On Tuesday, a federal appeals court issued an injunction on a statute that would have severely limited gun rights in the District of Columbia. The 2-1 ruling represents a victory for Second Amendment advocates, and another setback in the effort to curb gun rights in the nation’s capital.

The D.C. measure in question is commonly referred to as a “good reason” clause. It directs the police chief to set guidelines to limit gun possession in the city, making an exception for those who could justify carrying a weapon. But a three-judge panel at the U.S. Court of Appeals for the District of Columbia Circuit said the Supreme Court’s guidance made clear that such a law would violate the Second Amendment.

Writing for the majority, Judge Thomas Griffith cited a 2008 Supreme Court ruling, District of Columbia v. Heller, which struck down D.C.’s 32-year ban on handguns.

The District of Columbia v. Heller ruling proved that “the Second Amendment erects some absolute barriers that no gun law may breach,” wrote Griffith.

He added, “At the Second Amendment’s core lies the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions.”

Gun rights in D.C. have followed a pattern over the last decade: the city passes an ordinance to curb gun rights; the ordinance is blocked in court. From 1976 to 2008, handguns were banned in D.C.

With the Heller ruling, D.C. repealed its ban, and issued a new ordinance that made it impossible to obtain a permit to carry outside the home. In 2014, that measure was ruled unconstitutional. In response, D.C. amended the ordinance, making permits available to those who could show “good cause” to carry a handgun.

Unsurprisingly, gun advocates cheered the court’s decision. Alan Gottlieb, founder of the Second Amendment Foundation, said in a statement that “the opinion makes it clear that the Second Amendment’s core generally covers carrying in public for self-defense.”

He added: “To read the majority opinion and not come away convinced that such ‘good reason’ or ‘good cause’ requirements are just clever ways to prevent honest citizens from exercising their rights is not possible.” 

But Judge Karen Henderson argued in her dissent that, “the sole Second Amendment ‘core’ right is the right to possess arms for self-defense in the home.”

She added: “By characterizing the Second Amendment right as most notable and most acute in the home, the Supreme Court necessarily implied that that right is less notable and less acute outside the home.”

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.

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Over the last several years, the separation of church and state has become a prominent part of many legal battles. From the White House to the Supreme Court, the government has started to reinterpret a legal concept that dates back to the founding of the country. But where exactly did the notion that the government and religious institutions should be distinct come from? Read on to find out more about the history of the division of church and state in the United States and whether or not that distinction is in danger of eroding.

History of Church and State

The United States was founded in part by people fleeing persecution at the hands of state-sponsored religions. However, even after crossing the Atlantic, many of these same people were still under threat of religious persecution. The crown attempted to make the Church of England the official church of the American colonies. That effort was put to bed as part of the revolution and may have even galvanized efforts to separate religion and the government at the nation’s founding. Individual states also rolled back their own efforts to establish state-sponsored religions. Part of the impetus behind this effort was the writings of many thinkers from the Enlightenment and Protestant Reformation, which had important effects on the Founding Fathers as they wrote the Constitution.

Although the notion that there should be a division between church and state has been around for more than 200 years, it is not explicitly mentioned anywhere in the Constitution. The first recorded mention of the concept comes from a letter written by Thomas Jefferson to a Baptist Association in Connecticut. The idea gained traction and was first used by the Supreme Court in a decision in 1879. By 1947 it had essentially become a central part of constitutional law when it was cited as such in the Supreme Court decision in Everson v. Board of Education.

Precedents and Court Cases

While the specific phrase, “the separation of church and state,” is not in the Constitution, the distinction is implicit in several aspects of the document. First would be Article VI, which requires that all government officials swear loyalty to the Constitution and prohibits religious tests for public officials. Second is the Establishment Clause of the First Amendment, which prohibits the government from establishing any state-sponsored church. Lastly, is the Free Exercise Clause, which prohibits Congress from making laws against any religion. These provisions were later extended to the states following the adoption of the 14th Amendment.

These constitutional provisions and others have been used in a number of prominent Supreme Court cases, aside from the two previously mentioned. In 1948, in McCollum v. Board of Education, the Establishment Clause was invoked when the court ruled that religious instruction in public schools is unconstitutional. In 1952, in Burstyn v. Wilson, the court ruled that a state government cannot censor a movie simply because it offended people’s religious beliefs.

In the 1962 case Engel v. Vitale, the court ruled that school-sponsored prayer is unconstitutional. In 1968, a state statute banning the teaching of evolution was deemed unconstitutional. Three years later, in Lemon v. Kurtzman, the court created a test to determine if a government action violated the precedent of the separation of church and state. The test has three parts and can be used to evaluate a law’s constitutionality:

First, the statute must have a secular purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.

In Allegheny County v. ACLU, the court determined in 1989 that nativity scenes in public buildings violated the Establishment Clause. In the case Church of Lukumi Babalu Aye., Inc. v. Hialeah, the court ruled in 1993 the city’s ban on animal sacrifice as part of religious exercise was unconstitutional. There are many other cases as well, but these notable examples show that the Court has actively defined a level of separation between the church and state over the years.

Recent Cases

In several recent cases, however, the pendulum seems to be swinging back to less separation between the church and state. One example comes from 2014 when the court ruled that Hobby Lobby, a privately-owned company, could refuse to provide health insurance that covers birth control to its employees on the basis of the owners’ religious beliefs. The ruling created an exception to the Affordable Care Act’s requirement that all employer-provided health insurance plans must cover contraception.

In another ruling from June, in the case Trinity Lutheran Church vs. Comer, the court weighed in on an issue that could have a major impact on the divide between church and state. This case centered around whether a private, religious school could use public funds for a secular project–namely rubberizing its playgrounds. While the state had initially ruled against the school because it was a religious organization, the Supreme Court ultimately ruled in its favor because it viewed the state’s denial to grant the school funding as discriminatory.

This ruling, in particular, is important for two reasons. First, it seemed to suggest that Blaine Amendments are unconstitutional. The Blaine Amendment was a failed amendment to the Constitution from 1875, which prohibited funds raised through taxes from going to religiously affiliated institutions. Although the effort failed, 35 states currently have their own laws that prevent public funds from going to religious groups.

The second major potential consequence of the Trinity Lutheran case concerns the extent to which this ruling will apply to funding for other activities conducted by religious organizations. Four of the justices attempted to head off this potential problem by clarifying in a footnote that the decision only applied to playgrounds. However, since only four of the nine justices signed off on the footnote, it is technically not the opinion of the court. The ambiguity there will likely result in future legal challenges, as religious groups will seek to identify new areas where they are eligible for public funding.

The video below discusses the facts of the Trinity Lutheran case in further detail:

The Trump Administration’s View

When it comes to the separation of church and state, like many other issues, the president has so far taken a seemingly idiosyncratic approach that may contrast with some of his campaign promises. In May, he signed an executive order that weakened the Johnson Amendment–part of a law that prevented religious organizations from getting directly involved in politics. That order was actually less controversial than what many expected based on Trump’s campaign rhetoric, although it remains to be seen whether he will take more aggressive action in the future.

