The Docket

The Prospect's legal affairs blog

Throwaway People

(Flickr/Tim Pearce)
“You're making a 14-year-old throwaway person.” Justice Ruth Bader Ginsburg’s phrase fell into the Supreme Court chamber with an ominous clang, like the sound of metal doors slamming. Not surprisingly, Kent Holt, an assistant Arkansas attorney general, tried to mute the clang. Speaking of Evan Miller, who committed murder at 14 and is now challenging his sentence of life without parole, Holt said, “I'd respectfully disagree that he's a throwaway person.” “What hope does he have?” Justice Sonia Sotomayor asked. Well, Holt responded, he could ask for a commutation of his life-without-parole sentence. He cited a 1979 Arkansas case stating that 30 such requests had been granted in the five years before. This seemed like a slim hope when Bryan Stevenson, Jackson’s lawyer, rose to rebut Holt. Commutations had become rare in the last 30 years, he said: Since 2007, there has been only one. The gates of Dante’s Hell carried the inscription, “Abandon all hope, ye who enter.” For thousands of...

George Zimmerman's Collaborators

Wikipedia
Particularly after Charles Blow devoted his column last week to the subject, the so-far unprosecuted shooting of Trayvon Martin has deservedly gotten a lot of attention. For good reason, much of this attention has focused on Florida's odious 2005 revisions to its law of self-defense. It was entirely predictable that changes to the law eliminating the duty to retreat and permitting the use of deadly force if an individual "reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony" would lead to situations such as the Martin shooting. That is, it was predictable that it would lead to a case in which someone would be getting off scot-free for shooting an unarmed teenager whose only crime appears to be "walking while being African-American in a white suburban neighborhood." Still, it is important to note that this is not quite a case where a bad statute has compelled a tragically...

Celebrating the Defeated

(Flickr/FadderUri)
Three former Iowa Supreme Court justices might not have received much love from their constituents, but they're about to be granted a national accolade. Chief Justice Marsha Ternus and Associate Justices David Baker and Michael Streit were voted off the bench in 2010 after conservative activists organized against their retention election, a typically routine procedure that became political overnight. Conservatives—led by failed gubernatorial candidate and evangelical leader Bob Vander Plaats—were outraged when the state Supreme Court legalized same-sex marriage in 2009. The state's constitution is difficult to amend, so they decide to voice their displeasure by removing those three justices with funds provided by major social conservative organizations such as the American Family Association and the National Organization For Marriage. Liberals were caught off guard—unprepared to run a defensive campaign—and the three justices chose to sit out the election under the belief that it...

The ACA v. the Supreme Court

(Flickr/Mark Fischer)
This is the first of a series of posts looking at the arguments in the upcoming health-care case. Judges, whatever they like to pretend, rarely decide cases on logical application of argument and case law. They do think about those things, but usually only after they’ve made up their minds—and they tend to make up their minds based on unformed emotional reactions to the questions raised by a case. So it’s worth asking about the emotional subtext in the minimum coverage (or “individual mandate”) aspect of the Affordable Care Act case, which will be argued in late March. This is the one issue that has stirred public fear— Cheese it, it’s the Broccoli cops! —and Justices are members of the public. The two party briefs by foes of the ACA play heavily on that fear. Be afraid, they warn. Be very afraid. A corrupt, power-hungry Congress wants control of your evening cocktail, your dinner plate, and the car you drive. The government’s tone is calmer. Nothing to see here, the government’s...

Faux Federalism

(Flickr/tarsandsaction)
The central fact of American federalism, as I’ve written before , is hypocrisy. Witness H.R. 1433 , the Private Property Rights Protection Act of 2012, passed on February 28 by the House of Representatives. The Act targets Kelo v. City of New London , the 2005 decision in which the Court announced that the Fifth Amendment does not forbid state governments from using their power of eminent domain to acquire—at fair market prices—private property for use in economic development projects. Eminent domain is a power limited by the Constitution to taking property “for public use” and with “just compensation.” But some states interpreted “public use” to mean incorporation in public-private developments like the mixed use development at stake in Kelo —a corporate research facility, shops and restaurants, a hotel, and a park. The right hates Kelo a lot worse than it hates the federal government. Not long ago, in fact, Justice Antonin Scalia compared the case to Dred Scott v. Sandford , the...

Did Virginia Pro-Choicers Blunder?

