On March 8

On this day in ...
... 1884, Susan B. Anthony testified before the Judiciary Committee of the House of Representatives in support of a constitutional amendment that would extend the right to vote to women. She began:

We appear before you this morning…to ask that you will, at your earliest convenience, report to the House in favor of the submission of a Sixteenth Amendment to the Legislatures of the several States, that shall prohibit the disfranchisement of citizens of the United States on account of sex.

As detailed in posts available here, such an amendment -- the 19th -- would not be ratified until 1920. (credit for photo of Anthony, an IntLawGrrls foremother, circa 1880-1906) Food for thought this 100th anniversary International Women's Day.

(Prior March 8 posts are here, here, here, and here.)

'Nuff said

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

He played a small but meaningful role in this unique gathering of princes, presidents, and kings-in-waiting, sitting down face-to-face with Emir Faisal ibn Husayn, who would briefly be king of Syria and then of Iraq. Faisal's translator and adviser was none other than T.E. Lawrence, fresh from the exploits in insurgency that earned him the nickname Lawrence of Arabia. Working with Lawrence, Frankfurter negotiated an exchange of letters expressing mutual support for the national hopes of Jews and Arabs alike -- a kind of hopeful entente that prefigured later cooperation between the Zionists and the Hashemite Kingdom of Jordan.

-- A story of the bit part that Felix Frankfurter (above left) played in the 1919 Paris Peace Conference (prior posts) that led to the Versailles Treaty and many other post-World War I agreements. Recounted at p. 30 of in Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices (2010), by Harvard Law Professor Noah Feldman. Frankfurter was among those those "greats," according to Feldman. The others (4 out of 9 FDR appointees) were Robert H. Jackson, Hugo Black, and William O. Douglas. In Feldman's telling, the 4 were instrumental in the entrenchment of theories of constitutional interpretation that persist to this day: respectively, judicial restraint, pragmatism, originalism, and legal realism. (credit for circa 1927 photo of Frankfurter, then a Harvard Law professor)

'Nuff said

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

'I don’t even have to read the briefs, for Pete’s sake.'

-- U.S. Supreme Court Justice Antonin Scalia (right), in a just-published interview with California-Hastings Law Professor Calvin Massey, about which we also posted here. (2008 photo credit) Scalia spoke in explanation of the scope of questions that he deems easily decided by his originalist approach to constitutional interpretation. In the Justice's words:

'We don’t have the answer to everything, but by God we have an answer to a lot of stuff ... especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide ....'

Best lawyer

That would be Judy Clarke (right), whom this 'Grrl 1st met when Judy was Executive Director of the San Diego Federal Defender's office.

Had the privilege later to serve as a Vice Chair of the Amicus Committee of the National Association of Criminal Defense Lawyers, at the same time that Judy served as NACDL's President. Other titles the South Carolina native has earned include Executive Director of the Federal Defenders office in Spokane, Washington; professor at Washington and Lee University School of Law in Virginia; National Capital Resource Counsel based at the San Diego federal defense office.

Judy's most remarkable achievement, however, has been to provide topnotch representation to child-murderer Susan Smith, Unabomber Ted Kaczynski, Oklahoma City bomber Timothy McVeigh, and other reviled defendants, most put on trial for capital offenses.

Yesterday she took on another such assignment: representation of the man charged with the tragic Tucson killings and attempted killings this weekend. (Here is the federal complaint, covering only the shootings for which there's federal jurisdiction -- that is, the fatal shootings of Chief Judge John Roll and a Congressional aide, plus the woundings of U.S. Rep. Gabrielle Giffords and other staffers.)

The appointment of 1 of the country's best lawyers to this case attests to the power of the 6th Amendment to the U.S. Constitution.

Florence Kelley and the Battle Against Laissez-Faire Constitutionalism

(Many thanks to IntLawGrrls for allowing me to guest post and stretch my cyberspace abilities.)

