Event announcement: April 17 panels on South Dakota v. Wayfair

Event announcement: April 17 panels on South Dakota v. WayfairOn April 17 from 1 p.m. to 3 p.m., the Retail Industry Leaders Association will host two panels discussing South Dakota v. Wayfair, which will have been argued that morning. The first panel is titled, “From Quill to WayFair – How We Got Here” and will feature Deb Peters and Joe Crosby. The second will […]

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Event announcement: April 17 panels on South Dakota v. Wayfair

On April 17 from 1 p.m. to 3 p.m., the Retail Industry Leaders Association will host two panels discussing South Dakota v. Wayfair, which will have been argued that morning. The first panel is titled, “From Quill to WayFair – How We Got Here” and will feature Deb Peters and Joe Crosby. The second will be a discussion and analysis of the oral argument, featuring Deborah White and Eric Citron. Both panels will be moderated by Bernie Becker. More information, including instructions on how to RSVP, is available here.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. ]

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Event Announcement: South Dakota v. Wayfair Webinar on April 17

Event Announcement: South Dakota v. Wayfair Webinar on April 17On April 17 at 1 p.m., the State and Local Legal Center will host a webinar titled, “Internet Sales Tax: From 1967 to Oral Argument in South Dakota v. Wayfair.” The webinar will feature Tillman Breckenridge and Bailey Glasser discussing what happened at oral argument earlier that morning. Registration instructions and more information are available […]

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Event Announcement: South Dakota v. Wayfair Webinar on April 17

On April 17 at 1 p.m., the State and Local Legal Center will host a webinar titled, “Internet Sales Tax: From 1967 to Oral Argument in South Dakota v. Wayfair.” The webinar will feature Tillman Breckenridge and Bailey Glasser discussing what happened at oral argument earlier that morning. Registration instructions and more information are available here.

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Event Announcement: Voting Rights Panel in Washington on March 21

Event Announcement: Voting Rights Panel in Washington on March 21On Wednesday, March 21, at 6 p.m., the Lawyers’ Committee for Civil Rights Under Law will host a panel entitled, “Voting Rights & the Supreme Court: What’s at Stake This Term.” Speakers include Jon Greenbaum, Will Consovoy and Debo Adegbile; Amy Howe will moderate the panel. There will be a reception beforehand starting at 5:30 […]

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Event Announcement: Voting Rights Panel in Washington on March 21

On Wednesday, March 21, at 6 p.m., the Lawyers’ Committee for Civil Rights Under Law will host a panel entitled, “Voting Rights & the Supreme Court: What’s at Stake This Term.” Speakers include Jon Greenbaum, Will Consovoy and Debo Adegbile; Amy Howe will moderate the panel. There will be a reception beforehand starting at 5:30 p.m. More information, including registration instructions, is available here.

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Thurgood Marshall remembered by Justice Kagan and other former clerks

Thurgood Marshall remembered by Justice Kagan and other former clerks“His voice is still in my head,” Justice Elena Kagan told the audience on Tuesday when asked how her former boss, Justice Thurgood Marshall, had affected her life. Kagan, along with three other former Marshall clerks, described a justice who demanded much from his clerks, but gave his time and knowledge generously in return. They […]

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Thurgood Marshall remembered by Justice Kagan and other former clerks

“His voice is still in my head,” Justice Elena Kagan told the audience on Tuesday when asked how her former boss, Justice Thurgood Marshall, had affected her life. Kagan, along with three other former Marshall clerks, described a justice who demanded much from his clerks, but gave his time and knowledge generously in return. They also remarked on the peculiarity of working for, as one panelist put it, “not just a regular Supreme Court justice, but a living legend.”

In addition to Kagan, the event, which was hosted by the Supreme Court Historical Society, featured Harvard Law School professor Randall Kennedy, Judge Paul Engelmayer of the U.S. District Court for the Southern District of New York, and Judge Douglas Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit, who also moderated the panel.

The evening was filled with reminiscences about working for Marshall. The former clerks recalled Marshall’s fierce commitment to his values and his dogged pursuit of what he believed was right. As an example, Kagan pointed to Kadrmas v. Dickinson Public Schools, a case involving a schoolgirl in rural Kansas whose family had to pay for her to take a bus to a school 15 miles away and who challenged the fee structure as a violation of the Constitution’s equal protection clause. Kagan told Marshall that it would be difficult for the schoolgirl to win, because the court’s prior cases suggested that the fee structure would be upheld under a lenient standard of review. Marshall rejected her analysis immediately; Kagan explained that he believed he was on the court to “make sure that people like Kadrmas got to school every day, and he was going to do what he could to make that happen.”

