DOCSLIB.ORG

Defunis V. Odegaard, Etc

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Defunis V. Odegaard, Etc (v(J.LI / Court Was.h ...Sup.reme. C.t. Voted on .................. , 19 .. Argued ................... , 19 .. Assigned .................. , 19 . No. 73-235 Submitted . ....... ...... , 19 .. Announced ................ , 19 . MARCO DE FUNIS, ET AL., Appellants vs. CHARLES ODEGAARD, PRESIDENT OF THE UNIVERSITY OF WASHINGTON, ET AL. /~i­ ~,,4_~/1/ fo a-dlZ~~ II 1 U-b·-tl~r..-t--1 \ w.- &;__;rv HOLD CERT. JURISDICTIONAL MERITS MOTION AB- NOT FOR 1----.--i----.-ST_A_T-,EMr-E_N_T..----+--.---l---.---ISENT VOT- o D N POST DIS AFF REV AFF 0 D ING Rehnquist, J . ..... .......... Powell, J ... .. ... ....... Blackmun, J ................. Marshall, J . ................. White, J ..................... Stewart, J ................... Brennan, J ................... Douglas, J .................... Burger, Ch. J .... ........... ,. October 12, 1973 JBO L b- ~ l>- ~ fl1 b1S- r ~~~~~~ ~~~.4.--~~ ~Lf2y~~ ' ~ ~ . ~~~~~'1~ 1~ LUo~~5 cf ~ ~~ lll<.J._ ~fy "-( 1/lu_ ~~~ 61~ ~s-f~~~ ~ &-/ ~ ~~ ~llLSCUSS C2-z_ -~ ~ ~ ~ G,._.,f, ~ ~ ~!uuf() ~ ~ ~ ~- .L-<.-- ~- ~~~c ·CI-~~J~ of~~:~~ ~~,'-'k-~~ o-r -~~~f-/ ~~ - ~ ~ ~ ~~~ ( pfd£:...,-:2-r_~/-r._.&~ ~~~~¥ ~1--r~of~ P~~~-z_~~, No. 73-235 SUPPLEMEMTAL MEMO De Funis, et al. v. Odegaard 1. I think this case is pro~~y ~ot. This is not a class action. The plaintiffs were the student, fuis wife an~s~. The student was, pursuant to the order of the state trial court, admitted to the law ~ school he desired to attend over a year ago. He may well graduate before this Court could hear this case. Given that De-- Funis-------....___ can no ___ longer_ __prove_ injury,--- I think--- he's the wrong plaintiff to assert the constitutional issue he wants to have resolved. -2- 2, This is not,. an appeal, No state stuatute is directly M1 involved. I suppose one could dream f up an ....__- argument that a state statute somewhere provides for (and delegates the power a. for) administration of the state school system, and this lawsuit indirectly at least involves that statute. But a reed that slender won't bear the weight. The Court should .. read its appeal jurisdi~n as narrowly as possible in light of today's case loads, So, no matter what your decision----- on whether to hear this case, dismiss------ it as not---- properly an appeal - and treat it as a cert. (The parties obviously saw this coming. The opening submission, for example, is styled "Jurisdictional Statement/or in the Alternative Petition foJcertiorari" )/ . 3, I would deny cert as well (thus my recommendation is to dismiss and deny). The Court has denied cert on similar .. issues before. See p. 7 of cert pool memo. If the Court wants to take one of these racially-benign/ compensatory cases, I would wait for one in the which the court below went the way of the dissent in this case, S ..ccr··1an Mr. Justice Stowart / Mr. Justice White Mr. Justice Mar'ih3.ll 2nd DRAFT Mr. JUG~iC" Bhclcmun__­ MJ.". Ju.,tloc Powell SUPREME COURT OF THE UNITED STAT~ · Jus ..ice Behnq_uist From:J Dou6las; J. MARCO DE FUNIS ET Ar.. v. CHARLES ODEGAARD, PRESIDENT OF THE UNIVERSITqiUF~late :· ______ WASHINGTON, ET AL. Reoiroulated: ON APPEAL FROM 'l'HE SUPREME COURT OF WASHINGTON. No. 7:3-2%. Drcidcd Non'mbcr -, 19i3 Mn. JusTICE DouGLAS. with whom MR. JusTICE BREN­ NAN concurs, dissenting. This is an appeal from the Washington Supreme Court brought by a student at the Law School of the University of Washington. The appellant was initially rejected for admission at the Jaw school after ·being placed upon the school's "waiting list." He then brought this action in state court, contending that, because of a law school policy of giving favorable treatment to applicants from minority groups, he "·as denied the equal protection of law. The appellant is white. The state trial court granted appellant relief, and issued an injunction com­ manding the law school to admit him. Because of this order he was admitted. Subsequently the Washington Supreme Court reversed the trial court, sustaining against the federal constitutional challenge the law school's admissions policy. I stayed the mandate of the Washington Supreme Court pending disposition of this appeal, and the appellant has therefore remained enrolled at the law school, where he is now completing his final year. 28 U. S. C. ~ 1257 (2) provides for appellate juris­ diction in this Court of state court decisions sustaining the validity of a state "statute" against a federal consti­ tutional challenge. But putting aside the question of whether the law school's admissions policy is a state "statute" for this purpose, see H amillon v. Regents, 293 U.S. 245 (1934), we could treat the papers as a petition 2 DE FU~IS v. ODEGAARD for certiorari and grant review on that basis. 