Law

The End of Affirmative Action in College

(Flickr/Kodamakitty)
As my colleague Jamelle Bouie noted yesterday, the Supreme Court agreed to hear Fisher v. UT Austin, a challenge to the use of affirmative action for undergraduate admissions at the University of Texas. I wish I could make a case for more optimism, but I have to agree with the conventional wisdom that Grutter v. Bollinger , the case that upheld that affirmative action was allowed in higher education so long as it was done to promote diversity, is likely to be overruled and the use of affirmative action in higher education therefore made flatly unconstitutional. To start with the less-bad news first, readers may find it ominous that Justice Elena Kagan has recused herself from the case. But this means less than it might appear at first. The 5th Circuit opinion the Supreme Court is reviewing upheld the constitutionality of the program. Because of this, if the Supreme Court deadlocked 4-4, the program would be sustained and Grutter would remain good law. While the best outcome would be a...

Luck Not Be a Lady

You know those odd moments in animated cartoons when a character's head seems to be boiling and popping, one eye getting bigger, then smaller, and so on? As a journalist who focuses on gender and sexuality, that's how I feel lately: happy, sad, shocked, celebratory—all at the same time. As I've said here over and over, it's just a spectacular time to be openly gay. Last week, as Jonathan Capehart noted in the Washington Post , was " a big gay week for same-sex marriage." Washington passed a marriage-equality bill and Maryland seems poised to do the same—a bill has passed the House, where it stalled the last time legislators tried to push it through, and now awaits a vote in the Senate and the governor's signature. In both states, marriage equality will probably go to the ballot. Some of my sources say it has a better chance at winning in Washington, where advocates have been doing field organizing on LGBT issues for decades and have already done a lot of the face-to-face education and...

Bare Minimum Wage

Big business lobbyists work to prevent any rise in workers' paychecks.

(Flickr/wbeem)
The federal minimum for an hourly wage was $3.35 in 1982 and now it’s $7.25, up 120 percent. Inflation, meanwhile, has climbed during that period by 135 percent. Eight states, including New York, Connecticut, and New Jersey, are considering legislation to boost the base wage. Advocates say that such state measures are fair and make good economic sense: Putting more money in the hands of workers means more demand—good news for small businesses struggling to overcome poor sales . Then there’s politics. More than two-thirds of Americans favor raising the hourly wage to at least $10. You’d think it would be a win-win for state officials, but it’s not. While truly small businesses like restaurants and retail shops have said in the past that raising the wage will have little or no effect on labor costs , large corporations that pay minimum wage, like fast-food chains, have enormous incentive to propagandize against any increase. One of the most active in the propaganda industry has been the...

Not in Montana

(Flickr/polytikus)
At the opening of each oral argument session, a Supreme Court clerk announces, “All those having business before this honorable Court draw nigh and you shall be heard.”But does the Court really listen? We are about to witness an interesting case study. Late last week, the Court announced a stay of the Montana’s Supreme Court’s judgment in Western Tradition Partnership v. Bullock . In that case , a majority of the state court in essence said to the Supreme Court majority, “You boys don’t know enough to pour water out of a boot.” The opinion was a direct challenge to the Court’s most controversial decision in at least a decade— Citizens United v. Federal Election Commission . The Court will now consider a formal petition for cert., due by the end of next month. Citizens groups, states, and business groups can file amicus briefs on the issues raised by the case, laying out their critique of Citizens United . Two Justices of the Court have invited them to do exactly that. In a statement...

No Celebrity Gossip Here

(Flickr/mtsofan)
United States v. Alvarez, which I wrote about yesterday , is fascinating in its complexity. The government in this case has asked the Court to hold that it can punish people who lie, regardless of whether they lie to extort money, win political office, or just to impress people at the corner tavern. The principle is breathtaking in its sweep. In the past, the Court has approved statutes that punish knowingly reckless false statements of fact—but only when those statements cause some measurable harm. Examples are a defamatory lie about another person (“X is a serial killer”); a lie used to extract money from a credulous listener (“I own that bridge and I’ll sell it to you); or one told for the purpose of inflicting emotional damage on another (“X’s father beat his mother regularly during X’s formative years”). But Alvarez concerns what we might call the semi-crazy lie. The defendant told a public meeting that he’d been awarded the Medal of Honor; he hadn’t. The federal government...

The New Freedom Riders

A multiracial group of young people are fighting to end the NYPD's stop-and-frisk program.