NARAL Pro-choice Virginia
I definitely agree with the central point of Sarah Kliff's post —namely, that the ultrasound law that ultimately passed in Virginia is almost as bad as the bill mandating transvaginal ultrasounds that was initially proposed. Like Dahlia Lithwick , though, I don't really agree with the Kliff's framing argument that the passage of a slightly-less-bad set of abortion regulations resulted from a pro-choice "blunder." It's not as if there's some magic technique that can enable pro-choice groups to stop Republican governments from passing bad abortion regulations that they want to pass. Pro-choice groups were able to stop the most extreme form of the bill because the effective requirement of a transvaginal ultrasound turned out to be highly unpopular . Less invasive ultrasound requirements, conversely, like a lot of abortion regulations are bad public policy but are not necessarily not unpopular despite the best efforts of pro-choice groups. In these circumstances, supporters of...

Winning the Battle, Losing the War

(Flickr/VCU CNS)
Pro-choicers, for obvious reasons, were inclined to celebrate when Virginia Governor Bob McDonnell backtracked on a bill that would have required women to obtain transvaginal ultrasounds before obtaining an abortion. Finding an arbitrary abortion regulation that was actually politically toxic feels like a major victory, especially if it could translate to other states. Unfortunately, as Dahlia Lithwick and Maya Dusenberry point out, even in Virginia the victory is proving to be largely hollow. While the bill that McDonnell is about to sign is a marginal improvement over the original because it allows women to opt out of a transvaginal ultrasound, it's still terrible legislation. Dusenberry does a superb job of explaining why the slightly-less-intrusive bill is still terrible: it adds a substantial cost to women seeking to obtain an abortion while providing no medical benefits, its burdens fall disproportionately on poor and rural women who already have less access to reproductive care...

The Emerging Sotomayor-Muppet Axis of Evil

Can’t you take a joke? In the time and place where I grew up, as I have written before , Federal judges were figures of awe. They were men (all men) of rather severe probity, following unpopular mandates from the Supreme Court even when those decisions cost them friends and put their lives in danger. I never recall a public complaint from any of the judges in the Southern state where I grew up, and certainly never outright ridicule of the President and the Congress—at least where others might overhear. Many of these judges held legal and social views I found profoundly wrong. But they were careful to protect the prestige and integrity of the courts they served, and to avoid giving the impression that they were just ordinary players in the poisonous politics of segregation. No matter their private misgivings, they publicly served the law and upheld the Constitution. In no small part I owe my choice of profession to the memory of their service. Here is the federal bench 2012, after a...

Cheering on the Nightmare Scenario

(Flickr/ktgeek)
As the Prospect 's Jamelle Bouie notes, the invaluable Greg Sargent outlines a "nightmare scenario" should the Republicans capture the Senate in 2012: the possibility that they will eliminate the filibuster. My response would be that ultimately this is more of a dream scenario, both for progressives and for American democracy. This is not to say that eliminating the filibuster with unified Republican government—the only scenario, as Sargent correctly notes, in which the filibuster would be eliminated—wouldn't lead to some bad legislation that wouldn't pass with the filibuster buffer. It almost certainly would. But such potential short-term setbacks shouldn't blind us to the fact that the filibuster is a transparently indefensible feature of American government, and if it takes a temporary Republican advantage to get rid of it, this is a price worth paying. In theory, the filibuster is a terrible idea. To be sure, democracy means more than simple "majority rule," and it is important to...

Pirates of the Corporation

Let’s play make-believe (sorry, lawyers call it “counterfactual”) with Justice Stephen J. Breyer. Imagine that Edward Teach, known as Blackbeard, had incorporated his buccaneering business as Pirates, Inc. Now Blackbeard is captured. And sued. “Do you think in the 18th century if they'd brought Pirates, Incorporated [to court], and we get all their gold, and Blackbeard gets up and he says, oh, it isn't me; it's the corporation—do you think that they would have then said: Oh, I see, it's a corporation. Good-bye. Go home[?]” Kathleen Sullivan, the lawyer for the Royal Dutch Petroleum Company, did not flinch: “Justice Breyer, yes, the corporation would not be liable.” She helpfully added that under maritime law, Blackbeard’s victims could sue his ship and get its value. But as for the corporation, no. A few minutes later, Breyer was back. “What about slavery? ... That seems like contrary to international law norms, basic law norms, it could be committed by an individual. And why, if it...