28 U.S. C. § 2103. This is the course I would follow. The 11etition raises an important question of constitu­ tional la ''" which this court has not explicitly decided. The ]a\Y school. which has no history of de jure dis­ crimination, has voluntarily adopted a program under which minority applicants-Blacks, Chicanos, American Indians, and Filipinos-are treated separately in the admissions process and arc given special consideration. This may be a state sanctioned racial classification, carrying the heaviest possible presumption of unconsti­ tutionality under the Equal Protection Clause. Loving v. Virgim:a, 388 U.S. 1. 10-11 (1967). Yet the purpose of this program is to rectify the long history of discrimi­ nation "·hich has resulted in the chronic underrepresenta­ tion of these groups in the law school and the legal profession generally, and the court below observed that the goal of this policy "is not to separate the races, but to bring them together." We said in the context of Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16 (1971), that it would be within the broad discretionary authority of a school board to adopt such a policy to prepare students to live in a pluralistic society. The program adopted by the law school here is not unique; similar programs have been adopted by many other schools. Widely differing views have been expressed, compare O'Neill, Preferential Admissions Equalizing the Access of Minority Groups to Higher Education, 80 Yale L. J. 699 (1971), with Graglia, Special Admission of the "Culturally Deprived" to Law School, 119 U. Pa. L. Rev. 351 (1970). We should grant cer­ tiorari and put the case clown for argument and decide­ the important issues presented. <C· ;:In an Arizonn, cnse rai~ing a like question, Johnson v. Committee on Examinations, 407 U. S. 915, I dissented from denial of certiorari. ( Preliminary Memo ( ,_ October 19, 1973 Conference List 1, Sheet 1 No. 73-235 DE FUNIS, ET AL. Timely (Law School Appeal from the Applicant) Washington Supreme Court (Joint majority by Finley, v. Hamilton, Stafford, Wright, Lyttle, Utter; Wright, with ODEGAARD Stafford, concurring; Hale, (University of C .J., with Hunter dissent­ Washington ing; Hunter, with Hale, dis­ Officials) senting) - State Civil 1. The Washington Supreme Court (6-2) reversed a trial court judgment ordering appellees, University of Washington officials, to admit appellant as a first-year student at the University of Washington School of Law. This appeal presents I "----' the question whether a state law school may, consistent with the - 2 - Equal Protection and Due Process Clauses of the Fourteenth Amendment, give preference for admission solely on the basis of race to certain minority applicants to the exclusion of _I other qualified applicants. 2. FACTS: Appellant De Funis was one of 1,601 applicants for admission to the first year law school class of approximately 150 students entering in September 1971. Based upon a formula devised by the admission committee that takes into account LSAT scores, the applicant's junior senior grade. point average, and average writing test scores, appellant was assigned a Predicted First-Year Average (PFYA) of ~ He had a 3. 71 grade point average in a 4.0 system, a 582 average LSAT score, and an average writing test score of 61. (In addition, he was graduated from the University of Washington magna ~~ laude and Phi Beta Kappa; at the time of his application, he was working full-time and had earned 21 hours of straight A in graduate school, with three hours of incomplete.) Appellant's PFYA placed him in the middle group of applicants and just below those considered most promising with a PFYA of 77. Those with a 74.5 or lower PFYA were in the third and lowest priority group and were generally not given full consideration by the admissions committee. Nevertheless, 1/ - The Jurisdictional Statement also challenges this minority preference admissions policy on the ground that it violates 42 U.S.C. § 2000d, which prohibits discrimination or exclusion on the basis of race from any program or activity receiving federal financial assistance. Although appellants) claim