Less moderate is the viewpoint of President Trump’s Secretary of Education, Betsy DeVos. DeVos has been an avid proponent of religious charter schools and even helped finance the campaigns of politicians who supported them. One of the fears following the Trinity Lutheran decision was that it opened a path to funnel tax dollars to religious charter schools, whose curricula would still not be overseen by the government.

Conclusion

The notion of the separation of church and state has existed in the United States for hundreds of years, and in Western Civilization long before that. Although the term is not explicitly used in the Constitution, the division has been established by the courts through their interpretation of it, particularly the Establishment Clause of the First Amendment. Over the years this specific clause, as well as a few others, has been used repeatedly to strengthen the divide between church and state.

However, the interpretation of the separation seems to have shifted in recent years, as the perception of an anti-religious bias has grown among many on the right, which the Supreme Court has reflected in its opinions. The clearest evidence comes from the recent Trinity Lutheran Church case, which not only allowed a religious school access to public funds but the opened door for future efforts to direct public money to religious organizations.

This opening presents an unclear path forward. While it is unlikely anyone will try to overtly knock down the proverbial wall between church and state, there are indications some holes might be drilled. While the extent of the recent shift is hard to determine, it does seem likely to continue.

Michael Sliwinski

Michael Sliwinski (@MoneyMike4289) is a 2011 graduate of Ohio University in Athens with a Bachelor’s in History, as well as a 2014 graduate of the University of Georgia with a Master’s in International Policy. In his free time he enjoys writing, reading, and outdoor activites, particularly basketball. Contact Michael at staff@LawStreetMedia.com.

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This article has been updated. Click here to jump to the update.

President Trump’s travel ban–which according to his aides and representatives is “not” a travel ban, but based on the president’s tweets, is in fact a travel ban–has just been handed another discouraging ruling from the courts.

Late Thursday, a U.S. District in Hawaii, ruled that the president’s executive order restricting immigration from six Muslim-majority countries can’t be used to exclude “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.” The ruling rejected the government’s interpretation of recent guidance issued by the Supreme Court.

That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!

— Donald J. Trump (@realDonaldTrump) June 6, 2017

The ruling, from Judge Derrick Watson, stems from Trump’s revised executive order that was issued on March 6. Later that month, Judge Watson issued a nationwide halt on the revised travel ban, ruling that it discriminated on the basis of religion. Judges in other parts of the country issued similar rulings that were upheld by multiple circuit courts. The issue then made its way to the Supreme Court after an appeal from Justice Department. In June, the Supreme Court said that it would hear the case in the fall and issued a partial ruling in the meantime.

The Supreme Court’s order stated that until it makes its final decision, certain aspects of the executive order could proceed. The court said that if someone seeking a visa or a refugee from one of the six countries could establish a “bona fide relationship” with a person or entity of the United States then they should be allowed to enter the country.

While the Supreme Court offered guidance as to what a “bona fide relationship” is, much of the interpretation was left to the executive branch. The State Department interpreted the ruling through a diplomatic cable saying the only acceptable relationships include: spouse, parent, parent-in-law, child, son-in-law, daughter-in-law, fiancé, and sibling.

In his ruling, Judge Watson stated that the administration’s definition “represents the antithesis of common sense” by including son-in-law and daughter-in-law but not grandparent as qualifying relationships.

Attorney General Jeff Sessions immediately sought clarification from the Supreme Court, saying that the district court:

Undermined national security, delayed necessary action, created confusion, and violated a proper respect for separation of powers… The Supreme Court has had to correct this lower court once, and we will now reluctantly return directly to the Supreme Court to again vindicate the rule of law and the Executive Branch’s duty to protect the nation.

At the Supreme Court’s request, the state of Hawaii responded to the Justice Department’s arguments on Tuesday night, forcefully supporting Watson’s initial ruling and arguing that any appeal should go to the lower courts before the Supreme Court. The Justice Department fought back hours later with another brief making a case for the government’s narrower definition of a bona fide relationship. The government also justified its decision to go directly to the Supreme Court, saying that it is “is the only court that can provide definitive clarification.”

Although the Supreme Court is currently on its summer recess, it’s possible that the justices will decide to weigh in on the dispute in the near future.

James Levinson

James Levinson is an Editorial intern at Law Street Media and a native of the greater New York City Region. He is currently a rising junior at George Washington University where he is pursuing a B.A in Political Communications and Economics. Contact James at staff@LawStreetMedia.com

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Hobby Lobby is a family-owned arts and crafts chain based in Oklahoma. The chain has a decidedly religious flavor–in its mission statement it says it is committed to “Honoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.” But now the company is under fire for a seemingly unethical move–smuggling ancient artifacts out of Iraq.

On Wednesday, Hobby Lobby and the Department of Justice reached a resolution that will require Hobby Lobby to pay $3 million and forfeit over 5,000 artifacts that it smuggled out of Iraq. The items include clay bullaes (clay balls with seals on the surface) and cuneiform tablets that were improperly labeled.

Here is a timeline of events that details the criminal activity based on court documents:

• In 2009, Hobby Lobby began collecting historically significant artifacts and documents.
• In July 2010, Hobby Lobby President Steve Green and a consultant met with antiquities dealers to inspect a potential sale of 5,548 distinct artifacts.
• Later that month, Hobby Lobby hired a cultural law expert to review the legal issues relevant to the acquisition.
• In October 2010, the cultural law expert warned Hobby Lobby’s in-house counsel that some of the items that Hobby Lobby was interested in purchasing might have been stolen from Iraq, and could be seized by customs, leading to criminal charges.
• In December 2010, Hobby Lobby purchases the artifacts for $1.6 million.
• Over the next year, the antiquities dealers and Hobby Lobby imported the artifacts under false pretenses. For instance, package labels indicated the goods originated from Israel and Turkey when they actually originated from Iraq.
• In January 2011, five shipments containing artifacts were detained by U.S. customs.

By reaching a settlement, Hobby Lobby accepts full responsibility for its actions in the scandal. In a statement on the matter, Green said:

We should have exercised more oversight and carefully questioned how the acquisitions were handled. Hobby Lobby has cooperated with the government throughout its investigation, and with the announcement of today’s settlement agreement, is pleased the matter has been resolved.

U.S. Customs has not commented on what will happen to the artifacts it seized from Hobby Lobby.

This is not the first time that Hobby Lobby has been on the front page due to a legal issue. In 2014 the store was part of the landmark Supreme Court case Burwell v. Hobby Lobby. Hobby Lobby argued that due to their religious beliefs as a corporation they did not have to provide female employees with free contraception. In a 5-4 decision, the court ruled in favor of Hobby Lobby, expanding the rights of religious freedom to cover corporations as well.

James Levinson

James Levinson is an Editorial intern at Law Street Media and a native of the greater New York City Region. He is currently a rising junior at George Washington University where he is pursuing a B.A in Political Communications and Economics. Contact James at staff@LawStreetMedia.com

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Revised Travel Ban Takes Effect Tonight

This evening, the new version of President Donald Trump’s travel ban will go partially into effect. On Monday, the Supreme Court said “okay” to parts of the revised travel ban, but will hear the case in the fall. SCOTUS aims to probe how much control a president can actually have over border and immigration issues.