About two years ago, I was asked to contribute an essay to a book in honor of Harvard legal historian Morton Horwitz. Long ago, I had been a student of Morty’s, and his scholarship has influenced me enormously. I am always, however, struck by the absence of women as historical actors in his works, and I wanted to use my essay to demonstrate the crucial importance of women legal progressives to sociological jurisprudence, legal progressivism, and constitutional change.
I chose Florence Kelley (right) to begin this project, in part because of the rich scholarship which already existed on this social reformer and lawyer. (photo credit) As my work on Kelley continued, I became more and more convinced that women social reformers were very much part of the story of legal progressivism and constitutional change. Moreover, some women deemed social workers or social reformers were actually functioning as astute legal actors and, at times, as lawyers. Below is an excerpt from my Florence Kelley essay, available in full here. I am currently working on writing Sophonisba Breckinridge (prior IntLawGrrls posts) into this story.
We all know the story of the demise of substantive due process in the 1930s. Our story usually features heroes such as Louis Brandeis and Felix Frankfurter and the great male legal progressives of the day who rose up from academia, the bench, and the bar, to put an end to what historians label “legal orthodoxy.” In this essay, I demonstrate that Florence Kelley was a crucially important legal progressive who was at the front lines of drafting and defending new legislation that courts were striking down as violating the Fourteenth Amendment and state constitutions.
Looking at who was drafting and lobbying for pathbreaking progressive legislation and how such legislation was being defended accomplishes a number of things. It uncovers how male legal actors at times worked closely and collaborated with women reformers. Furthermore, thinking about women reformers as central legal actors demands that we examine our own categorical thinking. Placing progressive-era women reformers in a non-porous women’s sphere -- while imagining that elite male legal thinkers were sealed within an all-male world of academics, lawyers and jurists -- distorts late nineteenth and early twentieth century legal culture and leads to what we might call “intellectual segregation.” This essay is thus a work of bricolage that brings together the scholarship on women’s leading roles in progressive-era reform with mainstream narratives of legal history.
Situating Florence Kelley as a legal reformer further allows us to explore some of the significant differences between how men and women legal reformers approached the law:
► In part, male legal thinkers deeply struggled with questions involving legal rights, the common law, the role of judges, the redistribution of wealth, the Fourteenth Amendment, and the growth of an administrative state.
► Many women reformers did not have similar struggles and qualms. These women legal reformers had come to realize that custom, the common law, and courts had consistently thwarted women’s rights. Courts had: failed to grant women the right to vote; found that the Fourteenth Amendment did not protect women from discrimination; and often negated the Married Women’s Property Acts.
By the turn of the century, elite women reformers had few illusions about law.
Where men like Oliver Wendell Holmes, Jr. posited that custom and the common law served as a buffer between the state and the individual, many women legal reformers understood that custom and the common law blocked women’s struggles, for rights and, more generally, for social reform. Having a stake in the system, many progressive male legal thinkers reached such critical assessments regarding courts, the Constitution, and the common law more slowly.
In contrast, Florence Kelley radically reinterpreted the Constitution as placing affirmative duties on the state. These duties required the state to provide for those material conditions which would foster true democracy. This radical vision, which Kelley had already set forth by 1905, is exceedingly modern; it defined the ways in which she would defend legislation from constitutional challenge and marry the philosophy of pragmatism, social science, on-the-ground reality, and law.
Recognizing and incorporating women as legal reformers allows us to reexamine, reinterpret, and expand traditional narratives of legal history.
For example, the sociological jurisprudence that Roscoe Pound called for was well under way in the work that women reformers and others were doing. By the late 1890s, Kelley had developed a methodology that united law and facts. We can see this in:
► Kelley's numerous efforts to draft and lobby for new laws that drastically expanded state power; and
► How Kelley connected such laws to on-the-ground facts.
From the mid-1890s on, she identified “liberty of contract” as an empty phrase for workers without bargaining power, and she sought to restructure a system of rights based upon the needs of a democratic industrial society. She further recognized that the key to legal reform was presenting facts of industrial life to judges.
In part, we might understand the work of Brandeis, Pound, and Frankfurter as bringing to the more conservative bar and legal academy the legal progressivism that already existed within more radical circles of legal reform, in which women comprised a significant component. Rutgers-Camden Law Professor N. E. H. Hull (above left) writes of Roscoe Pound (p. 75):

'As committed as he was to reform, it was a muted commitment, muted by his legalism, by his native caution, and by his ambition for a prize beyond the Midwest.'

