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Tuesday, July 28, 2009
You get a new job and your excitement builds as you get closer to that first day of work. A few days before you start, you sit down with your new company's Human Resources department to get all the paperwork squared away. There are the usual requests for documentation: the I-9 form confirms that you are eligible to work in the United States; the withholding form tells the employer how many deductions you will claim. But then comes an unusual question: the HR director asks for a follicle of hair for a DNA study, a urine and feces sample to check for drugs, and schedules you for a bone scan to determine your true age and medical vulnerabilities.
Beginning this November, if the employer used that information in a discriminatory manner, he or she would be in violation of the new federal law known as GINA. The acronym stands for Genetic Information Non-discrimination act. The law will make it illegal for employers to base hiring decisions on genetic information and also makes it illegal for health insurance companies to deny coverage based upon genetic information. But it does not cover life insurance decisions or long-term care insurance decisions.
A recent story in the New York Times described the efforts of major league baseball teams determined to know the true age of Latin American ballplayers recruited to play in the major leagues. Interest in such information has grown as several players, in particular Miguel Tejada (above) of the Astros, admitted that they lied about their ages, wanting to appear to scouts as younger, and full of promise, as opposed to older, and perhaps fully developed. A 2001 study found 300 professional baseball players who had lied about their ages. Because the GINA law is not yet in effect and has not been enforced, it is unclear how it will apply to cases in which American companies conduct DNA tests abroad on citizens of other countries.
Major League baseball insists that DNA testing has been used only in the Dominican Republic “in very rare instances and only on a consensual basis to deal with the identity fraud problem that the league faces in that country.”
While determining age may be the main motivation for baseball’s DNA testing, some watchers wonder whether the DNA results could be used to determine other crucial markers for future performance. Are they likely to succumb to injury? Arthritis? Rare genetic disorders?
Two side notes to this idea:
1) Is such information really that valuable? Mark Rothstein, a professor of bioethics at the University of Louisville School of Medicine, said: “The funny thing about this all is that the most famous baseball player with a genetic disorder was Lou Gehrig. Would they have signed him if they knew he was predisposed to A.L.S.?”
2) Is this the future? A recent study in the British Medical Journal studied 167 healthy volunteers known to be at risk for the inherited illness Huntington's disease and forund them to have suffered significant genetic discrimination.
Friday, July 24, 2009
West Point Cleared of Wrong-Doing In Banning War Protests on Campus; Issue Involves “First Amendment Concerns”
The link below is to an AP story on this subject. It follows an incident in 2004 when protesters unfurled a banner at an Army basketball game and were promptly escorted out of the building and handed a five year ban on appearing on campus. A jury in the federal district court in White Plains, NY ruled this week that the Academy acted within its power. The West Point officials insisted that their ban on the display was not “content-driven” and that, in fact, it was the disruptive nature of the display – not its message – that prompted them to act. Attorney Michael Sussman, of Chester, NY, disagreed, noting that the Academy only adopted a policy banning protests in 2004 after this incident had taken place. He asked the judge to set aside the jury’s decision – which he is allowed to do – and issue a ruling on his own.
The case echoes another, also involving attorney Michael Sussman. In 2007, when then-Vice President Dick Cheney was scheduled to appear at West Point graduation ceremonies, Sussman filed a petition on behalf of protesters requesting an injunction to allow them on the grounds to denounce the vice president’s appearance. The district court ruled against them, citing the security concerns voiced by West Point officials as significant and “content neutral.” Appealed to the Second Circuit, the motion was again denied. The judges’ analysis, which you can read here is a careful piece of exposition on First Amendment doctrine.
The essential elements are these: If the Academy – or any military base, for that matter – was a “public forum,” then any speech restriction within its boundaries would be subject to heightened scrutiny. That is, you couldn’t stop the protesters from appearing there. But since the Academy is not a public forum – indeed, at the entrance gates you have to stop, show identification and announce your purpose for being there – restrictions on speech are subject to a lower standard of scrutiny, one in which the rule must only be deemed “reasonable” and “content-neutral.” That is, you cannot allow some protesters who speak one message, while denying other protesters who speak a different one, but with a reasonable argument (such as security of those attending the event) you can ban all of them.
Sussman made the argument that the appearance of Vice President Cheney – by virtue of his being a political figure – changed the tone of the event to something at least resembling a public forum, one where political speech – which has always been deserved the most protection – must by first amendment standards be allowed. But the Second Circuit judges didn’t buy it. They pointed out that Cheney was also an official of the United States government, second only to the Commander-in-Chief, and that the mere fact that he is also a politician does not change the nature of the venue.