The court said this implementation of the ban would not affect those who can prove a “bona fide relationship with a person or entity in the United States.” Last night, the State Department issued guidelines for how to decide such cases. It says that individuals such as step-siblings, half-siblings, parents, in-laws, and sons- and daughters-in-law are considered close family. However, grandparents, nieces, nephews, or brothers- and sisters-in-law are not.

Iran, Libya, Somalia, Sudan, Syria, and Yemen are the countries that will be affected. Omar Jadwat, director of the ACLU immigrants’ rights project, said the ruling worries him, as it could create arbitrary definitions of what close family relations are.

Under revised #TravelBan taking effect tonight at 8p ET “close family” excludes grandparents, aunts & uncles, & fiancées, among others pic.twitter.com/TQY3pVFcdd

— Jim Sciutto (@jimsciutto) June 29, 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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The Supreme Court announced Monday that it will hear President Donald Trump’s travel ban case. The hearing will be in October, and until then, the court said parts of the ban will be allowed to go into effect. Trump issued a revised executive order in March, blocking travel from six countries. Two federal courts have since ruled that the ban is unconstitutional and a breach of executive power. The Supreme Court agreed to examine both courts’ decisions.

For the time being, the ban will be reinstated “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States,” the justices said. A bona fide relationship includes “a close familial relationship” for individuals. For entities, “the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [the order].”

“The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity,” the court added.

Trump’s second attempt at stemming travel from a handful of Muslim-majority countries reined in a few of the tenets of his first order, which was originally issued in January. For one, the revised order dropped Iraq from the list of affected countries–Iran, Libya, Yemen, Somalia, Sudan, and Syria.

The order stipulates that residents of the six countries are barred from traveling to the U.S. for 90 days, until stricter vetting procedures are in place. The refugee program will be halted for 120 days, and the number of admitted refugees will drop to 50,000 from about 110,000.

This is Trump’s first travel ban-related victory since he issued the updated order in March. Both orders faced a torrent of opposition–thousands of people hit the streets and packed airports across the country in protest. Trump’s directive fared no better in the courts.

Last month, a federal appeals court, the Fourth Circuit in Richmond, Virginia, issued an injunction on parts of the travel ban, arguing that it “drips with religious intolerance, animus, and discrimination” and violated the First Amendment.

A few weeks ago, the Ninth Circuit Court of Appeals in San Francisco ruled that the ban violated the president’s authority as granted by Congress. The court said Trump “did not meet the essential precondition in exercising his delegated authority,” which requires “a sufficient finding that the entry of these classes of people would be ‘detrimental to the interests of the United States.'”

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.

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On Thursday, the Supreme Court made it more difficult for the government to strip a naturalized American’s citizenship simply because he or she lied during the naturalization proceedings. The case, Maslenjak v. United States, concerns an ethnic Serbian woman who, fleeing war and prosecution from Bosnia in the 1990s, was granted refugee status in the U.S. in 1999. In 2007, she became a citizen, despite lying about her husband’s service in the Bosnian Serb military.

The court’s unanimous decision largely hinged on the standard on which the case was argued and ruled on by the lower courts. Namely, that any sort of lie, no matter its causal link or lack there of to the granting of citizenship, is enough to revoke a naturalized American’s citizenship. That is how the Justice Department’s lawyer, Robert Parker, argued the case. Those were the grounds on which a district court and the Sixth Circuit Court of Appeals in Cincinnati ruled. Both sided with the government.

But the Supreme Court fundamentally disagreed that a naturalized citizen’s rights could be revoked based on an immaterial falsehood. It sent the case back to the Sixth Circuit, allowing it to be reviewed on a different standard.

“We hold that the government must establish that an illegal act by the defendant played some role in her acquisition of citizenship,” Justice Elena Kagan wrote in the unanimous opinion. She continued:

When the illegal act is a false statement, that means demonstrating that the defendant lied about facts that would have mattered to an immigration official, because they would have justified denying naturalization or would predictably have led to other facts warranting that result.

The story begins in 1999, when Divna Maslenjak was granted refugee status. An ethnic Serb fleeing what was then known as Bosnia, Maslenjak said Muslims would mistreat her and her husband because of their ethnicity. At the same time Serbs would punish them because her husband, she claimed, evaded military service. In 2007, Maslenjak and her husband were granted citizenship.

It turns out, however, that Maslenjak did indeed lie about her husband’s circumstances; he served in a Bosnian Serb military unit–one that was accused of committing war crimes. A district court judge ruled that Maslenjak’s falsehood warranted a revocation of her and her husband’s citizenships. The Sixth Circuit, in April 2016, agreed. Their citizenship was revoked, and both Maslenjak and her husband were deported to Serbia.

The Supreme Court’s decision vacates the lower courts’ rulings. In unanimously rejecting the government’s assertion that any lie, regardless of its relevance to citizenship, could lead to revocation, the court strengthened protections for naturalized Americans.

In April, during the arguments for the case, the justices seemed perplexed at the government’s position. In fact, Chief Justice John Roberts confessed to a past misdeed to make a point. “Some time ago, outside the statute of limitations, I drove 60 miles an hour in a 55-mile-an-hour zone,” he said.

If on the citizenship form he answered “no” to the question of whether he had ever committed an offense, Roberts asked Parker, “20 years after I was naturalized as a citizen, you can knock on my door and say, ‘Guess what, you’re not an American citizen after all?” Parker continued to baffle the justices, saying, “If we can prove that you deliberately lied in answering that question, then yes.”

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.

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On Monday, the Supreme Court ruled that a law banning the registration of offensive trademarks was unconstitutional. The decision was a victory for the Asian-American dance rock band The Slants–and potentially the Washington Redskins.

Simon Tam, the band’s frontman, filed a lawsuit after the U.S. Patent and Trademark Office (USPTO) denied his application for a trademark for the name “The Slants.” The agency cited the Lanham Act, which prohibits trademarks “which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

The court ruled in an 8-0 decision that the “disparagement clause” of the Lanham Act violates the First Amendment’s free speech clause. Justice Samuel Alito, who delivered the majority opinion of the court, said Tam chose the name of the band “to ‘reclaim’ the term and drain its denigrating force.” According to Alito, the ban on offensive trademarks “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

The federal government had argued that trademarks are government speech, but Alito wrote to the contrary, saying “trademarks are private, not government speech.” Chief Justice John Roberts as well as Justices Clarence Thomas and Stephen Breyer were in agreement on the majority opinion.

While the justices reached a unanimous judgement, they were split on why they believed it violated the first amendment. In a concurring opinion, Justice Anthony M. Kennedy, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, wrote that the measure in question constitutes “viewpoint discrimination.”

Justice Neil Gorsuch did not contribute because he had not yet been confirmed as a justice in January when the court heard the case.

