I’m still alive…after a trying finals period (trying only because of my own procrastination, but trying, nevertheless), but I just hit “send” and turned in my last paper.  It was the final for my “Semester in Practice” seminar, which I attended on Friday mornings after spending Tuesday-Thursday interning at the Harvard Office of the General Counsel.  Nominally it was to be a professional-responsibility-focused paper somehow related to the internship.  Mine was about my first experience as a “working” mother, and I set up the legal, historical, and socio-economic framework for being a twenty-first century working mother; discussed some books on the topic (The Two-Income Trap by Elizabeth Warren and Amelia Warren Tyagi and The Feminine Mistake by Leslie Bennetts); summarized the main impediments to being a mother working in the legal profession, which include the billable hours-based structure of the profession, as well as the ironic misnomer of the “part-time” option (relying heavily on Lauren Stiller Rikleen’s Ending the Gauntlet); and then, finally, tried to come up with my own strategy for being a lawyer-mother, which came down to the idea of “redefining Superwoman.”  Appropriately, I finished it yesterday, my first Mother’s Day, which I spent at my own mother’s house, watching her whisk my baby up and down the stairs, out for walks, and in and out of the high chair as I pounded out the rest of the paper—trying not to feel guilty.

Our weekend in NYC/Summit was great, though–Tim and I spent Friday night in the city, having dinner at 5 Ninth and staying at the New York Palace, which was a bit over-the-top for me taste-wise, but was in a perfect location on Madison Ave. (how appropriate, again!) directly across from St. Patrick’s.  On Saturday morning we slept late, Tim went to the gym while I read the Times in the big bed, then we strolled around for a bit before heading back out to Summit, where my baby was waiting for me at the train station with her grandparents.  Last night we had a family dinner and birthday party, with aunts and uncles and sisters and lemon cake.  And now I head back up to Boston with a full two weeks of nothing before graduation and bar review.  My conception of “nothing” is quickly filling up with to-dos, but I’m going to try to carefully carve out some pure nothing-time, nonetheless.

Our babysitter, Janet, came in the door breathless this morning. “A big, big win!” she exclaimed. “I was up until 2 a.m. watching the results!” As was Tim, who refreshed the Times homepage repeatedly, hoping for Indiana to be called before he went to bed. I am thrilled that Obama will be the Democratic nominee. As I’ve written before, he is something new for this country, and I think we need it.

However, I’m also sad. I’m sad that Hillary the candidate and Hillary the woman couldn’t do it. Not this time. And when will the next woman emerge — the woman who can actually strike the right balance between intellect, aggressiveness, and likability? A balance that is much, much more difficult for a woman on the national political stage to claim. Maybe I’m projecting the sentiments of the poem in the below post. But if a woman as smart and capable of Hillary can’t find her stride in national politics, who can? I’m happy for Obama. But much more existentially, I’m sort of depressed as well.

One 45(ish)-page paper down; two 30-page papers to go. One is due Monday. As of Saturday morning, I have written four pages, but I am inspired by the subject matter and wish I had more time to write it. This one, at least, is just for pass/fail credit, so I don’t have to stress about it being perfect. That being said, I can almost guarantee it will be better than my paper on Justice Breyer. Oh well. In the meantime, I have a bridal shower and engagement party to attend, and tomorrow Tim heads to Kansas City (because, you know, it’s a great place for a company to have its annual GM/VP meeting. I suppose because there are good steak houses?) So I have a feeling that Sunday night will be loooooong…

Extra credit: a poem that (rather obliquely) inspired my current paper on the perception of women lawyers in the media.

I Like to Think of Harriet Tubman — Susan Griffin

I like to think of Harriet Tubman.
Harriet Tubman who carried a revolver,
who had a scar on her head from a rock thrown
by a slave-master (because she
talked back), and who
had a ransom on her head
of thousands of dollars and who
was never caught, and who
had no use for the law
when the law was wrong,
who defied the law. I like
to think of her.
I like to think of her especially
when I think of the problem
of feeding children.