that they raised the issue in- the state Supreme Court, that court never reached or decided the question. - 3 - 2/ all files of minority applicants were given special attention ,__..._ by the full committee, regardless of the PFYA. In its "Guide for Applicants," the law school noted that "[a]n applicant's racial or ethnic background was considered as one factor in our general attempt to conve r~- formal credentials into realistic predictions [of an] ••• applicant's ability to ---~-------- make significant contributions to law school classes and the community at la~ge," the general overall criterion for selection. J.S., at A-10. This policy reflected a University-wide policy which sought to eliminate the continued effects of past segregation and discrimination against these and other disadvantaged racial 3/ and ethnic minority groups. - In effectuating this policy, the admissions committee followed certain procedures that were the main focal point of appellants' attack.
Load more

Recommended publications
  • The Standing Doctrine's Dirty Little Secret
    Copyright 2012 by Northwestern University School of Law Printed in U.S.A. Northwestern University Law Review Vol. 107, No. 1 THE STANDING DOCTRINE’S DIRTY LITTLE SECRET Evan Tsen Lee & Josephine Mason Ellis ABSTRACT—For the last forty years, the Supreme Court has insisted that the standing doctrine’s requirements of imminent injury-in-fact, causation, and redressability are mandated by Article III of the Constitution. During that same time, however, the federal courts have consistently permitted Congress to relax or altogether eliminate those requirements in many “procedural rights” cases—ones in which a federal statute creates a right to have government follow a particular procedure, including to provide judicial review of agency decisions. This Article asks how best to rationalize this contradiction. After examining several possibilities, we conclude that the best course is to recognize openly that the Case or Controversy Clause of Article III means different things in different types of litigation. In one “tier”—cases where Congress has made it clear that it has created procedural rights that may be vindicated in court without meeting the usual injury, causation, and redressability requirements—the plaintiff should merely be required to show that he or she falls within the “zone of interests” the statute aims to protect. In all other cases—the other “tier”—existing Article III standing requirements would apply. AUTHORS—Evan Tsen Lee is Professor of Law and Associate Dean for Research, University of California, Hastings College of the Law. Josephine Mason Ellis is Law Clerk to the Honorable James L. Dennis, United States Court of Appeals for the Fifth Circuit (2012–2014); J.D., University of California, Hastings College of the Law; B.A., University of California, Berkeley.
    [Show full text]
  • In Joint Session With
    January 5, 2012 TO: Members of the Board of Regents Ex officio Representatives to the Board of Regents FROM: Joan Goldblatt, Secretary of the Board of Regents RE: Schedule of Meetings WEDNESDAY, JANUARY 11, 2012 3:30 p.m. 139 Gerberding HUB HARD HAT TOUR 5:30 p.m. President’s Residence DINNER FOR REGENTS, AND OTHER GUESTS THURSDAY, JANUARY 12, 2012 8:30 to 9:35 a.m. 142 Gerberding Hall ACADEMIC AND STUDENT AFFAIRS COMMITTEE: Regents Harrell (Chair), Barer, Cole, Gates, Knowles 9:45 to 10:35 a.m. 142 Gerberding Hall ACADEMIC AND STUDENT AFFAIRS COMMITTEE: Regents Harrell (Chair), Barer, Cole, Gates, Knowles in Joint Session with FINANCE, AUDIT AND FACILITIES COMMITTEE: Regents Smith (Chair), Brotman, Jewell, Simon 10:45 a.m. to 12:40 p.m. 142 Gerberding Hall FINANCE, AUDIT AND FACILITIES COMMITTEE: Regents Smith (Chair), Brotman, Jewell, Simon 1:00 p.m. Petersen Room REGULAR MEETING OF BOARD OF Allen Library REGENTS 2:15 to 4:00 p.m. Foege Building TOUR DEPARTMENT OF BIOENGINEERING To request disability accommodation, contact the Disability Services Office at: 206.543.6450 (voice), 206.543.6452 (TTY), 206.685.7264 (fax), or email at [email protected]. The University of Washington makes every effort to honor disability accommodation requests. Requests can be responded to most effectively if received as far in advance of the event as possible, preferably at least 10 days. 1.1/201-12 1/12/12 UNIVERSITY OF WASHINGTON BOARD OF REGENTS Academic and Student Affairs Committee Regents Harrell (Chair), Barer, Cole, Gates, Knowles January 12, 2012 8:30 to 9:35 a.m.