Women legal progressives such as Kelley, who stood outside legal academia and who devoted their lives to legal reform, functioned without such constraints, for they were already outsiders.

(credits here and here for above Library of Congress photo, made in 1914 in New Orleans,"from the National Child Labor Committee's collection," of current and former "female factory inspectors ... employed by various states and cities"; left to right, "Miss Ella Haas, State Factory Inspector, Dayton, O."; "Miss Mary Malone, State Inspector Ten-Hour Law, Delaware"; "Mrs. Florence Kelley, Chief State Factory Inspector of Illinois, 1893-97"; "Miss Jean Gordon, Factories Inspector, Parish of New Orleans"; "Miss Madge Nave, Factory Inspector, Louisville, Kentucky"; and "Mrs. Martha D. Gould, Factories Inspector, Parish of New Orleans")

On December 12

On this day in ...
... 2000 (10 years ago today), 5 weeks after national balloting, the Supreme Court issued its decision in Bush v. Gore, holding Florida's vote recount a violation of the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, and thus making way for the January inauguration of former Texas Governor George W. Bush as the country's 43d President. (photo credit) Division on the Court was evident in these concluding lines of the dissent of Justice John Paul Stevens:

Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

(Prior December 12 posts are here, here, and here.)

Watch Prop 8 arguments live

From 10 a.m.-12:30 p.m. Pacific time today, a panel of the U.S. Court of Appeals for the Ninth Circuit will hear oral argument on a trial court's August ruling that California's ban on same-sex marriage violates the U.S. Constitution.

Attorneys will argue in San Francisco before Judges Michael Daly Hawkins, N. Randy Smith, and Stephen Reinhardt -- the last of the 3 having denied the motion to disqualify himself filed by proponents of the ban, contained in the state's Constitution as a result of voters' approval of a 2008 ballot initiative, Proposition 8 (prior IntLawGrrls posts available here).

The Ninth Circuit has decided to permit live dissemination of the arguments in the case, Perry v. Schwarzenegger. The court's decision gives rise to any number of ways to watch the arguments live:

► It'll be streamed into auditoriums at many law schools (including my home institution, the University of California, Davis, School of Law); and

► It'll be broadcast on C-SPAN.

The appeals court also has set up a web database on the case. Quick skimming of briefs available there indicates one good bet: whatever the panel should decide, it's unlikely to cite foreign law or practice, as no litigant appears to have mentioned any.

On October 23

On this day in ...
... 1915 (95 years ago), "armies of suffrage from all the five boroughs" marched down New York's 5th Avenue in support of granting U.S. women the right to vote. (photo credit) The tens of thousands of demonstrators at the hours-long parade, The New York Times reported, "included men and women of all ages, from veterans in their seventies to babies pushed along in gocarts." Another 8,000 women and men marched in Philadelphia. It would be another 5 years before the marchers' wishes were granted by dint of the 19th Amendment to the U.S. Constitution.

(Prior October 23 posts are here, here, and here.)

On September 17

On this day in ...
... 2010 (today), the United States marks Constitution Day and Citizenship Day. Congress has set aside this date -- on which the U.S. Constitution (right) was signed, in 1787, and sent to state legislatures for ratification -- for observances. Government agencies, schools, and other groups are urged to plan commemorative lectures and other events. This 'Grrl's favorite item in honor of the day: the Which Founder Are You? quiz at the website of the Philadelphia-based National Constitution Center. I'm James Madison (below; credit), described thusly: "Diligent, scholarly, and shy." And you?

(Prior September 17 posts are here, here, and here.)

Look On! Suffragists

(Look On! takes occasional note of noteworthy films.)

Just finished watching Not for Ourselves Alone: The Story of Elizabeth Cady Stanton & Susan B. Anthony. The several-years-old documentary is available on Netflix as well as in DVD.