Kennedy told the story of Batson v. Kentucky, in which the court ruled that peremptory challenges used by prosecutors to strike jurors based solely on their race are unconstitutional. Kennedy explained that the court only agreed to hear Batson after Marshall had filed dissent after dissent from the court’s denial of certiorari in similar cases. Even after his colleagues finally agreed to hear the case and adopted his position, Marshall wrote a concurring opinion, arguing that the court wasn’t going far enough. Kennedy explained that Marshall’s willingness to constantly “push the envelope is what I admired about him.”

Engelmayer remembered City of Richmond v. J.A. Croson Co., in which the court ruled that Richmond’s plan to ensure that a certain percentage of construction contracts were awarded to minority-owned businesses was unconstitutional. Marshall was very distressed by the outcome and instructed his clerks to point out in his dissent the irony of the former capital of the Confederacy’s attempting to do something progressive and being shut down.

Marshall’s convictions would sometimes take him to surprising places. Kagan recalled Torres v. Oakland Scavenger Co., in which a group of Hispanic employees lost an employment discrimination case. Jose Torres’ name was left off the subsequent notice of appeal because of a clerical error, so he was unable to take part in the appeal. Marshall’s clerks believed that Torres should win, but Marshall ended up overruling them and writing the Supreme Court’s 8-1 decision against Torres. Kagan explained that “playing by the rules was one of the most important principles for [Marshall],” even if doing so produced undesirable results.

The panelists traced much of Marshall’s ideology to his time crisscrossing the Jim Crow south as an attorney for the NAACP. Engelmayer noted that it took a great deal of physical courage to work as a defense attorney representing black people in the south. He recalled Marshall telling stories of being moved between houses in the middle of the night for his protection and taking note of who was sleeping closest to windows in case a bomb was thrown into the room. According to the panelists, these experiences influenced Marshall’s decision to dissent in every capital case that came before the Supreme Court, because he had represented many black defendants who were executed or lynched.

Though Marshall witnessed many painful things in his career, each former clerk agreed that humor was one of the justice’s defining characteristics. During a discussion of the death penalty, Kagan remembered, Marshall declared that when one of his clients was sentenced to life in prison rather than condemned to death, “he absolutely knew that the guy was innocent.” Each former clerk described his or her first conversation with Marshall, all following a similar pattern. In Kagan’s case, Marshall called and asked, “So, you want a job?,” to which Kagan replied, “I’d love a job.” Marshall deliberately misheard her and replied, “Oh, so you have a job?” This kind of back and forth continued until Marshall warned his future clerks to prepare to write dissents, and then hung up.

During deliberations over a case, Marshall would tease and joke with his clerks. Kennedy once told Marshall that if he ruled the way he was intending, he would contradict one of his own earlier decisions. In response, Marshall asked Kennedy, “Do I have to be a damned fool all my life?” Likewise, Kagan recalled that, when told that he had to rule one way or another, Marshall often retorted: “There are only two things that I have to do: stay black and die.”

Clerking for Marshall was demanding and stressful, but the clerks were all able to step back and realize how much their boss meant to others. For Engelmayer, one such moment came when the justice took his clerks out for lunch. As their group walked into the dining room, everyone fell silent and stood up until Marshall motioned for them to sit down. Kennedy remarked on how intimidated he was when he first met Marshall face to face, in large part because he grew up hearing his father repeat a story about seeing Marshall argue a case in South Carolina challenging an all-white primary election. To Kennedy’s father, hearing Marshall referred to as “Mr. Marshall,” a title seldom given to black men in the Jim Crow south, made a lasting impression. At the end of Kennedy‘s clerkship, his father was able to meet Marshall and tell him about that argument in South Carolina.

Kagan closed the evening on a lighthearted note. On the last day of her clerkship, when Kagan’s parents came to the court, Marshall was nicer than he had been all year. “That was the only time I knew that he liked me,” she said.

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Event announcement: Justice Breyer to speak at UVA Law on March 1

Event announcement: Justice Breyer to speak at UVA Law on March 1On Thursday, March 1, at 1 p.m., Justice Stephen Breyer will speak at the University of Virginia Law School about his 2015 book, “The Court and the World: American Law and the New Global Realities.” More information is available here, and the event will also be live-streamed on UVA Law’s Facebook page.

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Event announcement: Justice Breyer to speak at UVA Law on March 1

On Thursday, March 1, at 1 p.m., Justice Stephen Breyer will speak at the University of Virginia Law School about his 2015 book, “The Court and the World: American Law and the New Global Realities.” More information is available here, and the event will also be live-streamed on UVA Law’s Facebook page.