Taking Anti-LGBT Discrimination Seriously

(Flickr/Zolk)
U.S. District Court Judge Jeffrey White's recent opinion holding a key provision of the Defense of Marriage Act unconstitutional presents an interesting contrast to Judge Stephen Reinhardt's recent opinion on California's Proposition 8. Reinhardt, trying to maximize the chances that his opinion would not be overruled and therefore create a bad Supreme Court precedent, wrote a cautious and narrow opinion closely tailored to the unique facts of the case at hand. Judge White, conversely, wrote a broad (though clearly argued) opinion that would have much wider implications. Whether White's opinion can survive further appellate review remains to be seen. But on the merits, he provides a very compelling argument that the legal subordination of people based on their sexual orientation should be considered intolerable. Contemporary equal protection law evaluates state classifications by applying various levels of scrutiny. Racial classifications are subject to "strict" or "heightened"...

The Court That Walks Off Cliffs

(Flickr/peachygreen)
Affirmative Action: Perhaps the defining characteristic of the Rehnquist Court was a certain last-minute reticence. On issue after issue—the Commerce Power, abortion, even the long-standing conservative desire to do away with Miranda v. Arizona— the Court would walk up to the edge of the abyss, dangle its toes over the side, and then step (slightly) back. While moving the law far to the right, the Court seldom engaged in the kind of radical overruling that would have perhaps called its legitimacy into question. Early indications are that the Roberts Court has seen the abyss, and it works. Its two most radical decisions, District of Columbia v. Heller and Citizens United v. Federal Election Commission , both represented quantum leaps toward writing the hard-right agenda into the Constitution. We’ll get another indication of how willing to jump the Court’s majority is, obviously, when the Court decides the mammoth health-care cases later this term. To reach the right’s favored result,...

Trying to Win Beyond Virginia

I wrote earlier this week that Virginia's mandatory ultrasound law was proving to be highly unpopular. But though many its Republican supporters were clearly spooked by the level of opposition, I didn't think it very likely that Governor Bob McDonnell would withdraw his support. Happily, I was wrong. McDonnell came out against the provision, and it will presumably be deleted from the final legislation. This is good news. But supporters of reproductive freedom should temper their enthusiasm. There's a flip side to the factors that made the ultrasound bill unpopular—the burdens on abortion that fall primarily on women who have less representation in the political process and don't involve bodily invasion will be much harder to defeat. It's also important to remember that several other states have mandatory ultrasound provisions that are as bad or worse than the one that almost passed in Virginia. Irin Carmon's excellent account of the victory in Virginia contains these thoughts from the...

The Right to Tell Lies

(Flickr/cliff1066a,,c)
Most Supreme Court arguments last one hour—30 minutes for each side. At unpredictable intervals, however, the Court grants one party several extra millennia of agony as a once-solid case disintegrates in full view of the entire courtroom. This happened Wednesday in the argument in United States v. Alvarez , the much-discussed Stolen Valor Act case. The victim of the agony extension was Jonathan D. Libby, deputy federal public defender from Los Angeles. His client, Xavier Alvarez, is a habitual liar who has regularly and vainly tried to convince people that he is a former U.S. Marine, an old-timer with the Detroit Red Wings, the ex-husband of a Mexican movie star, the personal rescuer of the U.S. Ambassador to Iran—and, unfortunately for him, a recipient of the Congressional Medal of Honor. That latter claim violated the Act, passed in 2005. It makes it a federal crime for anyone to “falsely represent[] himself or herself . . . verbally or in writing, to have been awarded” any military...

The End of Affirmative Action in College

(Flickr/Kodamakitty)
As my colleague Jamelle Bouie noted yesterday, the Supreme Court agreed to hear Fisher v. UT Austin, a challenge to the use of affirmative action for undergraduate admissions at the University of Texas. I wish I could make a case for more optimism, but I have to agree with the conventional wisdom that Grutter v. Bollinger , the case that upheld that affirmative action was allowed in higher education so long as it was done to promote diversity, is likely to be overruled and the use of affirmative action in higher education therefore made flatly unconstitutional. To start with the less-bad news first, readers may find it ominous that Justice Elena Kagan has recused herself from the case. But this means less than it might appear at first. The 5th Circuit opinion the Supreme Court is reviewing upheld the constitutionality of the program. Because of this, if the Supreme Court deadlocked 4-4, the program would be sustained and Grutter would remain good law. While the best outcome would be a...

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