The Slants celebrated the victory with a lengthy statement following the ruling. “The Supreme Court has vindicated First Amendment rights not only for our The Slants, but all Americans who are fighting against paternal government policies that ultimately lead to viewpoint discrimination,” wrote Tam.

Tam said the band never considered itself a political group, but that “the establishment of an Asian American band was a political act in of itself.” As a result, the band has integrated activism into their work by raising awareness and funds for issues affecting Asian Americans.

“Music is the best way we know how to drive social change: it overcomes social barriers in  a way that mob-mentality and fear-based political rhetoric never can,” Tam said.

The Slants’ trademark case could also impact other controversially named groups like the Washington Redskins, which has been in jeopardy of losing its team name for being racially offensive.

In 2014, the Patent and Trademark Office canceled the team’s trademark because the team’s name is a derogatory term for Native Americans. The Redskins appealed the case, but the federal appeals court had delayed hearing it until the Supreme Court ruled in Tam’s case.

Redskins attorney Lisa Blatt said the Supreme Court’s decision “resolves the Redskins’ long-standing dispute with the government.”

“The Supreme Court vindicated the team’s position that the First Amendment blocks the government from denying or cancelling a trademark registration based on the government’s opinion,” said Blatt.

Marcus Dieterle

Marcus is an editorial intern at Law Street. He is a rising senior at Towson University where he is double majoring in mass communication (with a concentration in journalism and new media) and political science. When he isn’t in the newsroom, you can probably find him reading on the train, practicing his Portuguese, or eating too much pasta. Contact Marcus at Staff@LawStreetMedia.com.

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On Monday, the Supreme Court announced it will hear an appeal regarding political gerrymandering, in what legal experts say could be the most consequential such case in decades. It could alter the tradition of political parties redrawing voting districts for their political advantage. The case, Gill v. Whitford, concerns Wisconsin’s legislature and its gerrymandering efforts in 2011.

In 2010, Republicans gained control of Wisconsin’s legislature for the first time in four decades. After the census, they redrew the state’s voting districts, and in 2012, despite winning less than 50 percent of the vote, Republicans captured 60 of the legislature’s 99 seats. In 2014, Republicans won 52 percent of the vote and increased their state assembly majority to 63 seats.

It is a common practice for state legislatures to redraw voting districts to confer an advantage on the governing party. Redistricting commonly takes place after the once-a-decade census is conducted. The Supreme Court has never struck down districts because of partisan advantage. However, it has, as recently as this year, nixed districts that were devised in order to dilute the vote of minority populations.

In May, the Supreme Court struck down two districts in North Carolina, affirming a lower court’s decision that the Republican-controlled legislature drew the map to dilute the influence of African-American voters.

Last November, a federal district court ruled that Republicans’ 2011 gerrymandering effort in Wisconsin crossed a line and was unconstitutional. In a 2-1 ruling, the court found that the districts were drawn in order to minimize the influence of Democratic votes, and were “designed to make it more difficult for Democrats, compared to Republicans, to translate their votes into seats,” the majority opinion concluded.

“Although a majority of the [Supreme Court] has suggested that states can violate the Constitution if they draw legislative districts primarily to benefit one political party, the justices have never been able to identify the specific point at which states cross the constitutional line,” Steve Vladeck, a Supreme Court analyst and law professor at the University of Texas School of Law, told CNN. “In this case, a lower court held that Wisconsin had indeed crossed that line.”

According to the plaintiffs in Gill v. Whitford, Republicans in Wisconsin accomplished their politically-motivated gerrymandering via two techniques: packing and cracking. Packing is fairly self-explanatory: the state legislature stuffs the opposition party’s voters into a single district, thus diluting each individual vote. Cracking is the practice of spreading opposition votes in districts where the governing party enjoys a majority, keeping those votes out of districts that could swing either way.

In a statement released Monday, Wisconsin’s Republican Attorney General Brad Schimel said the state’s redistricting was constitutional. He said: “I am thrilled the Supreme Court has granted our request to review the redistricting decision and that Wisconsin will have an opportunity to defend its redistricting process.”

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.

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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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On Monday, the Supreme Court struck down a federal immigration law that made it easier for children of U.S. citizen mothers to obtain citizenship than children of U.S. citizen fathers.

Per the Immigration and Nationality Act of 1952, the citizenship of children born outside of the United States to one U.S. citizen parent and one parent who is a citizen of another nation is decided differently depending on whether the U.S. citizen parent is the child’s mother or father. A child of a U.S. citizen mother would automatically become a U.S. citizen as long as the mother had lived in the U.S. for one year. However, a child of a U.S. citizen father would only automatically become a U.S. citizen if the father had lived in the U.S. for five years before the child was born, and if at least two of those years had occurred after the father had turned 14.

In an 8-0 decision in Sessions v. Morales-Santana, the Court held that such a “gender line” was “incompatible” with the Equal Protections Clause of the Fifth Amendment of the Constitution and was therefore unconstitutional. Justice Neil Gorsuch did not contribute because he had not yet been confirmed as a justice in November 2016 when the court heard the case.

Luis Ramón Morales-Santana has lived in the U.S. since he was 13. When Morales-Santana was born, the requirement was that fathers needed to have lived in the U.S. for 10 years before the child was born, five of which had to be after the age of 14–as opposed to the current requirement of five years in the U.S., including two after age 14.

His father, José Morales, moved to the Dominican Republic just 20 days before turning 19 and, therefore, did not meet the earlier requirement of living in the U.S. for at least five years after turning 14. Without his father satisfying that requirement, Morales-Santana was not considered a U.S. citizen. The U.S. government attempted to remove Morales-Santana from the country in 2000 based on several criminal convictions.

Morales-Santana asserted that the U.S. government’s refusal to grant him citizenship violated the Equal Protections Clause because it hinged on gender based classification of his parentage. Had Morales-Santana’s mother been a U.S. citizen and lived in the country for one year, he would have already been considered a citizen.

Justice Ruth Bader Ginsburg wrote the opinion of the court in which she explained that laws granting or denying benefits based on the sex of a parent are subject to “heightened scrutiny.”

Before 1940, Ginsburg said, standards for citizenship of children born abroad were rooted in two gender based assumptions. “In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a nonmarital child,” Ginsburg wrote, describing those assumptions. Children of married parents derived their citizenship status from their fathers, while children of unwed parents derived their citizenship status from their mothers.

The Nationality Act of 1940 eliminated fathers’ sole control over children’s citizenship, instead allowing either married U.S. citizen mothers or fathers to pass citizenship on to their child. The Act also codified unwed mothers’ ability to pass citizenship on to their child, but did not do so for unwed fathers since mothers were regarded as children’s sole guardians in cases in which the parents were not married.

The U.S. government argued that when a child is born to unwed parents, the mother is the only legally recognized parent at the child’s birth; the father is acknowledged after the fact. Ginsburg explained that, according to the U.S. government’s argument, the lengthier residency requirement for U.S. citizen fathers is warranted due to the “‘competing national influence’ of the alien mother.”