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Event Announcements: New Book on Justice Scalia

Event Announcements: New Book on Justice ScaliaIn March, Richard Hasen will hold a series of conversations on his new book, “The Justice of Contradictions: Antonin Scalia and the Politics of Disruption”: With Kate Shaw at Cardozo School of Law in New York, on March 5 at 12 p.m., details here. With Joan Biskupic at the Brennan Center for Justice, also in […]

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Event Announcements: New Book on Justice Scalia

In March, Richard Hasen will hold a series of conversations on his new book, “The Justice of Contradictions: Antonin Scalia and the Politics of Disruption”:

  • With Kate Shaw at Cardozo School of Law in New York, on March 5 at 12 p.m., details here.
  • With Joan Biskupic at the Brennan Center for Justice, also in New York on March 5, at 6:30 p.m., details here.
  • With Sue Bloch and Adam Liptak at Georgetown University Law Center in Washington, D.C., on March 6 at 12:15 p.m., details here.
  • With Dan Urman at Northeastern University in Boston, on March 15 at 6 p.m., details here.
  • With Adam Winkler at UC Irvine School of Law in Irvine, Calif., on March 20 at 5:30 p.m. PST, details here.
  • With Erwin Chemerinsky at the Library Foundation of Los Angeles, on March 28 at 12:30 p.m. PST, details here.

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Event announcement: SLLC Supreme Court midterm webinar

On March 15 at 1 p.m., the State and Local Legal Center will host a Supreme Court midterm review webinar. Speakers include Loren AliKhan, Charles Rothfield and Kenneth Jost. More information, including registration instructions, is available here.
The …

Event announcement: SLLC Supreme Court midterm webinar

On March 15 at 1 p.m., the State and Local Legal Center will host a Supreme Court midterm review webinar. Speakers include Loren AliKhan, Charles Rothfield and Kenneth Jost. More information, including registration instructions, is available here.

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Event Announcement: WLF panel on OT 2017 at midpoint

Event Announcement: WLF panel on OT 2017 at midpointOn February 14 at 1 p.m., the Washington Legal Foundation will host a panel discussion entitled, “High Court Halftime: The U.S. Supreme Court’s October Term 2017 at Midpoint.” Panelists include Mark Perry, Catherine Carroll and Kevin McDonald; Amy Howe will moderate. The event will be live streamed at www.wlf.org and those interested in attending should […]

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Event Announcement: WLF panel on OT 2017 at midpoint

On February 14 at 1 p.m., the Washington Legal Foundation will host a panel discussion entitled, “High Court Halftime: The U.S. Supreme Court’s October Term 2017 at Midpoint.” Panelists include Mark Perry, Catherine Carroll and Kevin McDonald; Amy Howe will moderate. The event will be live streamed at www.wlf.org and those interested in attending should RSVP to glammi@wlf.org.

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Event Announcement: Denver Conference on the Supreme Court and Patent Reform

Event Announcement: Denver Conference on the Supreme Court and Patent ReformOn January 25 from 2:00 p.m. to 6:30 p.m., Silicon Flatirons will hold a conference titled, “The Supreme Court and Patent Reform” at the offices of Holland and Hart in Denver. Speakers include Mark Lemley, Michael Holden and Suzanne Michel; Phil Weiser will moderate a panel discussion focused on the Supreme Court. More information about […]

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Event Announcement: Denver Conference on the Supreme Court and Patent Reform

On January 25 from 2:00 p.m. to 6:30 p.m., Silicon Flatirons will hold a conference titled, “The Supreme Court and Patent Reform” at the offices of Holland and Hart in Denver. Speakers include Mark Lemley, Michael Holden and Suzanne Michel; Phil Weiser will moderate a panel discussion focused on the Supreme Court. More information about the conference, including registration details, is available here.

 

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Forgotten Founder: William Ewald on Justice James Wilson, the Constitution and the Declaration of Independence

Forgotten Founder: William Ewald on Justice James Wilson, the Constitution and the Declaration of IndependenceDespite signing both the Declaration of Independence and the Constitution and being one of six original justices appointed to the Supreme Court, James Wilson is not often thought of as a leading light among America’s founders. One explanation for this is that Wilson’s time on the Supreme Court was not especially noteworthy; only nine cases […]

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Forgotten Founder: William Ewald on Justice James Wilson, the Constitution and the Declaration of Independence

Despite signing both the Declaration of Independence and the Constitution and being one of six original justices appointed to the Supreme Court, James Wilson is not often thought of as a leading light among America’s founders. One explanation for this is that Wilson’s time on the Supreme Court was not especially noteworthy; only nine cases were heard during his tenure. In fact, Wilson may be best remembered for being the first and only Supreme Court justice to be jailed while on the court. He spent time in two separate debtor’s prisons in the late 18th century before dying in 1798 at the age of 55.

Professor William Ewald, in a lecture last week to the Supreme Court Historical Society, illuminated Wilson’s significant role in the drafting and modern understanding of the Constitution and Declaration of Independence. Justice Elena Kagan introduced Ewald after recounting how he was recommended to her by Elizabeth Warren, then a law professor at the University of Pennsylvania. Kagan came to realize that Ewald’s academic prowess proved “Senator Warren right, as she always is.” Realizing the implication of what she had said, Kagan quickly added, “in matters like that.”