(Flickr/Tim Drivas)
Two things struck William Rivera about the 30 protesters who, after an hour of chanting and speechifying to cameras, cops, and the curious, were now marching deeper into the Bronx on an overcast January afternoon. The first was that somebody was finally speaking out against the New York Police Department’s stop-and-frisk policy, a tactic in which officers pat down and question people on the street without a warrant. The second was that a lot of those somebodies were white. “Hell, yeah, I’m surprised that white people come out here fighting for us,” says Rivera, 24. Police, he says, stop him three or four times a week, and he now automatically assumes the “shirt up” position whenever officers cross his path. “I know it’s not normal or right that I accept that, but it’s how we have to live,” Rivera says of his South Bronx neighborhood, where talking back to cops, he adds, is not an option. “Maybe if the government or the police see their own people helping out, maybe they’ll pull back...

Damn Lies and Double Jeopardy

(Flickr/Diacritical)
The Supreme Court comes back into session Tuesday. On that day, the Justices will earn their salaries (and then some) by considering the following questions: Whether Section 8(b) of Real Estate Settlement Procedures Act prohibits a real estate settlement services provider from charging an unearned fee only if the fee is divided between two or more parties. Whether , under 28 U.S.C. § 1920(6), costs incurred in translating written documents are “compensation of interpreters,” which under the statute are awarded to the prevailing party in a federal lawsuit. Reader, these questions are important, but forgive me if I draw the veil of modesty over those Tuesday cases in favor of Wednesday’s, which are important too—and pose more broadly interesting puzzles. The first, Blueford v. Arkansas , is a double-jeopardy case. The Fifth Amendment provides that no person “shall ... be subject for the same offense to be twice put in jeopardy of life or limb.”...

What Is Sex For?

(Flickr/multi.phrenic)
What is the purpose of sex? Who should be able to have it, and at what cost? Apparently, that was on many minds on Valentine's Day. That's when the Prospect 's indefatigable Abby Rapoport told us that the Virginia House just voted to go full-steam ahead on a personhood bill, which will define life as beginning from the very second that a sperm bashes its head into an ovum. Yesterday, too, in the state of Washington, opponents of same-sex marriage launched their effort to repeal the state's newly signed marriage-equality law. Washington's gender-neutral marriages won't begin, at the earliest, until June 7, after a "standard enactment period" that puts new laws on hold for a bit. According to the Chicago Tribune , Opponents were led by Roman Catholic bishops and other religious conservatives. "Marriage is society's way of bringing men and women together so that children can be raised by, and cared for by, their mother and father," said Joseph Backholm, head of the Family Policy...

Colbert Explains Contraception And the War On Religion

Stephen Colbert can't say that, can he?! Stephen Colbert Explains the Catholic Church and Contraceptives The comedian describes what Obama's birth control plan looks like to conservative Catholics. It involves a banana and a guillotine. The Colbert Report Get More: Colbert Report Full Episodes , Political Humor & Satire Blog , Video Archive Log in or register to post comments

Government Has to Give Reasons

(Flickr/thecrazyfilmgirl)
The Ninth Circuit’s opinion in Perry v. Brown drew a letter to the Court suggesting the decision stemmed from “mold infestation” in court buildings. The correspondent is not the only person who hates the decision but has trouble explaining, in legal terms, why. The case illustrates the concept of “governmental interest” in constitutional law. My Con Law prof, Walter Dellinger, once said the course could be summed up in two sentences: “When government wants to do something to you, it has to give a reason. When it wants to do something really bad, it has to give a good reason.” Judges weigh “stuff government wants to do to you” against government’s reasons, or “interests.” Government wants to do a lot of things—keep order in the streets, prevent outbreaks of the Black Death, make the downtown mall nice, etc. In constitutional law, most of those interests are “legitimate”; there’s no reason government can’t pursue them. Only a few are “compelling,” which means things would descend into...

Birth Control Chess

(Flickr/brains the head)
Last week, I argued that it was unlikely that many critics of President Obama's contraceptive coverage requirement would be mollified by a compromise that would allow a religious exemption but still mandate that employees be provided with contraceptive coverage at no extra cost. Apparently, we're about to find out if that’s the case. I was very concerned when I first read that Obama was planning to announce a "compromise," and part of me still wishes he had just stood firm given the that the arguments against the new regulation were so bad. But, as described, I believe that the “ accommodation ” that was announced by the administration is acceptable. The bottom line is that employees will still be able to receive contraceptive coverage at no extra cost, and as NARAL's statement explains "[i]t guarantees that women will encounter no barriers from their bosses or insurance plans in getting birth control without a copay." As long as the substantive rights and benefits of employees are...

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...

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