However, Ginsburg wrote that the assumption is based on “the long-held view that unwed fathers care little about, indeed are strangers to, their children.” Such a characterization, she says, “no longer passes equal protection inspection.”

The Court held that the gender-based distinction violated the equal protection clause, but did not decide whether the requirement for U.S. citizen mothers should be applied equally to fathers.

Ginsburg said Congress had made an exception for unwed mothers, but not for unwed fathers. Therefore, it is up to Congress, not the Court, to decide whether the standard for unwed mothers should be extended to unwed fathers.

Marcus Dieterle

Marcus is an editorial intern at Law Street. He is a rising senior at Towson University where he is double majoring in mass communication (with a concentration in journalism and new media) and political science. When he isn’t in the newsroom, you can probably find him reading on the train, practicing his Portuguese, or eating too much pasta. Contact Marcus at Staff@LawStreetMedia.com.

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The attorneys general for Maryland and Washington D.C. filed a lawsuit Monday against President Donald Trump, alleging that he violated the Constitution’s anti-corruption clauses by accepting payments from foreign governments since taking office.

This is the first time a state has filed a lawsuit against a president for violating the Constitution’s emoluments clause. While Trump has said that he would transfer his business assets to a blind trust, the lawsuit is centered on the claim that Trump has continued to retain ownership of his vast business portfolio while getting updates from his two sons.

The lawsuit, filed in the U.S. District Court for the District of Maryland, will require the court to answer whether Trump has violated either the domestic or foreign emoluments clauses.

Both clauses ban any “person holding any Office of Profit or Trust” from receiving any payment from foreign countries or from any of the 50 states without approval from Congress. The founding fathers set up the clauses to limit the influence a foreign country or an individual state could wield over the president.

In a copy of the lawsuit provided to the Washington Post, D.C. Attorney General Karl A. Racine and Maryland Attorney General Brian E. Frosh claim that Trump’s global business has him “deeply enmeshed with a legion of foreign and domestic government actors.”

The suit also alleges that businesses in both Maryland and D.C. have been harmed by Trump’s tendency to utilize his own convention centers and properties, such as the Trump International Hotel in D.C. The suit says that hotel payments, tax breaks, and permits all count as domestic emoluments received by Trump, according to CNN Money.

If the lawsuit progresses, the two officials say their first step will be to demand Trump’s personal tax returns in order to gauge the severity of his behavior.

This is the latest in a series of lawsuits attempting to test Trump’s conflicts of interest. Citizens for Responsibility and Ethics in Washington (CREW), a D.C.-based group, and Cork Wine Bar had previously filed lawsuits against the president.

The Trump Organization, though, argues that everything is perfectly legal. In a response to CREW, the Justice Department argued that the lawsuit should be dismissed because Trump may legally accept “market-rate payments” for Trump’s real estate, hotel, and golf companies. They even cited George Washington selling farm produce as a previous example in their 70-page response.

Disappointed with the lack of inquiry from Congress, Racine and Frosh felt compelled to file their own lawsuit.

“We’re getting in here to be the check and balance that it appears Congress is unwilling to be,” Racine said.

The attorneys general feel confident that they have the standing to sue because Maryland and D.C. entered a contract, the Constitution, that Trump has violated by accepting gifts.

So while Trump faced plenty of lawsuits before his presidency and a handful since, this lawsuit represents a big moment in the early months of his administration. Trump’s foreign business dealings and potential conflicts of interest have been controversial since the campaign, but now D.C. and Maryland are demanding transparency within the Trump Administration to ease citizens’ concerns.

“This case represents another storm, not just a dusting of snow, but a blizzard of trouble for Trump,” Norman Eisen, who served as the chief White House ethics lawyer for President Barack Obama and is CREW’s board chairman, said. “Who better than governmental actors to say our deal was, our fundamental democratic bargain was, we would get a president who would follow the Constitution.”

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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As former FBI Director James Comey prepares to speak on Thursday before a Senate committee on recent events surrounding Russia, President Donald Trump, and the 2016 election, many are preparing their watch parties.

First off, not only will C-SPAN and PBS be broadcasting the feed but ABC, NBC, and CBS all plan to replace their normally scheduled daytime programing with a live feed of his testimony, according to CNN.

And some bars in the nation’s capital are changing things up to show the testimony on their flat-screen televisions.

Shaw’s Tavern plans to open at 9:30 a.m. Thursday morning in preparation for Comey’s 10 a.m. testimony, according to The Washington Post. The bar is calling its viewing party a “Comey Hearing Covfefe,” nicknamed after Trump’s mysterious tweet last week.

They will be offering $5 vodka drinks along with $10 “FBI” sandwiches, according to CNN.

A bar fittingly named The Partisan will also be opening at 10 a.m. to offer food and beverages.

Other bars are running with the “covfefe” theme. Duffy’s Irish Pub, normally a Washington Nationals bar, will tune into the testimony instead of baseball. The pub is offering a “Covfefe Cocktail,” an orange drink with unknown ingredients.

Duffy’s getting in on the Comey watch party action pic.twitter.com/HvDT35YMHR

— Tierney Sneed (@Tierney_Megan) June 6, 2017

“…It is like drinking Kool Aid but only a small group of people know what’s in it,” the advertisement says.

“Covfefe” is quite clearly another joke on the administration. In the aftermath of Trump’s strange tweet, White House Press Secretary Sean Spicer explained that “the president and a small group of people know exactly what he meant,” according to CNN.

Comey’s testimony on Thursday has the potential to be an interesting morning in Washington so television networks and bars are looking to capitalize. Cheers to what may be a momentous day in American history.

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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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 Supreme Court will hear a case concerning cellphone privacy rights, and whether the government must secure a warrant to obtain a private individual’s location tracking data from that person’s cellphone company.

In Carpenter v. United States, the case the Supreme Court will be hearing, Timothy Ivory Carpenter argues that prosecutors in his criminal trial violated his Fourth Amendment rights when they obtained location data from his cellphone company, MetroPCS.

Prosecutors obtained data not just from the days of the crime, but from a range of dates totaling 127 days. Carpenter was convicted in 2013 for his role in a series of cellphone store robberies and sentenced to 116 years in prison in 2014.

The Supreme Court ruled in 2014 that government officials must obtain a warrant to search an individual’s cellphone. However, whether that restriction extends to requesting individuals’ location data from their cellphone providers is murkier territory.

In an age when we are constantly plugged in to technology, some people fear that the electronic devices we use on a daily basis could know more about us than they’re letting on. As the companies in charge of those devices and services store customer data, the dilemma arises of protecting customers’ information versus abiding by federal law.

After two men shot and killed 14 people in San Bernardino in 2015, Apple refused to help the FBI gain access to an iPhone that belonged to one of the attackers, Syed Farook. Apple CEO Tim Cook explained at the time that bypassing the security of Farook’s phone could create a backdoor for any hacker to access anyone else’s iPhone in the future. The FBI eventually accessed Farook’s phone without Apple’s assistance.