The legal answer
to the problem of feeding children
is ten free lunches every month,
being equal, in the child’s real life,
to eating lunch every other day.
Monday but not Tuesday.
I like to think of the President
eating lunch on Monday, but not
Tuesday.
and when I think of the President
and the law, and the problem of
feeding children, I like to
think of Harriet Tubman
and her revolver.

And then sometimes
I think of the President
and other men,
men who practice the law,
who revere the law,
who make the law,
who enforce the law,
who live behind
and operate through
and feed themselves
at the expense of
starving children
because of the law.

men who sit in paneled offices
and think about vacations
and tell women
whose care it is
to feed children
not to be hysterical
not to be hysterical as in the word
hysterikos, the greek for
womb suffering,
not to suffer in their
wombs,
not to care,
not to bother the men
because they want to think
of other things
and do not want to take
women seriously.
I want them to think about Harriet Tubman,
and remember,
remember that she was beaten by a white man
and she lived
and she lived to redress her grievances,
and she lived in swamps
and wore the clothes of a man
bringing hundreds of fugitives from
slavery, and was never caught,
and led an army,
and won a battle,
and defied the laws
because the laws were wrong, I want men
to take us seriously.
I am tired wanting them to think
about right and wrong.
I want them to fear.
I want them to feel fear now I want them
to know
that there is always a time
there is always a time to make right
what is wrong,
there is always a time
for retribution
and that time
is beginning.

From the subject matter (celebs! and Gwyneth at that! and interior design! Gwyneth’s interior design!), to the fabulous links, to its celebration of unabashed procrastination, the below email from law-school Lindsey (not to be confused with college Lindsey, although admittedly I often send them emails intended for the other) is perfect in so many ways…

Are you looking at her legs or the Madeline Weinrib chair? Tough call…

“So I really should be studying, but instead I’m googling everything Gwyneth Paltrow because I’ve become completely obsessed with her look recently. I mean, those legs…. I need them. Yesterday. I really want to be able to wear the dresses she’s wearing (if you’ve been too busy to follow her Iron Man press tour, you can get a fashion recap here: http://www.people.com/people/stylewatch/gallery/0,,20195908_1,00.html)

“But anyway, I was googling ‘Gwyneth Paltrow Stylist’ b/c I wanted to see if I could figure out who styles her, and I came across this design blog that had a few entries in October 2007 about her home layout in House and Garden in November. Anyway, I thought you would enjoy the blog, based on some of the entries I’ve read in your blog… habituallychic.blogspot.com 

“Happy writing….we’re almost done!”

Of course, this sent me off on 30 minutes of procrastination of my own (not including writing this post), but does she know me or what? Maybe I need to have a Marbury v. Madison Ave. guest blog…

(Photo thanks to Habitually Chic)

The reaction to my posts on Justice Breyer and the First Amendment has been, shall we say, muted. My mom liked them (duh), but she’s a retired lawyer and has time to read through such nonesense enough times to actually understand what I wrote. My law school friends, however, rolled their eyes. My husband didn’t even try to feign interest. I can’t even imagine what people who aren’t related to me or are not law students thought, although some random spammers did try to post comments on election-year politics (I’m not kidding). But my brain is filled to capacity with legal effluvia at the moment (35 pages down, 75 to go...), so if I can’t write about the Supreme Court, the best I can do is post some pictures of the Litttle Bug:

I have been feeling rather proud of myself that I have weaned her from the pacifier, thus saving her from an eventual offering to the “paci fairy” (kind of like the tooth fairy and a frequent little trick in Supernanny’s arsenal), as well as a major othodontic undertaking in junior high – until it occured to me that this little stuffed elephant’s nose is basically the equivalent. Little Bug is like a little goldren retriever, crawling around the floor with this ellie (as we call it, appropriately), hanging out of her mouth. It gets pretty gross, but fortunately we have four or five identical ones. I mean to rotate them in and out of the crib, but somehow they all end up in there at the same time.

Click here to read about and sign two online petitions.  Normally I’m not really sure how much good online petitions do (as a purely practical matter, for example, who gets them? and in what format?), but both of these issues are important enough to at least read about. One concerns the Melanie Blocker-Stokes Postpartum Depression Research and Care Act, which expands research and education about PPD (those who oppose the bill wrongly believe that it requires new moms to take drugs…Tom Cruise has more influence than we think!).  The other petition lets John McCain know that his comments about the Fair Pay Act (which the Senate failed to pass) are both uninformed and insulting.  Though he didn’t even bother to vote on the bill, he said that women don’t need legislation that allows them to ask for equal pay, but instead just need “education and training.”  You can also send him your resume. 

