Terrorist Targets Muslims in London, Muslim Girl Killed in Virginia

Late last night, a van rammed into people leaving a mosque in Finsbury Park in North London. One person died and 10 were injured in what police are investigating as a terror attack, as it was “quite clearly an attack on Muslims.” A white, 48-year-old man has been arrested and is being investigated for attempted murder. According to eyewitness reports, the man who died collapsed after the van hit people–it’s not clear whether his death was a direct result of the attack. The attacker struck just as people were leaving the mosque after evening prayers and breaking their Ramadan fast. Eyewitnesses said the man got out of the van after hitting people and said, “I want to kill Muslims,” repeatedly. He tried to flee the scene, but several people held him to the ground until police arrived.

This quote at #FinsburyPark station by @TfL is a fitting reminder that in tragedy we become a more unified, stronger force always pic.twitter.com/1Htakvuy2p

— Yasmina (@animsche) June 19, 2017

Also yesterday, a 17-year-old Muslim girl was found beaten to death in a pond in Virginia. The girl, identified as Nabra Hassanen, was reported missing after leaving a mosque in the early morning hours. She was with her friends on their way to get food after prayers, when two men with baseball bats started attacking them. In the chaos that followed, Nabra disappeared. Her body was found later that afternoon. A 22-year-old man was arrested. Although police aren’t investigating this murder as a hate crime, there is evidence to suggest that there has been a surge in anti-Muslim hate crimes in the United States–according to CAIR, there was a 44 percent increase just from 2015 to 2016.

if you believe muslim women face less violence in the west, youve been blinded. nabra, 17, murdered with baseball bat last night in virginia pic.twitter.com/zlZJclJ3qT

— Amani (@xoamani) June 19, 2017

Emma Von Zeipel

Emma Von Zeipel is a staff writer at Law Street Media. She is originally from one of the islands of Stockholm, Sweden. After working for Democratic Voice of Burma in Thailand, she ended up in New York City. She has a BA in journalism from Stockholm University and is passionate about human rights, good books, horses, and European chocolate. Contact Emma at EVonZeipel@LawStreetMedia.com.

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Kellyanne Conway’s husband, George Conway, sent out a critical tweet of President Donald Trump after the president reiterated his commitment to his “original travel ban.”

These tweets may make some ppl feel better, but they certainly won’t help OSG get 5 votes in SCOTUS, which is what actually matters. Sad. https://t.co/zVhcyfm8Hr

— George Conway (@gtconway3d) June 5, 2017

Trump’s original tweet compelled Conway to tweet for the first time since retweeting a video about suspending New York Giants star wide receiver Odell Beckham Jr. on December 20, 2015.

Conway believes that while Trump’s tweets on the ban may appeal to his voter base, it isn’t the right decision in terms of garnering the right number of votes to win a case in the Supreme Court.

Conway’s outburst comes within the same week that he chose not to pursue the position of leading the Civil Division at the U.S. Department of Justice, according to Politico.

“I have reluctantly concluded, however, that, for me and my family, this is not the right time for me to leave the private sector and take on a new role in the federal government,” he said in a statement.

While many people interpreted Conway’s tweet as a swipe at Trump, he attempted to clarify his comment in a string of four tweets. Conway explained that he still supports the Trump Administration, but that most lawyers would agree with him that Trump’s tweets on legal matters “undermine the Admin agenda and POTUS.”

1) Just to be clear, and in response to inquiries, I still VERY, VERY STRONGLY support POTUS, his Admin, policies, the executive order …

— George Conway (@gtconway3d) June 5, 2017

Earlier in the day, Kellyanne, a counselor to the president, had made an appearance on NBC’s “Today” criticizing “this obsession with covering everything he says on Twitter and very little what he does as president,” according to US News and World Report.

Apparently her husband disagrees and finds Trump’s tweets important. The president’s tweets created a reaction even without George Conway’s critique.

While Sean Spicer, the White House press secretary, had previously claimed that Trump’s executive order was “…not a Muslim ban. It’s not a travel ban,” according to The Hill, the president has reverted to using the word “ban.”

People, the lawyers and the courts can call it whatever they want, but I am calling it what we need and what it is, a TRAVEL BAN!

— Donald J. Trump (@realDonaldTrump) June 5, 2017

Trump proceeded to call it a travel ban in four other tweets since June 3.

With his executive order set to be heard in the Supreme Court, many lawyers agree with Conway and feel that the president has greatly damaged his court case. Josh Blackman, a professor at South Texas College of Law in Houston told the New York Times:

These difficulties are amplified exponentially when the client is the president of the United States, and he continuously sabotages his lawyers, who are struggling to defend his policies in an already hostile arena. I do not envy the solicitor general’s office.

George Conway has been a partner at the corporate law firm Wachtell, Lipton, Rosen & Katz since January 1994 and won a case at the Supreme Court with Morrison v. National Australia Bank, according to CNN.

Conway was also considered for solicitor general in January 2017 after Trump had won the election. Despite his marriage to Kellyanne, his potential position in the government would not have been nepotism because neither one would have held direct authority over the other, according to The New York Times.

Josh Schmidt

Josh Schmidt is an editorial intern and is a native of the Washington D.C Metropolitan area. He is working towards a degree in multi-platform journalism with a minor in history at nearby University of Maryland. Contact Josh at staff@LawStreetMedia.com.

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The U.S. Supreme Court delivered the final knockout blow to North Carolina’s restrictive voter ID law Monday, declining once again to hear an appeal from state Republicans to reinstate it. The move thereby upholds a lower court’s ruling that found the law had intentionally been designed to restrict black voters.

The law, which was enacted in 2013 by a Republican-controlled legislature, was struck down last year after a federal appeals court found that key parts of the law were to “target African Americans with almost surgical precision.”

Chief Justice John Roberts cited a “blizzard of filings over who is and who is not authorized to seek review in this Court under North Carolina law” as the Court’s reasoning for refusing to weigh in on North Carolina, et al. v. North Carolina State Conference of the NAACP, et al. Roberts, however, was careful to note that the court’s refusal did not constitute an opinion on the “merits of the case.”

North Carolina’s law had required voters to present a government-issued photo identification at the polls, but excluded forms of identification that happened to be used disproportionately by African Americans. For example, driver’s licenses, passports, and military identification cards were permitted, but not public assistance cards. It also shortened the early voting period and did away with same-day voter registration, among other things.

North Carolina, along with a string of other states, enacted voting restrictions like these shortly after a Supreme Court decision effectively struck down an integral part of the Voting Rights Act, diminishing federal oversight of voting rights. In late August, a deadlocked Supreme Court declined to reinstate North Carolina’s voting restrictions. The court was divided 4 to 4, with the court’s more conservative judges voting to revive parts of the law.

Proponents of these kinds of measures avow that they are intended purely to prevent voter fraud, not act as discrimination. However, a study of 2,068 alleged election-fraud cases in 50 states between 2000 and 2012 found the level of fraud was “infinitesimal compared with the 146 million registered voters in that 12-year span.” The analysis found only 10 cases of voter impersonation, the only kind of fraud that could be prevented by voter ID at the polls.

In lieu of the Supreme Court’s decision, Republican lawmakers in North Carolina are now eager to enact new voter restrictions. In other words, the battle over voter ID laws is hardly over.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Supreme Court Rejects Appeal for North Carolina Voter ID Law appeared first on Law Street.

The Voting Rights Act of 1965 has long been considered a critical piece of federal legislation in the Civil Rights Movement. Enacted to prohibit racial discrimination in voting, specifically, it has protected racial minorities from unfair and predatory voting regulations like literacy tests, poll taxes, character tests, and property-ownership requirements, to name a few. In 2013, the Supreme Court decided on a case that struck down key provisions of the act, stating that they were based on old circumstances that had no logical connection to present day.

Since that decision, there have been numerous disputes occurring in states that were once subject to the old provisions of the Voting Rights Act. Lawmakers in several states–many southern–have started passing legislation with more stringent requirements to vote. It begs the question, is the Voting Rights Act still relevant and effective today?

History of the Voting Rights Act of 1965

The Voting Rights Act was signed into law in 1965 under President Lyndon B. Johnson during the height of the Civil Rights Movement. It was signed in the wake of “Bloody Sunday,” the infamous voting rights march from Selma to Montgomery where 600 people, including current Congressman John Lewis, were brutally beaten by Alabama state troopers. The Voting Rights Act was meant to eliminate discriminatory election practices, as states were still resistant to enforcing the Fifteenth Amendment, which declared that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”

Section 2 of the act mimicked the language of the Fifteenth Amendment by applying a nationwide prohibition on literacy tests to deny citizens of the right to vote. Moreover, the act also contained other special provisions that only applied to particular jurisdictions. Under Section 5, the act required that specific jurisdictions which attempted to pass new voting practices or procedures needed to receive “preclearance” from the Attorney General or the U.S. District Court for the District of Columbia. Section 4(b) of the act defines eligible districts as those which had a voting test in place as of November 1, 1964 and less than a fifty percent turnout for the 1964 presidential election.

For years, the Supreme Court continually upheld the constitutionality of the Voting Rights Act, including Section 5. This included thwarting racial vote dilution through discriminatory annexations, redistricting plans, election method changes, and changes in voter registration standards and procedures. The section was originally enacted for five years, but has been renewed continually since its enactment.

Shelby County v. Holder

In 2013, the Supreme Court ruled in the case of Shelby County v. Holder. The case, which was out of Shelby County, Alabama, concerned both Sections 4(b) and 5 of the Voting Rights Act. Shelby County sued Eric Holder, the Attorney General at the time, arguing that Section 4(b) and Section 5 were facially unconstitutional, and sought a permanent injunction against their enforcement.

After making its way through the lower courts, it finally reached the Supreme Court. The justices had to decide whether the renewal of Section 5 under Section 4(b) restrictions exceeded Congress’ authority under the Fourteenth and Fifteenth Amendments, in turn violating the Tenth Amendment and Article Four of the Constitution.

The Supreme Court held, in a 5-4 opinion, that Section 4 of the Voting Rights Act was unconstitutional. Essentially, the Court stated that the current formula conflicted with equal sovereignty of the states, as the disparate treatment of states was based on forty-year-old facts, which had no relationship to present day. As Chief Justice John Roberts wrote, “Our country has changed and while any discrimination in voting is too much, Congress must ensure that the legislation is passes to remedy that problem speaks to current conditions.”

In Justice Clarence Thomas’ concurring opinion he argued that Section 5 was also unconstitutional, contending that the blatant discrimination against certain voters that Section 5 was intended to protect against no longer existed. According to Justice Thomas, Congress cannot justify the burden of Section 5 without blatant discrimination.

Current Voting Rights Disputes

Since the court’s decision in 2013, many former preclearance states in the South are now embroiled in legal challenges surrounding voting laws. In Texas, the federal district court recently ruled that Senate Bill 14, which required voters to show a form of photo ID before casting a vote, had a discriminatory effect. Senate Bill 14 was passed in 2011, but was blocked by the preclearance requirement of the Voting Rights Act. After Shelby County v. Holder, Texas officials said they planned to enforce the law.

Lawmakers in North Carolina passed a photo ID requirement, and curbed early-voting hours, same-day voter registration, and limited other registration and voting options. This was eventually struck down by the Fourth Circuit, which noted that the provisions targeted African-Americans with “almost surgical provision.” The Supreme Court declined to stay the ruling in a 4-4 split after Justice Antonin Scalia passed away last year. North Carolina has asked the court to hear the case fully, and now that the court has added Justice Neil Gorsuch it’s possible that it could grant the petition for review.

Just recently, a lawsuit has been brought by the Lawyers’ Committee for Civil Rights Under Law on behalf of five organizations regarding the special election slated to take place in June 2017 in Georgia to replace Republican representative Tom Price. Since the Democrat, Jon Ossoff, failed to achieve the fifty percent threshold needed to win outright, a special election will decide his fate, against Republican Karen Handel. The suit alleges that the Georgia law disenfranchises citizens by requiring voters to have registered for the first round to vote in the runoff. Consequently, since the law means that voters would have had to register in March 2017 to vote in the runoff (before the first election even occurred), a large number of Georgians may be completely stopped from voting in the June 2017 election.

It is Still Relevant?

Just four short years ago, the Supreme Court in Shelby County v. Holder was not hesitant to point out how key sections of the Voting Rights Act were not relevant to modern times. The majority opinion concluded that since the act had worked so well in preventing racial discrimination, it was no longer needed. However, given the numerous laws that have sprung up since the court’s decision, it seems that the act is just as necessary today.

After the act’s initial enactment, it had an instant effect on decreasing racial discrimination in voting. Not only did the number of registered African-American voters increase substantially, but the number of African-Americans elected to office also grew. Moreover, economic growth occurred because of the act. A study of 40 North Carolina counties covered by the act found that those counties experienced larger growth in African-American incomes, occupational status, and attracted more revenue from county and other government sources.

Now, without Section 4(b) in effect to determine which jurisdictions must receive approval of any voting law changes, Section 5 has now become relatively inoperative. Thus, this has allowed states to change laws and policies without any federal oversight.

Conclusion

After Shelby County v. Holder, many former preclearance states jumped at the opportunity to pass more restrictive voting requirements. While lower courts have found subsequent legislation to contain discriminatory intent or effect, the Supreme Court has yet to weigh in on them. Thus, with a full court now in place after Justice Gorsuch’s swearing-in, the legacy of the Voting Rights Act is still up for debate.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

The post Is the Voting Rights Act of 1965 Still Effective? appeared first on Law Street.

Judge Nelva Gonzales Ramos of the United States District Court for the Southern District of Texas just ruled that Texas’ voter ID law intentionally discriminates against minority voters and violates the federal Voting Rights Act. The 2011 law has been thrown out as unconstitutional, and there’s the chance that Texas’ voting laws could once again be put under the purview of the federal government.

The law was passed by the Texas legislature in 2011 but didn’t go into effect until 2013. It required that all voters show some sort of government-issued photo ID before casting a vote, such as a driver’s license or passport. Since its inception, it has been controversial, sparking a drawn out legal battle. Critics point out that black and Hispanic voters are less likely to have those forms of identification. Judge Ramos ruled that the law was enacted with the intent to discriminate against minority voters.

The suit was brought by a number of plaintiffs, including the Texas State Conference of NAACP Branches, the Mexican American Legislative Caucus of the Texas House of Representatives, La Union del Pueblo Entero and League of United Latin American Citizens, several individual voters, and Dallas County.

If you’re feeling a bit of Texas voter ID law deja vu, you’re not wrong. This is actually the second time that Ramos has ruled on this law. She ruled on it in 2014 as well, and then the 5th Circuit Court of Appeals, located in New Orleans, sent it back to her. That court “found that Judge Ramos had relied too heavily on Texas’ history of discriminatory voting measures and other evidence it labeled ‘infirm’ and asked her to reweigh the question of discriminatory intent.” She once again found that the law is discriminatory.

The state of Texas is expected to appeal her decision again, but this could set Texas up for federal monitoring of its voting laws. The Voting Rights Act used to require that certain states–Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia–that had a history of passing discriminatory voting laws had to get federal approval before changing their voting laws. In 2013, the Supreme Court struck down the provision that required such “preclearance” but if a state is found to have passed a law that is intentionally discriminatory, it could be subject to that oversight once again.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Federal Judge Rules that Texas’ Voter ID Law is Discriminatory appeared first on Law Street.

ICYMI, last week the city of London fell victim to a deadly terror attack just outside of British Parliament. For more details on that story and more, check out Law Street’s best of the week below!

Supreme Court Rules in Favor of Special Education Rights

Public school districts are obligated to provide students with disabilities a chance to make “appropriately ambitious” progress, the Supreme Court unanimously ruled on Wednesday. The case, Endrew F. v. Douglas County School District, could have widespread implications when it comes to how educators treat special education students moving forward–as children with the right to advance in the classroom.

Electronics Banned on U.S.-Bound Flights from 10 Airports in Muslim Countries

Passengers on flights to the U.S. from 10 airports in the Middle East and North Africa will be barred from bringing electronics larger than a cell phone in their carry on baggage, according to the Department of Homeland Security and Transportation Security Administration. The new directive came late Monday, after “evaluated intelligence” was presented to Trump Administration officials that terrorists seek to smuggle “explosive devices in various consumer items.”

London Terror Attack: Four Dead After Assailant Drives into Crowd

It’s unclear if it was the same car, but moments later, witnesses said a vehicle rammed the gates of Parliament. It was reported that the driver got out and stabbed a police officer. Witnesses said the officer was still moving when the assailant took off running, as other police officers shouted at him to stop. When he didn’t comply, several shots rang out and the attacker was killed.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post ICYMI: Best of the Week appeared first on Law Street.

On Tuesday, the Supreme Court began hearing arguments for Hernández v. Mesa, the case of a 15-year-old Mexican national who was fatally shot while on Mexico’s side of the border by a U.S. border patrol agent.

The parents of Sergio Adrian Hernández Guereca (Hernández) are arguing that their son’s constitutional rights were violated, even though he wasn’t standing on U.S. soil at the time of his death.

Hernández was killed in Juarez, Mexico in the summer of 2010 by U.S. Border Patrol Agent Jesus Mesa Jr., who was patrolling the U.S. border on a bicycle at the time of the incident. Mesa fired his weapon through the border fence at Hernández, who was hiding behind a pillar of the Paso Del Norte bridge, killing him.

According to the amicus brief, the family says Hernández and his friends “were merely playing a game, running up the back and down the incline of the culvert and touching the barbed wire fence that separates Mexico and the United States.”

The FBI claimed that Hernández and his friends were hurling rocks at the agent, however, video footage refuted that claim.

Hernández’s parents decided to sue Mesa in federal court, but the district court dismissed the claim. The case was then appealed to the 5th Circuit of Appeals, which also sided with Mesa. The family then appealed to the Supreme Court, which agreed to take the case in October of last year.

With Justice Antonin Scalia’s seat still vacant and Trump’s nominee, Judge Neil Gorsuch, still waiting for his Senate hearings to begin next month, we could very well have a 4-4 split decision–the court has been operating with only eight justices for just over a year. In the event of a tie, the court would defer to the lower court’s ruling that favors the agent.

But this isn’t the first time this type of case has been argued in court. An eerily similar shooting occurred in 2012 in Arizona, when a U.S. Border Patrol agent shot 16-year-old Jose Antonio Elena Rodriguez 10 times in the back and head through the slats of the border fence.

Rodriguez was also accused of throwing rocks at agents across the border and endangering their lives, but witnesses on the Mexico side claimed Elena Rodriguez was walking down the street when the other youths ran past just before the shooting started.

Following the shooting, Elena Rodriguez’s family and the ACLU filed a civil lawsuit against Agent Lonnie Swartz in the U.S. District Court in Tucson. The judges said they would not rule until after the U.S. Supreme Court decides on Hernandez v. U.S.

The cases “involve almost identical legal issues,” said attorney Sean Chapman, who represents Swartz in both the criminal and civil cases.  “That’s what is interesting about it…It’s incredibility similar to the Rodriguez case in Arizona. I’m waiting to see what they do.”

If SCOTUS deadlocks, the 5th U.S. Circuit Court of Appeals ruling that Guereca’s family cannot sue the Border Patrol agent in the U.S. would stand in the 5th Circuit. Then the 9th Circuit may rule on the Elena Rodriguez case, Chapman said.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post SCOTUS Weighs Case of Teen Shot in Mexico by U.S. Border Patrol appeared first on Law Street.

Transgender students across the country are fighting for the right to use restrooms that correspond to their gender identities. And an injunction that has thwarted their efforts will officially not be challenged by President Donald Trump’s team.

The Justice Department filed a legal brief on February 10 withdrawing the government’s objections to the injunction, a move that could impact an upcoming Supreme Court case. In August, a Texas federal judge issued the injunction to prevent President Barack Obama’s administration from enforcing a directive which mandates that public schools allow transgender students to choose restrooms based on their gender identities. Non-compliance, according to the previous administration, would violate Title IX, a federal law that prohibits sex-based discrimination in public schools.

Judge Reed O’Connor wrote in the injunction that the government didn’t follow proper rule-making procedures–also known as “notice and comment”–and couldn’t implement requirements based on “the interpretation that the definition of sex includes gender identity.” 

Trump’s latest move could affect the outcome of a case involving Gavin Grimm, a transgender student who sued the Gloucester County, Virginia school board after his high school refused to let him use the boy’s bathroom. Grimm–who recently received a shout-out from “Orange is the New Black” actress and trans activist Laverne Cox at the Grammys–is scheduled to go to the Supreme Court in March. But the Washington Post reported that because his case is partially based on Obama’s directive, it may not move forward.

While on the campaign trail in April, Trump said he believed that transgender people should be able to “use the bathroom they feel is appropriate.” At the time, he also criticized HB2, a bill signed by North Carolina Governor Pat McCrory that requires people to use only the restrooms corresponding to their biological sex–although Trump primarily addressed the economic impact of the bill on the state’s businesses.

But after the Obama Administration directive came out in May, Trump said he believed the matter should be left up to the states, not the federal government. He used the same argument when he later contradicted himself and announced his support for HB2.   

The DOJ dropped its opposition to the injunction one day after Jeff Sessions was sworn in as Attorney General. Sessions has a history of voting against the expansion of rights for Americans in the LGBTQ community: he has opposed marriage equality, workplace protections for LGBTQ employees, and the inclusion of sexual orientation under the definition of hate crimes. The Human Rights Campaign, an LGBTQ advocacy group which scores politicians on their civil rights records, rates him at 0 percent.

Although Trump has promised to protect LGBTQ Americans (specifically from “the violence and oppression of a hateful foreign ideology”) Vice President Mike Pence’s record on LGBTQ rights is similar to Sessions’. And over the summer, the Republican Party updated its platform to support the idea that parents should be free to make medical decisions for their children. Some saw that move as approval of conversion therapy–the use of psychological and sometimes physical discipline, including electroshock treatment, as a means of changing someone’s sexual orientation or gender identity. 

Victoria Sheridan

Victoria is an editorial intern at Law Street. She is a senior journalism major and French minor at George Washington University. She’s also an editor at GW’s student newspaper, The Hatchet. In her free time, she is either traveling or planning her next trip abroad. Contact Victoria at VSheridan@LawStreetMedia.com.

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An Asian-American dance rock band known as The Slants is one step closer to securing a trademark for its name. But a victory for them could have some unintended consequences. The group recently argued its case to the Supreme Court after a years-long legal battle that began when the U.S. Patent and Trademark Office (PTO) denied the band’s application to trademark its name, which is intended to reclaim an anti-Asian slur.

According to the PTO, granting the trademark would be prohibited by the 1946 Lanham Act, which forbids the “registration of marks considered scandalous or immoral” or language that may “disparage” a group of people, like Asian-Americans.

But the Washington Post reported that during an oral argument on Wednesday, the majority of justices seemed to come down on the side of The Slants, who argued that blocking the trademark would violate the First Amendment. Justice Elena Kagan pointed out that the PTO refusing to trademark speech it viewed as negative would be “viewpoint discrimination.”

On the other hand, Justice Sonia Sotomayor said that “no one is stopping” the band from calling itself The Slants, and that pushing for a trademark would be “asking the government to endorse” the name. But approving a trademark for The Slants might open the door for the PTO to grant trademarks for other offensive terms (although Justice Ruth Bader Ginsburg noted during the arguments that the band’s intent was not to be disparaging).

A win for The Slants in Lee v. Tam could also mean a win for the Washington Redskins, which was denied a trademark in 2014 for the same reason. The football team filed an amicus brief–a document submitted by a party that is not involved, but has a strong interest in the case–to support the band.

The support from the Redskins is ironic, considering the fact that the team has come under fire for spreading Native American stereotypes, while The Slants prioritize combating racism. The band’s front man Simon Tam has explicitly tried to distance himself from the Redskins’ case and its owner Dan Snyder. “I don’t want to be associated with Dan Snyder,” Tam told the Washington Post.

Victoria Sheridan

Victoria is an editorial intern at Law Street. She is a senior journalism major and French minor at George Washington University. She’s also an editor at GW’s student newspaper, The Hatchet. In her free time, she is either traveling or planning her next trip abroad. Contact Victoria at VSheridan@LawStreetMedia.com.

The post Rock Band The Slants Takes Trademark Case to the Supreme Court appeared first on Law Street.

President-elect Donald Trump has a pretty sizable to-do list for his first 100 days in office: repeal and (presumably) replace Obamacare. Label China a currency manipulator.  Suspend immigration from countries with a history of Islamic extremism. But the task on Trump’s agenda that has many conservatives chomping at the bit, and liberals bracing for impact, is appointing the ninth member of the Supreme Court.

Replacing Justice Antonin Scalia, who died last February, has been a tumultuous and highly political spectacle, as Senate Republicans refused a hearing for President Barack Obama’s nominee, Merrick Garland. They won that gamble, and now Trump has the opportunity to shape the ideological makeup of the court for generations. Below is a primer on five of the nominees on Trump’s shortlist.

William Pryor

Pryor, 54, currently sits on the 11th Circuit Court of Appeals; George W. Bush appointed him to the federal court in 2004. Pryor attended Northeast Louisiana University for his undergraduate studies, followed by the Tulane University School of Law. While Pryor certainly is a conservative–he staunchly opposes abortion, and compared gay sex to “polygamy, incest, paedophilia, prostitution, and adultery”–he also opposes anti-trans discrimination. In a 2011 case, Pryor supported the opinion that anti-trans discrimination is equal to sex discrimination.

Judge William Pryor has called the Roe v. Wade decision “the worst abomination of constitutional law.” pic.twitter.com/qsbTJqSWsJ

— Terri Green (@TerriGreenUSA) January 3, 2017

Mike Lee

Lee, a Republican Senator from Utah, has never served as a judge. But he has practiced law, and has been a clerk, twice, for now-Supreme Court Justice Samuel Alito, Jr. Lee, 45, did not support Trump in the primary campaign (he is close friends with Senator Ted Cruz of Texas, who also ran for the Republican nomination), but is still being considered to serve on the nation’s highest court. Lee serves on the Senate Judiciary Committee.

As senator, Lee voted for a bill that proposed to complete a section of the U.S.-Mexico border fence. He also strongly opposes Obamacare, and is pretty far-right on social issues, including same-sex marriage and abortion rights.

Majority of Utahns would support Sen. Mike Lee if nominated to US Supreme Court, poll shows. https://t.co/aOLvuoINHR @SenMikeLee pic.twitter.com/tJkETEhoUG

— KSL (@KSLcom) January 5, 2017

Steve Colloton

Unlike many of the other names on Trump’s shortlist, Colloton, a 54-year-old Iowa City native, is a product of an Ivy League law school; he graduated from Yale Law School in 1988. George W. Bush appointed Colloton to the U.S. Court of Appeals for the Eighth Circuit in 2003. He has written or supported a number of opinions that put him pretty far-right of center, including one case where he supported companies that refuse free contraception for employees for religious reasons.

A #SupremeCourt Pick in the Mold of #Scalia https://t.co/BR2wTMNrmP via @LifeZette #SteveColloton #SCOTUS #MAGA #ForcesOfLight

— Shelle (@MichellyLaBelly) December 16, 2016

Diane Sykes

Sykes, a self-described “originalist-textualist,” worked as a justice on Wisconsin’s Supreme Court from 1999 to 2004, when George W. Bush appointed her to the 7th U.S. Circuit Court of Appeals. In her more than two-decade career as a judge, Sykes has staked out a number of far-right positions on the ideological spectrum.

She ruled that companies have the right to abstain from the Affordable Care Act’s contraception mandate. She also sided with a religious group at Southern Illinois University’s School of Law that did not allow gay people to join its ranks. The dean said the group violated the school’s nondiscrimination policies. The group said the dean was infringing on their First Amendment rights. Sykes agreed with the group.

Who is Diane Sykes, possible Trump Supreme Court nominee? https://t.co/8EKpF5RBCp pic.twitter.com/RF3to3K5OB

— Michele Gorman (@mrich1201) December 16, 2016

Joan Larsen

Larsen boasts an experience that nobody else on Trump’s list can: she clerked for the late Supreme Court Justice Judge Antonin Scalia, whose seat she is now vying to fill, from 1994 to 1995. Some conservatives consider her a long shot for the position, largely due to her relative lack of experience serving on a bench; Larsen has spent most of her career as a law professor at the University of Michigan. In September 2015, Gov. Rick Snyder (R-MI) named Larsen, 48, to the Michigan Supreme Court to fill a seat left vacant by a departing judge. She won re-election by a landslide last November.

Trump #SCOTUS Short Lister Joan Larsen Is Fast-Rising Star #SCOTUSnominee | Bloomberg BNA https://t.co/Hd1w9HQeXp pic.twitter.com/DGJPhhc7R9

— Patrick Gregory (@PatrickGregry) December 3, 2016

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

The post Who Will Trump Nominate to the Supreme Court? appeared first on Law Street.

Couples who sued county clerk Kim Davis last year in order to get their marriage licenses have asked U.S. District Court Judge David Bunning to award them $233,058 in legal fees and costs.

Following the Supreme Court’s ruling to legalize same-sex marriage, Davis made national headlines for refusing to issue marriage licenses to same-sex couples in Rowan County, Kentucky.

Her noncompliance forced several same-sex couples to sue her. The cases went all the way to the U.S. Supreme Court, and Davis lost every single step along the way. She additionally spent five days in jail on contempt charges. Her only win came from the Kentucky legislature’s decision in April to remove county clerks’ names from marriage licenses, which is what she wanted after citing religious objections to same-sex marriage.

In August, the judge dismissed the couples’ cases against her on grounds that the matter had been resolved by the action in the legislature. However, lawyers for the couples argued that Davis still refused to do her job as county clerk when she went against the Supreme Court’s ruling, forcing them to then sue her in order to obtain those licenses.

Davis’ legal team is requesting that the judge deny the couples’ requests for legal fees. According to the Lexington Herald-Leader, Roger K. Gannam of Liberty Counsel–the religious advocacy group that is representing Davis–filed  a response on behalf of Davis Monday. He wrote that since the couples that filed against Davis did not prevail in their cases, they have no grounds to make someone else pay their legal fees.

Similarly, Rowan County filed its own response that stated the county government should not be told to pay any of the fees because Davis was acting individually– in her public official capacity–and not on behalf of the county.

“County clerks are not employees of the county, but instead are the holders of elective office pursuant to the Kentucky Constitution,” wrote  Rowan County attorney Jeffrey C. Mando.

William Sharp, legal director of the Kentucky ACLU and one of the lawyers for the couple, said in a statement:

Courts recognize that when successful civil rights plaintiffs obtain a direct benefit from a court-ordered victory, such as in this case, they can be entitled to their legal expenses to deter future civil rights violations by government officials.

Additionally, if Davis and her legal team are forced to pay the bills, they won’t be able to use popular crowdfunding site GoFundMe, after it changed its policies to prevent fundraising for “campaigns in defense of formal charges or claims of heinous crimes, violent, hateful, sexual or discriminatory acts.”

Whatever Davis decides to do next, it will probably continue to stir up controversy that keeps her in the public’s eye.

Julia Bryant

Julia Bryant is an Editorial Senior Fellow at Law Street from Howard County, Maryland. She is a junior at the University of Maryland, College Park, pursuing a Bachelor’s degree in Journalism and Economics. You can contact Julia at JBryant@LawStreetMedia.com.

The post Kim Davis Wants to Avoid Paying Same-Sex Couples’ Legal Fees appeared first on Law Street.

As marijuana is slowly legalized both for recreational and medicinal purposes in a variety of states across the United States, those states’ laws sometimes come head-to-head with already-existing federal legislation. These clashes are problematic, and they can create legal gray areas that courts then need to weigh in on. That’s exactly what happened recently in a federal appeals court in San Francisco, when the court ruled that the federal government’s prohibition on medical marijuana users obtaining a firearm does not violate the Second Amendment.

The case was sparked by a Nevada woman named S. Rowan Wilson, who in 2011 tried to purchase a gun. She had a medical marijuana card, which was legal given that Nevada had legalized medicinal weed over a decade before.  The store refused to sell her the gun, because in 1968 Congress passed a law prohibiting anyone who used illegal drugs from obtaining a firearm. While Wilson wasn’t exactly using an illegal drug–at least under Nevada law–marijuana is still illegal under federal law. That’s what makes this case a perfect example of the confusing interplay between state and federal law when it comes to marijuana, yet Wilson was upset by what she saw as a violation of her Second Amendment rights.

So, Wilson sued the government. According to Consumerist, she:

Filed a federal lawsuit alleging that this refusal to sell her a firearm violated her First and Second Amendment rights, along with the Equal Protection and Due Process Clauses of the Fifth Amendment. She subsequently claimed that the ATF notice that clarified the legality of selling firearms to medical marijuana users violated the Administrative Procedure Act by effectively making new rules without going through the necessary processes.

But the 9th U.S. Circuit Court of Appeals agreed 3-0 that “Congress reasonably concluded that marijuana and other drug use ‘raises the risk of irrational or unpredictable behavior with which gun use should not be associated.'”

Wilson now has the option to continue forward with the suit–it could hypothetically make its way to SCOTUS–but it’s unclear if she will do so. Yet as more states legalize marijuana, particularly for medical purposes, these are questions that courts are going to become increasingly familiar with.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Federal Appeals Court: Medical Marijuana Users Can’t Buy Firearms appeared first on Law Street.

Justice Ruth Bader Ginsburg has all the qualities of your favorite grandma: 83 years old, looks great in glasses, makes borderline inappropriate political comments.

The Supreme Court justice came under intense scrutiny this week after publicly criticizing presumptive Republican presidential nominee Donald Trump not once, not twice, but three times, calling him a faker, inconsistent, and chastising him for his ego, all while reaching for her passport so she could move to another country pending his inauguration.

Trump did not take it well.

Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot – resign!

— Donald J. Trump (@realDonaldTrump) July 13, 2016

RBG isn’t the first to let her doubts about Trump bleed out into newsfeeds, but this is different from the typical political figure because as a SCOTUS justice, she is, by definition, supposed to avoid being political. Despite common knowledge of Ginsburg’s liberal tendencies, her position as a justice calls for objectivity and removal from the political sphere when making court decisions, and many think she may have crossed the line.

Even the @NYTimes and @WashingtonPost Editorial Boards condemned Justice Ginsburg for her ethical and legal breach. What was she thinking?

— Donald J. Trump (@realDonaldTrump) July 13, 2016

Her comments led to a huge debate by legal ethicists and judges nationwide and there is a legitimate fear of a Bush v. Gore sequel, in which Ginsburg would have to recuse herself because she has demonstrated a clear bias against one of the parties.

But on Thursday, RBG did take a couple steps back from the fight. She said in a statement,

On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them…Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.

Still, it seems like these two won’t be fast friends if he does make it to the White House.

Samantha Reilly

Samantha Reilly is an editorial intern at Law Street Media. A New Jersey native, she is pursuing a B.A. in Journalism from the University of Maryland, College Park. Contact Samantha at SReilly@LawStreetMedia.com.

The post Recuse Me, What Did You Say?: RBG and Donald Trump Go Head-to-Head appeared first on Law Street.

Happy 4th of July Law Streeters! If you need help with your barbecue banter this Independence Day, look no further than Law Street’s top trending articles from last week. Beef up your small talk with facts on Britain’s historic Brexit vote, the integration of big data into women’s healthcare, and the Supreme Court’s decision to prevent domestic abusers from owning firearms. ICYMI–Check out the top stories below.

1. Brexit: What You Need to Know in the Aftermath of Britain’s Historic Vote

Britain voted on Thursday to end its 43-year membership in the European Union. The withdrawal process will be long–it will most likely be two years until Britain is entirely sovereign–and fraught with difficult decisions for the nation’s future, but the vote has sent tremors within the now-former EU member-state and beyond. Here is a briefing on Brexit and what it might mean for the future. Check out the full story here.

2. Big Data: A Revolution for Women’s Healthcare

Since 1990, the Society for Women’s Health Research (SWHR®) has been advocating for innovation in women’s healthcare. The organization is on the cutting edge of the newest research trends, and each year SWHR picks a different theme to highlight at its annual gala. At this year’s event, one message rang loud and true: we’re officially in the age of big data. Almost everything we do–from voting choices, to commercial purchases, to Netflix binge-watching, can be recorded and analyzed to glean patterns. But the incorporation of big data into healthcare is particularly exciting, and promises to revolutionize medical treatment for women. Read on for a sampling of how we’re now integrating big data into patient treatments, and what it means for women’s health. Check out the full story here.

3. Supreme Court Decision Prevents Domestic Abusers from Owning Firearms

The 6-2 ruling prevents anyone convicted of “reckless domestic assault” from being able to own firearms. This case involves two men from Maine, Stephen Voisine and William Armstrong III, who were convicted of unlawfully possessing firearms due to previous convictions for domestic assault. Under both state and federal law, anyone with a domestic violence conviction cannot possess firearms. Check out the full story here.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post ICYMI: Best of the Week appeared first on Law Street.

June LSAT scores are promised by the end of the week, but some LSAT experts anticipate a release earlier, sending the pre-law masses into a widespread frenzy. Shortly before LSAC releases scores, the icons in test-takers’ personal accounts go from green to grey–which is where we get the nickname “grey day.”

It’s a hard time for everyone, so with the help of some tweets (and personal experience), Law Street Media is proud to present: The Stages of Waiting for Grey Day, in increasing “obsessive-compulsion.”

8:00 a.m. If you slept at all, you’ve probably woken up and are scouring the internet for any indication of score releases so far.

10:00 a.m. You’re hoping that LSAC can make like SCOTUS and release life-altering information at 10:00. You may or may not start googling “Can I hire an intern to run my LSAT scores to me?”

#SCOTUS hit us with that good news this morning, your turn @Official_LSAT !

— Dylan Rogers Elliott (@Deelahnn) June 27, 2016

12:00 p.m. Paranoia starts to sink in as you entertain the idea that someone else might have found out their score before you.

I’m also obsessively searching “LSAT” on Twitter for that breakthrough “I got my score” tweet confirming that today is indeed the day.

— Dylan Rogers Elliott (@Deelahnn) June 27, 2016

2:00 p.m. Someone said the release would happen in the afternoon if it happened today. Someone said that this morning and yesterday, but you ignored them. Now it really, surely, it might possibly be almost time.

Patiently, I am not. #LSAT pic.twitter.com/izYojz9HD4

— KPL (@LIfeofKrystalPL) June 27, 2016

3:00 p.m. Even if scores don’t come out today, you’ve definitely strengthened some important computer skills in the process of waiting.

3:30 p.m. But you’re really hoping they come out today.

Me every time I get an email today #LSAT pic.twitter.com/uqYf4nbfzr

— Sarah Dobson (@Sadobson_87) June 27, 2016

4:00 p.m. Really, any time will do.

Brb LSAT scores come out at anytime now pic.twitter.com/6sTy1mKBzY

— Edwin ➳ (@Edlighten) June 27, 2016

4:15 p.m. Check Twitter one more time.

Ok, everyone else on Twitter is freaking out about LSAT scores today. So, I’m gonna be like this today pic.twitter.com/7rM82Vg7GP

— Nickole Durbin (@nickoledurbin10) June 27, 2016

4:30 p.m. That was all practice, really. You obviously didn’t think they would actually come out before now…

Knowing my LSAT score cold be released at any time today pic.twitter.com/6U42pz7uz6

— Jesse Hamrick (@JDH27) June 27, 2016

5:00 p.m. Once the end of the work day hits, your hope starts to sink and you might end up looking something like this:

5:20 p.m. Aggression might start setting in. Keep it together.

Waiting for my #LSAT score like… pic.twitter.com/EvCnbPYkpA

— Steven (@SteveTheScholar) June 27, 2016

6:30 p.m. Now you’re doubting every reddit thread, LSAT forum, and pre-law Twitter thread you’ve ever read.

Maybe you didn’t even take the test. Was it all a lie…?

7:00 p.m. Okay, even the experts are starting to give up on you now.

If LSAT scores were to come out now or tonight, it would be very unusual. Time to pour a tall one, and regroup for tomorrow and more torment

— Dave Killoran (@DaveKilloran) June 27, 2016

9:00 p.m. Time to sit in bed all night as if you can sleep while the weight of your future is hogging all the covers.

*Repeat it all. Until…

Good or bad, at least you know.

Good luck!

Editor’s Note: The personal journey of Alex Simone inspired this piece.

Samantha Reilly

Samantha Reilly is an editorial intern at Law Street Media. A New Jersey native, she is pursuing a B.A. in Journalism from the University of Maryland, College Park. Contact Samantha at SReilly@LawStreetMedia.com.

The post LSAT Anticipation: The Stages of Waiting for Grey Day appeared first on Law Street.

Looks like the Red Cross Made A Racist Mistake?

Earlier this month, the Red Cross released posters for pool safety depicting ‘cool’ and ‘uncool’ ways to act around a pool. While pool safety is very important, the imagery used in this particular poster is very worrisome. Only children of color are shown as being unruly and uncool but white children are shown being safe and calm. Why? Because prejudice! People on social media were so ready to call them out:

Hey, @RedCross, send a new pool poster to @SalidaRec bc the current one they have w your name on it is super racist pic.twitter.com/TY8MmFB3Qk

— John Sawyer (@JSawyer330) June 21, 2016

Seriously…did no one #AmericanRedCross see the #unconsciousbias in this ‘super racist’ pool poster https://t.co/Ks7xyMiGZx

— Star Jones (@StarJonesEsq) June 27, 2016

The Red Cross has since ceased production of the posters and issued an official apology. Yikes!

Rant Crush

RantCrush collects the top trending topics in the law and policy world each day just for you.

The post RantCrush Top 5: June 28, 2016 appeared first on Law Street.

Monday morning at 9 AM people were lined up outside of the Supreme Court to finally find out what the decision would be in Whole Woman’s Health v. Hellerstedt. In a surprising turn of events, the decision swung in favor of Texas abortion clinics, striking down strict state regulations that had forced around half of the state’s abortion clinics to close in the past few years. When the 5-3 decision was announced, the crowd went wild. Queen’s “We Are the Champions” played; bystanders chanted; families who were just trying to see the Supreme Court on vacation looked confused but excited to be a part of history. This decision has the potential to be monumental in the world of reproductive rights, which may be why it drew such a large crowd of people from all different backgrounds. The morning was historic and, to capture the feeling of what it was like to be there, here are the top eight signs seen outside the Court as the interns were running to retrieve the decision.

#8 Uterus Inc.

Phoebe’s sign is all about pointing out the irony in some conservatives’ opinions. So the government should have no ability to regulate a large corporation, but can tell a woman what she can or cannot do with her body? Perfectly alright.  

Image Courtesy of Alex Simone for Law Street Media

Alexandra Simone

Alex Simone is an Editorial Senior Fellow at Law Street and a student at The George Washington University, studying Political Science. She is passionate about law and government, but also enjoys the finer things in life like watching crime dramas and enjoying a nice DC brunch. Contact Alex at ASimone@LawStreetmedia.com

The post Top 8 Signs from the Whole Woman’s Health Decision Release appeared first on Law Street.

This post is part of Law Street’s continuing analysis of the recent Supreme Court rulings. To read the rest of the coverage click here.

Gun Control: Voisine v. United States

The decision: The 6-2 ruling prevents anyone convicted of “reckless domestic assault” from being able to own firearms.

Some background

This case involves two men from Maine, Stephen Voisine and William Armstrong III, who were convicted of unlawfully possessing firearms due to previous convictions for domestic assault. Under both state and federal law, anyone with a domestic violence conviction cannot possess firearms.

Both men claimed that, under federal law, they were allowed to own firearms because their convictions were deemed “reckless” conduct rather than “knowing” or “intentional.”

Under Maine state law, it is a misdemeanor to “intentionally, knowingly, or recklessly” cause bodily harm to another person. The Federal law, however, only mentions “intentionally” or “knowingly” causing harm as a misdemeanor, so Voisine and Armstrong tried to claim that their convictions fell under “reckless” domestic assault. As a result, they claimed that under federal law they were lawfully allowed to possess firearms despite their misdemeanor convictions.

While this may seem like a minor technicality, it would’ve potentially allowed people convicted of misdemeanor domestic assault to be able to lawfully own firearms.

The Court shut these claims down by ruling that “reckless domestic assault qualifies as a ‘misdemeanor crime of domestic violence.'”

Justice Thomas’ Dissent

Justice Clarence Thomas, one of the two justices who did not join the majority decision, wrote a scathing dissent accusing the decision of being restrictive of Second Amendment rights. He wrote in his opinion:

We treat no other constitutional right so cavalierly. At oral argument the Government could not identify any other fundamental constitutional right that a person could lose forever by a single conviction for an infraction punishable only by a fine.

This isn’t the first time that Justice Thomas has been outspoken on this case. Back in February, Thomas famously broke a 10-year streak of never asking a question during oral arguments for this same case. With his question, he claimed that the federal laws that prevented domestic abusers from obtaining firearms were in violation of constitutional rights.

What does today’s ruling mean?

While it was technically already illegal for anyone with a misdemeanor conviction of domestic assault to own a firearm, today’s ruling just closed a loophole. It demonstrated the court’s general support for some gun control measures by offering greater protections to victims of domestic violence.

The decision was another win for advocates of stricter gun control measures.

Read the full opinion here.

Mariam Jaffery

Mariam was an Executive Assistant at Law Street Media and a native of Northern Virginia. She has a B.A. in International Affairs with a minor in Business Administration from George Washington University. Contact Mariam at mjaffery@lawstreetmedia.com.

The post Supreme Court Decision Prevents Domestic Abusers from Owning Firearms appeared first on Law Street.

Last week’s top stories on Law Street included SCOTUS ruling that evidence obtained illegally can be used in court, new FAA rules for commercial drones, and RantCrush’s top stories from June 23. ICYMI, check out the top stories below.

1. Utah v. Strieff: SCOTUS Narrows Fourth Amendment Protections

A verdict in Utah v. Strieff was handed down by the Supreme Court yesterday, weighing in on how the Fourth Amendment applies to illegal searches. In a 5 to 3 decision, the Supreme Court reversed a ruling from the Utah Supreme Court, concluding that evidence obtained in violation of the Fourth Amendment can be used in court. Read the full article here.

2. FAA Issues New Rules for Commercial Drones

The U.S. government issued new rules on Tuesday regarding the flying of commercial drones, opening up a ton of business opportunities. Drones–small, unmanned aircraft–can be used for taking photos, to survey damage done by natural disasters, and plenty more. But using drones for delivering packages, as e-commerce giant Amazon plans on doing, will not be possible under the new rules. Read the full article here.

3. RantCrush Top 5: June 23, 2016

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post ICYMI: Best of the Week appeared first on Law Street.

Welcome to RantCrush Top 5, where we take you through today’s top five controversial stories in the world of law and policy. Who’s ranting and raving right now? Check it out below:

Unrest on Okinawa Island: Protesters Call For Removal of US Military Bases

Okinawa Islanders have had enough. After a 20 year-old Japanese woman was raped and killed at the hands of a US Marine, intensified protests sprung up Sunday to remove U.S. military bases from the island. This is largest demonstration against the U.S. since the rape of a 12 year-old girl by two American marines and a Navy sailor in 1995.

These crimes are not tolerated in the states so why are they committed by our servicemen overseas? The issue risks weakening ties between Japan and Washington, and has yet to be endorsed by Japanese lawmakers. Read the full story here.

Rant Crush

RantCrush collects the top trending topics in the law and policy world each day just for you.

The post RantCrush Top 5: June 20, 2016 appeared first on Law Street.

The Supreme Court declined to hear a case challenging a gun ban in Connecticut Monday, sidestepping the debate on gun control yet again.

The ban, enacted in 2014, applies to semi-automatic guns like the one used in Orlando last week. Despite a challenge to the constitutionality of this ban, SCOTUS decided not to weigh in.

The Connecticut ban was created in response to the Sandy Hook shooting in 2012 and replaced a federal ban that expired in 2014.

Since the Supreme Court won’t hear the case, the decision from the U.S. Court of Appeals for the 2nd Circuit that “because the prohibitions are substantially related to the important governmental interests of public safety and crime reduction, they pass constitutional muster,” will stand and the ban will remain in place.

THANK YOU SCOTUS for upholding the weapons ban, confirming that it’s not unconstitutional to ban AR-15 & other assault style #guns. #ENOUGH

— DorkPrincess (@Nu_Age_Girl) June 20, 2016

This isn’t the first time the gun debate has been turned away from the Supreme Court steps. In fact, SCOTUS has not taken up a case concerning civilian weapons since District of Columbia v. Heller in 2008, when the court ruled that individuals can keep guns in their homes for self protection.

@sawsharee @Hope012015 Living in California I’m handcuffed & shackled just for being a resident. #2A #Constitution

— imjustsaying Cruz (@tellthetruuuth) June 20, 2016

SCOTUS’s reluctance to get involved is nothing new, but its refusal is just one more spark in the flame for activists trying to fight firearms with fire.

Samantha Reilly

Samantha Reilly is an editorial intern at Law Street Media. A New Jersey native, she is pursuing a B.A. in Journalism from the University of Maryland, College Park. Contact Samantha at SReilly@LawStreetMedia.com.