While Farook’s and Carpenter’s situations share some parallels regarding cellphone privacy, there is a notable difference between them. Bypassing the San Bernardino attacker’s phone security required the creation of a software that had not existed at the time, software that Cook believed had the potential of exposing other iPhone users to cyber attacks.

Obtaining Carpenter’s location data, on the other hand, merely required information that the phone provider already has available. Still, the issue remains of whether it is constitutional to request that data from cellphone providers.

The Stored Communications Act, enacted as Title II of the Electronic Communications Privacy Act of 1986, requires prosecutors to go to court to acquire an individual’s tracking data. However, the prosecutor does not have to show probable cause, but must just demonstrate that there are “specific and articulable facts” showing that the contents “are relevant and material to an ongoing criminal investigation.”

A federal appeals court ruled that Carpenter’s Fourth Amendment rights were not violated. If the Supreme Court upholds that decision, the government will not require a warrant to obtain cellphone users’ location data from their providers, thus limiting individuals’ cellphone privacy during criminal investigations.

Marcus Dieterle

Marcus is an editorial intern at Law Street. He is a rising senior at Towson University where he is double majoring in mass communication (with a concentration in journalism and new media) and political science. When he isn’t in the newsroom, you can probably find him reading on the train, practicing his Portuguese, or eating too much pasta. Contact Marcus at Staff@LawStreetMedia.com.

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The Trump Administration is taking its fight to implement a controversial executive order halting travel from six largely Muslim countries for 120 days to the highest judicial level: the Supreme Court. Lower courts have blocked parts of President Donald Trump’s revised order–he scrapped a first attempt earlier this year after courts stopped it–over the past few weeks.

Trump’s harsh campaign rhetoric regarding Muslims, critics argued, revealed that his true motivation for instituting the ban was to stop Muslims from coming to the country. Trump has said the order–which blocked travel from Syria, Iran, Yemen, Libya, Sudan, and Somalia–is grounded in national security concerns.

In its brief, the administration argued:

The stakes are indisputably high: The court of appeals concluded that the president acted in bad faith with religious animus when, after consulting with three members of his cabinet, he placed a brief pause on entry from six countries that present heightened risks of terrorism. The court did not dispute that the president acted at the height of his powers in instituting [the order’s] temporary pause on entry by nationals from certain countries that sponsor or shelter terrorism.

The road to the Supreme Court has been seemingly inevitable. Trump crumpled up his first order, issued on January 27, after a federal appeals court in San Francisco blocked it in February.

The president issued a revised ban in March, which dropped the number of affected countries from seven to six (Iraq was removed), removed specific references to protecting Christian minorities, and allowed for a more case-by-case approach to determine which travelers are allowed into the country. Like the first order, it froze the refugee program for 120 days, and dropped the threshold of admitted refugees each year from 110,000 to 50,000.

If the High Court decides to take up the case, it will be an early test for Neil Gorsuch, the court’s newest justice. In his Senate confirmation hearing in March, Gorsuch barely budged when asked about his views on the travel ban. Referring to a previous comment from a senator that Gorsuch would likely preserve the ban, Gorsuch said: “He has no idea how I would rule in that case. And senator, I am not going to say anything here that would gave anybody any idea how I would rule.” When Sen. Patrick Leahy (D-VT) asked Gorsuch what he thought of banning other religions or citizens of entire countries, like Jews from Israel, Gorsuch replied:

We have a Constitution. And it does guarantee freedom to exercise. It also guarantees equal protection of the laws and a whole lot else besides, and the Supreme Court has held that due process rights extend even to undocumented persons in this country. I will apply the law faithfully and fearlessly and without regard to persons.

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.

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In a unanimous decision, the Supreme Court on Tuesday scrapped a ruling by a lower federal court that deemed otherwise reasonable force by a police officer unreasonable if the officer “intentionally or recklessly provokes a violent confrontation.” The justices sent the case back to the Ninth Circuit Court of Appeals in San Francisco, leaving open a victory for the plaintiffs if the court can find wrongdoing on charges other than excessive force.

The case, County of Los Angeles vs. Mendez, involves an incident that took place in October 2010. Los Angeles County police officers were searching a residence for a parole violator who was at-large and apparently armed. A number of officers searched the main area while two deputies, Christopher Conley and Jennifer Pederson, burst into a shack in the back of the residence.

In the shack, a homeless couple, Angel Mendez and Jennifer Garcia, who was pregnant, were taking a nap underneath a heap of blankets. Mendez reached for a gun (later discovered to be a BB gun). Conley yelled “Gun!” and the deputies sprayed the couple with bullets.

Both lived, but Mendez had to get part of his leg amputated. Meanwhile, the parolee the officers were seeking was not found on the property. Mendez and Garcia sued the deputies and Los Angeles County on three Fourth Amendment claims: warrantless entry, knock-and-announce, and excessive force. The lower courts ruled in favor of the plaintiffs on all three counts, awarding the couple $4 million.

But the Supreme Court, in a 8-0 vote–Justice Neil Gorsuch had not been confirmed when the case was argued in March–vacated the lower courts’ excessive force ruling. In its ruling, the Ninth Circuit argued the officers’ use of force was reasonable, but because the two deputies provoked the situation, their actions were ultimately unreasonable. The justices disagreed with that outlook, halting the $4 million recovery for the plaintiffs.

“The basic problem with the provocation rule,” Justice Samuel Alito wrote, is that it “provides a novel and unsupported path to liability in cases in which the use of force was reasonable.” He said the Fourth Amendment “provides no basis for such a rule,” adding: “A different Fourth Amendment violation cannot transform a later, reasonable use of force into an unreasonable seizure.”

In a statement, the Association for Los Angeles Deputy Sheriffs cheered the decision: “This invented rule put the lives of deputies into danger by causing them to hesitate in using reasonable force to defend themselves for fear of later civil liability,” it said.

Alito did allow, however, that the Ninth Circuit could still find reason to award damages to the plaintiffs. He wrote: “For example, if the plaintiffs in this case cannot recover on their excessive force claim, that will not foreclose recovery for injuries proximately caused by the warrantless entry.”

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.

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On Monday, in a 5-3 decision, the Supreme Court struck down two mapped congressional districts in North Carolina on the grounds that Republican lawmakers drew them with the intention of diluting the African-American vote. In affirming a lower court’s decision, the justices found a narrow–and contentious–distinction between redistricting for political benefit, and redistricting with the intent to harm a certain slice of the electorate based on race.

The case, Cooper v. Harris, was the latest involving racially-motivated gerrymandering to reach the Supreme Court. According to the 1965 Voting Rights Act, state legislatures can redraw congressional districts based on a number of factors, partisanship being the most common. But although race can be one of a smattering of factors when redrawing a state’s districts, it can not be the predominant one.

“The sorting of voters on the grounds of their race remains suspect even if race is meant to function as a proxy for other (including political) characteristics,” Justice Elena Kagan wrote in the majority opinion. She was joined by Justices Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

The North Carolina districts in question include one of the state’s largest, District 1, and one of its smallest, District 12. Both are currently held by black Democrats, G.K. Butterfield and Alma Adams, respectively. According to Kagan, the Republican-held General Assembly fashioned the new congressional map after the 2010 census to devalue the black vote.