Thank you, Susan, for the link!

In my paper, I argue that campaign finance regulations are a particularly appropriate way to analyze how Breyer applies his theory to his actual Supreme Court decisions because campaign finance regulations themselves concern elections—the very means by which citizens participate in democracy.  (Again, the primary argument behind Breyer’s theory of active liberty is that by the careful support and preservation democratic processes such as elections, laws ultimately will have the most beneficial affect on society.) 

Campaign finance regulations—which try to limit the amount that individuals can contribute to campaigns but also sometimes try to limit the amount the individual campaigns can themselves spend—are often challenged on First Amendment grounds, the argument being that by limiting the amount one can contribute to a campaign, that individual’s right to free speech is being restricted.  The argument on the other side is that if we don’t limit campaign contribution amounts, we risk creating a democracy that can be influenced by a few wealthy individuals (thus stifling the speech of everyone else). 

Without these laws, guys like him might expect some serious quid-pro-quo.

There is a complex and confusing history of how the Supreme Court decides First Amendment cases, based on the type of speech (for example, whether it is “content-based” political speech; content-neutral speech, such as certain zoning requirements; or commercial speech, such as advertisements). Depending on what type of speech is at issue, the court decides how closely to “scrutinize” that speech—whether there is, in the words of Justice Breyer, a “strict, moderately strict, or totally relaxed [rational] presumption of unconstitutionality.”  In the case of content-based speeh, such as political speech, if someone challenges a law by claiming that his or her constitutional right to free speech is being restricted, the only way a court can not strike down that law is to determine that it is written narrowly enough to serve a compelling governmental purpose. The court is more likely to find that laws restricting obscene speech are in the government’s best interest than laws that prohibit distributing leaflets or placing campaign signs on private lawns.

Breyer argues that “active liberty” helps make appropriate distinctions between categories of speech and the level of scrutiny that should be applied to each. For example, when speech is related to the shaping of public opinion or politics, active liberty is most at risk. In such cases, judges should take a pro-speech presumption and apply “careful review” (i.e., strict scrutiny). When speech concerns ordinary commercial regulation, on the other hand, such risk to the actual processes of democracy is absent. Breyer argues that the historic difficulties of First Amendment jurisprudence, with its categories of speech and confusing levels of scrutiny, can be simplified if judges first refer to active liberty. Instead of being hampered by rigid categories, one should ask: what will best support the political process in shaping “the kind of society in which we live”?

Historically, the constitutional issue in campaign finance regulation is whether campaign finance laws, as examples of political speech, should be looked at with the strictest of scrutiny: are laws prohibiting certain types of contributions or expenditures narrowly tailored enough to meet the government’s objectives? The precedent for campaign finance law is Buckley v. Valeo, decided in 1976, before Breyer was on the court. (Breyer was appointed by President Clinton in 1994.)  (Attention all law students: I have been told that Buckley is always on the bar exam. Consider this your bar review!) In this decision (stemming from a challenge to the Federal Election Campaign Act of 1971—the first real attempt at campaign finance regulation), the court ruled that limitations on contributions and expenditures are like limitations on speech itself, so both must be subject to scrutiny.  However, because contributions were more like “speech by proxy” (you are contributing money to have someone ultimately speak for you), they are subject to less scrutiny.  This means that the court did not need to find that the law was as narrowly written in the case of contribution expenditures—and so it held that limits on individual contributions to campaigns were OK.  It was not OK, however, to limit what a campaign itself could spend.  The only legitimate government interest in regulating campaign finance is prevent corruption or the appearance of corruption—corruption in this case being “large contributions…given to secure political quid pro quo from current and potential office holders.” This interest was met by preserving regulations on individual contribution levels.