Wednesday, July 22, 2009
by Justice Barry Schaller
Problems relating to an increasingly aging population may bring several issues to the courtroom. As baby-boomers reach the ranks of the aged and progressive dementia affects a growing portion of our population (although recent medical advances hold promise), issues of autonomy, gene therapy, pressure for physician-assisted suicide, and the freedom to use controversial drugs for pain, and even for assisted suicide, may well face the Court. All these issues of aging will pit the will of individuals to exercise their freedom to control their lives against the interest of the government in regulating the outer boundaries of what is permissible as the end of life approaches. As with enhancement issues, the late-in-life issues usually don't elicit opposition as extreme as that raised with regard to beginning-of-life issues.
The issues of aging are likely to arise in various forms. Measures aimed at the legalization of drugs and physician-assisted suicide are likely to arise when authorization of such measures by state legislatures are challenged by opponents. Moves to legalize marijuana for medical purposes have already gained force in a number of jurisdictions, suggesting that we may already be on the brink of action on that measure. Gene therapy is likely to continue advancing within the science field until it reaches a point at which it appears threatening enough to the traditional views of enough state or federal legislators to take action seeking to control controversial applications. The proponents of scientific freedom and personal liberty will base their positions on autonomy and privacy interests; opponents will challenge based on arguments that federal constitutional protection does not apply to those who wish to take advantage of gene therapy. Questions of capacity - and personhood - are involved in issues of aging, just as with issues of reproduction.
In this area of litigation, the Justices may be more inclined (than with reproductive technology) to give legislatures latitude to make decisions rather than intervening. This deference is more likely when legislatures act to extend or expand personal liberty (as with drug legalization and assisted suicide) as opposed to curtailing or restricting liberty (as with restricting measures such as gene therapy). The exception to that deference is when extending or expanding rights takes place to the detriment of others (viewed in the broadest sense, such as fetuses, in the case of abortion, or embryos, in the case of genetic selection.) Here again, a crucial factor is how Justices read the Constitution -- narrowly or broadly, as a document limited to its historical meaning or a document that speaks to the contemporary world-- but, again, deference to state legislatures may carry the day even in the face of federal constitutional challenges from either side of the issues.
With regard to all these issues, and the following ones that I will briefly mention, a crucial question for a Supreme Court nominee is whether the candidate believes in the value of apprehending public opinion. I use that term with great caution to refer to the state of public knowledge and acceptance of present cultural developments -- in the broadest sense, encompassing social, economic, scientific, religious, and political among other factors. I do not mean, of course, that justices should follow the polls or attempt to predict public approval of any particular decision. One of the great strengths of retired Justice Sandra Day O'Connor was her capacity to reach results that worked in a practical sense - in the real world - and to bring about decisions that garnered a sufficient level of public acceptance and approval to maintain the authority and respect for - the legitimacy -- of the Court as an institution in our democracy. I suppose that one might ask whether a nominee could approach her level of mastery of jurisprudence that is principled and pragmatic - principled enough to be predictable and reliable, pragmatic enough to work in the world we live in. Many other questions arising from developments in science and medicine are likely to be presented to the Supreme Court. Most of them are likely to arise within the general Constitutional framework discussed so far. What is the authority of Congress to regulate stem cell research? Should research using non-human animals, a subject that is receiving serious ethical attention now, be regulated more extensively? Is it time to slow down the expanding practice of patenting human genes? What will happen with patenting of life forms that challenge the very concept of "personhood" such as the language-altered mice?
A nominee's general thinking on the broad contours of these and other powerful cultural changes in our society that will result from medical and scientific advances is important. While a nominee should not be called on to give specific answers to questions that are likely to arise in Court, the world view of candidates for our highest Court concerning vital issues and forces that will affect our way of life would be a welcome addition to our faltering public discourse and might even increase respect for Congress and the Court.
Friday, July 17, 2009
Let's Have a Thorough Inquiry Into the Actions of Lawyers Working on Terrorism Questions for the Bush Administration (but not prosecute them)
It is critically important that we figure out how the train ran off the tracks in our effort to gain actionable intelligence. Did the lawyers somehow become lackeys for misguided policy makers or did they truly believe in the legal gymnastics they engaged in? Did they just reverse engineer the legal analysis starting with the desired outcome? Was there sufficient debate? Was there sufficient sunlight on the decision making? Should a "devil's advocate" have been appointed? Did they just panic when it was vitally important that cool heads prevailed?
