constitutional Rights, the Columbia Law School Human Rights Clinic, Human Rights Advocates, the Law Council of Australia, the Law Society of England and Wales, the Law Society of Ireland, the Netherlands Bar Association, the New Zealand Law Society, The Advocates for Human Rights, and Union Internationale Des Avocats. Here's what their Brief for Amnesty International, et al., As Amici Curiae in Support of Petitioners, which cites many treaties and national laws, has to say:

Amici urge the Court to consider international law and opinion when applying the Eighth Amendment's clause prohibiting cruel and unusual punishments. International standards for sentencing juvenile offenders to life in prison without the possibility of parole bears directly on domestic compliance with international legal and societal norms. Those standards also provide an important indicator of evolving standards of decency, which in turn illuminate the contours of acceptable conduct under the Eighth Amendment. The United States is the only country in the world that does not comply with the norm against imposing life without parole sentences on juveniles under the age of 18. Prohibiting the sentence challenged in these cases would bring the United States into compliance with one of the most widely accepted human rights norms and with its international treaty obligations, and it would honor the Eighth Amendment principles that led this Court to strike down the juvenile death penalty in Roper v. Simmons, 543 U.S. 551 (2005).

Principal authors of the brief in addition to San Francisco lawyer Neil A.F. Popovic are the authors of authors of the 2008 report depicted above left: IntLawGrrls Connie de la Vega and Michelle Leighton.

What do women want from international criminal justice? To help shape the law

(Part 1 of a 3-part guest post on what women want from international criminal justice, by Judge Patricia M. Wald)

Women want to be a significant part of the tribunal process. In the words of one of my former colleagues still laboring away at the International Criminal Tribunal for the former Yugoslavia:

'As long as men make the decisions for women, irrespective of how well-intentioned they may be, the particular experiences of women in armed conflict will always be overlooked.'

Progress in integrating women fully into all aspects of the tribunals’ activities has been encouraging, but still far from optimal; indeed, the United Nations itself mirrors that same measured rate of advancement.

The tribunals have generated some outstanding women leaders. Luminaries include Chief Prosecutors Louise Arbour (right) and Carla Del Ponte (below left) and Presidents Gabrielle Kirk McDonald (middle right), Navanethem Pillay (bottom left), and Renate Winter (middle left). Except perhaps for the International Criminal Court, whose statute mandates representation of women, and the Special Court for Sierra Leone, where 4 out of 11 judges are women, in totality the number of women judges has not been up to the mark.

While I was on the ICTY, we had 2 to 14 women; there are now none save for the ICTR woman judge appointed to the joint appellate chamber. There have never been more than 3 at a time. In late 2001 as I was leaving, only 1 woman had been nominated for the new group of judges coming in, and it took an explosion of outrage by NGOs and the European press to galvanize the nomination of more women as ad litem judges to help fill the gap.

Part of the difficulty in getting more women into leadership positions is obviously traceable to the selection process: judges, on the U.N. courts at least, appear to be selected by region, so the onus is on the national governments to nominate women. Governments have appeared likely do so principally when their domestic constituencies pressure them. Thus, women’s groups and NGOs should turn their attention to becoming even more active in the electoral and nomination sphere.

Why is it so important to have a significant number of women judges and high-level prosecutors?
We have very recently been asking this same question about judges in the United States. Our record – about 1/3 of federal judges are women – is not brilliant. Our Supreme Court record – never more than 2 out of 9 – is downright pitiful. Other nations have done far better.
So far, research does not give a definitive answer as to whether women decide substantial number of cases differently than men. But I will tell you:

Women do bring different life experiences to the court.