Since Buckley, the Supreme Court has decided five campaign finance-related cases: Colorado Republican Federal Campaign Committee v. Federal Election Commission (1996), Nixon v. Shrink Missouri Government PAC (2001); McConnell v. Federal Election Commission (2003), Randall v. Sorrell (2006), and most recently, Federal Election Commission v. Wisconsin Right to Life, Inc. (2007). (Just last week, the Court heard arguments in Davis v. Federal Election Commission, which challenged the “millionaire’s amendment” to the McCain-Feingold Act.)  Breyer wrote the majority opinions for two of the cases, concurred in the majority for two, and joined the dissent in Wisconsin Right to Life (notably, after the shift in the court following the appointment of Roberts and Alito). In these decisions, it becomes evident that he is attempting to shift the Court’s approach from applying a categorical test to one that applies a balancing test that considers factors such as legislative deference, access to democracy, and stare decisis.  These decisions thus reflect his theory that active liberty—and not tests based on levels of scrutiny, such as those applied in Buckley—should be the basis for whether or not laws are Constitutional.  He began to ask not “do these laws meet the government’s needs?” but, “Do the government’s objectives balance an individual’s right to free speech?” Instead of asking, “Is this law constitutional in the sense of the First Amendment?” he asks, “Is this law constitutional in that it reflects the historic, democratic objectives of the Constitution?”  To Breyer, the government’s interests are less tied to a black-and-white preservation of Free Speech as determined by whether or not a law fails a judicial test, and more tied to the purpose of the law and its intended consequences. In other words, what is most important for the people and democracy.

Why do you care? Some scholars have argued that because of Breyer the touchstone of Buckley — again, holding that because contribution limits prevent corruption or the appearance of it, they do not presumptively fail strict scrutiny — is becoming less and less relevant, which leaves uncertainty as to the Court’s future approach to campaign finance. In part, this is because different aspects of the new campaign finance law—provisions such as restrictions on issue ads or soft-money donations—are now being challenged and are problems not addressed by the laws at issue in Buckley.  And, arguably, these are the very implications of a modern, changing society that Breyer’s theories on active liberty should adequately address. However, Breyer’s minority status in Wisconsin Right to Life suggests the court will not wholly embrace them. Until the entire court is on board with the Breyer’s balancing approach and moves away from traditional categories of scrutiny, the law could remain frustratingly unclear and the question still open for discussion:  are restrictions on a person’s right to give money to a candidate limiting his or her constitutional right to speech? Or can we find a balance between this constitutional right and the need to reign in an out-of-control election process where it still seems that money buys access.

We know all about you…

What do you know about the Supreme Court Justices? Perhaps that Ruth Bader Ginsburg is the only woman. That Clarence Thomas had a controversial confirmation hearing (to say the least). That Justice Kennedy has taken Justice O’Connor’s place as the Court’s likely “swing” vote.  That Chief Justice Roberts and Justice Alito pretended they were not political appointees during their own Senate confirmations.

And what do we really know about their methods of jurisprudence—the way they decide cases? We’d like to think that our justices are not, in fact, political appointees (although Bush v. Gore did nothing to assure us.) With the exception of Justice Scalia’s well-known adherence to textualism or originalism—his theory that the Constitution should be interpreted as it was written by the Founding Fathers (in other words, as they intended in 1787)—we probably don’t know a great deal about how justices actually decide cases.  In some respects, this is because there’s nothing that differentiates them from one another all that much.  As Justice Stephen Breyer points out in his book, Active Liberty (Alfred A. Knopf, 2005), “They are professionals. And their professional training and experience leads them to examine language, history, tradition, precedent purpose, and consequences.  Given roughly similar forms of legal education and professional experience, it is not surprising that judges often agree about how these factors, taken together point to the proper result in a particular case. Even when they differ, the degree of difference is often small.”