It's worth watching, though best watched in several segments. By filmmaker Ken Burns, it 1st aired as a documentary series on PBS, which maintains an informational website. As is common in works of the kind, the repetition of static photos (necessary given how little motion picture footage there was back in the day), coupled with folksy-Americana music, can make one a bit drowsy at times.

But stick with it. The story's a good one -- one of which this 'Grrl knew precious little.

Told well are the life journeys of 2 very different persons, at one in their passion for changing the role of women in the United States:

► Elizabeth Cady Stanton (near right), a mother, wife, and writer, loved good food and took care to keep her hair curled.

► Susan B. Anthony (far right) was an austere, cerebral woman who never married.

They met in 1851 in Seneca Falls, New York, where 3 years earlier Stanton had convened the 1st-ever women's rights convention. From then on, the 2 (both IntLawGrrls foremothers) worked tirelessly together for women's rights -- especially, for the enfranchisement of women.

Particularly interesting in Not for Ourselves are the moments when that last, singular goal conflicted with others. The conflict saw the women, who'd been staunch activists on behalf of abolition, oppose post-Civil War Reconstruction Amendments because they kept from women what they granted to former slaves. And as the goal of women's suffrage grew nearer, they distanced themselves from African American women in an effort to shore up support in the South. Conflict also arose between the 2 women themselves. The 1890s publication, by an ever-more-radical Stanton, of The Woman's Bible drew censure from the movement she'd started -- a movement that Anthony chose to continue to lead notwithstanding its ouster of her longtime friend and ally. As a result Anthony, alone, appears on the 1st U.S. coin depicting a woman.

Both women would pass away more than a decade before their work took form in the 19th Amendment. This film serves as a reminder of their legacy.

On August 18

On this day in ...
... 1920 (90 years ago today), in Nashville, a so-called War of the Roses came to an end; that is, ratification of the 19th Amendment to the U.S. Constitution was completed when the legislature of Tennessee ratified the national women's suffrage amendment. During "weeks of intense lobbying," advocates on either side had identified themselves by the wearing of roses: red for anti-suffrage, yellow for pro-suffrage. The measure passed by 1 vote. Among the yellow-rose wearers was Anne Dallas Dudley (left), aka Mrs. Guilford Dudley, Sr., a statewide leader in pro-suffrage groups.

(Prior August 18 posts are here, here, and here.)

On August 6

On this day in ...
... 1890 (120 years ago today), at New York's Auburn prison (left), in an "awful spectacle" that the next-day New York Times proclaimed "FAR WORSE THAN HANGING," convicted murderer William Kemmler became the 1st person ever executed by electrocution. (credit for 1901 photo) Two jolts of electricity -- the 1st lasting 17 seconds, the 2d much longer -- were required to complete the grisly event detailed in The Times. The execution took place after the failure of bids to declare the electric chair unconstitutional.

(Prior August 6 posts are here, here, and here.)

U.S. court overturns state marriage ban

An e-mail just received from my Law Librarian, Erin Murphy, identifies the pith of the trial court judgment against Proposition 8, the voter initiative that made a prohibition on same-sex marriage part of California's Constitution. (Prior IntLawGrrls posts available here.) With a hat tip to Erin, here's the money quote by U.S. District Judge Vaughn R. Walker, Northern District of California:

'Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed the evidence shows Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite sex couples are superior to same sex couples.'

By those words and many others contained in the 138-page ruling in Perry v. Schwarzenegger, available in pdf here, Walker ruled that the ban on same-sex marriage violates the equal protection and due process guarantees of the U.S. Constitution. (photo credit)

In a curious aside to unsuccessful efforts to have the Perry trial televised -- on which IntLawGrrl Kathleen A. Doty posted -- the court webpage includes not only links to the ruling, but also to YouTube videos of evidence to which the ruling refers.

More litigation sure to follow.

'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....

Finessing foreign law

A Senator says "it's a raging debate within our country today."
Said to be raging just days before the Judiciary Committee's scheduled vote on the nomination of Solicitor General Elena Kagan (left) to the U.S. Supreme Court? Debate over judges' use of foreign and international law.
The Senator in question, Jeff Sessions (R.-Ala.) (below right), is against it:

I do not see how anyone can justify a citation to actions outside the country as any authority whatsoever to define what Americans have done. Americans believe that you only govern with the consent of the governed, and we have not consented to be governed by Europe or any other advanced nation.

