Law

The Court’s Scott Walker Moment

(AP Photo/Alex Brandon)
On First Amendment Thursday, the conservative majority on the Supreme Court delivered an unsubtle warning to public employee unions: You are living on borrowed time. In Knox v. Service Employees International Union , the five—Chief Justice John Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel A. Alito—reached out to decide a question that was not argued or briefed; their opinion all but begs right-wing advocacy groups and public employers to use its emerging First-Amendment jurisprudence to take down public-employee unions and in essence find a Southern-style “right to work” law in the Constitution. In the days when right-wingers favored judicial restraint, this might have been called “judicial activism.” It is the Court’s Scott Walker moment. The case concerned the rules by which unions can assess “agency fees” payable by non-members who benefit from the unions’ collective bargaining efforts. Though public employees can’t be forced to join...

Key Rulings Reveal Partisan Divides On Court

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The more than 20,000 people who were following SCOTUSblog's live-blogging of today's cases did not, as you probably know by now, get the health care ruling many of us were stressed out about. There were, however, some other major rulings that deserve some attention. Among other things, they illustrate that presidential elections matter a great deal. This isn't to say that the Supreme Court always divides along ideological lines. One of today's big cases involved the question of whether the Federal Communications can issue regulations fining networks for broadcasting "fleeting expletives" and "momentary nudity." The Court unanimously ruled that the regulation could not be applied against networks in specific cases. But contrary to some initial reports it achieved unanimity the way it often does—by ducking the important substantive issue. The Court did not rule on First Amendment grounds but instead said that the due process rights of the networks were violated because they were not...

Issa's Contemptible Vote

(AP Photo/J. Scott Applewhite)
If contempt of Congress ( current polls show a whopping 17% approval) is a crime, we are a nation of criminals. That thought leapt to mind at the news that the House Oversight and Government Reform Committee, chaired by Representative Darrell Issa (R-CA.) has voted to ask the full House to hold Attorney General Eric Holder in contempt because of his refusal to turn over internal records relating to the administration’s response to the “Fast and Furious” gun-walking scandal in Arizona. In response to the prospect of that vote, Deputy Attorney General James M. Cole announced that President Obama had asserted executive privilege over the documents requested. The cable news channels are crackling with faux outrage on both sides. Republicans are shocked that the Attorney General and the White House are covering up what must surely be dreadful misdeeds. Democrats are outraged at this partisan attempt to besmirch the administration by baselessly suggesting misconduct and a high-level cover-...

Lethal Injection and the New Immigration Policy

(AP Photo/Jacquelyn Martin)
In March 197 7, two Tulsa horsewomen went to a church parking lot to meet an man who claimed to have Morgan horses to sell. Not long afterwards, their bodies were found near Sallisaw, Oklahoma, buried on land leased to Larry Leon Chaney. Chaney was convicted of murder and sentenced to death. Chaney’s case forms the legal backdrop to the announcement last week that the Department of Homeland Security would begin to “defer action” against undocumented immigrants under the age of 30 who have lived most of their lives in the United States and have served in the military or gotten an education. The decision has been widely reported as an “executive order” suspending parts of the Immigration and Naturalization Act. Representative Steve King (R-IA) vowed to file suit against Obama for “planning to usurp the Constitutional authority of the United States Congress and grant amnesty by edict to 1 million illegal aliens." In fact, the policy change is not an executive order—it was a memorandum...

Diluting the Sixth Amendment

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None of the most anticipated Supreme Court cases remaining this term—on health care, immigration, or "fleeting expletives" on broadcast television—came down today. But we did get a Sixth Amendment ruling that is both important in itself and tells us something important about the justices on the Court. The Sixth Amendment gives a criminal defendant the right "to be confronted with the witnesses against him." The Confrontation Clause cases are interesting because they usually demonstrate the limits of describing the Court as fixed "liberal and conservative" blocs. Generally, the reliably statist Chief Justice Roberts and Justice Alito have joined with Justice Kennedy (a more moderate conservative, but one with a consistent terrible record in Fourth and Sixth Amendment cases) and Justice Breyer (a more liberal justice with conservative tendencies in civil liberties cases.) Conversely, although they're generally considered the most conservative justices on the Court Justices Thomas and...

