2010’s Top 10 Must-Reads in the Law

The weather outside is frightful–except in parts of the Rocky Mountain West where its been in the 60s for the better part of a week–so why not curl up with a nice hot toddy and enjoy these highlights (or lowlights, depending upon your point of view) from the world of the law this year. I present them in no particular order.

1. Retired United States Supreme Court Justice David Souter’s commencement address to Harvard University. It was brave and true. “[T]he Constitution is no simple contract,” the justice said back in June, “not because it uses a certain amount of open-ended language, but because its language grants and guarantees many good things, and good things that compete with each other and can never all be realized, altogether, all at once.” He then explained: “The explicit terms of the Constitution, in other words, can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises.”

2. Legal scholar David Cole’s memorable piece– “What To Do About Guantanamo”– in The New York Review of Books. A sample: ‘Missing, of course, was what the island symbolizes for the rest of the world: a monument to lawlessness, a prison erected for detaining, interrogating, and brutalizing suspected terrorists without having to account for their status, condition, or treatment to anyone–not to the detainees themselves, their families, their countries of origin, the courts, or the American people.” Meanwhile, 14 months after Attorney General Eric Holder promised a trial for Khalid Sheikh Mohammed, his prosecution is on hold because of Republican opposition.

3. Most anything written by Dahlia Lithwick. But I have chosen this piece at Slate chronicling the Roberts’ Court relentless rightward tack. Indeed, the only reason why the constitutionality of the “indvidual mandate” provision in the new health care law is not considered an easy and obvious call under the Commerce Clause is because no one is quite sure what the Court’s conservative majority will do when all these cases reach the Justices.

4. The Pentagon’s lengthy and detailed “Don’t Ask, Don’t Tell” report, just released a few weeks ago. (Especially note the part where it says: “Some of the most intense and sharpest divergence of views about Don’t Ask, Don’t Tell exists among the chaplains.”) This document should be read in the same sitting as U.S. District Judge Virginia Phillips’ September ruling striking down the policy as unconstitutional. Taken together, these two documents vitiate any continuing legal (or factually reasonable) support for the odious policy.

5. U.S. District Judge Vaughn Walker’s August ruling striking down California’s same-sex marriage ban. Forget all the political and religious and moral noise surrounding the decision. Forget the analysis. Forget Olson and Boies. Just read what the judge wrote.

6. And while you are at it, read U.S. Chief District Judge Joseph Tauro’s July decision striking down as unconstitutional a central provision of the federal Defense of Marriage Act. No “fairly conceivable set of facts” could justify the law, the venerable Nixon appointee declared.

7. Retired United States Supreme Court Justice John Paul Stevens’ essay about capital punishment published earlier this month by The New York Review of Books. Like his predecessor (Justice Harry Blackmun) before him, Justice Stevens no longer wishes to tinker with the machinery of death. Perhaps more important, he suggests that most of the justices who brought capital punishment back to America in the mid-1970s would be sharply critical of how the Court has stewarded its use over the past generation.

8. U.S. District Judge Martin L.C. Feldman’s June order blocking (temporarily as it turned out) an Obama Administration’s moratorium on drilling in the Gulf of Mexico. Never mind the judge’s reported financial ties to the oil industry, his 22-page rant against federal bureaucrats would have been a YouTube sensation were it read aloud with cameras in the courtroom.

9. Jane Mayer’s revelatory piece in The New Yorker magazine (“Covert Operations”) about the billionaire Koch brothers and their “war against Obama.” Mayer’s piece, which touches upon the Tea Party as well, is particularly trenchant in light of the Supreme Court’s Citizens United v. FEC ruling in January.

10. The heartbreaking March piece by David Kaiser and Lovisa Stannow (again in The New York Review of Books) called “The Rape of American Prisoners,” which chronicles the treatment (or lack thereof) of juvenile prisoners in the Texas justice system. The piece is powerful enough on its own, but when combined with other concerns about justice in the Lone Star State and with the crises in prisons systems in California and elsewhere, it represents a terrible indictment of our criminal justice system and many (too many) of the people who run it.