This is an issue that IntLawGrrls have treated on a number of occasions (here, here, here, here, here, here, and here). During 3 days of committee hearings last week, moreover, a few Republican Senators complained about such use, and a few of their Democratic counterparts countered such complaints.
Yet media attention to the issue was anything but raging.
Can't attribute this fizzle to the fact that, as posted, Kagan's said or done little in relation to international law. Concerned Senators found enough in her record to permit them to express concern.
Nor can it be attributed to some surrender by Kagan. The hearings last year that led to confirmation of Justice Sonia Sotomayor (right) showed that donning an international law hairshirt wouldn't silence critics. Kagan opted for qualified defense. Relevant passages may be found by searching for "foreign" or "international" in the transcripts available here, here, and here; this post puts forward sample snippets.
Senator Chuck Grassley (R-Iowa) (below left) led by finding fault with curricular changes adopted that Harvard Law School adopted in 2007, when Kagan was dean:

GRASSLEY: ... And why, then, is it more important for a law student to take an international law course th[a]n [a] course in U.S. constitutional law? In other words, which is more important -- our Constitution or other nations’ constitutions and laws?

After assuring the Senator that Harvard Law students get their fill of domestic constitutional law, Kagan responded:

KAGAN: ... Now, I do think that international law is something that all law students today should be familiar with. I know that the students who graduate from Harvard, they go out, they do international litigation, they do international arbitrations, they do international business transactions, they do...

He interrupted with a pivot to judicial methodology:

GRASSLEY: ... Should judges ever loo[k] to foreign law for, quote-unquote, "good ideas?" Should they get inspiration for their decisions from foreign law?

By way of reply, Kagan categorized foreign law along with other sources of potentially persuasive authority:

KAGAN: ... I guess I’m in favor of good ideas coming from wherever you can get them, so in that sense I think for a judge to read a "Law Review" article or to read a book about legal issues or to read the decision of a state court, even though there’s no binding effect of that state court, or to read the decision of a foreign court to the extent that you learn about how different people might approach and have thought about approaching legal issues.
But I don’t think that foreign law should have independent precedential weight in any but a very, very narrow set of circumstances. ...

He put a point on his inquiry:

GRASSLEY: ... If confirmed, would you rely on your cite international foreign law when you decide cases?

She parried:

KAGAN: Well, Senator Grassley, I guess I think it depends.

She cited as instances in which consultation "might be useful" 2 cases that IntLawGrrls have discussed -- Samantar v. Yousuf (2010), on foreign sovereign immunities (posts here, here, and here), and Hamdi v. Rumsfeld (2004), on executive detention (posts available here).
Sen. Tom Coburn (R-Okla.) (right), who often reminds that he is a doctor and not a lawyer, again questioned Kagan on the issue. Her reply:

KAGAN: ... I don’t think that foreign law is appropriate as -- as precedent or as an independent basis of support in, you know, the vast majority of legal questions.
Now, I suggested to you a few that specifically might reference international considerations, such as, you know, the right to receive ambassadors or something like that. Even there I think the citations would not be a precedent, they would not have binding weight of any kind, but -- but -- but they might be relevant to interpretation of -- of -- of...

Coburn's observation that "[t]he oath that you’ll take as a justice of the Supreme Court is to uphold the Constitution and our statutes" provoked a moment of levity:

KAGAN: Well, I think I agree with you on that, Justice -- Senator Coburn.
COBURN: Don’t worry. I will never get there.
(LAUGHTER)

As he had during the Sotomayor hearings, Sen. Charles E. Schumer (D-N.Y.) (right) again endeavored to inoculate the nominee against any attack-by-foreign-virus. His effort drew this notable exchange:

SCHUMER: Right. Do you know any law school that doesn’t have some kind of international law course in its curriculum?
KAGAN: I think that that would be unthinkable.

Agreed.