The post Supreme Court Won’t Hear Case on Connecticut Gun Ban appeared first on Law Street.

A Texas law that critics see as a discriminatory measure against minorities and supporters see as a bulwark against voter fraud was reviewed by a federal appeals court on Tuesday. A decision to uphold, strike down, or tweak the law is expected by July at the latest.

The U.S. Court of Appeals for the 5th Circuit heard arguments Tuesday morning in New Orleans. Texas Solicitor General Scott A. Keller testified in favor of the law while Janai Nelson of the NAACP Legal Defense and Educational Fund argued against it.

SB 14–the law in question–was passed in 2011 with a signature from then-Texas Governor Rick Perry. A number of states have enacted more stringent voting laws since the last presidential election in 2008, with SB 14 being the toughest in the nation. It requires one of six forms of identification–driver’s license, personal ID, military ID, an official birth certificate, a passport, or a gun license–that some civil rights groups and Democrats see as purposefully limiting the rights of black, Hispanic and low income voters. College IDs do not suffice. 

The appeals court is under pressure by the U.S. Supreme Court to finalize a decision by July, as it’s one of a number of such cases that the high court is seemingly hopeful will be settled by the November election.

“If, on or before July 20, 2016, the Court of Appeals has neither issued an opinion on the merits of the case nor issued an order vacating or modifying the current stay order, an aggrieved party may seek interim relief from this court by filing an appropriate application,” the Supreme Court said in an order in April.

In the early stages of the appeal process, there seems to be little indication SB 14 will be repealed or significantly amended, though the judges did raise the question of why the law did not include any provisions that would act as a plan B in case a voter could not procure any of the six identifying documents.

In 2012, a federal court in Washington struck down the law, one of three courts to do so, though the Texas legislature has refused to act. Judge David S. Tatel wrote the opinion at the time: “That law will almost certainly have retrogressive effect: it imposes strict, unforgiving burdens on the poor, and racial minorities in Texas are disproportionately likely to live in poverty.”

How the appeals court will act on this issue could affect other fights involving voting rights throughout the country. With the November election fast approaching, this is an important case for voters in Texas and beyond.

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

The post Texas Voter ID Law Reviewed by Federal Appeals Court appeared first on Law Street.

The Supreme Court of the United States announced Monday that it will not issue a landmark ruling in the Zubik v. Burwell case, instead it will send the contraception mandate case back to lower courts to explore if a compromise is possible.

Supreme Court punts in a major religious challenge to Obamacare’s contraception workaround https://t.co/3zxr7QMVPJ pic.twitter.com/DYgU67vJbS

— HuffPost Politics (@HuffPostPol) May 16, 2016

In the unanimous “per curium” opinion, SCOTUS determined that:

Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage.

The controversial case is part of an ongoing battle between the government and private employers over access to contraception, and whether or not employers can refuse to provide coverage.

As it stands, religious organizations like churches are exempt from the Affordable Care Act’s (ACA) mandate that contraception be covered under private health plans. However, non-profit organizations with religious affiliations, such as hospitals, charities, and universities, argued that they should be exempt as well.

The ACA has given private employers who have religious objections the option to file a Form 700 with their insurance companies notifying them of their objection, so the insurance company can then contact employees with contraception options, sans employer involvement.

The Little Sisters of the Poor, a network of nursing homes operated by Catholic nuns, protested filing Form 700, along with several other non-profit organizations, because it believed that doing so would make it complicit in providing contraception, which is recognized as a sin under Roman Catholic doctrine.

In the concurring opinion written by Justice Sonia Sotomayor, and joined by Justice Ruth Bader Ginsburg, both justices underscored the court’s caution to lower courts not to read too much into the ruling. Sotomayor writes,

Today’s opinion does only what it says it does: ‘affords an opportunity’ for the parties and courts of appeals to reconsider the parties’ arguments in light of petitioners’ new articulation of their religious objection and the government’s clarification about what the existing regulations accomplish, how they might be amended and what such an amendment would sacrifice. As enlightened by the parties’ new submissions, the courts of appeals remain free to reach the same conclusion or a different one on each of the questions presented by these cases.

This case has been considered the sequel to SCOTUS’s Burwell v. Hobby Lobby case, which determined for-profit organizations can be exempt from “a law its owners religiously object to if there is a less restrictive means of furthering the law’s interest.” Under the Hobby Lobby ruling, organizations were given the same option of having insurers contact employers directly in the company objected.

Now, the lower courts will have to decide again if that same alternative puts too much of a burden on religious institutions. If so, these non-profits may gain a special exemption.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post SCOTUS Asks For Compromise in Obamacare Contraception Mandate Case appeared first on Law Street.

Welcome to the RantCrush Top 5, where we take you through the top five controversial and crazy stories in the world of law and policy each day. So who is ranting and who is raving today? Check it out below:

WTF is a “Renegade Jew?”

According to Breitbart, William Kristol is a ‘renegade jew’ for not backing Donald Trump and Twitter can’t decide if that’s an insult or a badass nickname. The term trended Sunday night into Monday after Breitbart published an article criticizing William Kristol for supporting a third party bid despite his conservative ties. The article at no point referenced Kristol’s faith. But Twitter is going wild nevertheless.

If we’re being real tho, “Renegade Jew” would be a title for Drake’s next album.

— Jon Schneidman (@RealSchneidman) May 16, 2016

A Very Specific Scientific Breakthrough

Other advances in modern medicine will never match this: the first penis transplant in the US. So crazy, it just might work! And guess what? It did. Thomas Manning, 64, who received the Genitourinary Vascularized Composite Allograft (Penile) Transplant, is recovering well. Manning was given the transplant from a deceased donor and is thanking his doctors and Massachusetts General hospital for improving his quality of life.

What? Lmao RT @pzf: Man receives the first penis transplant in the United States. https://t.co/Fzp0OfGyMw pic.twitter.com/ewaf0mzNGx

— GOD (@MarckAnthony_) May 16, 2016

SCOTUS Sends Back Birth Control Decision

The Supreme Court dodged a ruling on the controversial issue of contraceptive coverage for religiously affiliated nonprofits by pushing the case back to a lower court. Yet, there is a glimmer of compromise that would allow employees to receive Obamacare coverage for birth control without requiring the non-profits to play any role in providing it. In any case, while many of these religious groups are pleased with the decision, a lot of others feel it is a cop out on the part of SCOTUS.

Don’t Worry, It’s All Good

Popular Irish artist Sinead O’Connor was found after she went missing just outside of Chicago. The singer had last been seen going for a 6am bike ride and did not return. Concern for her well-being and safety spurred from a previous incident where she allegedly overdosed and claimed had she not written a Facebook status about it her family wouldn’t have known or cared. No one knows if today’s incident was a genuine cry for help or O’Connor just returned from a refreshing 36-hour bike ride. 

All in the Family

Hillary Clinton is a pro. A pandering pro! At a recent rally in Fort Mitchell, Kentucky, Clinton told supporters she would put husband Bill Clinton in charge of economic revitalization “because you know he’s good at that stuff.” In between cheers, she added that this was especially important in coal country and inner cities. While I don’t disagree, I can’t help but feel like Hillary is planning an epic 90’s party and Bill is the DJ. See for yourself:

Rant Crush

RantCrush collects the top trending topics in the law and policy world each day just for you.

The post RantCrush Top 5: May 16, 2016 appeared first on Law Street.

Since 1977, unions that have been designated as the exclusive bargaining representatives for both private and public sector employees have been allowed to require all employees, union and non-union members, to pay union dues. These union dues, paid by both union and non-union members, cover the designated union’s “agency” costs, which in return, obligates the union to represent and bargain for benefits and working conditions for all workers in that unit, including non-union members. The Supreme Court has recognized that this involves “close questions under the First Amendment,” and the Court has made it clear that forcing non-union members to pay dues that would cover the union’s political or ideological activity violates the First Amendment.

Over the past four decades, this ruling of mandatory union dues found in Abood v. Detroit Board of Education has been constantly criticized and challenged in the Court. Recently, in Friedrichs v. California Teachers Association the Supreme Court was posed with the question by a group of California teachers on whether requiring non-union members in the public-sector to affirmatively opt out of paying nonchargeable portions of the agency fees each year violates their First Amendment rights. Read on to learn the effects of the Supreme Court issuing a decision with only eight justices, and to take a look at the court’s decision

Changes in Public Sector Labor

In 1977, the Supreme Court unanimously held in Abood v. Detroit Board of Education, that public workers have the right to join together and form a union that exclusively represents them in collective bargaining negotiations. The court also ruled that union members can vote to collect a “fair share” fee from all workers who receive union benefits “germane” to collective bargaining, which are “service charges used to finance expenditures by the union for collective bargaining, contract administration and grievance adjustment purposes.” This means that when workers vote to form a union, they can also decide that “all workers, regardless if they are union members, should share the cost of union representation, since all workers benefit from the bargaining agreements” according to AFSCME. However, the Court did determine that the First Amendment requires unions to provide workers with a means of opting out from dues that are not “germane” to collective bargaining. Meaning, workers must have a means to opt out of paying for dues related to political activities, including, activity related to political views, on behalf of political candidates, or toward the advancement of other ideological causes. According to SCOTUS:

The Constitution requires that a union’s expenditures for ideological causes not germane to to its duties as a collective bargaining representative be financed from charges, dues or assessments paid by employees who do not object to its advancing such causes and who are not coerced into doing so against their will by the threat of loss of governmental employment.

Following this decision, in 2012, in Knox v. SEIU, the Supreme Court determined that the longstanding precedent that the First Amendment demands that non-union members covered by union contracts be given the chance to “opt out” of special fees, was insufficient.  In a 7-2 decision, the majority ruled that it’s unconstitutional to allow a “public-sector union to impose a special assessment without the affirmative consent of a member upon whom it is imposed.”

The next major case heard in the Supreme Court in 2014, Harris v. Quinn, the Court held that “personal assistants” that provide homecare services cannot be compelled to pay dues to a union they do not wish to join, since they are hired and fired by individual patients and work in private homes. Since these home health care workers are not truly state employees, yet they are “partial-public employees,” Abood should not apply, and thus these partial-public employees are not required to pay partial dues known as “agency fees.” This Court’s decision led some unions to believe that the Court may be ready to overturn Abood and free all public-sector workers from compulsory dues. To gain a perspective of the effects of this ruling, the year following this decision, SEIU Healthcare Illinois, Indiana, Missouri, Kansas, which originally claimed about 60 percent of the caregivers in the state subsidy programs covered by this case, later reported that it only represents 30 percent of the state subsidy caregivers (about 13,000 in-home Illinois caregivers left SEIU) and cost the SEIU an estimated $5 million in member dues.

Recent Challenge to Union Dues 

#SCOTUS signals support for plaintiffs in Friedrichs v. CTA case, via @politico: https://t.co/ptGIJ5S9cB pic.twitter.com/6Znbe1mcWR

— 50CAN (@FiftyCAN) January 12, 2016

The most recent case heard in the Supreme Court, Friedrichs v. the California Teachers Association et al., challenged Abood and compulsory agency fees.

This case was brought by 10 California teachers, including Rebecca Friedrich who was the lead plaintiff, and a teachers group, Christian Educators Association International in California. According to California law, public employees who refuse to join unions must pay a “fair share service fee” typically equivalent to the dues members pay. The fees are meant to pay for some of the costs of collective bargaining.

Oral Arguments with Scalia; Court’s Ruling Without Scalia

In January 2016, the oral arguments were delivered for this case.

The plaintiffs tried to convince the Court to overturn Abood by arguing that agency fees violate their First Amendment rights, because bargaining with the state is no different from lobbying, as it is “inherently political.” They further argued that California Teachers Association does not “represent their interests on bargaining issues covered by fair-share fees.” Thus, California should not force them to financially support a union they disagree with. The Center for Individual Rights, who represented these plaintiffs stated that:

Typically, California teacher union dues cost upwards of a $1,000 per year. Although California law allows teachers to opt-out of the thirty percent or so of their dues devoted to overt political lobbying, they may not opt out of the sixty to seventy percent of their dues the union determines is devoted to collective bargaining. Requiring teachers to pay these “agency fees” assumes that collective bargaining is non-political.  But bargaining with local governments is inherently political. Whether the union is negotiating for specific class sizes or pressing a local government to spend tax dollars on teacher pensions rather than on building parks, the union’s negotiating positions embody political choices that are often controversial.

On the other hand, the defendants in this case, California Teachers Association, argue that, according to Huffington Post, that:

Since unions must represent members and non-members, it’s appropriate to require all who benefit from negotiations to share the costs. The loss of money from “free-riders” – those who benefit without paying – would threaten a union’s ability to effectively represent employees.

Furthermore, the defendants argued that they represent the views of the majority, and anyone who disagrees can speak up. They also say the plaintiffs:

Are simply wrong in declaring that it ‘does not make a First Amendment difference’ whether speech is part of lobbying the Legislature to enact a law or of negotiating a contract with the public employer. […] unlike lobbying, collective bargaining is a process of making binding collective agreements with obligations on both sides.

During and after the oral arguments, the court’s conservative majority appeared “ready to say that forcing public workers to support unions they had declined to join violates the First Amendment.” Justice Antonin Scalia was said to be the swing vote for this case. He had a history of endorsing union’s positions, but during the oral arguments for Friedrichs, Scalia “tore into core arguments made by the union and government attorneys.” Despite Scalia’s passing in February, the Court moved forward and handed down their decision at the end of March, with a 4 to 4 tie. A split decision at the Supreme Court level means that the lower court’s ruling will be upheld and the laws will be left in place until a future case challenges this issue. Thus, in the meantime, Abood will not be overruled and the 25 states and D.C. that require compulsory union dues can lawfully continue to require non-members to pay agency fees to support union’s collective bargaining agreements.

Conclusion: What’s Next?

The Center for Individual Rights announced that it will request a rehearing. According to the Supreme Court rules, a rehearing request must be filed within twenty-five days following the March 29th ruling. According to SCOTUSBlog: “It would require the votes of five Justices to order such a reconsideration, and one of the five must have been one who had joined in the decision.”

Though this is a grand victory for unions, the future of unions is still up in the air and largely depends on who replaces Scalia. Until then, the tension will continue between union supporters and anti-union advocates.

Resources

Primary

SCOTUS: Abood v. Detroit Board of Education

SCOTUS Blog: Opinion Analysis: Friedrichs v. California Teachers Association

Brief of Respondents

Additional

SCOTUS Blog: Argument Preview: Is Abood in Trouble? 
The Atlantic: What will become of Public-Sector Union’s Now?

The Center for Individual Rights: Friedrichs v. California Teachers Association

Huffington Post: This Supreme Court Case Could Significantly Weaken Teacher Unions

On Labor: Cases in the Pipeline: Challenges to Union Security Clauses

Editor’s Note: This post has been updated to credit select information to the Huffington Post.

Ashlyn Marquez

Ashlyn Marquez received her law degree from the American University, Washington College of Law and her Bachelor’s degree from The New School. She works in immigration law and has a passion for worker’s rights, tacos, and avocados. Contact Ashlyn at Staff@LawStreetMedia.com.

The post Friedrichs v. CTA: A Big SCOTUS Win for Unions, But Not Over Yet appeared first on Law Street.

Yesterday, President Barack Obama nominated Merrick Garland to the Supreme Court to fill the vacancy left by the death of Justice Antonin Scalia. Since Scalia’s death, Senate Republicans have been vowing that they will not hold hearings on whoever Obama nominates, because he’s in the last year of his office. But with Garland as his choice, Obama is essentially calling their bluff–Garland is by most accounts a moderate, and has received Republican support in the past. So, will the Senate Republicans continue to block Garland? Or will they “do their job?”

The news that Obama had chosen Garland as his nominee led to predictably mixed reactions around Washington. As expected, Republican leaders, including Senate Majority Leader Mitch McConnell and Senator Chuck Grassley, who chairs the Senate judiciary committee, both stuck to their lines that a new justice shouldn’t be chosen until the next President is in office.

A few Senate Republicans did acknowledge that the Senators should at least meet with Garland and vet him–Senator Susan Collins of Maine said:

I believe that we should follow the regular order in considering this nominee. The Constitution’s very clear that the president has every right to make this nomination, and then the Senate can either consent or withhold its consent.

A few other Republicans, including Senator Jeff Flake, admitted that they would consider nominating Garland in a lame duck session if Hillary Clinton (or another Democrat) is elected in November.

As expected, most Democrats responded to the Republican blockade with frustration. The senior-most Democrat on the Senate Judiciary Committee, Senator Patrick Leahy stated:

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Americans Tell the Senate: #DoYourJob appeared first on Law Street.

After the death of Supreme Court Justice Antonin Scalia last month, all eyes are on President Barack Obama as he seeks to nominate a SCOTUS replacement. A few names have been floating around for a while–all top judges and advocates in the U.S., but now a source from the White House has reported that Obama has narrowed the search down to three potential options:

Sri Srinivasan

Image courtesy of United States Department of Justice via Wikimedia

Sri Srinivasan is only 49, and would be the first Asian-American and Hindu Supreme Court justice. He was born in India and then emigrated to Kansas with his family. He went to Stanford University for both his undergraduate degree as well as law school. He clerked for former Supreme Court Justice Sandra Day O’Connor, and worked in the Solicitor General’s office under both President George W. Bush and Obama. Srinivasan currently sits on the U.S. Court of Appeals for the DC Circuit. When he was nominated to that position by Obama back in 2013, he was approved unanimously. 

Tom Goldstein of SCOTUSBlog conducted a seemingly exhaustive review of Srinivasan’s decisions while on the bench and came to the conclusion that he “seems to be as moderate a judge as Republicans could expect a Democratic president to nominate. His views seem to be solidly in the center of American legal thought.” Goldstein puts Srinivasan’s ideology on par with current Justice Elena Kagan.

Merrick Garland

SC Nom -Merrick Garland, chief judge US Court of Appeals for District of Columbia Circuit,https://t.co/k94iam2oISpic.twitter.com/dE4SkpINkN

— Blanche V. Mercaldi (@tammytabby) March 15, 2016

Merrick Garland also sits on the U.S. Court of Appeals for the DC Circuit. He’s 63, and a graduate of Harvard University and Harvard Law School. He clerked on the Supreme Court when he was younger, for Justice William Brennan, and worked for some time in the private sector. He was nominated to the bench by President Bill Clinton. He’s also not clearly partisan; Vox’s Dylan Matthews cites the fact that he’s very pro-law enforcement as something that will be attractive to Republicans. He was considered as a replacement for retired Justice John Paul Stevens as well, so it makes sense he’s on the list again.

Paul Watford

Southern California’s Paul J. Watford is among Obama’s top choices for Supreme Court … https://t.co/yE2wKTwBmUpic.twitter.com/6LSKqtWSyq

— hypervocal (@hypervocal) March 14, 2016

U.S. 9th Circuit Court of Appeals Judge Paul J. Watford is 48. A Southern Californian, Watford went to Berkeley, and then UCLA Law. Like the other two contenders on the list, he clerked for a Supreme Court Justice–Justice Ruth Bader Ginsburg. Then he worked in the U.S. Attorney’s office and in the private sector before he was nominated to the bench by President Obama in 2011. However, he was only confirmed by a 61-34 vote, and was vehemently opposed by Senator Chuck Grassley (R-Iowa), the chairman of the Senate Judiciary Committee.

Pushback from the Republicans

The Republicans in the Senate have vowed not to hold hearings for any nominee that Obama proposes. The RNC is going so far as to launch a task force that will support those Senate Republicans with ads, petitions, and media campaigns. While the three choices that appear to be on the table are rather moderate, it doesn’t seem like the Republicans will really be playing ball. As White House spokesperson Josh Earnest quite bluntly put it:

It’s clear what Republicans are planning to do. They are planning to tear down the president’s nominee, without regard to who that person is.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Who is on Obama’s SCOTUS Nominee Short List? appeared first on Law Street.

Today, hundreds of pro-choice supporters rallied in front of the Supreme Court. Oral arguments will be heard today in Whole Women’s Health v. Hellerstedt, a case that will cause the justices to weigh in on the constitutionality of Texas’s new controversial abortion laws. Given the high stakes nature of the case–it could set national precedent for abortion laws either way it goes–protestors set out for the Supreme Court this morning, and I headed over to check it out and grab some photos of the attendees.

The new Texas regulations place additional restrictions on abortion providers, many of which are viewed as unnecessarily burdensome. Proponents of the Texas law argue that they’re trying to protect women’s health; opponents argue that the laws are just backdoor attempts to prevent abortion access in the state. The Texas provisions fall under the category of “TRAP laws,” a.k.a. targeted regulations of abortion providers. Eric Zorn of the Chicago Tribune describes the general purposes of the laws, stating that: “in most cases they compel abortion clinics to meet the architectural, equipment and staffing standards of outpatient surgical centers, and to be staffed by doctors who have admitting privileges at nearby hospitals.” While those sound in theory like good ideas, they are excessive, medically unnecessary, and ultimately just make it harder for abortion providers to operate.

Despite the incredibly windy and blustery morning, the scene at SCOTUS today was crowded and enthusiastic. The event, which was organized by a number of pro-choice groups, featured men, women, and a few adorable dogs, as well as prominent pro-choice speakers. A common refrain from the crowd was “Stop the Sham,” a rallying cry that has also reverberated around social media in the form of a hashtag: #StoptheSham.

Rights don’t matter if you can’t access them. #WeWontGoBack #StopTheSham pic.twitter.com/mrDI8PWi2Q

— Planned Parenthood (@PPact) March 2, 2016

I’m with you all in spirit!! #SCOTUS #stopthesham #WeWontGoBack https://t.co/EjVddYnGBZ — Wendy Davis (@wendydavis) March 2, 2016

Today the Court hears argument in #WholeWomansHealth, the most important repro rights case in 20 years #StopTheShampic.twitter.com/4qhUyGqxjC

— Notorious R.B.G. (@NotoriousRBG) March 2, 2016

And on a lighter, final note, no rally in front of the Supreme Court would be complete without some fantastic protest signs. Check out some of my favorites in the slideshow below:

Image courtesy of [Anneliese Mahoney via Law Street Media]

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post #StoptheSham: Scenes from the Pro-Choice Rally at SCOTUS appeared first on Law Street.

They say that silence is golden and, apparently, Supreme Court Justice Clarence Thomas agrees. Everyone get out your party hats and balloons, because yesterday marked a ten year anniversary worth celebrating: Justice Thomas has officially gone an entire decade without asking a single question from the bench of the Supreme Court.

The last time Thomas uttered anything at all from the bench? A little over three years ago on January 14, 2013. The country erupted in cheers and excitement as Thomas spoke his first words in almost seven years of silence from the bench: “well–he did not–.” While these were the only words captured by the court transcript on that monumental day, spectators in the court claim that Thomas was making a tasteful joke about the uselessness of a law degree from his alma mater, Yale. The subsequent laughter recorded in the courtroom seems to support those claims.

The last time Thomas asked a question? Well, since yesterday marked the ten year anniversary of his inquisitive silence, that puts his last question on February 22, 2006. To put that into perspective, try to remember what you were doing on this day in 2006. Perhaps, re-watching the first “High School Musical” for the fiftieth time? Singing along to Kelly Clarkson’s “Breakaway?” Maybe even getting excited about the release of the Nintendo DS Lite! 2006 was a long time ago. He asked the question in the middle of Holmes v. South Carolina, a contentious case about the death penalty. Ironically enough, the question almost seems like it was a statement in the form of a question:

Counsel, before you change subjects, isn’t it more accurate that the trial court actually found that the evidence met the Gregory standard?

After approximately eighteen lines of text in the court transcript (which has particularly large margins and is in a font much bigger than Times New Roman), the attorney Thomas had spoken up to correct was shut down, and Thomas returned to his state of hibernation for another few years. Who knows if he will ever speak again!

Thomas is supposedly a proponent of more listening on the Supreme Court and thinks that it is more in his nature to listen than to ask a bunch of questions. Well, hey, to each their own. If he thinks he can do his job best by just sitting back and taking it all in, he can go for it. You keep doing you, Justice Thomas!

Alexandra Simone

Alex Simone is an Editorial Senior Fellow at Law Street and a student at The George Washington University, studying Political Science. She is passionate about law and government, but also enjoys the finer things in life like watching crime dramas and enjoying a nice DC brunch. Contact Alex at ASimone@LawStreetmedia.com

The post Ten Years of Silence: Will Justice Clarence Thomas Ever Speak Up Again? appeared first on Law Street.

After the passing of Supreme Court Justice Antonin Scalia on February 13, President Obama announced that he would nominate an “indisputably qualified” candidate to take Scalia’s place. Apparently to many House republicans, “indisputable” is indeed, disputable. And while it’s all well and good to take your time evaluating the credentials of a person who could feasibly be making important decisions for the country for the next forty-plus years, refusing outright to look at any nominees is obstructionist nonsense. As with most political nonsense, members of Congress are finding excuses for their actions. Here are a few of their “reasons” behind that un-constitutional garbage, each dumber than the last:

1. The Thurmond Rule

Several GOP candidates have cited “The Thurmond Rule” as a reason to avoid appointing a new justice in an election year. For the unfamiliar, here’s a recap on the person behind The Thurmond rule:

Strom Thurmond, a South Carolina senator, was one of the most aggressive segregationists in modern American history. This is a man who never fully renounced his belief in segregation all the way to his death in 2003. That’s right, iPods existed, and this influential man still didn’t dial back his position that black people and white people should use separate bathrooms. This is a man who impregnated his family’s sixteen year-old black maid, fathered an illegitimate mixed-race daughter, and secretly paid for her schooling while railing against her right to share a bus seat with a white person.  This is a man who makes George Wallace look like Beyoncé Knowles.

So now that we’ve gotten a quick re-cap on the historically heinous opinions of Mr. Thurmond, we can understand just how much weight we should give his opinion on Supreme Court Nominations. And while people refer to Thurmond’s argument as a “rule,” it’s really just one guy’s suggestion. That suggestion is that the Senate should not nominate a Supreme Court justice. And even if we were to take this rule of thumb as the letter of the law, we’d need to look at Thurmond’s exact quote. In a moment where he wasn’t disparaging ethnic minorities, he said: “No lifetime judicial appointments should move in the last six months or so of a lame-duck presidency.”

Barack Obama has over eleven months left in his presidency, and nine months until the presidential election. By any measure, that’s more than six months, and this rule of thumb shouldn’t apply.

2. “Conflict of Interest”

In a cart-before-the-horse argument, Rand Paul said that Obama should not be allowed to appoint a justice, because potential nominees would support the Presidents’ own issues facing the Supreme Court, such as his executive actions concerning immigration, and his climate change regulations.

There will always be a potential for a president to choose a nominee who supports the same interpretation of the law as they do. In fact, the court’s more conservatives justices; Alito, Thomas, Roberts, and formerly Scalia, were all appointed by Republican presidents. The more liberal justices, Ginsburg, Sotomayor, Kagan, and Breyer were all appointed by Democratic presidents. That’s kind of just how it works. Obviously it works in the President’s own favor to elect a similarly-minded justice. That’s why we democratically elect a president whose political ideologies align best with the majority of Americans–so that his political decisions won’t be subject to an arbitrary whim.

Here’s the thing: if Obama picks a strongly biased or crony nominee, that person won’t make it through the Senate’s approval. That’s the check on Obama’s power that already exists, and which should be used regardless of political affiliation to make sure that the person nominated is qualified, and not unduly biased.

Thankfully, Paul qualified his argument to be less resolute “It’s going to be very, very, very difficult to get me to vote for a presidential nomination from this president,” he said. “I will look at it if it comes down, but my threshold for voting for somebody is going to be very, very high.” I’d hope that his threshold would he high regardless, and not exceptionally high simply because a Democrat is in office. We’ll have to see how he ends up voting.

3. We Owe It To Scalia / There’s No Precedent

We’ve heard a lot from GOP presidential candidates about honoring Justice Scalia’s legacy, How do you best honor the passing of a strict originalist? By ignoring the text of the constitution, of course.

Senate Majority Leader and alleged turtle Mitch McConnell responded to Scalia’s death by saying “This vacancy should not be filled until we have a new president.” But Scalia was known for his very literal reading of the constitution.

If Scalia had been asked about the nomination for his successor, he’d pull out his pocket-sized (but never abridged) copy of the Constitution, and zero-in on article II, Section 2. That section says “[The president] shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.” Then Justice Scalia could slap Mitch McConnell across the face with that Constitution for misrepresenting the founders’ original intent.

Unfortunately in his absence, we have candidates decrying that there’s no precedent for a Supreme Court appointment in an election year, and that there’s no time for a candidate to be vetted. The only trouble with those arguments are that they are just not true. For one, there have indeed been Supreme Court appointments during an election year, as NPR explains brilliantly in its rundown of SCOTUS history.

And the notion that there’s no time is also unfounded. The longest Supreme Court Justice nomination took 125 days, after Louis D. Brandeis was confirmed in 1916. Actually, if the Senate waited until our 45th president nominated a Supreme Court Justice, the country would endure the longest vacancy on the court in the last thirty years: well above the earlier record of 237 days.

No matter how you slice it, President Obama is well within his constitutional rights to appoint a Supreme Court Justice of his choosing, so long as the Senate fulfills its constitutional obligation to fairly assess and vet the nominee. All of the reasons presented by these legislators are simply excuses for being deliberately obstructive to the legal procedure mandated by the Constitution.

Sean Simon

Sean Simon is an Editorial News Senior Fellow at Law Street, and a senior at The George Washington University, studying Communications and Psychology. In his spare time, he loves exploring D.C. restaurants, solving crossword puzzles, and watching sad foreign films. Contact Sean at SSimon@LawStreetMedia.com.

The post The 3 Dumbest Reasons To Block Obama’s SCOTUS Pick appeared first on Law Street.

The world was rocked by the death of 79-year-old Justice Antonin Scalia on Saturday, February 13, 2016. Scalia, the longest-serving justice on the current bench, was appointed by President Ronald Reagan on June 17, 1986 following the resignation of Chief Justice Warren E. Burger. His three decades on the Court have proven to be legendary and exceptionally influential in the interpretation of law and the Constitution. Even his passing has, fittingly, sparked a constitutionally-based showdown of governmental powers and the appointment of a new justice. Read on to learn more about Justice Scalia’s influential and legendary service to the Court and the politically fused debate regarding the appointment of a new Supreme Court Justice.

Who Was Antonin Scalia?

Justice Antonin Scalia was a conservative originalist powerhouse within the Supreme Court who unapologetically defended the Founding Fathers’ intent and precise wording of the Constitution to his last day. His interpretation was fully vested in originalism, an ideology that deems the Constitution a dead document–one inflexible and unchanging to the environment and developments of the world in which it was created.

Scalia was a master in crafting polarizing opinions which were widely criticized by many and revered by others. His stances on women, abortion, and minorities made him an unfavorable justice among Democrats particularly. His protection for privacy highlighted his commitment to the Constitution. Yet, his ability to artfully and logically decipher complex analyses in a nuanced manner was an undeniable talent; Chief Justice John Roberts dubbed Scalia a “leader of the conservative intellectual renaissance.“

Noteworthy Cases: A Legacy Through Opinion and Text

Here is just a sampling of the many noteworthy cases that define Scalia’s time on the court:

The Second Amendment

Justice Scalia delivered the majority opinion for District of Columbia v. Heller in 2008 in a step-by-step breakdown of the operative clause in the Second Amendment, concluding the right to bear arms extended to the people of the United States beyond the context of “militia” as cited in the Second Amendment. Scalia’s opinion further developed the limitations of the right to bear arms, drawing from a historical context and English implementation. He stated,

[T]here seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms…we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

Privacy

Scalia led a crusade for the protection of privacy. Justice Scalia’s 2001 opinion in Kyllo v. United States set a clear limitation on police intrusion. In a 5-4 ruling, police were barred from utilizing thermal-imaging devices to explore the insides of a private home otherwise unknown without physical intrusion as a protection of the Fourth Amendment and unreasonable searches without the requisite warrant. The use of thermal-imaging was deemed to be an “intrusion into a constitutionally protected area.”

The Fourth Amendment

Scalia’s conclusion in Florida v. Jardines further cemented the Fourth Amendment definition of a search by finding that the use of a drug-sniffing dog on private property was considered a search and therefore, required a warrant. In 2013, when the Maryland v. King decision granted police the ability to collect and analyze DNA samples from individuals arrested for but not yet convicted of crimes, Justice Scalia delivered a fierce dissent. He stated:

[N]o matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest).

He was joined by Justice Ginsburg, Justice Sotomayor, and Justice Kagan in his dissent. Most recently, Justice Scalia supported the decision in Rodriguez v. United States, which extended Fourth Amendment protections for motorists detained for an extended period of time to allow police to conduct a dog-sniff without reasonable suspicion. Such police conduct was found to be in violation of the Fourth Amendment.

Gay Marriage and Rights

Justice Scalia was widely criticized for his conservative  stance on a variety of large-scale issues facing a more progressive America. His dissents regarding LGBTQ rights were particularly controversial. These range from his dissent in United States v. Windsor to his dissent in Lawrence v. Texas in which he stated that the Court had “largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct” when the majority invalidated Texas’ same-sex sodomy ban. In his vehement opposition, Justice Scalia compared homosexuals to drug dealers, prostitutes, and animal abusers, garnering him significant criticism.

Abortion

Justice Scalia continuously criticized the bench on abortion jurisprudence, and stated, in Hodgson v. Minnesota, “I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.”

In 1992, his partial dissent in Planned Parenthood of Southeastern Pennsylvania v. Casey reinforced his stance:

That is, quite simply, the issue in this case: not whether the power of a woman to abort her unborn child is a ‘liberty’ in the absolute sense; or even whether it is a liberty of great importance to many women. Of course it is both. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the ‘concept of existence, of meaning, of the universe, and of the mystery of human life.’ Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected–because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribe.

After three decades of service, one thing remains starkly clear–Justice Scalia remained dedicated to and bound by the words of the Constitution and what he viewed as the intent of its writers. His stances, often argumentative and unforgiving, remained unwaivering.

Has Justice Scalia’s Passing Caused a Constitution Crisis?

Before Justice Scalia’s passing could properly be mourned, the American public was reminded of the extremely high stakes in the 2016 election as Republicans took to the streets in an effort to prevent President Obama from nominating a justice to fill the current vacancy on the bench. Just thirty minutes after the news of Scalia’s death broke, Ted Cruz took to his Twitter and posted to say: “Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.”

A variety of reasons have been stated for the opposition to nominate Justice Scalia’s replacement. Senator Rand Paul weighed in, finding that a conflict of interest would exist if President Obama made a nomination as he has too many of his own policies before the Court. Conn Caroll, communications director for Utah Republican Mike Lee stated, “What is less than zero? The chances of Obama successfully appointing a Supreme Court Justice to replace Scalia?” Donald Trump called for the Senate to “delay, delay, delay” and Ted Cruz stated, “the Senate needs to stand strong.” Ohio Governor John Kasich reminded the world, “I just wish we hadn’t run so fast into politics.”

However, Democrats fired back by pointing out that it is written in Article II, Section 2 of the Constitution that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.”

Hillary Clinton commented: “It is outrageous that Republicans in the Senate and on the campaign trail have already pledged to block any replacement that President Obama nominates.” Further reminding the public that President Obama remains in office until January 20, 2017 and has a duty to continue filling his obligations as Commander in Chief. Senator Elizabeth Warren demolished naysayers with the following statement that went viral:

The sudden death of Justice Scalia creates an immediate vacancy on the most important court in the United States. Senator McConnell is right that the American people should have a voice in the selection of the next Supreme Court justice. In fact, they did — when President Obama won the 2012 election by five million votes. Article II Section 2 of the Constitution says the President of the United States nominates justices to the Supreme Court, with the advice and consent of the Senate. I can’t find a clause that says “…except when there’s a year left in the term of a Democratic President.” Senate Republicans took an oath just like Senate Democrats did. Abandoning the duties they swore to uphold would threaten both the Constitution and our democracy itself. It would also prove that all the Republican talk about loving the Constitution is just that — empty talk.

President Obama has already pledged that he will fulfill his duty to nominate an individual to fill Justice Scalia’s vacancy and the list of potential nominees includes many extremely qualified individuals. The list includes, but is not limited to: Sri Srinivasan of the District of Columbia Circuit Court of Appeals, Patricia Ann Millett of the D.C. Circuit Court of Appeals, Paul Watford of the Ninth U.S. Circuit Court of Appeals, Merrick Garland, the Chief Justice of the D.C. Circuit Court of Appeals, Attorney General Loretta Lynch, Jane Kelly of the Eighth U.S. Circuit Court of Appeals, and Jacqueline Nguyen of the Ninth U.S. Circuit Court of Appeals.

While it is unclear how the battle between President Obama and the Senate will play out, it is important to note the Senate has never taken more than 125 days to confirm a Presidential Supreme Court nominee. At the time of Justice Scalia’s passing, President Obama still had 342 days left in his term. Since 1900, eight individuals were nominated during election year, six were confirmed. With that said, there is still plenty of time for President Obama to nominate a Supreme Court Justice and for the Senate to confirm–we will just have to wait and see how this constitutional showdown plays out.

Resources

Primary

Cornell Legal Information Institute: District of Columbia v. Heller

 Cornell Legal Information Institute: Texas v. Johnson

Cornell Legal Information Institute: Kyllo v. United States

Oyez: Florida v. Jardines

Cornell Legal Information Institute: Rodriguez v. United States

Cornell Legal Information Institute: United States v. Windsor

 Cornell Legal Information Institute: Lawrence v. Texas

JUSTIA: Hodgson v. Minnesota

Cornell Legal Information Institute: Planned Parenthood of Southeastern Pennsylvania v. Casey

Secondary

Slate: Antonin Scalia Will Be Remembered As One of the Greats

Yahoo! News: Supreme Court Justice Antonin Scalia Found Dead in Texas

Grassfire: Remembering a Titan: The Legacy of Justice Antonin Scalia

 Cornell Legal Information Institute: Bush v. Gore

Atlanta Journal-Constitution: Antonin Scalia: 5 of His Most Famous Decisions

Cornell Legal Information Institute: Planned Parenthood of Southeastern Pennsylvania v. Casey

 Twitter: Ted Cruz

Charters of Freedom: The United States Constitution

Think Progress: It’s a “Conflict of Interest” for Obama to Nominate a Supreme Court Justice

Slate: Could Justice Antonin Scalia’s Death Lead to a Constitutional Crisis?

NDTV: Trump Calls for ‘Delay, Delay, Delay’ on Scalia Successor”

The New York Times: Hillary Clinton Calls Mitch McConnell’s Stance on Supreme Court Nomination ‘Disappointing’

Slate: Obama’s Supreme Court Shortlist

The New York Times: Supreme Court Nominees Considered in Election Year are Usually Confirmed

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

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Supreme Court Justice Antonin Scalia was found dead at 79 today at Cibolo Creek Ranch, in Texas. A conservative fixture on the court since he was appointed by Ronald Reagan in 1986, Scalia’s death leaves a hole in the bench–filling it already promises to be contentious in today’s hostile political environment.

According to sources, Scalia was in Texas at a resort this weekend. He complained that he did not feel well last night, went to bed, and didn’t show up for breakfast this morning, so his hunting party left without him. He was later found to have passed away in his sleep, from natural causes.

His colleagues, as well as other top political voices, mourned his passing. Chief Justice John Roberts stated:

He was an extraordinary individual and jurist, admired and treasured by his colleagues. His passing is a great loss to the Court and the country he so loyally served. We extend our deepest condolences to his wife Maureen and his family.

Additionally, 2016 candidates weighed in on Scalia’s legacy:

My thoughts and prayers are with Justice Scalia’s family and his colleagues on the court who mourn his passing. pic.twitter.com/Y51xUMMEId

— Bernie Sanders (@BernieSanders) February 13, 2016

The totally unexpected loss of Supreme Court Justice Antonin Scalia is a massive setback for the Conservative movement and our COUNTRY! — Donald J. Trump (@realDonaldTrump) February 13, 2016

Statement on the passing of Supreme Court Justice Antonin Scalia: pic.twitter.com/xazj9dDd5c

— Hillary Clinton (@HillaryClinton) February 14, 2016

Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement. — Ted Cruz (@tedcruz) February 13, 2016

Jeanette & I mourn the loss of Justice Scalia, and our thoughts & prayers are with his wife Maureen & his family. pic.twitter.com/e03KRZRM6q

— Marco Rubio (@marcorubio) February 13, 2016

President Barack Obama stated:

Obviously, today is a time to remember Justice Scalia’s legacy. I plan to fulfill my constitutional responsibilities to nominate a successor in due time. These are responsibilities I take seriously, as should everyone.

However, the arguably most controversial statement came from Senator Mitch McConnell, who stated: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”

Given President Obama’s sitting duck status, the fight to replace Scalia will probably be incredibly controversial, especially given McConnell’s fighting words. But for now, the United States mourns a leading legal mind.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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On January 25, 2016, four years after the major shift that Miller v. Alabama created in juvenile law, the Supreme Court did it again. In a 6-3 decision in Montgomery v. Louisiana, SCOTUS greatly impacted the landscape of juvenile law along with the lives of hundreds of individuals sentenced to a lifetime of prison as young people. The court ruled that Miller retroactively gives juvenile offenders the ability to show that they are “not beyond rehabilitation to become a law-abiding individual” at the time of sentencing.

The much-anticipated present change in juvenile law altered the landscape of the firm stance taken in Miller on June 25, 2012 pertaining to the incarceration of juvenile offenders. At that time, SCOTUS held that sentencing a juvenile homicide offender to life in prison without the possibility of parole was in violation of the Eighth Amendment’s Cruel and Unusual Punishment Clause. The Court’s stance in Miller rounded out a trio of Supreme Court decisions setting up key sentencing protections for juvenile offenders, the first decision was Roper v. Simmons in 2005. In Roper, the Court held that the application of capital punishment and the death penalty was a violation of the Eighth Amendment as applied to juvenile sentencing. Graham v. Florida, decided in 2010, protected juveniles convicted of non-homicidal offenses from being sentenced to life in prison without the possibility of parole under the Eighth Amendment. Continuing its protective trend under the umbrella of the Eighth Amendment, SCOTUS extended the protection identified in Graham to juvenile homicide offenders in Miller.

Read on to learn more about the Miller decision, the changes the Court made on January 25, 2016 in Montgomery v. Louisiana, and what is in store for juvenile offenders sentenced to life without parole prior to June 25, 2012.

A Tale of Tried Teens: Miller v. Alabama

In November 1999, a 14-year-old Kuntrell Jackson (Teen #1) decided to accompany two friends to rob a video store. On the way to the store, Jackson learned that one of his friends had concealed and brought with him a sawed off shot gun in his coat sleeve. Jackson made the decision to stay outside of the store when his friends went in. Ultimately, the store clerk refused to give the young boys the money they demanded and she was shot and killed.

Under Arkansas law, 14-year-old Jackson was charged as an adult for capital felony murder and aggravated robbery. He was convicted of both crimes. A motion was filed to transfer the case to juvenile court, but was subsequently denied by the court and affirmed on appeal. Further, a habeas corpus petition was filed on his behalf after the Roper decision, but was dismissed. While the ruling was on appeal, SCOTUS made the Graham decision. The Arkansas Supreme Court affirmed the dismissal based on both Roper and Graham.

Subsequently, 14-year-old Evan Miller (Teen #2), a troubled young boy bouncing in and out of foster homes who had attempted suicide four times already, was about to have his life changed. Miller and his friend followed Cole Cannon, a drug dealer, to his trailer where they smoked marijuana and played drinking games. When Cannon passed out, the boys stole his wallet and took out $300 to split, but Cannon woke up and a fight ensued. Miller struck Cannon repeatedly with a baseball bat. The boys came back later and lit the trailer on fire, ultimately killing Cannon. Pursuant to Alabama law, Miller had to be charged as a juvenile, but the District Attorney was granted a transfer to adult court. Miller was charged and convicted of murder in the course of arson, which carries a mandatory minimum of life without parole. The Alabama Court of Criminal Appeals confirmed the sentence and the Alabama Supreme Court denied review.

The Supreme Court of the United States granted certiorari and agreed to review both cases together, as one.

In its rationalization, the Court immediately established that children are “constitutionally different from adults for purposes of sentencing” in the sense that they have diminished culpability and have a greater capacity for reform in the future. Further, the Court emphasized key points from Roper and Graham, identifying that children lack maturity and appreciation for responsibility leading to potential reckless behavior and are more vulnerable and impressionable by negative influences. Therefore, a fundamental difference exists when analyzing adult culpability for sentencing purposes and children. For Eighth Amendment purposes, the Court viewed age as a relevant factor for sentencing.

The Court ultimately held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.”

Montgomery v. Louisiana

Now, for the case that was just decided in 2016, we need to flash back to 1963 when 17-year-old Henry Montgomery killed a deputy sheriff in East Baton Rouge, Louisiana. Montgomery was found guilty and sentenced to death. Shortly thereafter, the Louisiana Supreme Court reversed his conviction finding that the public nature of the trial and public prejudice prevented Montgomery from having a fair trial.

The case was retried and the jury returned a verdict of “guilty without capital punishment,” which required the sentence to be life without the possibility of parole.

Flash forward to when Henry Montgomery is 69-years-old. He has spent the last 53 years in custody and behind bars, even facing the emotional journey that comes with being sentenced to death at one point. Up until 2012, Henry Montgomery was prepared to die in prison until a little bit of hope cloaked in the form of Miller v. Alabama surfaced to light.

Most relevant to Montgomery’s case is the fact that the Miller decision noted the importance of youth and age on an offense: “by making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, mandatory life without parole poses too great a risk of disproportionate punishment.” Thus, the disconnect between a juvenile offense and the harsh punishments of life in prison without the opportunity for parole created cruel and excessive penalties for individuals unable to fully understand the culpability of their actions.

Following the Miller decision, Montgomery filed a motion for collateral review on the basis that life without parole for a juvenile offender constituted an illegal sentence. The trial court denied Montgomery’s motion on the ground that the Miller Court did not make a decision that was to be applied retroactively–or applied to cases that were conducted and offenders that had received final sentences prior to June 25, 2012. The Louisiana Supreme Court subsequently denied Montgomery’s application for a supervisory writ.

Upon review by the Supreme Court, they held that Miller was, in fact, retroactive, stating “like other substantive rules, Miller is retroactive because it necessarily carr[ies] a significant risk that a defendant – here, the vast majority of juvenile offenders – faces a punishment that the law cannot impose upon him.” The Court recognized the grave risk in disproportionate sentencing for which detention may be in violation of the Constitution on January 25, 2016.

How Does This Affect Other Juvenile Homicide Offenders?

The Supreme Court’s ruling on January 25, 2016 opened the door to hundreds of miracles. While it did not give all juveniles sentenced to prison for life without parole prior to June 25, 2012 a free pass, it gave them the right to re-sentencing hearings, if they are able to provide proof of rehabilitation, change, and evidence of good behavior during their time behind bars. It will be up to the states to review the case and make a decision as to whether the individual may be released or resentenced under the new Supreme Court holding.

This ruling was considered a win for juvenile law advocates who have been fighting to give a second chance at life to those individuals that entered prison as young teens and have only know life as an incarcerated person for twenty, thirty, even fifty years. They were overjoyed at the victory in the form of applicable retroactivity.

However, it does not come without criticism. Since the Supreme Court reviewed the case from a state court and took a moment to note that Montgomery has, in fact, turned his life around in the last 53 years, they did not and could not rule on that basis. The state controls his release. While Montgomery is likely to be released or in some way benefit from this case outcome, other juvenile inmates could be in trouble if Louisiana amends its state laws regarding post-conviction relief. Louisiana could flex its state muscle and amend its laws to prohibit post-conviction review of cases based on federal, rather than state law. In that case, any individual within that state that was sentenced to life in prison without parole as a juvenile would not have access to a resentencing hearing. Currently, Pennsylvania, Louisiana, and Michigan have the highest amount of juveniles sentences to life without parole. Only time will tell what action Louisiana and other states with similar laws will opt to do.

Resources

Primary

Supreme Court of the United States: Montgomery v. Louisiana

Additional

Cornell University Law School – Legal Information Institute: Miller v. Alabama 

Cornell University Law School – Legal Information Institute: Romper v. Simmons

Cornell University Law School – Legal Information Institute: Graham v. Florida

SCOTUSblog: Further Limit on Life Sentences for Youthful Offenders

 MLive: The Supreme Court Just Gave Juvenile Lifers a Shot at Parole

 Juvenile Law Center: Montgomery v. Louisiana

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

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The prison system is meant to deter crime, provide public safety, and rehabilitate criminals. But today, the Supreme Court told us that too often that last aim is ignored in the case of juvenile offenders. The court ruled 6-3 to allow prisoners convicted of a crime they committed while they were juveniles to have their life without parole sentences reconsidered.

In a 2012 ruling, Miller v. Alabama, the Supreme Court barred “life without parole” sentencing for juveniles, but only for future convictions, affecting none of the currently imprisoned people, for the sake of preserving the “finality of conviction.”Today in Montgomery vs. Louisiana, the court had the rare effect of retroactively altering the sentences of inmates. The case, centered around Henry Montgomery, a man who shot and killed a deputy sheriff at the age of 17. Montgomery is now 69, and for his entire adult life has known nothing but the prison system.