    [Show full text]
  • University of Washington Special Collections
    UNIVERSITY CHRONOLOGY 1850 to 1859 February 28, 1854 Governor Isaac Ingalls Stevens recommended to the first territorial legislature a memorial to Congress for the grant of two townships of land for the endowment for a university. (“That every youth, however limited his opportunities, find his place in the school, the college, the university, if God has given him the necessary gifts.” Governor Stevens) March 22, 1854 Memorial to Congress passed by the legislature. January 29, 1855 Legislature established two universities, one in Lewis County and one in Seattle. January 30, 1858 Legislature repealed act of 1855 and located one university at Cowlitz Farm Prairies, Lewis County, provided one hundred and sixty acres be locally donated for a campus. (The condition was never met.) 1860 to 1869 December 12, 1860 Legislature passed bill relocating the university at Seattle on condition ten acres be donated for a suitable campus. January 21, 1861 Legislative act was passed providing for the selection and location of endowment lands reserved for university purposes, and for the appointment of commissioners for the selection of a site for the territorial university. February 22, 1861 Commissioners first met. “Father” Daniel Bagley was chosen president of the board April 16, 1861 Arthur A. Denny, Edward Lander, and Charles C. Terry deeded the necessary ten acres for the campus. (This campus was occupied be the University until 1894.) May 21, 1861 Corner stone of first territorial University building was laid. “The finest educational structure in Pacific Northwest.” November 4, 1861 The University opened, with Asa Shinn Mercer as temporary head. Accommodations: one room and thirty students.
    [Show full text]
  • Baker V. Carr in Context: 1946-1964
    BAKER V. CARR IN CONTEXT: 1946-1964 Stephen Ansolabehere and Samuel Issacharoff1 Introduction Occasionally in all walks of life, law included, there are breakthroughs that have the quality of truth revealed. Not only do such ideas have overwhelming force, but they alter the world in which they operate. In the wake of such breakthroughs, it is difficult to imagine what existed before. Such is the American conception of constitutional democracy before and after the “Reapportionment Revolution” of the 1960s. Although legislative redistricting today is not without its riddle of problems, it is difficult to imagine so bizarre an apportionment scheme as the way legislative power was rationed out in Tennessee, the setting for Baker v. Carr. Tennessee apportioned power through, in Justice Clark’s words, “a crazy quilt without rational basis.”2 Indeed, forty years after Baker, with “one person, one vote” a fundamental principle of our democracy, it may be hard to imagine what all the constitutional fuss was about. Yet the decision in Baker, which had striking immediate impact, marked a profound transformation in American democracy. The man who presided over this transformation, Chief Justice Earl Warren, called Baker “the most important case of [his] tenure on the Court.”3 Perhaps the simplest way to understand the problem is to imagine the role of the legislator faced with the command to reapportion legislative districts after each decennial Census. Shifts in population mean that new areas of a state are likely to emerge as the dominant forces of a legislature. But what if the power to stem the tide were as simple as refusing to reapportion? It happened at the national level when Congress, realizing that the swelling tide of immigrant and industrial workers had moved power to the Northeast and the Midwest, simply refused to reapportion after the 1920 Census.