But our ignorance of any one justice’s jurisprudence also is because judges rarely explain their individual approaches to constitutional and statutory interpretation.  Justice Scalia (through his general outspokenness) has been the only one to provide a glimpse into his personal philosophy—that is, until the relatively recent publication of Active Liberty (and, indeed, some argue that Breyer published his book to provide an explicit counterpoint to Scalia, his ideological opposite.)  Active Liberty is a slender volume based on a series of lectures given at both New York University and Harvard law schools, and, in it, Breyer argues that when interpreting either the Constitution or statutory texts, justices have an obligation to take into account these documents’ “democratic nature.”  This democratic nature stems from the literal history of the Constitution, but also from a tradition of judicial interpretation in which judges display “judicial modesty.”  Judicial modesty means that judges should not substitute their will for that of the people, even if the end result might be more just.  Through their elected legislature, the people should have direct access to democratic processes—the making of laws.  A judge should not get in the way of this and, as a result, should show as much “legislative deference” as he or she can.  When interpreting a law, the judge should keep in mind the purpose of that law as it was enacted by the legislature.

That being said, Breyer believes that the idea of active liberty—a citizen’s right to participate in democracy — is the most important aspect of our Constitution, our nation, or system of government and so trumps even legislative deference.  If the legislature has enacted a law that prevents the democratic system from functioning most effectively, then a judge should not defer to the legislature but, in fact, should actually assume the authority to overrule any such law.  Breyer thus goes a step beyond his call for judicial modesty to actually endorse a sort of judicial authority which, because in the end the “people” are still first, is not really even all that authoritative (and could not be subject to criticism of “judicial activism.”)

In the end, this theory of “active liberty” takes into account the purpose behind a law, as well as the consequences of this law in a modern context (something originalists/textualists such as Scalia reject).  The result is a manner of jurisprudence in which judges assume a duty to act in a way that will best benefit society and will try to achieve a balance between what the Revolutionary-era philosopher Benjamin Constant called the “liberty of the ancients” (active liberty, in which a nation’s sovereign authority is shared among its citizens) and a “liberty of the moderns” (what we think of as civil liberty, or freedom from “improper government interference”).

Why do you care about this? Breyer argues that this approach leads to “better law,” specifically as this type of jurisprudence is analyzed as a counterpoint to textualism, which tries to control perceived judicial subjectivity through a strict reliance on the literal language of the constitution. Instead, active liberty encourages judges to consider consequences to determine what a specific Constitutional provision intends. In the first part of his book, he explains this theory of active liberty in terms of its historical and philosophical context.  In the second part, he applies it to modern situations, such as campaign finance law, privacy issues, or environmental regulations.  And in the final section of the book, he defends it against criticism by originalists (some would argue, by Scalia specifically).

Breyer is brilliant. Duh. And a clear and concise writer. Again, duh. So far as a Scalia-esque originalism is the only truly well-known approach to Constitutional interpretation, Active Liberty does present an understandable balance—and is worth reading for those who like to read about contemporary Supreme Court decisions. Just as originalism is a rather straightforward manner of jurisprudence— asking, did the Founding Father’s intend this? Does the language say that?—Breyer’s approach can be read as being similarly direct:  will this promote the harmonious operation of a democratic society? While Breyer initially contends that a sort of judicial restraint is essential to promote active liberty — because the legislature is better equipped than judges to know what is best for the voting population — in the end, his theory rises above pure deference because if the law in question doesn’t have the end result of ensuring direct participation in government it should be overturned. 

Stay tuned for Part II – a Free Speech/Campaign Finance primer. You know you can’t wait!

Look-alikes looking very serious at the christening

We had Little Bug baptised yesterday — excuse me, christened. Tim and I went back and forth about doing a christening from day one (calling it a “christening” and not a “baptism” being one of my concessions.) Tim and I are both very, very lapsed Catholics. Indeed, we were married by someone we found on www.justiceofthepeace.com or its equivalent. I felt strongly, however, about our baby having godparents and marking her arrival with some sort of celebration (my grandmother always believed in “marking occasions,” and I have tried to continue that in my own life.) Whether or not our daughter ultimately chooses to be a Christian or even to be religious will be up to her, but I do think that establishing a moral touchstone is important. Tim argues that you can do so without interjecting religion. And it’s not because he doesn’t believe religion is important — he even thinks we could take the approach of bringing our children to a different service every weekend: temples, mosques, churches, the beach, whatever. But he doesn’t necessarily think subscribing to any sort of organized religion is the best way to teach kindness and compassion. An arguable point. Nevertheless, it was important to me, and so we compromised: Little Bug would not be baptised in the Catholic church, but we would have a ceremony.