#SCOTUS holds Miller’s prohibition on mandatory life w/out parole for juvenile offenders IS retroactive in cases of state collateral review

— SCOTUSblog (@SCOTUSblog) January 25, 2016

Some states individually chose to adjust the sentences of convicted juveniles following the Supreme Court’s 2012 ruling. This means that the new retroactive ruling only affects the sentences of about 1,000 inmates out of the 2,341 people convicted as juveniles facing life sentences, according to a study by The Phillips Black Project. More than half of that population had already been allowed to seek reconsideration of their sentences, as long as they can prove that their “crimes reflected their transient immaturity.”

The entire course of this argument hinges on whether a life sentence should only apply to an incorrigible person–that is, one with no hope of rehabilitation–and whether a juvenile is capable of being incorrigible at a young age. Justice Kennedy wrote in his opinion that “prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.” This ruling adds on to the ban on “life without parole” sentencing for juveniles unless the prosecutor can prove that the specific individual is beyond saving. While standards of incorrigibility vary by state, they typically focus on the accused showing repeated examples of behavior and no response to reprimands from authority.

Sean Simon

Sean Simon is an Editorial News Senior Fellow at Law Street, and a senior at The George Washington University, studying Communications and Psychology. In his spare time, he loves exploring D.C. restaurants, solving crossword puzzles, and watching sad foreign films. Contact Sean at SSimon@LawStreetMedia.com.

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President Barack Obama is set to face the gauntlet as the Supreme Court gears up to hear a case that challenges the President’s use of executive power, has the potential to wreck havoc on the 2016 Presidential election, and may go beyond judicial power by granting states more rights and control than the national government on a notoriously federally controlled area of law and politics–immigration. Twenty-six states are challenging the President’s executive actions relating to immigration implementations made in 2014 as an abuse of power and an attempt to circumvent Capitol Hill on policy making.

To date, the case is scheduled to be resolved by the court in June 2016 as the Supreme Court issued that it would review the case, thereby granting the President the authority to execute the programs prior to leaving office, should he be victorious. Read on to learn more about the executive actions in question, the procedural posture and legal history of the case, and what it all could mean for U.S. citizens and aliens in the future.

DAPA and DACA: The Troublesome Two

On November 20, 2014, an executive order was issued expanding the rights of individuals within the Deferred Action for Childhood Arrivals (DACA) program and introduced the creation of Deferred Action for Parents of Americans (DAPA).

DACA, a program created in 2012, allows undocumented young people who came to the U.S. as children relief from deportation so long as specific criteria are met. These criteria include: 1) must be under 31 years of age as of June 15, 2012; 2) must have entered the U.S. under the age of 16; 3) must show continuous residence in the U.S. from June 15, 2007 until the present; 4) entered the U.S. without inspection (EWI) or fell out of a lawful visa status before June 15, 2012; 5) were physically present in the U.S. when applying for consideration of deferred action; 6) are currently in school, have graduated from high school, have obtained a GED, or have been honorably discharged from the Coast Guard or armed forces; 7) have not been convicted of a felony offense, a significant misdemeanor, or more than three misdemeanors; and 8) do not pose a threat to national security or public safety.

Initially, DACA was available for a period of two years at a time–meaning that individuals were only granted temporary relief for two years before they had to re-apply and be approved by the government again. DACA also included a work authorization for those approved, but the executive action of 2014 made it and the work authorization renewable in three-year increments. Additionally, the requirement that the individual be under 31 years old as of June 15, 2012 or now no longer applies. The new DACA provisions do not discriminate against those currently over 31 years old. Further, the eligibility cut-off date was moved from June 15, 2007 to January 1, 2010. Anyone applying must show physical presence in the U.S. prior to January 1, 2010 and during the time of application.

DAPA, unlike DACA, did not have a predecessor. Under DAPA, individuals that have children who are U.S. citizens or lawful permanent residents (LPRs) may obtain relief from removal should they meet the following criteria: 1) as of November 20, 2014, have a son or daughter who is a citizen or LPR; 2) have continuously resided in the U.S. since or before January 1, 2010; 3) are physically present in the U.S. as of November 20, 2014 and during their application for consideration; 4) have no lawful status as of November 20, 2014; 5) are not an enforcement priority; and 5) present no additional factors that would deem the granting of their application inappropriate.

Deferred action is an administrative mechanism used by the U.S. government to de-prioritize individual cases for removal for “humanitarian reasons, administrative convenience, or in the interest of the Department’s overall enforcement mission.” It is a way for the government to categorize the urgency with which individuals be removed from the country. Generally speaking, deferred action carries great discretion. It can be terminated at any point should the U.S. Department of Homeland Security deem termination appropriate and necessary. Furthermore, receiving DACA or DAPA does not provide legal status, a pathway to citizenship, or a pathway to obtain a green card, but rather permits for an individual to be legally present within the U.S. for a specified period of time. In order to be a valid permission, deferred action applications must be considered on a case-by-case basis and do not apply as all-inclusive or sweeping legal policies. An application process is required and permission must be granted for an individual to continue to stay within the U.S.

Substantive rights, immigration status, and pathways to citizenship are under the control of Congress. Only Congress can confer such rights and policies upon individuals within the confines of the U.S. However, the Executive Branch has the authority to set forth policies under prosecutorial discretion and deferred action so long as they fall within the framework of existing law.

The 26 states named in the lawsuit are greatly dissatisfied by the way that President Obama has taken to resolving the many pitfalls of current immigration policy and justice. A major point of contention for the states is that the President allegedly worked to circumvent Congressional authority and undermined the importance of the notice-and-comment process pursuant to administrative law. Notice-and-comment is an informal rule-making process, codified in the Administrative Procedure Act (APA) under § 553. It requires the agency proposing the rule to publish its proposal in the Federal Register and grant opponents or supporters of the proposed rule to comment, amend, present data and evidence for or against, and generally speaking, participate in the development of a newly proposed rule.

Additionally, while immigration is an issue controlled by federal law, the states fear that the changes made to federal immigration laws will place a great burden on the states to change their laws and be forced to provide services they are unable or unwilling to provide to individuals lacking legal status. Specifically, some states worry that the quasi-legal status and work authorizations will require the states to provide “state-subsidized driver’s licenses and unemployment insurance.”

Image Courtesy Of [Nevele Otseog via Flickr]

History of Legal Action: The Procedural Posture

Shortly after President Obama’s executive action on November 20, 2014, the highly publicized Maricopa County Sheriff, Joe Arpaio, challenged the action on behalf of Arizona in a case called Arpaio v. Obama. Arpaio’s lawsuit was dismissed by the Washington, D.C. federal court and upheld unanimously by the D.C. Circuit Court of Appeals on August 14, 2015. That decision has not been appealed to the Supreme Court.

Following in Sheriff Arpaio’s footsteps, 17 states filed a lawsuit, with 9 states joining thereafter, challenging President Obama in Texas v. United States. The President held the support of 15 states and D.C., who filed “friend of the court” briefs on his behalf. Ultimately, the Texas federal court blocked President Obama’s initiatives on a procedural basis on February 16, 2015. U.S. District Court Judge Andrew Hanen found that Texas had standing, or legal capacity and authority, to sue and that the President did not comply with the requirements of the APA, particularly the requisite need for notice-and-comment. It rationalized that the changes enacted by President Obama were substantive rules rather than simple alterations to existing and general policy, which required a specific procedural process.

The Department of Justice subsequently appealed the lower court’s decision and argued the case in front of the Fifth Circuit Court of Appeals on July 10, 2015. In a split decision, the Fifth Circuit upheld the lower court’s ruling, 2-1. The majority decision, authored by Judge Jerry E. Smith, found that Texas did, in fact, have standing to sue and that the changes to policy would greatly increase state costs and burden the states with additional processes and services as required by the national law. While it recognized that judicial review was unavailable under the APA in matters pertaining to agency discretion, it noted that the changes made to DACA and DAPA required notice-and-comment rule-making, and therefore, were non-discretionary. Further, the court ruled on an issue unaddressed by the district court and found that the President’s interpretation of the Immigration and Nationality Act (INA) was misguided and inaccurate because it vested great authority to the Secretary of U.S. Department of Homeland Security. This indirectly re-classified the specified classifications of immigrants codified in the INA and those petitioning to enter, all in violation of the Act itself.

Judge Carolyn King of the Fifth Circuit delivered a blunt dissent, ultimately stating, “I have a firm and definite conviction that a mistake has been made.” Further, Judge King argued that the case should have been dismissed as it follows prosecutorial discretion and therefore, not subject to review by federal courts. In criticism of her colleagues, she penned that allowing states to dictate national policy, particularly in areas solely within federal control, would be a great intrusion to the long-standing separations between government and state. Judge King added that the President’s executive actions were matters of general policy not subject to notice-and-comment procedure and that the interpretation of law under the INA actually sought to further the Department of Homeland Security’s mission in “[e]stablishing national immigration enforcement policies and priorities.”

Critics of the decision, including Judge King herself, highlighted the fact that the expedited appeal was anything but, as the Fifth Circuit took a very long time to render an opinion, likely in an effort to place the case under review by the Supreme Court after the conclusion of President Obama’s term in office.

The Petition Filed by the Department of Justice

In a writ of certiorari petition filed on November 20, 2015, exactly one year from the President’s executive actions, the Department of Justice sought review of U.S. v. Texas by the Supreme Court. While the Court has yet to make a decision as to whether it will review the case or not, the petition outlined key elements of President Obama’s argument demanding for review of this extremely crucial issue.

The DOJ Claims Valid Authority for Action Over States

The Department of Justice highlighted that the authority to make any and all immigration laws and policies is vested in the federal government, particularly under the control of the Secretary of the Department of Homeland Security, who hold authority to establish regulations pertaining to removal and admissibility rules. The Department has broad discretion over enforcement of immigration laws and the ability to prioritize which offenses or conduct deems immediate removal and which groups are not the top priority of government funds allocated for removal and enforcement. While 11 million removable aliens are estimated to live in the United States, the Department can only remove approximately 4 percent of those individuals within a given year. Congress has granted the Department $1.6 billion to remove those convicted of deportable crimes, thereby committing to the Secretary’s discretion in handling these cases in the most efficient manner possible. Therefore, prioritizing is of utmost importance to best allocate funding.

Additionally, the Department emphasized that continued presence through deferred action does not violate any criminal laws, as removal and inadmissibility under immigration laws is civil in nature. Deferred action has been an “exercise in administrative discretion,” that can be revoked at any point in time. It does not offer any legal status to those that fall within its classification. What is offered under deferred action, however, is work authorization protecting such individuals from exploitation under U.S. labor laws, subjecting them to taxation, Social Security, and welfare payments, and providing them with a way to make ends meet so they do not become a burden on U.S. citizens and society. Only “qualified” aliens are entitled to public benefits provided by the state in which they reside, and individuals lawfully allowed to stay within the U.S. under deferred action status are not deemed “qualified,” therefore, they are not entitled to public benefits unless their state specifically provides those under its own laws.

The Sticking Points: Substantive Arguments Against the States

Deferred action has been utilized in a variety of ways to grant individuals lawful presence in the U.S. Examples include individuals who petitioned under the Violence Against Women Act of 1994 and individuals whose lawful family members were killed on September 11, 2001 or in combat were granted temporary relief from deportation under deferred action. Decisions made based on deferred action have legally and historically been barred from judicial review.

Key elements of the petition included the Secretary’s discretion in enforcing immigration laws under resource constraints, the historical utilization of deferred action and its revocability, the security and economic interests in paying fees and applying for work authorization, and the effect that the divided Court of Appeals decision could have on the States’ ability to “frustrate the federal government’s enforcement of the Nation’s immigration laws.”

The petition discussed the lack of standing or authority by the states to bring the lawsuit, stating that private parties lack any “judicially cognizable interest” in the enforcement of immigration laws that are not threatened by prosecution, nor do collateral consequences of federal immigration policy grant a state standing to bring suit. Further, the Department of Justice noted that even if the states were able to show standing to sue, they would have to identify injury resulting from the specified policy that affects it in an “individual way.” Such an expansive reading of state standing would open a door for many more federal-state disputes in the long run and give states far-reaching and independent authority to challenge federal laws with more regularity.

The government further argued that the states lack a valid claim under the Administrative Procedure Act, as the Act does not allow suit by every individual “suffering an injury in fact,” and strictly limits the scope of judicial review to those who are “adversely affected or aggrieved by agency action.” Additionally, the government noted that the agency’s discretion in deferred action is not reviewable by the courts as there is “no meaningful standard against which to judge the agency’s exercise of discretion.”

An entire section of the petition offered examples of the Secretary’s authority to implement deferred action without challenge due to the long-standing history and nation of this power. Ultimately, the Department of Justice pointed to the authority vested in the Secretary to implement the executive actions as lawful within the scope of his power. Finally, the petition outlines the reasoning for why the deferred action is not subject to notice-and-comment rule-making as required by the APA because the actions were “general statements of policy” exempt from such procedural requirements.

What Could It All Mean?

Should the Supreme Court uphold the Fifth Circuit’s decision, great authority would be vested onto the states over a historically federal issue, making it inexplicably difficult to pass any immigration laws on a national level. It would force millions of people, subject to removal but not removal priorities, to continue living in the U.S., working off the books or not working at all, potentially creating a burden on society in the long run. Further, it could ultimately punish the individuals that gained temporary lawful relief under the 2012 DACA provisions that have never been challenged by any of the 26 states in question. The decisions spanning over the last year could potentially invalidate the 2012 DACA actions as well.

While the importance of review is undoubtedly clear, from an administrative law aspect, a constitutional law aspect, as well as a separation of powers aspect, it is unclear exactly what the fruit of review will be. If history were any indication, President Obama would be victorious in his challenge. However, the lower courts have addressed key issues that fall squarely within the context of interpretation and interestingly added some of their own issues, which remain undecided by the district court. How the Supreme Court reads and interprets the statutes in question, as well as its analysis of the interworkings of several federal laws will be determinative for its decision. This may ultimately be a case about procedure and the process of implementation rather than power and constitutionality of law.

Resources

Primary

United States of America v. Texas: Writ of Certiorari

 U.S. Department of Homeland Security: Exercising Prosecutorial Discretion With Respect to Individuals Who Came to the United States as Children and With Respect to Certain Individuals Who are Parents of U.S. Citizens or Permanent Residents

Additional

Politico: Obama Administration Takes Immigration Battle to Supreme Court

Politico: SCOTUS Keeps Obama Immigration Case on Track For Ruling by Summer

Cornell University Law School – Legal Information Institute: 5 U.S. Code § 553 – Rule Making

Immigration Equality: Deferred Action for Childhood Arrivals

 The Atlantic: A Ruling Against the Obama Administration on Immigration

 The New York Times: Appeals Court Deals Blow to Obama’s Immigration Plans

American Immigration Council: Understanding the Legal Challenges to Executive Action

 National Public Radio (NPR): Supreme Court Agrees to Hear Case on Obama’s Immigration Actions

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post The Federal Government’s Immigration Showdown: SCOTUS Will Decide appeared first on Law Street.

In the beginning of 2013, the Arkansas General Assembly introduced a bill titled the “Arkansas Human Heartbeat Protection Act” in an attempt to ban women from aborting a fetus 12 weeks or older. After several years of this law being contested in court, it has finally received the final nail in the coffin. The Supreme Court rejected the pleas to overturn lower court decisions by announcing this Tuesday that it would not be hearing oral arguments for Beck v. Edwards.

The  “Arkansas Human Heartbeat Protection Act” became a law on March 6, 2013, even after being vetoed by then Governor Mike Beebe, and has faced controversy ever since. Around a month after the bill became a law, the Center for Reproductive Rights and the ACLU began the fight against the law by filing suit in a district court, claiming that this ban on abortion infringed on patients’ constitutional rights to privacy. The district court ultimately sided with the Plaintiffs, ruling that the ban on abortion after 12 weeks was an unconstitutional violation of a woman’s privacy. Arkansas appealed this case to the United States Court of Appeals for the Eighth Circuit in May of 2014, but didn’t have much luck. The court affirmed the ruling of the previous court in its opinion, stating,

This case underscores the importance of the parties, particularly the state, developing the record in a meaningful way so as to present a real opportunity for the court to examine viability, case by case, as viability steadily moves back towards conception.

In this case, Arkansas legislators are making the claim that a fetus is viable at 12 weeks, so therefore the cutoff for abortion legality needs to be at or before that benchmark. Overall, one of the biggest points of contention in the overall argument about abortion is the question of when a fetus becomes viable. But, what is viability? Justice Harry Blackman defined this term in his opinion on the well-known 1973 Supreme Court case, Roe v. Wade: “potentially able to live outside the mother’s womb, albeit with artificial aid.” Now, people have been bickering for decades over what this actually means; however, most states have stuck to the norm–also laid out in Roe v. Wade–of a fetus becoming viable somewhere around 28 weeks.

Both the District Court and the Court of Appeals cited a lack of scientific evidence on the part of the State when it comes to proving that viability of a fetus starts at 12 weeks. The plaintiffs, on the other hand, provided ample evidence–in the form of doctor testimony– to support the fact that a fetus at 12 weeks cannot survive outside its mother’s womb.

In a final attempt to keep this law in place, the state of Arkansas filed a Petition for Writ of Certiorari to the Supreme Court. Unfortunately for the Arkansas legislature, the Supreme Court only accepts around 0.8% of the cases it receives each year, and it just decided this Tuesday that it will not be hearing Beck v. Edwards, effectively striking down the Arkansas ban on abortions past 12 weeks, for good.

So what does this mean for the future of abortion rights? We can all rest easy knowing that a woman’s constitutional right to privacy won’t be violated by the Arkansas abortion law anytime soon, since the final decision from the Court of Appeals stands, banning the ban for good. In addition, although SCOTUS didn’t want to hear Beck v. Edwards, it does have a new abortion focused case coming up this March. Arguments for Whole Woman’s Health v. Cole are set to begin March 2nd, so a verdict on whether or not the Supreme Court will uphold women’s rights is rapidly approaching.

Alexandra Simone

Alex Simone is an Editorial Senior Fellow at Law Street and a student at The George Washington University, studying Political Science. She is passionate about law and government, but also enjoys the finer things in life like watching crime dramas and enjoying a nice DC brunch. Contact Alex at ASimone@LawStreetmedia.com

The post Arkansas Abortion Law Loses its Last Shot at Legality appeared first on Law Street.

Puerto Rico received a rather unwelcome and tightly wrapped Christmas gift this year from the United States as it was reminded, in a brief filed by Solicitor General Donald B. Verrilli Jr., that it is not a sovereign state regardless of the fact that it has its own Constitution and is much more independent than a colony or territory.

The United States, taking a substantial interest in the outcome of the two cases reaching the Supreme Court in January 2016 regarding Puerto Rico’s political status and future, just planted its feet firmly in the argument that Puerto Rico does not self-govern and is actually a territory with a limited ability and authority to govern over its own interests, disputes, and affairs. The brief has created a media frenzy in Puerto Rico and has even involved the United Nations through an appeal highlighting human rights issues pertaining to self-determination.

Image Courtesy Of [Vxla via Flickr]

Historically speaking, Puerto Rico was ceded to the United States by Spain in 1898 following the conclusion of the Spanish-American War pursuant to the Treaty of Paris signed on December 10, 1898. Following several years of constructing Puerto Rico’s government, legislature, and judiciary, it was finally provided a bill of rights by Congress in 1917, and the people of Puerto Rico were granted U.S. citizenship. In 1950, Congress gave Puerto Rico the right to create its own Constitution to be adopted by its government so long as it “provided a republican form of government” and “include[d] a bill of rights.” Puerto Rico’s Constitution was approved by Congress in 1952 following several changes and revisions. Since then, Puerto Rico has enjoyed a level of autonomy and sovereignty similar to that of the states. Constitutionally speaking however, Congress has directly managed and overseen Puerto Rico’s affairs under the Territory Clause of Article IV of the Constitution.

The cases to be heard by the Supreme Court, while narrow in focus, will directly address the debate over Puerto Rico’s constitutional and political future–a bigger picture effect, if you will. One case addresses whether the United States and Puerto Rico are separate sovereign nations for the purposes of Double Jeopardy under the Fifth Amendment of the U.S. Constitution. Due to the fact that the Double Jeopardy Clause prohibits individuals from being tried for the same offense twice, Puerto Rico would have to have sovereignty and operate in an autonomous fashion to charge individuals for the same crimes they were convicted of in federal court. While the federal U.S. government and the states are considered separate sovereigns for the purposes of Double Jeopardy, in its brief, the U.S., who is not a party to the case, submitted support for the Respondents in Commonwealth of Puerto Rico v. Luis M. Sanchez Valle, concluding that Puerto Rico is not a separate sovereign entity and therefore, Puerto Rico’s individual and independent prosecution of the individuals convicted in federal court violates the Double Jeopardy Clause of the Fifth Amendment.

The second case to be heard by the Supreme Court centers around Puerto Rico’s catastrophic public debt of approximately $72 billion, which it wants to be able to control and restructure in the same way each individual state can, but is not able to under the Bankruptcy Code of U.S. law. The debt incorporates $20 billion for public utilities, used by the people of Puerto Rico including 3.5 million Americans, which Puerto Rico is unable to pay. It is urging the Supreme Court to grant Puerto Rico the right to enact laws allowing for restructuring. This desperate measure comes on the heels of a 2014 decision by the U.S. Court of Appeals for the First Circuit that struck down Puerto Rico’s Recovery Act, which allowed for Puerto Rico to fill the gaps of Chapter 9 of the Bankruptcy Code that had excluded any part of Puerto Rico’s government to take part in restructuring. As such, the Recovery Act was found to be in direct opposition to U.S. law and deemed unconstitutional. The financial crisis in Puerto Rico has brought the small island to the brink of an economic meltdown.

Puerto Rico’s Governor, Alejandro García Padilla, issued an impassioned and assertive statement following Verrilli’s brief filing, stating that the Solicitor General’s stance is “contrary to all Supreme Court jurisprudence” and that Verrilli’s position is “at odds with prior postures by his office with regards to the sovereignty of the Commonwealth.” As far as Padilla is concerned, using the term “colony” to describe Puerto Rico’s current political status, well, those were fighting words.

While the upcoming Supreme Court cases both carry the answer to a long-lasting debate about Puerto Rico’s constitutional and political future, it appears that both sides want their cake and to eat it too. Padilla does not support either statehood or independence for Puerto Rico and wants U.S. financial and legal support on his own terms. The U.S. has received many benefits from its relationship with Puerto Rico, yet it fails to address the major pitfalls threatening the territory and is unwilling to be flexible in order to address dire concerns that only it can to date. Nothing is for certain except this–come early 2016, the Supreme Court will tackle the issue as to whether Puerto Rico is separate and sovereign from the United States. Until then, all we can do is wait and hope that Puerto Rico works with the United States to come up with additional solutions to the major problems at hand.

Ajla Glavasevic

Ajla Glavasevic is a first-generation Bosnian full of spunk, sass, and humor. She graduated from SUNY Buffalo with a Bachelor of Science in Finance and received her J.D. from the University of Cincinnati College of Law. Ajla is currently a licensed attorney in Pennsylvania and when she isn’t lawyering and writing, the former Team USA Women’s Bobsled athlete (2014-2015 National Team) likes to stay active and travel. Contact Ajla at Staff@LawStreetMedia.com.

The post Puerto Rico: A Sovereign State or Still a U.S. Colony? appeared first on Law Street.

Welcome to Law Street Media’s rundown of the best stories of last week. ICYMI, check out the top three below:

#1 Top Five Reasons Young Law and Policy Minds Should Check Out Portland, Oregon

Portland, Oregon, has long been heralded as one of the hottest cities for millennials. Home to Lewis & Clark Law School, it’s also a great city for young lawyers, as well as young aspiring lawyers. If you fit into one of those categories, and are considering a move, check out some of the top reasons to give Portland a look. Read the full story here.

#2 Drunk Driving on Trial at the Supreme Court

Drunk driving has left parents childless, spouses widowed, and siblings as only children. In 2013 alone, 10,076 people were killed in drunk driving crashes. It has claimed the lives of thousands of people over the years and sparked lobbyist action, which has forced stricter regulation of drunk driving on both the federal and state levels. Most recently, the Supreme Court has agreed to hear a group of three cases, a sequel per se to its 2013 drunk driving decision, in an effort to review warrantless drunk driving tests as a violation of Fourth Amendment rights and the criminalization of a refusal to take a drunk driving test. Click here to learn more about the development of drunk driving as a crime and what the new cases hold for the future.

#3 Bill Cosby Countersues Seven Rape Accusers For Defamation

Bill Cosby.

You used to be able to say that name and conjure up happy memories of family-friendly sitcom episodes, flamboyant knitted sweaters, or pudding pops. But not anymore.

Now America’s former “favorite dad” has become synonymous with drugging women with quaaludes and raping them, after more than 50 women came forward to accuse the comedian of sexual assault. As a result, Cosby is lashing out by filing a defamation lawsuit against seven of his accusers, claiming they ruined his reputation for “financial gain.” Read the full story here.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post ICYMI: Best of the Week appeared first on Law Street.

UPDATE: A federal judge sent Rowan County Clerk Kim Davis to jail after ruling that she was in contempt of court. Judge David L. Bunning said that Davis will remain in jail until she tells her staff to begin issuing marriage licenses again. Although the lawyers suing Davis asked the judge to use fines rather than jail to compel her to follow the court order, Judge Bunning ultimately decided that a fine would not be sufficient to do so. Judge Bunning also warned that allowing Davis to disobey the court order could create a “ripple effect” allowing other officials to refuse to follow orders on religious grounds.

“I pay your salary, I’m paying for you to discriminate against me right now. That’s what i’m paying for.”

That’s what an exasperated David Moore had to say to a Kentucky clerk, after she again refused to issue him and his partner David Ermold a marriage license Tuesday morning–this time in violation of a judge’s order.

Rowan County clerk Kim Davis’ emergency request to deny marriage licenses on the basis of her religious beliefs was rejected without comment Monday by the Supreme Court. Davis, who is an Apostolic Christian, has said that issuing marriage licenses to gay couples would be in violation of her conscious, and is what she calls a “heaven and hell decision.”

Davis stopped issuing marriage licenses all together in her county just days after the Supreme Court’s landmark marriage equality ruling determined gay couples had the legal right to wed. Her reason for denying all couples licenses was that she didn’t want to discriminate.

Shortly after, two gay couples and two straight couples sued her, arguing that as an elected official the government required her to issue licenses despite her religious beliefs. But even after a federal judge, an appeals court, and her governor ordered her to begin issuing licenses, Davis continued to deny eligible couples. Instead she retaliated, filing her own suit against Governor Steve Beshear [D] claiming that he violated her rights by instructing her to do her job.

At the court house Tuesday, when Davis repeatedly announced that her office would continue to forgo issuing all marriage licenses despite the Supreme Court’s ruling, Moore and Ermold asked “under whose authority?” “Under God’s authority,” she replied.

According to CNN, other clerks in the state have expressed concern over issuing same-sex couples marriage licenses, but Davis is the only one turning away eligible couples. However, in Alabama 13 of 67 counties have stopped issuing marriage licenses altogether.

Now for most people, repeatedly refusing to do your job would get you fired, but sadly Davis is somewhat protected as an elected official. The Kentucky state legislature could decide to impeach her, but they are currently not in session and many politicians in her conservative state share her sentiments. And yet despite the threat of hefty fines and even potential jail time she still refuses to resign.

The American Civil Liberties Union filed a motion in federal court to hold her in contempt of court for continuing to act in resistance to the Supreme Court’s ruling. Rather than seeking incarceration, the ACLU said that they have urged the court to impose financial penalties that are “sufficiently serious” to compel her immediate compliance. But if her track record is any indication of how she’ll act moving forward, there’s little that can be done to stop her agenda.

Some have asked why the couples being turned away by Davis don’t just go to another county to get a license. To that, April Miller, who was denied a marriage license with her partner Karen Roberts for a third time Tuesday in Rowan County said, “it would set a dangerous precedent to let it go.” She continued saying,

I respect her for standing up for what she believes in — I know that’s hard to do, because we’re doing that, too. I’m just sorry that she’s interjecting her personal beliefs above her government job duties.

Davis has been ordered to appear before a judge at 11 am on Thursday to determine if she is in fact in contempt of court. Till then, couples in Rowan County hoping to get hitched may have to put all plans for nuptials on hold.

Kevin Rizzo contributed to this story.

Alexis Evans

Alexis Evans is an Assistant Editor at Law Street and a Buckeye State native. She has a Bachelor’s Degree in Journalism and a minor in Business from Ohio University. Contact Alexis at aevans@LawStreetMedia.com.

The post Update: Kentucky Clerk Still Refuses to Issue Same-Sex Marriage Licenses appeared first on Law Street.

How do Millennials help America build a better future? With over 1,200 business-casual-clad young activists and leaders packed into a chilly ballroom washed with blue stage lights, Generation Progress rallied Millennials in Washington, D.C. at its national summit on Thursday in an attempt to find out.

Now in its tenth year, Generation Progress’s “Make Progress” National Summit offers young people a day packed with well known speakers, inspiring dialogues, and stimulating buzzwords. With keynote speakers on the main stage and breakout sessions on topics ranging from diversity in public office to sexual assault prevention and student debt, attendees throughout the day were empowered through education on critical issues. Through communal support and prodigious encouragement from American leaders, the mood was alive with the goal of the day: creating progress.

Massachusetts Senator Elizabeth Warren opened up the summit with an invigorating speech that earned dozens of standing ovations. Reverberating energy, Senator Warren spoke about college affordability, diversity, and social change inspired by activism. During one pause, an audience member yelled out “Run for president!” to which the Senator responded with a big grin and a chuckle, while everyone else jumped to their feet and erupted in approving cheers and applause. Her most applauded statement was that the progressive Supreme Court decisions over the past weeks were the direct result of young activists who dedicate their lives to fighting for social justice, stating, “We get what we fight for. Are you ready to get out there and fight?”

This morning I told young people at #MakeProgress: You get what you fight for. pic.twitter.com/JhwTtTzGBa

— Elizabeth Warren (@SenWarren) July 16, 2015

Michele Jawando, Vice President for Legal Progress at the Center for American Progress, later took the stage for a sobering panel on reforming the criminal justice system. She expressed her belief that young people putting pressure on their elected officials and demanding change is critical, and commended the Millennial generation for its high level of engagement with issues of importance, simultaneously striking down the notion that our generation is unengaged or uninformed.

After asking the audience to “stand up if you have participated in a march, a protest, or an online day of action in the past six months,” more than half of the room was standing. Jawando stated, “the only time Congress pays attention is when there is enough action that forces them to pay attention.” She praised those who partake in activist movements, particularly the sit-ins that forced members of Congress to face the consequences of adverse decisions, and encouraged all to become involved. The discussion then led to a breakdown of the 1994 crime bill that increased mandatory minimums for those sentenced to prison, created the “tough on crime” rhetoric that is only recently beginning to be critically questioned, and created a definition of criminals as young people of color. Jawando said that many current members of Congress were members in 1994 when this draconian bill was passed and that “some of those members don’t really want to concede, they don’t want to admit they were wrong.” She then expressed that while discussing reform is important, action needs to be immediate. “Yeah we are tweeting about it, we’re writing about it, we’re marching in the streets…But we still have to pass a bill y’all.”

Jawando made a few key remarks that resonated deeply with the young, social justice-minded audience; first, that there is a strong connection between the people who are elected and the changes we see in society. Second, that humanizing issues and telling personal stories of injustice is the most powerful way to inspire change. And third, that there is a dangerous misconception that people who are in prison always deserve to be there; Jawando stated that this mindset of “otherization,” or the “us versus them” mentality, will continue to act as a barrier to change until these divisions are broken.

.@MicheleJawando shares her personal experience on discrimination & the criminal justice system #MakeProgress pic.twitter.com/43TsktDXrl

— LCLAA (@LCLAA) July 16, 2015

My favorite breakout panel occurred in the afternoon: “It’s On US: Advocates Creating Cultural Change” featuring keynote speaker Tina Tchen. Tchen, Assistant to President Obama, Chief of Staff to Michelle Obama, and Executive Director of the White House Council on Women and Girls, gave an inspiring and informative speech on Generation Progress’s national campaign to prevent sexual assault. One in five women on college campuses will be sexually assaulted or experience some form of sexual violence by the time they graduate college. “We know, and you know, that this is a crisis on campuses,” Tchen said. The It’s On US movement on college campuses aims to fundamentally change the environment of rape culture and shift the conversation to be empowering for survivors and encouraging for those who have the ability to intervene in situations that could end in assault. “We are fundamentally on our way to a society that recognizes and supports survivors,” Tchen said over snaps and applause. Panelists encouraged students to join or start It’s On US on their respective college campuses, and to take the pledge to end sexual assault.

"It's not just about stopping sexual assault on campus. That is just the start."-Tina Tchen at #MakeProgress @ItsOnUs pic.twitter.com/apyLvEcAlR

— Chante Harris (@chante__harris) July 16, 2015

The final speaker of the day, and the most anticipated, was Vice President Joe Biden. All smartphones were whipped out to welcome the Vice President and most summit-goers found themselves on tiptoe in their chairs to catch a better glimpse of the esteemed guest. Mr. Biden gave a powerful, insightful, but occasionally lighthearted speech, that felt much more like sitting down for an after-dinner conversation with an affectionate grandfather than an address by the Vice President. The VP touched on a range of topics, from the need to create affordable education, to climate change, to closing the expanding wage gap in the country. He even called on politicians to resist donations from millionaires and billionaires to fund their primary election campaigns, potentially an allusion to Senator Bernie Sanders who also cares deeply and advocates against the privatization of political donations.

"If you could do only 1 thing to increase equality what would it be?" @VP asks the #MakeProgress crowd. "Get private money out of politics"

— Generation Progress (@genprogress) July 16, 2015

The Vice President expressed his sincere appreciation and confidence in the Millennial generation, stating “There’s more reason today than ever before to be idealistic, optimistic, tenacious, passionate, and principled.” The most prominent message Mr. Biden delivered during his time on stage was that passion, just like the passion in the room before him, is what generates social change and makes progress.

"I applaud your passion. Never apologize for it. Never explain it away." @JoeBiden at @genprogress #MakeProgress pic.twitter.com/T5cowdiCLT

— Emily Dalgo (@DalgoEmily) July 16, 2015

Generation Progress’s Make Progress National Summit concluded with a slew of selfies with Joe Biden and a ballroom full of young activists stepping back into the D.C. sun with newfound inspiration and admiration for the causes they believe in. The summit, though only one day long, has the power and the potential to ignite young minds for years to come. Make Progress is proof that Millennials do care about the issues. They are engaged, they’re active, and they’re ready to fight. Outside, the only audible sound was of heels clicking and dress shoes clacking on the sidewalks as the attendees trickled out of the summit. But one sound still echoed in everyone minds: applause and cheers for change, for action, and for progress.

Emily Dalgo

Emily Dalgo is a member of the American University Class of 2017 and a Law Street Media Fellow during the Summer of 2015. Contact Emily at staff@LawStreetMedia.com.

The post Generation Progress Encourages Millennials to “Make Progress” appeared first on Law Street.

Same-sex marriage is legal in all 50 states and a majority of Americans are thrilled with the landmark Supreme Court decision. Millions of people used Facebook’s rainbow flag photo-editing tool to shade their profile pictures in “celebration of pride.” On Twitter, #LoveWins became the victory cry of marriage equality proponents. On Instagram, prominent celebrities such as Beyoncé, Miley Cyrus, and Lady Gaga posted pictures of themselves to show support. A nation that was overwhelmingly against gay marriage just 15 years ago is suddenly in agreement that this is a good thing.

I have mixed feelings about all of this.

On one hand, I support gay marriage and the notion that gay people should have the legal right to marry and start a family. At the same time, there is a difference between promoting tolerance and forcing acceptance. The Supreme Court decided to force acceptance when it declared laws banning gay marriage unconstitutional, refusing to wait for the gay marriage discussion to reach its natural conclusion in each state. After reading hundreds of social media posts about gay marriage, a vast majority of which mock gay marriage opponents with a “you are ignorant if you don’t agree with me” attitude, it appears most Americans are following suit. This is sad because American society was so close to achieving the wholesale attitude change necessary for true tolerance. Now, in an ironic twist of fate, gay marriage opponents are victims of the condescension of another “majority.”

The gay marriage debate is really a matter of semantics that revolves around one question: What is the definition of marriage? The most intriguing argument against gay marriage is that of the “slippery slope,” or the idea that legalizing same-sex marriage may lead toward legalizing all sorts of “unconventional” marriages. In his dissent, Chief Justice John Roberts argued, “much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.” The same can be said for incest.

Nearly all arguments against gay marriage apply to incest and polygamy. It’s unnatural, they say–marriage is meant to be between a man and a woman. Think about the social problems. Children should be raised in traditional households. What about people taking advantage of the tax incentives? Drawing the line at incest and polygamy is fine. Justifying that line with the notion that incest and polygamy offend modern sensibilities is not. This is a justification that gay marriage supporters, now the majority of Americans, should be disgusted by.

When I brought up this issue to a gay friend, he had an interesting point. Polygamists and people who enjoy incestuous relations still have the right to marry a member of the gender they are attracted to despite being barred from marrying a family member or having multiple spouses. For gays, a ban on gay marriage eliminates the possibility to marry the entire population segment they are attracted to, he reasoned.

I don’t buy this argument.

In LSAT circles, they call this Begging the Question fallacy, or assuming the conclusion of an argument. My friend set out to find an argument that validates gay marriage in a way that doesn’t also validate polygamy or incest, and this is the situation-specific justification he arrived at. It is entirely possible that a person is only attracted to people within his own family, or is only capable of expressing love when he has multiple partners. I have yet to find a reasonable justification for allowing gay marriage while banning polygamous and incestuous marriages.

So, I have mixed feelings about all of this. I have mixed feelings about the role of government in the institution of marriage. I have mixed feelings about the new “celebrate pride” majority and their pompous definitions of ignorance and love. I have mixed feelings about my own sensibilities and the hypocrisy of supporting gay marriage while opposing polygamy and incest.

I have mixed feelings about marriage equality, and what it really means.

Hyunjae Ham

Hyunjae Ham is a member of the University of Maryland Class of 2015 and a Law Street Media Fellow for the Summer of 2015. Contact Hyunjae at staff@LawStreetMedia.com.

The post I Have Mixed Feelings About Gay Marriage appeared first on Law Street.

The Supreme Court is making back-to-back headlines lately with a substantial number of major cases being decided . Judicial opinions and dissents are of the utmost importance, more than ever to this generation. America is undergoing a major shift in opinion regarding civil liberties. Although we are in the middle of what seems to be a crisis of racial tensions, the majority of Americans now stand behind equal freedoms regardless of race, sexual preference, religion, or gender. We see this more every day. Confederate flags are being lowered across the South. Although tolerant beliefs are expanding, it means little without mirrored changes in law. The Supreme Court’s decisions are the absolute law of the land. The nine justices decide which laws are constitutional and which are not. So it is no surprise that the appointment and confirmation of justices by the executive and legislative branches are undertaken with the gravest sincerity. Democrats and Republicans alike want justice on their side for the big issues. The justices preside over monumental decisions that write history. So what goes into a judicial appointment? What mistakes have liberals and conservatives made in choosing justices? And are any judicial transitions coming up in the near future?

How do judicial appointments work?

Supreme Court justices are nominated by the president, rather than elected. The nomination must be confirmed by a majority vote of the Senate, and appointments are set for life. A president can only make a nomination when one of the acting nine justices steps down or dies. The president may turn to the Department of Justice, the Federal Bureau of Investigation, members of Congress, sitting judges and justices, and the American Bar Association advice and support. Interest groups can offer influence as well. For example, after Justice Byron White retired in 1993, President Clinton received open declarations from multiple women’s group advocating for a female nomination.

Legal competence and exceptional ethical behavior are primary qualifications for nominees. Candidates who clearly demonstrate these qualities have a much stronger shot at being confirmed by the Senate. Candidates are scrutinized very closely. For example, the Reagan administration embarrassed itself when Douglas Ginsburg, a judicial nominee, was discovered to have a drug problem. The administration took extra care to make sure the next appointment,  Justice Anthony Kennedy, was completely clean. Since legal competency and ethical behavior are vital factors, most judges do not campaign for the appointment, but rather let their work speak for itself, though there are exceptions. Former President William Taft ran a successful campaign that led to his appointment. Other criterion include political ideology, party affiliation, personal loyalties, ethnicity, and gender. A president wants a nominee’s ideologies and outlooks to line up with his own, and he often sees nominations as a major part of his legacy after service.

Once a presidential nomination is official, the referral is sent to the Senate Judiciary Committee. It gathers evidence and conducts hearings with various testimonies from the candidate and other witnesses. Then it votes for the recommendation to the Senate. The vote is then sent to the Senate floor. Since the late 1940s, the Senate has been less likely to easily accept nominations. Between 1949-mid 2000s, four nominations were defeated, seven received more than ten negative votes, and others encountered heavy resistance. A nominee with moderate politics will find the process easier and faster.

Who sits on the bench today?

The Supreme Court has nine members, one of whom is the chief justice. Today there are six men and three women, all described more below.

• John G. Roberts, Jr.: Chief Justice Roberts is a white, Republican, Roman Catholic male born in Buffalo, New York and raised in Indiana. A 1979 graduate of Harvard Law, he was appointed to the bench in 2005 after being nominated by President George W. Bush.
• Antonin Scalia: Associate Justice Scalia is a white, Republican, Roman Catholic male born in Trenton, New Jersey and raised in Queens, New York. A 1960 graduate of Harvard Law, he was appointed to the bench in 1986 after being nominated by President Ronald Reagan.
• Anthony McLeod Kennedy: Associate Justice Kennedy is a white, Roman Catholic, Republican male originally from Sacramento, California. A 1961 graduate of Harvard Law, he was appointed to the bench in 1988 after being nominated by President Ronald Reagan.
• Clarence Thomas: Associate Justice Thomas is a black, Roman Catholic, Republican male from Georgia. A 1974 graduate of Yale Law, he was appointed to the bench in 1991 by President George H. W. Bush.
• Ruth Bader Ginsburg: Associate Justice Ginsburg is a white, Jewish, female Democrat from Brooklyn, New York. A 1959 graduate of Columbia Law, she was appointed to the bench in 1993 by President Bill Clinton.
• Stephen G. Breyer: Associate Justice Breyer is a white, Jewish, male Democrat from San Francisco, California. A 1964 graduate of Harvard Law, he was appointed to the bench in 1994 by President Bill Clinton.
• Samuel A. Alito, Jr.: Associate Justice Alito is a white, Roman Catholic, male Republican from New Jersey. A 1975 graduate of Yale Law, he was appointed to the bench in 2006 after being nominated by President George W. Bush.
• Sonia Maria Sotomayor: Associate Justice Sotomayor is a Latina, Roman Catholic, female Democrat from New York. A 1979 graduate of Yale Law, she was appointed to the bench in 2009 after being nominated by President Barack Obama.
• Elena Kagan: Associate Justice Kagan is a white, Jewish, female Democrat originally from New York. A 1986 graduate of Harvard Law, she was appointed to the bench in 2010 after being nominated by President Barack Obama.

The Swing Vote

The selection of each justice is vital as it could drastically affect the outcome of major cases. Our political climate could be vastly different today if certain nominations came from different presidents and at different times. Today a significant number of major cases come down to a 5-4 vote with the decision based on ideological lines. That is one justice setting the legal tone for the country. It showcases the importance of the individual. Here are some recent examples.

Lethal Injection

On June 29, 2015 the Court decided on 5-4 vote that an execution drug that renders prisoners unconscious in the first stages of the lethal injection process is constitutional and doesn’t violate the Eighth Amendment–cruel and unusual punishment. Justice Kennedy was the swing vote.

Pollution Limits

On June 29, 2015 the Court found in a 5-4 vote that the Environmental Protection Agency didn’t take a cost-benefit analysis into consideration before setting limits on mercury and other pollutant emissions on power plants. Therefore, the agency violated the Clean Air Act. Once again, the swing vote was Justice Kennedy.

Same-Sex Marriage

On June 26, 2015 the Court voted 5-4 that same-sex marriage is a guaranteed nationwide right. Once again the swing vote was Justice Kennedy, even writing the majority opinion.

The Down Side

Liberal/Conservative Regrets Choosing Justices

In such a serious and consequential process, there can certainly be mistakes and regrets. First, Presidents are known to have regretted appointments. There isn’t a guarantee how Justices will vote in the future and how ideologies can change. Once confirmed, the pressures on the justices are less from the outside of the courtroom, but more from within. Also, justices aim at stepping down at the appropriate time in order to secure an approved replacement. Basically, a conservative justice wants to retire under a Republic president and vice versa.

Misjudging Political Ideologies

Republican President  Theodore Roosevelt appointed Oliver Wendell Holmes to the bench in 1902. Justice Holmes ultimately voted against the president in major cases challenging the legality of the Sherman Antitrust Act. In response, President Roosevelt famously said, “Out of a banana I could carve a firmer backbone.”

Dwight D. Eisenhower claimed his appointments of Earl Warren and William Brennan were the two biggest mistakes of his presidency. Both appointments added to the 1960s’ strong liberal court. Warren, as Chief Justice, oversaw a court that fought against racial segregation, banned school prayer, and advocated for individual rights against the federal government. Brennan supported affirmative actions and voted to overturn flag-burning laws.

Republican President Richard Nixon appointed Harry Blackmun in 1970. Blackmun turned around to support a woman’s constitutional right to an abortion in the 1973 Roe v. Wade case.

Justice Anthony Kennedy, our current swing vote, was appointed by Republican President Ronald Reagan. He has been at the forefront in advocating for gay rights, the elimination of the death penalty for juveniles, and banning prayer at school graduation.

Republican President George H. W. Bush appointed David Souter in 1990. Souter voted liberally in areas of abortion rights, securing affirmative action, and limiting the death penalty.

Bad Timing

Democrats have a stronger record of bad timing. Compared to their Republican counterparts, Democrats have been less strategic in nominations and in the timing of judicial retirements. For example, President Johnson nominated Abe Fortas for the Supreme Court, highly due to his personal relationship with him as his former personal lawyer and friend. The Senate jumped all over this relationship and ultimately defeated the nomination. By the end of the dragged-out process, President Johnson no longer had time to make another nomination. The task ultimately was left to his successor, President Richard Nixon, who nominated strong conservative Warren Burger.

Other justices fail at timing their retirements. Liberal Justice Thurgood Marshall refused to retire toward the end of his career while Democrat President Jimmy Carter was in office. Consequentially, Republicans won the next three presidential elections and Marshall was forced to leave his seat to Republican Clarence Thomas. This also occurred with Hugo Black replacing Lewis Powell.

Possible Upcoming Transitions

As of today, no Supreme Court Justice has announced plans for retirement. However, some seem to be nearing the end of their careers, solely based on age. Justice Ginsburg is the oldest at 81. Not far behind are Justices Breyer and Kennedy, both 78, and Justice Scalia at 75. Will Justice Ginsburg retire under President Obama in a strategic move? According to Erwin Chemerinsky, Dean of the law school at the University of California, the “best way for her to advance all the things she has spent her life working for is to ensure that a Democratic president picks her successor.” Many factors play into this decision, such as the 2016 presidential election. Also that the Republicans currently have a Senate majority. The next nominations are more important than ever as so many cases are decided by a swing vote.

Conclusion

Some people don’t agree with partisan politics being weighed so heavily in the judicial branch of our government. And maybe they shouldn’t. But that doesn’t change the consideration and strategic thinking that go into Supreme Court nominations. As serious as the matter is, and with all the input and advice sought, mistakes are still made. Successful nominations as well as regrets have helped shape this nation for better or worse. Only time will tell what is to come for our next group of Supreme Court Justices. It will be interesting to see what moves are made by the upcoming retiring justices, Senate, and future president .

 Resources

CQ Press: The Selection and Confirmation of Justices

American Government: How Judges and Justices Are Chosen

Inside Gov: Compare Supreme Court Justices

The New York Times: Major Supreme Court Cases of 2015

The New York Times: The Supreme Court Blunder That Liberals Tend to Make

Supreme Court: Biographies of Current Justices of the Supreme Court

Time: Four Enduring Myths About Supreme Court Nominees

USA Today: Justices Sometimes Regret Justices They Appoint

Jessica McLaughlin

Jessica McLaughlin is a graduate of the University of Maryland with a degree in English Literature and Spanish. She works in the publishing industry and recently moved back to the DC area after living in NYC. Contact Jessica at staff@LawStreetMedia.com.

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Today the Supreme Court handed down an historic ruling on marriage, striking down state laws that ban same-sex marriage. Always one to out-do himself, Justice Scalia delivered a dissenting opinion of immense rhetorical heft, perhaps even better than his Obamacare dissent. Here are the highlights:

10. “The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.”

