Anna Nicole Smith's Day in Court

Anna Nicole, meet Ruth Bader.

Today's the day that Vickie Lynn Marshall (otherwise known as Anna Nicole Smith) has her oral argument heard before the Supreme Court of the United States.

As LII's bulletin on the case notes, the questions presented in the case are:

1. What is the scope of the probate exception to federal jurisdiction?
2. Did Congress intend the probate exception to apply where a federal court is not asked to probate a will, administer an estate, or otherwise assume control of property in the custody of a state probate court?
3. Did Congress intend the probate exception to apply to cases arising under the Constitution, laws, or treaties of the United States (28 U.S.C. § 1331), including the Bankruptcy Code (28 U.S.C. § 1334), or is it limited to cases in which jurisdiction is based on diversity of citizenship?
4. Did Congress intend the probate exception to apply to cases arising out of trusts, or is it limited to cases involving wills?

UPDATE: Ms. Marshall's story really captured the country's imagination on this cold February day. Given the survey below, it's a safe bet that it's the only time this year that many Americans will think a whit about SCOTUS:

According to a December 2005 national survey conducted by FindLaw, only 43% of American adults can name at least one justice who is currently serving on the nation's highest court. 57% of Americans can't name any current U.S. Supreme Court justices.

The percentages of Americans who could name each current justice were as follows:

• Sandra Day O'Connor — 27%
• Clarence Thomas — 21%
• John Roberts — 16%
• Antonin Scalia — 13%
• Ruth Bader Ginsburg — 12%
• Anthony Kennedy — 7%
• David Souter — 5%
• Stephen Breyer — 3%
• John Paul Stevens — 3%

Actually, I'm a little impressed that 3% of those surveyed knew of Stevens and Breyer, considering that only .2% of the US population are practicing lawyers.

FINAL UPDATE: I'm no statistician, but it appears that since knowledge of Breyer's and Stevens's presences on the SCOTUS bench falls within the margin of error for the survey, we are forced to accept the distinct possibility that no American is aware of their status as associate justices.

My apologies for any role I might have played in the revelation of this apparent state secret.

This Week at the ACS--Moot Court, Board Elections, and FedSoc Symposium Edition!

Hi all,

Columbia ACS is gearing up for the first annual Constance Baker Motley Moot Court Competition in Constitutional Law in two weeks, featuring ten CLS ACS qualifiers--remember to wish them luck! Read on for more information about how you can get involved in the moot court, how to run for the Board, and how to register for the fantastic student symposium that the Columbia Federalists are hosting this weekend...

BE A PART OF THE COOLEST EVENT OF THE YEAR!

This year, CLS ACS founded the Constance Baker Motley National Moot Court Competition in Constitutional Law, which kicks off on March 3 with a Happy Hour party at AmCafe. We have a lot to be proud of, and it's time to show off what our chapter has accomplished! Be a part of it all by volunteering to help during the weekend. As a volunteer, you're invited to both of the weekend parties--happy hour on Friday and the awards reception, featuring remarks by Jack Greenberg, on Saturday.

To volunteer, send your name and availability to April Day at april.day@gmail.com. There will be a VOLUNTEER MEETING on Wednesday, March 1 at 8:00 pm in JG 106. See you there!

HEY YOU! DON'T FORGET TO RUN FOR THE BOARD, TOO!

That means you! If you're excited about joining the leadership of one of the most dynamic student groups in the nation, if you're interested in working with other progressives to bring great events and speakers to Columbia, and if you want to partner with others to strengthen the progressive community here at the law school and across the country, run for our Board! We'll be publishing the list of available positions later in the week. Nominations will be accepted beginning on March 7, and elections will be held at the general membership meeting on April 4. 1Ls AND 2Ls are eligible to run for all positions (except that only 2Ls may run for 3L general rep positions). Please don't hesitate to contact current Board members for more information about specific positions, and as always, send us your questions at acs@law.columbia.edu.

FEDERALIST SOCIETY STUDENT SYMPOSIUM THIS WEEKEND

The Columbia Federalists are hosting the Federalist Society's National Student Symposium this weekend. Read more about the event, and link to the schedule, at http://www.columbia.edu/cu/law/fed-soc/symposium/index.shtml. They have lined up an incredible list of prominent speakers, conservative and liberal, and a considerable list of federal judges as well. You can register for only $5 (excluding banquet) at http://www.columbia.edu/cu/law/fed-soc/symposium/registration.shtml. See you there!