In District 1, after the census, black people of voting age rose from 48.6 percent to 52.7 percent. In District 12, the percentage of voting-age black residents hit 50.7 from 43.8. Republicans argue that tilting the districts majority-black is within their legal limits, because distinguishing the black vote from the Democratic vote–a vast majority of black voters support Democratic candidates–is almost impossible.

Justice Samuel Alito argued that same point in his dissenting opinion: “If around 90 percent of African-American voters cast their ballots for the Democratic candidate, as they have in recent elections, a plan that packs Democratic voters will look very much like a plan that packs African-American voters.”

He added: “If the majority party draws districts to favor itself, the minority party can deny the majority its political victory by prevailing on a racial gerrymandering claim.” Alito was joined in dissent by Chief Justice John Roberts and Justice Anthony Kennedy. Justice Neil Gorsuch, the court’s newest member, did not participate, because the case was argued on December 5, months before he was confirmed.

The court’s decision was welcome news for Butterfield and Adams. Butterfield said the decision “clearly reaffirms my position that the Republican-controlled state legislature unlawfully used race as the predominant factor” in gerrymandering. And Adams called for an independent redistricting commission in North Carolina, saying, “we should be working together to make access to the ballot box easier and more fair.”

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.

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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.

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Over a two-hour period on Monday, a federal appeals court in Richmond heard arguments on a case concerning President Donald Trump’s revised travel ban, issued via executive order in March. The 13-judge panel was split between those who argued that Trump’s order should be examined on its merits and text, and others who contended that the directive should be viewed in the context of the president’s past statements on Muslim immigration.

The hearing, which was the first test for Trump’s contentious executive order in a federal appellate court, saw arguments from Jeffrey Wall, the acting solicitor general of the U.S. who defended the government’s position, and Omar Jadwat, a lawyer from the ACLU representing the plaintiffs. The fact that 13 judges heard arguments–in a court that usually consists of a three-judge panel–indicates the weight that this case holds.

Questions over how the travel ban should be viewed–either by its merits or in light of Trump’s public statements–were generally split between the Democratic-appointed judges and the Republican-appointed ones. Judge Robert King, appointed by President Bill Clinton, said Trump has “never repudiated what he said about the Muslim ban,” alluding to Trump’s calls for a freeze on Muslim immigration during the campaign.

Judge Pamela Harris, appointed by President Barack Obama, likewise read the travel ban as an anti-Muslim missive. The ban “has a disparate impact on Muslims,” she said. But Judge Paul Niemeyer, appointed by President George H.W. Bush, questioned the wisdom of reading too much into past statements. “Can we look at his college speeches?” he asked. “How about his speeches to businessmen 20 years ago?” He added: “I just don’t know where this stops.”

Wall, representing the Trump Administration in the hearing, said Trump’s past statements do not indicate any motives beyond the text of the order. That is, that it’s a national security measure. “Candidates talk about things on the campaign trail all the time,” he said. Wall also denied the charge that the ban is effectively a Muslim ban. “This is not a Muslim ban” he said. “It has nothing to do with religion. Its operation has nothing to do with religion.” 

Trump’s revised March order banned travel for 90 days from six countries in the Middle East and North Africa: Somalia, Iran, Syria, Libya, Sudan, and Yemen. It also froze admittance of refugees for 120 days, and dropped the number of refugees allowed to enter the U.S. from 120,000 to 50,000. Two federal judges, one in Maryland and one in Hawaii, blocked parts of Trump’s order in March.

Monday’s hearing at the U.S. Court of Appeals for the Fourth Circuit is an appeal of the Maryland ruling. Next Monday, a federal appeals court in Seattle will review an appeal of the Hawaii ruling. Ultimately, regardless of how the judges in Richmond rule, the case is likely to end up at the Supreme Court.

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.

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Monday was supposed to be the first day in a string of executions in Arkansas, as the state’s supply of the sedative midazolam, which is used in the lethal injection, expires at the end of the month. That is why Arkansas Gov. Asa Hutchinson ordered eight executions to take place over 11 days, before the current stash of midazolam expires. But a succession of lawsuits has stopped the executions from happening.

This is the latest development in a messy legal fight as Arkansas is pushing to execute eight prisoners in almost as many days. Last month, the eight prisoners filed a lawsuit in which they called the state’s rush to kill them “reckless and unconstitutional.” They also cited the use of midazolam as a problem, as many other states have stopped using the drug after a couple of botched executions that led to slow and painful deaths.

At the end of last week, pharmaceutical companies Fresenius Kabi USA and West-Ward Pharmaceuticals Corp. filed a friend of the court brief in the prisoners’ lawsuit. Fresenius Kabi said it believes that the state of Arkansas acquired potassium chloride, the second ingredient in the three-drug lethal injection, from the company, and that it did so under false pretenses.

Arkansas fights in multiple courts to carry out two of eight planned executions Monday. https://t.co/ueFxXfktba

— AP Central U.S. (@APCentralRegion) April 17, 2017

On Friday, Arkansas Judge Wendell Griffen halted the use of the third of the three execution drugs, vecuronium bromide. The manufacturer of this drug, McKesson Corporation, also claimed that the state bought it under false pretenses, by using the medical license of an Arkansas physician. Although Griffen’s ruling was not based on the executions legality, it made the carrying out of the executions impossible. And then over the weekend, federal Judge Kristine Baker halted all of the executions, citing the prisoners’ lawsuit.

“The threat of irreparable harm to the plaintiffs is significant: If midazolam does not adequately anesthetize plaintiffs, or if their executions are ‘botched,’ they will suffer severe pain before they die,” she wrote. But on Monday, the 8th U.S. Circuit Court of Appeals overturned her ruling, saying the evidence that the executions would “cause severe pain and needless suffering” was insufficient.

To complicate matters, Judge Griffen was barred on Monday from hearing any death penalty cases in the state as it was revealed that he attended an anti-death penalty rally right after issuing the halt of the lethal injection on Friday. Griffen not only attended the demonstration, he also lay down on a cot and bound himself with a rope, making it look like he was a death row inmate on a gurney, awaiting execution. The protest took place outside Gov. Hutchinson’s house. Death penalty advocates were outraged and many Republican lawmakers called it judicial misconduct.

Judge rules against #Arkansas #executions. Judge attends anti-#deathpenalty rally. Judge barred from such cases. https://t.co/SodtMofgaj pic.twitter.com/hDLKFp553A

— AP Central U.S. (@APCentralRegion) April 17, 2017

The hurried pace of carrying out eight executions over 11 days is unprecedented in modern times, and Arkansas hasn’t performed an execution since 2005. But Hutchinson has been eager to get going, citing justice for the families of the victims the inmates have killed. And after all the legal back and forth, it looked like the state could go on with the plans. But then in a last minute development, the Arkansas Supreme Court granted a delay in the execution of one of the prisoners, Don Davis, after his attorney sought a stay on Monday. The court also stayed the execution of Bruce Ward.