'Nuff said

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

So when can a claim of tariff-based discrimination prevail? In a social climate in which anyone can wear anything, apparel may not be the best target for a tariff discrimination case -- but one could envision hypotheticals involving gender-linked medicines or medical devices, or discrimination between products on the basis of links to religion.

-- Claire Kelly (right), Professor of Law and Associate Director, Dennis J. Bock Center for the Study of International Business Law, Brooklyn Law School, New York, in an ASIL Insight analyzing the rejection by the U.S. Court of Appeals for the Federal Circuit of a claim that the placement by the U.S. government of a 14% tax on the importation of men's gloves, compared with only 12.6% for women's, violates the equal protection guarantees of the U.S. Constitution. A petition for review of the decision, Totes-Isotoner Corp. v. United States, is pending before the U.S. Supreme Court.

Justice for Girls?

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

For over a century, concerns have been expressed about a ‘crime wave’ involving women and girls. Freedoms and greater equality for women were thought to be a cause. Recent concerns in the United States and Canada have, similarly, blamed perceived increases in crimes by girls on equality and equal opportunity. The only problem is that credible evidence of a ‘crime wave’ involving young girls does not exist.
More important than this phantom crime wave are credible data demonstrating that girls are being treated differently from boys by the youth justice systems of both Canada and the United States. Because the justice system’s response to girls is an understudied topic in most developed nations and it has never been the subject of transnational comparative assessment, the aim of Justice for Girls?, the 2009 monograph that I coauthored with Dr. Anthony N. Doob, was to review the social and legal developments in two countries, the United States and Canada, on the assumption that a comparative approach would help unravel the puzzles of girl crime and justice.
The separate justice systems for youths that were developed in the early 1900s in each country initially had very broad mandates and aimed simultaneously to divert youths from the adult system and to provide services to help ‘reform’ or ‘rehabilitate’ them. In both countries a disproportionate number of girls were brought into the system and sentenced to custody for non-criminal or ‘status’ offences. The stated goal, however, was not punishment: each country justified the inclusion of status offences as being a mechanism to accomplish rehabilitation. Although boys were much more likely to cause trouble in the community, girls, for most of the first two-thirds of a century of juvenile justice, appeared to be the special targets of rehabilitative interventions in both the United States and Canada.
In the 1960s the acceptability of placing status offenders in custody declined. In Canada, a 1965 federal report explicitly recommended removing status offences from the jurisdiction of the Act. But this was not accomplished until 19 years later. Although certain rights were addressed by the U.S. Supreme Court in the 1960s, federal legislative change related to status offences first occurred in the United States in the mid-1970s, with the enactment of the Juvenile Justice and Delinquency Prevention Act. Unlike in Canada, one of the key goals in the American 1974 Act was only to reduce the use of custody for status offences.
Avoiding intervention into the lives of troubled and troublesome children was difficult to accomplish in both countries. During the final quarter of the 20th century, both countries had developed mechanisms to ensure that youths could be placed in custody if they violated orders of the court. Offences were created:
► In the United States, the offence of ‘violating a valid court order’ (which could have been originally imposed for non-criminal behavior), and
► In Canada, the offence of ‘failing to comply with a disposition’ (in which a youth originally had to have been found guilty of an actual offence for which a normal sentence was imposed).
Each of these had the effect of allowing youths to be incarcerated for ‘normal’ youthful behavior – violating the edicts of their elders (in this case judges). Thus, both countries maintained what are, in effect, status offences, and used them somewhat disproportionately with girls. Minor offences and status offences continued to push girls into the justice system.
The constitutional differences between the United States and Canada make the comparison between the two countries more complex, yet also more interesting:
► The U.S. federal government obviously plays a limited role in juvenile justice legislation since the legislation is a state responsibility.
► In contrast, Canada’s youth justice legislation is a federal responsibility. With only one government responsible for youth justice legislation, it is not surprising that changes were more dramatic in Canada than in the United States.
During the latter half of the 20th century, the incarceration of girls in Canada and the United States declined slightly. However, since the 1970s the United States experienced an explosion in the use of imprisonment, while Canada experienced relative stability. In that context, it is remarkable that the United States saw a decline in the imprisonment of girls that was comparable to the best estimate of what was happening in Canada. What sets Canada apart from the United States is what happened after 1 April 2003, when Canada’s new youth justice legislation was enacted: a dramatic reduction, for both girls and boys, in the use of custody.
There are, however, still concerns that girls are more likely than boys to be incarcerated for very minor offending. In Canada the best existing data suggest that there are still more girls relative to women in custody, while in the United States there are slightly fewer girls relative to women in custody. Given that in both countries there are substantially fewer boys relative to men in custody, and that girls commit less serious offences and have less extensive criminal histories than boys, girls should not be seen in custody as much as they are – if the reason for incarcerating them is their offence and criminal record.
This two-nation comparison shows that the persistence of protectionist incarceration over time is a strong element in both nations despite the policy efforts to reduce it and the obvious progress that has been made. Until quite recently, the two nations did not differ substantially in their success in eliminating protective incarceration. However, in 2003 Canada’s new youth justice legislation had a dramatic effect in reducing the incarceration of girls. The allocation of political responsibility for juvenile justice in the United States does not allow federal legislation to have the same impact as the Canadian reforms of 2003. Nevertheless, changes in U.S. state systems could produce similar changes with similar impacts. The Canadian trends suggest that U.S. systems could reduce dramatically the incarceration of girls (and boys) – if there were a will to do so.

