Law

The Difference Between Liberal Justices and Conservative Justices

You don't like it? Tough luck. (Flickr/Stephen Masker)
Liberals have for some time believed that all of conservatives' high-falutin' talk about "original intent" and judges who will "interpret the Constitution, not make laws" is just a crock. Rather, what they want is judges who will give them the results they want, whatever the Constitution may happen to say. "Original intent" is a particularly flexible, and therefore fundamentally bogus, rationale, since it's usually impossible to apply 18th century ideals to 21st century legal questions and arrive at a judgment based solely on your impression of what was in James Madison's mind, and therefore no matter what your preferred outcome is, you can justify it on the basis of original intent. And no one is more guilty of flinging that kind of baloney than Antonin Scalia. But conservatives respond that liberals do the same thing, pretending to believe in abstract principles when they really just want the people they like to prevail in every case that comes before the courts. Resolving the...

Guillotine Revival Movement Gains Momentum

Flickr/The Tedster
When things began to go terribly wrong with Clayton Lockett's execution in Oklahoma the other day—when instead of drifting gently off into unconsciousness and death, Lockett began to moan and buck on the gurney—one of the first things the officials did was lower the blinds over the window through which observers peered into the death chamber. Because after all, people shouldn't have to witness a man suffer as the state is killing him, right? Lockett's execution was hardly the first botched one we've had, particularly with lethal injection, a process prison officials seem extraordinarily incompetent at implementing properly. But for whatever reason, it has brought about a more substantial debate about the death penalty than we've had in some time. And as part of that, it looks like my semi-serious advocacy for the return of the guillotine is finally gaining momentum. It already has endorsements from Conor Friedersdorf and Sonny Bunch , with more sure to follow. Frankly, I've never...

Will the Fourth Amendment Go Mobile? SCOTUS and the Fate of 21st Century Privacy

07-12-09 © billyfoto
07-12-09 © billyfoto O n Tuesday, the Supreme Court heard oral arguments in two cases whose outcomes will have major ramifications for Fourth Amendment and privacy rights. Both cases, Riley v. California and United States v. Wurie , involve convictions based, in part, on evidence uncovered from a mobile phone searched without a warrant after the suspect was arrested. (In Riley , the warrantless search was upheld by the California courts; in Wurie , the warrantless search was determined by the 1st Circuit Court of Appeals to have been illegal.) Warrantless searches are, in general, presumptively not "reasonable" and are therefore forbidden by the Fourth Amendment, which protects against unreasonable searches and seizures . There are, however, allowable deviations from this general rule. One longstanding exception is that police have a right "to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction," as set out in the high court's...

Daily Meme: An Execution Gone Horribly Wrong

Nothing is more likely to make you question the morality of the death penalty than an execution gone horribly wrong. Yesterday, Oklahoma officials attempted to intervene after the lethal drug cocktail administered to death row inmate Clayton Lockett not only failed to kill him, it made him writhe and gasp after he'd been declared unconscious . The episode was disturbing enough that Oklahoma's governor, Mary Fallin, delayed a second execution that was supposed to happen later in the day, calling for a "full review" of the state's execution procedures. A reporter who was on the scene in Oklahoma was so horrified by what she saw that she decided to tweet details from the execution . "Live tweeting an execution seems unnecessary and kind of sick to me," she wrote. "After what happened, I felt like it was important for people to know." Officials are now claiming that the problem wasn't with the drugs themselves, but the way they were administered. But other grisly episodes in which...

All of a Piece: Donald Sterling, Cliven Bundy and the Supreme Court of the United States

AP Photo/Mark J. Terrill
B eginning with the April 22 decision by the Supreme Court of the United States allowing affirmative action’s fate to be decided at state ballot boxes, followed 24 hours later by rancher Cliven Bundy’s comments on slavery’s positive attributes, followed 48 hours later by Los Angeles Clippers owner Donald Sterling’s plantation master attitude on display in a recorded telephone conversation attributed to him, this past week has been hell for African Americans. So much for post-racialism. During the conversation in which a man said to be Sterling demands that his girlfriend not be seen in the company of African Americans--nor even attend Clippers games in the company of black friends-- saying : “We live in a culture.” He goes on to argue for adherence to the rules of prejudice that exist within the culture. Yet another aspect of that culture, the one Sterling says we all live in, is a news cycle that enables each of these stories to supersede the other solely on the basis of...