Hey, Ginsburg was drunk at ONE State of the Union, don’t hold it against her.

9. “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast is a majority of the nine lawyers on the Supreme Court.”

No, I’m pretty sure this guy still rules everything that the light touches.

8. “Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before the fall.”

Hey, as long as you fall with style, it’s all good.

7. “The opinion is couched in a style that is as pretentious as its content is egotistic.”

Good thing Scalia’s got his glasses on.

6. “But what really astounds is the hubris reflected in today’s judicial Putsch.”

Putsch. noun \ˈpu̇ch\ :  a secretly plotted and suddenly executed attempt to overthrow a government.

Is Ginsburg the Mockingjay?

5. “Buried beneath the mummeries and straining-to-be-memorable passages…”

Yikes. I hope they have some ice at the Supreme Court

4. Referring to the makeup of the Supreme Court: “Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count).”

You’re not even real California, just get over it!

3. “…but anyone in a long-lasting marriage will attest that the happy state constricts, rather than expands, what one can prudently say.”

Scalia’s wife may have some words for him when he gets home today.

2. “The substance of today’s decree is not of immense personal importance to me.”

I don’t think he found any.

1. “Ask the nearest hippie?”

Upon inquiry, the hippie responded, “Who’s Antonin Scalia?”

Bonus:  (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?)

Takeway of the day: Scalia is very confused. And those brackets certainly aren’t helping.

To read more Scalia fun, make sure to check out the Top 10 Most Creative Quotes from Antonin Scalia’s Obamacare Dissent.

Maurin Mwombela

Maurin Mwombela is a member of the University of Pennsylvania class of 2017 and was a Law Street Media Fellow for the Summer 2015. He now blogs for Law Street, focusing on politics. Contact Maurin at staff@LawStreetMedia.com.

The post The Top 10 Most Creative Quotes From Antonin Scalia’s Marriage Equality Dissent appeared first on Law Street.

The Supreme Court delivered a landmark decision today that will change America forever. After a 5-4 ruling, same-sex couples finally have the right to marry across the country. States are now required to license and recognize same-sex marriages, making marriage equality the law of the land.

I headed down to the Supreme Court at 9:30 AM to witness this landmark decision. The happiness outside the Supreme Court this morning was palpable. Rainbow flags adorned with equal signs, same-sex couples with intertwined fingers, and allies wearing smiles of hope all gathered this morning to celebrate, to congratulate, and to experience the exhilarating momentum of the decision.

Media crews await the court’s word moments before the marriage equality decision is delivered.

Image Courtesy of Emily Dalgo, Law Street Media

Emily Dalgo

Emily Dalgo is a member of the American University Class of 2017 and a Law Street Media Fellow during the Summer of 2015. Contact Emily at staff@LawStreetMedia.com.

The post Love Is Loud and Now It’s Legal: America Celebrates Marriage Equality appeared first on Law Street.

Today the Supreme Court ruled 6-3 to uphold important provisions of the Affordable Care Act. But in his strongly worded dissent, Justice Antonin Scalia used some of the most creative and entertaining language in Supreme Court history. Here are the top 10 funniest quotes from the dissent:

10. “The Court’s insistence on making a choice that should be made by Congress both aggrandizes judicial power and encourages congressional lassitude.”

I absolutely agree. Not to mention the vociferous remonstrance the Court will face after their incongruous conjecture.

9. “Words no longer have meaning.”

Finally, we can all throw away our dictionaries.

8. “Could anyone maintain with a straight face that §36B is unclear?”

Sorry, I tried my best, but I couldn’t

7. “What are the odds, do you think, that the same slip of the pen occurred in seven separate places?”

Well if we take the number of words written in the bill at 381, 517 and multiply that by the chances of a writing error at 1 in 1000 words, but account for the flux of the earth’s gravitational field using Gauss’s theorem as it pertains to the Capitol Building, then the chances are 1 in 999, BUT multiplying by the chance of it occurring in the exact places where the issue is mentioned using a factorial… it’s not very likely.

6.”We should start calling this law SCOTUScare.”

It does have a nice ring to it, but I don’t know how Obama would feel about that.

5 “Understatement, thy name is an opinion on the Affordable Care Act!” Later, “Impossible possibility, thy name is an opinion on the Affordable Care Act!” (tie)

Rhetorical mastery, thy name is Justice Scalia

4. “A sense of belt-and-suspenders caution.”

I hope the Court isn’t ruling on any fashion issues anytime soon.

3. “The Secretary of Health and Human Services is not a State.” Later, “Because the Secretary is neither one of the 50 States nor the District of Columbia.” (tie)

image courtesy of Gage via Wikipedia

Image Cortesy of Carol Norquist via Flickr

I don’t know. I’m definitely seeing some resemblance here.

2. “Pure Applesauce”

Really, just for me!? No additives or anything!?

1. “The Court’s next bit of interpretive jiggery-pokery…”

It’s jiggery-POkery, not jiggery-poKERY

Bonus Quote:

“Imagine that a university sends around a bulletin reminding every professor to take the ‘interests of graduate students’ into account when setting office hours, but that some professors teach only undergraduates. Would anybody reason that the bulletin implicitly presupposes that every professor has ‘graduate students,’ so that ‘graduate students’ must really mean ‘graduate or undergraduate students’? Surely not.”

Besides how random this reference is, of course not. Professors don’t care about undergraduates.

Maurin Mwombela

Maurin Mwombela is a member of the University of Pennsylvania class of 2017 and was a Law Street Media Fellow for the Summer 2015. He now blogs for Law Street, focusing on politics. Contact Maurin at staff@LawStreetMedia.com.

The post The Top 10 Most Creative Quotes from Antonin Scalia’s Obamacare Dissent appeared first on Law Street.

Recent surveys have shown that a disproportionate number of Americans believe there is a problem in our country with fairness of the judicial system. Of course, there are various was that this comes to light, but one of the most prolific is judicial bias. From juvenile courts all the way up, it has been a problem for years.

But what indicates judicial bias, what can judges actually do if they feel themselves being biased, and what can citizens do about the issue?  Looking back historically, you can see areas where the problem may have existed, which is a good indication of where it will pop up again.

So the question remains, does judicial bias exist, or is it something that we are making up, and if it exists, what can we do?

Judicial Bias

In his book “Mediating Dangerously – The Frontiers of Conflict Resolution,” Kenneth Cloke wrote about the idea of judicial bias:

[T]here is no such thing as genuine neutrality when it comes to conflict. Everyone has had conflict experiences that have shifted his or her perceptions, attitudes, and expectations, and it is precisely these experiences that give us the ability to empathize with the experiences of others. Nor are there any genuine neutrals in courts, including judges, CEO’s, managers, and human resources representatives, all of whom have biases and points of view, including the bias of wanting to protect the organization from being disrupted by conflict. Judges have the most intractable bias of all: the bias of believing they are without bias.

With a few life-changing court hearings coming up in the Supreme Court and around the world, there have been many think pieces and questions posed by the media. One of those questions is whether or not the personal beliefs of Supreme Court justices will come into play. The right to a fair and speedy trial is promised to us in the Constitution, after all, so that should certainly extend to the top.

Judicial bias occurs when a judge has a bias when making a ruling in a hearing in which he or she has a specific feeling or attitude toward a party that will hinder them from acting fairly. In this case, the judge is actually hindering the right to a fair trial. Typically, a judge will recuse him or herself if a bias occurs.

Can we prove judicial bias?

The problem is that we often cannot prove that judicial bias exists. Now, many legislatures and jurisdictions have allowed parties to seek disqualifications if it appears that there was judicial bias. One example is Title 28 U.S.C. § 455, which has provisions for when a federal judge is biased against a party, as well as when a reasonable, disinterested party would think he has a bias. However, that doesn’t necessarily mean that this is an easy thing to do. There are many cases where a judge might be biased, but that doesn’t mean that the “reasonable” person would think so.

There is another problem to consider as well: the duty to sit doctrine. Many judges, especially those who are “old school,” tend to follow this. They are basically obligated to stay on a case that they have been assigned to handle unless they are forced to step away.

Sensitive Subjects

In many careers we are instructed to go with our feelings and think with our hearts in order to reach the best possible choices. However, that isn’t something that people would tell judges to do. That doesn’t mean it doesn’t happen, however.

New research has shown that judges, especially Supreme Court justices, will actively pick out the cases with which they identify. In their report, Lee Epstein of the University of Southern California and two colleagues examined nearly 5,000 decisions in 516 Supreme Court free-speech cases that spanned the decades between 1953 to 2010 to determine whether there was any bias. When the Economist looked at the paper, they explained the political bias in a funny way:

For example, if the speaker seeking first amendment solace is a pro-lifer rankled by restrictions on protests near abortion clinics, his rights are very likely to be recognised by Justice Clarence Thomas, a conservative, but not by Justice Ruth Bader Ginsburg, a liberal (see Hill v Colorado). And if the speaker is a high-school kid holding up a banner reading “Bong Hits 4 Jesus” on a school trip, you can expect Justice Thomas to harumph while Justice Ginsburg rises to defend the student’s free-speech rights (see Morse v Frederick). Right-wing justices tend to uphold conservative speakers’ rights and rule against liberal litigants; liberal justices smile on their ideological friends and frown at their foes, too.

While it is funny to think about it in those terms, it has many people thinking about some of the other places that judges could have bias and if it has ever happened before. Many of these include cases where the jury is included in the bias.

Religion

Many of the cases that judges and juries hear go back to morality and our personal beliefs. Many of us are exposed to religion from an early age, and it would be foolish to think that judges would be able to separate, at least completely, their deeply ingrained beliefs from the law. Certainly, there might even be a place for it. In an article from the Journal of Law and Religion, a quote from a former judge puts it into perspective:

It’s funny. . .I think it [religion] has influenced me. I think it’s given me a set of values. . .you know, every once in a while a reading from the New or Old Testament kind of strikes you and you just wouldn’t hear it–or I wouldn’t–or read it if it weren’t for that. It causes you to pause a little bit and do a little self-examination. I think that’s healthy. So I think that does influence my perspective.

There have been several cases in the last few years in which lawyers claimed religious bias against their clients. In Tennessee, a judge found himself in hot water after forcing a man to change his baby’s name from Messiah to Martin after he determined that “The word ‘messiah’ is a title, and it’s a title that has only been earned by one person, and that one person is Jesus Christ.” The child’s parents were there to settle a few different issues, including the baby’s last name.

While not in court, a Texas judge, Carter Tinsley Schildknecht, was issued a public admonition because  of some comments she made, including “describing District Attorney Munk as a ‘New York Jew’ and by criticizing a prosecutor’s beard because it made him look like a ‘Muslim’.”

Gender

One of the biggest sources of bias may be gender. In many of the cases where gender bias was found, it results in decisions that are based upon preconceived notions of sexual roles rather than on fair and impartial appraisals of individual situations. However, many people don’t see this bias because they are operating on those same preconceived notions.

In fact, New Jersey Supreme Court Justice Alan B. Handler wrote “[N]ot everyone has a nose for discrimination, especially in its most subtle forms. We are coming to realize that people are products of cultural conditioning which frequently obscures recognition of social wrongs…Discrimination frequently goes uncorrected because it is undetected.”

So what can we do?

Unfortunately, the idea that we can take away bias is misguided, as it is almost always going to be there. Just like in any other profession, bad judges do exist, but as they are in a power position, it can be hard to find a lawyer willing to expose that. The National Center for State Courts suggests that one of the biggest things we can do is reduce the wear and tear on judges by shortening their hours, provide more feedback on their performances, and encourage the courts to stay vigilant.

Even more so, we need to provide bias training to judges, and maybe even encourage them to do some research into the facts if a case involves someone’s religion, for instance. Diversity training has gotten a bit of a bad name, but it really does serve a purpose, and the courtroom may be the next place that needs it.

Conclusion

Bias is a part of life, unfortunately. Truly, we can never really let go of our bias, but judges have a responsibility to acknowledge it and try to make a fair judgement despite it. Juries have a similar responsibility, especially when they are still in the selection process.

Resources

Primary

U.S. Government Publishing Office: 28 U.S.C. 455 – Disqualification of Justice, Judge, or Magistrate Judge

Justia: Castellano v. Linden Board of Education

Additional

Douglas Ginsburg: Originalism and Economic Analysis: Two Case Studies of Consistency and Coherence in Supreme Court Decision Making

Journal of Law and Religion: Beneath the Robe: The Role of Personal Values in Judicial Ethics

Kenneth Cloke: Mediating Dangerously – The Frontiers of Conflict Resolution

Economist: Playing Favorites

Religion Clause: Texas Judge Disciplined For Religious-Cultural Bias

Reuters: Tennessee Judge Cited For Ordering Baby’s Name Changed From Messiah

University of Southern California: Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment

Women Law: Operating a Task Force on Gender Bias in the Courts

American Bar Association: Overcoming Judicial Bias

American Psychology Association: Can Jurors’ Religious Biases Affect Verdicts in Criminal Trials?

NCSC: Strategies to Reduce the Influence of Implicit Bias

William S. Boyd School of Law: Chief William ‘s Ghost: The Problematic Persistence of the Duty to Sit Doctrine

Noel Diem

Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.

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A recent U.S. Supreme Court decision is a victory for women’s rights, reproductive rights proponents, and physicians. It’s also a failure for hypocritical, radically immoral Republican men in North Carolina.

The court decided today to avoid reviewing a law that would force doctors to show and describe a fetal ultrasound to a patient immediately before an abortion, even if she resists. A U.S. District Judge previously struck down the law in 2014 for violating the First Amendment, but state officials filed an appeal to overturn this decision. The law was again branded unconstitutional by the U.S. Court of Appeals for the Fourth Circuit. In March of this year, North Carolina officials petitioned the Supreme Court in the hopes that the highest court would uphold their woman-hating law. Luckily, SCOTUS has better cases to review than this one, so the previous decisions to reject the law stand.

What’s so disturbing about the ultrasound law is that it symbolizes the too-widely-accepted belief that women are not able to make informed decisions about their own bodies. Lawmakers in North Carolina argued that this law was a protective measure under the umbrella of “informed consent” and that the law simply ensured that women made a “mature and informed” choice about the matter. But forcing doctors to deliver anti-abortion messages on behalf of the state, even when a woman does not agree to hear the information, isn’t consent.

The law used very detailed language that legally bound physicians to tell their patients about alternative options to abortion, such as “keeping the baby or placing the baby for adoption.” It also forced doctors to place the ultrasound image in front of the woman’s face and describe the “anatomical and physiological characteristics” to the patient before permitting an abortion. The law applied to women who were survivors of rape and incest, and those who discovered severe fetal abnormalities. Even more frustrating is the lawmakers’ incorrect assumption that women are inherently uninformed. Sixty-one percent of abortions are undertaken by women who already have one or more child, so they aren’t naïve about the implications of pregnancy or the responsibilities of parenthood. They don’t need the “help” of male lawmakers telling them that their decisions are invalid.

Plaintiffs in the lawsuit included the Center for Reproductive Rights, Planned Parenthood, and the American Civil Liberties Union. Last year, they argued in their brief that the law:

Commandeers unwilling physicians to use their own voice and expressive conduct to communicate the state’s message against abortion.

The brief further argued that:

It commandeers physicians to convey this message in a uniquely intrusive way — during a medical procedure while the patient is vulnerable and disrobed on an examination table with an ultrasound probe inside or on her.

The Supreme Court’s decision to deny another review of this law may be a victory today, but there are more anti-abortion laws making headlines that the justices will likely have to address soon. For example, an abortion regulation law in Mississippi threatens to close the last abortion clinic in the state. In a similar vein, a Texas regulation currently making its way through the legal system requires clinics to meet the same building equipment and staffing standards that hospitals must meet, reducing the number of abortion clinics in the state. The Texas law is particularly concerning, as it will cause nearly one million women of reproductive age to live more than 150 miles from an abortion clinic, making abortions even more inaccessible to women of limited income or those who have no disposable time to travel the obscenely long distances to a clinic in order to have the procedure.

Reproductive rights are women’s rights, not North Carolinian, lawmaking men’s rights. I’m glad to see that the Supreme Court, if even just passively, recognizes that.

Emily Dalgo

Emily Dalgo is a member of the American University Class of 2017 and a Law Street Media Fellow during the Summer of 2015. Contact Emily at staff@LawStreetMedia.com.

The post Thanks SCOTUS: A Victory for Reproductive Rights appeared first on Law Street.

After 13 years, the Supreme Court has reversed a controversial law passed by Congress back in 2002.  The issue with the law is that it gave American citizens born in Jerusalem the option to list Israel as their official country of birth on their American passports and birth certificates. Seeing that the recognition of foreign nations is entirely a political policy condition, the Supreme Court has decided that Congress should never have had the authority to make a law of recognition as they did in 2002 and therefore have struck it down, leaving powers of recognition to the president.

The outdated law previously stipulated that:

For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.

The law reversal stems from the prominent Zivotofsky v. Kerry case. More than a decade ago, the Zivotofsky family filed suit against the ­­­­­­State Department after they were denied the option to list Jerusalem, Israel as the place of birth for their newborn son.

While under the separation of powers Congress does indeed play a vital component in making laws, major decisions on  nation recognition has historically been left to the Executive branch. Looking back at  precedent, it should be noted that the Supreme Court has allocated the power and exclusivity of recognizing a nation as being a privilege exclusively for the President.

The president has taken those absolute measures as a result of Congress accepting the recognition of power as exclusive of his office, and at times even defending the President’s constitutional prerogative. Additionally, the Executive branch often has access to confidential information that the legislative branch does not.

Foreign sovereignty expert Juan Basombrio, who is the Co-Chair of Dorsey & Whitney’s International Law Group, commented on the Supreme Court’s decision in a press release saying:

Expressly recognizing that the status of Jerusalem is ‘a delicate subject,’ the Supreme Court has relied on Separation of Powers principles to strike-down a United States statute, enacted by Congress in 2002, which conflicted with State Department policy.  The Supreme Court has held that the question of who has sovereignty over Jerusalem must not be decided by the Congress or the Courts, but is within the purview of the Executive Branch, which has indicated that this is a matter to be resolved ‘not unilaterally but in consultation with all concerned.’  Today’s decision confirms former President George W. Bush’s statement, at the time of enactment of the referenced statute, that ‘U.S. policy regarding Jerusalem has not changed.’

Monday’s decision marks the end of an era of uncertainty over the loophole in the conflicting law that enabled American citizens born abroad to claim Israel as their country of identity. Basombrio makes a valid claim as he states that the decision should not involve American courts or Congress, granted that there are other political actors and nations involved; therefore the argument and decision should always remain with the Executive branch.

This decision is important because it demonstrates to the citizens of Jerusalem, as well as the rest of the world, that the U.S. will not be dragged into the identity crisis. Whereas the U.S. is often known for mediating terms between other nations, this time that is not the case. In reversing a 13-year clause, the Supreme Court has sent a message to Israel that the U.S. has no interest in intervening until the nations involved in the identity dispute resolve their issue.

Symon Rowlands

Symon Rowlands is a member of the University of Miami Class of 2016 and was a Law Street Media Fellow during the Summer of 2015. Symon now blogs for Law Street, focusing mostly on politics. Contact Symon at staff@LawStreetMedia.com.

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Update: 10:30am June 25, 2015

Two high-profile decisions will impact millions of lives this month, including millions of millennials, as the U.S. Supreme Court issues its opinions on ObamaCare and same-sex marriage. These cases face what many regard as the most conservative court in decades, but center on two of the most prominent and progressive social justice movements in decades. At a recent Center for American Progress (CAP) event focused on the important cases of this term, I was able to hear the implications of these cases, and they’re definitely worth our attention. In the justices’ hands rests the future and stability of the American health care system and legality of marriage equality for all. The stakes couldn’t be higher this month, and that’s exactly why you should be informed of what’s going on. Here’s a breakdown—in plain English—of what you need to know:

King v. Burwell: Battle Over ObamaCare

Just because you’re young and healthy doesn’t mean you don’t need health insurance, and this particular court case will definitely impact young people. A little background is important to grasp how, though. The Affordable Care Act (ACA) was signed into law in March 2010. It established health insurance exchanges–marketplaces that facilitate the purchase of health insurance in each state. Exchanges provide a set of government-regulated, standardized health care plans from which individuals may purchase health insurance policies. If the individual has a limited income, the exchange allows that person to obtain premium assistance (AKA: premium subsidies) to lower the monthly cost of the health care plan, making the plan affordable.

The ACA provides states three options for the establishment of exchanges: state run exchanges, a partnership with the federal government, or complete federal control of the exchange within the state. In 2014, appellants in Virginia, D.C., Oklahoma, and Indiana argued that premium subsidies are only available under a state-run exchange, citing one clause that says that premium subsidies are available “through an Exchange established by the state.” Using this phrase, litigants argue that the ACA provides premium assistance exclusively to individuals purchasing health care on state-run exchanges.

The Fourth Circuit Court of Appeals rejected that argument, saying that the context of the phrase reveals that Congress obviously intended for the subsidies to apply in all exchanges. But in July 2014 David King, a Virginia resident, and his co-plaintiffs  petitioned the Supreme Court and in November, the court agreed to accept the case. Oral arguments were in March 2015 and in June the outcome will be released, which has the potential to strike a detrimental blow to the Affordable Care Act. Since the ACA was signed into law, thirty-four states chose not to set up their own exchange marketplace and instead allow the federal government to operate the exchange, accounting for 75 percent of the people nationwide who qualify for premium subsidies. If the Supreme Court reverses the previous decisions and rules that only state-run exchanges qualify for premium assistance, that 75 percent will no longer be considered eligible for assistance. If the Court rules against the Obama Administration this month, about 6.4 million Americans could lose their health care premiums.

"Nearly 1 in 3 uninsured Americans have already been covered—more than 16 million people" —@POTUS #ACAWorks pic.twitter.com/rXVNHrkiW1

— The White House (@WhiteHouse) June 9, 2015

But there’s no certainty which way this will go. At the panel discussion on Monday at CAP, Elizabeth G. Taylor, Executive Director at the National Health Law Program expressed her skepticism of the Supreme Court’s decision to hear this case. “What I fear is that not only do we not have an activist court, but that it is standing in the way of efforts by publicly-elected officials to name and address social problems.” Ian Millhiser, Senior Fellow at CAP, argued that the King v. Burwell case is the “weakest argument that I have ever heard reach the Supreme Court.”

It’s especially important to keep in mind that young people will be disproportionately impacted by a SCOTUS ruling against Obamacare; over 2.2 million enrollees are between the ages of 18-34, making millennials the largest group insured under the ACA. For example, a decision against the ACA could cause young people under the age of 26 (who are automatically covered under their parents’ plans, thanks to ObamaCare) to lose their health care plans if their parents can no longer afford health insurance without federal subsidies. Whether or not SCOTUS protects those Americans remains to be seen.

Obergefell v. Hodges: Marriage Equality’s Latest Frontier

Obergefell v. Hodges will decide whether or not states are required to license a marriage between same-sex couples, as well as if states are required to recognize a lawfully licensed, out-of-state marriage between two people of the same sex.

Obergefell v. Hodges – the case #SCOTUS is considering, whether #LGBT couples have a constitutional right to marry http://t.co/FCJ6yo0ZGD

— V R Gaitonde (@weareji) June 9, 2015

Again, this decision will be important for young people, particularly because of the part we’ve played in the debate. Of Americans under age 50, 73 percent believe in marriage equality. Roberta A. Kaplan, Partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP, stated at the CAP event Monday that the arguments in favor of marriage equality have remained the same over the years, but what has changed is the ability of judges to hear those arguments. “There’s no doubt that what made this change is the American public,” she said. While the Supreme Court does not exist to respond to the public, it certainly appears to be aware of the momentum behind the marriage equality movement. Just weeks after Ireland became the first country to legalize same-sex marriage on a national level by popular vote, SCOTUS will issue an opinion that could put the U.S. in the same progressive bracket as 18 other countries, allowing same-sex couples to marry nationwide.

Regardless of the decision though, the fight for equality won’t be over. Let’s say the Supreme Court rules in favor of marriage equality both ways. States will be required to marry same-sex couples and recognize marriages performed out of state. But the next concern for these couples is the potential for more subtle discrimination. “Same sex couples will be allowed to marry but states will be able to discriminate in other ways,” warned Millhiser. Losing jobs, healthcare, or being denied housing and loans without explicitly stated homophobic motivations are classic examples of discrimination that could very well be implemented on the state level by authorities who are adamantly against same-sex marriage. If the ruling does come out in favor of gay couples, increasing skepticism is a must to keep unlawful, prejudiced actions in check.

Both of these cases have a lot on the line, although obviously for very different reasons. Michele L. Jawando, Vice President of Legal Progress at CAP said, “I would like to believe that the court is paying attention, and I do believe that the American people have a role to play when it comes to these decisions.” This is where you come in. Speaking loudly and acting louder can truly change the course of history. Lobbying Congress, rallying for your cause, educating yourself and speaking out to educate the public on the importance of these issues are crucial methods of putting public and political pressure on the justices. I’d like to believe that the American Constitution is a living and breathing document that transforms throughout history, expanding to encompass progressive views and constantly redefining what it means to be an American; let’s hope I feel the same way at the end of June.

Update: 10:30am June 25, 2015: 

Emily Dalgo

Emily Dalgo is a member of the American University Class of 2017 and a Law Street Media Fellow during the Summer of 2015. Contact Emily at staff@LawStreetMedia.com.

The post The Two Supreme Court Cases We Should All Be Watching appeared first on Law Street.

C. Michael Kamps, a certified public accountant in Texas, filed a lawsuit against Baylor Law School alleging that the school fails to adjust grade point averages of applicants who received undergraduate degrees many years before today’s practice of grade inflation, which began in the late 1970s. Kamps argued that this bias displayed by Baylor Law School admissions was in violation of the Age Discrimination Act (ADA) of 1975 (42 U.S.C. 6101 et seq.).

Kamps, 57, graduated from Texas A&M University in 1979 with a GPA of 3.2, placing him in the top quarter of his class. He also earned a score of 169 on the Law School Admissions Test. According to the lawsuit, Kamps consistently submitted applications to Baylor Law School over the course of several years, with no success. He was eventually wait-listed for Fall 2010, and then offered a seat for his credentials in Summer 2010, Spring 2011, and Spring 2012 classes. However, Kamps wished only to matriculate during one of the more competitive Fall classes. Therefore, his age discrimination claim was based not on the fact that the law school had rejected him altogether, but that it did not admit him for his preferred terms. Kamps’ final complaint is that the University denied him the chance to receive the merit-based Nance Scholarship in 2011 because of his age.

After the Department of Education received Kamps’ first formal complaint on October 27, 2011, Kamps believed the University retaliated against him by outright rejecting his most recent attempt to apply for the Fall 2012 class. Thus, Kamps brought disparate treatment, disparate impact, and retaliation claims against the University and its administrators in July 2012. Yet the U.S. District Court of the Western District of Texas and the New Orleans-based Fifth U.S. Circuit Court of Appeals both dismissed his lawsuit on all counts.

According to the court documents, it was dismissed first on the grounds that because Kamps missed his 180-day window to file his knowledge of the alleged discrimination—his DOE claim was made more than a year after Baylor Law School denied his initial 2010 application on February 17, 2010—Kamps did not exhaust his administrative remedies. Second, Kamps’ claim of disparate treatment, a fancy legal term for intentional discrimination, fell short because there is no evidence to show that Baylor used applicants’ GPAs to discriminate against any older applicants including Kamps. Kamps alleged that,

[Baylor] knew, or should have known, the effect that grade inflation would have when comparing GPAs earned in different eras.

The magistrate judge determined that knowing that GPA grade inflation disadvantages older applicants is not the same thing as using applicants’ GPAs in order to intentionally disadvantage older applicants.

Finally, unlike the Age Discrimination in Employment Act (ADEA) of 1967, the court decided that the ADA of 1975 does not prohibit either disparate impact policies or retaliation. The disparate impact theory is different from disparate treatment or intentional discrimination in that it prohibits employers from using policies that are facially neutral, but creates an unjustified adverse impact on members of any protected class (race, color, religion, gender, etc.). In other words, disparate impact is the name for unintentional discrimination. According to the decision,

The [ADEA] makes it unlawful to limit, segregate, or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.

Nowhere in the ADA are the words “otherwise adversely affects,” nor is there a statutory prohibition against retaliation, meaning the ADA only prohibits against intentional discrimination. Title IX Education Amendments of 1972 state:

No person in the United States shall, on the basis of age, be excluded from participation, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance.

On Monday, June 1, 2015, the U.S. Supreme Court agreed with the Fifth U.S. Circuit Court of Appeals’ 2014 decision to dismiss Kamps’ suit on all counts. Kamps told Texas Lawyer that while he thought he raised an interesting question for the Supreme Court, it is “the end of the road” for his journey to law school.

Although the Supreme Court seems to be justified in its decision regarding the legal language of the ADA, in practice, it does not seem justified that any law school should have the ability to  intentionally discriminate or unintentionally discriminate against older applicants. Only three words—“otherwise adversely affects”—are missing from the Age Discrimination Act of 1975 to place potentially hundreds or thousands of older applicants on a level playing field with younger applicants in the competition of law school admissions.

Jenifer Carter

Jenifer Carter is a member of the University of Virginia Class of 2016. Contact Jenifer at staff@LawStreetMedia.com.

The post How Old is Too Old For Law School? appeared first on Law Street.

Clothing company Abercrombie & Fitch is no stranger to legal trouble due to its alleged discriminatory practices against both workers and customers. The brand came under fire for its refusal to hire a young woman in Oklahoma because she wore a religious head covering. On June 1, after much deliberation, the Supreme Court ruled 8-1 in favor of Samantha Elauf, the prospective employee who was denied a job because of her hijab.

Court rules in favour of Muslim woman who failed to get job after wearing scarf to interview http://t.co/wSiVAgsGvL pic.twitter.com/zagHX1Usdv

— The Independent (@Independent) June 2, 2015

Abercrombie is known for making clothing marketed toward young, preppy, attractive people. Many past employees have claimed that the company discriminated against them for their body type, religious practices, or race. The company has also been known to only market its clothing toward thinner people, as it refuses to make clothing for plus-sized women.

According to Politico, the company paid $50 million to Latino, African American, and Asian job applicants who claimed that there was a lack of diversity in the company. Elauf’s victory in this case has set a precedent for all future employers to follow, which will greatly benefit all potential employees.

In 2008, 17-year-old Elauf applied to Abercrombie & Fitch to work as a salesperson. She did not ask the company to make a religious accommodation for her headscarf during her interview with assistant manager Heather Cooke, and so she was not given the job for two reasons. Firstly, Abercrombie claims that Elauf’s headscarf violated its “look policy,” due to the fact that it was black and considered prohibited headwear, although Elauf claims that she was never informed of this exact policy during her interview. Secondly, Abercrombie also claims that it had no liability since Elauf never identified her headscarf as a religious garment and also because the company did not want to automatically assume that it was being worn for religious reasons so that it doesn’t stereotype any potential employees.

On behalf of Elauf, the Equal Employment Opportunity Commission, a federal law enforcement agency, sued Abercrombie for discrimination. It was determined that the company did not actually discriminate against Elauf, although her rights were violated under Title VII of the 1964 Civil Rights Act. Abercrombie also has since changed its policies, as now it allows its workers to wear headscarves if they choose to do so.

According to Justice Scalia who wrote the majority opinion in the ruling, “an employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.” The Guardian  also reports that multiple other religious groups were in support of Elauf’s case.

This ruling is a major step forward in terms of workplace equality, as it helps to protect the rights of not only minorities, but all people. Companies now cannot deny employment to any potential worker due to his or her religious observances, which will in turn increase the amount of opportunities available for religious minorities. This court decision also has the potential to completely change how American society views equal opportunity, religious freedom, and workplace discrimination.

Toni Keddell

Toni Keddell is a member of the University of Maryland Class of 2017 and a Law Street Media Fellow for the Summer of 2015. Contact Toni at staff@LawStreetMedia.com.

The post SCOTUS Rules in Favor of Muslim Women Against Abercrombie over Hijab appeared first on Law Street.

Should all online threats lead to time in prison? According to the Supreme Court, simply reporting a threat posted by someone on the internet is no longer enough to put them in jail, as the Supreme Court just overturned the 2011 conviction of Anthony Elonis. A Pennsylvania native, Elonis was sentenced to jail after posting multiple threats toward his wife, co-workers, and elementary schools in the form of lyrics on Facebook. He claimed to use these posts as therapeutic methods to cope with his depression. However, due to their violent nature, he was convicted for violating a federal threat statute. Elonis appealed his conviction to the Supreme Court, arguing that the government should have been required to prove he truly had an intent to act on these threats before sentencing him to a 44 month term in jail. That argument convinced the Supreme Court–but what does it mean for online communication moving forward?

With this ruling, the Supreme Court says courts must consider the defendant’s state of mind and whether he intended to actually do wrong. This simply means that there must be some proof that the defendant intended to follow through on what he was posting. The court gave a 7-2 opinion but did not set a clear standard for what constitutes this intent to act out these threats. There are questions of whether this will potentially create uncertainties during future trials. In fact, Justices Clarence Thomas and Samuel A. Alito Jr. believe that this opinion is more confusing than enlightening. Thomas wrote, “This failure to decide throws everyone from appellate judges to everyday Facebook users into a state of uncertainty.”

This is a very tricky case with two sides to it. Something that is posted online may very well be taken out of context, but there is also a good chance that someone who has intent to cause harm to others will not be seen as guilty in a courtroom due to the lack of proof. Michele M. Garcia, director of the Stalker Resource Center, stated,

This decision fails to recognize that victims of stalking experience fear regardless of the offender’s intent. If what constitutes a threat is not clearly defined, our concern is that this ruling provides enormous space for stalkers and abusers to act.

Mai Fernandez, executive director of the National Center for Victims of Crime, described the internet as “the crime scene of the 21st century. Kim Gandy, president of the National Network to End Domestic Violence, stated,

Threats play a central role in domestic abuse and is a core tactic that many abusers employ, regardless of whether the abuser intended to threaten or only intended to vent or to make a joke.

I can’t help but wonder if this decision will help people who do plan to harm others avoid prison?  There is a big concern that this will let internet abusers get around the law by writing hateful posts that “technically” are not threats but are still frightening to others. This decision may make it much more difficult to prosecute those whose posts are a precursor to violence that is going to take place. Only time will tell if this decision by the Supreme Court was beneficial or harmful for those dealing with internet threats.

Taelor Bentley

Taelor is a member of the Hampton University Class of 2017 and was a Law Street Media Fellow for the Summer of 2015. Contact Taelor at staff@LawStreetMedia.com.

The post Anthony Elonis’s Conviction Overturned: Are Online Threats Now Fair Game? appeared first on Law Street.

Americans must abide by governing laws at a variety of levels throughout the country. Aside from the U.S. Constitution, each state has its own constitution further detailing the everyday relations between the state government and the people. But what about international law? Can we be affected as individuals by agreements the United States has entered into with foreign countries? Although it may seem a little far fetched, these questions have come up time and again in our court system. You may be surprised by how international law can affect you.

International Law in America

Overview

Two sources primarily make up international law: international agreements and customary practice. In adherence to U.S. law, international agreements can be established by entering into a treaty or an executive agreement. The executive branch has authority over treaties and executive agreements, but treaties need the consent of Congress as well. While Congress may be part of a joint agreement between the executive branch and Congress, that is not necessary; the president is only required to notify Congress of an upcoming executive order. Treaties and executive agreements may or may not be self-executing. Non-self-executing treaties and executive agreements do not immediately establish U.S. law, but evoke a promise to enact domestic legislation in order to enforce them in a timely fashion.

The strength of international law within the U.S. court system depends on a variety of circumstances. Self-executing treaties and executive treaties are generally considered to have equal status to federal law, superior status to state law, and inferior status to the Constitution. Generally speaking, non-self-executing agreements have limited strength. The question still remains whether implemented legislation required from these agreements can be reviewed for validity by the Supreme Court.

The second source of international law is customary international practice. Customary international law is essentially general practice–for example genocide has been forbidden by common practice even before it was codified. It is generally understood that U.S. statutes that conflict with customary international practice will reign supreme, although that phenomenon is relatively rare.

What is the Treaty Power?

The Constitution designates that the President has the authority to sign treaties “with the Advice and Consent of the Senate” and a 2/3 vote in the Senate. The treaty power maintains our system of checks and balances and makes passing a treaty a relatively hard process. The Supremacy Clause of the Constitution calls treaties “the Supreme Law of the Land.”

The U.S. is governed by both federal and state authority, and jurisdiction is established by the Constitution. The 10th Amendment reserves all power to the states when not specifically delegated otherwise or specifically prohibited in the Constitution. So federal authority can ratify a treaty. But what happens when the laws meant to implement the treaty overstep into state jurisdiction? Technically, that could be increasing Congress’ powers. These kinds of inconsistencies make the integration of international law even more of a gray area.

What is the Necessary and Proper Clause?

The clause, also known as the Elastic Clause, under Article 1 of the Constitution empowers Congress “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” The Necessary and Proper Clause grants the federal government power to govern outside its set natural jurisdiction when required to enforce federal laws. This clause is specifically used to justify implemented legislation in enforcing international treaties and executive agreement.

Here is a quick video explaining the clause with regard to the 10th Amendment.

These are, of course, not the only aspects of American law that affect the application of international law, but they are the ones that are most often discussed and considered when attempting to determine the scope of that application.

Case Study: Bond v. United States

In some ways, this case is more apt for a soap opera than the U.S. Supreme Court, but very important legal questions were hidden under the dramatics. In this case, international policy implicitly affected a single person. An individual right, specifically the 10th Amendment, was called into question. In an even rarer scenario, the case was brought before the Supreme Court twice. The first question posed to the Supreme Court was whether we can challenge international laws (treaties) as individuals using our individual rights and the 10th Amendment? The second, can the Supreme Court deem unconstitutional implemented legislation brought on by international law?

Summary of the Initial Case

In Lansdale, Pennsylvania, Carol Bond discovered that her friend, Myrlinda Haynes, was pregnant from an affair with her husband, Clifford Bond. In a flare of passion, she vowed revenge. Bond is a trained microbiologist, and at the time worked for the chemical manufacturer Rohm and Haas. She took advantage of her connection to steal 10-chloro-10H-phenoxarsine from Rohm and Haas and ordered potassium dichromate over Amazon. The chemicals can be poisonous with minimal topical contact. Over the course of at least 24 attempts, Bond spread the chemicals on Haynes’ house and car door handles and mailbox. Fortunately, Haynes was often able to spot the chemicals from noticeable color distortions and only suffered from a mild hand burn that was cleaned with water.

After several attempts to contact local police to no avail, Haynes brought the matter to federal officers of the Postal Service. At the culmination of the investigation, Bond was ultimately charged with two counts of possessing and using a chemical weapon in violation of Title 18 of the United States Code and section 229 of the Chemical Weapons Convention Implementation Act of 1998 and two counts of mail theft. Bond pleaded guilty and had the right to appeal. She was sentenced to six years in federal prison.

What is the Chemical Weapons Convention Implementation Act of 1998?

The Chemical Weapons Convention Implementation Act (CWCIA) of 1998 implements the Chemical Weapons Convention (CWC) into U.S. federal legislation. Section 229 is the penalty provision.

Read More: The Forgotten Chemical WMDs: Chemical Weapons

The United States signed the CWC on January 13, 1993 and initiated it in April 1997. The international convention currently has 190 state parties. The CWC prohibits the development, production, stockpiling, and use of chemical weapons. The National Implementation Measures clause prohibits “natural and legal persons anywhere on its territory … from undertaking any activity prohibited to a State Party under this Convention.” Section 229 of the CWCIA specifically decrees it “unlawful for any person knowingly to develop, produce, otherwise acquire….retain, own, possess, or use, or threaten to use, any chemical weapon.”

The CWC was signed with specific intentions aimed at international peace. It is a ceasefire for all countries involved in the manufacture or possession of chemical weapons or weapons of mass destruction, as means of combat to ensure global safety. The treaty is non-self-executing, meaning the CWC itself didn’t establish any U.S. laws, but evoked a promise from the U.S. to enact future legislation in accordance to the treaty.

First Supreme Court Case

The first question at hand: Does Bond have standing to challenge the federal chemical weapons charges filed against her under the CWCIA claiming her 10th Amendment rights? The answer ended up being yes. The court found that a federally indicted criminal defendant has the right to challenge the statue raising the question of federalism and states’ rights under the 10th Amendment.

The following video recaps the initial case summary and further details the defense’s arguments.

The court also questioned whether the CWCIA is valid under the “necessary and proper” clause to enforce the Treaty Power. The Supreme Court opted out of making that decision and remanded the case to the Third Circuit.

Third Circuit Case

The Third Circuit stated the validity of a treaty was “beyond [its] ken.” The creation of treaties is outside the courts’ powers; they are created by the President and Senate. The court ruled that for a valid treaty, implementing legislation need only to be “rationally related.”

The Third Circuit used the 1920 case Missouri v. Holland as precedent. That case concerned the Migratory Bird Treaty Act of 1918, a treaty established with Great Britain. The regulation of the hunting of migratory birds was previously deemed as a state concern, outside of Congress’ jurisdiction. The former case declared “the premise that principles of federalism will ordinarily impose no limitation on Congress’ ability to write laws supporting treaties” is implicit under the “necessary and proper” clause.

This decision raised natural concerns. Onlookers worried that if the court refused to decide on the validity of treaties, then anything goes. The President and Senate could ultimately ratify a treaty that required implementing laws that would otherwise be gravely illegal. Congress could theoretically grant itself powers it previously lacked through the Treaty Power.

This video features Nicholas Quinn Rosenkranz, a Law Professor at Georgetown University and Senior Fellow at the Cato Institute, further discussing the merits of the Treaty Power with regard to the case. Rosenkranz advocates limited power of the Treaty Power and enforcement of domestic law.

Second Supreme Court Case

The case was brought back to the Supreme Court to further test the scope of the treaty power. The case had an opportunity to create a landmark decision but fell short. The majority response failed to make a decision in that regard. It did side with the defense, however, claiming that Bond’s actions didn’t fall within the CWCIA in the first place.

The Court emphasized the importance of Congress’ intent when implementing federal laws with regard to treaties. The CWCIA was not intended to punish local criminal activity, which has generally been a state concern. The Court also considered the definition of a chemical weapon, and decided Bond’s chemical choices did not fit. Justice Roberts explained, “In sum, the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemi­cal irritant as the deployment of a chemical weapon.” Although Bond’s actions didn’t fall under the CWCIA, the decision casted “serious doubts about whether the treaty power can reach local crimes.”

The Court unanimously decided  in favor of Bond, although Justices Scalia, Alito, and Thomas wrote separate concurring opinions. They did not agree with the majority opinion that Bond’s actions didn’t fall under the CWCIA. They believed the CWCIA expressly prohibited “toxic substances” outside of “peaceful purposes.” The three justices sided with Bond in belief that the CWCIA is unconstitutional and goes outside of Congress’ enumerated powers. Treaties should only concern “matters of international intercourse,” not “matters of purely domestic regulation.”

So although the majority avoided the issues of the Treaty Power, Justices Scalia, Alito, and Thomas faced it right on. While the gray areas of international law and national application still exist, this at least hints to the fact that the Supreme Court may not hold American citizens to international laws that infringe on their rights in the future.

Conclusion

Can Americans be held to International Laws? It seems so. What if they intrude on individual and states’ rights?  The first Bond v. U.S. decision decreed we have the legal right to raise objections. The Supreme Court decision ensures our right as individuals to check the federal government when entering international agreements. It is important that the balance between state and federal government power stays in check. Even if the President and Senate can legally ratify international treaties, it doesn’t mean they should if they “violate traditional American rights, including the individual rights of federalism and the separation of powers.” American law, as always, reigns triumphant in the U.S.

Reources

Primary

Congressional Research Service: International Laws and Agreements

Justia: Bond v. United States

U.S. Chemical Weapons Convention: National Implementation Measures

Additional

Cornell University Law School: 18 U.S. Code & 229

Heritage Guide: Necessary and Proper Clause

Heritage Guide: Treaty Clause

Legal Information Institute: CRS Annotated Constitution

Atlantic: Bond v. U.S. Doesn’t Mean Latvian Cops Are Coming For Your Guns

The Heritage Foundation: Bond v. United States

Slate: Chemical Reaction

Washington Post: Thoughts on Bond v United States

Jessica McLaughlin

Jessica McLaughlin is a graduate of the University of Maryland with a degree in English Literature and Spanish. She works in the publishing industry and recently moved back to the DC area after living in NYC. Contact Jessica at staff@LawStreetMedia.com.

The post What Are Your Individual Rights When it Comes to International Law? appeared first on Law Street.

It’s Women’s History Month, and I think it’s pretty widely recognized that four great role models are the three sitting and one former female Supreme Court justices. As the only women ever on the highest court, Justices Sandra Day O’Connor, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotamayor are pretty recognizably badass, regardless of their various ideologies. Ginsburg, Kagan, and Sotomayor anchor the liberal wing of the Supreme Court, and consistently write some of the most on point and compelling decisions. O’Connor, despite having retired in 2006, continues to work as an activist. In fact, her startup non-profit iCivics was recently awarded a MacArthur Grant to continue its amazing work in American civics education.

Now these four ladies are obviously recognized and lauded on a near-daily basis. There are a lot of awards, speaking engagements, and the like. But I think they just got one of their coolest honors recently–a fan made a set of Legos called the “Legal Justice League” that depict the four justices.

Image courtesy of Maia Weinstock via Flickr

How adorable is that? RBG even has her signature white collar, and Kagan’s hairstyle is spot on. Here’s another picture–look at them working!

Image courtesy of Maia Weinstock via Flickr

Anyway, these are a great, sweet representation of some of the top female minds in American jurisprudence. The creator, Maia Weinstock, stated about her figures:

This set of custom-designed LEGO minifigures, U.S. Supreme Court replica, and SCOTUS library/study aims to celebrate the accomplishments of women in the legal realm, and to encourage girls and women to work toward high positions in the U.S. judicial system.

While I personally think this would be a great set for LEGO to manufacture, the company turned down the idea after Weinstock submitted it. It has a “no politics or political symbols” rule. However, the Supreme Court isn’t, in and of itself, political. It’s actually supposed to be the opposite–a politically agnostic institution tasked with interpreting the law regardless of party lines. While that doesn’t always necessarily happen in practice, I don’t know that making figurines of the female Supreme Court justices–three liberal and one conservative–really makes any sort of political statement.

Although toys have been moving toward being more gender neutral and inclusive in recent years, many little girls’ toys–particularly dolls–still fall more into the Barbie or Bratz category. While there’s nothing wrong with those toys per se, it would be great for young girls to have more options and more exposure to real female role models.

Regardless of LEGO’s decision not to run with them,  Weinstock’s Legal Justice League figures are a great homage to the indubitably awesome female justices, and a great celebration of Women’s History Month!

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Everything is Not Awesome: LEGO Rejects Female SCOTUS Justices Set appeared first on Law Street.

Some say a paper cut is the most painful thing in the world. Others would vouch for bullet wounds. Many men moan that a swift kick in the pants trumps it all. Who’s right? No one. Pain is notoriously difficult to assess because many factors play a part in the overall sensation. But that hasn’t stopped us from trying to understand its secrets with new technology.

Functional magnetic resonance imaging (fMRI) allows us to peep inside a brain in action to see what processes and pathways light up during sensation. Pain-specific work with fMRI technology inches closer to a possible objective assessment of pain by carefully studying what happens in the brain during a painful event. This possible objective assessment of pain offers more than just proof that you’re in more pain than your friend with a paper cut. It could change the way we prescribe medications and alter the way we practice law–especially in personal injury cases.

To win a personal injury case, victims must prove that their injury resulted in damages like pain and suffering. You can easily find evidence to support that you’re in pain, but try to apply a price tag and it gets tricky. How do you put a value on pain if you can’t know exactly what the person feels other than what they say? Enter the fMRI pain scan, which provides tangible evidence of a victim’s pain and suffering.

The technology’s critics argue that we have too much to learn about fMRI pain scans before we allow them in court as a valid measure of pain. Proponents wonder if the sophisticated new technology could usurp otherwise primitive methods of assessing pain.

Here’s what you need to know about the intersection of pain, brain, and law to decide your stance.

Pain and the Brain

Pain blinds some people, sending them to bed at the first flutterings of a headache. Yet professional athletes and exercise fanatics actually find it manageable, and even exciting. Some can even meditate their way to a weakened perception of pain. Individual differences like these make pain assessment a jungle, especially when you’re shooting for precision worthy of the courtroom.

Despite these differences, researchers hope we might be able to measure pain more precisely because all human pain begins with a universal neurological process.

Say you’re stung by a bee. The moment that stinger pops through your skin, nerve cells called nociceptors send alert signals racing through your spinal cord and up to your brain. The brain then decides how to react to the alert signals. It activates your motor pathways so you automatically swat the bee away and releases endorphins and other chemicals to help you regulate and reduce the pain you feel. The same process happens in everyone, but the specific competence of your own personal brain circuits and systems determines exactly how you experience the pain. That’s why your friend can brush aside the same bee sting that makes you wail.