We need to do everything we can to assure that whatever happened will never happen again. We can't be reasonably sure of that in similar or other contexts if we don't have the national moral courage to figure out what the problems were. That said, the most important view is through the windshield, not the rear view mirror. We must always steer by the stars, not by our wake. Perhaps somewhat counter-intuitively, I believe the best way to do that would be to conduct a thorough, nonpartisan or perhaps bipartisan inquiry (think 9-11 Commission) but without an eye primarily to prosecution. Indeed, I might immunize cooperating witnesses.
It would be necessary that the inquiry be adequately funded and staffed, afforded subpoena power, and given a charter which enables it to go wherever the inquiry leads, including the E-ring of the Pentagon or the West Wing of the White House. But the key understanding is that all of this be done simply to find the facts, not to build a case for prosecution.
The legal basis for prosecution is not crystal clear although several legal scholars have made compelling cases for it. Certainly, the public's appetite for prosecutions is questionable. At a time when we have many serious problems in the country including an ongoing war, it would be a huge distraction. Indeed, at this point in time, even the inquiry itself would be a distraction, let alone actual trials.
The inquiry couldn't be limited to just the lawyers. Once you open Pandora's box, it will inevitably involve policy makers and policy implementers. That could be an ugly business, for sure. But maybe no worse than not doing anything. If we let this issue slide because it is too painful, and something like it happens again, our progeny will regret our lack of courage.
Wednesday, July 15, 2009
by Justice Barry Schaller
Speaking in the most general terms, it seems likely to me that among the issues that will be raised while the new Justice sits on the High Court will be claims by individuals seeking to assert their due process privacy rights well beyond the sphere originally outlined by Roe. Individuals, for example, will rely on the privacy right to assert their freedom to engage in or have the benefit of particular procedures or substances in the face of regulation efforts by Congress or state legislatures. This may well include genetic enhancement technologies as well as gene therapies and gene-based medicines for a host of diseases and defects, consumer genetics such as individual genome sequencing, "cognitive-enhancement drugs", and a wide variety of "inheritable genetic modification", otherwise known as "germline engineering."
Once a state legislature or Congress has attempted to restrict a practice, individuals will claim a due process (or other) privacy right to benefit from the practice. It will be on the order of “how can I be denied access to therapies that could prevent suffering and death merely because some foresee the potential for unethical misuse of those same therapies?” Along with privacy, individuals will turn to claims under the equal protection clause to enable others (perhaps guardians appointed by courts) to represent otherwise unprotected interests to enjoy equal protection of the laws. When claims are made under state constitutions, of course, state supreme courts have the final word but not as to federal constitutional claims, where federal courts prevail.
Given these preliminary observations, what can we expect to occur? Reproductive choices: a wide array of reproductive choices, including reproductive cloning , and selection at the embryonic stage for genetic characteristics, including potential for disability and gender, have taken a back seat to the political immediacy of the basic abortion issue but they are very real issues. Genetic selection is already well under way and we can expect it to expand in the future as the process of genetic testing develops with more and more sophistication and has the potential to eliminate or reduce risk of developing a wide range of disorders. Selection is bound to expand into other areas such as choice of embryos for intelligence, height, personal appearance, and other characteristics that will lead critics to object to creating designer babies. There is no end to the possibilities and, if the practice is pushed to an extreme, resistance may be encountered. If restrictive legislation is passed, the issues will be complicated, reflecting the competing interests of adult individuals, embryos as potential persons, not to mention the public interest in restricting the commodifying of human life.
Reproductive cloning, which, by widespread consensus, is not being pursued in this country, will raise all the same issues, heightened by what seems to be a prevailing distaste for the process. The momentum for cloning, however, may well gather strength when people in same sex marriages express their desire to have children of both partners. The scope of personal autonomy, elevated to a constitutional level, will be in direct conflict with claims of public policy and more specific claims of equal protection.
If strong public policy should come down on behalf of protection for embryos in this situation, the equal protection argument could very well carry over into other areas that are basically overlooked at present, such as the enterprise of creating and freezing embryos for later use. At present, it is estimated that enormous numbers of frozen embryos exist in storage; many of these are abandoned or eventually discarded (some are donated) when couples have no further use for them or dissolve their marriages. These could become fair game for lawsuits, thereby upsetting a widespread practice that has gone unchallenged to date.
