Law

Sonia Sotomayor's Radical Judicial Activism

(Sesame Street)
This week, the Senate Judiciary Committee approved a bill requiring TV access to Supreme Court arguments. Justice Sonia Sotomayor isn’t waiting: She made her debut on Sesame Street this week. Though she and Maria were just trying to enjoy “un cafecito,” they were interrupted by Baby Bear, who demanded a judgment in his case against Goldie Locks, who had (as the record has long reflected) broken his tiny chair during a most flagrant trespass quare clausum fregit . Sotomayor listened to the twin arguments and suggested that Goldilocks take her personal glue, fix the chair, and “then the two of you can live happily ever after.” Now this is all very well, but what sort of example does it set for the young? Isn’t it the worst sort of unprincipled activism? Why did she not turn to the wisdom of the Founders? Not long ago I was sternly lectured by Professor Michael Ramsey of the University of San Diego for an irreverent post about Justice Antonin Scalia’s opinion in United States v. Jones...

Hidden Gems in the Mortgage Deal

AP Photo/Paul Sakuma
In the end, as at the start, Thursday’s deal between five big banks, the Department of Justice, and the attorneys general of 49 states came down to New York, the center of mortgage securitization and securities misrepresentation, and California, the center of mortgage mis-origination. Those states’ attorneys general—New York’s Eric Schneiderman and California’s Kamala Harris, both progressive Democrats elected in 2010—weren’t about the give the banks a pass. Which is why it wasn’t until two a.m. Thursday that the deal was finalized. Schneiderman’s chief concern was to preserve and enhance his and other law enforcement agencies’ ability to investigate the banks. Harris’s foremost interest was to secure the best deal for the hundreds of thousands of California homeowners who were struggling to make the payments on their devalued homes. Together, they compelled the banks and the Obama administration to come up with a better deal than the one that the banks and the Justice Department had...

Synecdoche, California

(Flickr/Mylocationscouts)
Many progressive legal commentators, including Dahlia Lithwick and Garrett Epps , have praised Judge Stephen Reinhardt’s opinion holding that California’s Proposition 8—a referendum passed in 2008 making same-sex marriage illegal—is unconstitutional. The praise, however, has not been unanimous. At Balkinization, Jason Mazzone is harshly critical of Reinhardt’s opinion, arguing that “it is dishonest and foolish” and that the Ninth Circuit should “have written a powerful opinion setting out why a ban on same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment” rather than resting on narrow grounds. In an ideal world, it would be better if the Supreme Court were to declare a right to same-sex marriage that applied immediately to all 50 states. However, I largely disagree with Mazzone’s critique. Most important, it misstates Reinhardt’s analysis and is far too optimistic about the odds that five Supreme Court justices would be willing to strike down bans on same-...

Hurrah for Small Victories: The Perry Decision Is Just Right

I loved the Ninth Circuit decision yesterday, in part for all the reasons Garrett Epps outlines so brilliantly here . It was perfect. It didn't overreach. It was confined to California's very peculiar circumstances. As I wrote in The Nation last year, this is precisely what the LGBT advocates have been privately hoping for: a decision that did not make the broad claim that same-sex couples have a right to marry in every state across the country. The LGBT legal groups won't tell you this openly, but what they really want is for the carefully planned Gill , Pedersen , and Windsor challenges to the Defense of Marriage Act (DOMA) to hit SCOTUS first. Those cases don't ask for a federal ruling on our right to marry. Rather, they say: States have already declared these couples married. That's what states do. The federal government doesn't get to pick and choose which marriages it wants to recognize. So I've been hearing from nongay supporters of LGBT rights who ask: Why not? Why didn't you...

What's So "Super" about Super PACs?

Super PACs are the breakout stars of the 2012 election cycle. Like one of Newt Gingrich's mistresses, they're technically independent of the candidates they support but can still besmirch a reputation. In recent weeks, Gingrich has called on Mitt Romney to disown statements made by the “ millionaire friends ” who've donated to his super PAC, while Newt himself took heat for an ad produced by a pro-Gingrich PAC slamming Romney’s record at Bain Capital. Super PACs made their debut during the 2010 midterm elections, following court rulings that loosened restrictions on key areas of campaign finance. If you spent your weekend discussing farm subsidies with policy wonks, then you will probably want to turn to this helpful piece for a full-monty version of the legal evolution of the super PAC. But if you have a normal social life, here’s what you need to know to get by at the next Washington dinner party: What are they? Super PACs are described as “non-connected political action committees...

