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.

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.

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.

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.

"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 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.


(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 white student—Grutter recognized that a university’s entire student body, white students included, benefit from a more diverse campus in ways that simply cannot be replicated in a homogenous community. As the Court explained, “‘classroom discussion is livelier, more spirited, and simply more enlightening and interesting’ when the students have ‘the greatest possible variety of backgrounds.’”

Another Big Year for the Supreme Court

(AP Photo/Carolyn Kaster)

The 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.

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. 

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.

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.

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.

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.

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.

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.