How do we assess pain now?

As individuals, the way we evaluate our own pain muddies up assessments. When we feel pain, we want to tell everyone how it makes us feel, which is sometimes like…well, you get the picture. We immediately react to pain with guttural and meaningless expletives like “ouch!” and many other choice words. When prompted, we might be able to describe our pain as “dull” or “sharp,” but these methods could benefit from more precision.

The way professionals evaluate our pain isn’t too much better.  A doctor will usually ask you to rank your pain on a scale of one to ten and then point to the emoticon the best represents your state of mind.

If you’re trying to win a personal injury case with nothing but a number five and a half-frowny face to prove your pain and suffering, you might not see the best results. Wouldn’t it be better if they could just plug you into a machine that described your pain in terms of brain waves instead of your unreliable human emotions and descriptors?

That’s why many believe fMRIs hold the key to objective assessment of pain and would lead to more fair court outcomes.

What fMRIs Teach Us About Pain

All roads leading to pain travel the same neural pathways and fMRIs let us watch those pathways in action. There must be something from those processes we can measure.

A few years ago, researchers from multiple universities came one step closer to pain assessment by finding a marker pattern specific to physical pain stable enough for interpretation. Even if someone can’t talk (like a baby), the pattern they discovered would help us understand their pain using brain scans. The marker distinguished physical pain from other aversive events, meaning they can use brain scans to measure the actual pain experienced as a result of stimulus instead of the clouded emotional judgment that comes with it.

The discovery accelerated understanding and interpretation of fMRI brain scans.

Implications in the Law

We’ve just started to explore the intersection of neuroscience with law–aptly named neurolaw–and the treasure trove of evidence to be found in it.

In the Supreme Court decision in Roper v. Simmons, brain scans revealed distinct differences between adult and juvenile brains in briefs submitted to the court. The court eventually ruled against the use of the juvenile death penalty in that case. On the other hand, judges have ruled against fMRI-based lie detection in the 2010 case, U.S. v. Semrau.

Since many personal injury cases settle outside of court, it’s difficult to find a personal injury case using brain scans that has actually been tried in a courtroom. However, in Carl Koch & Tracee Koch vs. Western Emulsions Inc, a truck driver named Carl Koch sued past employer, Western Emulsions, for damages from a melted asphalt-induced wrist burn. A year after the injury, Koch was still in pain.

The case involved a face off between neuroscientists. Koch’s neuroscientist tested him with a method she developed that distinguishes real, chronic pain from imagined pain by hooking him up to the scanner and lightly tapping both of his wrists to see the different fMRI readings produced by each. The neuroscientist in the Western Emulsions corner disputed the evidence produced by the tests, saying that the mere expectation of pain could have produced the same results.

Ultimately, the judge allowed the scan as evidence and the case settled for more than Western Emulsions originally offered. Koch benefited from evidence provided by the brain scan, but many critics echo the dissenting neuroscientist’s concerns about fMRIs in the courtroom.

What are the problems with fMRIs in court?

Cautious critics serve up many reasons why fMRI scans should not yet be allowed in court. Here are some of the top arguments.

Brain Scans Can Sway a Jury

Evidence shows that neuroscientific evidence interferes with a person’s ability to interpret logic. People receive poor arguments with open minds when they’re backed with illogical neurological evidence. It seems that the mere presence of neurological evidence satisfies people into credulity.

Many Lawsuits Deal with Chronic Pain, a More Difficult Study Than Acute Pain

Scientists breeze through the study of acute pain with fMRIs. Acute pain results immediately from a stimulus. If you’re hooked up to a scanning machine and researchers prod you with a hot poker, there’s no doubt about what action causes the pain patterns in the scan. Most people pursuing personal injury lawsuits aren’t hooked up to machines at the time of their accidents. Chronic pain that comes after the accident often mingles with other issues, like depression, which might interfere with neurological scans and make it harder to attribute to one specific cause.

The Technology is New and Untested

Despite numerous discoveries, neuroscientists still disagree on the reliability of pain scans.

Many believe even the expectation of pain or a slight tilt of the head is enough to skew the results of an fMRI pain scan. Even simply blurting out “ow” has an effect on pain. In a National University of Singapore study, researchers had people sink their hands into alarmingly cold water. People who allowed themselves to say “ow” withstood the pain longer than the silent ones. They believe the effort of forming the expletive might be enough to interfere slightly with brain activities dealing with perception of pain and lessen the effect. Fluctuations like this lead people to question the validity of the scans and demand years of tests before admitting them as evidence.

The Scans Can Be Tricked by Your Emotions

In the NPR story above, David Linden, a neuroscientist at Johns Hopkins University, explains that two different brain systems process the feeling of pain. One system looks at pain with nothing but logic, evaluating where the pain came from and if the sensation burns, stabs, or aches. The other, more emotional, system tells us how to feel as a result of the pain. He also explains that emotions can steer your perception of pain. Negative emotions can make pain feel more intense. Torturers have used this fact to their advantage to make their victims’ pain worse by mixing emotions like humiliation in with already excruciating torture methods. This suggests pliability in a person’s reaction that could twist fMRI scan results.

How will we assess pain in the future?

During the nomination hearing for Chief Justice John Roberts in 2005, then-Senator Joe Biden posed a prescient,yet rhetorical, question:

“Can brain scans be used to determine whether a person is inclined toward criminality or violent behavior?”

His question centered on violent behavior, but now we can replace the last phrase with many other possible scenarios. Can brain scans be used to determine how much pain a person feels? As the technology becomes more widespread, more courts will surely face this question. Pain assessments and pain scans have further to go before they become a precise and trusted method, but they’re on the way. It’s exciting and scary to think of the ways our brain activity might be interpreted in another ten years.

Resources

Primary

New England Journal of Medicine: An fMRI-Based Neurologic Signature of Physical Pain

Journal of Cognitive Neuroscience: The Seductive Allure of Neuroscience Explanations

Additional

NPR: Pain Really is All in Your Head and Emotion Controls Intensity

Telegraph: Saying ‘Ow’ Really Can Ease Pain

Slate: Neuroscientists: Mercenaries in the Courtroom

WebMD: MRI Shows People Feel Pain Differently

Wall Street Journal: Doctors’ Challenge: How Real is That Pain?

All Law: Two Ways to Calculate a Pain and Suffering Settlement

Brainfacts: Neurolaw: Neuroscience in the Courtroom

Duke: Proof and Evaluation of Pain and Suffering in Personal Injury Litigation

Nature: Neuroscience in court: The painful Truth

Ashley Bell

Ashley Bell communicates about health and wellness every day as a non-profit Program Manager. She has a Bachelor’s degree in Business and Economics from the College of William and Mary, and loves to investigate what changes in healthy policy and research might mean for the future. Contact Ashley at staff@LawStreetMedia.com.

The post Neuroscience in the Courtroom: Can We Measure Pain? appeared first on Law Street.

Once again, the fate of the Affordable Care Act–Obamacare–rests in the hands of the nine justices of the Supreme Court. This time, the case is called King v. Burwell, and today, on this rainy Wednesday, oral arguments began. The case itself serves as an argument for proofreading and very deliberate writing, given that most of the accomplishments made by the implementation of Obamacare pretty much hang on one word written into the law: “state.”

Here’s a quick summary: Obamacare requires everyone to have insurance, and for those who buy insurance from the Exchanges implemented by the law, subsidies are supposed to be provided. Now, some states didn’t set up their own exchanges but instead relied on the federal exchange. Which should be fine, except there’s this one little part of the law that says:

The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of—

(A) the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Actor

A very literal interpretation of this clause would make it seem like those subsidies only apply to those who get their insurance on the state exchanges. But the IRS went ahead and gave subsidies to those on the federal exchange anyway, mostly because the government is arguing that the law was intended to be chopped up like that.

To put it simply: we’re watching a Supreme Court case over the use of the word “state” when it maybe should have said “government” or another less descriptive word.

Anyway, it’s not that this is a traditional legal issue. It’s a political play masked as a lawsuit–Republicans don’t want Obamacare to survive, and this is yet another attempt to get the law rendered significantly less effective than it is now.

No one knows exactly what’s going to happen–while the argument itself seems relatively specious, justices’ political beliefs could play a part. Justice Anthony Kennedy, the perennial swing vote, and Chief Justice John G. Roberts, who wrote the decision in the last big Obamacare case, are both being viewed as potential defectors from the conservative side of the bench.

Protesters from both sides have shown up at the Supreme Court, despite a rainy morning. In fact, I saw people camped out there as early as midnight last night–awaiting the chance to make their opinions about America’s healthcare future known.

TOP’s Claudette w/daughters demanding #SCOTUS keep health care for 9.6 mill. Americans #KingvBurwell #DontTakeMyCare pic.twitter.com/Z6XZDiJ1WO

— TXOrganizingProject (@TXOrgProject) March 4, 2015

Good size turnout of happy patriots defending the Constitution. “KEEP THE IRS OUT OF MY HEALTH CARE!” #KingvBurwellpic.twitter.com/BlWccHjGvL

— Tea Party Patriots (@TPPatriots) March 4, 2015

In some ways the biggest question isn’t what the court will do–after all that’s out of everyone’s hands with the exception of the nine justices–but what will happen after King v. Burwell is decided. If it’s decided that people can’t, in fact, get subsidies from the IRS if they’re on the federal exchange, the federal government can’t really do anything.

So that leaves two possible groups who can act–the United States Congress, and the states that relied on the federal exchanges. Unfortunately, it’s relatively unlikely that either will act. The states that chose not to set up the exchanges in the first place often did so because they did not agree with Obamacare. Congress…well a Republican-controlled Congress, will certainly not amend the law to fix it.

The most recently floated possibility came in the form of an op-ed from Representatives John Kline (R-MN), Paul Ryan (R-WI), and Fred Upton (R-MI). Entitled “An Off-Ramp From Obamacare,” and published in the Wall Street Journal, Kline, Ryan, and Upton used heavy-handed car-wreck metaphors to describe an alternative to the subsidies should King v. Burwell find that the federal subsidies are not allowed. This new plan would allow states to opt-out of Obamacare’s mandates, both for the individuals and employers, and would give people tax breaks rather than subsidies to buy insurance.

That doesn’t seem that different, but there is a worrisome element to the plan put forth by Kline, Ryan, and Upton. And that is the idea that people can afford to purchase the insurance and then wait until tax time to recoup that money. For the millions of Americans who live paycheck to paycheck, that isn’t necessarily a possibility.

Let’s be honest here, this entire thing is a mess. The Supreme Court could go either way, and if it chooses to declare the subsidies null and void, there will be a lot of people struggling to figure out what that means for their health care. If that’s the case, there’s no guarantee that House Republicans will actually get their crap together to make this “off-ramp” a reality, and even if they do, there will still be a lot of problems. The future of Obamacare looks just as messy as its past.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post King v. Burwell: Win or Lose, the Newest ObamaCare Case is a Mess appeared first on Law Street.

After a long period of back and forth, political debate, and frustration, the proponents of net neutrality have won–for now, at least. The Federal Communications Commission (FCC) solidified net neutrality this week.

For those of you who have been ignoring the net neutrality debate for the past year or so–and I don’t blame you, it sounds way more boring than it is–net neutrality is essentially the principle that Internet Service Providers (ISPs) shouldn’t be able to dictate the prioritization of pages on the internet. The FCC, in a 3-2 vote, just confirmed that status quo with its decision, which don’t allow ISPs to dictate who gets to be in a “fast lane”–essentially have their pages load faster than others for a fee paid to the ISP, or block pages. The FCC ruling also allows the government to step in if it’s believed that the principles of net neutrality are being broken. As PC World summed it up, the decision will:

Reclassify fixed broadband lines under Title II of the Telecommunications Act. This turns ISPs and mobile broadband providers into public utilities.

This is truly great news, especially for the vast majority of Americans who rely on the equal treatment of internet sites for work, education, and just plain old fun. That being said, not everyone is happy. This is bad news for ISPs, which now don’t get to capitalize on the ability to charge different sites for the pleasure of fast lanes, as well as the politicians who receive money from those ISPs.

Verizon, for example, responded to the news with sarcasm akin to a particularly angsty teenage girl. The company put out a press release in typewriter font, made to look like a memo straight from a typewriter, and dated it 1934. This was an apparent reference to the fact that Verizon thought the FCC’s ruling seemed a bit outdated. The release opened with this classic line:

Today (Feb. 26) the Federal Communications Commission approved an order urged by President Obama that imposes rules on broadband Internet services that were written in the era of the steam locomotive and the telegraph.

Verizon didn’t just pout via typewriter font though–it also released the memo in Morse Code.

While Verizon was wandering around with its panties (I’m sorry, it’s 1934, so knickers) in a twist, other ISPs were gearing up for a fight as well. David Cohen, Comcast’s Executive Vice President, stated, “After today, the only ‘certainty’… is that we all face inevitable litigation and years of regulatory uncertainty,” clearly hinting at some sort of an impending lawsuit from the tech giant. AT&T had hinted at a similar future a few weeks ago when its lawyer Hank Hultquist wrote letters saying that the FCC’s rulings, if they were to protect net neutrality, wouldn’t hold up in court. The letters appeared to cite heavily from Supreme Court decisions on similar topics.

The rules will become official this summer, so if you’re following this whole mess, anticipate some interesting court battles at that point.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Net Neutrality Wins: What’s Next? appeared first on Law Street.

Supreme Court Justice Ruth Bader Ginsburg has been having one hell of a week. From one feminist-hero one-liner after another (totally agree, RBG, nine is just the right number of women on the bench) and admitting that she (like the rest of the rest of America) wasn’t “100 percent sober” when she nodded off at this year’s State of the Union, Notorious RBG continued to ride her own personal wave of awesomeness. Check out the slideshow below for the best legal tweets of the week dedicated to Justice Ginsburg.

[SlideDeck2 id=34411 ress=1]

Chelsey D. Goff

Chelsey D. Goff was formerly Chief People Officer at Law Street. She is a Granite State Native who holds a Master of Public Policy in Urban Policy from the George Washington University. She’s passionate about social justice issues, politics — especially those in First in the Nation New Hampshire — and all things Bravo. Contact Chelsey at staff@LawStreetMedia.com.

The post The Best Legal Tweets of the Week: Notorious RBG Edition appeared first on Law Street.

Justice Ruth Bader Ginsburg is pretty much the best. At 81, she’s cooler than I could ever hope to be. I would very much like to be her friend. Or she can be my mentor/life coach. Either way, you should all aspire to be friends with RGB too, and here are just a few of the reasons why.

She’d Be a Great Drinking Buddy

This article was inspired by the comments Ginsburg made yesterday about why she looked so sleepy at last month’s State of the Union.

RBG is my spirit animal MT @voxdotcom I wasn’t “100% sober” at the State of the Union http://t.co/dpXnb4gwPupic.twitter.com/jTbVqyBolE

— Erin K. Stabile (@erinkstabile) February 13, 2015

She explained that she wasn’t “100 percent” sober, after she had enjoyed a “very fine California wine” brought to dinner by fellow Justice Anthony Kennedy.

That’s right, kids, our Supreme Court Justices–at least two of the cool ones–pre-gamed the State of the Union.

She’d Motivate You to Work Out

I would like to point out again, RBG is 81 years old. That being said, she has been working out with a personal trainer since 1999. She explained her workout routine, saying :

I do a variety of weight-lifting, elliptical glider, stretching exercises, push-ups. And I do the Canadian Air Force exercises almost every day.

Although she had some health concerns in November, I bet she’s still prioritizing her health and hitting the gym. Meanwhile, I am 100 percent sure I could not do anything called “Canadian Air Force exercises,” so I could really use a work out buddy like RBG to kick my ass into gear.

She’d Definitely Be Down for a Galentine’s Day Party

When asked at what point Ginsburg believes there are enough women on the Supreme Court, she had an awesome answer: when there are nine. She went on to explain that there were nine men for many years, so why not try out nine women?

She’s long been a strong feminist who isn’t afraid to put her views out there. She also is aware of the fact that she’s an outlier from a generation where women weren’t necessarily given the same opportunities as men. She at one point remembered:

My mother told me two things constantly. One was to be a lady, and the other was to be independent. The study of law was unusual for women of my generation. For most girls growing up in the ’40s, the most important degree was not your B.A., but your M.R.S

I can’t think of a better role model for young women who want to pursue their dreams.

She Knows When to Put Differences Aside for the Sake of Friendship

RBG can teach us that just because you disagree with someone doesn’t mean that they don’t have something they can teach you. She and fellow justice Antonin Scalia are basically polar opposites when it comes to beliefs and views. That being said, they can put that all aside and still have a great time together. For many years they had a tradition of spending New Years Eve together along with their spouses. They’ve traveled together–once even riding an elephant together on a trip to India. Another time in France, she went parasailing, although Scalia sat that one out. Being friends with people who force you to defend your opinions and see things a different way is a good thing–Scalia and Ginsburg are absolutely proof of that.

If you can’t get enough of Scalia and Ginsburg’s friendship, there’s actually a one-act comedic opera dedicated to the two. This is the plot:

What happens when Supreme Court justices go before a Higher Power? In this comic opera, Justices Ginsburg and Scalia must pass through three cosmic trials to secure their freedom. The catch: they may have to agree on the Constitution.

Both Ginsburg and Scalia saw it, and liked it.

She’s Very Sassy and Quotable

RBG is well known for her expertly crafted decisions. In the recent Hobby Lobby case, her dissent was nothing short of withering. She called the decision one of “a startling breadth,” and ended with this pretty awesome last paragraph:

In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.

Or how about this quote in her dissent against the decision that gutted the Voting Rights Act:

Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

What a BAMF.

So there are a lot of reasons to love RBG, and I didn’t even mention her groundbreaking and brilliant legal career. Either way, she’s definitely a woman who should get a hell of a lot of respect, and if there’s anyone who should be allowed to drink wine and then fall asleep at the State of the Union, it’s her.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Five Reasons Why We Should All Want to Be BFFs With RBG appeared first on Law Street.

Happy almost Valentine’s Day, my lovelies!

How many of you are planning to spend this Saturday with your wonderful, Cupid-bestowed, significant others?

Awesome. All of the single people want to punch you lovebirds in the face.

But, despite the wave of existential dread this holiday brings to single people everywhere (#foreveralone, am I right?), SCOTUS seems to be in a weirdly lovey mood. In what can only be interpreted as an early Valentine’s Day gift to coupled-up gay people nationwide, SCOTUS dropped a solid hint on Monday that it’ll be making gay marriage a nationwide reality soon.

Early Monday morning, SCOTUS refused to extend the stay on a lower court’s decision that declared Alabama’s ban on gay marriages unconstitutional. Basically, that means that SCOTUS is allowing gay marriages to happen in Alabama right now, despite the fact that the constitutionality of state-level gay marriage bans isn’t on deck to be decided upon until later this summer.

Folks, this is a big fucking deal for gay marriage.

The validity of state-level gay marriage bans are currently under SCOTUS’ consideration, and it’s uncertain which way the court will rule. Will SCOTUS decide that individual states totally have the right to ban gay marriage? Will it decide that that’s bullshit, and all of the states have to allow marriages of all people, regardless of the couple’s gender pairing?

Basically, until this summer, the answer on that is TBD.

With that understanding, SCOTUS could do well to allow states that currently have gay marriage bans to continue on with their marriage banning. If these states were forced to allow gay marriages during this current limbo period—and if SCOTUS ultimately decided that state level marriage bans were A-OK—then a whole mess of married couples would suddenly find themselves in a legal quagmire.

So, why create all that mess? It would make more sense to wait until the decision is final, and then marriages can proceed or not, depending on the official decree.

But that’s the opposite of what SCOTUS did on Monday morning!

The justices ruled, without further comment, that the federal district court in Alabama’s ruling could go forth, allowing thousands of gay couples in the state to get married.

Why would SCOTUS do that if it was planning to uphold the constitutionality of gay marriage bans this summer?

Monday’s decision strongly suggests that, come summertime, SCOTUS will rule that state-level gay marriage bans are unconstitutional, and unfettered gay marriage will reign throughout the land.

I’m really hoping that decision comes through in time for Gay Pride. Can you imagine the parties? GOOD LORD. I’m already excited.

For marriage equality advocates across the nation, SCOTUS’ decision Monday morning comes as a welcome victory. Gays in Alabama are happily marrying, and most likely, all of the gays in all of the states will be able to follow suit very soon.

Hurray for all the gay couples who want to get married, for lots of totally valid reasons! Tax benefits, inheritance, hospital visitation rights, health insurance sharing, co-parenting and custody benefits, and citizen sponsorship are just a few of the myriad benefits that legal marriage affords to couples. Signing your name on that dotted line is a huge deal for a lot of people, and it’s a right that tons of people—many of whom I personally know and love—are fighting really hard to secure.

However.

Let’s not forget that marriage is a discriminatory and problematic institution. It’s not the magical cure-all for the LGBT community’s marginalization and disenfranchisement. It’s not even the most pressing issue on our list of things to fix, despite what organizations like the HRC and Lambda Legal might have you believe.

Violence, poverty, unemployment, criminalization, and homelessness are all issues that are—or should be—more highly prioritized on the docket of LGBT issues than gay marriage. Because let’s face it—while well-to-do gay couples are busy planning their weddings, queer youth of color are dying in the streets.

Literally. I’m not exaggerating. Nearly half of the homeless population is comprised of LGBT kids. Trans women of color are getting murdered left and right. This shit is real.

So, while I’m totally enthused about SCOTUS’ hat tip this week in favor of the gay marriage fight, I’m not waving the rainbow flag of victory just yet. No matter which way their final decision goes this summer, we’ll still have a lot more work to do before the queer community can live safely and equitably in American society.

So Happy Valentine’s Day, lovelies! You might be able to get married soon. And then, after your wedding bells have died down, we’ll all have to keep working towards real justice.

Hannah R. Winsten

Hannah R. Winsten is a freelance copywriter, marketing consultant, and blogger living in New York’s sixth borough. She hates tweeting but does it anyway. She aspires to be the next Rachel Maddow. Contact Hannah at staff@LawStreetMedia.com.

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As more and more young people become interested in what is going on in the Supreme Court, there has been a call for cameras to be allowed inside the deliberations. With an especially important verdict on gay marriage rights for all 50 states coming in April, as well as many other heavy decisions, it seems like there’s no time like the present to install cameras in the hallowed halls’ however, two justices–Elena Kagan and Sonia Sotomayor–recently spoke against the move, making it unclear if the American people will ever have a glimpse into the court’s proceedings.

There is such transparency for some courts and cases–especially those involving celebrities and high-profile individuals. A group of media and legal organizations have joined together to form an organization called the Coalition for Court Transparency, and it petitioned Chief Justice John Roberts to start televising the arguments occurring in the nation’s capital. His response? “There are no plans to change the Court’s current practices.”

Throughout the last two decades or so, the justices have given many different reasons for banning cameras inside of the courtroom, including: cameras will encourage “showy” testimonials, the media will use embarrassing sound bites, or that people will misunderstand and judge without looking into the details; however, there are some who speak of the importance of having some transparency within the Supreme Court because it would encourage Americans to learn more about their judicial system: “There’s a real hunger out there from people to know more about the Supreme Court and the justices,” said Ariane de Vogue, Supreme Court correspondent for ABC News. “I think it would be a marvelous educational opportunity.”

Read on to learn about the considerations that must be taken into account during the debate over whether or not to put cameras in the Supreme Court.

Why should we break tradition?

The Supreme Court stands virtually alone when it comes to cameras inside the courtroom. States make their own rules when it comes to this issue, but many do allow them–as do the highest courts in some nations. Some states even livestream proceedings.

Jerry Goldman, director of the Oyez Project at the Chicago-Kent College of Law at the Illinois Institute of Technology says that the Supreme Court is simply behind the times and always will be unless there is some new blood within its walls: “It’s just uncomfortable with change,” said Goldman, whose website catalogs oral argument audio. “They’re always in the caboose.”

Another professor, Sonja West from the University of Georgia School of Law, sees it a different way: the Supreme Court Justices fear breaking something that already works well, afraid what such a monumental change will bring: “They feel very much like the guardians of a very important institution,” said West, who wrote about the Court’s camera policy in the Brigham Young University Law Review. West also says that the Court is so staunchly traditional because of the respect that shroud of secrecy gives–and respect is a main source of power.

Yet another professor, this one of Constitutional Law at Georgia State, Eric Segall, argues that because the justices are government officials, they should not have the choice of whether or not to be transparent. He suggests that the Court should have the burden of proving why cameras should not be allowed, and not the other way around. “This is a public hearing,” Segall said. “It’s open to the public. It’s material. It’s relevant, and people want to televise it. We should be allowed to see it.”

“We have three branches of government,” Dahlia Lithwick, who covers the Supreme Court for Slate, said about camera access. “Two of them are totally transparent, and one of them is completely secret, and that’s a problem.”

Why might the Supreme Court not want cameras?

There have been a few arguments made repeatedly by the Supreme Court justices and those who support them in their calls for privacy. Each one has reasons why it’s a good idea to retain some mystery, but there are also reasons why the need for transparency may overcome the possible adverse effects.

The Public Will Misunderstand What is Going On

Justices have traditionally opposed cameras because people will not understand the role of oral arguments and will jump to conclusions and “root” for an outcome of the case. Justice Scalia has even gone on record to say that the complexity and interworking of the law “is why the University of Chicago Law Review is not sold at a 7-Eleven.”

Sotomayor told a reporter that arguments should not be televised in part because most viewers “don’t take the time to appreciate what the Court is doing.”

However, to some, this view has it backward. Broadcasts of arguments would help the public learn about the Court’s operations, according to Segall. “The more we see Justice [Antonin] Scalia being obnoxious, the more we see Justice [Anthony] Kennedy acting like a law professor, the more we see Justice [Clarence] Thomas sitting there and doing nothing, the more we have insight into the people who work for us.”

Still, there is a chance that people will misunderstand what is happening with the Supreme Court. The Supreme Court has always had problems when it comes to public opinion with consistent periods of low approval ratings, it is easy to see why that could be a fear. A simple misunderstanding could create mistrust between the public and the Court, undermining their effectiveness.

Even for those who are college educated, law isn’t typically a mandatory course like math or even political science. It will be difficult for the general public to grasp some of what is happening within the Supreme Court.

Picking and Choosing

Justices have also feared that putting video cameras into the proceedings will allows journalists to take quotes from the hearing and use them as sound bites for laughs and shock.

Kennedy once said he does not want the Court to become part of “the national entertainment network.”

And Scalia told the Senate Judiciary Committee, “[F]or every ten people who sat through our proceedings gavel to gavel, there would be 10,000 who would see nothing but a thirty-second takeout from one of the proceedings, which I guarantee you would not be representative of what we do.”

Pretty much every news network uses videos of politicians in order to prove points–and taking things out of context seems to be the norm. So, is there something to be said about fearing the editing process? Of course–as with anything. However, it will be up to the journalist to uphold ethics when reporting the news. What comes out of the mouths of the Justices isn’t always how they truly feel or how they want the case to go. Any footage that is taken from the proceedings will have to be taken with a grain of salt.

Cameras and Audio

In addition to video imaging from within the Supreme Court, there has also been a ban on audio recording from within the chambers. In the past, audio recordings have been doctored and then misreported by news outlets, leading to headaches. That has slackened some, and audio recordings are now available after the verdict has been announced. Sometimes they will release same-day audio for high-profile cases, but this is extremely rare.

Notably, one can still get same-day written transcripts of the oral arguments and opinion announcements; however, these do not take things like tone and delivery into consideration. The Justices have learned to choose their words wisely so that they do not come across wrong on paper.

Sotomayor discussed the problems with all reporting to The New York Times, saying:

I don’t think most viewers take the time to actually delve into either the briefs or the legal arguments to appreciate what the court is doing,” she said. “They speculate about, oh, the judge favors this point rather than that point. Very few of them understand what the process is, which is to play devil’s advocate.

It obviously took a while to get to the point where audio recordings are allowed as well, and it might seem like they’re pretty much the same thing as video recordings; however, they’re probably less likely to be mass-distributed on platforms such as news shows, and therefore, less likely to be misconstrued.

Performance Issues

There are also concerns that if cameras are brought into the Supreme Court, the advocates will pander to them. Instead of focusing on the merit of their arguments, they will try to be more convincing and flashy. That being said, that worry gives very little credit to the attorneys arguing the cases–their arguments would still be what the Supreme Court decided on, so there would be little value in creating a performance for outside audiences.

Conclusion

Putting cameras in the Supreme Court is going to take some work from everyone involved. It isn’t going to be something that can have a seamless transition and just happen overnight. Instead, it is something that journalists, viewers, lawyers, and justices will have to come to terms with, and change their behaviors accordingly.

Whatever the change is, there needs to be more transparency in a system that is broken. The Coalition for Court Transparency claims:

Currently, to attend Supreme Court hearings, individuals must stand in line outside the building and wait to be ushered in. There are roughly 400 seats in the courtroom, only a fraction of which are available to the public. That means countless Americans hoping to view the arguments are unable to, especially in cases that have broad public interest, such as the marriage equality, Obamacare, voting rights, and affirmative action cases in recent terms. For these types of cases, interested citizens must often line up hours, if not days, in advance of the arguments. In some instances they have to compete with “line-standers” whose employers have been paid thousands of dollars to hold a powerful or wealthy person’s place in line.

Stay tuned for the next few months as the changes are sure to come quickly.

Resources

Primary

Oyez Project: Latest 

Supreme Court: Transcripts and Recordings of Oral Arguments

Additional 

BYU Law Review: The Monster in the Courtroom

Slate: Amicus: Cameras in the Courtroom

Open SCOTUS: Coalition Letter

Reporters Committee for Freedom of the Press: Holding Out Against Cameras at the Supreme Court

National Constitution Center: Justices’ Comments Cast More Doubts on Supreme Court Cameras 

USA Today: Justices Rock it on the Road, If You Can Find Them

Blaze: New Push to Get Video Cameras in Supreme Court

NPR: Once Under Wraps, Supreme Court Audio Trove Now Online

Slate: Punch and Judge Judy

Tampa Bay Times: Sotomayor No Longer Favors Video Cameras at Supreme Court

CNN: Supreme Court Agrees to Take on Same-Sex Marriage Issue

Slate: Supreme Court Justices Are Not Really Judges

Daily Signal: Public Opinion and the Supreme Court

Noel Diem

Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.

The post Televised Trials: Should Cameras Be Allowed in the Supreme Court? appeared first on Law Street.

The 2015 recipients of the MacArthur Foundation’s grants have been announced. The MacArthur Foundation supports nonprofits that seek to make a difference in the world, particularly in the fields of human rights, conservation, security, aid to children, and technology. This year, the foundation gave grants to nine different nonprofits, ranging from $350,000 to $1 million. Some of these organizations have the potential to have notable effects on the law and policy fields for years to come. One of the groups chosen is called iCivics, and it was actually founded by a familiar face–former Supreme Court Justice Sandra Day O’Connor.

The online iCivics program aims to teach American children about our history and government in a fun, interactive way–games. The site also includes lesson plans. The goal is to get as many teachers in as many classrooms as possible using it to teach students about civics. O’Connor explained the importance of a civics education in a 2012 Washington Post interview, stating:

In over half the states in the union, civics education is not required. The only reason we have public school education in America is because in the early days of the country, our leaders thought we had to teach our young generation about citizenship … that obligation never ends. If we don’t take every generation of young people and make sure they understand that they are an essential part of government, we won’t survive. We don’t teach our own kids. It’s insane.

The site has been a pretty instant success; despite being around for just over five years, operating with an annual budget of under $2 million, and having fewer than ten employees, more than half of the middle school social studies teachers in the U.S. have signed up to use it. The MacArthur Grant will send an influx of another $750,000 of cash into iCivics‘ account, and the group is planning on using it to open up another office in Boston, as well as pay for other necessary costs to continue doing innovative and creative work.

I checked out the website, and it’s pretty easy to see how iCivics has been such a success. Games include “Supreme Decision” where the student gets to help decide the Supreme Court’s decision on a case that seems to mirror landmark Supreme Court case Tinker v. Des Moines. In order to give students a view of the court on all sides though, there’s also “Argument Wars” where you argue Supreme Court cases against another “lawyer.” There’s a whole list of cases from which to choose.

The iCivics games aren’t just limited to the judicial branch. In “Executive Command” the player gets to be the President for four years. “Represent Me” allows a student to role play as a legislator attempting to interact with constituents. “Branches of Power” allows you to control all the branches of the government. Each of the games have different goals and achievements to be unlocked as well, some of which require students to look at various issues from two or more sides.

Although my memories of middle school civics are hazy, I certainly could imagine these games being a great way to teach young people who might otherwise find history and government studies boring. The games look like a lot of fun to play (I may or may not have seriously contemplated making an account and trying one out). Most importantly, the fact that they are free online allow pretty much any teacher to access them.

The MacArthur Grants are a great program, and they chose to honor many amazing nonprofits. Kudos to the Foundation for the work it does, and it’s great to see O’Connor’s innovative legacy receive another push forward.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Sandra Day O’Connor’s Startup Chosen for MacArthur Grant appeared first on Law Street.

From the Super Bowl to Notorious RBG, you had a ton to say on Twitter this week. My personal favorite? One lawyer weighing in on a client’s past finding legal representation on CraigsList. (Spoiler alert: didn’t work.) Check out the best legal tweets of the week in the slideshow below.

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Chelsey D. Goff

Chelsey D. Goff was formerly Chief People Officer at Law Street. She is a Granite State Native who holds a Master of Public Policy in Urban Policy from the George Washington University. She’s passionate about social justice issues, politics — especially those in First in the Nation New Hampshire — and all things Bravo. Contact Chelsey at staff@LawStreetMedia.com.

The post The Best Legal Tweets of the Week appeared first on Law Street.

Congratulations on making it through Snowmageddon and another week of work. If you’re like any of the lawyers in this week’s slideshow, you earned your vacation. Check out the latest selections of the best legal tweets of the week below.

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Chelsey D. Goff

Chelsey D. Goff was formerly Chief People Officer at Law Street. She is a Granite State Native who holds a Master of Public Policy in Urban Policy from the George Washington University. She’s passionate about social justice issues, politics — especially those in First in the Nation New Hampshire — and all things Bravo. Contact Chelsey at staff@LawStreetMedia.com.

The post Legal Tweets of the Week appeared first on Law Street.

The Supreme Court saw an unusual and unexpected moment of chaos yesterday when protesters interrupted Chief Justice John G. Roberts’ announcement of opinions. There were only seven of them but they made quite a ruckus. Right as Roberts began speaking, one yelled, “We are the 99 percent.” Others yelled demands such as “one person, one vote.” Eventually, they were escorted out of the chamber. The group taking credit for the protest is 99Rise and they were arguing against the 2010 Citizens United decision that ushered in a whole new era in the way that politics and money interact. Today was the fifth anniversary of that historic decision.

The seven people escorted out of the chamber have also been charged with violating a law by making “a harangue or oration, or utter[ing] loud, threatening, or abusive language in the Supreme Court Building,” among other charges. An eighth individual was also slapped with conspiracy-related charges but it’s unclear how he or she was involved.

99Rise has now dubbed them the “Supreme Court 7.” They appear to be a grassroots-type organization that seeks to take the influence of big money and corporations out of politics. Their website outlines the group’s main goals as the following:

We thus seek a Constitutional Amendment and supplemental federal legislation that would guarantee the principle of political equality, as well as ensure that neither private wealth nor corporate privilege could be used to exercise undue influence over elections and policymaking. To this end, we are committed to deploying the most powerful tool of social and political change: strategic nonviolent resistance.

Despite the splash that the protesters made in the media with their actions, not everyone was that impressed. According to ScotusBlog, Roberts muttered “Oh, please” while all the chaos was going on.

After the protesters were taken out of the chamber, the justices continued with business as usual. One of the more closely followed cases of this term–Holt v. Hobbs–was decided. SCOTUS unanimously decided that Gregory Holt, a Muslim prisoner in Arkansas, should be allowed to grow a short beard in accordance with his religious beliefs.

Regardless of what happened in the Holt v. Hobbs case, however, the protesters ended up being a bigger news story. It’s rare that people interrupt government procedure like they did today, particularly in somewhere as stoic as the Supreme Court.

From an actual goal-oriented perspective, 99Rise’s choice to interrupt the Supreme Court doesn’t make that much sense. While it obviously handed down the Citizens United decision, it has no ability to enact the type of reform, like an amendment, that 99Rise ostensibly is looking for. That being said, from a public relations standpoint, it made total sense. A relatively unknown group got the chance to brand itself, put its message out there, and create martyrs out of its seven members who were arrested.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Protesters Interrupt SCOTUS Over Campaign Finance appeared first on Law Street.

It’s a new year, and I for one am excited to see what it will bring. No matter what, there will definitely be a lot of legal issues to discuss, debate, and bring changes to all of our lives. The five cases below are the top five to watch in 2015; some have already appeared before SCOTUS and await decisions in 2015, while others will be heard throughout the year. Here are five fascinating Supreme Court cases to watch in 2015.

Anthony Elonis v. United States

Law Street has actually been covering this interesting case for a while–check out our coverage of the case, the University of Virginia law clinic that’s gotten involved, and the all the legalese behind it. The reason we’ve followed it so closely is because it really is fascinating. Anthony Elonis was convicted of threatening multiple people, including his wife, an FBI agent, the police, and a kindergarten class. But these weren’t threats in the classical sense. They were written on his Facebook page in the form of rap lyrics. He claims the posts are art, protected under the First Amendment, and that he never intended to hurt anyone. It will be up to the Supreme Court to decide if such intent needs to be shown when convicting someone of making threats. The case was heard on December 1, 2014, but the court has yet to rule.

King v. Burwell

In King v. Burwell, SCOTUS will yet again be asked to weigh the Affordable Care Act. This time, it’s all about the tax subsidies, and weirdly, the central question in really depends on one word: “state.” The way that the ACA reads, in order for an individual to qualify for a tax subsidy, he needs to be receiving healthcare “through an exchange established by the state.” So, can people residing in states that haven’t set up their own exchanges, but instead rely on the federal program, get those tax subsidies? The IRS certainly thinks so and has been granting the subsidies. It’s an argument based pretty much on semantics, but it could have a huge effect on the ACA itself. This case will be heard in March.

Peggy Young v. United Parcel Service 

This case will ask the Supreme Court to weigh in on how pregnant employees are treated. Peggy Young, formerly a delivery driver for UPS, is arguing that the company violated the Pregnancy Discrimination Act (PDA). The PDA says that pregnant workers should be treated the same as any other worker who is “similar in their ability or inability to work.” Young and her lawyers argue that other employees who sustain temporary injuries or something of the like are moved to other positions, while she was forced to take unpaid leave. UPS claims that those other workers are given different jobs based on policies that don’t apply to Young, and she was treated the same as she would have been had she sustained an injury out of work. It will be up to the Supreme Court to decide who’s in the right here. The case was just heard in December 2014; an opinion is forthcoming.

Holt v. Hobbs

Holt v. Hobbs will require the justices to look into prison procedures that prevent inmates from growing a beard in Arkansas. The plaintiff, Gregory Holt, wants to be able to grow a half-inch beard in accordance with his Muslim faith. The state is arguing that it could be used to smuggle drugs or other contraband. SCOTUS will have to rule on whether or not those prison procedures violate the Religious Land Use and Institutionalized Persons Act (RLUIPA). The question that the justices will consider is whether or not there’s a compelling enough government interest to prevent Holt from expressing his religion. The case was heard in October 2014; the opinion will be issued this year.

Alabama Legislative Black Caucus v. Alabama

This case centers on the practice of gerrymandering. The justices will have to decide whether or not it was illegal for Alabama to redraw the districts in 2012 after the Census in a way that packed black voters into particular districts. The Alabama Black Caucus says that it relied too much on race when drawing those districts. While partisan gerrymandering is usually legal, racial gerrymandering is not–so the justices will have to decide which actually happened here. This case was heard in November 2014; the opinion is expected in the coming months.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post SCOTUS Cases to Watch in 2015 appeared first on Law Street.

There were a lot of big news stories this year, from the Olympics in early 2014 to the ongoing Sony hack. Read on to learn about the top 15 news stories of 2014.

1. The Winter Olympics: $how Me the $ochi

Image courtesy of Atos via Flickr

The 2014 Olympics were hosted in Sochi, Russia, this winter, and the entire event was marked by controversy after controversy. The Russians were chosen to host the Olympics because of an impressive, expensive bid to the International Olympic Committee (IOC). However, the chaos of the 2014 Games left many wondering whether or not cash should be the deciding factor in the selection process.

2. Malaysian Airplane Crash: Who’s Liable?

Image courtesy of abdallahh via Flickr

In March, the world watched as a Malaysian Airlines flight disappeared, and many families were left devastated. It was a horrifying tragedy, but many were wondering who was to blame for the catastrophe, or more appropriately, who was liable? Given that much is still unknown about the crash, the legal questions are far from being answered.

3. Punishing Donald Sterling Is About to Get a Lot Harder

Image courtesy of Michael via Flickr

Clippers owner Donald Sterling came under fire after an audio recording of him making racist statements came to light. NBA Commissioner Adam Silver levied a notable punishment against Donald Sterling. However, given the unprecedented level of punishment, there were significant legal concerns.

4. An Open Letter to Shailene Woodley: What Every Not-a-Feminist Needs to Hear 

Image courtesy of Red Carpet Report on Mingle Media Tv

One of the most talked about stars of 2014 was Shailene Woodley–she starred in films such as Divergent and The Fault in Our Stars. However, she also made headlines for a less flattering reason–for saying that she wasn’t a feminist. Unfortunately, she had the definition of feminism wrong.

Answer Emma Watson’s Call for Gender Equality

Image courtesy of EyesonFire89 via Flickr

However, another movie starlet, Emma Watson of Harry Potter fame, gave an amazing speech this year about the importance of feminism and equality. Unlike Woodley, her definition of feminism was spot-on, and she made a great appeal.

5. SCOTUS Steps Up Amid Execution Controversy

Image courtesy of [Ken Piorkowski via Flickr]

6. Trigger Warnings Creep Off the Web and Into the Classroom

Image courtesy of OpenClips via Pixabay

Trigger warnings are a common sight on websites, in order to alert readers to content they may find troubling. However, trigger warnings started to make their way off the internet and possibly onto college syllabi. That change has led to concerns that trigger warnings may end up creating optional content in college courses.

7. The Dark Side of the World Cup: Corruption, Bribery, and Civil Unrest

Image courtesy of Amil Delic via Flickr

This summer, the world watched as the 2014 World Cup took place in Brazil. But, much like the 2014 Olympic Games, the World Cup had problems with corruption, lack of organization, and bribing scandals. Not only was the World Cup an interesting look into the the politics of Brazil, but it says a lot about what may happen at the 2022 World Cup in Qatar.

Oh, and that guy who bit another player: The People vs. Luis Suarez

Image courtesy of [George via Flickr]

8. The Senate Torture Report: Government Infighting Over Release

Image courtesy of Justin Norman via Flickr

The Senate torture report was finally released a few weeks ago, but there was a lot of infighting prior to the release. Major players included the U.S. Senate, particularly the Senate Intelligence Committee, the CIA, and the White House.

9. We Should All be Upset About What’s Going on in Ferguson: Here’s Why

Image courtesy of Elvert Barnes via Flickr

In early August, a young man named Michael Brown was killed in Ferguson, Missouri, by Officer Darren Wilson. The following weeks led to protests over a few different topics, including police militarization, racial profiling, and First Amendment issues.

10. Ebola and America’s Fears

Image courtesy of CDC Global via Flickr

This year, Ebola has killed thousands in Western Africa, particularly in Liberia, Sierra Leone, and Guinea. Globalization and international travel led to a case making it to the United States, sparking fear around the nation.

11. Strikes Against ISIS in Syria: Shaky Ground for Obama Administration

Image courtesy of Official US Navy Page via Flickr

The U.S. has been waging war against ISIS since it emerged in Syria and Iraq. Early this fall, the U.S. and some Middle Eastern allies bombed ISIS. Like any international action, the U.S. needed to be able to legally justify their actions, but that may be easier said than done.

12. The Washington Redskins: What’s Next in the Name Debate?

Image courtesy of Keith Allison via Flickr

The Washington D.C. NFL team is called the “Redskins,” a name that has received ire for its offensive origin. Journalists have begun to refer to the team by almost any other name, and this summer the US Patent office cancelled the team’s trademark. Whether or not the name will ever be changed remains to be seen.

13. The CIA: How to Get Away With Torture

Image courtesy of takomabibelot via Flickr

That Senate Intelligence torture report was finally released, and it was a disturbing revelation into the practices of the CIA. However, despite the fact that torture is illegal internationally, it’s doubtful that the U.S. will ever see any legal ramifications.

14. Australian Hostage Situation Ends: A Community Stands Together

Image courtesy of Corey Leopold via Flickr

Earlier this month, there was a horrifying hostage situation in Sydney, Australia. But the aftermath was heartening, as Australians banded together to show the world that the actions of one mad man does not justify discrimination on a wide scale.

Australians School the World on How To Not Be Racist

Image courtesy of Chris Beckett via Flickr

Here’s a further look into the amazing Australian compassion after the Sydney hostage situation. The hashtag #IllRideWithYou was created, in order to provide support for the Australian Muslim community. Citizens of Sydney offered company to Australian Muslims who needed to travel on public transportation without fear of discrimination.

15. Disturbing New Developments in the Continuing Sony Hacking Scandal

Image courtesy of The City Project via Flickr

One of the biggest stories of the end of 2014 was the Sony Hacking scandal, when a hacking group called the Guardians of Peace (GOP) made its way into Sony’s computer system. The story escalated quickly, as the hacking group demanded that a movie called The Interview not be released, or drastic action would be taken.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post ICYMI: Top 15 Top News Stories of 2014 appeared first on Law Street.

The Supreme Court has agreed to look at an interesting First Amendment question–can those silly vanity license plates that a lot of people have be considered protected free speech? SCOTUS will hear Walker vs. Texas Division, Sons of Confederate Veterans, Inc in the spring.

The case came from Texas, where an organization called the Sons of Confederate Veterans requested a specialty plate. The license plate included a Confederate flag, as well as text of the group’s name. The Texas DMV considered the request, and eventually decided to reject it because:

A significant portion of the public associate the Confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.

There are two questions here–are license plates a form of free speech? And if so, whose free speech?

The reason those two questions are both so tantamount is because if license plates are a form of free speech, but that speech is the state’s, the state can reject an offensive license plate request because it doesn’t want to be portrayed that way. However, if the license plates can be considered the free speech of the people who are displaying them on their cars, it’s a different matter altogether.

There’s some precedent to suggest that license plates are government speech, not citizens’. After all, a DMV can choose to reject a license plate request if it’s lewd or inappropriate. That being said, there’s some precedent to show the opposite is true as well. In 1976, there was a Supreme Court case called Wooley v. Maynard. If you’ve ever seen a New Hampshire license plate, it prominently features the state’s motto: “Live Free or Die,” a throwback to Revolutionary War times. A man named George Maynard, who was a Jehovah’s Witness, objected to being required to display the motto because it stood contrary to his religious beliefs. He obscured it, despite the fact that was against the law. The case was appealed all the way to SCOTUS, who ruled that New Hampshire couldn’t require citizens to display the motto if it stood contrary to their beliefs.

There’s another case this year dealing with free speech and license plates that’s sort of intertwined. It’s called Berger v. ACLU and it originated in North Carolina. It regarded whether or not North Carolina could issue “Choose Life” license plates, as requested by a pro-life group, without similarly offering a comparable pro-choice plate. That was where the case was left, and while the Supreme Court took no action on it right now, it may be decided along with the Texas case. Either way, whatever the Supreme Court decides could have a big impact on those vanity plates we all see so often–and not necessarily in a good way.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Is Your Vanity Plate a Form of Free Speech? appeared first on Law Street.

Freedom of speech is one of our rights in the United States, and it is guaranteed by the First Amendment. So it is hard to believe that something like social media that a majority of us use every day, could be the exception to the rule that we can say what we want to say without fear of backlash. In general, there are exceptions that prevent hate speech, defamation, and threats. Some of these aren’t legal, just frowned upon by the society at large, while others can get someone in trouble. Social media sites allow for the spread of all types of speech, from spoken word pieces on sites like YouTube, to shorter phrases said in 140 characters on Twitter. The publication of negative speech has some positive and negative consequences. We’ve seen them play out in the last few years with events in Ferguson, the Occupy Wall Street movement, and every major election.

It is difficult, however, to choose which pieces of speech are worthy of protection from action and which can be used against someone in legal proceedings. Not everything said on social media can be taken at face value. What one person deems as offensive and disturbing may incite a different emotion in another person. Striking a balance between unfiltered free speech, political correctness, and censorship is difficult. Censoring what is allowed on social media may seem like it goes against our Constitutional Rights, but allowing a free-for-all on speech can lead to threats, bullying, and hate speech.