On June 29

On this day in ...
... 1972, in Furman v. Georgia, the U.S. Supreme Court ruled 5-4 that execution of petitioners would violate the constitutional ban on cruel and unusual punishment. The single-page per curiam opinion was followed by 200 pages of concurrences and dissents, resulting in a moratorim on executions but no clear direction regarding the future of capital punishment in the United States.

(Prior June 29 posts are here, here, and here.)

Court OKs counterterrorism tool

Yesterday the U.S. Supreme Court upheld a criminal ban on "material support" of "terrorism" first placed in the Federal Code in the 1990s.
Plaintiffs in Holder v. Humanitarian Law Project had argued that to include things like "expert advice" in the list of punishable "support" violated the 1st Amendment. Their bid for a declaratory judgment to that effect was rebuffed by the 6-member majority, which interpreted the ban to cover advice given in "connection" with a group whom the Secretary of State has designated a Foreign Terrorist Organization. The Opinion of the Court by Chief Justice John G. Roberts, Jr. stressed that the ruling was not intended to include speech that -- though it might favor goals also favored by such a group -- was made independently of any such group.
Justice Stephen G. Breyer read parts of his dissent from the bench. In his view, the majority deferred too much to the political branches, and thus gave short shrift to its constitutional duty to protect individual liberties. Joining his opinion were Justices Ruth Bader Ginsburg and Sonia Sotomayor (right). The latter joinder deserves particular note, for it marks a break by the newest Justice (herself a former prosecutor) from a counterterrorism policy of the President who nominated her.
The attorney who argued the case for the United States this past February (transcript here) is the subject of the post below: President Obama's current nominee to the bench, Solicitor General Elena Kagan.
My own take on the decision is here, published at The New York Times' "Room for Debate."

'Nuff said

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

The question I would ask is why it's so fashionable for nominees to suggest that the hard work of judging is simple; that the Constitution is no more complicated than the instructions for assembling an Ikea end table; and that the reason they are perfectly qualified for the job is that, well, they can read.

-- Dahlia Lithwick (above right), in a Slate commentary anticipating the hearings, set to begin next Monday, on the nomination of Solicitor General Elena Kagan (left) to the U.S. Supreme Court. (In addition to the post above, which mentions Kagan, check out SCOTUSblog's views on Kagan-as-likely-4th-ever-woman-Justice here.)

Lithwick's question was part of her analysis of a recent speech by ex-Justice David Souter (below right). With statements like that quoted below, Souter, who retired last Term (prior posts), challenged those who claim that all constitutional questions are susceptible to a "fair reading" -- his phrase for viewpoints that others might characterize as the originalist or the umpire mode of judging:

A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours clash, and when they do a court is forced to choose betwen them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.