Leaders with Legitimacy: A Member's Perspective

I made the following remarks at the Columbia Law Student Senate “Town Hall” meeting. The perspective is purely my own (see Mary Kelly's post for the chapter's position), and I appreciate the ACS providing me this forum to publish it.

For reference, the relevant text of the draft proposal:

SECTION SIX — REQUIREMENTS FOR STUDENT ORGANIZATIONS
...
5. Nondiscrimination Policy. Subject to the exception provided in Subsection (B)(5)(a), membership and leadership shall be open to all CLS students without regard to race, ethnicity, color, national origin, age, handicap or disability, sex, gender, sexual orientation, religion, political affiliation, or the general exercise of a student’s right of free speech or association.
a. Exception. If an organization’s purpose is to express an idea, viewpoint or belief, such an organization’s leadership, but not membership, may be limited by such narrowly-tailored criteria that the organization finds, in good faith, essential to upholding that organization’s explicit expressive purpose as defined in its constitution. Any such limitations on leadership shall be explicitly stated and ratified in the organization’s constitution.

---

Hello. My name is Amos Blackman. I am a first year.

I am here to express my opposition to the proposed Section Six of the Student Senate By-Laws. I realize that this issue is deeply layered, but I only have three minutes, so I will address just the issue which I consider most central.

The proposed Subsection B(5)(a), providing an exception to the non-discrimination policy, reads:

If an organization’s purpose is to express an idea, viewpoint or belief, such an organization’s leadership, but not membership, may be limited by such narrowly-tailored criteria that the organization finds, in good faith, essential to upholding that organization’s explicit expressive purpose as defined in its constitution. Any such limitations on leadership shall be explicitly stated and ratified in the organization’s constitution.

Regardless of whether you support the proposal, I believe that you must recognize that this language does not simply acknowledge or allow discrimination — it validates and sanctions it. It endorses the claim that discrimination can be essential and in good faith. It suggests that a valid constitution can, and perhaps must, be grounded not on equal protection, but on explicit discrimination. It accepts the proposition that discrimination is fundamental and funds it. I do not.

I acknowledge and admire the Senate's commitment to encouraging a diversity of viewpoint, but I believe that diversity itself is a prerequisite to achieving such a goal. The pursuit of freedom of expression requires learning from history, and our country's checkered past has taught us that true freedom of speech cannot be achieved by merely endorsing those already speaking. Too many groups have traditionally been denied such a voice, and it is our right, and I believe our duty, to protect those voices.

Professor Dorf has described one Supreme Court decision that privileged expression over equal protection in an open public forum,¹ but I would merely point out that there are many cases where the facts led the Court to very different conclusions, finding that compelling interests in health, safety, and equality justified discouraging expression contravening public policy.² Nowhere do I believe this to be more justified than in the forum of education.

In Grutter v. Bollinger, the Supreme Court recognized that law schools play a unique role in society as the training ground for a great percentage of our nation's future leaders, and that in order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to all talented and qualified individuals.³ As a friend of the Court in that case, Columbia University insisted: “We need to educate students to participate in a larger human culture, not just confirm their prejudices, whatever those prejudices may be.”⁴ The Court agreed. I do, too.

I ask the Senate to lead with legitimacy and refuse to confirm prejudice. Please reject the proposed exception to the Senate's non-discrimination policy. Thank you.

---

¹ Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
² See, e.g., Bob Jones Univ. v. United States, 461 U.S. 574 (1983); Roberts v. United States Jaycees, 468 U.S. 609 (1984); Bd. of Dirs. of Rotary Int'l v. Rotary Club, 481 US 537 (1987); Hill v. Colorado, 530 U.S. 703 (2000); McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003).
³ Grutter v. Bollinger, 539 U.S. 306, 332 (2003).
⁴ Brief for Columbia University et al. as Amici Curiae Supporting Respondents at 2, Grutter, 539 U.S. 306 (Nos. 02-241, 02-516), 2003 WL 399094.

Should the Student Senate allow groups to discriminate?

