The Docket

The Prospect's legal affairs blog

Democracy, Disdain, and the Roberts Court

American Constitution Society
In a recent column , George F. Will attacked Pamela Karlan's recent Harvard Law Review essay "Democracy and Disdain." Objecting to the Stanford law professor's many examples of Roberts Court conservatives reflecting disdain for the work of Congress, Will asserts that Karlan "misses the point of judicial review." Karlan, Will charges, assumes "that restraints on its power are presumptively anti-democratic." Will, however, misunderstands the point of Karlan's brilliant essay. Constitutional restraints do not require assumptions that legislators are acting in bad faith, and judicial review should facilitate rather than interfere with the democratic participation. The title of Karlan's essay invokes John Hart Ely's classic book Democracy and Distrust . Ely's book was a response to legal scholars across the political spectrum claiming that the jurisprudence of the Warren Court was just incoherent activism. Ely argued instead that a powerful thread ran through the landmark decisions of the...

Getting Away with Wage Theft

The 1938 Fair Labor Standards Act (FLSA), which ushered in many of the worker protections we enjoy today, was a major progressive victory. But as the century that followed it shows, it was by no means the end of the struggle to get workers treated fairly. Employers, aided by conservatives in the executive and judicial branches, have often found ways of ensuring these laws are not fully enforced. Symczyk v. Genesis Healthcare Corp. , which the Supreme Court considered yesterday at oral argument, presents another case in which conservatives on the Supreme Court might erect a barrier making FLSA harder to enforce. The case involves a lawsuit filed by Laura Symczyk, who alleged that Genesis Healthcare had committed wage theft against her and her co-workers. According to Symczyk, Genesis routinely docked the pay of workers (including herself) for lunch breaks that were not taken. Reflecting the strength of her claim, Genesis offered her $7,500 plus associated fees to settle. Symczyk,...

A Scandalous Lack of Privacy

A powerful man sleeping with a younger woman outside the bounds of matrimony may not be uncommon, but when revealed, it inevitably produces a scandal. In the case of the adultery revelations about former CIA Director David Petraeus, however, the banal, tawdry sex scandal is masking a much deeper one. A great deal of intimate personal information has been revealed to the public based on an FBI investigation, despite a rather notable lack of underlying activity that can plausibly be called criminal. There's no particular reason anybody but David Petraeus's wife should care about his sexual improprieties, but we should all care about how easy it is for government officials and employers to invade the privacy of online communications. Admittedly, major public officials like Petraeus have a lesser expectation of privacy, although even these trends have gone to far. The argument that the adultery of the CIA director is relevant because of the possibility of blackmail seems like a massive...

A Privacy Catch-22

WikiMedia Commons
When the Bush administration decided to wiretap some suspects without a warrant, it was acting contrary to the procedures that had been established by Congress Foreign Intelligence Surveillance Act (FISA). Unfortunately, Congress reacted to this lawlessness by passing the Protect America Act , making warrantless wiretaps of communications involving at least one party not in the United States easier while providing immunity for past instances of illegal wiretapping. However, the new statute does not settle all of the legal questions. Congress, like the executive branch, is bound by the Fourth Amendment's prohibition of "unreasonable search and seizures." Since warrantless searches are presumptively unreasonable, there is at a minimum serious question about whether Congress can legally authorize the warrantless wiretapping of communications if at least one party is located overseas. It is not clear if these serious constitutional challenges will receive a fair hearing. Yesterday, the...

"Sustaining a Seemingly Permanent War"

WikiMedia Commons
Greg Miller has an essential report in The Washington Post about the institutionalization of the "war on terror," revealing that the Obama administration is institutionalizing many of the worst aspects of the arbitrary death apparatus established by the Bush administration. The "war on terror" has always been a somewhat difficult problem because it combines some aspects of ordinary police actions and some elements of war. Because the latter allows for killing without due process while the latter does not, however, it was perhaps inevitable that an executive branch whose war powers are increasingly unconstrained would gravitate to the latter. It is clear from Miller's article that this is in fact happening, as the administration is institutionalizing policies that classify people affilliated with Al-Qaeda as military targets who can be killed at the whim of the executive branch with no oversight. Particularly because these killings are certain to generate resistance and opposition,...