Pardon Me, Mr. President?

Flickr/Salticidae
Flickr/Victoria Pickering T his week, the Department of Justice (DOJ) announced the start of a new initiative on clemency, encouraging thousands of inmates—particularly those convicted during the Drug War crackdown of the 1990s—to send in petitions to have their sentences commuted. The new initiative offers six new criteria by which petitioners will be judged, including the following: prisoners must have served 10 years of their sentence, must not have lengthy criminal records or gang convictions, and show that they would have gotten off with a lighter sentence had they been tried today. In his more than five years in office, Obama has been the stingiest president in history when it comes to granting pardons; the new program could make him one of the most generous. But the biggest news for criminal-justice reformers has been the administration’s appointment of a new pardon attorney to oversee the program: Deborah Leff , who spent her years at DOJ working on the Access to Justice...

Justice Sotomayor's Powerful Defense of Equality

AP Photo/Steven Senne
AP Photo/Steven Senne Supreme Court Justice Sonia Sotomayor Y esterday, the Supreme Court upheld a provision of Michigan's constitution that bans the state or any of its subdivisions from "grant[ing] preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." The Court was fractured; the six justices who voted to uphold the amendment did so for three independent reasons. Written by Justice Anthony Kennedy, the plurality decision—to which Chief Justice John Roberts and Associate Justice Samuel Alito signed on—was narrow: It upheld the amendment without disturbing any precedent. Far more interesting was Justice Sonia Sotomayor's dissent, which makes a strong case for a robust interpretation of the equal-protection clause of the 14th Amendment and represents perhaps her most compelling work in her tenure on the Court so far. The case for upholding...

How Big Data Could Undo Our Civil-Rights Laws

iStockPhoto
iStockPhoto B ig Data will eradicate extreme world poverty by 2028, according to Bono , front man for the band U2. But it also allows unscrupulous marketers and financial institutions to prey on the poor . Big Data, collected from the neonatal monitors of premature babies , can detect subtle warning signs of infection, allowing doctors to intervene earlier and save lives. But it can also help a big-box store identify a pregnant teenager —and carelessly inform her parents by sending coupons for baby items to her home. News-mining algorithms might have been able to predict the Arab Spring . But Big Data was certainly used to spy on American Muslims when the New York City Police Department collected license plate numbers of cars parked near mosques, and aimed surveillance cameras at Arab-American community and religious institutions. Until recently, debate about the role of metadata and algorithms in American politics focused narrowly on consumer privacy protections and Edward Snowden’s...

Race-Blind Admissions Are Affirmative Action for Whites

L-R: Brooke Kimbrough, Coach Sharon Hopkins and Rayvon Dean of the University Prep Debate team.
B rooke Kimbrough always dreamed of becoming a University of Michigan Wolverine. Her score on the ACT—a college-readiness test—dwarfs the scores of most of her classmates. Earlier this month, she was part of a winning team at the National Urban League Debate Championship in Washington, D.C. Last week, she became a powerful symbol for exactly how Michigan's race-blind college admissions policies have failed. In December, the University of Michigan informed Kimbrough that her application for admission had been wait-listed. Two months later, she received the letter that she had not been accepted. But instead of conceding defeat, Kimbrough decided to fight. Today she hopes that her story will highlight how Michigan's current approach to race in admissions fails exceptional students of color. Black students comprise just 4.6 percent of the 2012 freshman class; in 2008, the number was 6.8 percent. Over the course of this year, I had the honor of working with University Preparatory Academy...

Where the Death Penalty Stands

Yesterday, the New Hampshire state Senate deadlocked on a bill that would have eliminated the state's death penalty, killing the bill for the moment and leaving New Hampshire as the only state in New England that still has a law providing for executions. The bill had already passed in the state House of Representatives and has the support of the governor, so one more vote would have passed it. I thought this was a nice opportunity to look at the state of the death penalty in America and around the world. On to the charts and graphs! As of now, 32 states still have the death penalty, and 18 (plus the District of Columbia) have eliminated it. Six of those 18—Connecticut, Illinois, Maryland, New Jersey, New Mexico, and New York—eliminated their death penalties just since 2007. Even in some states that have death penalty laws on the books, capital punishment has all but disappeared. Kentucky, for instance, has executed only three prisoners since the Supreme Court reinstated the death...

