Randy Barnhart

Podcasts on US Supreme Court Landmark Cases

The US Courts Website now has a series of podcasts on landmark cases by the US Supreme Court which have shaped our  history and continue to affect American political and legal life. Each podcast briefly discusses a different case with a law professor. The case's background is explained, the key arguments summarized, the ultimate decision is discussed, with comments on why the case remains relevant today.

Thus far, two podcasts are up, one on Mapp v Ohio (1961), and another on Texas v. Johnson (1989). More podcasts will be added in the coming months. An excellent resource, and you can download the podcasts and get them on your iPod.

Is this art? US Supreme Court as Art Critic!

You of course can form your own opinion. Is this art? And, does the 1st Amendment protect only "great" works of art, you know, like Michelangelo? Apparently, the local zoning ordinances of the central Texas town of San Marcos compelled the authorities thereof to order that this junked Oldsmobile, er ..., creative repurposing of a vintage car, be removed from public view.

According to the Supreme Court Insider:

Debate over the artistry of Cezanne and Matisse, Stravinsky and Brancusi, is not the stuff of which Supreme Court briefs are usually made.

But there the artists are, front and center in an amicus curiae brief filed to support a cert petition in the case of Kleinman v. City of San Marcos, Texas, that the justices are considering later this month.

"It was a lot more fun to write than the average brief," said David George, partner at Connelly Baker Wotring in Houston, author of the brief filed on behalf of artists' groups and individuals as well as Texas Accountants and Lawyers for the Arts.

The summary of the amici's argument in their petition for certiorari is as follows:

The Fifth Circuit held that only “great” art is
entitled to First Amendment protection. While the
court also considered – out of an abundance of caution
– whether the artwork could be banned if it had First
Amendment protection, its holding that only “great”
art is entitled to First Amendment protection is
binding on all courts within that circuit.

The Fifth Circuit’s test will require courts to act
as art critics and determine whether the artwork in
question is suitably great to be entitled to First
Amendment protection. History shows that it is
difficult to determine whether artists and art are
great. History is replete with examples of artists who
were denigrated during their time, but who are
regarded as great today.

By limiting First Amendment protection to only
“great” art, the Fifth Circuit improperly bases constitutional
rights on a court’s subjective aesthetic
judgment. This Court has warned that, in the First
Amendment area, subjective judgments can be a
public rationalization of an improper decision. Under
the Fifth Circuit’s test, there is a danger that
government-approved art will receive First Amendment
protection, while art that is not in favor will be
deemed “not great,” thus falling outside the First
Amendment.

This Court should grant certiorari and hold that
all works of art – wherever they may fall on the
spectrum between ordinary and “great” – are fully
protected by the First Amendment because they have
some expressive content.

Weigh-in all you art critics...

History Through A Supreme Court Justice's Lens

Excerpt from an NPR article (link follows):

U.S. Supreme Court Justice Stephen Breyer has sparred for years with Justice Antonin Scalia on the printed pages of legal opinions. The two have even debated about constitutional interpretation in public. And now Justice Breyer has taken his argument to the printed pages of a book written for popular consumption.

In his first interview about the new book, Breyer's targets are the ideas of originalism and textualism advocated by Scalia — the notion that the framers of the Constitution meant what they said and no more — and that the provisions of the Constitution are limited to what they covered back in 1789.

Breyer's book, Making Our Democracy Work, A Judge’s View, is a combination of history and legal philosophy. It argues that there are no easy, color-by-the-numbers answers to many legal questions and that to suggest there are is an illusion.

via www.npr.org

This book by a sitting justice is perhaps worth more than all the blabber by the politicians every time they have to vote on a Supreme Court nominee. I may get this on my iPad.

From amazon: "Justice Breyer discusses what the Court must do going forward to maintain that public confidence and argues for interpreting the Constitution in a way that works in practice. He forcefully rejects competing approaches that look exclusively to the Constitution’s text or to the eighteenth-century views of the framers. Instead, he advocates a pragmatic approach that applies unchanging constitutional values to ever-changing circum-stances—an approach that will best demonstrate to the public that the Constitution continues to serve us well. The Court, he believes, must also respect the roles that other actors—such as the president, Congress, administrative agencies, and the states—play in our democracy, and he emphasizes the Court’s obligation to build cooperative relationships with them."

Forget the Supreme Court; It's the District Courts That Count

Sure, the US Supreme Court construes the Constitution in ways which affect American life.  And that is so whether Justice Kennedy, the fulcrum on the high court, tilts toward the conservative bloc or the liberal bloc. Justice Stevens (pic, left) has retired, and President Obama's nominee, Elena Kagan (pic, right), currently Solicitor General of the United States, presumptively will preserve the precarious "ideological" balance (although she is much closer to center court and the Kennedy fulcrum than was Justice Stevens. Here's some White House PR on Kagan.

As one writer for the New York Times recently noted:

The modern war over the Supreme Court arguably began in 1987, when the selection of Robert H. Bork touched off a clash that continues to this day. Ever since his nomination collapsed in an angry ideological confrontation, conservatives and liberals have mobilized forces with regularity to advance or tear down would-be justices.

The true war is at the trial level, and there, in the trenches of litigation, what the country sorely needs are top US District Court judges, smart men and women (well-paid) who don't play favorites, who exercise fair and reasoned discretion in their rulings. Reversing (in the US Courts of Appeal) an abuse of discretion which fatally cripples a case or cause is almost as difficult as getting cert granted by the US Supreme Court, Kagan or no Kagan.