The Stronger Argument against DOMA

WikiMedia Commons
Today, the Second Circuit Court of Appeals struck down a major part of the Defense of Marriage Act (DOMA). Since DOMA had already been held unconstitutional by the First Circuit , on one level this doesn't change anything, since the case was almost certainly headed to the Supreme Court anyway. But today's opinion is important because the theory underlying the court's holding goes much further than the First Circuit did. The Supreme Court has developed a three-pronged approach to applying the equal protection clause of the Fourteenth Amendment. Under this framework, racial classifications have been held to require "strict scrutiny," under which the classification is constitutional only if necessary to achieve a compelling state objective. Most classifications require merely "rational basis" scrutiny—that is, the state only has to show that a classification bears any plausible rational relationship to a legitimate state interest. In practice, laws rarely survive strict scrutiny and...

Color-Blinded

(AP/Pablo Martinez Monsivais)
(AP/Pablo Martinez Monsivais) Imagine a college whose orchestra was missing a bassoon player, or whose football team was down a running back. It would go without saying that this school could admit an applicant who plays the bassoon over a candidate who plays the French horn, even if that French horn player had slightly higher grades, or that its admissions officers could give preference to a high school’s star running back over its equally talented defensive lineman. The entire university community benefits from a full orchestra or a football team with a complete offensive lineup, and college admissions officers routinely take similar considerations into account when they think about how to build an incoming freshman class. Nine years ago, in its landmark Grutter v. Bollinger decision, the Supreme Court recognized that race is just like an orchestra. Contrary to the common view that affirmative action is a zero-sum game—in which each seat given to a minority must be taken from a...

Another Big Year for the Supreme Court

(AP Photo/Carolyn Kaster)
(AP Photo/Carolyn Kaster) Women pray on the front steps of the Supreme Court in Washington, D.C. on Monday, October 1, 2012. The Supreme Court is embarking on a new term that could be as consequential as the last one with the prospect for major rulings about affirmative action, gay marriage, and voting rights. T he Supreme Court’s 2011 term, which concluded with a narrow escape for the Obama administration’s defining policy achievement, the Affordable Care Act, was a compelling reminder of the importance of the highest Court in the land to our country’s politics. The 2012 term, which started this week, may have an even further-reaching impact. Here’s a roundup of the cases and issues that could be considerably helped or hindered by the Court’s deliberation. Corporations and Human Rights The first case of the term, which started oral arguments earlier this week, considers the application of a 1789 statute allowing aliens to file civil tort claims that involve violations "of the law of...

How Conservatives Captured the Courts

Random House
(AP Photo/Charles Dharapak) President Bush, right, stands alongside his nominee for the Supreme Court, John G. Roberts Jr., after having breakfast at the White House Wednesday, July 20, 2005 in Washington. T he Supreme Court has not been a major campaign issue in this year's presidential election, which shouldn’t come as a big surprise for election junkies. But, the Supreme Court could become a gigantic issue after this January’s inauguration—four judges who will be 75 or older by the middle of next year could potentially give the next president a historic opportunity to change the direction of the Court. The relative lack of attention seems particularly hard to explain given that the centerpiece of President Obama's domestic agenda was one vote away from being entirely invalidated by the nation's most powerful lawyers. Whether or not it gets the public attention it should, the federal courts matter. And as Jeffrey Toobin's fine new book The Oath makes clear, at least one of our major...

Arbitrary Detention Suffers First of Perhaps Many Blows

On New Year's Eve last year, Barack Obama signed the National Defense Authorization Act (NDAA) for Fiscal Year 2012. Among many other provisions, the Act authorized indefinite arbitrary military detention on American soil for people suspected of ties with al-Qaeda or affiliated groups. According to Section 1021 of the NDAA, among those potentially subject to indefinite detention without trial are persons who w[ere] a part of or substantially support al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." In a courageous opinion delivered Wednesday, U.S. District Court Judge Katherine Forrest issued a permanent injunction against enforcing Section 1021. The decision faces an uphill climb in the higher courts, but it is a powerful reminder of how much the federal government has...