Social Media’s Impact

Speech is not, nor has it ever been, a completely good vs. evil situation. There is so much more behind a string of text than just the literal meaning of the words. This is what makes it so difficult to decide who and what has a right to be on social media sites like Twitter, Facebook, and Tumblr. Some countries, like North Korea, Iran, China, Pakistan, and Turkey, have completely blocked their citizens’ access to social media sites as a way to ward off the problem. They operate under the theory that if you take away the cause, you won’t have to worry about it.

Many websites and apps do have “report” features so that a user can alert the webmasters that something has gone wrong. This begs the question, if someone says something terrible on social media, and it is reported but nothing happens, who is responsible for the fall out? It’s an increasingly important topic across the world; this isn’t just limited to the United States.

City of Ontario, California, et al v. Quon, et al

In 2009, the Supreme Court of California heard a case that discussed the rights to free speech in text messaging between employees. Employees of the City of Ontario, California filed a claim in district court against the police department, city, chief of police, and an internal affairs officer. They believed that their Fourth Amendment rights were violated when their text messages on city-issued pagers were reviewed. The city did not have a text-messaging policy; however, it did have a general “Computer Usage, Internet, and E-mail” policy. Those employees felt as if that particular section did not cover their pagers. The court held that the city employees had a right to privacy in their text messages because there was no specific language about text messaging in the city’s policy.

This, along with several other cases about Cloud privacy has prompted many to ask the question: are Supreme Court justices too out of the loop to fully understand the severity of the problem? Most–though admittedly not all–Justices don’t interact with social media to a great extent. Perhaps one or two may have a Twitter account, but those are often controlled by members of their team. President Obama, who is largely considered more modern with technology, is the first sitting President to have a Twitter account, but there are questions about just who actually runs it.

 Anthony Elonis v. United States

This case concerns a Pennsylvania man, Anthony Elonis, and his post of violence-filled rap lyrics aimed toward his ex-wife. He didn’t use his own name, but rather the pseudonym Tone Dougie. His rap suggested that he should use his wife’s “head on a stick” in his Halloween costume. He used images that haunt the public mind, saying that he was going to terrorize a school as “Hell hath no fury like a crazy man in a kindergarten class.” Some of the other lyrics were extremely troubling:

There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut.

He also rapped about killing federal agents. Tara Elonis, his ex-wife, felt threatened by the song. The court had to judge “whether the threatening speaker intended to harm anyone or whether the listener was genuinely afraid of being harmed.” Nancy Leong pointed out in the Huffington Post that, “because the Internet filters out voice and demeanor cues, online statements provide less information about the seriousness of the statement, and are thus more likely to be reasonably interpreted as threats.“

Elonis didn’t seem to be too upset at first, posting on Facebook: “Did you know that it’s illegal for me to say I want to kill my wife? It’s illegal. It’s indirect criminal contempt … I also found out it’s incredibly illegal, extremely illegal, to go on Facebook and say something like the best place to fire a mortar launcher at her house would be the cornfield behind it …”

The case is ongoing and it has incited intense emotions from both sides of the fence.

The Good

What are the benefits of having freedom of expression on social media? Surely, it is a way for some people to vent their anger without feeling self-conscious, nervous, or upset without resorting to violent actions. Everyone has a right to say what they think. We’ll never know, thankfully, if Elonis would have followed through on the threats in his rap.

Retweets, liking, or even posting your own status can be as effective as screaming at the top of your lungs at a protest. Lately, Facebook has been full of posts that educated everyone on topics relating to racism and the plight of African Americans in modern day America. There are always a few feminist pieces floating around. LGBTQ statuses, articles, and debate appear often, as well. Looking into the comments of these pieces, it is easy to see a cross section of what people believe about the topic. After all, the best way to argue for something is to know why people are arguing against it.

Social media has also become a home to those people who post positive things about topics from body-positive Instagram campaigns to equal media representation groups on Tumblr.

The Bad

To quote Uncle Ben from Spiderman: With great power, comes great responsibility. Unfortunately, many people do not understand their responsibility to fellow man. People who don’t believe in the status quo (or those who believe in the previous status quo that is now shifting to another) can stir up some pretty harsh feelings. People have the right to believe whatever they want, but these more extreme views on politics, racism, sexism, and homosexuality can start verbal sparring matches that help no one.

People have been using social media to post threats that haven’t been taken seriously for years. Stricter online controls would help alert the authorities in some cases, and even protect the innocent. Social media can be used for internet bullying, which in some cases is worse than the traditional verbal bullying. Online gossiping and social media platforms allow the bullying to continually exist–a problem for both the bully and the bullied.

Conclusion

Social media is one of the best inventions of the last century. It allows us to stay in contact with people we would have left behind, and it allows us to preserve our memories in a time capsule. However, it can also make or break a person depending on how someone reacts. Truthfully, the problem isn’t a freedom of speech issue, but rather one of morality. Can we take morals and apply them to the virtual world?

Resources

Primary

Supreme Court: City of Ontario, California, et al v. Quon et al

Constitution: First Amendment

Constitution: Fourth Amendment

Additional

Slate: Are Facebook Threats Real?

Huffington Post: Constitutional Rights in the Digital Age

The New York Times: Do Online Death Threats Count as Free Speech?

Salon: The Supreme Court’s baffling tech illiteracy is becoming a problem

Business Insider: This Guy’s Facebook Rants Put Him In Prison, And The Supreme Court Will Hear His Case Today

Truth Out: This Time, “Free Speech” Cannot Prevail

ABA: United States v. Anthony Elonis – Third Circuit

Index on Censorship: 10 Countries that have Social Media Banned

The New York Times: Chief Justice Samples Eminem in Online Threats Case

First Amendment Center: Social Networking

Bloomberg: The 8 Most Important Cases in the New Supreme Court Term

Noel Diem

Law Street contributor Noel Diem is an editor and aspiring author based in Reading, Pennsylvania. She is an alum of Albright College where she studied English and Secondary Education. In her spare time she enjoys traveling, theater, fashion, and literature. Contact Noel at staff@LawStreetMedia.com.

The post Freedom of Speech and Social Media appeared first on Law Street.

In January I published a break down of the top cases and judicial issues to watch in 2014. Now that the year is coming to an end, it seems appropriate to give you a progress report and see where those cases all ended up.

8. Lavabit and Ladar Levison

The case in January: After Edward Snowden’s revelations about NSA spying, it was discovered that he was using an encrypted email service called Lavabit. The owner, Ladar Levison, was court-ordered to hand over access to the entire site to the government, because Lavabit’s programming made it impossible to hand over access to just Snowden’s account. In protest, Levison shut down the site, defied a gag order, and has now filed an appeal.

What happened in 2014: Ladar Levison lost his appeal in April when he was hit with contempt of court charges. However, the Fourth Circuit Court of Appeals, where the case was held, didn’t rule against Levison because of the merits of the case, but rather because it believed he had made a procedural misstep from the beginning and its hands were tied.

7. Jodi Arias

The case in January: In 2013, we saw the extremely weird case involving Jodi Arias in Arizona. She was eventually convicted of murdering her boyfriend, Travis Alexander. It was a gruesome and disturbing case in which the jury found her guilty; however, they could not agree on whether to sentence her to life in prison, or to death. A mistrial was declared on the sentencing portion of her trial and the new sentencing trial will also have new jurors.

What happened in 2014: The sentencing phase of Arias’ case is still underway. There’s controversy over some “mystery witness” and Arias demanding that the proceedings be made secret. What Arias’ sentence will be remains just as big of a mystery.

6. McCullen v. Coakley 

The case in January: McCullen v. Coakley has been waiting for its day in court since 2001. There was appeal after appeal before the Justices agreed to hear it. It involves a law that Massachusetts instituted to create a 35-foot buffer zone around reproductive health facilities.

What happened in 2014: SCOTUS ruled the Massachusetts buffer zones unconstitutional in the sense that they impeded protesters’ Freedom of Speech. If you’d like more information on the case, check out fellow Law Streeter Erika Bethmann’s excellent takedown of the decision: Sorry SCOTUS, Harassment isn’t Free Speech.

5. Silkroad Case

The case in January: The infamous illegal-good site Silk Road was removed from the web last Fall, and its alleged creator, Ross Ulbricht, was arrested. The site sold drugs and fraudulent IDs, among other things. In addition to being indicted for his work on the site, he has was accused of hiring assassins. The $80 million he allegedly made through the site is now in government custody.

What happened in 2014: The case against Ross Ulbrecht has been delayed until January 2015. He pleaded not guilty to various drug trafficking, money laundering, hacking, and criminal enterprise charges. According to his defense counsel, the case has been delayed because:

The court did not provide its reasons for the adjournment, but we asked for it earlier this week based on a couple of factors: the danger that the trial would run into the Christmas holidays, which would affect juror availability and the continuity of the trial; some technical and logistical delays (owing to the limitations inherent in Mr. Ulbricht’s pretrial confinement) in getting Mr Ulbricht access to some discovery; some other scheduling issues.

4. Marriage rights

The case(s) in January: The Supreme Court already put a stop to Utah’s same-sex marriage licenses in 2014. The case will now go to the nearest appeals court. This is just one example; there are other cases regarding the rights of homosexuals to marry all over the United States.

What happened in 2014: The victories just keep coming for gay marriage advocates. One of the biggest was on October 6 when the Supreme Court chose not to hear a whole collection of cases challenging same-sex marriage bans in a bunch of different states. Because it declined to weigh in on the appeals court decisions that had ruled the marriage bans unconstitutional, SCOTUS effectively increased the number of states with gay marriage to 30.

3. Voting Rights Cases

The case(s) in January: There have been a variety of efforts at the state level to change voting rights laws, and the DOJ and various special interest groups have stood up to these changes when needed. But in 2013, part of the Voting Rights Act was struck down by the Supreme Court. So, each challenge to voting rights has to be filed against separately. As a result, many suits will be heard in 2014 to states’ attempted voting rights changes.

What happened in 2014: As with gay marriage, there are a lot of cases still running through the system. Unlike gay marriage, there hasn’t been quite as much progress. There have been some cases argued in front of appeals courts, and some voter ID laws struck down, such as in Wisconsin and Texas. It seems like voter ID laws, as well as other restrictive voting laws will end up being decided on a state-by-state basis for a while.

2. Contraception 

The case(s) in January: There were contraception cases regarding coverage through the Affordable Care Act that made it to the court in 2013, but many more will be on deck in 2014. One involves a nonprofit called Little Sisters of the Poor, and others involve for-profit companies like Hobby Lobby.

What happened in 2014: The Hobby Lobby case was one of the biggest decisions to come out of SCOTUS this year. The Hobby Lobby decision made it so that private employers could refuse to provide certain contraception coverage in their insurance plans. While the justices attempted to make the case very narrow and make sure that they just ruled on the specifics of that case so that the “floodgates” wouldn’t be opened, what ramifications it may have down the road will be interesting to see.

1. NSA Cases

The case(s) in January: A lot of cases have been filed regarding the NSA’s monitoring of US citizens. A few may make it to the high court. US District Court Judge Richard Leon in Washington recently ruled that the NSA monitoring was unconstitutional. Meanwhile, District Court Judge William Pauley in New York dismissed a similar case. That kind of contradiction could lead to a big legal showdown in 2014.

What happened in 2014: This is another issue that has in many ways not come to its full judicial potential. Some cases are moving forward though — a federal appeals court in DC just started to hear a case that questioned the constitutionality of the NSA collecting so much data after the passage of the Patriot Act. This will be an issue to keep our eyes on moving into 2015.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Cases to Watch in 2014: Where are They Now appeared first on Law Street.

Gay marriage is now legal in the majority of American states. The Supreme Court declined to take on cases in Indiana, Oklahoma, Utah, Virginia, and Wisconsin in which lower courts struck down the gay marriage ban. Given that the states of North Carolina, South Carolina, Kansas, Colorado, Wyoming, and West Virginia fall under the purview of the same appeals courts, gay marriage essentially has been legalized there as well.

Most Americans now live in a state where same-sex marriage is legal http://t.co/7XbvlUuirz pic.twitter.com/DPbAoZUf5T

— Conrad Hackett (@conradhackett) October 6, 2014

The speed with which the legalization of same-sex marriage has spread through the United States is nothing short of remarkable. The first state to legalize gay marriage was Massachusetts in 2004. Back then, it was pretty much revolutionary. The Defense of Marriage Act still existed, states were voting to ban same-sex marriage by droves, and sodomy laws had only just been struck down.

In just ten years the trajectory has changed dramatically. In 2004, less than a third of the American population supported legalizing same-sex marriage, now a clear majority does.

With the opinion on gay marriage shifting so dramatically, it’s easy to wonder what role the debate will play in the 2016 election. Will it even be a topic of conversation? Or is this a done deal — states are going to continue to legalize same-sex marriage, probably slowly, until we get to the point where same-sex couples can marry no matter where they are in the United States. Ten years ago, Massachusetts was almost revolutionary, now the practice is common place. In another ten years, will prohibiting gay marriage seem as archaic as the ban on interracial marriage?

Those questions, especially what will happen in 2016, are difficult to answer. There’s a chance that it will still be a topic of conversation, after all, GOP presidential hopeful Ted Cruz had a strong reaction to the news of the Supreme Court’s decision yesterday. He took issue with the court, saying:

This is judicial activism at its worst. The Constitution entrusts state legislatures, elected by the People, to define marriage consistent with the values and mores of their citizens. Unelected judges should not be imposing their policy preferences to subvert the considered judgments of democratically elected legislature.

Ted Cruz essentially said that it should be to the voters to decide whether or not to legalize same-sex marriage. He won the straw poll at the Values Voters Summit, held in Washington D.C. just a few weeks ago. The Values Voter Summit this year apparently focused heavily on anti-Muslim and anti-ISIS rhetoric, but there was still some LGBT-rights bashing as well. The National Organization for Marriage (NOM) was present, and it worked hard to try to convince attendees that the fight against same-sex marriage was by no means over. And some of the speakers did wax poetic about traditional marriage — Rick Santorum, for example, made an appearance.

But the question is, is the Values Voter Summit still representative of a large chunk of the Republican Party? And that’s not just a question that I, as an observer, am trying to answer. It seems to be a question that the Republican Party itself is having difficulty with.

The Republican Party is in a tough place — an issue that it’s worked on for a very long time is no longer really an issue. While it’s tough to tell whether or not the Party will still put any focus on the issue in the 2016 elections, it’s a choice that it is going to have to make for itself. But as more states move toward legalizing gay marriage and more Americans show their support, it will be a difficult choice to make.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Same-Sex Marriage Legal in Most States: What Does the GOP Do Now? appeared first on Law Street.

The Supreme Court has an exciting new term ahead of it, and today’s case is no exception. This week the justices will hear arguments in Heien vs. North Carolina, a case that at its core poses one very simple question: should police officers be held to a higher standard? It’s a timely question, given the events of this summer, and one whose answer may hold some interesting ramifications.

In 2009, a man named Nicholas Heien was with another man who was driving his car in North Carolina when he was pulled over for having a busted tail light. Officers ended up searching the car — which belonged to Heien — and discovering a relatively substantial amount of cocaine. Heien was arrested and charged with drug trafficking.

Now under North Carolina law, if Heien was pulled over because he was breaking a law, and the subsequent search yielded the cocaine discovery, that would have been legal. The problem is that he wasn’t actually breaking a law when he was pulled over — technically, as long as you have one functioning tail light, you’re operating within the law in North Carolina. The officer who pulled him over was simply wrong about the law.

The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment requires that searches are lawful — and there’s significant evidence to suggest that the search of Heien’s car was not. There needs to be reasonable suspicion that a law has been violated in order to conduct that search. A non-functioning brake light, which is not even illegal, is simply not enough.

Heien lost his original trial. He then won an appeals case, but lost in the North Carolina State Supreme Court. The case will now be making its way to the Supreme Court, which will have to figure out whether the North Carolina Supreme Court made the right decisions saying that Heien’s arrest was fair, even though the cop who pulled him over was ignorant of the laws in the state in which he worked.

The State Supreme Court held that requiring officers to be walking encyclopedias of the states’ laws is ridiculous and creates much higher standards than the Fourth Amendment mandates. But the dissenters pointed out that allowing that kind of subjectivity could create a sort of slippery slope. In the dissent, Justice Robin Hudson wrote:

The danger in adopting a new constitutional rule here is that this particular case seems so innocuous: Of course it is reasonable that an officer would pull over a vehicle for a malfunctioning brake light. But this new constitutional rule will also apply in the next case, when the officer acts based on a misreading of a less innocuous statute, or an incorrect memo or training program from the police department, or his or her previous law enforcement experience in a different state, or his or her belief in a nonexistent law.

Then there’s the context of this August to discuss. The events in Ferguson propelled a national dialogue, one that was opened by stop-and-frisk laws, militarization of our police departments, and dozens of other issues around the country about the power of our police departments. Obviously, none of these examples are about the same kind of issue — the cops in Heien’s case obviously did not shoot anyone. But it does hark back to that question: what leniency do we give to our cops?

In the United States, not knowing a law is no excuse for breaking it. Should not knowing it also be an excuse for incorrectly enforcing it? Now, that’s up to the Supreme Court to decide.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Police Decisions Up for Debate in Today’s SCOTUS Case appeared first on Law Street.

]]> https://legacy.lawstreetmedia.com/news/police-decisions-debate-todays-scotus-case/feed/ 0 26197 https://legacy.lawstreetmedia.com/blogs/culture-blog/justice-scalia-gets-it-right-there-is-a-political-demand-for-religion/ https://legacy.lawstreetmedia.com/blogs/culture-blog/justice-scalia-gets-it-right-there-is-a-political-demand-for-religion/#comments Mon, 06 Oct 2014 16:42:45 +0000 http://lawstreetmedia.wpengine.com/?p=26179

This is going to hurt me a lot more than it is going to hurt you: Justice Antonin Scalia might have a point. I know, I know. His “orthodoxy” and “originalism” are nothing but facades that make a joke out of Constitutional interpretation. His recalcitrance has a deteriorating effect on America. His arrogance knows no limits. But one of his thoughts contains a basic interpretation of the Constitution that is extremely important. A recent Denver Post article quotes Scalia saying, “'There are those who would have us believe that the separation of church and state must mean that God must be driven out of the public forum...That is simply not what our Constitution has ever meant.’”

The post Justice Scalia Gets It Right: There is a Political Demand for Religion appeared first on Law Street.

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Image courtesy of [Stephen Masker via Flickr]

This is going to hurt me a lot more than it is going to hurt you: Justice Antonin Scalia might have a point.

I know, I know. His “orthodoxy” and “originalism” are nothing but facades that make a joke out of Constitutional interpretation. His recalcitrance has a deteriorating effect on America. His arrogance knows no limits. But one of his thoughts contains a basic interpretation of the Constitution that is extremely important. A recent Denver Post article quotes Scalia saying, “’There are those who would have us believe that the separation of church and state must mean that God must be driven out of the public forum…That is simply not what our Constitution has ever meant.’”

I’ve already written about why it’s okay — and good — to include religion in the public discourse. So I will simply sum up my argument here: religion is still an integral part of American life, religion is still an integral American social institution, and religion still informs the morals of American public officials. Instead of dismissing that out of fear of a too-close relationship between church and state, let’s have it out in the open for our discussions. Now this one is hard for me to swallow, but it behooves me to agree with a basic component of Scalia’s belief. The separation of church and state, vital as it is, does not necessitate the eradication of religiosity from American life, public or private.

Despite feeling empty inside for supporting something that Justice Scalia said, I’ll press on. The topic is of utmost importance right now as more Americans are unhappy about perceived lack of religiosity, according to Pew Research. As 72 percent of Americans believe that religion has lost influence in the country, “a growing share of the American public wants religion to play a role in U.S. politics,” Pew’s Religion & Public Life Project claims. Scalia and I are on to something: religious presence in American public life is not only Constitutionally acceptable, but desired by an increasing number of people in the country.

What does this mean for political alignments in America? On one hand Pew notes that more “of the general public sees the Republican Party as friendly toward religion (47%) than sees the Democratic Party that way (29%).” On the other hand, there are “some signs of discontent within the GOP among its supporters, including evangelicals.” While Christians still dominate the American religious atmosphere, their political spread is complicated. Black Protestants overwhelmingly support the Democratic party as opposed to their White Republican counterparts. Meanwhile, the Catholic demographic is split between Republican Whites and Democratic Hispanics.

These spreads indicate how differentiated all religious Americans — even Christian Americans — are politically. Therefore, the growing number of Americans looking to see more religiosity in the U.S. political sphere is comprised of a variety of political interests. Neither liberals nor conservatives, then, should be too optimistic or pessimistic because of these demographics. Only those who oppose Scalia’s conception of church and state should be concerned. While religion may be less prevalent in public life right now, those who oppose religion in public life also have waning clout.

Scalia’s statement is consistent with the growing public sentiment, but how should the Supreme Court interpret this opinion? Of course, according to Scalia, the Supreme Court should completely ignore the current public dynamic and focus only on the “original” meaning of the Constitution. And in Scalia’s eyes, the “original” meaning of the First Amendment “explicitly favors religion” over non-religion, as he mentions in a recent Court opinion. Will the Supreme Court, and Scalia, look to the recent sentiments of the public to validate a preference of the religious over the non-religious? Or will some members of the Court defend agnostic and atheistic rights when applicable? With the Court slated to hear a few cases on religion in the near future, these questions should be mainstream.

Jake Ephros

Jake Ephros is a native of Montclair, New Jersey where he volunteered for political campaigns from a young age. He studies Political Science, Economics, and Philosophy at American University and looks forward to a career built around political activism, through journalism, organizing, or the government. Contact Jake at staff@LawStreetMedia.com.

The post Justice Scalia Gets It Right: There is a Political Demand for Religion appeared first on Law Street.

]]> https://legacy.lawstreetmedia.com/blogs/culture-blog/justice-scalia-gets-it-right-there-is-a-political-demand-for-religion/feed/ 4 26179 https://legacy.lawstreetmedia.com/news/shouldnt-vote-supreme-court-justices-heres/ https://legacy.lawstreetmedia.com/news/shouldnt-vote-supreme-court-justices-heres/#respond Fri, 03 Oct 2014 22:47:54 +0000 http://lawstreetmedia.wpengine.com/?p=26158

We have different branches of our government for a reason.

The post Here’s Why We Shouldn’t Vote for Our Supreme Court Justices appeared first on Law Street.

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Image courtesy of [Phil Roeder via Flickr]

We have different branches of our government for a reason. I remember learning about it as early as middle school — the legislature makes the laws, the executive branch enforces them, and the judicial branch interprets them. There are checks and balances, separation of powers, and all sorts of mechanisms to make sure that we have a functioning democracy. But then two separate polls caught my eye this week that make me curious about the mindset of the American people.

The first involved a poll in which half of the American public said that the Supreme Court should be elected rather than appointed. The poll was conducted online by Harris Polls.

The second poll was conducted by the Annenberg Public Policy Center of the University of Pennsylvania, and it discovered that 35 percent of Americans couldn’t name a single branch of the American government. In the release of the poll, Annenberg director Kathleen Hall Jamieson stated,

Although surveys reflect disapproval of the way Congress, the President and the Supreme Court are conducting their affairs, the Annenberg survey demonstrates that many know surprisingly little about these branches of government.

The two polls obviously, weren’t made to be related, but they do provide an interesting and weird insight into the minds of the American populace. It’s vaguely reminiscent of the time that Jimmy Fallon asked people whether they supported Obamacare or the Affordable Care Act.

Back to the topic at hand though — the idea of having our Supreme Court justices subject to elections is a troublesome one. There’s a reason that they’re not elected in the first place — so that they don’t have to pander to an electorate. An electorate who probably could not even name the branch of government for which they would be choosing justices.

The way that our government works now, our Congresspeople, Senators, Governors, President, and other elected officials are constantly running for office. They always have to look at the polls to see what everyone is thinking. They sometimes have to contend with voters turning on them because of the actions of others in their party. They constantly have to contend with the fact that if they make moves or pass laws that their constituents don’t like, they could be out of a job.

Then, those people who are constantly up for vote, write our laws. And the Supreme Court, who is appointed by the those elected people, has to interpret those laws. Their job depends on the fact that they aren’t held accountable.

Does that mean that they always make the right choices? No, definitely not. I certainly take issue with many SCOTUS decisions, but I get to elect the people who pass and sign the laws — it would be too much to also vote for the people who interpret the laws.

Our democracy isn’t always perfect, and it often fails, but it is a democracy with checks and balances for a reason.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Here’s Why We Shouldn’t Vote for Our Supreme Court Justices appeared first on Law Street.

]]> https://legacy.lawstreetmedia.com/news/shouldnt-vote-supreme-court-justices-heres/feed/ 0 26158 https://legacy.lawstreetmedia.com/news/michele-bachmann-calls-gay-marriage-boring-but-her-history-says-otherwise/ https://legacy.lawstreetmedia.com/news/michele-bachmann-calls-gay-marriage-boring-but-her-history-says-otherwise/#comments Sat, 27 Sep 2014 17:35:56 +0000 http://lawstreetmedia.wpengine.com/?p=25839

Congresswoman Michele Bachmann has been an outspoken opponent of marriage equality for years.

The post Michele Bachmann Calls Gay Marriage Boring, But Her History Says Otherwise appeared first on Law Street.

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Image courtesy of [Gage Skidmore via Flickr]

Congresswoman Michele Bachmann (R-MN) has been an outspoken opponent of marriage equality for years. She’s campaigned on traditional marriage and supported it at both the state and federal levels. In an interview after yesterday’s Values Voter Summit however, Bachmann responded to a question about gay marriage by calling it “boring” and “not an issue.” Oh really? That’s interesting news considering the source. Just for giggles (or let’s be honest, groans), let’s take a look at some of Bachmann’s greatest hits on gay marriage and what she so sweetly terms the “gay lifestyle” and cross our fingers that she’s actually going to give this topic a rest during future diatribes to her hometown paper after leaving congress this year.

1. In response to the Supreme Court’s DOMA ruling:

Today, the U.S. Supreme Court decided to join the trend, despite the clear will of the people’s representatives through DOMA. What the court has done will undermine the best interest of children and the best interests of the United States.

This, of course, is the statement that garnered the very best Nancy Pelosi response of all time: “Who cares?”

2. In response to Arizona’s vetoed ‘Right to Discriminate’ bill:

The thing that I think is getting a little tiresome is the gay community have so bullied the American people and they have so intimidated politicians that politicians fear them and they think they get to dictate the agenda everywhere.

3. In response to Minnesota legalizing gay marriage:

I’m proud to have introduced the original traditional marriage amendment, and I thank all Minnesotans who have worked so hard on this issue.

4. In response to the question, ‘Why can’t same-sex couples get married?:

They can get married, but they abide by the same law as everyone else. They can marry a man if they’re a woman. Or they can marry a woman if they’re a man.

5. Ahead of Minnesota’s legalization of gay marriage:

The Bible is very clear on this issue. Homosexuality is a sin, and God will punish communities that support it. Sodom and Gomorrah thought they could defy the will of God, and we all know what happened to them. If the governor signs this legislation into law the Minneapolis-St. Paul region will be next…These are very scary times. I don’t want my family to be the last ones out.

6. On the ‘deviancy’ of the gay community:

(The gay community will) abolish age of consent laws, which means we will do away with statutory rape laws so that adults will be able to freely prey on little children sexually. That’s the deviance that we’re seeing embraced in our culture today.

7. On the possibility of gay marriage in Minnesota:

We will have the immediate loss of civil liberties for five million Minnesotans. In our public schools, whether they want to or not, they’ll be forced to start teaching that same-sex marriage is equal, that it is normal and that children should try it.

8. In response to President Obama’s support of same-sex marriage:

The President’s announcement today shows how out of touch he is with the values of American families…Americans know better and support traditional marriage…I will do everything in my power to support and preserve traditional marriage and to protect American families…despite our president’s decision to thumb his nose at the traditional institution of marriage.

Chelsey D. Goff

Chelsey D. Goff was formerly Chief People Officer at Law Street. She is a Granite State Native who holds a Master of Public Policy in Urban Policy from the George Washington University. She’s passionate about social justice issues, politics — especially those in First in the Nation New Hampshire — and all things Bravo. Contact Chelsey at staff@LawStreetMedia.com.

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]]> https://legacy.lawstreetmedia.com/news/michele-bachmann-calls-gay-marriage-boring-but-her-history-says-otherwise/feed/ 1 25839 https://legacy.lawstreetmedia.com/blogs/ip-copyright/aereo-comeback-kid/ https://legacy.lawstreetmedia.com/blogs/ip-copyright/aereo-comeback-kid/#comments Wed, 10 Sep 2014 13:51:45 +0000 http://lawstreetmedia.wpengine.com/?p=24138

Nobody thought that Aereo, bruised and beaten from being on the ropes, would ever return to the ring. But have we found our comeback kid? It seems Aereo wants to brawl after broadcasters requested that a New York court order Aereo to cease business across the country. In new court papers, Aereo demands another chance. The Internet television provider insists it be given the necessary cable license for operation, legally allowing it to transmit broadcast TV shows.

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Introducing first, in one corner, weighing the equivalent of nine justices, hailing from Washington D.C., backed by broadcasters, the well educated, ever respected SUPREEEEME COURT!

In the other corner, less than one pound and the size of a dime, young and feisty, hailing from New York, the crowd favorite, the underdog, the AEREO ANTENNAAAA!

Well, folks… we all know how this fight ended. The Supreme Court, in a 6-3 decision, beat Aereo’s butt on the grounds of copyright infringement.

Nobody thought that Aereo, bruised and beaten from being on the ropes, would ever return to the ring. But have we found our comeback kid? It seems Aereo wants to brawl after broadcasters requested that a New York court order Aereo to cease business across the country. In new court papers, Aereo demands another chance. The Internet television provider insists it be given the necessary cable license for operation, legally allowing it to transmit broadcast TV shows.

“It would be illogical and fundamentally unfair to find that Aereo’s ‘Watch Now’ functionality is a ‘cable system’ …for the public performance analysis, but is not entitled to a compulsory license under the same,” Aereo asserts.

Odds are up in the air for this aggressive little company. A competitor of similar build, ivi TV was recently shot down after also requesting the same compulsory license in New York. So, why is the crowd still cheering for Aereo? Its individual attention to its fans! ivi TV’s transmissions were nationwide while Aereo only offered shows to those who subscribed to its service. This slight difference in technique can be just enough to bring victory to Aereo in this rematch with the judicial system.

Aereo enters this match insisting it’s a clean fighter, reminding the courts that it has “failed to show any imminent irreparable harm.” The company asks, “What better proof could there be that claimed harms are not imminent…than what actually happened when the complained-of actions went on for years?” Hope for this underdog comes from statements like that of Supreme Court Justice Stephen Breyer who has said that there are no “behind the scenes technological differences” that discern Aereo from actual cable companies.

Meanwhile, more fighters are gearing up to enter the competition. In an attempt to fill the Aereo void, TiVo has come forward with its new ‘OTA’ device, and Roku has plans for smart televisions with Aereo-like technology already integrated into the devices.

Let’s not forget about the common theme in all of this, however: that damn cloud. Problems surrounding Cloud service have not specifically been addressed, even in the Supreme Court opinion of Aereo’s ruling. Not wanting to overreach, the Justices cited that they could not “answer more precisely how the Transmit Clause or other provisions of the Copyright Act will apply to technologies not before us… Questions involving cloud computing (remote storage) DVRs and other novel issues not before the Court… should await a case in which they are squarely presented.”

So, much like a cloud, the fate of this new technology is still up in the air. For now, all we can do is follow the IP scuffles that occur on the ground and in the courtroom.

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Alexandra Badalamenti (@AlexBadalamenti) is a Jersey girl and soon-to-be graduate of Fordham University in Lincoln Center. She plans to enroll in law school next year to study Entertainment Law. On any given day, you’ll find her with big blonde hair, high heels, tall Nashville dreams, and holding a newspaper or venti latte.

Featured image courtesy of [Kristin Wall via Flickr]

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]]> https://legacy.lawstreetmedia.com/blogs/ip-copyright/aereo-comeback-kid/feed/ 1 24138 https://legacy.lawstreetmedia.com/news/seattle-minimum-wage-battle-heading-court/ https://legacy.lawstreetmedia.com/news/seattle-minimum-wage-battle-heading-court/#respond Thu, 14 Aug 2014 21:04:06 +0000 http://lawstreetmedia.wpengine.com/?p=22973

Seattle made the news when they announced they were upping their minimum wage to $15 per hour.

The post Seattle Minimum Wage Battle Heading to Court appeared first on Law Street.

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Image courtesy of [Adam Bartlett via Flickr]

In June, Seattle made the news when the city announced that it would be upping its minimum wage to $15 per hour. In a time when arguments over the minimum wage has led to various strikes, discussions, and political debates, the Seattle move was unprecedented. It was pretty smooth too–the Seattle mayor was able to negotiate between a lot of different parties in order to create such a high minimum wage without much resistance. But now the change has finally hit a road bump–attorney Paul Clement is suing the city of Seattle for the minimum wage hike.

The lawsuit, filed by Clement, is on behalf of an organization called the International Franchise Organization. This move has received support from several major organizations, including the United States Chamber of Commerce and National Restaurant Organization, both of which recently joined the lawsuit.

The problem that these groups have with the new minimum wage law stems from the way in which it distinguishes between national chains, franchises, and small businesses. The current text of the law will require large corporations with chains in Seattle to adopt the $15 minimum wage within the next three years. Small businesses have up to seven years to implement it. Franchisees–small businesses that are affiliated with but not operated by larger chains, must implement it within three years. Examples of franchises include Pizza Hut, Dunkin Donuts, and Subway.

The Mayor of Seattle, Ed Murray claims that franchises have support that small mom-and-pop businesses don’t–namely in the form of advertisements, supplies, and menu creation.

The lawyer filing the suit on behalf of the franchisees, Paul Clement,  has had a lot of success with arguing cases in front of the Supreme Court. He has argued 74 cases in front of the highest court in the land, including two of the most talked-about cases of this year–Clement was involved in both the Hobby Lobby and Aereo cases. Clement was also involved in cases related to the Affordable Care Act, and argued on behalf of the Defense of Marriage Act.

He explained why he felt so strongly about the rights of franchisees to receive more time to implement the minimum wage:

I think that that points to the issue that’s at the heart of this case: corporate separateness. When you walk into a McDonald’s or Days Inn or coffee shop that has a dozen outlets, you’re not walking into corporate headquarters. These franchised companies are organized differently from a company that’s one monolithic company with one set of management and one set of employees.

Clement also claims that this is a direct attack on the franchise model of business–mostly coordinated by unions.

This suit marks an interesting turn in a large nation-wide debate about minimum wages. The argument isn’t being made that the wage hike shouldn’t happen, but rather that it’s being pushed on too quick of a time-table. That’s a good sign for minimum wage increases, and indicates that the organizations currently challenging the law realize that. Although $15 is a lot more than what most places are proposing, the idea of a minimum wage hike in general appears to be widely supported. As of a poll about 10 months ago, roughly 75 percent of American support raising the federal minimum wage to $9 per hour. Whichever way the Seattle fight goes, hopefully the minimum wage will soon take a big jump.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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]]> https://legacy.lawstreetmedia.com/news/seattle-minimum-wage-battle-heading-court/feed/ 0 22973 https://legacy.lawstreetmedia.com/news/interior-checkpoints-arizona-draw-complaints/ https://legacy.lawstreetmedia.com/news/interior-checkpoints-arizona-draw-complaints/#respond Thu, 24 Jul 2014 18:13:24 +0000 http://lawstreetmedia.wpengine.com/?p=21142

In Arizona, if you are within 75 miles of the Mexican border, you might just come across a “temporary” border control checkpoint. The goal of these checkpoints is to help control drug trafficking and stop illegal immigration. But the legality of these checkpoints and what the border control agents are actually allowed to do is far from clear.

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In Arizona, if you are within 75 miles of the Mexican border, you might just come across a “temporary” border control checkpoint. The goal of these checkpoints is to help control drug trafficking and stop illegal immigration. But the legality of these checkpoints, and what the Border Patrol agents are actually allowed to do is far from clear. The American Civil Liberties Union has now filed an administrative complaint with the Department of Homeland Security on behalf of 15 individuals who claim that their constitutional rights have been violated at checkpoints in Arizona.

Of the individuals involved in the ACLU complaint, the majority say they were never asked about their identity, the supposed purpose of the checkpoints. Some of the complainants claim they were held for over half an hour for not giving the Border Patrol officer consent to search their cars. Other complaints include a gun being pulled on a individual, and the Border Patrol agents attempting to take someone’s cell phone. If these allegations are true, they most likely violate the existing laws on checkpoints.

The highest court of the land has only ruled on interior checkpoints once, almost forty years ago, in United States v. Martinez-Fuerte. Amado Martinez-Fuerte was transporting two illegal immigrants when he was stopped at a fixed interior checkpoint in Southern California. When asked, the two illegal immigrants admitted to their status. Martinez-Fuerte reacted by suing, saying that the checkpoint violated his Fourth Amendment right to not be subject to unreasonable searches. SCOTUS ruled that his rights were not violated, because if there is a reasonable collective suspicion, then individuals can be searched in the interest of public safety. The court stated that Border Patrol agents could briefly question and ask people for identification, without individual suspicion, if they’re at reasonably located checkpoints. The court did not give the Border Patrol the right to search vehicles or occupants without probable cause. The question in Arizona today is if the Border Patrol is abiding by this ruling.

It seems like this administrative complaint may lead to a new look at our laws. These checkpoints have expanded their focus to include more work in drug control, instead of just looking for illegal immigrants. This is problematic because Martinez-Fuerte only serves as a precedent for checkpoints searching for illegal immigrants. Currently at checkpoints, vehicles are examined by drug-sniffing dogs. In Illinois v. Caballes, the Supreme Court ruled that a drug-sniffing dogs could be used during a routine traffic stop, but no court has explicitly ruled that they can be used at Border Patrol checkpoints.

Furthermore, in 2000, the Supreme Court ruled that using these checkpoints for general law enforcement acts violates the Fourth Amendment. James Duff Lyall, the attorney who filed the complaint stated:

The restrictions in the Martinez-Fuerte ruling don’t mean that agents have to turn a blind eye to obvious evidence of drugs or crime, but if you have cases where people are not even being asked about residency status, it raises serious questions about the legitimacy of these checkpoints.

In 1976, the Supreme Court made the Martinez-Fuerte ruling because they felt that in an area with a high number of illegal immigrants, it was not unreasonable to have ID checkpoints on major roads. Using that logic as precedent, I think that it could be argued that due to the large amount of narcotics crossing the border, it is not unreasonable to have cars drive through a checkpoint where drug-sniffing dogs are present. However, there’s no legal basis for that argument yet, and this is not an excuse for the unreasonable searches that the ACLU is alleging are taking place. If the point of these checkpoints is to find drugs, a car should only have to stop for a few moments while the dog sniffs, and then be allowed to move on. Anything beyond that, or a simple examination of a person’s ID, is a violation of the Fourth Amendment. The Border Patrol in Arizona needs to realize this if they want to keep operating their checkpoints.

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Matt DeWilde (@matt_dewilde25) is a member of the American University class of 2016 majoring in politics and considering going to law school. He loves writing about politics, reading, watching Netflix, and long walks on the beach. Contact Matt at staff@LawStreetMedia.com.

Featured image courtesy of [Ken & Sharon Lotts via Flickr]

Matt DeWilde

Matt DeWilde is a member of the American University class of 2016 majoring in politics and considering going to law school. He loves writing about politics, reading, watching Netflix, and long walks on the beach. Contact Matt at staff@LawStreetMedia.com.

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]]> https://legacy.lawstreetmedia.com/news/interior-checkpoints-arizona-draw-complaints/feed/ 0 21142 https://legacy.lawstreetmedia.com/blogs/culture-blog/warning-christians-coming-civil-liberties/ https://legacy.lawstreetmedia.com/blogs/culture-blog/warning-christians-coming-civil-liberties/#respond Thu, 17 Jul 2014 10:32:08 +0000 http://lawstreetmedia.wpengine.com/?p=20726

The Hobby Lobby ruling, not even a month old, is already proving to be disturbingly broad. Ruth Bader Ginsburg warned us about this in her dissent—that granting religious exemptions for IUDs and Plan B would be like opening a Pandora’s Box of discrimination potential—but did anyone listen to her? And so here we are, with religious zealots breathing down the necks of the Supreme Court and of the President—and they have legal precedent to back themselves up.

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Happy Thursday, folks!

It’s been a crazy couple of weeks for women out there.

First—as I’m sure you recall—SCOTUS ruled in favor of Hobby Lobby, giving employers the right to deny workers birth control coverage because of religious exemptions, and essentially giving douche-wad bosses everywhere the potential to control their employees’ uteruses.

Awesome.

And now, things are getting much, much worse.

Following the Hobby Lobby decision, religious institutions, religiously-run corporations, and basically anyone who is a fan of Jesus and also has some modicum of control over other people’s lives, are filing for the right to discriminate against people under religious exemptions.

Say good-bye to your civil rights, folks.

A group of 14 religious leaders wrote a letter to the Obama administration asking for the right to discriminate against LGBTQ people in closely-held corporations. George Fox University demanded a religious exemption that would allow it to bar a transgender student from living on campus, and the Department of Education granted it.

 

The Hobby Lobby ruling, not even a month old, is already proving to be disturbingly broad. Ruth Bader Ginsburg warned us about this in her dissent—that granting religious exemptions for IUDs and Plan B would be like opening a Pandora’s Box of discrimination potential—but did anyone listen to her?

And so here we are, with religious zealots breathing down the necks of the Supreme Court and of the President—and they have legal precedent to back themselves up.

Loves, this shit is scary. And not fear-monger-y type scary. Legit disturbing.

 

When the Hobby Lobby decision first came down it signaled yet another chip away at civil liberties and women’s rights in this country. One more piece of legal bullshit that diminishes a woman’s right to control her own body. One more reminder that women aren’t seen as real people or full adults in the United States, but rather as wards of the state, our spouses, our fathers, or apparently, our employers.

But as awful as that is, the asshat Justices who voted for this decision assured us that the Hobby Lobby ruling would end there. It would be a narrow ruling, applicable to only this situation, and that feminists would only have to fight against this one, single issue. Access to birth control regardless of what your boss’s religious beliefs are.

Justice Ginsburg called bullshit, and now I’m calling that she was right.

This ruling is not narrow. We can no longer be solely concerned with its reversal because women deserve the right to control their own goddamn bodies.

Nope. Instead, it’s turning out to be frighteningly broad, as the Supreme Court demands reviews of similar cases in lower courts and considers handing out more religious exemptions based on the precedent that Hobby Lobby’s now set.

Where does this end? There’s really no way to know just yet, but the possibilities are kind of endless.

 

Don’t want to hire women at your company? Sure thing, buddy! Claim that doing so would place an undue burden on you as a result of your religious beliefs and you’re good to go.

Don’t want to hire black people at your company either? No problem. Religious exemptions all around.

Can’t stand the thought of your female employees having consequence-free sex? Awesome. Religious exemption and boom! You just gained control over your workers’ uteruses. Don’t you feel better knowing your vagina-laden employees aren’t sleeping around (at least, not without feeling extreme anxiety about their reproductive systems)?

And maybe you don’t want to pay LGBT people the same amount of money as your straight employees. Or maybe you don’t want to hire them at all! Cool, dude. Religious exemption.

 

This shit is ridiculous. With the Hobby Lobby ruling, the Supreme Court just created a loophole for every piece of non-discrimination legislation ever enacted. Civil rights of all kinds—not just for women—are at serious risk. If anyone feels like they want to engage in some good, old-fashioned discrimination, they can pretty much do so! They just have to make a case for getting a religious exemption first.

And clearly, based on the fact that Hobby Lobby won its case, despite building it on a foundation of craptastic non-science, that’s not super hard to do.

So, way to go, SCOTUS! You really fucked things up for all of us, this time. Not only have you created an environment where everyone can be their own law book, but you’ve sent us down a path that will undoubtedly be littered with regressive politics.

The fight for personhood just got that much harder, lovelies.

—

Hannah R. Winsten (@HannahRWinsten) is a freelance copywriter, marketing consultant, and blogger living in New York City. She hates tweeting but does it anyway. She aspires to be the next Rachel Maddow.

Featured image courtesy of [Daryl Clark via Flickr]

Hannah R. Winsten

Hannah R. Winsten is a freelance copywriter, marketing consultant, and blogger living in New York’s sixth borough. She hates tweeting but does it anyway. She aspires to be the next Rachel Maddow. Contact Hannah at staff@LawStreetMedia.com.

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]]> https://legacy.lawstreetmedia.com/blogs/culture-blog/warning-christians-coming-civil-liberties/feed/ 0 20726 https://legacy.lawstreetmedia.com/news/lgbt-groups-overreact-hobby-lobby-ruling/ https://legacy.lawstreetmedia.com/news/lgbt-groups-overreact-hobby-lobby-ruling/#comments Mon, 14 Jul 2014 18:35:45 +0000 http://lawstreetmedia.wpengine.com/?p=20153

Several LGBT rights groups have withdrawn their support for the Employment Non-Discrimination Act (ENDA), a bill that would ban employers from refusing to hire or discriminate against workers based on their sexual orientation or gender identity. They are pulling support from a bill they have long worked to pass for only one reason--the recent ruling in the Hobby Lobby case. The problem is, they may be overreacting.

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Several LGBT rights groups have withdrawn their support for the Employment Non-Discrimination Act (ENDA), a bill that would ban employers from refusing to hire or discriminating against workers based on their sexual orientation or gender identity. A coalition of groups that support LGBT rights, such as the American Civil Liberties Union (ACLU), Lambda Legal, and the National Center for Lesbian Rights, is leading the charge away from the ENDA. This comes as a surprise, given that ENDA previously had strong support from these same groups. They are pulling support from a bill they have long worked to pass for only one reason–the recent ruling in the Hobby Lobby case. The problem is that they may be overreacting.

Since the ruling was handed down in the Hobby Lobby case, there have been misinterpretations of the case from both sides of the aisle. The liberal side of the debate has rallied behind Justice Ginsburg’s dissent, saying that the “floodgates” have been opened for religious freedom suits. That argument is the reason why so many LGBT groups have removed their support for the ENDA. They fear that corporations who wish to discriminate will be able to sue under the Religious Freedom Restoration Act (RFRA), the same way that Hobby Lobby did. They are scared that the Supreme Court could rule that a religious corporation not being allowed to discriminate on the basis of sexuality is a violation of RFRA. I understand this fear, excellently articulated here by our blogger Chris Copeland, but I think that they are simply overreacting to Justice Ginsburg’s dissent. The ruling itself was very narrow and will likely never serve as a precedent for sexual discrimination.

How am I so sure of this? Let’s put it this way, these suits will almost definitely not happen as long as Justice Anthony Kennedy remains the swing vote on the Supreme Court. Kennedy did vote with the majority on Hobby Lobby, but it is clear from his concurring opinion that his vote came with some serious strings attached. Kennedy implied that he only voted the way he did because of the narrowness of the case. He believed in this specific instance that the least-restrictive means test was not met, and pointed out that the government already allowed exceptions for non-profit corporations. The court’s ruling made it clear that the decision only applies to a religious exception for the contraceptive mandate, and that all other potential religious exceptions must be evaluated individually. Simply put, Hobby Lobby is not an invitation to use the RFRA to allow sexual discrimination.

If a case arguing that job discrimination should be allowed under the RFRA ever made it to the Supreme Court, there is no way Kennedy would vote to allow it. There are several reasons for this. Kennedy wrote the majority opinion in Lawrence v. Texas, a case that ruled any law prohibiting sexual acts between members of the same sex in private was unconstitutional. He also authored the opinion in United States v. Windsor, the ruling that struck down the Defense of Marriage Act. Kennedy has long defended the rights of the LGBT community and I do not think he would change his mind if a corporation sued to use RFRA as a basis for legal sexual discrimination. The government banning sexual discrimination would meet the least-restrictive means test, while the contraceptive mandate did not, a distinction that would surely be important to Kennedy.

It’s sad to see these LGBT groups end their support for the ENDA. It is still a law that could do a lot of good. Any challenge to the ENDA under the guise of religious freedom would almost certainly turn out differently than the Hobby Lobby case, but with support being pulled from the law, it will probably never become an issue.

—

Matt DeWilde (@matt_dewilde25) is a member of the American University class of 2016 majoring in politics and considering going to law school. He loves writing about politics, reading, watching Netflix, and long walks on the beach. Contact Matt at staff@LawStreetMedia.com.

Featured image courtesy of [Ted Eytan via Flickr]

Matt DeWilde

Matt DeWilde is a member of the American University class of 2016 majoring in politics and considering going to law school. He loves writing about politics, reading, watching Netflix, and long walks on the beach. Contact Matt at staff@LawStreetMedia.com.

The post LGBT Rights Groups Pulling Support for ENDA in Light of Hobby Lobby Ruling appeared first on Law Street.