A wise Supreme Court Justice will have many difficult decisions to make. Whether to grant certiorari in a case raising these issues at all and, if so, in which case or cases, are crucial decisions. If the Court hears the case, a Justice must decide, at the outset, whether to acknowledge (or not) the various Constitutional rights that will be asserted and then to tackle the question of how broadly or narrowly to decide the issues. For example, should personhood be defined for purposes of the particular case -- or other cases? How broadly should the scope of personal privacy and autonomy be defined? The claim is likely to be the constitutionality of a state (or federal) statute that restricts a reproductive technological practice. Even though some will argue that this Court (or any court) should leave these sensitive issues for the other branches, it is not easy to avoid the constitutional issue, once engaged.
Tuesday, July 14, 2009
Leahy’s response was to point out that he found the Republican senators’ questioning on this subject disingenuous since “we politicians” all make references to “our” upbringings and backgrounds when out on the stump, building support for election. Okay, fine, but Blitzer then missed the chance for the obvious follow-up: “Senator, you are a member of a political branch of our government. We expect you to bring your background and experience to your work in writing the laws and you no doubt have been elected to do so. Judge Sotomayor, on the other hand, has been nominated to the judicial branch, to the highest court in the land, an un-elected position where she will be charged with interpreting the law. Maybe we just want to be reassured that she is not acting like a politician when she does."
Similarly, in the same segment, the Republican strategist on CNN’s panel, Alex Castellanos, appeared confused on how the law works. Sitting next to Maria Echaveste, a faculty member of the University of California at Berkley Law School and a former official in the Clinton White House, Castellanos seemed to say that because Sotomayor’s decision in the Ricci case was overturned by the Supreme Court, that she had in fact decided it wrongly and perhaps tipped her hand on how she would decide any other affirmative action, reverse-discrimination case. Echaveste correctly informed Castellanos that the Supreme Court made new law when it reversed the lower court's decision in Ricci ; that is, that the Court in effect overturned its previous decisions on this topic, the very decisions that Sotomayor, as a circuit judge, is bound as a judge to follow (see Harold Schramm’s post on the topic here on our blog). The real question for Sotomayor is not whether Ricci was decided correctly by the Second Circuit (bound by precedent, how else was it to decide?), but whether she feels that the Supreme Court decided it correctly when it made, in effect, new law. Circuit judges are obligated to follow the decisions of the higher court, but only Supreme Court justices, who occupy seats on a court of last resort, are free to explore new paths of interpretation.
Sitting justices would be free to leave whenever they wanted, without fear that the court would be crippled until they were replaced. Likewise, an unexpected death would not leave the court short-staffed because a pre-approved replacement justice would be ready to step in -- much as vice presidents and lieutenant governors stand ready to fill executive branch positions that suddenly open up.
There was a time when Senate confirmations were quick. The Senate confirmed George Washington's first six nominees to the court in two days. As late as 1975, Justice John Paul Stevens was confirmed less than three weeks after his nomination. But those days are gone. Since Robert Bork's failed nomination in 1987, the Senate has typically taken months to confirm even uncontroversial court nominees. Most recently, seven months elapsed between O'Connor's conditional resignation letter and the filling of her seat by Samuel A. Alito Jr.
Consider next the political and policy advantages. A president might entice a justice to retire by naming a replacement the justice has special reason to respect. For example, Justice Antonin Scalia is 73 years old, but no one expects that he will voluntarily resign any time soon and thereby give a liberal president carte blanche to appoint a replacement. But if Obama and the Senate moved first and named a true moderate of extraordinary distinction, Scalia would face a very different calculus. The president could move the court in his desired direction, but Scalia could have some confidence that it would not move too far.
As this example illustrates, the president could choose to nominate either a general purpose vice justice, who would fill whatever vacancy might arise, or a seat-specific vice justice, who would be eligible only to fill, say, the seat currently held by Scalia when that seat becomes vacant.
If two nominees this season are OK, why not nine or 19? What is to stop an administration from stealing from future administrations by trying to fill seats that will open up only in the distant future? The Constitution's formal rules offer rock-solid protections for future presidents. Even a nominee who has been confirmed by the Senate cannot take office until a vacancy actually exists; and the sitting president at the time that vacancy arises has the lawful authority to decline to commission even someone already nominated by his predecessor and confirmed by the Senate. Thus, even if Obama were to try to name nine vice justices, the next president would decide for himself or herself whether to honor the Obama slate or start afresh.