The Abortion Restriction That’s Too Extreme for Most Pro-Lifers

AP Images/The Columbus Dispatch/Brooke LaValley
E arlier this month, lawmakers in Kansas ended this session’s debate over abortion on a surprisingly low-key note. The Republican leadership shepherded two minor tweaks to existing abortion policies through the legislature, while staving off a far more contentious measure: a bill that would criminalize abortion after a fetal heartbeat can be detected, as early as six weeks into a pregnancy. The bill’s advocates say they are confident it would have passed, had it reached the floor; Kansas has strong anti-abortion majorities in both houses of the legislature and pro-life crusader Sam Brownback in the governor’s mansion. But the Republican leadership, prompted by the state’s most powerful pro-life group, Kansans for Life, used a legislative loophole to keep their more radical colleagues from attaching the fetal heartbeat proposal. Why, in a state where nearly every strain of anti-abortion restriction has taken root with ease, are advocates of the fetal heartbeat ban facing such stiff...

Don't Let the Bush Administration Off the Hook For Torture

There's a new report out today from McClatchey on the CIA's torture program based on that Intelligence Committee report. They got a closer look at it than journalists have before, so there are some more details. But there's a danger in how this could be interpreted that will serve to let people who were complicit in the torture program off the hook, so we need to be careful about how we deal with this information. But first, here are their bullets: The CIA used interrogation methods that weren’t approved by the Justice Department or CIA headquarters. The agency impeded effective White House oversight and decision-making regarding the program. The CIA actively evaded or impeded congressional oversight of the program. The agency hindered oversight of the program by its own Inspector General's Office. And now to put this in context: The Justice Department's Office of Legal Counsel found that the methods wouldn't breach the law because those applying them didn't have the specific intent...

How John Paul Stevens Would Amend the Constitution

AP Images/Manuel Balce Ceneta
What made John Paul Stevens's contributions in his 35 years on the Supreme Court so invaluable was not just the votes he cast but his fiercely intelligent idiosyncrasies. On issues ranging from the fundamental incoherence of trying to use different categories of scrutiny to apply the equal protection clause to the Establishment Clause, to problems presented by the Religious Freedom Restoration Act, to racial discrimination in the War on Drugs, Stevens carved out unique positions that have generally aged much better than the alternatives. So it's gratifying that Stevens has not retired in silence, instead providing valuable commentary on constitutional controversies including the right to vote and the American criminal justice system . Stevens's new book , Six Amendments: How and Why We Should Change the Constitution , represents another valuable and accessible contribution to the country's constitutional discourse. The premise of the book is accurately captured by the title, which...

Yes, Being a Woman Makes You Poorer

AP Images/Susan Walsh
S enate Republicans blocked the Paycheck Fairness Act yesterday, a bill that would make it illegal for employers to punish workers for discussing wages and would require them to share pay information with the Employment Opportunity Commission. President Barack Obama has already signed an executive order prohibiting federal contractors from punishing employees who talk about their pay. These two actions were pegged to the somewhat made up holiday called “Equal Pay Day” celebrated Tuesday, and were discussed by many in Washington in merely political terms : evidence of attempts by Democrats to woo women voters and a continuing sign of Republicans' “difficulties” with them. Elsewhere, pundits and writers wanted to discuss whether the pay gap really existed. A few years ago, some conservatives and a few liberals began to attack the much-talked-about fact that women make 77 cents to every man’s dollar as untrue, based largely on the idea that the gap itself was mostly accounted for by...

Fetal Abnormalities: The Next Minefield in the Abortion Wars?

AP Images/Steve Helber
I n January, two legislators in Virginia’s House of Delegates introduced a bill that should have been uncontroversial. The bulk of HB 612 created new rules for genetic counselors practicing in the state, who had been unregulated and unlicensed. The roughly 95 genetic counselors already working in the state, screening pregnant women and adults for serious inheritable conditions, favored the law, which they saw as an extra layer of patient protection. The bill was so innocuous that by the time it passed in the House in late February, no one seemed to have noticed that it contained a conscience clause so sweeping that could allow counselors to refuse to provide fetal test results for conditions like Down Syndrome or Tay-Sachs Disease—the information patients came to them for in the first place—if they believed it could cause a woman to terminate her pregnancy. Originally, the bill had only created a loophole for genetic counselors who want to refrain from offering information about...

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