    [Show full text]
  • The Political Question Doctrine: Justiciability and the Separation of Powers
    The Political Question Doctrine: Justiciability and the Separation of Powers Jared P. Cole Legislative Attorney December 23, 2014 Congressional Research Service 7-5700 www.crs.gov R43834 The Political Question Doctrine: Justiciability and the Separation of Powers Summary Article III of the Constitution restricts the jurisdiction of federal courts to deciding actual “Cases” and “Controversies.” The Supreme Court has articulated several “justiciability” doctrines emanating from Article III that restrict when federal courts will adjudicate disputes. One justiciability concept is the political question doctrine, according to which federal courts will not adjudicate certain controversies because their resolution is more proper within the political branches. Because of the potential implications for the separation of powers when courts decline to adjudicate certain issues, application of the political question doctrine has sparked controversy. Because there is no precise test for when a court should find a political question, however, understanding exactly when the doctrine applies can be difficult. The doctrine’s origins can be traced to Chief Justice Marshall’s opinion in Marbury v. Madison; but its modern application stems from Baker v. Carr, which provides six independent factors that can present political questions. These factors encompass both constitutional and prudential considerations, but the Court has not clearly explained how they are to be applied. Further, commentators have disagreed about the doctrine’s foundation: some see political questions as limited to constitutional grants of authority to a coordinate branch of government, while others see the doctrine as a tool for courts to avoid adjudicating an issue best resolved outside of the judicial branch. Supreme Court case law after Baker fails to resolve the matter.
    [Show full text]
  • Establishment Clause Standing: the Otn Very Revolutionary Decision at Valley Forge William P
    Hofstra Law Review Volume 11 | Issue 1 Article 2 1982 Establishment Clause Standing: The otN Very Revolutionary Decision at Valley Forge William P. Marshall Maripat Flood Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Part of the Law Commons Recommended Citation Marshall, William P. and Flood, Maripat (1982) "Establishment Clause Standing: The otN Very Revolutionary Decision at Valley Forge," Hofstra Law Review: Vol. 11: Iss. 1, Article 2. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol11/iss1/2 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Marshall and Flood: Establishment Clause Standing: The Not Very Revolutionary Decisio ESTABLISHMENT CLAUSE STANDING: THE NOT VERY REVOLUTIONARY DECISION AT VALLEY FORGE William P. Marshall* & Maripat Flood** Establishment clause1 jurisprudence has traditionally involved a unique blend of substantive constitutional law issues and standing issues. Flast v. Cohen,2 for example, remains the only establishment clause case where the Supreme Court has granted standing to tax- payers. 3 In contexts other than taxpayer suits, such as the school prayer cases,4 the decisions of the Court evoked almost as much con- troversy with respect to the standing issues as they did with respect to the merits.5 * Assistant Professor of Law, DePaul University College of Law, Chicago. B.A., 1972, Pennsylvania; J.D., 1977, University of Chicago. ** Associate at Sidley & Austin, Chicago. B.A., 1976, University of Wisconsin; J.D., 1982, DePaul University College of Law.
    [Show full text]
  • Flast V. Cohen, 392 U.S
    AMERICAN CONSTITUTIONALISM VOLUME II: RIGHTS AND LIBERTIES Howard Gillman • Mark A. Graber • Keith E. Whittington Supplementary Material Chapter 8: The New Deal/Great Society Era—Individual Rights/Religion/Establishment Flast v. Cohen, 392 U.S. 83Flast 83 (1968) For most of American history, “taxpayer suits” were frowned on. Taxpayers could insist that their tax assessments were unconstitutional or illegal. In such cases, they could establish the standing necessary for a “case or controversy” under Article III by demonstrating a personal stake in the law, distinctive from other citizens who might not pay that particular tax or taxes at all. If they were successful, their tax payments were refunded. Taxpayers could not, however, challenge governmental expenditures simply because they were taxpayers. One reason for this practice was that governments rarely earmark taxes for specific expenditures. Hence, constitutional decision makers ruled that insufficient connections existed between the admittedly constitutional tax and the allegedly unconstitutional expenditure. More important, they also claimed, taxpayers do not suffer distinctive harms as taxpayers when governments spend money unconstitutionally. Should the federal government spend money when unconstitutionally procuring instruments for torture, for example, that decision equally affects all taxpayers and citizens. Standing, conventional accounts suggest, requires that plaintiffs demonstrate a particularized injury. In this view, the persons actually tortured are best positioned to develop the facts and arguments to present before courts and will benefit in a personal way from any favorable judicial order, unlike random taxpayers who happen to find their way into federal court. Such limitations on access to federal courts, strictly upheld, practically prevent all legal attacks on certain claimed constitutional wrongs.