Indeed, even Obama would not be legally bound to commission someone whom he himself had nominated years earlier; but as a practical matter it would be very hard, politically, for him to renege, especially if a sitting justice had chosen to step down as a result. (Similarly, a president is free to veto a bill he has pledged to sign, but one who does so pays a heavy price for the double-cross.)
The idea of anticipatory vice justices may strike many observers as a big change of the rules -- albeit a change justified by the recent slowing of the Senate confirmation process. Perhaps the vice justice system should not go into effect until after the next presidential election. During that election, candidates can speak to the voters about their competing visions for the court, and any candidate who endorsed the vice justice system would have a genuine mandate to try it. For now at least, perhaps Obama needs to add only one new item to his plate, even though the Constitution gives him the option to do even more.
Monday, July 13, 2009
No doubt we will be hearing a lot about the New Haven Firefighters’ case this week as Supreme Court nominee Judge Sonia Sotomayor goes before the Senate. The Second Circuit decision, written by Sotomayor, was overturned by the Supreme Court, 5-4. But I believe that Judge Sotomayor and her court had it right. Precedent on this subject was clear and it was with the city of New Haven, not the claims of white firefighters that they had been unfairly passed over for promotion.
Justice Ginsburg hit all the important points in her dissenting opinion to the High Court’s decision. Despite the personal appeal of the petitioners and their claims of extraordinary sacrifice to succeed in the examination process, the objective facts support an emphasis on the Court’s precedent in similar cases (See Griggs v. Duke Power Co., among others). In Griggs, the Court determined that Title VII of the Civil Rights Act prohibits employment tests (when used as a decisive factor in employment decisions) that are not a “reasonable measure of job performance.”
The history of firefighting in the United States and in New Haven specifically supports a very real Title VII concern that discrimination still exists in this area of public employment. In addition there is very real evidence to support the argument that the test (remembering the distinction outlined by Griggs above) was flawed. What is important here is the reality of the makeup of the supervisors of the New Haven Fire Department and the relative absence of representatives of ethnic and racial minorities in those positions. Ginsburg cites the fact that only one of the Department’s 21 captains is African-American and considers this, as against the overall population of the City, “entrenched inequality.” One out 21 for a city that is nearly 40 percent African-American? Yes, I, too, would call that “entrenched inequality”!
The City here followed the contractual, historic reliance on traditional competitive examinations. The results of such tests produced “stark disparities” in ranking, and gave rise to a voluntary concern by the City for Title VII’s disparate impact provisions. What is being sought in this process and in others like it is a “race-neutral means to increase minority … participation”. The circuit court’s decision was not a call for a quota system.
The result of cases like this can only be seen as lose-lose situations where no one comes out as a victor and no real remedies are offered. New Haven’s firefighters are really no better off now than they were when this suit was initiated. What promotional procedures lie ahead we do not know.
The City had good fear of disparate impact liability and should have had its day in court on this issue. Moreover here the Court continues a denial of equal opportunity to groups long held back by tests which shut out candidates who may well have the command presence and practical skills needed for the supervisory positions. Confirm Sotomayor? Yes, we need more voices on the Court who see the law within the context of its social impact.
Wednesday, July 1, 2009
For this opening post, Todd Brewster asked me to think about what questions I would like to ask Judge Sotomayor if I were considering her nomination. Of course, I went directly to one of my favorite bioethics topics, the new developments in biomedical science and technology.
STILL THINKING ONLY OF ROE? HOW SHORT-SIGHTED!
by Justice Barry Schaller
Every confirmation hearing of the last quarter century has focused directly or indirectly on what the nominee’s attitudes are about the landmark abortion rights decision of Roe v. Wade. Today that gets it only partly right. Most of the cases that capture the imagination of those of us who think about bioethics and the law rely on the privacy right asserted by the court when it decided Roe (and before that, Griswold v. Connecticut, a 1965 Supreme Court case that protected a right to privacy despite the absence of any "privacy" language in the Constitution), but to very different ends.
To find this right, the Roe Court relied mainly on the due process clause of the Fourteenth amendment. Yet in analyzing this, Roe and the later abortion cases (Webster and Casey, for instance) have examined the privacy right from a relatively limited perspective, as one held in competition with the rights of the fetus. At issue here, as we all know from the abortion debates, is when does the fetus constitute a “person” deserving of full protection? Justice Harry Blackmun, who wrote the decision in Roe, argued for a trimester approach that had the woman’s interest at its highest point at the outset of the pregnancy and the state’s interest at its lowest. That relationship then gradually reversed itself as the pregnancy became viable – for the 1970s, in the third trimester, but today, so much sooner – so that by the last days of the pregnancy, the state’s interest was at its greatest and the woman’s interest at its lowest.
