Volume 24, Issue 1
Volume 24, Number 1 Fall 1996
Supreme Court Voting Behavior: 1995 Term (page 1)
By Richard G. Wilkins, Matthew K. Richards and Scott Worthington
This Article, the eleventh in a series, attempts through statistical analysis to determine whether individual Justices on the United States Supreme Court (as well as the Court as a whole) voted more "conservatively," more "liberally," or about the same in the 1995 Terms as compared with past terms.The 1995 figures reveal a Court in ideological tension. Although sonic statistical measures suggest conservatism on the High Bench, there are notable contrary liberal indicators as well (principally in the areas of state criminal cases, federal jurisdiction, and First Amendment claims). Indeed, regression analysis demonstrates that the 1995 "liberal" movement in state criminal cases by the Court's three most "conservative" members (the Chief Justice and Justices Scalia and Thomas) is statistically significant Perhaps the most important (although least surprising) statistics are those that demonstrate the Court's identifiable division into two wings: a "liberal" coalition composed of Justices Stevens, Souter, Ginsburg and Breyer, and a "conservative" bloc composed of the Chief Justice and Justices Scalia and Thomas. Justices Kennedy and O'Connor remain between these two factions, casting the deciding votes in the most hotly contested cases. The voting behavior of these moderate "swing" voters has caused the Court to vacillate markedly between liberal and conservative outcomes during the past four Terms This ideological dynamic is likely to be altered only by resignations and replacements on the Court.
Protective Orders in the Bankruptcy Court: The Congressional Mandate of Bankruptcy Code Section 107 and Its Constitutional Implications (page 67)
By Judge William T. Bodoh and Michelle M. Morgan
It is a well-established principle of First Amendment and common law jurisprudence that a proceeding before and all papers filed with a court, particularly in the criminal context, are open to the public. Subsection 107(a) of the Bankruptcy Code codifies this public access doctrine by creating a presumption in favor of public access to all papers filed in a bankruptcy case. The subsection 107(a) presumption is, however, rebuttable. As a result, if a party in interest shows that the material sought to be protected contains a trade secret or confidential information, or is scandalous or defamatory, the bankruptcy court must protect the requesting party under subsection107(b) of the Bankruptcy Code.
Although subsection 107(b) states that the bankruptcy court "shall" protect the party in interest, the bankruptcy court retains the discretion to decide if any given material falls within one of the two subsection 107(b) exceptions. and to fashion ail appropriate remedy. This exercise of discretion, coupled with the fact that the subsection 107(b) exceptions are those situations traditionally recognized by courts as failing outside the First Amendment and common law public access doctrine, allows a bankruptcy court to fulfill its subsection 107(b) duty within constitutional bounds.
Viewpoint Discrimination (page 99)
By Marjorie Heins
Government action that disfavors speech because of its ideas or views is, as the Supreme Court recently said, "an egregious form of content discrimination," and is usually unconstitutional. However, it is not always clear precisely what makes discrimination viewpoint-based. Although the Court has recognized that disfavoring religious perspectives amounts to viewpoint discrimination, it has not yet applied this insight to government actions that target speech because it is deemed to be "political," "controversial," or "offensive." This Article addresses these questions in light of the history and basis of the viewpoint discrimination doctrine and underlying First Amendment values.
Specifically, this Article examines the viewpoint neutrality principle ill the context of vulgarity and obscenity law, citizens' access to public forum and benefits, various types of "government speech," and the paradoxical world of public education, where the government's interest in "inculcating civic values" often collides with the vision of a free marketplace of ideas. This Article points out inconsistencies in the Supreme Court's oftentimes confusing approach to the related concepts of content and viewpoint. Finally, it concludes that government action disfavoring expression because it is political, controversial, or offensive must be understood as viewpoint-based. This includes sex-related speech and vulgar words, whose frequent relegation to second-class constitutional status is fundamentally premised on moral disapproval of the ideas expressed.
The Allure and Danger of Community Values: A Criticism of Liberal Republican Constitutional Theory (page 171)
By Kenneth Ward
This Article contends that liberal republican efforts to legitimate political authority are weakened by a tension between two benefits that liberal republicans claim arise from rights of political participation: the definition of community values, and the facilitation of individuals' deliberations about private interests. It argues that a government cannot define community values without impeding citizens' deliberations about private interests.
The Article employs Alexander Bickel's approach to judicial review. Bickel believes that we must explain flow the Court can contribute to a legitimate government without undermining the majoritarian processes that ensure legitimacy by representing private interests. The liberal republicans fail to question whether the Court's enforcement of rights of political participation will protect citizens' ability to deliberate about private interests.
After briefly examining Bickel's understanding of legitimacy, the Article illusrates how the liberal republicans' quest to define community values undermines their arguments. First, it examines liberal republican criticisms of two alternative conceptions of government in order to identify the commitments of liberal republicanism. Second, it analyzes three arguments the liberal republicans can use to link the legitimacy of judicial authority to political processes that satisfy these commitments. Finally, it claims that these arguments fail because defining community values places excessive burdens on citizens' deliberations about private interests.
NOTES
After Midnight: The Constitutional Status of Juvenile Curfew Ordinances in California (page 219)
By Susan L. Freitas
Youth is not a crime. Every person, regardless of age, is entitled to the protections of the United States Constitution. This seemingly apparent fact is not a reality for America's children, who are often treated as less than "full citizens" solely because of their age. The explosive proliferation of juvenile curfew ordinances in municipalities across California is one example of such treatment. Curfews have traditionally been used as a method of social control, often imposed in times of great upheaval and emergency, but have recently become the easy solution for communities communities ties exasperated by rising juvenile crime and violence. Although curfews have deep historical roots, communities should question curfews imposed as blanket restrictions upon a group of individuals based solely upon their age.
Most courts have not addressed these general issues, but rather have approached claims that juvenile curfews are unconstitutional by applying the rational relation test to the specific ordinance. California, in particular, has only three cases on record addressing the constitutionality of juvenile curfews. The United States Supreme Court has offered no guidance on this issue, and the California Supreme Court has avoided addressing the general constitutionality of blanket juvenile curfew ordinances. As a result, California Municipalities continue to pass these ordinances. However, this is not the only available course of action. This Note offers a solution to the competing interests of children's civil liberties and the government's interest in protecting children from violence and crime. If the system is restructured so that only juvenile courts impose juvenile curfews as conditions of probation, infringement of children's rights by blanket curfews would be avoided. Accordingly, curfews would be imposed upon those youths who have demonstrated a need for such guidance. Such a creative compromise can avoid what has come to be perceived as the criminalization of childhood in California.
The Constitutionality of English-Only Provisions in the Public Employee Speech Arena: An Examination of Yniguez V. Arizonans for Official English (page 247)
By Michael Albert Thomas Pagni
This Note addresses a significant but rarely examined issue concerning whether a state may constitutionally require the exclusive use of the English language by its employees while performing official acts on behalf of the State. The Note focuses on the approach employed by the Ninth Circuit in determining the constitutionality of Article XXVIII of Arizona's Constitution, arguably the most restrictive of the state provisions regulating language rights, in the recent decision of Yniguez v. Arizonans for Official English. The Note concludes that not only did the majority misapply the overbreadth and public employee speech doctrines, it subsequently failed to identify what type of speech language rights fall into and what level of scrutiny English-only provisions must meet. While recognizing the inherent difficulty in categorizing language rights within the public employee speech doctrine, the Note suggests that either the proper application of the overbreadth doctrine or a reformulation of speech classifications within public employee speech doctrine present more consistent resolutions of Engfish-only issues.