I did some research into where: I wanted the church to be in our neighborhood, to be open and accepting, and to be some place that I might actually want to attend. We decided on Old South Church in Copley Square, a United Church of Christ (congregational) church — and it was perfect, for so many reasons. First, as far as religion goes, my grandmother also apparently believed that being a congregationalist was as close to being non-religious as you could get. Great! That was just what we wanted. Moreover, Tim’s mother, once a pretty good Catholic herself (obviously) now attends a congregational church. And the ceremony itself couldn’t have been more beautiful: a crisp spring day with the magnolias in full bloom along Comm. Ave. The Women’s Olympic Marathon trials were crossing the finish line at Copley just as we arrived, and the church’s bells clanged to greet the winner. Not only were two other little girls being baptised, but the church had its annual “Blessing of the Athletes,” in which 50 or so runners stood to be, quite literally, blessed by the outstretched palms of the congregation.

For the baptism, Tim and I, and the baby’s godparents — Uncle Rich and Aunt Erin — stood up on the altar, along with the children of the congregation, who had been invited to participate. After the blessing, the deacons walked the babies around the church to be introduced to the congregation. As the kind deacon paraded my baby around, and the choir sang the children’s hymn, “Jesus Loves Me,” I have to admit that my eyes welled up — and so did Tim’s.

The rest of the service was joyous: gospel songs, hand bells, drums, and ribboned flags being twirled by teenagers for the recessional. Our normally non-vocal baby babbled, laughed, and sang throughout the whole service, clapping her hands with the rest of the church. This church made a point of expressing its acceptance of everyone and its sense of community — and I think to the extent that organized religion currently does or ever will play a large role in my life, the idea of a church as “community” is what will keep me open-minded and perhaps even participatory. And I have always loved the UCC’s tagline, “God is still speaking.” I am still buoyed by the spirit of the day: by the baptism, the service, and the whole experience — from the marathon finishers, to celebrating the baby, to yes, even the church.

This morning Little Bug and I were up and out early: after a visit to Starbucks, we walked down Boylston and across the  marathon finish line. Already people were camped out in folding chairs (at 7:20 a.m.!) and police, tourists, and workers were buzzing about. As I write this, I can look up my street to Boylston, where the crowds are a bit thicker now. This whole weekend has been exciting — with the Red Sox playing (and pulling out consistent late-game wins!) down the street, the Charles River dotted with white sails out one window, and marathon runners out another window — and makes me happy that I live in the city. This city. Happy Patriot’s Day!

                                                                                      Little Bug and her godmother

One year ago — on Marathon Monday, to be exact — I went to look at an apartment in the Back Bay.  I was in my third trimester, and the four flights of narrow, winding stairs in our Beacon Hill place (plus lead paint laws) were driving us out.  I was met by Marni and her bouncing six-month-old daughter, Collette.  Marni and her husband, Jason, were almost mirror images of Tim and me — they, too, had moved into the apartment just before Collette was born;  Jason was a lawyer, Marni was in P.R. They loved the apartment and were sad to move, and once we decided to take over the lease, Marni and I were constantly in touch about how to install air-conditioners, the move date, her handyman.  She let me pop by several times to measure for furniture and curtains and to coo at her daughter as I anxiously awaited my own. She gave me tips on Rainforest swings and Bumbo seats, pack ‘n plays, prenatal yoga, and bottles. Most graciously, she introduced me to some of her friends, who are now part of my neighborhood cadre of “playdates” and playground cohorts.

What I didn’t know at the time was that Collette was born with a heart defect.  She has since had several surgeries and was really struggling.  Yesterday morning, at 18 months old, she passed away.  I write this only because I have to:  I am consumed with my own brief memories of Collette and my pain for Marni and Jason.  I think of little Collette being born and sleeping in the same room my Little Bug sleeps in now. I suppose I just hope that anyone reading this will throw out some karma for Collette and her parents.  As one of Marni’s best friends said to me yesterday, through tears, “Collette isn’t suffering anymore; she’s in a better place,” and I hope her little baby spirit can bring us all some happiness and gratitude.

That’s all.  I just wanted to write this for Collette.