Department of Justice Acts to Prevent Disenfranchisement in Florida

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Florida governor Rick Scott is attempting to engage in a purge of voters, requiring some voters to prove their citizenship within a limited time frame in order not to be disenfranchised, allegedly in order to address "vote fraud" that for all intents and purposes doesn't exist . The Department of Justice told Scott to stop this illegal vote suppression. Scott's response was to thumb his nose at the federal government and federal law. Predictably, the Department of Justice has responded by suing Scott . The Obama administration's reaction to illegal voter disenfranchisement may seem like no-brainer. And, yet, just 12 years ago George W. Bush attained the White House in large measure because neither principle nor even self-interest could motivate Democrats to care about even more egregious disenfranchisement. The 2000 election was a sort of perfect storm of defects with America's irrational federal election system. And several of the factors that led to George W. Bush to get Florida's...

Where to Draw the Line on Hate Speech?

Jeremy Waldron's new book tries to uncover the best way to tackle hate speech on the legal and policy front.

Discussions of free speech in the United States often call upon the adage—misattributed to Voltaire—that “while I disagree with what you have to say, I will defend to the death your right to say it.” (The quote in fact comes from Evelyn Hall, who wrote a biography of the French philosopher.) It’s a succinct summary of a the cherished American idea that speech should not be abridged because we find its content objectionable. But according to New York University Law Professor Jeremy Waldron, it’s severely flawed. In The Harm in Hate Speech , published this month by Harvard University Press, Waldron argues that freedom of speech in the United States is so absolute, both in law and in public opinion, that we lack meaningful regulation against speech intended to demean or vilify minority groups—what we casually refer to as “hate speech.” Hate-speech laws, Waldron notes, are “common and widely accepted” in every other advanced democracy. But in the United States, Waldron says, those who...

How Should Voter Purges Work?

(Flickr / dailyfortnight)
The mess that is Florida's voter-purge effort keeps growing by the day. Both the ACLU and the Department of Justice are suing the state, which in turn is suing the federal government. After the state's Division of Elections declared it had found around 182,000 noncitizens on voter rolls, the state sent letters to 2,600 people of them asking if they were citizens. Those who failed to respond risk being removed from the lists. The trouble, of course, is that 500 of them proved to be citizens . Less than 100 have so far been proved ineligible to vote. Because the list examines citizenship, Hatians and Latinos are disproportionately targeted. In the meantime, the 182,000-list looms in the background, though it has not been publicly released. As legal tensions boil over, the effort has been put on hold in just about every county . But with less than 90 days until the state's primaries, many worry there will be complications when people go to vote. The debacle, however, brings to mind a...

Will You Marry Me?

How same-sex marriage will be won in the states

(Flickr/Fritz Liess)
I’m married in Massachusetts. I’m not married in the United States. That paradox is untenable, the First Circuit Court of Appeals declared in May as it unanimously struck down Section 3 of the Defense of Marriage Act—the portion of the 1996 law stating that, for federal purposes, marriage is between a man and a woman. Most legal observers believe the Supreme Court will agree, and the feds will have to recognize my marriage. That would leave me almost fully married, but not quite: Thirty-eight states still ban recognition of same-sex marriages. So what’s the path to marriage equality nationwide? President Barack Obama hinted at an answer, two weeks before the First Circuit decision, when he announced his support for same-sex marriage, adding that it shouldn’t be a federal issue. The states were working it out for themselves, he said approvingly. Some impatient liberals carped at the suggestion. “I don’t think civil rights ought to be left up to a state-by-state approach,” Congressman...

Ending the Practical Argument About the Death Penalty

The Halifax Gibbet (scarletharlot69)
When he was running for president in 2000, George W. Bush was often asked about the fact that as governor of Texas, he executed 152 people, more than any other governor in modern history at the time (though his successor Rick Perry has since surpassed him ). Bush always responded that he believed the death penalty saves lives. In other words, his primary justification was a practical argument, not a moral argument. But the empirical evidence on the question of whether the death penalty was always fuzzy at best. Like most death penalty opponents, I was always very skeptical of claims like Bush's (isn't that odd, how our beliefs about what is always seem to line up so neatly with our beliefs about what ought to be ). Despite what you might believe from watching Law & Order , most murders aren't carefully planned so that the perpetrator can get his hands on his grandmother's fortune, giving him plenty of time to contemplate the potential consequences if he gets caught. People who...