Below is the text of the message delivered by Mary Kelly on behalf of the ACS at today's Town Hall meeting regarding the proposed amendment to the Student Senate's bylaws:

My name is Mary Kelly Persyn. I am a second-year student and I represent the Columbia chapter of the American Constitution Society. ACS is a nationwide network of students, lawyers, scholars, and judges committed to restoring the fundamental principles of human dignity, individual rights and liberties, genuine equality, and access to justice to their rightful, central place in American law.

As an organization that places the fundamental worth and dignity of every human being at its center, ACS strongly supports Section 5’s nondiscrimination policy. But ACS cannot support, and in fact firmly opposes, Subsection (B)(5)(a), which is part of the proposed amendments to Section Six of the student senate’s constitution.

We note first that constitutional jurisprudence is not precisely clear on this point, and that we oppose the policy on constitutional principle.

The argument that a law student organization would find it necessary to exclude persons from its leadership in order to express an idea is disturbing enough. But the purpose of this amendment is to allow a student group to exclude from its leadership persons who are gay, lesbian, or bisexual, not because of the ideas that these persons express, but because of who they fundamentally are. The student group whose constitution spurred this amendment finds it necessary to exclude gay people from its leadership in order to express its moral disapproval of them—in order to discriminate against them on the basis of sexual orientation. Would the Senate approve such an exception for an organization that found it necessary to exclude white people from its leadership? An organization that wanted to exclude from its leadership women or African Americans? All of these exclusions could be made to rest on some expressive purpose. I cannot think we would be willing to accept them, and yet the proposed language would seem to leave the Senate no choice.

We understand that current Equal Protection jurisprudence does not yet appear to extend its full protection to gay, lesbian, and bisexual persons. We understand that in the open domain, the right of expressive association might protect the right of an organization to discriminate against LGBT persons. But the American Constitution Society holds that within the domain of higher education, the protections of the Fourteenth Amendment must extend further than they otherwise might. In weighing the First Amendment against the Fourteenth Amendment, we find that here, within the university, a contention that the right of expressive association allows exclusion of a group of people because of their sexual orientation can never defeat the aspirational claim of gay persons to the protections of the Fourteenth Amendment nor to the respect and dignity that they, like all people, deserve. Please take this opportunity to reject Subsection B(5)(a) and to insist that discrimination has no place here. Thank you.

This Week at the ACS--NSA Surveillance Panel!

Hi all,

It was fantastic to see so many of you at the membership party last Thursday. Hope you had a great time! Lots of stuff happening this week (see below)--be a part of it! Send comments and suggestions to acs@law.columbia.edu or to me at mp2331.

GENERAL MEMBERSHIP MEETING, TUESDAY AT LUNCH, JG 103

We'll be discussing Board elections, how you can get involved with the Moot Court competition next month, and other upcoming events. See you there! Got a topic or an item you want to discuss or suggest at the meeting? Send 'em to us!

NSA SURVEILLANCE PANEL, WEDNESDAY AT LUNCH, JG 106

Have you been wondering whether government wiretapping is actually legal? Are you concerned that the government might sweep too many innocent citizens into its net? Or do you think that the government's actions are an authorized and appropriate way to deal with the terrorist threat? Come hear three expert opinions from Professors Michael Dorf, Harold Edgar, and Lori Damrosch.

HEY YOU! YEAH, YOU! COLUMBIA ACS NEEDS YOUR HELP!

Want to be a part of the first annual ACS National Moot Court Competition in Constitutional Law? Like the idea of rubbing elbows with lawyers, judges, and fellow law students from all over the country--plus attending some cool parties? Come to the general meeting on Tuesday to find out more, or write April Day at april.day@gmail.com. Everyone's welcome!

ACLU EVENT ON ABORTION RIGHTS TOMORROW AT LUNCH

The ACLU of Columbia Law presents a lunchtime discussion on:
Ayotte v. Planned Parenthood
with Professor Dorf, Professor Metzger, and Jennifer Dalven (the
Deputy Director of the ACLU's Reproductive Freedom Project)

Date: Monday 2/6
Time: 12:15-1:15
Location: JGH 106
Pizza and soda will be served.

SIGN UP FOR THE FEDSOC STUDENT SYMPOSIUM

The Columbia Federalist Society is hosting the 2006 National Student Symposium on February 24-25. You can register and attend for only $5! Check it out at http://www.columbia.edu/cu/law/fed-soc/symposium/index.shtml — they have a terrific program.