June 28, 2007 3:23 PM Posted By News Questions & comments 1

"if this is the birth of a new constitutional era . . . what an ugly baby"

Today, ACS hosted it's annual review of the Supreme Court Term.  In their closing remarks, several of the panel of six leading Supreme Court advocates and constitutional experts commented on this Term as the beginning of a new, conservative era in the Court's history.

Frequent Supreme Court litigator Tom Goldstein suggested that this Term began a rightward lurch as significant as the leftward shift of the Warren era:

So I would say that we’re probably going to look back on this term as if it were June 15, 1961 in reverse.  June 15, 1961 was the day that Mapp v. Ohio was decided. It was in effect the birth of the Warren court era, it was decided by a five vote majority.  They Court overruled Wolf vs. Colorado and applied the 4th amendment to the states.  And it started a whole trend of a series of cases from Reynolds and Sims to Frontiero. . . . all of the major doctrines that law students today think of as if they were written into the Constitution had their birth at the end of the term in 1961. 

Former Solicitor General Walter Dellinger lamented two of the Term's most significant decisions:

I just think the term’ll be marked by two cases that are historically tragic decisions.  I think the court has turned the corner on a jurisprudence that saw government control of women’s reproductive lives as a totalitarian intervention and was at the core of what we think of as liberty. And I think the school decisions were historically misguided because they conflate two uses of race that are so fundamentally different in such a hyper-technical way that belies common sense.  Brown condemned the system of southern racial apartheid, of domination and subordination.  The people of Louisville have worked together to try to come up with a system to keep people in the public school system.  They have refused to give up on the public schools.  They have worked across racial lines.  They know that they’re building upon a system of residential segregation which was created by federal, state and local governments.  And they know that just to choose that would be to perpetuate segregation.  They tried to bring the races together in public schools.  And that’s not the same thing that the court condemned in Brown. 

and Stanford Law Professor Pam Karlan closed the event with these thoughts:

[T]his term we saw the Court announce the first amendment applies to corporations, in the Wisconsin Right to Life case, but not to students, in the Bong Hits 4 Jesus case.  We saw the court announce that we should be deferential to state trial judges in criminal cases but not to democratically-elected local school boards in the schools cases.  So if this is the birth of a new constitutional era, all I say is what an ugly baby.


Written By:Kay Sieverding On July 9, 2007 12:54 PM

Do you think it is Deprivation of Rights Under Law and Witness Intimidation if the defense counsel ask to have a plaintiff put in jail unless he or she dismisses civil actions? What if you have no criminal record and are not on parole or probation, and a federal judge issues a warrant without the involvement of a government prosecutor and the warrant doesn’t state An Act of Congress, a crime, or probable cause and then the judge orders you held for weeks and brought by the Marshals across state lines?
““If the alleged contemnor puts in issue the alleged misconduct or the damages thereby occasioned, the alleged contemnor shall, upon demand therefor, be entitled to have oral evidence taken thereon TITLE 28 App. RULES TITLE XII Rule 86.2. Contempt” but I was told in court that I wasn’t allowed an evidentiary hearing.
“At the preliminary hearing, the defendant may cross-examine
adverse witnesses” Rule 5.1. Preliminary Hearing –what if you are not allowed to cross-examine adverse witnesses before you are sent to jail for 4 months?
“A warrant must...(B) describe the offense charged in the complaint”;
(federal rules of criminal procedure rule 4)” but the warrant lists “failure to appear in a civil matter”—that isn’t a federal offense is it unless one has been subpoened as a material witness to a crime?
“(Rule 4, both as proposed by the Supreme Court and as changed by the Committee, does not in any way authorize a magistrate to issue a summons or a warrant sua sponte) “Notes on Advisory Committee to the Rules 1974 Amendment.”—Doesn’t a sua sponte warrant mean without a government prosecutor or is an insurance defense lawyer good enough to have a federal warrant issued?
“an indictment or upon an information or complaint. In the latter case, proof of identity and proof of reasonable cause to believe the defendant guilty will have to warrant of removal.” COMMITTEE ON THE RULES 1944 –How could I be taken in chains 1200 miles after an assistant U.S. Attorney said in a hearing that the U.S. government was not a party to this? Can you be “guilty” of something that isn’t described in the criminal statutes?
“The warrant must conform to Rule 4(b)(1) except that it must
be signed by the clerk and must describe the offense charged in the
indictment or information.” Rule 9 Rules of Criminal Procedure….(B) if the defendant was arrested without a warrant, the district
court where the offense was allegedly committed must first issue a
warrant before the magistrate judge transfers the defendant to that district;” Rule 5. Initial Appearance”—Doesn’t this mean that if the warrant doesn’t describe a criminal offense charged that a criminal offense must be charged before a person can be transferred?
Do you think that a married woman has a right not to be strip searched against her will unless she is accused of a crime?


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