The Press Is Unfair to Everybody

Flickr/Dorry Samuels
A few weeks back, President Obama expressed his belief that the Supreme Court would be wrong if it overturned his signature domestic policy achievement, the Affordable Care Act. Republicans immediately had a hissy-fit, accusing Obama and his allies of trying to "intimidate" the Court in yet another frightening example of thuggish Chicago-style politics. As Dahlia Lithwick points out , the only ones who have leveled any actual threats at the courts lately are conservatives—Newt Gingrich proposed that if judges made decisions that some people (i.e. Republicans) didn't like, they ought to be hauled before Congress to explain themselves, and arrested by federal marshals if necessary; Rick Santorum (and others) have suggested eliminating the 9th Circuit appeals court, since it has issued some decisions he disagrees with. But as Lithwick explains, the Supreme Court is really of two minds when it comes to being criticized publicly: RoNell Andersen Jones, a professor at Brigham Young...

Racist Searches and Drug Arrests Fine With New York GOP

Last month, the New York Civil Liberties Union released some extremely disturbing data about "stop and frisk" searches in New York City. Since 1968, the Supreme Court has held that warrantless patdown searches by police require only "reasonable suspicion" rather than the "probable cause" required to obtain a search warrant under the Fourth Amendment. This watered-down standard has always been subject to abuse, and there can be little doubt that this has been the case in New York. A remarkable 685,724 New Yorkers were subject to such warrantless searches in 2011—compared to fewer than 100,000 in 1993. Nearly 90 percent of those subject to these searches were innocent. And, worse, most of those found "guilty" were guilty of minor drug possession charges—less than 2 percent of those subject to stop-and-frisk searches were carrying a firearm. And, worst of all, what constitutes a "reasonable suspicion" is clearly defined in substantial measure by racial profiling. 87 percent of those...

Ho-Hum, Another Day, Another DOMA Defeat

How boring are marriage equality wins now? So boring that yesterday's DOMA defeat isn't even on The New York Times home page this morning, as I write this. And yet it's a big deal. Edie Windsor and Thea Spyer were together for 44 years. (Do go see the adorable movie about their life together; they're a very cute couple.) They married in Canada in 2007, a marriage that was recognized by their home state of New York. But when Thea died, the federal government taxed Edie on her estate as if they were strangers. The ACLU brought the suit, there were some private grumbles that there were already plenty of DOMA lawsuits and that a plaintiff as well-off as Windsor wouldn't be sympathetic—but I don't think anyone wants a widow stripped of property that she's treated as her own for decades. And in any case, there are so many lawsuits at this point, who even notices the plaintiffs? Yesterday, a federal district court judge in New York ruled that, at least in this case, DOMA's Section 3 "does...

The End of 5-4

The Supreme Court in 2010.
Of all the things we talk about during a presidential campaign, the Supreme Court probably has the lowest discussion-to-importance ratio. Appointing justices to the Court is one of the most consequential privileges of the presidency, one that has become more important in the last couple of decades since the Court has become more politicized. But there isn't a great deal to say about it during the campaign, beyond, "If we lose the election, we'll lose the Court." The candidates aren't going to say much of anything about whom they'd appoint other than a bunch of disingenuous bromides ("I'll appoint justices who will interpret the law, not make law!"), and we don't actually know who's going to retire in the next few years, so in the campaign context there isn't much to be said . But if there's anything that ought to make you afraid of a Mitt Romney presidency, it's this. First of all, if Romney wins he will be under enormous pressure to make sure that anyone he appoints will be not just...

Wedding Bells in Illinois?

(Flickr/Benson Kua)
You all have got to be tired by now of me celebrating good news for LGBT rights, bouncing around in my Tigger-y fashion, showing yet another way that we're winning. But I can't help it. As we've discussed, I grew up in the Pleistocene era, when you still had to look over your shoulder leaving a gay bar. Now I'm married to another woman, at least in the eyes of Massachusetts. It's crazy to live through so much social change in just a few decades. (A friend of mine says: "E.J., you sound like one of those older black folks who talk about how miraculous it is to no longer live under Jim Crow." Well, it's true! Being me is no longer a felony!) All of which is to say: here are two more little bright spots that show how fast the tide is changing, coming back in to wash away all the nasty old antigay state DOMA laws that piled up when the shockingly new idea of marrying same-sex pairs was first discussed in 1996, 2000, and 2004. Bright spot #1: Recently the ACLU and Lambda brought two...

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