Although still important to many people, these questions seem almost quaint when compared with the developments of biomedical science in the thirty-some years since Roe was decided. Just as the viability date for a pregnancy has steadily moved back from the third trimester, all manner of new human biotechnologies, including reproductive possibilities, have emerged rapidly to challenge our notion of the limits – and the very nature -- of human life and personhood. Think of some of them:
Cloning for reproduction as well as research; sex selection and “designer babies”; “personalized genomics”; race-specific drugs and race-based genetics; and global “markets” in kidneys, eggs, and wombs. Will human biotechnologies remake our sense of what we are and what our relationships are? Who will reap the benefits – and who will lose out – as these technologies gain greater foothold in our world? Who will regulate them – or will they be allowed to develop free of regulation, as many in the U.S. and abroad prefer?
What is the Peter Jennings Project? For the past three years, the Peter Jennings Project for Journalists and the Constitution, named for the late ABC News anchor, has been offering a dynamic weekend immersion experience in the Constitution and constitutional law. After passing through a rigorous application process, interested journalists come to the National Constitution Center in Philadelphia for a mid-winter weekend of stimulating talk, provocative programming and challenging case-law workshops. So far the Jennings Project has produced more than one hundred “Jennings Fellows,” who carry the message of the project forward into their work, be it newspaper, magazine, broadcast or new media journalism. This blog was, in fact, driven by the Jennings Fellows’ desire to have an additional constitutional resource available to them throughout the year. While our core constituency will be these Fellows, we decided to open the blog to all interested journalists.
As the Jennings Project director, I will serve as editor of the blog. Feel free to send me your ideas, (at email@example.com), whether these are actual content intended to be shared with the Jennings blog community or comments on how we might improve the blog structure itself. This is our first attempt at such a venture; we will benefit from your help.
The mission of this blog is an extension of the Jennings Project mission itself: that is, we aim to inject constitutional dialogue into all parts of the "paper" (that increasingly archaic term), and by so doing help Americans recognize the Constitution as not only a legal document describing the structure of our government and the freedoms it protects, but as a crucial element in our national identity, informing decisions on health care, science, religious exercise, national service, real estate, sports, medicine, education, immigration, domestic and foreign policy and, well, the list is endless. It is, to coin our persistent tag line, to see "the Constitution in our midst."
To that end, we will be inviting guest bloggers to contribute to our site on a formal basis. Barry Schaller, who retired as a justice of the Connecticut Supreme Court in 2008, has made his initial post below. I met Justice Schaller when both he and I were on the Wesleyan University faculty a few years ago. But while he was already a longstanding appellate judge with a distinguished pedigree, Justice Schaller was not teaching law; he was leading students in the study of his other favorite topic, bioethics.
Semi-retired, Justice Schaller is now on the faculty of Yale Law School, Wesleyan, and Trinity College and if you entered one of his classes at any of these fine institutions, you would be likely to find him talking less about law in the traditional sense than about the transformation of "personhood" through gene enhancement therapies and questions of equal protection posed by public health strategies that, say, prioritize treatments for some populations over others. Such is the stuff of “future justice,” as he sometimes calls it.
I asked Justice Schaller to start off our blog for a simple reason: Having watched the nascent coverage of the nomination of Judge Sonia Sotomayor to the United States Supreme Court, I have been disappointed to see so much attention focused on her attitudes on race, affirmative action, abortion, and reading policy into law. While the last of these three may give a hint of the judge’s judicial philosophy (I expect that we will hear a lot about that in her upcoming hearings), I still feel as though journalists are failing to comprehend the importance of this appointment. Abortion and affirmative action are so “twentieth century.” Given that any justice assuming a seat on the bench today may occupy that seat for a quarter century or longer (Justice Souter was there for nearly twenty years; Justice William O. Douglas holds the record for service at 36 years), let’s use our imagination to break open the legal dilemmas of the 21st century, so many of them driven by developments in medical science. And who better to lead us there than a bioethicist whose career has been in the law?
Justice Schaller will be making regular posts over the next couple of months, and he will welcome your responses to these, be they questions, challenges, or even the occasional (polite, we hope) affront. I hope you will find his work, and the arrival of this blog, an inspiration to produce great new work of your own.