US Supreme Court – Page 2

Two very different stories in the media over the last few days have coalesced in my mind over the weekend. The first story is the announcement by the President of seven appointments to the Council of State. The second is the debate in the US about the recusal of Supreme Court Justices from forthcoming challenges to health care legislation.

The Council of State is established by Article 31 of the Constitution, and its primary role is “to aid and counsel the President”. The first meeting was convened by President Douglas Hyde on 8 January 1940, and a large painting of the event (pictured above left) by Simon Coleman hangs in Áras an Uachtaráin, in a reception room now called the Council of State Room. At the end of last week, the recently-elected President Michael D Higgins announced the appointment of Michael Farrell, Deirdre Heenan, Catherine McGuinness, Ruairí McKiernan, Sally Mulready, Gearóid Ó Tuathaigh, and Gerard Quinn to the Council.

Among the specific functions ascribed to the Council by the Constitution, Article 26.1.1 provides that the President may, after consultation with the Council of State, refer a Bill to the Supreme Court to determine whether the Bill is constitutional or not.…

Speech Art

2 December, 20092 December, 2009

| 2 Comments

| Blasphemy, Censorship, Freedom of Expression, US Supreme Court

Randall P Bezanson has just pubished another very important book on on Art and Freedom of Speech (University of Illinois Press, 2009), exploring the decisions of the US Supreme Court relating to artistic expression under the First Amendment. From the abstract:

… In considering the transformative meaning of art, the importance of community judgments, and the definition of speech in Court rulings, Bezanson focuses on the fundamental questions underlying the discussion of art as protected free speech: What are the boundaries of art? What are the limits on the government’s role as supporter and “patron” of the arts? And what role, if any, may core social values of decency, respect, and equality play in limiting the production or distribution of art?

Accessibly written and evocatively argued, Art and Freedom of Speech explores these questions and concludes with the argument that, for legal purposes, art should be absolutely free under the First Amendment–in fact, even more free than other forms of speech.

In matters that have recently featured on this blog, his views on blasphemy (discussed here) and treaspassory art (discussed here) will resonate with our recent blasphemy and Cowengate controversies.

Mark Tushnet has written an excellent discussion of Bezanson’s book.…

So, does Irish law now recognise a journalist source privilege?

2 August, 200927 April, 2022

| 5 Comments

| ECHR, Freedom of Expression, General, Irish cases, Irish Law, Irish Society, Journalists' sources, Law, US Supreme Court

As I wrote in my previous post, the Supreme Court in Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf)) allowed the appeal against the decision of the High Court in Mahon v Keena [2007] IEHC 348 (23 October 2007). Fennelly J delivered the judgment of the Court, in which Murray CJ and Geoghegan, Macken and Finnegan JJ concurred, and its effect is that two Irish Times journalists could decline to answer questions about their sources (unsurprisingly, there is a lot of coverage in that paper: see here, here, here, here and here).

1. Introduction
There are at least three important aspects to Fennelly J’s decision. The first relates to his almost exclusive reliance on the European Convention on Human Rights (ECHR), rather than the Irish Constitution. The second relates to his approach to the issues in general and to his treatment of the High Court judgment in particular: in short, he felt that the High Court had overstated the balance against the appellants. And the third relates to what he had to say about the nature of a journalist source privilege: in short, he preferred to avoid such language in favour simply of a balancing test.…

The original Brandeis brief

24 February, 200924 February, 2009

| 2 Comments

| judges, Law, US Supreme Court

Louis D Brandeis (left), as lawyer, and as judge of the US Supreme Court, championed such unpopular causes as freedom of speech, privacy and worker protection. Arising from his belief that law is a device to shape social, economic, and political affairs, one of his enduring legacies is what has become known as the Brandeis Brief: a legal argument which relies not only on legal argument but also on analysis of empirical data. It was first deployed by Brandeis in Muller v Oregon 208 US 412 (1908), where he marshalled statistics from medical and sociological journals which demonstrated overwork was inimical to the workers’ health to support his argument that legislation limiting hours for female laundry workers was constitutional. The Law School of the University of Louisville is named for Brandeis, and I learn from Dan Ernst on Legal History Blog that Louisville have now made the original Brandeis Brief available online.…

Recent speech cases

28 January, 200927 January, 2009

| No Comments

| ECHR, Freedom of Expression, US Supreme Court

From a European Court of Human Rights press release:

Orban v France (application no. 20985/05)

The Court held unanimously that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights on account of the applicants’ conviction for, among other offences, publicly defending war crimes, following publication of the book Services Spéciaux Algérie 1955-1957 (“Special Services: Algeria 1955-1957”) …

The Court considered that the applicants’ conviction amounted to interference with their right to freedom of expression. The interference had been prescribed by French law and had pursued the legitimate aim of preventing disorder or crime. The Court stressed above all that it was not for it to rule on the constituent elements of the offence of publicly defending war crimes, its role being confined to ascertaining whether the applicants’ conviction on account of the publication of the book in question could be said to have been “necessary in a democratic society”.

On the question whether the interference had been “necessary in a democratic society”, the Court observed first of all that the authorities had had only a limited margin of appreciation, circumscribed by the interest of a democratic society in enabling the press to impart information and ideas on all matters of public interest and guaranteeing the public’s right to receive them.

…

The first Monday in October

6 October, 200820 December, 2008

| No Comments

| judges, US Supreme Court

NPR

CNN

New York Times here and here

Washington Post here and here.

Full size image here.

Back row (l to r): Stephen Breyer, Clarence Thomas (is it significant that he’s looking to his right?), Ruth Bader Ginsburg, Samuel Alito.

Front Row (l to r): Anthony Kennedy, John Paul Stevens (is it significant that he’s looking a little uneasy?), Chief Justice John Roberts, Antonin Scalia, David Souter.

Let the games begin.…

Is DC v Heller a Roe v Wade for our times?

8 September, 200826 June, 2016

| 5 Comments

| Law, Politics, US Supreme Court

Every citizen should be a soldier. This was the case with the Greeks and Romans, and must be that of every free state.

For a people who are free, and who mean to remain so, a well-organized and armed militia is their best security.

Thomas Jefferson

In 1972, the Supreme Court of the United States decided Roe v Wade 410 US 113 (1973) (Findlaw | Justicia | Oyez | wikipedia), which held the Due Process Clause of the Fourteenth Amendment to the US Constitution protects the (penumbral) right to privacy, including a woman’s qualified right to terminate her pregnancy. It was a controversial decision which demonstrated that the Court was at the vanguard of the dominant public political mood. The Court was sharply divided; the case was decided on the basis of contestable constitutional theory; and it has subsequently given rise to a huge amount of analysis and scholarship, as well as much partisan social commentary and political scheming.

In 2008, the Supreme Court of the United States decided US v Heller 554 US __ (2008) (official pdf | Findlaw report) (Balkinization | Mike O’Shea on Concurring Opinions | NRA | Posner | ScotusWiki | Volokh | Wikipedia), which held that the Second Amendment to the US Constitution protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.…