Law

The Courts: How Obama Dropped the Ball

AP Photo/Carolyn Kaster
(AP Photo/J. David Ake) I n his novel King of the Jews , Leslie Epstein sets his story in the wartime ghetto of Lodz, Poland, where the Gestapo ruled through an appointed council of Jewish elders. Epstein, researching the book, tracked down the gallows humor of the time. In one such joke, told by a character in the novel, two Jews are facing a firing squad. The commandant asks if they would like blindfolds. One of the condemned whispers to the other, “Don’t make trouble.” “Don’t make trouble” could have been the credo of the first year of the Obama Administration. The White House calculated that if the president just extended the hand of conciliation to the Republicans, the opposition would reciprocate and together they would change the tone in Washington. This was the policy on everything from the stimulus to health reform to judicial nominations. It didn’t work out so well. Now, spurred by the tailwind of a re-election victory and the realization that public opinion is on his side,...

Election Officials Defend Their Partisan Status

Flickr/Steve Rhodes
This campaign cycle, even election rules were grounds for partisan fighting. Republican Ken Detzner, Florida’s secretary of state, attempted a purge of the voter rolls, prompting accusations of discrimination. In Colorado, Secretary of State Scott Gessler, also a Republican, tinkered with a similar effort. Pennsylvania’s Secretary of the Commonwealth Carole Aichele, another Republican appointed by Governor Tom Corbett, openly supported the state’s voter-ID law. Most famously, there was Jon Husted, Ohio’s Republican secretary of state, whose decision to limit early-voting hours to keep them consistent across the state prompted cries of outrage. All of the partisan wrangling makes Wisconsin, which has a nonpartisan model for running elections , look pretty appealing. In 2008, the Badger State created Government Accountability Board, a group of retired judges approved by members of both parties who administer elections for the state. While it doesn’t stop legislative tinkering—the state...

Be Afraid, Be Very Afraid: SCOTUS Takes on Same-Sex Marriage

Flickr/Jamison Weiser
Tonight, you’ll hear on the news that the Supreme Court has agreed to hear the "gay marriage cases.” Much of the mainstream ( i.e. , straight) media will be treating the two cases they’ve taken—a challenge to California's ban on same-sex marriage, Proposition 8, and a challenge to DOMA, the federal law that prohibits the government from recognizing same-sex marriages performed in the states—as essentially the same. Don’t be fooled. The cases are very different. The fact that SCOTUS has taken both has a lot of us very worried. Let’s start with the more famous one: the Prop. 8 case. This is the one we did not want the Court to take. At its simplest, the lawsuit—brought by star lawyer team Ted Olsen and David Boies—is asking the Court to consider whether Prop. 8 is constitutional; it’s about whether there’s a fundamental right for same-sex couples to marry. When the California electorate passed Prop. 8 in 2008, you may recall, it overturned the state supreme court’s decision to allow...

How Will SCOTUS Rule on Prop. 8 and DOMA?

WikiMedia Commons
The Supreme Court has announced that it will be hearing both of the major gay-rights cases it was considering this term. Facing constitutional scrutiny are key provisions of the federal Defense of Marriage Act, which prohibits the federal government from recognizing same-sex marriages performed in the states, and California's Proposition 8, which banned same-sex marriage in the state. When combined with the major affirmative-action and voting-rights cases the court will also be handing down this term, this could be the most consequential Supreme Court term in decades. The two gay-rights cases face slightly different prospects. As I've said before, the argument that DOMA infringes on states' rights is likely to appeal to both Justice Anthony Kennedy's sympathy for gay rights and his skepticism of federal power. I would not even be shocked if Justice Clarence Thomas joined an opinion striking down the heart of the law, Section 3, and at least 5 votes seem very likely. The Prop. 8 case...