Torture Without Accountability

In the wake of 9/11, dozens of people were arbitrarily detained and tortured by the American government, sometimes with lethal consequences. These practices were not only grotesquely immoral but illegal. Last week, the Department of Justice announced that nobody would be held legally responsible for these reprehensible crimes. This decision culminates a series of failures that will be a permanent black mark on the Obama administration. The process by which almost nobody has been held responsible for horrible and illegal acts is two-step. Failures by high officials magically insulate the failures of less high-ranking ones. Infuriatingly if also not surprisingly, the people in the top levels of the Bush administration were not held responsible by a new administration that presumably didn't want to set an uncomfortable precedent by "politicizing" the Bush administration's torture policies. But even if we accept that self-interest would prevent the Obama administration from prosecuting...

No Touchdown for Paterno Biography

When news broke in November 2011 that former Penn State defensive coordinator Jerry Sandusky was about to be indicted for 52 counts of sexually assaulting children, Joe Posnanski—perhaps the most celebrated sportswriter in America— happened to be at State College in Pennsylvania working on a biography of Sandusky's former boss, legendary Penn State football coach Joe Paterno. Although the initial signs were not encouraging, there was still reason to hope that Posnanski would use his access and considerable gifts to write a definitive account of the scandal that led to Paterno being fired in disgrace. Unfortunately, such hopes were not realized. Paterno is not an outright hagiography, but it is a squandered opportunity. The book's publication schedule was rushed by nine months—and it shows. Crucial information about Paterno's role in the scandal (much of which didn't emerge until the month before the book hit the shelves is barely acknowledged, and Posnanski's too-charitable assessment...

Why Affirmative Action Still Matters

This fall, the Supreme Court will hear oral arguments in Fisher v. UT Austin , a case that will determine the future of affirmative action in the United States. As the Obama administration was preparing to issue its position in the case, Richard Kahlenberg wrote a provocative piece for The New Republic arguing that Obama should take this opportunity to "move the Democratic Party beyond the political morass of racial preferences" and to support "class-based, rather than race-based, affirmative action." The brief the administration submitted last week, however, did not follow Kahlenberg's advice. And this, I believe, a good thing. UT Austin's affirmative action is reasonable public policy that is perfectly consistent with the Constitution. Kahlenberg is certainly correct that economic disadvantage should be an important consideration considering a university applicant's credentials. But it is important to note, as the Obama administration's brief emphasizes) that UT Austin's admissions...

Fast and Furious Returns

The House Oversight Committee, lead by California Republican Darrell Issa, has decided to bring suit against Attorney General Eric Holder. The underlying charges are a pseudo-scandal being overblown by Republicans who have been lacking in real Obama administration scandals to promote. And yet the suit does illustrate real and important issues with respect to the potential abuse of executive privilege, and for this reason may not be a bad thing. The contempt suit is an extension of an earlier citation of contempt by the Oversight Committee against Holder, which represented "the first time in American history that Congress has imposed the sanction on a sitting member of a president’s cabinet." The contempt citation came from an interbranch conflict surrounding the Fast and Furious "scandal," allegedly a failed sting operation by the Justice Department that was part of the larger "Project Gunrunner" project started under the Bush administration in 2006. After Border Patrol agent Brian...

Supreme Court Permits Execution of Man with IQ of 61

WikiMedia Commons
Marvin Wilson was convicted of murder and given a death sentence in 1992. Since the felon was convicted in Texas, this sentence might not be considered unusual in itself. But extenuating circumstances render Wilson's ongoing presence on death row a bit surprising. The Supreme Court ruled in the 2002 case Atkins v. Virginia that executing mentally handicapped persons violates the cruel and unusual punishment clause of the Eighth Amendment. This case seems to preclude the execution of Williams, who has an IQ measured at 61 and in general clearly has the "subaverage intellectual functioning" and "significant limitations in adaptive skills" that make death sentences unconstitutional under Atkins : Marvin Wilson has the mental development of the average first-grader. He sucked his thumb into adulthood; he cannot use a phone book; and he doesn’t understand what a bank account is. As a child he would sometimes clamp his belt so tightly that he would cut off blood circulation. He couldn’t...

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