In Prop. 8 Ruling, a Liberal Lion Coos

(AP Photo/Eric Risberg, Pool) Senior Circuit Judge Michael Daly Hawkins, left, Circuit Judge Stephen R. Reinhardt, center, and Circuit Judge N. Randy Smith hear arguments during a hearing in the Ninth Circuit Court of Appeals in San Francisco. Today, the federal appeals court in San Francisco upheld a lower-court decision finding California's ban on same-sex marriage unconstitutional. S tephen Reinhardt, a judge on the Ninth Circuit Court of Appeals,* has been called almost everything in the book. Conservatives slaver at the mention of his name; even liberals sometimes criticize his audacity. The Onion once ran a deadpan story reporting that he had “ruled the private celebration of Christmas unconstitutional ... ‘[i]n accordance with my activist agenda to secularize the nation.’” The last great liberal lion of a once-numerous pride, Reinhardt has written dozens of decisions that embody old-style judicial liberalism (including one holding that terminally ill individuals have a right to...

Balancing Faith and Contraceptives

Criticisms of President Obama's new birth control policy skip over the benefits for women's health.

Washington Post columnist E.J. Dionne argues against the Obama administration's laudable decision to require employer-provided health-insurance packages to cover contraception. The new rule, according to Dionne, is a "breach of faith" that the "administration should have done more to balance the competing liberty interests here." Dionne's argument is, however, extremely unconvincing. As an alternative to the Obama administration’s decision, Dionne touts what he calls a compromise. Under Dionne’s proposal, to get coverage for contraceptives, employees would have to pay more for a separate plan to obtain it, but "religious employers that decline to cover contraceptives must provide written notification to enrollees disclosing that fact." The requirement that employers provide written notice before denying people their federally guaranteed statutory rights is, to put it mildly, not an acceptable compromise if you place significant weight on the rights of women at all. Dionne mentions a...

Surveillance in a Wireless Age

T he Supreme Court unanimously held Monday that the installation of a GPS device in a person's car constitutes a "search" under the Fourth Amendment (which prohibits "unreasonable searches and seizures”). This unanimity is somewhat misleading, however, as the Court split with respect to what theory of the Fourth Amendment should be applied going forward and left a crucial question unanswered. The Court has often struggled to adapt the Fourth Amendment to technologies that expand the reach of the state. As is reflected in the amendment’s language ("The right of the people to be secure in their persons, houses, papers, and effects") government searches at the time of the amendment's adoption generally involved the physical invasion of property. But various technological innovations have allowed the state to increase its surveillance authority without conducting physical searches, and the Supreme Court has sometimes been behind the curve. In the 1928 case Olmstead v. United States , most...

The Difference Between Viagra and The Pill

Starting in August, women will no longer have to pay more than men for the prescriptions (the Pill, Viagra, Cialis) that enable them to have active sex lives. That was the big news this past Friday, when Department of Health and Human Services Secretary Kathleen Sebelius declared that almost* all employers must now pay for contraception in their health plans under the Affordable Health Care Act's requirement that insurers cover all preventive services. No co-pays. No deductibles. Whether or not women should pay for having sex—whether financially or through pregnancy—has been, shall we say, a hot topic for centuries. In the late 19th and early 20th centuries, the U.S. birth rate dropped dramatically because of new technologies (rubber condoms, that invention of Goodyear). Teddy Roosevelt decried contraception as "race suicide." Margaret Sanger went to jail for keeping women from withering and dying from gestating and delivering one after another bundle of joy. Late-19th- and early-20th...