We Can't All Be Royals

AP Photo
Ap Photo Kate Middleton and Prince William on their wedding day I know you can hardly stand the excitement: Princess Kate is preggers! Finally, the QEII can step out of service, passing off the baton—er, scepter—in a way that skips right past her reprobate son. Finally, she has a new generation in line that understands the royal job: Get married, reproduce, and stay honorably married. Which, as you may have noticed over the weekend, is just what The New York Times 's Ross Douthat wants us reprobate Americans to start doing. In what began as an almost sensible column, Douthat noted that public policy can help encourage working people to have families. But then Douthat ran right off the rails, chiding us for our lack of character, our selfish decadence, our end-of-empire exhaustion, and for preferring the comforts of—oh, I don’t know, maybe paying the mortgage?—to the sacrifices of raising more children. Herewith: The retreat from child rearing is, at some level, a symptom of late-...

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,...

Will the Contraception Mandate Survive Judicial Review?

Yesterday's court order blocking the Obama administration's ruling on health-care plans is by no means the end of the road.

Yesterday, the Eighth Circuit Court of Appeals issued a stay blocking the Obama administration's requirement that employer health-insurance plans cover contraception. The related suit was filed by Frank O'Brien, a Roman Catholic business owner who claimed that the mandate violated his rights under the free exercise clause of the First Amendment. It's not clear whether the stay indicates a real chance that the mandate will ultimately be ruled unconstitutional. It was granted in a one-line order , with one of the judges in a three-judge panel dissenting. The stay order indicates that the two other judges consider the suit non-frivolous, but this does not necessarily mean that O'Brien will ultimately prevail. Still, the appeals court would have been better not to issue the stay, because the free exercise argument being made against the contraception mandate is i ndeed frivolous. The key precedent, Oregon v Smith , makes it clear that generally applicable laws do not violate the First...

Who's the Boss?

(Flickr/OzinOH)
Earlier this week, the Supreme Court looked into the question of who counts as a “supervisor” for the purpose of employment law. If you’re not an employment-law watcher, it sounds like the legal equivalent of how many angels can dance on the head of a pin. But the answer is going to have real-life consequences for hundreds of thousands of people. Let me illustrate. Imagine this: You’re a teenage girl working at a pizza place. You’re often scheduled to work with John, a leering guy in his twenties who has the same title that you do. But because John’s been working there six months longer, and is ten years older than you are, the assistant manager often leaves him in charge of the shift. John can’t officially fire you—only the assistant manager can do that—but he gets to tell you what to do on a given day. Here's the horrifying part: John gropes you grossly whenever he’s alone with you on the floor, in ways too explicit to be listed here. When you’re standing at the cash register, if...

Why Obama Won't Be the One to End the War on Drugs

Not this guy.
In New York magazine, Benjamin Wallace-Wells has a long article about the failure of the War on Drugs, in which he says, "Without really acknowledging it, we are beginning to experiment with a negotiated surrender." This is in reference to the recently passed marijuana legalization initiatives in Colorado and Washington, which will likely be followed by other states in upcoming elections. Hanging over these policy changes is the still-to-be-determined reaction of the Obama administration, which hasn't yet said whether it plans to send DEA agents to crack down on the businesses these laws allow for, or the growing operations they'll produce. And I'm beginning to suspect that the administration will try to set some kind of policy course intended to be as low-key and neutral as possible, neither giving the two states the green light to proceed as their new laws envision, nor embarking on some kind of dramatic and visible crackdown. Why? Because that's what Barack Obama appears to want...

Seeing Is Believing

Eyewitness testimony is unreliable and leads to wrongful convictions. Why has the judicial system not taken note?