    [Show full text]
  • Door-Closing" Doctrine: the Ulf L Faith and Credit Clause As Related to the Diversity Clause in Statute of Limitations Cases James W
    Washington and Lee Law Review Volume 11 | Issue 2 Article 3 Fall 9-1-1954 The edeF ral "Door-Closing" Doctrine: The ulF l Faith and Credit Clause as Related to the Diversity Clause in Statute of Limitations Cases James W. H. Stewart Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Conflict of Laws Commons Recommended Citation James W. H. Stewart, The Federal "Door-Closing" Doctrine: The Full Faith and Credit Clause as Related to the Diversity Clause in Statute of Limitations Cases, 11 Wash. & Lee L. Rev. 154 (1954), https://scholarlycommons.law.wlu.edu/wlulr/vol11/iss2/3 This Note is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. 154 WASHINGTON AND LEE LAW REVIEW [Vol. XI THE FEDERAL "DOOR-CLOSING" DOCTRINE* THE FULL FAITH AND CREDIT CLAUSE AS RELATED TO THE DIvERSITy CLAUSE IN STATUTE OF LIMITATIONS CASES JAMES W. H. STEwARTt II. Suit in the Federal Courts of the Forum The third problem* presented by the Wells case has never been "laid upon the table" by the Supreme Court and explored, and this, it is submitted, is the vice of the situation in regard to this problem. That problem is, whether in a diversity case a federal court must act in every instance as a "mirror" of the courts of the state within which the federal court sits and apply the conflict rules of that state, provided it would not be violative of the Constitution (Full Faith and Credit Clause in the Wells case) for the state courts to apply such rules.
    [Show full text]
  • Diversity Without Integration Kevin Woodson University of Richmond, [email protected]
    University of Richmond UR Scholarship Repository Law Faculty Publications School of Law 2016 Diversity Without Integration Kevin Woodson University of Richmond, [email protected] Follow this and additional works at: https://scholarship.richmond.edu/law-faculty-publications Part of the Civil Rights and Discrimination Commons, Education Law Commons, and the Law and Race Commons Recommended Citation Kevin Woodson, Diversity Without Integration, 120 Penn State L. Rev. 807 (2016). This Article is brought to you for free and open access by the School of Law at UR Scholarship Repository. It has been accepted for inclusion in Law Faculty Publications by an authorized administrator of UR Scholarship Repository. For more information, please contact [email protected]. Diversity Without Integration Kevin Woodson* Abstract The de facto racial segregation pervasive at colleges and universities across the country undermines a necessary precondition for the diversity benefits embraced by the Court in Grutter-therequirement that students partake in high-quality interracial interactions and social relationships with one another. This disjuncture between Grutter's vision of universities as sites of robust cross-racial exchange and the reality of racial separation should be of great concern, not just because of its potential constitutional implications for affirmative action but also because it reifies racial hierarchy and reinforces inequality. Drawing from an extensive body of social science research, this article explains that the failure of schools to achieve greater racial integration in campus life perpetuates harmful racial biases and exacerbates racial disparities in social capital, to the disadvantage of black Americans. After providing an overview of de facto racial segregation at America's colleges and making clear its considerable long-term costs, this article calls for universities to modify certain institutional policies, practices, and arrangements that facilitate and sustain racial separation on campus.
    [Show full text]
  • The Secret Life of the Political Question Doctrine
    Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2004 The Secret Life of the Political Question Doctrine Louis Michael Seidman Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/563 37 J. Marshall L. Rev. 441-480 (2004) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Constitutional Law Commons, Jurisprudence Commons, and the Law and Politics Commons THE SECRET LIFE OF THE POLITICAL QUESTION DOCTRINE LOUIS MICHAEL SEIDMAN· "Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be . made in this court."l The irony, of course, is that Marbury v. Madison, itself, "made" a political question, and the answer the Court gave was deeply political as well. As everyone reading this essay knows, the case arose out of a bitter political controversy,2 and the opinion for the Court was a carefully crafted political document-"a masterwork of indirection," according to Robert McCloskey's well­ known characterization, "a brilliant example of Chief Justice Marshall's capacity to sidestep danger while seemingly to court it, to advance in one direction while his opponents are looking in another. ,,3 The purpose of this essay is to explore the many layers of this irony. I will argue that despite all of the premature reports of its demise, the political question doctrine is as central to modern • Professor of Law, Georgetown University Law Center.