Wilson was born and educated in Scotland before coming to Pennsylvania in 1765 at the age of 23. He would apprentice for John Dickenson before playing a leading intellectual role in the American Revolution. Ewald’s lecture focused on Wilson’s impact on both the Constitution and Declaration of Independence. Ewald explained that the popular misunderstanding of Wilson is due in part to the limited records he left behind. Unlike other Founding Fathers’ surviving papers, which were politically significant and were later preserved and analyzed, many of Wilson’s are remarkably banal financial documents and contracts, while other papers were destroyed.

Wilson’s influence on the Constitution was fairly straightforward. He was the principal drafter and perhaps the driving force on the Committee on Detail, which filled in the gaps in the broad constitutional framework agreed upon at the 1787 convention. Ewald pointed out that the committee did far more than just fill in legal technicalities: It provided the enumeration of federal powers and supremacy clauses in Article I, designed much of the presidency and defined the jurisdiction of the federal courts. The vast majority of the committee’s work went directly into the final Constitution without significant revisions from the convention at large.

Wilson himself proposed, with fellow delegate Roger Sherman, the infamous Three-Fifths Compromise between northern and southern states, under which each slave was counted as three-fifths of a person in calculating the population of a state to apportion congressional representation. Ewald explained in a follow-up email that James Madison had originally proposed that rate of counting slaves relative to the free population for purposes of taxation, and that Wilson, an opponent of slavery, suggested using the formula for representation as well. Ewald explained the decision as pragmatic; “the Convention would have come to a rapid end if [Wilson] had pushed for abolition,” he wrote.

According to Ewald, the Constitution that was enacted and ratified may have resembled Wilson’s preconception of it more closely than those of the other Founding Fathers. The final document had a stronger central government than Southern delegates like Thomas Jefferson and Madison desired, yet was more democratic and egalitarian than Alexander Hamilton preferred. Wilson was, for example, a major proponent of the principle of “one-man-one-vote.” Nonetheless, Ewald cautioned against calling Wilson, or anyone else, “the Father of the Constitution,” because the document was far too complex for any one person to have been its prime mover.

If Wilson’s role in the drafting of the Constitution was clear and well established at the time, his role in the Declaration of Independence was obscured in the revolutionary era. Yet Wilson was well ahead of his contemporaries in understanding how the document would evolve over the course of American history. Wilson did sign the Declaration, but he was not a member of the “Committee of Five” that drafted the document. His influence can be traced to a 1774 pamphlet titled “Considerations on the Nature and Extent of the Legislative Authority of the British Parliament,” in which he argued, in what was then a radical stance, that Parliament did not have authority over the American colonies.

One of Wilson’s core arguments was:

All men are, by nature, equal and free: no one has a right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it: such consent was given with a view to ensure and to increase the happiness of the governed, above what they could enjoy in an independent and unconnected state of nature. The consequence is, that the happiness of the society is the first law of every government.

Ewald noted that is it clear that Jefferson, who copied other passages from Wilson into his own writings, used Wilson’s words as a direct source for the famous line in the Preamble to the Declaration of Independence, which in Jefferson’s rough draft read: “We hold these truths to be sacred & undeniable; that all men are created equal and independent, that from that equal creation they derive rights inherent & inalienable, among which are the preservation of life, & liberty & the pursuit of happiness.”

But, Ewald explained, the concept of America being founded on the basis of human freedom and equality was not especially important to most of the Founding Fathers. Jefferson never used the phrase “created equal” in any of his writings from 1776 until his death in 1826. The same is true for George Washington, Madison, Hamilton, John Adams and many other Founding Fathers. In fact, the phrase was seldom used in American discourse before the middle of the 19th century, when the abolitionists began citing it to justify ending slavery. Of course, it is now part of perhaps the most iconic line in the Declaration of Independence, a shift that Ewald cited to argue that the Declaration can only be analyzed as a living document.

Wilson, however, was well ahead of his peers in understanding the importance of human equality in the American Revolution. During the Pennsylvania debates over whether or not to ratify the Constitution, Wilson quoted the entire second sentence of the Declaration of Independence and added, “[T]his is the broad basis on which our independence was placed; on the same certain and solid foundation this system [of the US Constitution] is erected.” According to Ewald, Wilson intended to draw an explicit link among the Declaration, human equality and the Constitution, which no other delegate did during any ratification debates.

Why was Wilson so far ahead of his contemporaries? Ewald argued that the answer could lie in Wilson’s Scottish roots, which were unique among the great thinkers of the Revolution. Scotland still thought of itself as a colony of England in the 18th century, when Wilson was growing up and being educated. In Ewald’s view, Wilson’s “different philosophical [and] analytical background” may have engendered his radical view of the egalitarian basis for America’s founding.

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