Vermonters United

Sarah Harris Vermonters protest Citizen United outside the statehouse in Montpelier. “Hi. I’m Jerry. I’m a person,” said Jerry Greenfield, co-founder of Ben and Jerry’s Homemade Ice Cream, as he introduced himself to the crowd with an ingratiating smile. “Ben and Jerry’s Homemade Ice cream: not a person.” Everybody chuckled. A crowd at the Montpelier statehouse in Vermont rang in the second anniversary of Citizens United , a 2010 Supreme Court decision recognizing that corporations have free-speech rights under the First Amendment, with a rally on Friday. Retirees and college students, elected representatives, advocacy and business leaders, and ice-cream titan Greenfield gathered to call for a constitutional amendment repealing Citizens United and abolishing corporate personhood. The gathering was part of a series of events around the nation put on by groups like Public Citizen , Move to Amend , USPIRG , and others that are opposed to Citizens United . But the Montpelier rally had its...

A Preview on Voting Rights

In her report about the recent oral arguments in a Texas redistricting plan that was created by a panel of three federal judges, Dahlia Lithwick noted a compromise floated by Justice Kagan: Clement and Garza seem almost to agree on a Kagan-suggested compromise whereby the lower court starts again with the new Texas map, but Texas bears a burden of proof to show that each district isn’t unconstitutional. Garza says that if it keeps the burden of proof on Texas it would be “far more preferable.” Clement seems to concede that it’s better than the court-drawn maps. As it turns out, the Supreme Court has done something along these lines in its decision today. In a unanimous, per curiam (that is, unsigned by any single member of the Court) opinion , the Supreme Court rejected the redistricting plan created by the panel without fully reinstating the plan drawn up by the Texas legislature. The Court's opinion outlined a new set of standards for the panel to follow which, according to election...

Colbert “out-legals” Justice Stevens

Just in case the Republican primary is not providing enough entertainment… here’s Stephen Colbert arguing with John Paul Stevens about Bush v Gore , Citizens United , and his greatest regrets (“this interview”).

Mega-Crackdown

Today's Balance Sheet: The FBI shuts down Megaupload in what the Justice Department is calling its biggest copyright case ever.

AP Photo/Greg Bowker
Yesterday, on the same day that major websites like Wikipedia, Wordpress, Reddit, and Wired went dark to protest the Stop Online Piracy Act (SOPA), the Justice Department shut down Megaupload , one of the largest file-sharing sites on the Internet. The site’s seven founders were arrested in New Zealand and are accused of making $175 million in profits while costing copyright holders an estimated $500 million in revenue. They face up to 20 years in prison for violating international copyright laws. Lawyers for the men said Megaupload allows users to legitimately transfer large files. But the government maintains that the service is simply a front for piracy, racketeering, and money-laundering. Hackers responded swiftly to the crackdown, with the group Anonymous taking responsibility for briefly shutting down the Department of Justice and Universal Music Group websites. The Latest Intel and Microsoft Post Gains in Last Quarter as Google Dips Bloomberg Businessweek European Debt Crisis:...

Right to an Attorney

The case of Corey Maples provides a disturbing look at the death penalty system in the United States and underscores how even people facing execution are often not represented by adequate counsel at any stage of the criminal process. In Maples’s case, the attorneys assigned to represent his appeals quit midway through the process, and yet the state of Alabama blamed Maples for his failure to comply with procedural requirements he had no way of fulfilling. Yesterday, the Supreme Court corrected this obvious mistake by ruling that Maples had a right to appeal in a 7-to-2 decision. But this case will leave the pervasive problem of bad legal representation in our criminal justice system essentially untouched. The issues that Maples had in finding adequate representation did not start with the appeal that led to the Supreme Court taking up his case. As the Court pointed out, “[a]t trial, he was represented by two appointed lawyers, minimally paid and with scant experience in capital cases...

Eye of the Beholder

AP Photo/J. Scott Applewhite
Taking powerful new scientific evidence about the unreliability of eyewitness identification into account, last year the New Jersey Supreme Court established strict rules to determine when eyewitness identifications are unreliable enough to be inadmissible. In a case decided earlier this week, Perry v. New Hampshire , the Supreme Court had an opportunity to follow suit with a reconsideration of its own. Regrettably but not surprisingly, the Court instead decided to ignore the new evidence. This unfortunate decision is certain to lead to many more innocent people being convicted even though a standard that is workable and more consistent with constitutional values is available. Perry required the Court to choose between two different systems for determining when eyewitness testimony should be presented to a jury. At a minimum, the Court’s precedents seemed to require that judges exclude eyewitness identifications that were the result of police “rigging”— that is, when police...

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