September 2010

Cynthia Jones, a law professor at American University Washington College of law, said that the Supreme Court has struggled with cases involving criminal defendants and use of DNA evidence to prove their innocence. She noted a case that may move the high court to provide more guidance on the matter.

In Skinner v. Switzer, which the justices will hear oral argument in on Oct. 13, the high court is faced with a Texas death row inmate who is challenging a state law that bars him from forcing the state to test DNA evidence he says could prove he is innocent. Jones said the Supreme Court may have to deal again with the question of whether there are indeed "correctable flaws in the criminal justice system."

Cliff Sloan, partner at Skadden, Arps, Slate, Meagher & Flom, and a frequent commentator on the Supreme Court, discussed two First Amendment cases the high court will consider early in its term -- Snyder v. Phelps and Schwarzenegger v. Entertainment Merchants Assoc.

In Snyder the justices will consider whether the U.S. Court of Appeals for the Fourth Circuit correctly applied the First Amendment in setting aside a $5 million jury verdict against an anti-gay group led by Kansas preacher Fred Phelps. Phelps and members of his church have a longtime practice of picketing funerals of soldiers who have died in military action in Iraq and Afghanistan. Phelps alleges that America is advancing equal rights for gays and is being punished for doing so by God. After his church, which is largely made up of members of his extended family, picketed the funeral of Marine Lance Corporal Matthew Snyder in Maryland, his father, Albert, sued Phelps, winning the $5 million jury verdict. Sloan also noted Schwarzenegger v. Entertainment Merchants Assoc., involving a federal court striking down a California law barring the sale of violent video games to minors. He said was not surprised that the high court would hear a case involving a federal court invalidating a state law.

Video of the entire panel discussion is available here or by clicking the picture. Moderated by University of Southern California law school professor Rebecca Brown, the panel also included David Fredrick, partner, Kellogg, Huber, Hansen, Todd, Evans & Figel, Michael A. Carvin, partner, Jones, Day, Cyrus Mehri, founding partner, Mehri & Skalet, Jennifer Chang, staff attorney, ACLU Immigrants' Rights Project, and Paul R. Q. Wolfson, partner, WilmerHale.

The average lifespan of constitutions around the world since 1789 is 17 years, Stanford Law School professor and ACS Board member Pamela Karlan told an audience this week during a debate on constitutional interpretation, in celebration of the U.S. Constitution's 223rd anniversary.

Our constitution has endured as long as it has because our interpretational methods are adaptable to changes in cultural norms, she explained during the event, which was centered on Keeping Faith with the Constitution, the book she coauthored with Goodwin Liu and Christopher Schroeder. Keeping Faith was first published by ACS last year and republished this summer by Oxford University Press with a new chapter on the First Amendment.

Debating Karlan was Georgetown University law professor and Federalist Society member Nicholas Quinn Rosenkranz, who challenged Karlan's assertion that present understandings can help us interpret phrases and words in the Constitution.

"The Constitution was not just made by courts interpreting the Constitution or by people changing the words in the Constitution by amendment, but also by people who gave the Constitution life," Karlan explained.

Slate Senior Editor Dahlia Lithwick, who moderated the panel, said in re-reading Keeping Faith, she "came away with the stunning, chilling feeling that, man, the Constitution is cool."

President Barack Obama thinks so, too. In a proclamation declaring Sept. 17, 2010 Constitution Day and Citizenship Day, he said, "In the United States, our Constitution is not simply words written on aging parchment, but a foundation of government, a protector of liberties, and a guarantee that we are all free to shape our own destiny. As we celebrate this document's profound impact on our everyday lives, may all Americans strive to uphold its vision of freedom and justice for all."

During Constitution Week ACS has continued its tradition of teaching a new generation of students about our founding document through the Constitution in the Classroom program.

But this year, ACS has also sought to raise the public's awareness about the danger that unfilled judicial vacancies on the federal bench pose to our constitutional form of government. In an op-ed in The Huffington Post, ACS Executive Director Caroline Fredrickson wrote that the critical number of vacancies, and the Senate obstruction that has perpetuated those vacancies, "threatens the vitality of our founding document."

Karlan also spoke earlier this year about the importance of a robust, qualified and independent judiciary to uphold our Constitution.

View Karlan's remarks during the 2010 ACS National Convention here, and the Karlan/Rosenkranz debate here.