]]> https://legacy.lawstreetmedia.com/news/lgbt-groups-overreact-hobby-lobby-ruling/feed/ 1 20153 https://legacy.lawstreetmedia.com/blogs/culture-blog/scotus-just-made-battlefield-womens-bodies/ https://legacy.lawstreetmedia.com/blogs/culture-blog/scotus-just-made-battlefield-womens-bodies/#comments Tue, 01 Jul 2014 10:35:32 +0000 http://lawstreetmedia.wpengine.com/?p=19198

Folks, this is not a happy Tuesday. Why? Because the Supreme Court made a really shitty decision yesterday. (And we’re not even talking about the bullshit Aereo ruling from last week. WHY DO YOU TAKE ALL THE GOOD THINGS AWAY?!) Monday, with a slim 5-4 majority, SCOTUS ruled in favor of Hobby Lobby, deeming that […]

The post SCOTUS Just Made a Battlefield Out of Women’s Bodies appeared first on Law Street.

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Image Courtesy of [Elvert Barnes via Flickr]

Folks, this is not a happy Tuesday.

Why? Because the Supreme Court made a really shitty decision yesterday. (And we’re not even talking about the bullshit Aereo ruling from last week. WHY DO YOU TAKE ALL THE GOOD THINGS AWAY?!)

Monday, with a slim 5-4 majority, SCOTUS ruled in favor of Hobby Lobby, deeming that employers can’t be legally compelled to provide insurance coverage for birth control and emergency contraception that are in conflict with their religious beliefs.

This decision is so wildly fucked up on so many levels. SO. MANY.

For those of you who don’t remember, we covered the Hobby Lobby case here at Law Street earlier this year, but here’s the quick gist: the company, which is owned by a family of devout Christians, is not a big fan of the Affordable Care Act and its rules regarding birth control.

While so far Hobby Lobby’s been covering 80 percent of the mandatory contraceptives listed in the ACA for its employees, it’s been holding out on two forms of intrauterine contraception and two forms of emergency birth control. Why? They’re spewing some zealously crap-tastic pseudo-science claiming these methods are “abortifacients,” which they unequivocally are not.

Despite the fact that Hobby Lobby’s case is built on totally unsubstantiated non-science and a complete disregard for the separation of church and state, SCOTUS decided to rule in their favor.

Now, thanks to this fuckery, if your boss’ religion says you shouldn’t be preventing or planning your pregnancies, sorry ladies! No bodily agency for you. The guy who signs your paycheck each week now controls your uterus.

Oh, and just to be clear, this refusal to cover birth control methods only applies to women. Vasectomies, which serve exactly the same purpose for men, will still be covered. So we’re really not talking about the religious evils of family planning or bodily autonomy. We’re only talking about the evils of women maintaining control over their lives.

But actually.

First of all, let’s talk about who made this decision, shall we? A tiny little group of men.

Literally. That slim majority who voted in favor of Hobby Lobby was 100 percent men. Every female Supreme Court justice sided with the dissent. EVERY. SINGLE. ONE. (Obligatory shout out to Justice Stephen G. Breyer for being the only dude to side with the feminists on this one. We appreciate you, sir.)

So, let’s all take a moment and sigh gigantic, heaving sighs of exasperation at the fact that the bodies of women all over this nation have just been legislated by five, non-uterus-having men.

This could not be clearer. This ruling is about controlling women. Plain and simple.

And it gets worse. Aside from the fact that a bunch of entitled, sexist, wing-bat man-justices just infringed upon women’s bodily autonomy, they also opened up a Pandora’s Box of legal ambiguity.

As the oh-so-wonderful Justice Ruth Bader Ginsburg points out in her ball-busting dissent, exempting employers from providing health insurance coverage for birth control because of their religious beliefs brings up a slew of other possible exemptions.

Will companies owned by Jehovah’s Witnesses be allowed to withhold coverage for blood transfusions? Can Scientologists deny their employees antidepressants? The pig-derived ingredients used to produce anesthesia, vaccines, and pills coated in gelatin can conflict with the religious beliefs of Muslims, Jews, and Hindus. Will employees of companies held by owners of these religions find themselves without coverage as well?

In truth, maybe. That’s the precedent the court is setting with this Hobby Lobby decision. So, watch out if you work for an orthodox Jewish-owned company and need surgery. You might have to suffer through it sans anesthesia.

Seriously? This shit is ridiculous. The legal absurdity SCOTUS is willing to open itself to in the interest of tightening its leash on American women is completely, batshit crazy.

But wait. There’s more. Now that SCOTUS has decided that companies/people (because corporations are apparently more human than women) can pick and choose which parts of a law they abide by based on their religious convictions, all of the laws have the potential to become piecemeal and sort of meaningless.

Everyone, potentially, can become a law book unto themselves. Don’t like this new bill? No problem! Say it conflicts with your religion, and you can opt right out. This defeats the purpose of law entirely — which is, presumably, to protect the people with a set of rules that are established for the common good.

There is no common good anymore, and there is no protection. Your employer thinks you’re a slut who shouldn’t be sleeping around? Too bad for you, love. He can limit your choices and circumscribe your life, and you get no say in the matter.

And finally, the mess this ruling makes out of the freedom of religion clause is insane. Folks are meant to be free to practice their religion without fear of persecution — not to impose their religion as a tool for persecution on unwilling others.

At this moment, the United States is as politically polarized as it was during the Civil War. Secularist, social-safety-net-supporting liberals and religious, anti-tax conservatives are at war right now. This Hobby Lobby decision is just another case in which the battle field is women’s bodies.

So let’s fight this bullshit war, folks. If you believe that women should have affordable access to birth control, join me and Planned Parenthood by telling SCOTUS just how you feel.

We want control over our own bodies and our own lives. Fuck anyone who gets in our way.

Hannah R. Winsten

Hannah R. Winsten is a freelance copywriter, marketing consultant, and blogger living in New York’s sixth borough. She hates tweeting but does it anyway. She aspires to be the next Rachel Maddow. Contact Hannah at staff@LawStreetMedia.com.

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]]> https://legacy.lawstreetmedia.com/blogs/culture-blog/scotus-just-made-battlefield-womens-bodies/feed/ 6 19198 https://legacy.lawstreetmedia.com/news/hobby-lobby-wins-big-obamacare-doesnt-really-lose/ https://legacy.lawstreetmedia.com/news/hobby-lobby-wins-big-obamacare-doesnt-really-lose/#comments Mon, 30 Jun 2014 21:07:18 +0000 http://lawstreetmedia.wpengine.com/?p=19137

Earlier today, in a 5-4 decision, the Supreme Court ruled that the contraceptive mandate in the Affordable Care Act, when applied to closely held corporations such as Hobby Lobby, violates the Religious Freedom Restoration Act (RFRA)

The post Hobby Lobby Wins Big, but Obamacare Doesn’t Really Lose appeared first on Law Street.

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In a 5-4 decision, the Supreme Court ruled that the contraceptive mandate in the Affordable Care Act, when applied to closely held corporations such as Hobby Lobby, violates the Religious Freedom Restoration Act (RFRA). Justice Samuel Alito wrote the opinion for the majority, which also included Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas, and Justice Anthony Kennedy. The opinion was a narrow one–Justice Alito made it clear that they were ruling on the specifics of this case–not opening the floodgates for other religious challenges. His opinion also stressed that this ruling only applies to closely held corporations with fewer than five majority owners. But despite the narrow ruling, this is a clear victory for Hobby Lobby.

The Background

In order to understand how the court arrived at this opinion, we must first understand RFRA, the law under which the contraceptive mandate was challenged. That law states that, “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” An exception to this law can only be provided if it shows a compelling governmental interest and that governmental interest is achieved using the least restrictive means possible. This means the interest must be achieved in a way that least violates our First Amendment right to religious freedom. Therefore, in order for Hobby Lobby to win this case they had to:

1)   Show that a corporation could practice religion and be considered a “person” under this law;

2)   Show that Hobby Lobby’s ability to exercise religion had been substantially burdened by the contraceptive mandate;

3)   Either show that the contraceptive mandate was not a compelling governmental interest or prove that it was not achieved in the least restrictive means possible.

The Decision

The majority opinion held that a corporation could practice religion because its administration could make business decisions based off of religious beliefs. The majority also claimed that because companies do donate to charities, they are capable of caring about values that transcend profits–such as religion. Finally, they pointed out that in certain cases, Congress has specifically added clauses into laws specifying that corporations would not qualify, and would have done exactly that if they did not intend for corporations to be covered by RFRA.

On the other hand, the dissent, written by Justice Ruth Bader Ginsburg, argued that a corporation cannot exercise religion because there is no clear way to decide who determines its religion. Would it be 51 percent of the shareholders? Or the majority shareholder? The CEO? This objection is why the majority applied this ruling only to closely held corporations with five or fewer owners, such as Hobby Lobby. These are often family-owned and can feasibly run their company based off of religious issues.

The owners of Hobby Lobby, the Green family, believe the contraceptive drugs they were required to include in their employees’ health coverage are similar to abortions. Their religious beliefs state that life starts at conception. Therefore, their ability to exercise their religion is substantially burdened by the contraceptive mandate.

Once the majority established that Hobby Lobby could be considered a person under RFRA and that it faced a substantial religious burden, they had to determine if the contraceptive mandate could be considered a legal exception. The majority conceded that providing contraceptive coverage was a compelling government interest, but also said that it was not done in the least restrictive way. They assert that because there is a penalty for not providing the contraceptives, the Greens were forced to either act against their religion or pay a significant fine. The majority opinion says that this is not the least restrictive way to provide contraception coverage, as the government could just provide the contraceptives itself and allow the Greens to respect their beliefs.

Another argument brought up in the dissent is that this ruling could lead to religious exemptions for other issues, such as coverage for immunizations and blood transfusions. However, the majority held that they were only ruling on the contraception mandate, stating that this ruling does not mean they would rule the same way for any other health care challenge under RFRA. The opinion specifically cites immunizations as an example of governmental interest that is compelling and is reached by the least restrictive means possible.

The Impact 

Now that we understand the ruling, let’s examine its impact, particularly on the Affordable Care Act. If we look at the ACA’s overall ability to provide healthcare, the impact is minimal. The ruling only strikes down one mandate, and says the government can still provide contraceptives itself. So in a way, it could expand governmental coverage of healthcare. Where this hurts the ACA is in the political battlefield, where the fact this was a very narrow ruling means almost nothing. All that matters is that the Democrat’s health care law overreached. This issue could very well serve as a rallying point for conservatives in the 2014 mid-term elections.

Already there are headlines popping up that make it seem like the Supreme Court ruled against the ACA. But at the end of the day, all the Supreme Court did was curb a small portion of the contraception mandate. They didn’t rule any mandate unconstitutional. They just provided a religious exception, while still leaving routes open for women to get the coverage the ACA promises.

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Matt DeWilde (@matt_dewilde25) is a member of the American University class of 2016 majoring in politics and considering going to law school. He loves writing about politics, reading, watching Netflix, and long walks on the beach. Contact Matt at staff@LawStreetMedia.com.

Featured image courtesy of [Nate Grigg via Flickr]

Matt DeWilde

Matt DeWilde is a member of the American University class of 2016 majoring in politics and considering going to law school. He loves writing about politics, reading, watching Netflix, and long walks on the beach. Contact Matt at staff@LawStreetMedia.com.

The post Hobby Lobby Wins Big, but Obamacare Doesn’t Really Lose appeared first on Law Street.

]]> https://legacy.lawstreetmedia.com/news/hobby-lobby-wins-big-obamacare-doesnt-really-lose/feed/ 2 19137 https://legacy.lawstreetmedia.com/news/scott-walker-walks-legal-tight-rope/ https://legacy.lawstreetmedia.com/news/scott-walker-walks-legal-tight-rope/#respond Thu, 26 Jun 2014 18:48:56 +0000 http://lawstreetmedia.wpengine.com/?p=18512

In 2012, Wisconsin Governor Scott Walker became the first American governor to survive a recall election. But it was recently discovered that he may have won that election illegally.

The post Scott Walker on a Legal Tightrope appeared first on Law Street.

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In 2012, Wisconsin Governor Scott Walker became the first American governor to survive a recall election. But it was recently discovered that he may have won that election illegally. In court documents released last week, prosecutors argued that Walker was involved in a “criminal scheme” that involved coordinating with outside groups. Special Prosecutor Francis Schmitz also alleges that Walker collaborated with “a number of national groups and prominent figures,” including Karl Rove.

Campaign Finance Law: A Primer

To better understand what Walker is accused of, let’s walk through the basics of campaign finance law. Ever since the Citizens United v. Federal Election Commission Supreme Court Ruling, which allowed corporations to make unlimited independent expenditures for political purposes, Super PACS have been on the rise. Super PACS are allowed to raise as much money as they possibly can and spend as much as they like on politics. The only catch is that they cannot coordinate with actual political campaigns. This means a Super PAC can advocate for a candidate, or for a candidate’s issues, but they cannot have any communication with the candidate’s campaign. Walker is accused of coordinating with Super PACs–generally referred to as outside groups.

Walker’s Case 

If you think all that seems a bit complicated, it’s even harder to figure out if Walker is guilty or not. The prosecutors do have some pretty solid evidence, including email exchanges, that point to there being collaboration between Walker’s campaign manager and outside groups. But the prosecution is currently in an appeals battle to see if the emails will even be admissible, given that a judge has already ruled that the subpoenas used to get this evidence should have never been issued. According to Judge Rudolph Randa, Walker may have found a loophole in campaign finance law, which would render the subpoenas illegitimate.

The loophole that Walker may have taken advantage of is that the ads made by the outside group were “issue ads” and not “campaign ads.” Here is an example of an “issue ad” made by the Wisconsin Club for Growth, one of the organizations accused of collaboration:

And here is a “campaign ad” made by Scott Walker:

The main difference between the two is that in the second ad, Walker says he is running for governor and it’s clearly an ad made to get votes. But the first ad never mentioned an election. It was just raising an issue and asking citizens to call their congresswoman about it. It never asks the viewers to vote for anyone.

This may seem like a subtle difference, but it has huge implications under the law. A “campaign ad” has many more legal restrictions than an “issue ad.” So, because the outside groups exclusively made “issue ads,” Judge Randa ruled that the coordination the prosecutors claim happened is perfectly legal.

A panel of appellate judges is hearing the case now. This case may go to the Supreme Court, as it is a very important issue that requires clarification. If the appellate court upholds  Randa’s decision, then it will be legal for campaigns in Wisconsin to coordinate with outside groups, as long as the outside groups only use “issue ads.” If the case makes it to the Supreme Court, they could rule that this type of coordination must be allowed in all states.

Fortunately, I do not see this happening. Though the same majority that ruled in Citizens United  is still on the court, I think they would rule that this type of coordination should not be allowed. The key to the ruling in Citizens United was that independent expenditures could not be limited. They cease to be independent expenditures when there is coordination, and I do not think SCOTUS would find “issue ads” to be free of any electioneering. The Supreme Court would hopefully see them for what they are–ads to sway voters. The fact that “issue ads” never mention an election is just a disingenuous loophole. Let’s be honest, when was the last time you saw an ad like the one posted above and it wasn’t an election season?

Now, as far as the Scott Walker case goes, it is on hold until the Court of Appeals rules on whether there is even a crime for the prosecution to look into. Then they have to go back to a Wisconsin Court and see if they can even get their subpoenas re-issued. The whole process could take a while, especially if the case makes it to the Supreme Court. And even if the Court of Appeals does rule in the prosecution’s favor, there is still a long way to go before charges can be filed. All factors considered, it seems like this issue will have very little impact on Walker as a 2016 Presidential hopeful.

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Matt DeWilde (@matt_dewilde25) is a member of the American University class of 2016 majoring in politics and considering going to law school. He loves writing about politics, reading, watching Netflix, and long walks on the beach. Contact Matt at staff@LawStreetMedia.com.

Featured image courtesy of [WisPolitics.com via Flickr] 

Matt DeWilde

Matt DeWilde is a member of the American University class of 2016 majoring in politics and considering going to law school. He loves writing about politics, reading, watching Netflix, and long walks on the beach. Contact Matt at staff@LawStreetMedia.com.

The post Scott Walker on a Legal Tightrope appeared first on Law Street.

]]> https://legacy.lawstreetmedia.com/news/scott-walker-walks-legal-tight-rope/feed/ 0 18512 https://legacy.lawstreetmedia.com/issues/politics/election-laws-discourage-voting-can-fix/ https://legacy.lawstreetmedia.com/issues/politics/election-laws-discourage-voting-can-fix/#respond Mon, 23 Jun 2014 20:59:40 +0000 http://lawstreetmedia.wpengine.com/?p=18224

America is supposed to be the world’s greatest democracy, but can it possibly live up to that promise if its people don’t vote? This article attempts to explain which Americans vote, which don’t, how Congress can fix the issue, and why they probably won’t anytime soon. Who votes? If you are rich, old, white, have […]

The post U.S. Elections: Americans Don’t Rock the Vote and Here’s Why appeared first on Law Street.

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Image courtesy of [brooklyntheborough via Flickr]

America is supposed to be the world’s greatest democracy, but can it possibly live up to that promise if its people don’t vote? This article attempts to explain which Americans vote, which don’t, how Congress can fix the issue, and why they probably won’t anytime soon.

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Who votes?

If you are rich, old, white, have a college degree, and go to church often, you probably vote. This is the demographic that is most likely to turn up to the polls on Tuesday. According to the Pew Research Center, whites are disproportionately represented at the polls: 37 percent of white people are voters, as opposed to only 29 percent of non-whites. Forty-two percent of those who are over the age of 50 vote, while only 22 percent of those between 18-29 regularly vote. Almost half of all college degree holders vote, while those without degrees turn out at a measly 28 percent. Strangely enough, attending church makes you eight percent more likely to vote.

While the youth vote is low, it has been on the rise recently. Forty-four percent of young people voted in the 2008 election, the highest turnout since 1972. While that number did go down slightly in 2012, it was a still a higher turnout than 2000.

Find more information about who votes from this infographic couresty of Takepart.com.

Via: TakePart.com

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How many Americans vote overall?

Not that many– in the 2012 election, only 58.2 percent of the nation voted for President. To put that in perspective, the turnout in the most recent Afghani election was about the same. Even though, the Taliban was threatening to blow up polling stations and conducted suicide bombings two months before Election Day.

In the 2010 midterm elections, it was even worse with only 41 percent of voter turnout. Less than a majority of American citizens voted for their representation in Congress in 2010.

The United States is one of the worst countries in the world when it comes to voter turnout. Between 1945 and 2001, American voter turnout averaged at 66.5 percent. This means we ranked 120 out of 169 countries. The Dominican Republic, Jamaica, and Hungary all had higher voter turnouts than United States.

More embarrassingly, as this video points out, America has the lowest voter turnout amongst developed nations:

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Why don’t more people vote?

A plurality of non-voters cite apathy as the main cause. According to the Census Bureau, 26.4 percent of those who did not vote in 2008 chose not to exercise this right because they were uninterested in either candidate. This means that four million registered voters were not going to the polls no matter how easy it was to vote.

However, a significant number of registered voters did not make it to a polling station even though they wanted to vote. Almost 18 percent of registered voters did not cast a ballot because they were too busy, most likely because they were at work that Tuesday.

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Why does the Constitution require Election Day to be on a Tuesday?

A video from the appropriately named organization “Why Tuesday” explains this odd rule:

It all goes back to the days of horse and buggy. There was no national electoral date until 1845, when Congress passed a law making it Tuesday. You see, Election Day could not be on Monday, because that would require voters to travel to the polls on horse and buggy on Sunday, which was the Sabbath day. And since Wednesdays were Market Days for farmers, Tuesday was the date that made the most sense.

There have been efforts to change the date, however, there has not been enough support. Rep. Steve Israel (NY-D) has introduced the Weekend Voting Act in multiple Congresses. In the 113th Congress (the current Congress), there has been no meaningful action on the bill and it only has four cosponsors.

So why are no leaders supporting a change? There is a policy explanation and a political explanation.

The policy explanation comes in the form of a study that shows that a change to weekend elections does not significantly improve voter turnout. According to the Government Accountability Office (GAO), early voting would, at most, improve voter turnout by only four percent. The GAO admitted that reporting on potential benefits and downsides of weekend voting was difficult since there was no American case to study, but they did go over 24 independent studies on the topic.

The report also included quotes from state and local officials expressing concern that they might not be able to find volunteers to work the polls if they have to compete with fun weekend activities.

Of course, like all things in Washington, there is a political aspect to this issue.

Weekend voting would disproportionately help the poor get to the polls. Single parents and those who work multiple would benefit from the move to the weekend. So, what’s wrong with that? Well, poor people tend to vote for the Democratic Party, making Republicans unlikely to pass any legislation that would make it easier for them to vote.

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If we can’t change the date of Election Day, how else can we boost turnout?

Make Election Day a holiday

Instead of moving Election Day to the weekend, Congress could just declare Election Day a federal holiday, giving everyone the day off of work so that they can vote.

Rainn Wilson from The Office supports that idea in this weird video featuring a 19th century sharecropper voting in modern day America

On the flip side, making Election Day a federally recognized holiday solves none of the problems associated with moving Election Day to a weekend (makes it difficult to attract poll workers, doesn’t guarantee turnout), and it creates the problem of losing a workday in the middle of the week.

Mandate Voting

Congress could also use its taxing power to mandate voting. Australia, the country that boasts the highest voter turnouts, fines anyone who does not go to the polls. While the fine is only A$20 ($18), that is still enough to convince most people to go to the polls.

Mandated voting could also have the added benefit of forcing candidates to run towards the center of American politics as opposed to attracting radicals. If everyone is voting, it makes little sense to try and appeal to people on the far end of the political spectrum. This phenomenon is explained in this video:

Of course, the American people aren’t the biggest fans of mandates recently, so it is unlikely that this will ever happen.

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What other challenges do voters face at the polls?

Speaking of voting not being easy, it has actually become more difficult to vote in just the past few years. Here are a few ways that politicians and judges have curtailed access to the polls.

The Gutting of the Voting Rights Act

The Voting Rights Act was passed in 1965 to ensure the right to vote for all Americans. The law outlawed poll taxes and literacy tests, but, most importantly, it places the election laws of specific states and counties under the purview of the federal government. A list of these jurisdictions can be found here. That means that, if any of those states or counties passes a law altering their election format, the Department of Justice has the ability to step in and overturn the law if it is found to be discriminatory.

Well, it used to have this ability. In June 2013, the Supreme Court overturned section four of the law, which determined which states and counties had to get their laws approved by the federal government. The majority opinion stated that the country has changed dramatically since 1965 and that racism in election laws is basically over.

As a result, those jurisdictions are now allowed to make their own election laws without the review of the Department of Justice.

This report from SCOTUSblog shows what happened in Pasadena, Texas after this ruling took place.

Voter ID Laws

As a reaction to this ruling, literally days after it was passed down, states across the country started passing and implementing voter ID laws. These are laws that require voters to present a photo ID before casting a ballot.

The National Conference of State Legislatures has put together an interactive map that shows which states now require or request a photo ID at the polling booth.

Supporters claim that these laws are necessary in order to fight voter fraud. The problem? A News21 analysis shows that there have only been 10 cases of voter impersonation since 2000. That’s one out-of-fifteen million voters during that time period. This form of vote tampering has impacted exactly zero elections.

Opponents argue that these laws are thinly veiled attempts to stop poor people and minorities from voting. 11 percent of US citizens do not have a photo ID, and 25 percent of African Americans do not have voter ID. Since photo ID requires a purchase in most states, the new law prevents poor voters from voting.

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Why is it important to get more people to vote?

I’ll let P. Diddy and then-Senate candidate Barack Obama from 2004 take this one:

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Conclusion

Americans currently face many obstacles at the polls, and Congress seems to have little interest or stake in solving them. As long as Election Day is still a workday and states pass restrictive voting laws, voter turnout will remain low.

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Resources

Primary

Census: Voting and Registration Information From the Census Bureau in 2008

Congress: The Weekend Voting Act

GAO: Improving Voter Turnout

Additional

Pew: Who Votes and Who Doesn’t?

Child Trends: Trends in Young Vote

IDEA: Voter Turnout Rates From a Comparative Perspective

Washington Post: Census Bureau Findings

NPR: Why Do We Vote on Tuesday?

ABC: Democrats Eye a New Election Day

CNN: Election Day Should be a Federal Holiday

BBC: How Australia’s Voting Mandate Works

Guardian: The Supreme Court Guts the VRA…Since Racism is Over

NCSL: Map of States That Have Voter ID Laws

ACLU: Voter ID Laws

Eric Essagof

Eric Essagof attended The George Washington University majoring in Political Science. He writes about how decisions made in DC impact the rest of the country. He is a Twitter addict, hip-hop fan, and intramural sports referee in his spare time. Contact Eric at staff@LawStreetMedia.com.

The post U.S. Elections: Americans Don’t Rock the Vote and Here’s Why appeared first on Law Street.

]]> https://legacy.lawstreetmedia.com/issues/politics/election-laws-discourage-voting-can-fix/feed/ 0 18224 https://legacy.lawstreetmedia.com/blogs/culture-blog/patricia-schroeder-trail-blazer-women-politics/ https://legacy.lawstreetmedia.com/blogs/culture-blog/patricia-schroeder-trail-blazer-women-politics/#respond Mon, 16 Jun 2014 15:16:03 +0000 http://lawstreetmedia.wpengine.com/?p=17283

She was the Hillary Clinton before Hillary Clinton. She stared gender stereotypes in the face and boldly took them on. She paved the way for women desiring to make their mark in the political world and did so with pride. Though she never once considered a career in politics growing up, Patricia Schroeder became a […]

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She was the Hillary Clinton before Hillary Clinton. She stared gender stereotypes in the face and boldly took them on. She paved the way for women desiring to make their mark in the political world and did so with pride. Though she never once considered a career in politics growing up, Patricia Schroeder became a national icon and a representative of women and their rights during her time serving in the United States Congress. She shocked the masses time and time again, especially when she ran an unprecedented campaign for President of the United States.

Despite her monumental achievements, she is surrounded by a humble and genuine air. I felt completely comfortable approaching her at her appearance at the Library of Congress last week to request an interview. I wrote a brief article chronicling the short event, which barely whet my palate of curiosity. Luckily she quickly agreed to my request.

Patricia Schroeder, born in Oregon, comes from modest beginnings. Her father worked in the aviation industry, which often uprooted the family from one city to another. Because of her father’s career, Patricia Schroeder obtained a license to fly and developed an admiration for Amelia Earhart, along with other bold female figures. “Eleanor Roosevelt and Amelia Earhart were two women who spoke their minds and branched out and did things that women weren’t normally doing,” Schroeder explained in a pensive tone during our phone conversation.

Because her mother was a teacher, Pat Schroeder grew up with a female role model who was successful as both a mother and a working woman. “I was very lucky in that my mother was a teacher and I didn’t have as many hangups about being able to work and raise my children. I didn’t have such a severe attack of guilt about doing both. [My parents] encouraged me to do whatever I want.” Schroeder does not think that her political career had any negative impacts on her children. “They are both well adjusted, not on drugs, one went to Princeton and got a PhD, one went to Georgetown and got an MBA, and they’re both married with two kids.” Yes, it sounds like they are doing just fine.

During our interview, Schroeder recounted an amusing anecdote about the time when her son called her while he was at college. The simple reason was to thank her for not constantly asking if he was dating anyone like the mothers of his friends did. Schroeder said that the information about his friends’ romantic lives was none of their parents’ business.

After attending the University of Minnesota for her undergraduate degree, Schroeder attended Harvard Law School. When I asked how her time at Harvard changed her as a person, she pointed out that it was good preparation for entering into the male dominated Congress later on in life. “I went to the University of Minnesota first and there were 30 or 40 thousand students. It was huge and we were assumed to be adults; if you come and you pass, great, if you come and don’t pass, too bad. At Harvard it was more regimented in a way. A lot of the students had always gone to private schools or [gender] segregated schools and couldn’t get over going to schools with girls.” She told me that men constantly lectured her about taking a “man’s job.”

Despite her immense success as a player in the political arena, Schroeder never considered a career in politics before her husband’s suggestion that she run for congress to challenge the Republican incumbent in their Colorado district. James, her husband, was not only responsible for jump starting her career as a politician at age 32, but also acted as a role model for men whose wives were in similar roles. “A lot of guys didn’t know how to manage if their wife was in a prominent role,” Schroeder explained. “They thought it reflected on their masculinity.”

Being one of the few female politicians at the time was certainly challenging, but Schroeder used a variety of techniques to combat the difficulties. When I asked if she ever tried to change herself to better fit into the testosterone-dominated world of Washington politics, she quickly answered, “No. I always figured I was not an actress. If I couldn’t be myself this whole thing was not going to happen. What you saw was what you got.”

She was always well known for her quippy one-liners and sense of humor. For example, when asked how she could be a mother and a politician, she explained that she had “a uterus and a brain that both worked.” According to Schroeder, “humor is a wonderful way to keep your head. You can either get mad or find humor in it.” She partly attributes her ability to come up with her famous quotes to her gender. “Males always use sports analogies. Part of why people thought [my sense of humor] was different, was just the gender difference in what women might say. They rarely talk about ‘moving the goal posts’.”

Though in some ways women’s rights have come a long way, many issues still stand out for Schroeder as great challenges facing women today. “To me, it’s shocking that we are just a few years away from looking at having had the vote for 100 years, and yet we still aren’t in the constitution. Still? Remember Abigail Adams writing to John saying ‘remember the ladies’? Well, they still haven’t remembered the ladies.” Preventive healthcare for women is also an issue at the forefront of Schroeder’s mind, as it always was during her time in Congress. “One hundred years ago, Margaret Sanger was saying contraception was a big part of women’s preventative health issues and now the Supreme Court is looking into if it is necessary.”

Schroeder also criticizes the lack of equality between women and men in the workforce, and the measly amount of time given to women for maternity leave. “Two-thirds of the minimum wage earners are women and women college graduates will make less than men by about one million six.” Single moms have still got a really tough time, and we haven’t done anything to make childcare more accessible. In the United States, if you work for a group of more than 50 people you can get 12 weeks of unpaid leave. Women are not a minority, yet we haven’t been able to put it together and say ‘enough already.’ Somehow, it just hasn’t moved women and I guess I must be strange.”

During both of my encounters with Schroeder, she proved to be anything but “strange.” I see her as simply ahead of the curve, as she always was. Her iconic role as a political pioneer for women made it easier for them to enter into similar careers. Patricia Schroeder is a prominent advocate for taking action to make a change. “Don’t wait for somebody to ask you — men never wait to be asked. We keep pretending that we are at a dance and this is not a dance. Women are 100 percent qualified and men about 50 percent. Getting women to step forward and say ‘I can do this’ is very important, and they couldn’t mess it up any more than it already is.”

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Marisa Mostek (@MarisaJ44) loves globetrotting and writing, so she is living the dream by writing while living abroad in Japan and working as an English teacher. Marisa received her undergraduate degree from the University of Colorado in Boulder and a certificate in journalism from UCLA. Contact Marisa at staff@LawStreetMedia.com.

Featured image courtesy of [Wikimedia]

Marisa Mostek

Marisa Mostek loves globetrotting and writing, so she is living the dream by writing while living abroad in Japan and working as an English teacher. Marisa received her undergraduate degree from the University of Colorado in Boulder and a certificate in journalism from UCLA. Contact Marisa at staff@LawStreetMedia.com.

The post Patricia Schroeder: Trailblazer for Women in Politics appeared first on Law Street.

]]> https://legacy.lawstreetmedia.com/blogs/culture-blog/patricia-schroeder-trail-blazer-women-politics/feed/ 0 17283 https://legacy.lawstreetmedia.com/news/patent-infringement-gets-bump-supreme-court-ruling/ https://legacy.lawstreetmedia.com/news/patent-infringement-gets-bump-supreme-court-ruling/#comments Thu, 05 Jun 2014 13:45:41 +0000 http://lawstreetmedia.wpengine.com/?p=16510

A software industry precedent was set by the Supreme Court on July 2 by the unanimous reversal of a 2006 ruling in the patent infringement suit between Akamai Technologies Inc. and Limelight Networks Inc. This SCOTUS ruling will make it easier for patent infringement to occur.

The post Supreme Court Makes it Easier to be a Patent Troll appeared first on Law Street.

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The Supreme Court set software industry precedent on Monday with the unanimous reversal of a 2006 ruling in the patent infringement suit between Akamai Technologies Inc. and Limelight Networks Inc. Akamai had originally testified that Limelight encouraged its customers to violate an Akamai patent by copying technology to improve website traffic efficiency. The initial ruling was made under the doctrine of “induced” infringement, which tests liability by determining if the violator “knowingly induces others” to fully commit the crime, rather than first party infringement.

With five dissenting votes the decision was one of much dispute because it did not fit the parameters of classic patent infringement. In December 2013, the Solicitor General advocated a review of this ruling based on the concept of “divided” infringement. This notion challenged the traditional definition of patent infringement, which typically includes a purposeful violation committed by a single entity. In the case of Akamai v. Limelight, multiple independent users took some steps toward infringement, thus muddling the controversy and ultimately leading to this week’s reversal. Many top tier companies, such as Facebook, Google, and Oracle supported the reversal, asserting that they would have faced mountains of claims and skyrocketing litigation costs across the board had Akamai won the suit.

The complexity of this case’s nuances bring up greater concerns about the growing disparity between the context of the Patent Act’s conception more than two centuries ago, and today’s technological advances. Copying someone else’s invention is now as simple as downloading a file with the click of a button. Had Limelight been defeated, we would have seen a staggering increase in the already heavy burden of patent infringement suits on the technology community.

The nature of the patent industry has developed in the twenty first century from tangible products to cloud-based software. According to the Wall Street Journal, as of 2012 technology patents accounted for more than half of all the patents granted that year. This trend in software research and development has essentially turned patents into the type of invaluable investments that brick-and-mortar manufacturing used to be.

Due to this change it seems that trolling is no longer exclusive to social media. We’ve seen the rise of non-practicing entities (NPEs), more commonly known as “patent trolls”. These players work to build and enforce litigation for other people’s patents in the effort to collect licensing fees. The reversal of the Akamai v. Limelight case lifted helped to restrict the possible business of this secondary patent industry that typically hindered innovation by tying up inventors in legal trials.

It seems to me that while top companies, like Apple and Google, continue to push the limits of technology, they are simultaneously presented with a paradoxical challenge. As the only safeguard against having their ideas stolen by or credited to others, patents continue to serve as the blood of the technology industry.

On the other hand, patent trolls and entrepreneurs that use patent licensing business models to prematurely buy, sell, and trade patents have effectively altered the industry. In a way, patents are no longer fostering innovation but are rather sold to the highest bidder who may not actually create the best product, despite their sole rights to it. Unfortunately, these third-party entities of patent trolls and NPEs are driven by money, and when money is paired against the dreams of inventors, money typically wins. This is especially true with startups that don’t have the gross capital and market share of companies like Apple. In the end, true innovators, and the consumer audience they hope to serve, are the ones that tend to be on the losing end.

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Erika Bethmann (@EBethmann) is a New Jersey native and a Washingtonian in the making. She is passionate about travel and international policy, and is expanding her knowledge of the world at George Washington University’s Elliot School of International Affairs. Contact Erika at staff@LawStreetMedia.com.

Featured image courtesy of [Alexandre Dulaunoy via Flickr]

Erika Bethmann

Erika Bethmann is a New Jersey native and a Washingtonian in the making. She is passionate about travel and international policy, and is expanding her knowledge of the world at George Washington University’s Elliot School of International Affairs. Contact Erika at staff@LawStreetMedia.com.

The post Supreme Court Makes it Easier to be a Patent Troll appeared first on Law Street.

]]> https://legacy.lawstreetmedia.com/news/patent-infringement-gets-bump-supreme-court-ruling/feed/ 1 16510 https://legacy.lawstreetmedia.com/news/3-reasons-supreme-court-needs-publicize-edits/ https://legacy.lawstreetmedia.com/news/3-reasons-supreme-court-needs-publicize-edits/#respond Fri, 30 May 2014 17:08:05 +0000 http://lawstreetmedia.wpengine.com/?p=16073

It is often assumed that when the Supreme Court issues a decision, the ruling marks the final word on the legal question proposed. However, something that many citizens might not know is that the Supreme Court decisions can be altered after their publication without public notice.

The post 3 Reasons Why the Supreme Court Needs To Publicize Its Edits appeared first on Law Street.

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As the highest court in the United States, the Supreme Court is viewed as having the greatest authority over the interpretation of the law. It is often assumed that when the court issues a decision, the ruling marks the final word on the legal question proposed. However, something that many citizens might not know is that the Supreme Court decisions can be altered after their publication without public notice.

Richard J. Lazarus, professor of law at Harvard University, has written an article set for publication in the December 2014 Harvard Law Review that exposes the Supreme Court’s practice of editing and changing opinions after they are initially published. He states that the Court’s decisions do include a statement in small text that reads, “this opinion is subject to formal revision before publication.” However, in many cases, these changes are not simple edits, and the court does not make a public notification of these additions or deletions from opinions.

This practice of editing court opinions is by no means new: the Supreme Court has been altering the wording of its decisions since the early days of its existence. Indeed, some of the most famous rulings have been edited after they were issued. The 1857 Dred Scott case, for example, received an additional 18 pages written by Chief Justice Roger B. Taney, who wrote the majority opinion for the case. More recently, the 2003 case Lawrence v. Texas, which significantly struck down a Texas law against sodomy, was altered: a sentence written in Sandra Day O’Connor‘s concurring opinion was struck in which she had stated that Justice Antonin Scalia “apparently agrees that […] Texas’ sodomy law would not pass scrutiny under the Equal Protection Clause.” In these cases and so many others, justices have changed the wording, added or deleted sentences, and made other edits to their opinions without the notification of these alterations. Something here doesn’t seem right.

3 reasons why these discrete changes are problematic:

1. It can cause discrepancies in understanding the law.

Law professors rely on many court decisions in their instruction. If changes to court decisions are not announced, these professors continue to teach and discuss older versions of court decisions that may have undergone important edits. How can professors properly instruct the next generation of lawyers and lawmakers if they do not have access to the most recently updated copies of case law? Additionally, lawyers also need to have the correct version of court cases at their disposal in order to use Supreme Court decisions as precedents for their current cases.

2. Failing to notify what changes were made in the final draft of a decision does not allow for uniformity of the law.

The fact that the court makes unpublicized changes to the law leads to a number of different versions of court decisions, which can become confusing. Supreme Court decisions are extremely important: as the highest judicial body in the nation, the Supreme Court can, through its rulings, overturn decisions by lower courts and declare laws at the local, state, and national level unconstitutional. After the Supreme Court reaches a decision, government at all levels in the United States must comply with the Court’s ruling and make the necessary changes to the law. However, in order to do so, there needs to be a uniform understanding of what the Supreme Court has ruled.

The fact that the court makes discreet changes to the law without public notification allows for different renditions of their decisions to circulate. Some who pay close attention to the court may realize that a ruling’s wording has changed, but many websites continue to have older versions of court rulings. The copy of O’Connor’s concurring opinion on the Cornell Law website, for example, still contains the sentence that, as previously explained, has been admitted. The fact that even law websites exhibit older versions of cases is troubling.

3. The public deserves to be made aware of any changes to the interpretation of law that could affect them.

The Court not publicly announcing when edits are made to its decisions provides yet another example of the lack of government transparency. Even though the court notes that its decisions are subject to change, it is hard for average citizen to realize when edits are made unless the Court announces them. And while many of these changes constitute simple word changes, it could also be the case that the court could make a substantial addition to a case that could affect the livelihoods of Americans. Even something as simple as the addition or deletion of a few words could change the way a phrase in a decision is interpreted, and this could be crucial in Americans’ understanding of the law.

Unfortunately, there is no law or mechanism that can force the supreme judicial body to publicize these changes. However, the court should still choose to do so, and some justices of recent times such as Harry Blackman realized that the Court “operates on a strange and ‘reverse’ basis, where the professional editing is done after initial public release.” To preserve the credibility of their institution, it is incumbent upon justices to publicize their changes

[NY Times] [Harvard Law] [Cornell Law]

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Sarah Helden (@sheldren430)

Featured image courtesy of [Kenudigit via Flickr]

Sarah Helden

Sarah Helden is a graduate of The George Washington University and a student at the London School of Economics. She was formerly an intern at Law Street Media. Contact Sarah at staff@LawStreetmedia.com.

The post 3 Reasons Why the Supreme Court Needs To Publicize Its Edits appeared first on Law Street.

]]> https://legacy.lawstreetmedia.com/news/3-reasons-supreme-court-needs-publicize-edits/feed/ 0 16073 https://legacy.lawstreetmedia.com/news/iq-requirements-death-penalty-change-due-scotus-ruling/ https://legacy.lawstreetmedia.com/news/iq-requirements-death-penalty-change-due-scotus-ruling/#respond Fri, 30 May 2014 16:42:06 +0000 http://lawstreetmedia.wpengine.com/?p=16204

In a 5-4 ruling, the Supreme Court overturned a Florida law that used a strict IQ cutoff point to determine an inmate's eligibility for capital punishment.

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After a botched execution in Oklahoma rose questions about the cruelty of the death penalty last month, capital punishment is in the news again this week. The Supreme Court has ruled a Florida law unconstitutional that barred the execution of any prisoner with an IQ less than 70, after the case was heard in March. The law was intended to prevent inhumane treatment of those prisoners, but the Justices who voted to strike down the law stated that a strict IQ cut off did not take into account inherent issues with IQ tests. The ruling was 5-4, with the more liberal side of the court voting to overturn Florida’s law. The perennial swing vote, Justice Anthony Kennedy swung to their side.

The problem with such an inflexible law is that it allowed some prisoners, who fell just above the 70 point threshold, to be executed. IQ tests are not even close to absolute–there is a margin of error that needs to be taken into account. Someone with an IQ of 71 could have the same mental capacities as someone who receives an IQ test of 69. Florida’s law doesn’t recognize that. There is also the fact that IQ can vary over time. When you reach your 50s or 60s, your score will usually go down by a point or two. There’s also the problem that our IQ scores, as a society, have changed over time. Every decade, our average IQ scores go up by about 3 points. Finally, there’s the matter of education–people who had more access to education may score higher on an IQ test, even if their mental abilities are the same as another with less education. The benchmark of “70” means little to nothing, other than an arbitrary number used to decide the future of some prisoners.

Many US states that still allow capital punishment have some sort of IQ or capability requirement in order to sentence a prisoner to death. However, most of those states take a holistic look at prisoners, incorporating psychological assessments and recognizing the margin of error that is present in an IQ test. Florida was one of the few with a purely numerical cutoff, but the others with similar laws will also be forced to reevaluate their policies. The other states are Alabama, Arizona, Delaware, Florida, Kansas, Kentucky, North Carolina, Virginia, and Washington. Although Kansas’s death penalty hasn’t actually been used in half a century, and Washington may be moving towards abolishing theirs.

The case that made it to the Supreme Court involved a man named Freddie L. Hall. He has been in prison since 1978, when he was convicted of murdering a 21-year-old woman who was pregnant. His execution has been hanging in the balance due to his borderline IQ scores. He has taken nine IQ tests over roughly the last 50 years. On those tests, he has scored anywhere from low 60s to 80. His most recent tests have hovered right around that 70 benchmark–a few over and a few under. However, not all of his tests have been deemed admissible in court and the one that was used in his most recent hearing had a score of 71. That means that Hall was just one point about the 70 cutoff, even though there’s no evidence to suggest that he consistently could score above 70. Throughout Hall’s entire life, his doctors had classified him as mentally disabled based not just on IQ scores but on other tests and on their analysis.

As a result of the rule regarding Hall, and the changes that the nine aforementioned states will have to make, there are a few prisoners who may get another chance at appealing the ruling that put them on death row.

This is a great step towards a recognition that IQ tests have not, for a long time, been conclusive, and that something as serious as the death penalty needs to be decided on a case-by-case basis whenever possible.

[New Republic]

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Anneliese Mahoney (@AMahoney8672) is Lead Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

Featured image courtesy of [Biologycorner via Flickr]

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

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]]> https://legacy.lawstreetmedia.com/news/iq-requirements-death-penalty-change-due-scotus-ruling/feed/ 0 16204 https://legacy.lawstreetmedia.com/news/3-reasons-supreme-court-must-protect-public-workers/ https://legacy.lawstreetmedia.com/news/3-reasons-supreme-court-must-protect-public-workers/#respond Fri, 02 May 2014 20:06:48 +0000 http://lawstreetmedia.wpengine.com/?p=15096

Attention public workers: Due to legal precedent, the Supreme Court may not be willing to protect your job if you’re forced to testify against your employer. The Supreme Court heard oral arguments April 28 in Lane v. Franks, in which Edward Lane, an Alabama state employee, is suing his employer, who he says fired him […]

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Attention public workers: Due to legal precedent, the Supreme Court may not be willing to protect your job if you’re forced to testify against your employer.

The Supreme Court heard oral arguments April 28 in Lane v. Franks, in which Edward Lane, an Alabama state employee, is suing his employer, who he says fired him after he testified against the agency several years ago. The case poses a serious question: does freedom of speech protect public employees from being fired after exposing harmful practices by their employer?

In 2008 and 2009, Lane was subpoenaed to testify in a public corruption case in which his testimony was key in exposing corrupt practices and spurred a major overhaul of the state’s ethics codes. Despite all of that, Lane ultimately harmed himself with his testimony: he was fired from his position as an employee at Central Alabama Community College.

Precedent set in Garcetti v. Ceballos (2006) likely won’t help Lane’s case. In Garcetti, the Supreme Court ruled that there is a difference between speaking as a public employee and as a citizen, and that when people issue statements about their duties and roles in a public position they are not speaking as an average citizen and therefore they are not protected by freedom of speech. Because of that distinction, public employees cannot be guarded from the disciplinary procedures of their employers.

The Supreme Court should overturn Garcetti v. Ceballos and protect public workers’ free speech — here are three reasons why:

1. Public institutions must be held accountable for their actions.

During oral arguments in Lane v. Franks, Justice Sotomayor asked, “What are you doing about the truth­ finding functions [in a trial] setting when you’re saying or telling people, employees, don’t go and tell the truth because if the truth hurts your employer, you’re going to be fired?” As the justice points out, ruling that employees are not protected by the first amendment when exposing truthful problems about their employer can lessen the degree to which public institutions can be held accountable for improper actions. If the court rules against Lane, public employees, who have the most knowledge of the inner workings of their organizations will be silenced and will not continue to expose the wrongdoings of public institutions. If public employees cannot speak up and tell the truth about these problems, it’s unlikely that we’ll be able to fix the faults in our public institutions.

2. Public and private employees will be treated differently.

If the Supreme Court’s differentiation between rights of free speech between citizens and public employees is upheld, the U.S. will effectively treat public and private employees differently. Private employees will be treated as ‘citizens’ and will be guaranteed freedom of speech in exposing their employer’s unlawful practices, while public employees will not be given this right. The fact that some, but not all, employees will have freedom of speech is discriminatory and unjust. All American citizens are guaranteed freedom of speech no matter their race, religion, or gender — and this should include type of employment.

3. Subpoenaed public employees have no choice but to testify.

If the court rules against Lane, public employees may have to choose between their jobs and a legal battle. Lane was subpoenaed to testify against Central Alabama Community College. This means it was mandated that he appear before the court to give his testimony, and failing to do so would have put him in serious legal trouble. Additionally, it is against the law to lie under oath, and if Lane had been subpoenaed to testify but issued false statements to protect his employment, he would also face legal charges. This presents a lose-lose situation for public employees. If subpoenas require a citizen’s testimony in court, public employees should not be faulted for following the law. Being forced to testify should not enable one to be fired.

When such important cases can affect the lives of so many Americans, the justices have a duty to make a sound and reasoned decision. But will they be able to do so if some of them can’t recall their own previous decisions? Justice Kennedy, who wrote the Garcetti opinion, couldn’t believe why a subpoenaed testimony wouldn’t be protected by the First Amendment. In order to give justice to Lane and other public employees, the court needs to pay attention to how their earlier decisions can affect later outcomes.

[Washington Post] [ABA Journal] [NPR]

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Sarah Helden (@shelden430)

Featured image courtesy of [Daderot via Wikimedia Commons]

Sarah Helden

Sarah Helden is a graduate of The George Washington University and a student at the London School of Economics. She was formerly an intern at Law Street Media. Contact Sarah at staff@LawStreetmedia.com.

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]]> https://legacy.lawstreetmedia.com/news/3-reasons-supreme-court-must-protect-public-workers/feed/ 0 15096 https://legacy.lawstreetmedia.com/news/campaign-donation-limits-really-need/ https://legacy.lawstreetmedia.com/news/campaign-donation-limits-really-need/#respond Wed, 30 Apr 2014 15:15:14 +0000 http://lawstreetmedia.wpengine.com/?p=15118

Limits on campaign contributions continue to slip away, with high courts ruling against them. First, in the Supreme Court case McCutcheon v. Federal Elections Commission, and then on April 24, U.S. District Judge Paul A. Crotty struck down donation limits in New York. Surprisingly, Crotty acknowledged that there is a link between campaign finance and corruption. Unfortunately, […]

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Limits on campaign contributions continue to slip away, with high courts ruling against them. First, in the Supreme Court case McCutcheon v. Federal Elections Commission, and then on April 24, U.S. District Judge Paul A. Crotty struck down donation limits in New York. Surprisingly, Crotty acknowledged that there is a link between campaign finance and corruption. Unfortunately, he felt compelled to rule against the measures aimed to prevent this phenomena due to the possibility of infringing on first amendment rights. Many feel that this issue is black and white; namely, that campaign donations are a right of free speech or that they are ruining democracy. Yet, I think it is fair to say that the judicial branch is in a difficult position. A majority of Americans want campaign finance reform, yet, any attempt to do so could be a violation of constitutional rights (so it seems based on recent rulings).