(Flickr/Boston Bill)
(Flickr/Boston Bill) O n a Saturday night in July 1984, Jennifer Thompson, a 22-year-old, straight-A student at Elon College in Elon, North Carolina, returned to her apartment after attending a party. Thompson wasn’t feeling well and went to sleep. Her boyfriend left around 11 P.M. About four hours later, Thompson awoke with a man on top of her. He held a knife to her neck. He smelled of alcohol and cigarettes. Thompson screamed. “Shut up, or I’ll cut you,” the man threatened. Before, during, and after the rape, Thompson willed herself to study his features so she could increase the odds of identifying him later. She made mental note of his close-cropped hair, his small almond-shaped eyes, his high, broad cheekbones, his wisp of a mustache. When the rape was over, Thompson lured the man into the kitchen by promising to pour drinks for both of them. His attention briefly diverted, Thompson ran out the door to a nearby house. The neighbors called 911. Later, Thompson would learn that...

Good News from the Supreme Court

A stop-and-frisk in New York, recorded by a bystander.
There are a lot of ways that police, prosecutors, and other government officials argue that they can check on you without rising to the level of a "search" that would require a warrant. In recent years, officials at various levels and in various places have held that they can attach a GPS to your car to track your movements, get your cell phone records, or aim a heat-sensing device at your house to see what's going on inside, all without getting a judge's permission (they lost in court on the first and third). Yet when it comes to you recording them, they have a very different view. But in a rare bit of good news on criminal procedure, the Supreme Court has, by denying an appeal in a case from Illinois, effectively affirmed your right to record police officers in public: The Supreme Court has rejected an appeal from the Cook County state's attorney to allow enforcement of a law prohibiting people from recording police officers on the job. The justices on Monday left in place a lower...

Remember that Provisional Ballot Problem?

(Flickr/Joe Hall)
Ohio has finally begun to tally provisional ballots. This was supposed to be the moment we were all waiting for—back when the presidential election was going to be airtight and everyone was worried about elections administration in the ultimate battleground. Instead, the Obama campaign won a decisive victory, so few kept following the counting in Ohio. But even without an audience, the state's court battles continued well after Election Day. While the presidential race may not hang in the balance, the outcomes of two legislative races will determine a whether Republican lawmakers have a supermajority—which would allow them to easily pass a conservative agenda, including more attempts at voter suppression. “I think Ohio dodged a proverbial bullet,” said Ned Foley, the head of Ohio State’s Moritz Law Center. Still, Foley is quick to point out, “The focus has gone away but that doesn’t mean the vulnerabilities don’t exist.” The most recent fights have been over how to count provisional...

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...

The Judicial Bush Doctrine

(AP Photo/J. Scott Applewhite)
P resident Obama needs to be more like George W. Bush. Bush understood that a president’s longest-lasting legacy is often the judges who receive a lifetime appointment to the federal bench. He understood that another Republican will occupy the White House someday, and they will need a slate of potential nominees to the Supreme Court. And he understood that the judiciary can quietly implement an unpopular conservative agenda that would never survive contact with the elected branches of government. We are still living the legacy of Bush’s appointments. The Supreme Court’s five conservatives trashed consumers’ ability to stand up to rapacious corporations. They greenlighted laws intended primarily to suppress minority, low-income, and student voters . They thumbed their nose at women’s right to equal pay for equal work . And, while the Court’s Citizens United decision did not enable Mitt Romney’s rich friends to buy him four years in the White House, it will create a generation of...

Don't Fear the Backlash

(Flickr/David Schumaker)
(Flickr/Dave Schumaker) Supporters and protestors of same-sex marriage gather outside San Francisco's City Hall in 2008. Many observers have criticized the approach of using litigation to achieve social change ever since a Hawaii court ruled in 1993 that the denial of marriage benefits to same-sex couples was unconstitutional —criticism that only accelerated after Massachusetts's landmark Goodridge decision in 2003 ruling that bans on same-sex marriage are unconstitutional. Much of this criticism takes the form of what I call the " countermobilization myth "—that is, the idea that victories won through the courts produce a unique amount of political backlash that make them counterproductive. The remarkable wave of success for LGBT rights on Election Day, combined with a steady increase in support for same-sex marriage, makes the countermobilization myth even more untenable. Michael Klarman's invaluable new book, From the Closet to the Altar , remains ambivalent about the use of...

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