And given the concentration in the tribunals – on campaigns and assaults against civilians, most of whom are women – women judges' insights are especially relevant.
Our own Supreme Court demonstrated the case for women’s input in a recent case involving the strip search of a 13-year-old schoolgirl suspected of carrying a few aspirin. While some of the men Justices thought her experience not so different from their own schoolboy disrobing for gym class – even though it resulted in her leaving school and developing an ulcer – the single woman, Justice Ruth Bader Ginsburg (right), expressed her exasperation at argument and called the experience “humiliating.” The Court ultimately found such a drastic response by the school a violation of the girl’s fundamental right.
In tribunal history, some have attributed the progress already made in recognition of gender crimes as major instruments of war at least partially to the infusion of talented women judges and prosecutors, however few their number. The five major gender-crime precedents were made when at least 1 woman judge sat. Playing a commanding role was Judge Pillay. After hearing plentiful evidence of gender crimes admitted to prove other offenses, she requested midtrial in the Akayesu case that the prosecutor go back and re-decide whether to bring a separate gender-crime charge. Her intervention ultimately resulted in the first major gender-crime conviction in tribunal history.

I would also stress the importance of women judges and prosecutors themselves not hesitating to draw on their own sensitivities and experiences in interpreting the law and the relevance of evidence in factfinding.

I do not of course mean women should give free rein to their preferences – an accusation frequently hurled at judges in my country by critics who do not like their decisions. All judges should follow the law as it is written, and as interpreted by prior courts whose rulings bind them. But as all judges, domestic and international grapple with, for instance:
► the precise scope of a somewhat vague provision in a statute; or
► the precise reach of a prior ruling; or
► the status of an alleged crime in international customary law; or
► which of two allegedly conflicting provisions in the charter should prevail; or
► whether a provision was intended to cover an atypical situation; or
► which justifications were meant to be credited as legitimate defenses.
All these dilemmas demand judgment, not just word-parsing by a judge. Her life experiences will inevitably, and should, influence that judgment in many cases. We should not deny the tribunals the benefit of women’s unique experiences and insights; they can and do make a difference. I have seen it on the courts, at home and abroad, in which I have judged.

(Tomorrow's post: paying due attention to needs of women and children; Wednesday's post: extending crimes against humanity to peacetime oppression of women)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

'[W]hat you are suggesting is that the courts who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court's error to start with, ... the fact that the Court imbued a creature of State law with human characteristics.'

-- Sonia Sotomayor (above right), posing the question that appears at page 33 of this transcript of the 1st oral argument in which she participated as an Associate Justice of the U.S. Supreme Court. (Here is audio of the September 9 argument in that campaign spending case, Citizens United v. Federal Election Commission). Jess Bravin plumbed the possible implications of her query in this article in the Wall Street Journal (hat tip to SCOTUSblog); he further observed that "Sotomayor may have found a like mind in Justice Ruth Bader Ginsburg" (below left), who evoked the American Declaration of Independence when she said, even earlier in the argument (transcript p. 4):

'A corporation, after all, is not endowed by its creator with inalienable rights.'

Ways that any rethinking of the legal personality of the corporation might affect subfields of international law -- in particular, the field of corporate responsibility -- deserve pondering.

On August 10

On this day in ...
… 1993, Ruth Bader Ginsburg (left) (see previous posts) took her seat as an Associate Justice of the U.S. Supreme Court. (photo credit) She is (as of Saturday!) one of only two women on the United States’ highest court. Recently, at a symposium at Ohio State University, she discussed her opinion on foreign law and its potential influence on judicial decisions in the United States, asking,

“Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?”

She also linked the diminished influence of the U.S. Supreme Court to its failure to engage with foreign decisions.
… 1949 (60 years ago today), President Harry S. Truman (right) signed the National Security Act Amendment of 1949, which renamed the National Military Establishment the Department of Defense. (photo credit) Additionally, the amendment placed the secretaries of the Army, the Navy, and the Air Force under the direction of the Secretary of Defense, giving that Secretary more power over the individual services and their secretaries. The 1949 amendment also created the position of chairman of the Joint Chiefs of Staff. These changes further centralized the organization of policy among the three branches of the military begun when the act was first passed in 1947.
(Prior August 10 posts are here and here.)