While I would like to see reform, I acknowledge that there is a more concerning problem underlying the push for campaign contribution limits, and it starts with the obvious question, “why exactly do people want to limit contributions in the first place?” The desire to limit campaign contributions arises from the fear of a distorted power distribution. Simply, the people who have the greatest wealth will have the greatest influence in politics.

In order to run a strong campaign, you need a lot of capital, and thus, politicians require significant financial backing. If someone voluntarily provides a politician with large financial donations, then by de facto the politician owes that financial backer, and hence, the corruption referred to by Crotty ensues. The fact that finances are so important in political elections principally gives citizens of wealth more potential value and gives them greater potential access to politicians than regular citizens.

But let’s back up for a minute. We need to ask the next question that naturally follows, “why does it require a lot of money to win elections?” And this question gets us to the root of the problem. Politicians need a substantial amount of campaign finances in order to capitalize on the public’s immediate perception. Unfortunately, Americans are not educated on domestic and international politics and it shows in the polls. As Cato Unbound reports,

numerous polls show that voters grossly underestimate the percentage of federal spending that goes to entitlements such as Social Security and Medicare, while greatly overestimating the amount spent on foreign aid[..] Widespread political ignorance isn’t limited to spending and health care[..] only 42% of Americans can name the three branches of the federal government: executive, legislative and judicial.

American’s knowledge regarding international affairs shows even less promise. So how does the American electorate make political decisions? They rely on heuristics in order to decide whom and what to vote for. A heuristic is essentially a cognitive shortcut that allows us to make decisions quickly, and one of the most commonly employed cognitive shortcuts is the availability heuristic. In the words of Albert Phung, when using this heuristic, people “rely on immediate examples that come to mind. The availability heuristic operates on the notion that if something can be recalled, it must be important.”

Political campaigns know this, and that is why they are constantly trying to get as much attention as possible, which requires a lot of money. Does the term ‘soundbites’ ring a bell? If people hear what a certain candidate is going to do over and over, they begin to think it is important.

The reason we fear unlimited campaign contributions is because the American people do not make educated voting decisions and instead, they are heavily influenced by how many soundbites they are subjected to. If every person were to decide who to vote for based on their own research, it wouldn’t matter how much money politicians raise and spend. But the sad fact remains that American’s do not do the research. My favorite example of this is the Associated Press Report Homer Simpson, Yes — 1st Amendment ‘Doh,’ survey results. According to the AP, “the new McCormick Tribune Freedom Museum found that 22 percent of Americans could name all five Simpson family members, compared to just 1 in 1,000 people who could name all five First Amendment freedoms.”

[ThinkProgress] [Investopedia] [Gallup] [SupremeCourt.Gov]

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Bo Donoghue

Featured image courtesy of [Wonderlane via Flickr]

 

Bo Donoghue

Bo Donoghue is a student at The George Washington University. Contact Bo at staff@LawStreetMedia.com.

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]]> https://legacy.lawstreetmedia.com/news/campaign-donation-limits-really-need/feed/ 0 15118 https://legacy.lawstreetmedia.com/blogs/justice-spar-over-affirmative-action-ban-decision/ https://legacy.lawstreetmedia.com/blogs/justice-spar-over-affirmative-action-ban-decision/#comments Thu, 24 Apr 2014 10:30:39 +0000 http://lawstreetmedia.wpengine.com/?p=14780

The Supreme Court ruled 6-2 for an affirmative action ban on April 22 that was enacted by a Michigan constitutional amendment. Sonia Sotomayor, one of the two Justices who voted against the amendment, delivered a scathing dissent – 58 pages long – criticizing her colleagues’ affirmative ruling. “As members of the judiciary tasked with intervening to carry […]

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The Supreme Court ruled 6-2 for an affirmative action ban on April 22 that was enacted by a Michigan constitutional amendment. Sonia Sotomayor, one of the two Justices who voted against the amendment, delivered a scathing dissent – 58 pages long – criticizing her colleagues’ affirmative ruling.

“As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.” – Justice Sotomayor

Seven other states have similar constitutional amendments that ban the use of affirmative action in the higher education enrollment process. This ruling is particularly pertinent as there is evidence that minorities as a percentage of the study body is dropping at n colleges that have executed these affirmative action bans.

Sotomayor’s dissent was not met kindly, however, as Chief Justice Roberts rebuked her on the bench.

“To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality … People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.” – Chief Justice Roberts

The main reason as to why the Court ruled in affirmation of Michigan’s ban on affirmative action was based on a disagreement over whether the courts had the correct jurisdiction to decide matters regarding these cases, and not by voters themselves choosing directly.

Considering the earlier ruling striking down Sections Two and Three of the Voting Rights Act, people may start to wonder how this Court is taking up issues that are racially controversial. Critics of the ruling say that the Bench is attempting to skirt history by ignoring continuing trends of racism, while supporters of the rulings say that time has simply passed by when racism was at its peak in America. Watching the Supreme Court is important at this point in time, as the country changes demographically in the coming years.

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Dennis Futoryan (@dfutoryan) is an undergrad with an eye on a bright future in the federal government. Living in New York, he seeks to understand how to solve the problematic issues plaguing Gothamites, as well as educating the youngest generations on the most important issues of the day.

Featured image courtesy of [Tony Esopi via Wikipedia]

Dennis Futoryan

Dennis Futoryan is a 23-year old New York Law School student who has his sights set on constitutional and public interest law. Whenever he gets a chance to breathe from his law school work, Dennis can be found scouring social media and examining current events to educate others about what’s going on in our world. Contact Dennis at staff@LawStreetMedia.com.

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]]> https://legacy.lawstreetmedia.com/blogs/justice-spar-over-affirmative-action-ban-decision/feed/ 1 14780 https://legacy.lawstreetmedia.com/news/scotusblog-press-pass-not-renewed-what-you-need-to-know/ https://legacy.lawstreetmedia.com/news/scotusblog-press-pass-not-renewed-what-you-need-to-know/#comments Thu, 17 Apr 2014 16:51:13 +0000 http://lawstreetmedia.wpengine.com/?p=14541

SCOTUSBlog made headlines yesterday when they publicized that the press pass for their Supreme Court reporter, Lyle Denniston, was not being renewed by the Senate Press Gallery. The outlet announced this news in a letter to their readers both on their website and via an email blast to followers. As the Supreme Court usually defers […]

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SCOTUSBlog made headlines yesterday when they publicized that the press pass for their Supreme Court reporter, Lyle Denniston, was not being renewed by the Senate Press Gallery. The outlet announced this news in a letter to their readers both on their website and via an email blast to followers. As the Supreme Court usually defers to the passes granted by the Senate Press Gallery, this means that SCOTUSBlog’s ability to cover the Court will be limited as well.

The entire thing seems incredibly confusing, so here is a quick, simple breakdown:

• The Supreme Court does not issue its own credentials. Instead, it usually defers to credentials issued by other branches, such as Congress, or the White House.
• A Senate Press Pass is important to a publication like SCOTUSBlog because it allows them to sit in on nominations, and other important Supreme Court related decisions, such as budgeting.
• After years of trying, SCOTUSBlog received a Senate Press Pass last year.
• The Supreme Court still denied them credentials, stating that they were reviewing their policies.
• The Senate Press Gallery has now also revoked that pass from SCOTUSBlog.
• Credentials are approved for the Press Gallery by the Standing Committee of Correspondents, currently composed of Siobhan Hughes, Chairwoman, Wall Street Journal; Peter Urban, Secretary, Stephens Media Group; Colby Itkowitz, Washington Post; Kate Hunter, Bloomberg; and Emily Ethridge, CQ/Roll Call.
• In the meantime, SCOTUSBlog does have one reporter is who accredited through another news affiliation, and will continue to cover the Court through public seats.
• SCOTUSBlog has said that they will appeal the rejection, and “litigate the issue” if necessary.

All in all, the entire issues seems surprising and incredibly odd, considering that the outlet has, in fact, won numerous awards for their coverage of the Supreme Court. 

SCOTUSBlog has had a history of struggling with the credentials process for a varied hodgepodge of strange reasons. According to Joe Keenan, who headed up the Senate Press Gallery in 2012, SCOTUSBlog  “failed to show that they were separate from the law firm,” that the founders, Tom Goldstein and Amy Howe, practice at and were rejected that year. 

SCOTUSBlog tweaked their processes and policies to become eligible for that press pass that is now not being renewed.

As of press time the Senate Press Gallery staff are not commenting, and neither SCOTUSBlog nor the Court has yet responded to my request for comment.

As of yet, no one can do more than speculate as to why the credentials will not be renewed by the Senate Press Gallery, but a quick read of the policies seems to indicate that the requirements for credentials are outdated, at best. The Senate Press Gallery’s credentials page states that credentials are available, “‘to bone fide correspondents of repute in their profession’ who are full-time, paid correspondents of recognized news organizations.” The policies go on to state how the reporter must be part of a company whose principal business is the dissemination of news and cannot be involved in another special interest.

There’s nothing in these policies that indicate why SCOTUSBlog would not qualify for the press pass, unless those policies were being interpreted from an antiquated point of a view. I’m just speculating here of course, but my point is that unlike these policies seem to require, news and journalism aren’t cut and dry the way they used to be. A blogger can provide newsworthy content alongside a full-time job. A journalist can viably work for free while making money through other sources. In this Internet age of free information and ready dissemination, our identities are not mutually exclusive. Here at Law Street, that rings true for so many of us — I am both a writer and a student, and my form of writing does not take the traditional format that it could have before the Internet. If I’m right, the press credentials process needs to be changed to reflect the evolution of our journalistic system.

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Anneliese Mahoney (@AMahoney8672) is Lead Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

Featured image courtesy of [Rogers Cadenhead via Flickr]

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post SCOTUSBlog Press Pass Not Renewed: What You Need to Know appeared first on Law Street.

]]> https://legacy.lawstreetmedia.com/news/scotusblog-press-pass-not-renewed-what-you-need-to-know/feed/ 2 14541 https://legacy.lawstreetmedia.com/news/more-money-more-problems-supreme-court-rules-on-campaign-finance-laws/ https://legacy.lawstreetmedia.com/news/more-money-more-problems-supreme-court-rules-on-campaign-finance-laws/#comments Fri, 04 Apr 2014 14:53:35 +0000 http://lawstreetmedia.wpengine.com/?p=14053

Money has always been a big part of politics, and campaign finance laws have been put in place to curb potential corruption. But the Supreme Court continues to rule on parts of campaign finance laws- most recently allowing individuals to give money to more campaigns in the case McCutcheon v. Federal Elections Commission. Is this […]

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Money has always been a big part of politics, and campaign finance laws have been put in place to curb potential corruption. But the Supreme Court continues to rule on parts of campaign finance laws- most recently allowing individuals to give money to more campaigns in the case McCutcheon v. Federal Elections Commission. Is this one more way to allow big money into politics, or a protection of free speech?

Campaign contributions are protected as free speech under the First Amendment, but with restrictions in order to prevent corruption. Since 1976 in Buckley v. Valeo, the Court has ruled that campaign contribution limits can be enforced as “primary weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions.” Basically, it’s fine to limit contributions from individuals to avoid corruption. And understandably so- it isn’t unreasonable to think donating huge sums of money from an individual to a campaign could lead to some kind of favoritism toward that person.

So to combat that potential, the government set a cap for the amount of money an individual can contribute to campaigns, and it’s been like this since 1976. Currently, that limit is $5,200 to each campaign over a two-year period. As time has gone on, the courts have continued to rule more on the side of campaign contributions as free speech, making those laws less restrictive, and continuing to hold them as protected free speech under the First Amendment.

One of the most recent examples was in the case Citizens United v. Federal Election Commission, where the Court ruled restrictions on how much money unions and corporations could donate weren’t legal. Liberals saw this as a way to equate corporations to people, and conservatives saw it as an expansion of First Amendment rights.

So McCutcheon tackled another part of the campaign finance puzzle: caps on individual donations… kind of.

Prior to this ruling, there was a limit on how much money an individual could donate to one campaign, as well as a cap on how much an individual could donate to campaigns total. Individuals could give up to $5,200 to any one candidate, but no more than $123,200 total during a two-year election cycle. And of that $123,200, only $48,600 could go to individual campaigns. The Supreme Court held on Wednesday that that total limit, the $123,200, was unconstitutional, while the caps on donations to individual campaigns still stand.

So, what does this mean in practice? Basically, wealthy people can give money to more candidates… but they can’t give more money to one candidate. Again, liberals have gotten upset-worried that increasing the amount of money individuals can donate to campaigns will somehow unhinge a balance of power, or make a system already centered on money even more uneven. But to be frank- this decision doesn’t change a whole lot of anything, and it’s constitutionally sound.

If the goal of campaign finance limits is to combat corruption (legitimate corruption, not just speculative or hypothetical corruption), then giving a limited amount of money to a few more candidates really isn’t a huge problem.  Individuals won’t be able to wield more influence over one candidate because to individual caps are still in place.

Still, there is concern that this ruling only helps the wealthy, as they’re the only ones who would be able to give this much money to campaigns in the first place. But more important than worrying about rich people giving money to campaigns is worrying about what the First Amendment protects. The First Amendment, time and again, has protected campaign contributions as free speech. Arbitrary limits on one kind of free speech are no better than arbitrary limits on another.

Though it’s easy to get caught up in thinking allowing the wealthy to give more money to a campaign isn’t fair, the McCutcheon decision by the Supreme Court upholds rights guaranteed by the First Amendment. The only restrictions the courts should impose on campaign limits are ones that protect against corruption and limiting the amount of campaigns individuals can donate to do not protect against corruption.

[Supreme Court] [Oyez] [Washington Times] [Citizens United]

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Molly Hogan (@molly_hogan13)

Featured Image Courtesy of [Flickr/Tracy Olson]

 

Molly Hogan

Molly Hogan is a student at The George Washington University and formerly an intern at Law Street Media. Contact Molly at staff@LawStreetMedia.com.

The post More Money, More Problems? Supreme Court Rules on Campaign Finance Laws appeared first on Law Street.

]]> https://legacy.lawstreetmedia.com/news/more-money-more-problems-supreme-court-rules-on-campaign-finance-laws/feed/ 1 14053 https://legacy.lawstreetmedia.com/blogs/what-scotus-mccutcheon-decision-means-for-the-future-of-us-elections/ https://legacy.lawstreetmedia.com/blogs/what-scotus-mccutcheon-decision-means-for-the-future-of-us-elections/#comments Fri, 04 Apr 2014 14:41:22 +0000 http://lawstreetmedia.wpengine.com/?p=13942

Get ready for even more money to enter politics. The Supreme Court overturned limits on federal political donations yesterday. In an election year in which every Representative and a third of the Senate is fighting to keep his or her job, expect this to be the year of record-breaking campaign donations. In a 5-4 decision […]

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Get ready for even more money to enter politics. The Supreme Court overturned limits on federal political donations yesterday. In an election year in which every Representative and a third of the Senate is fighting to keep his or her job, expect this to be the year of record-breaking campaign donations. In a 5-4 decision along ideological lines, SCOTUS ruled that any caps and limitations on federal campaign donations are unconstitutional on First Amendment grounds. Whereas the infamous Citizens United v. Federal Election Commission ruling allowed for unlimited outside political spending by corporations, the outcome of McCutcheon v. FEC now expands unlimited contributions directly to politicians and their parties.

This does not mean that now every American can send in as much money as they want in a single check to their desired politician. An individual contribution in one check still stands at $2,600 per politico. What has been struck down, however, are the aggregate limitations per two-year cycle of $48,600 and $74,600 to candidates and parties, respectively. Now a donor has free reign in terms of the amount of checks they want to send within any given time frame.

In the majority ruling, Chief Justice John Roberts Jr. explained that even if there is popular sentiment that money corrupts the American political system, it is still protected under the First Amendment like other “repugnant” actions.

“Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects … If the First Amendment protects flag burning, funeral protests and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition.”

Justices Scalia, Kennedy, Alito, and Thomas joined the Chief Justice in his majority opinion, with Clarence Thomas even going so far as suggesting all campaign contribution limits should have been struck down.

Justices Ginsburg, Sotomayor, and Kagan signed onto Breyer’s dissent authoring the call that “[the ruling] creates a loophole that will allow a single individual to contribute millions of dollars to a political party or a candidate’s campaign … The methods for using today’s opinion to evade the law’s individual contribution limits are complex, but they are well known, or will become well known, to party fundraisers.”

The case was brought forth by plaintiff Shaun McCutcheon, an Alabama Republican and CEO of Coalmont Electrical Development. Explaining how he was injured by the campaign limits put forth by the Federal Election Commission in an editorial he authored for Politico, he said, “Somehow, I can give the individual limit, now $2,600, to 17 candidates without corrupting the system. But as soon as I give that same amount to an 18th candidate, our democracy is suddenly at risk.” By arguing the unconstitutionality of campaign finance limits, McCutcheon set himself up to be included alongside legal precedent – and with this ruling he has guaranteed his name in the history books.

But does striking down campaign finance rules under the guise of a healthy democracy truly achieve that aim? As Breyer pointed out in the dissent, allowing more money to flow into the political system can only hurt it more but disenfranchising those who do not donate to their elected official. A report by the Campaign Finance Institute points out that in 2012, the cost of winning a seat in the House chamber was nearly $1.6 million. It is even worse for the Senate, where nearly 10 times the amount, $10.35 million, is needed to win a seat in that chamber. The average voter does not have the same “purchasing power” behind their contributions, as the majority of contributions come from the wealthiest individuals through their companies and organizations. According to OpenSecrets, an organization dedicated to campaign finance transparency, those who give $200 to a politician, political action committee, or party committee only represent 0.12 percent of the United States population.

Pay attention to how politicians and their bases raise money, as it can be expected in this crucial midterm election year to break records for the amount raised and spent. With a Supreme Court more apt to protecting the right of individuals and corporations to donate as much as they would like as frequently as they would like, it would seem that we are on a road to limitless campaign contributions.

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Dennis Futoryan (@dfutoryan) is an undergrad with an eye on a bright future in the federal government. Living in New York, he seeks to understand how to solve the problematic issues plaguing Gothamites, as well as educating the youngest generations on the most important issues of the day.

Featured image courtesy of [dnkbdotcom via Flickr]

Dennis Futoryan

Dennis Futoryan is a 23-year old New York Law School student who has his sights set on constitutional and public interest law. Whenever he gets a chance to breathe from his law school work, Dennis can be found scouring social media and examining current events to educate others about what’s going on in our world. Contact Dennis at staff@LawStreetMedia.com.

The post What SCOTUS’ McCutcheon Decision Means for the Future of US Elections appeared first on Law Street.

]]> https://legacy.lawstreetmedia.com/blogs/what-scotus-mccutcheon-decision-means-for-the-future-of-us-elections/feed/ 6 13942 https://legacy.lawstreetmedia.com/news/not-another-contraception-debate/ https://legacy.lawstreetmedia.com/news/not-another-contraception-debate/#comments Wed, 26 Mar 2014 16:51:35 +0000 http://lawstreetmedia.wpengine.com/?p=13691

“Ho Ho! Hey Hey! Birth control is here to stay!” Or is it? Just when we think that the debate about contraception coverage has been laid to rest, another group of angry women are chanting outside of the supreme court and fighting for their right to be insured for their contraceptives. Although this time is […]

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Image courtesy of [Jenny Lee Silver via Flickr]

“Ho Ho! Hey Hey! Birth control is here to stay!” Or is it?

Just when we think that the debate about contraception coverage has been laid to rest, another group of angry women are chanting outside of the supreme court and fighting for their right to be insured for their contraceptives. Although this time is a little different. This fight against contraception coverage was not brought about by a religiously affiliated group or a non profit religious organization, but by two corporations whose owners have certain religious beliefs. Thus, the debate regarding contraception coverage under the affordable care act continues, leading to the convening of the United States Supreme Court on Tuesday March 25, 2014.

What is the background regarding this debate?

A provision of the affordable health care act requires many employers to provide a variety of birth control methods to female employees who have comprehensive insurance coverage. This law does not apply to all employers due to the 1993 Religious Freedom Restoration Act, which prevents law from substantially burdening an individual’s free exercise of religion. With this act, it was decided that the responsibility to provide birth control to employees was not extended to religious employers such as churches and religiously affiliated groups.

Who are the challengers?

This case has been brought to the supreme court by two for-profit corporations who argued that their businesses are run under religious principles. This includes the Hobby Lobby, arts and crafts chain that is run by a Christian family and Conestoga Wood Supplies, a cabinet making company owned by a Mennonite family.

The argument of the government:

The requirement of corporations to pay for contraceptives for female employees is an insurance that that all women will have equal opportunity and access to services regarding their health care. It is not the right of the employers to decide which form of contraception is best for their female employees, because that is the job of their doctor. It is believed that the corporations providing of birth control will lead to less abortions overall.

The argument of the two corporations:

They are not rejecting all forms of birth control, but instead feel that covering the costs of certain methods such as condoms, birth control pills and diaphragms would be within the boundaries of their religion. Now, there are various methods of birth control, but the main ones that are in contention include emergency contraceptives such as the morning after pill because the corporations feel if they comply, they are condoning abortion.

What will the outcome be?

We will have to wait and see. A ruling from the Supreme Court is expected in June. It is for the court to decide whether the challengers have the right to object to this birth control coverage of specific types of contraception under the 1993 Religious Restoration Act mentioned above. This would mean that the religious beliefs of the corporations were, “substantially burdened”, which is of course up for the Supreme Court to decide.

Where I stand:

There is a large difference between a for-profit company and a non-profit, religiously affiliated organization. In my opinion, there is difference between who should cover birth control and who has the right to opt out. Corporations are now trying to play the religion card, which is a very slippery slope. Let’s think about this. There are many for-profit businesses out there with owners who most likely have some religious affiliation or another. Simply because a business owner closes their doors on Sunday or considers themselves a Christian should not give them the easy way out for covering the birth control of employees, as is the law under the affordable care act. Once some corporations are granted their “religious liberties”, who is to say that not all corporations with a religiously practicing owner can opt out of paying for birth control. These companies are not religiously affiliated, they are not non-profit and they need to pay to cover their employee’s birth control.

For more information, to see the protesters and to decide for yourself:

[Reuters] [The New York Times]

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Taylor Garre (@TaylorLynn013)

Taylor Garre

Taylor Garre is a student at Fordham University and formerly an intern at Law Street Media. Contact Taylor at staff@LawStreetMedia.com.

The post Not Another Contraception Debate appeared first on Law Street.

]]> https://legacy.lawstreetmedia.com/news/not-another-contraception-debate/feed/ 1 13691 https://legacy.lawstreetmedia.com/news/hall-v-florida-what-will-the-ruling-be/ https://legacy.lawstreetmedia.com/news/hall-v-florida-what-will-the-ruling-be/#respond Fri, 07 Mar 2014 18:15:16 +0000 http://lawstreetmedia.wpengine.com/?p=12875

On Monday, March 3, 2014 the Supreme Court heard oral arguments that charged Florida with failing to properly establish an inmate’s IQ before ordering the death penalty. In determining the level at which inmates are ineligible for capital punishment, Florida has drawn a strict line at an IQ of 70 or below. However, experts in the […]

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On Monday, March 3, 2014 the Supreme Court heard oral arguments that charged Florida with failing to properly establish an inmate’s IQ before ordering the death penalty. In determining the level at which inmates are ineligible for capital punishment, Florida has drawn a strict line at an IQ of 70 or below. However, experts in the medical field as well as several justices feel that this policy does not take into account the five point margin of error in IQ testing in establishing whether or not someone is intellectually disabled. The five point error margin could be crucial in sentencing capital punishment; whether or not you agree with the death penalty at all, it is essential that the decision for a death sentence is justly made.

Here’s the breakdown of the case:

Freddie Lee Hall, a 68 year old, is facing the death penalty for the crimes of raping and killing a 21 year old pregnant woman as well as a police officer. Hall was given several IQ tests throughout his incarceration and received scores of 71, 72, 73, 74, and 80, all of which are above Florida’s 70’s point marker. However, studies have shown the five point margin of error is necessary, concluding that scores as high as 75 considered indications of intellectual disability. Even if you take the average of all Hall’s scores, a 74, he falls within the margin and could be deemed ineligible for the death penalty. Seth Waxman, a lawyer for the defense, stated that this matter “can only be properly diagnosed by professionals.” It seems that other justices shared Waxman’s concerns. Justice Kennedy questioned why states like Florida drew such a hard cutoff, when professionals acknowledged that the IQ test design includes a margin of error.

Looking back at prior verdicts:

The 2002 case Atkins v. Virginia established a precedent for establishing the eligibility for the death penalty based on an inmate’s IQ. The decision gave states a general guideline to follow in establishing proof of intellectual disability in inmates. It stated that in order to declare someone as intellectually disabled, it must be proven that the individual lacks practical and social abilities as well as possesses a low IQ score. The decision stated that low IQ scores are “typically under 70.” In discussing the Atkins ruling, Justice Scalia explained that the court did not make their decision primarily on the studies done by the American Psychiatric Association’s assessment of intellectual disability, but on the adopted policies of the states. But shouldn’t the opinions of experts in a particular field factor in significantly to justice’s decisions, especially in an area they personally are unfamiliar with?

It’s useful to take the precedent into account when determining how to rule in a case with a similar principle; however, the court’s previous decision only vaguely answers the question of whether establishing a hard line at an IQ of 70 is appropriate. The court should, therefore turn to experts on IQ measurements in order to make an appropriate judgement on the state a man’s life.

Furthermore, the case brings attention to the lack of focus on rehabilitation in Florida prisons and the United States in general. In this specific situation, Hall has spent over half of his life on death row, and the man is almost 70 years old! This situation is unfortunately not unique in Florida; as Justice Kennedy mentioned in oral argument, the last ten Florida inmates who received the death penalty spent on average 24.9 years on death row. Florida is not alone in keeping prisoners waiting on death row for longer periods of time, but the amount of years prisoners have spent in this status is concerning. Maintaining someone’s uncertainty over whether he or she will live or die for this long can cause anxiety and the general deterioration of his or her mental state. It is true that a factor involved in the lengthening of the time spent on death row is a more thorough appeals process, which is important in determining guilt and fair sentencing. Nevertheless, an average of 24.9 years is way too long to keep someone waiting on a question of life or death.

Indeed, Hall v. Florida’s significance will reach far beyond the determination of a man’s mental abilities. The case exposes that Florida’s justice system has failed to take into consideration an error margin and other factors in determining whether the death penalty is appropriate. Additionally, it allows inmates to wait extraordinary amounts of time on death row before a final decision. Capital punishment is serious, and the Florida justice system must change to treat those on death row appropriately.

[New York Times] [SCOTUS Blog] [Washington Post] [Death Penalty Info]

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Sarah Helden (@shelden430)

Featured image courtesy of [Jeff Kubina via Flickr]

Sarah Helden

Sarah Helden is a graduate of The George Washington University and a student at the London School of Economics. She was formerly an intern at Law Street Media. Contact Sarah at staff@LawStreetmedia.com.

The post Hall v. Florida: What Will the Ruling Be? appeared first on Law Street.

]]> https://legacy.lawstreetmedia.com/news/hall-v-florida-what-will-the-ruling-be/feed/ 0 12875 https://legacy.lawstreetmedia.com/blogs/the-craft-of-contraceptive-rights-scotus-to-hear-sebelius-vs-hobby-lobby/ https://legacy.lawstreetmedia.com/blogs/the-craft-of-contraceptive-rights-scotus-to-hear-sebelius-vs-hobby-lobby/#comments Mon, 03 Mar 2014 15:41:55 +0000 http://lawstreetmedia.wpengine.com/?p=12721

By most accounts, the rollout of the Affordable Care Act (ACA) has been incredibly rocky. Even as problems with Healthcare.gov have stabilized and enrollment numbers have increased across the nation, the law, alternatively called ‘Obamacare,’ is being hit with numerous lawsuits challenging its various provisions. One such notable lawsuit is Sebelius v. Hobby Lobby Stores, […]

The post The Craft of Contraception Rights: SCOTUS to Hear Sebelius vs. Hobby Lobby appeared first on Law Street.

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By most accounts, the rollout of the Affordable Care Act (ACA) has been incredibly rocky. Even as problems with Healthcare.gov have stabilized and enrollment numbers have increased across the nation, the law, alternatively called ‘Obamacare,’ is being hit with numerous lawsuits challenging its various provisions. One such notable lawsuit is Sebelius v. Hobby Lobby Stores, Inc., and it has arrived at the Supreme Court.

The case pits Health and Human Services Secretary Kathleen Sebelius against arts and crafts giant Hobby Lobby, and it underscores the fierce resistance by some companies to the 2010 law. The heart of the case lies in the issue of whether or not the ACA’s provision forcing employers to cover contraception as a part of employee-based health care is an attack on religious freedom. Hobby Lobby Stores filed a suit against the United States in September 2012 citing the Free Exercise Clause of the First Amendment, as well as the Religious Freedom Restoration Act, signed by President Clinton in 1993.

The Free Exercise Clause, if anyone needs reminding, states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” As for the Religious Freedom Restoration Act, the gist of the bill is that it prevents the government from passing legislation that would make it extremely hard for someone to exercise their religion. In this case, Hobby Lobby claims that the ACA  makes it too difficult for the family of ownership (the Greens) to exercise their religion due to the provision of contraceptive medication in employee’s healthcare premiums. It is important to note here that there is no explicit mention of contraception coverage in the wording of the healthcare bill.

The arts and crafts chain store only took their case to the next level after the Supreme Court refused to grant an injunction excusing Hobby Lobby from providing contraception coverage, saying simply, “Applicants do not satisfy the demanding standard for the extraordinary relief they seek.” Then, in July 2013, U.S. District Judge Joe Heaton provided the Green family an exemption from the “contraceptive mandate.” In his ruling, Judge Heaton said:

Given the importance of the interests at stake in this case, the fact that the ACA’s requirements raise new and substantial questions of law and public policy, and that substantial litigation as to the mandate at issue here is ongoing around the country, the court concludes there is an overriding public interest in the resolution of the legal issues raised by the mandate before Hobby Lobby and Mardel are exposed to the substantial penalties that are potentially applicable. The public interest therefore lies in preserving the status quo until the issues raised by plaintiffs’ claims are resolved.

The tables were turned on Hobby Lobby when the Center for Inquiry filed its own amicus curiae brief with the Supreme Court in January 2014. In the brief, the Center cited the Establishment Clause of the First Amendment, the same basis of argument used by Hobby Lobby, stating that the government cannot make an exception on religious grounds for one company. With the Supreme Court granting certiorari since November 2013, many are eager to see the result of this massively influential case, and the next arguments are scheduled for March 25.

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Dennis Futoryan (@dfutoryan) is an undergrad with an eye on a bright future in the federal government. Living in New York, he seeks to understand how to solve the problematic issues plaguing Gothamites, as well as educating the youngest generations on the most important issues of the day.

Featured image courtesy of [DangApricot via Wikipedia]

Dennis Futoryan

Dennis Futoryan is a 23-year old New York Law School student who has his sights set on constitutional and public interest law. Whenever he gets a chance to breathe from his law school work, Dennis can be found scouring social media and examining current events to educate others about what’s going on in our world. Contact Dennis at staff@LawStreetMedia.com.

The post The Craft of Contraception Rights: SCOTUS to Hear Sebelius vs. Hobby Lobby appeared first on Law Street.

]]> https://legacy.lawstreetmedia.com/blogs/the-craft-of-contraceptive-rights-scotus-to-hear-sebelius-vs-hobby-lobby/feed/ 1 12721 https://legacy.lawstreetmedia.com/issues/law-and-politics/should-the-united-states-supreme-court-have-the-power-to-issue-advisory-opinions/ https://legacy.lawstreetmedia.com/issues/law-and-politics/should-the-united-states-supreme-court-have-the-power-to-issue-advisory-opinions/#comments Fri, 31 Jan 2014 19:00:03 +0000 http://lawstreetmedia.wpengine.com/?p=11189

Advisory opinions are essentially pieces of advice offered by courts as a way to provide guidance on a particular law or issue. Since its inception, the United States Supreme Court, and federal courts in general, have not been allowed to issue advisory opinions, even though some onlookers have speculated that they may help cut down work flow and clear up ambiguities in the law. Read on to learn about the history of advisory opinions, the Supreme Court's ban on releasing them, and how that has affected our American jurisprudence system.

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Image courtesy of [Joe Gratz via Flickr]

Advisory opinions are essentially pieces of advice offered by courts as a way to provide guidance on a particular law or issue. Since its inception, the United States Supreme Court, and federal courts in general, have not been allowed to issue advisory opinions, even though some onlookers have speculated that they may help cut down work flow and clear up ambiguities in the law. Read on to learn about the history of advisory opinions, the Supreme Court’s ban on releasing them, and how that has affected our American jurisprudence system.

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What Exactly is an Advisory Opinion?

An advisory opinion is a non-binding explanation of the legal implications of a situation that has not arisen in actual litigation. An advisory opinion allows the legislature, the executive branch, or a lower court to gain insight into the prevailing judicial interpretation of a law, regulation, or constitutional amendment. This reduces the likelihood that a governmental act will be invalidated for conflicting with the Constitution, so it could save time or money. Advisory opinions are not binding precedent but are often treated as persuasive if no other precedent exists.

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Why Can’t the Supreme Court Issue Advisory Opinions?

In the United States, federal courts are prohibited from issuing advisory opinions under Article III of the U.S. Constitution. Article III designates that any legal opinion promulgated by federal courts must pertain to an issue that is “mature for judicial resolution” and the parties must have a palpable interest in the case. Put more simply, the Supreme Court, or any lower federal courts, can only rule in a real case, not just when someone brings a topic to the court to ask for an opinion.

Partly at issue is the separation of powers. The job of the legislative branch is to make the laws, the executive branch is supposed to enforce them, and the judicial branch is supposed to interpret them. By allowing the judicial branch to interpret them earlier than is unnecessary, that separation becomes blurred. That’s the argument made by John Jay, the first Chief Justice of the Supreme Court, when he refused to offer judicial advice to President George Washington or Alexander Hamilton. Later, Justice William R. Day reinvigorated the argument against Supreme Court advisory opinions in Muskrat v. United States. He stated as a reason to not offer advisory opinions that:

The result will be that this court, instead of keeping within the limits of judicial power and deciding cases or controversies arising between opposing parties, as the Constitution intended it should, will be required to give opinions in the nature of advice concerning legislative action, a function never conferred upon it by the Constitution.

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Are There Alternatives to Advisory Opinions?

Certain state courts allow federal courts and courts of other states to ask them certified questions about actual controversies involving the state’s law. The U.S. Supreme Court also accepts certified questions about actual controversies from lower federal courts; however, this is a rare occurrence. A certified question is a request from one court to another court for clarification of a question of law. For example, if a cause of action under a state statute is brought in federal court, the federal court may send a certified question to the state court in order to gain clarification about how to interpret the state statute in accordance with the state’s jurisprudence.

Federal courts are able to employ preventative adjudication in the form of declaratory judgments due to the passage of the Declaratory Judgment Act. A declaratory judgment is a legal finding of a party’s actual legal rights in an actual case or controversy (or lack thereof) against another party. These judgments are binding though they can be appealed. The act allows a party to seek a declaration of his or her rights against another party even if no specific legal relief is sought in the case. If the proven facts show that there is a possibility that relief may be warranted in the future, then the act gives federal courts the discretion to issue declaratory judgments that define parties’ rights.

Federal courts maintain artful legal doctrines in order to ensure that Declaratory Judgments do not amount to de-facto Advisory Opinions. These doctrines are codified in the case of Ashwander v. Tennessee Valley Authority.  In that case, the U.S. Supreme Court promulgated specific guidelines for the use of Judicial Review:

1. The Court will not determine the constitutionality of legislation in nonadversary proceedings.
2. It will not anticipate a question of constitutional law.
3. It will not formulate a rule of constitutional law broader than needed.
4. It will not rule on constitutionality if there is another ground for deciding the case.
5. It will not determine a statute’s validity unless the person complaining has been injured by it.
6. It will not invalidate a statute at the instance of persons who have taken advantage of its benefits.
7. It will always ascertain whether any reasonable interpretation of a statute will allow it to avoid the constitutional issue.

These guidelines are designed to prevent courts from promulgating interpretations of the Constitution outside of a ruling in an actual case or controversy.

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What is the Argument for Changing the Laws to Allow Federal Courts to Issue Advisory Opinions?

Proponents of granting the Supreme Court the power to issue advisory opinions argue that judicial economy will be improved by the ability to issue opinions more quickly about pervasive legal issues. They also argue that the government can avoid wasting time and resources investing in programs and policies only to have it all be for naught if the government’s action is held to be unconstitutional. Ten states allow their highest courts to issue advisory opinions and the mechanism is an effective legal procedure in those states.

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What is the Argument for Maintaining the Status Quo?

Opponents of granting the Supreme Court the power to issue advisory opinions argue that

Every tendency to deal with constitutional questions abstractly, to formulate them in terms of barren legal questions, leads to … sterile conclusions unrelated to actualities.

There are more expeditious and expedient means that government actors have for gaining necessary legal interpretations and findings from the courts, such as certified questions. Furthermore, there are procedural mechanisms that allow the legal status of a situation to be determined without the expense and difficulty of a full trial, such as declaratory judgments.

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 Resources

Primary

U.S. Archives: U.S. Constitution

Founders Constitution: John Jay to George Washington

Documents in Early American History: John Jay Letter

Additional

Fire Dog Lake: Why Can’t Congress Just Ask the Supreme Court Ahead of Time?

Indiana Law Journal: The Advisory Opinion-An Analysis

Fordham Law Review: The Advisory Opinion and the United States
Supreme Court

Fordham Law Review: The State Advisory Opinion in Perspective

Ohio Northern University Law Review: The Early Supreme Court Justices’ Most Significant Opinion

VIllanova Law Review:Advisory Opinions as a Problem Solving Process

Mel A. Topf: A Doubtful and Perilous Experiment: Advisory Opinions, State Constitutions, and Judicial Supremacy

Cornell Law: Advisory Opinion

UMKC School of Law: Constitutional Limitations on the Judicial Power:

UMKC School of Law: Standing, Advisory Opinions, Mootness, and Ripeness

Roger Williams University Law Review: The Jurisprudence of the Advisory Opinion Process in Rhode Island

 

John Gomis

John Gomis earned a Juris Doctor from Brooklyn Law School in June 2014 and lives in New York City. Contact John at staff@LawStreetMedia.com.

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]]> https://legacy.lawstreetmedia.com/issues/law-and-politics/should-the-united-states-supreme-court-have-the-power-to-issue-advisory-opinions/feed/ 2 11189 https://legacy.lawstreetmedia.com/blogs/culture-blog/entitlement/ https://legacy.lawstreetmedia.com/blogs/culture-blog/entitlement/#comments Mon, 20 Jan 2014 11:30:49 +0000 http://lawstreetmedia.wpengine.com/?p=10737

At first glance this post is about Abigail Fisher — but it really isn’t. What it’s about is an epidemic in modern American society. That disease is entitlement. The entitlement that led one girl, when she was denied to one college, to sue and attempt to invalidate an entire system that is bit-by-tiny-bit attempting to […]

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At first glance this post is about Abigail Fisher — but it really isn’t. What it’s about is an epidemic in modern American society. That disease is entitlement. The entitlement that led one girl, when she was denied to one college, to sue and attempt to invalidate an entire system that is bit-by-tiny-bit attempting to ease the wounds of discrimination in this country.

I’ll admit from the outset that I am not the most objective person when it comes to the issue of Affirmative Action. I am Black. As sure as the day is long and Martin Schoeller photographs make you want to exfoliate, I am Black. Now I am not saying that every Black person has to be in favor of Affirmative Action policies to be considered “down.” What I am saying is that my unique experience of Blackness in America makes me inclined to agree with one of my favorite Malcolm X quotes:

“You don’t stick a knife in a man’s back nine inches and then pull it out six inches and say you’re making progress.”

Progress means moving forward. In the context of higher education at least, one of the best and most effective means of ameliorating the effects of historical discrimination are policies that take into account race as one of several factors in determining someone’s eligibility for admission to a college or university. That’s what the Supreme Court has said and I am inclined to agree with the final arbiters of the Constitution even if one of them happens to be Clarence Thomas.

The latest development in what many thought was a settled issue of Constitutional Law after Grutter v. Bollinger laid down the standard of acceptable race-based admissions policies in higher education was the curious case of Abigail Fisher. Her denial of admission into the University of Texas at Austin spurred a lawsuit that climbed all the way up the ladder and landed at the Supreme Court in October 2012. Her suit, in brief, proceeds thusly: 1) she applied to UT Austin; 2) she was denied admission; 3) she actually went to another college; 4) but somewhere along the way she sued the university. Those are the broad strokes. Yet more important than her story are what the grounds of her suit mean practically. That’s what I’d like to examine here.

Entitlement: n. the feeling or belief that you deserve to be given something (such as special privileges).

I wanted to begin with that definition. It’s a feeling many of us have felt from time to time. Myself included. The Apple Care Lady. All of us. But the measure of maturity, I think, is how we step out of ourselves and our own selfish desires to get what we feel we are owed, and take a long hard look at whether we have earned the desired thing. Or rather, whether we deserve that thing. Abigail Fisher, after having been denied admission, instead of looking inward and wondering about her own shortcomings, decided that the primary reason, or even the only reason, that she had been denied was because she had not been born a “minority.” But was it really her race? Would she have gotten in had she been Black? I want to examine these assumptions that are at the very heart of her suit, and the overall discussion of Affirmative Action.

Assumption 1: Abigail Fisher’s Qualifications were good enough to get into UT.

According to Miss Fisher’s own brief before the Supreme Court, “UT is a highly selective university, receiving applications from approximately four times more students each year than it can enroll in its freshman class.” The question then narrows to whether Abigail’s scores and experiences were good enough to  beat out thousands of others.

Her stats: a) SAT: 1180 out of 1600; b) Cumulative High School GPA: 3.59′ c) not in the top ten percent of her high school graduating class.

I’ll let the University of Texas explain the significance of these numbers:

According to the hard data from Abigail Fisher’s admissions file, she would not have been admitted to the University due to the stiff competition of the applicant pool that year. Being in the top ten percent of her class would have guaranteed her admission. She was even denied to the provisional summer program that the University offers for those on the cusp of admission. More’s the pity. Maybe she should have worked harder or studied more.

Assumption 2: Other, less qualified applicants, were admitted because of their race.

There is simply no way to prove this. In her brief, Miss Fisher merely conclusively asserts, “[a]lthough [Fisher’s] academic credential exceeded those of many minority candidates, UT denied her application.” Well, yeah, sure, but still. Wait, let me give a more cogent answer. I am not an admissions professional at a flagship university. Neither is Abigail Fisher. Or her attorneys. The difference between us is that she seems not to realize this. I can conceptually understand that great schools could fill their classrooms solely with those who have 4.0 GPA and top SAT scores, but it is a reasoned and considered choice by the University to consider more than that. The admissions policy attempts to assign numerical values to often subjective factors…and the University is entirely within its right to do so.

Assumption 3: Other forms of non-merit based admission policies are totally acceptable.

This is perhaps the most sinister assumption that underlies the discussions of Affirmative Action programs. I might — MAYBE — be able to rationally accept the argument that race should not be considered in admission because it has nothing to do with the student’s merit. But there are other metrics — that have nothing to do with academic merit — that are used all the time to the benefit of those from populations that have been historically favored. Metrics like legacy clauses. Sports scholarships. Opponents of Affirmative Action don’t take their views to their logical endpoint. Their road only goes so far as to criticize non-merit-based policies that benefit minorities, and not those that benefit those of European descent.

The Supreme Court of the United States remanded Fisher’s case back to the Fifth Circuit, essentially punting on third and six instead of going for it and resolving finally the position of Affirmative Action in higher education. Yet I wonder less about the legal merits of this case and more about what it says about the American people. Affirmative Action, to me, seems a commitment on the part of our legal system to favor those who had been disfavored. Affirmative Action isn’t crippling the White race, in the same way Affirmative Action hasn’t elevated minorities into the stratosphere in terms of academic achievement. The cruel truth of it all is that those who had been most favored by every aspect of society for literally centuries feel so threatened by such insignificant and limited favor of the downtrodden classes in school admissions.

If that’s not entitlement, I don’t know what is.

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Dominic Jones (@DomPerinyon) is originally from Atlantic City, NJ. He attended Morehouse College in Atlanta, Ga. followed by law school at the Washington College of Law at American University in Washington, DC. In his spare time he enjoys art, photography, and documentary films.

Featured image courtesy of [Reid Sullivan via Wikipedia]

Dominic Jones

Dominic Jones is originally from Atlantic City, NJ. He attended Morehouse College in Atlanta, Ga. followed by law school at the Washington College of Law at American University in Washington, DC. In his spare time he enjoys art, photography, and documentary films. Contact Dominic at staff@LawStreetMedia.com.

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The Supreme Court has granted certiorari to adjudicate the highly contested issue of which software innovations may be eligible for patent protection. The impact of this case will be decisive in determining the extent that a technology company can utilize an aspect of another’s software without being subjected to a patent infringement suit. At the […]

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The Supreme Court has granted certiorari to adjudicate the highly contested issue of which software innovations may be eligible for patent protection. The impact of this case will be decisive in determining the extent that a technology company can utilize an aspect of another’s software without being subjected to a patent infringement suit. At the same time, the decision may make it easier to challenge a patent for want of validity without having to sort through the particulars the patent includes.

Alice Corporation vs. CLS Bank is the case that has motivated the Supreme Court to sift through this heavily-weighted issue. Briefly, the case involves a company that held software patents covering methods of conducting online financial dealings. CLS Bank contended that the patent was invalid for lack of patentable subject matter, and the Court of Appeals for the Federal Circuit agreed. But why? Well that was the issue — they didn’t exactly know, releasing six different opinions, none of which was supported by the majority. In fact, another recent case involving the same question of patentable software was determined on a basis that was unclear as well.

 

Pushed by companies such as Google, JP Morgan, and Netflix that contend that patent standards are too lenient and vague, the courts are faced with a question that will decide the future of technological innovation. To be eligible for patent protection, an invention cannot be obvious or merely an abstract idea. The policy behind this is to preclude a patent holder from claiming an entire innovative field. Instead the application of an abstract idea to a certain process or structure may be patent eligible.

Stick with me. The crux of this issue is determining guidelines for what types of methods meet the patent eligibility standard, right? But what I’m confused about is why it makes any difference if a method is embodied in a machine or tangible article versus being written on computer software. A computer is indeed a structure (as required by the seminal case, Bilksi) and the software is intended to carry out the novel process. Whether a method is carried out by software should not be decisive in determining whether it is patent eligible. It shouldn’t be a factor for consideration. Software can most certainly envelope novel processes without monopolizing an entire concept, as seems to be the concern of anti-patentable-software advocates. For example, a software that writes a method for connecting Garage Band data to Guitar Hero by utilizing the music data created in Garage Band to formulate different levels in the Guitar Hero video game should be allowed to gain patent protection even though it may involve computer algorithms. For argument’s sake, it’s a non-obvious process that was executed through a machine — a computer. Why should it matter if the process was made to occur through some tangible box connecting your computer to your PlayStation? Why should this factor grant one innovator patent protection and not another?

The other side of this coin is no less convoluted. Arguing that software may simply cover a thought process or computation, companies such as Microsoft are asserting that software patents may stifle innovation. They claim that the patentability of these computer-executed methods may open the gateway for patent applicants claiming the rights to innovative tools that may be useful to a category of inventions. I disagree with this notion for the reasons stated above. Furthermore, the Patent and Trademark office considers whether a process transforms the thing through which it is employed to determine patent eligibility of a method as well. Wouldn’t employing a software on a computer undoubtedly transform it? A computer with iOS is vastly different from one with Windows, and, thus, a computer with any software added to it has been transformed because it is then a different piece of machinery facilitating different tasks.

The Supreme Court will hear arguments in March or April and release a decision by July of 2014.

Gena.

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Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts.

Featured image courtesy of [Mike Licht, NotionsCapital.com via Flickr]

Gena Thomas

Gena Thomas, a recent graduate of Howard University School of Law, was born and raised in Lafayette, Louisiana. A graduate of The University of Texas at Austin, she enjoys watching scary movies and acquiring calories from chocolates of all sorts. Contact Gena at staff@LawStreetMedia.com.

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