    [Show full text]
  • FEDERAL ELECTION COMMISSION V. AKINS Et Al. Certiorari to the United States Court of Appeals for the District of Columbia Circuit
    524US1 Unit: $U72 [09-06-00 17:28:15] PAGES PGT: OPIN OCTOBER TERM, 1997 11 Syllabus FEDERAL ELECTION COMMISSION v. AKINS et al. certiorari to the united states court of appeals for the district of columbia circuit No. 96±1590. Argued January 14, 1998ÐDecided June 1, 1998 The Federal Election Campaign Act of 1971 (FECA) seeks to remedy corruption of the political process. As relevant here, it imposes exten- sive recordkeeping and disclosure requirements upon ªpolitical commit- tee[s],º which include ªany committee, club, association or other group of persons which receivesº more than $1,000 in ªcontributionsº or ªwhich makesº more than $1,000 in ªexpendituresº in any given year, 2 U. S. C. § 431(4)(A) (emphasis added), ªfor the purpose of in¯uencing any election for Federal of®ce,º §§ 431(8)(A)(i), (9)(A)(i). Assistance given to help a particular candidate will not count toward the $1,000 ªexpenditureº ceil- ing if it takes the form of a ªcommunicationº by a ªmembership organi- zation or corporationº ªto its membersºÐas long as the organization is not ªorganized primarily for the purpose of in¯uencing [any individual's] nomination...orelection.º § 431(9)(B)(iii). Respondents, voters with views often opposed to those of the American Israel Public Affairs Com- mittee (AIPAC), ®led a compliant with petitioner Federal Election Com- mission (FEC), asking the FEC to ®nd that AIPAC had violated FECA and, among other things, to order AIPAC to make public the information that FECA demands of political committees. In dismissing the com- plaint, the FEC found that AIPAC's communications fell outside FECA's membership communications exception.
    [Show full text]
  • Weinberg, Rules of Decision Act Vs. Supremacy P
    Weinberg, Rules of Decision Act vs. Supremacy p. 860 Copyright © by Louise Weinberg *860 THE CURIOUS NOTION THAT THE RULES OF DECISION ACT BLOCKS SUPREME FEDERAL COMMON LAW* 83 Nw. U. L. Rev. 860 (1989) Louise Weinberg** Abstract This article served as a rebuttal in a date with my admired friend and colleague, Martin Redish. I tried to make the point that that, whatever the Rules of Decision Act meant when it was enacted, the Supremacy Clause and the post-Erie understandings, meant that federal case law was supreme federal law where it applied. It is the common experience of lawyers and judges that one does not disregard a Supreme Court decision on the federal question to which it applies, any more than one would disregard a decision of the Supreme Court of California on the California question to which it applies. The right law is the relevant law. *860 THE CURIOUS NOTION THAT THE RULES OF DECISION ACT BLOCKS SUPREME FEDERAL COMMON LAW* 83 Nw. U. L. Rev. 860 (1989) In the pages of this Review, Professor Martin Redish has tried to clarify his long-held view that nonstatutory federal law is illegitimate.1 COPYRIGHT 1989 BY LOUISE WEINBERG. ALL RIGHTS RESERVED. PERMISSION IS GRANTED TO * QUOTE WITH ATTRIBUTION UP TO 1000 WORDS. * RAYBOURNE THOMPSON PROFESSOR OF LAW, THE UNIVERSITY OF TEXAS. * COPYRIGHT 1989 BY LOUISE WEINBERG. ALL RIGHTS RESERVED. PERMISSION IS GRANTED TO * QUOTE WITH ATTRIBUTION UP TO 1000 WORDS. Weinberg, Rules of Decision Act vs. Supremacy p. 861 He now pitches his position, unequivocally but implausibly, on the Rules of Decision Act.2 However "legitimate"--indeed, ordinary and unavoidable--some writers may think the decision of federal questions under federal law, there are a good many people who somehow manage to share Professor Redish view to the contrary.
    [Show full text]