Arkansas Attorney General Leslie Rutledge asked the U.S. Supreme Court late Monday evening to overrule that decision. The court declined to hear the case. However, late Monday the Arkansas Supreme Court also overruled the restraining order by Griffen on the use of vecuronium bromide, which means the lethal injections are free to use again. But the state is also facing a different problem: it can’t seem to find enough witnesses for the executions. The law requires at least six civilian witnesses at each execution.

So for now, all the prisoners are still alive. But since Baker’s stay of the executions was overruled, there is nothing that stops the state from going through with the executions, as long as there are enough witnesses. On Thursday, two inmates, Ledell Lee and Stacey Johnson, are scheduled for execution.

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.

The post Arkansas Keeps Fighting to Carry Out Planned Executions appeared first on Law Street.

The battle between church and state is moving from the playground to the Supreme Court. Five years ago, Trinity Lutheran Church in Missouri applied for money from the state so that it could repair a playground used by students in the church’s learning center. Because children had been scraping their knees and elbows on the gravel, Trinity wanted to cover the area with a rubber surface.

Because Missouri’s constitution does not allow public funds to support religious organizations, it rejected the church’s application for a grant. The church sued in response, insisting that it should have been eligible to receive the grant because the playground upgrade did not serve any religious purposes. After losing in federal district court and appellate court, Trinity’s case eventually reached the United States Supreme Court, which plans to hear arguments starting on Wednesday, April 19.

What the case boils down to is whether or not the provision in Missouri’s constitution violates the U.S. Constitution’s First Amendment, which prohibits the government from encroaching on the free exercise of religion.

Now, Missouri Gov. Eric Greitens has announced his plans to undo the state’s policy that prohibits tax dollars from going toward religious groups. Jeffrey Mittman, the director of Missouri’s branch of the American Civil Liberties Union, is among Greitens’ critics who said that his move violates the state’s constitution.

Greitens’ new policy will not reverse the state’s refusal to give Trinity the grant. However, because it settles future issues involving religious institutions applying for grants, it could mean that the Supreme Court will no longer see the need to hear the Trinity case.

But one of the church’s attorneys, David Cortman, insisted that the case is still relevant because Greitens’ move does not “resolve the discriminatory actions that were taken” by the state.

Having the recently confirmed Supreme Court appointee Neil Gorsuch weigh in on the matter could benefit the church. While a judge for a U.S. appeals court in Colorado, Gorsuch argued that religious freedom protected the store chain Hobby Lobby from the Affordable Care Act’s requirement that it would have to offer its employees free birth control coverage.

And, depending on how narrowly the Supreme Court rules, the outcome of the case could have implications in other parts of the country as well–particularly in the 38 states that currently uphold Blaine Amendments, laws that prevent their governments from giving any financial aid to religiously-affiliated institutions.

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 How a Church Playground Caused a Dispute Over Religious Freedom appeared first on Law Street.

As of April 11, Alabama no longer grants state judges the authority to override jury recommendations in capital cases. As one of her first acts as governor, Kay Ivey signed the SB16 bill into law and put an end to judicial override in capital cases in Alabama. The move was likely a preemptive response to shifting legal tides. Had Alabama not revised its laws, it would likely have faced fierce and ongoing battles in court.

Alabama, Florida, and Delaware are the only states to have ever allowed judicial override in capital cases. In the 2016 case Hurst v. Florida, the U.S. Supreme Court found Florida’s sentencing scheme in violation of the defendant’s Sixth Amendment right to trial by jury. In response to the high court’s ruling, Delaware’s Supreme Court ruled its state’s sentencing scheme unconstitutional a few months later.

In the wake of Hurst v. Florida, the U.S. Supreme Court denied an appeal by an Alabama death row inmate who claimed he was sentenced under a scheme similar to Florida’s. Alabama’s Supreme Court upheld judicial override nine months later. In spite of these victories, it seems that Alabama was no longer willing to put resources toward defending judicial override in court.

Following Hurst v. Florida, the Florida legislature amended its sentencing practices to reinstate capital punishment. However, Delaware’s General Assembly has yet to pass any such legislation, meaning there is an effective halt on the death penalty in the state. By amending its sentencing laws, Alabama has put an end to a recurrent legal battle and ensured the perpetuity of capital punishment in the state.

While Alabama has removed judicial override, its new sentencing practices could still face legal challenges. Following the chain of events set in motion by Hurst v. Florida, Alabama is now the only state that allows a jury to non-unanimously recommend the death penalty.

Before the Hurst v. Florida ruling, Alabama, Florida, and Delaware allowed a jury to recommend the death penalty with 10 of 12 votes. In the same ruling that banned judicial override, Delaware’s Supreme Court deemed non-unanimous recommendations unconstitutional. While Florida’s initial legislation preserved the practice, the Florida Supreme Court later found non-unanimous recommendations constitutional.

Alabama’s Supreme Court would almost certainly uphold non-unanimous death penalty recommendations, and the U.S. Supreme Court has not explicitly ruled on the matter. The overwhelming consensus against the practice suggests Alabama could once again find itself in court.

Callum Cleary

Callum is an editorial intern at Law Street. He is from Portland OR by way of the United Kingdom. He is a senior at American University double majoring in International Studies and Philosophy with a focus on social justice in Latin America. Contact Callum at Staff@LawStreetMedia.com.

The post Will Banning Judicial Override for Capital Cases Keep Alabama Out of Court? 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.

The year-long scuffle over the Supreme Court’s ninth seat ended Friday morning, when the Senate confirmed Neil Gorsuch to fill the vacancy left by Justice Antonin Scalia, who died last February. Voting largely along party lines–save for three Democrats–the 54-45 vote capped weeks of fierce debate, culminating in a historic rule change that could further deepen the partisan rancor in the Senate.

After failing to secure the 60 votes needed to break a Democratic filibuster, Senate Republicans on Thursday triggered the so-called “nuclear option,” effectively disposing of the filibuster option for Supreme Court nominees. As a result, the 60-vote threshold dropped to a simple majority which, with 52 members in the 100-member chamber, Republicans had no trouble reaching.

“[Gorsuch] has sterling credentials, an excellent record and an ideal judicial temperament,” Sen. Mitch McConnell said after the vote. “He has the independence of mind for fairness.” Throughout 20 hours of questioning from the Senate during his confirmation hearings last month, Gorsuch was predictably elusive, neglecting to say where he would stand on specific issues.

Democrats said his strict interpretation of the Constitution put him out of the “mainstream,” and argued he too often ruled in favor of big corporations. But from the beginning, the fight was a referendum on the man who nominated Gorsuch, President Donald Trump. It was also retribution for McConnell’s refusal to give Merrick Garland–who President Barack Obama nominated to the seat–a hearing. McConnell argued a sitting-duck president should not have the authority to nominate a judge to the Supreme Court.

But despite weeks of mostly uniform Democratic resistance to Gorsuch, three Democrats, all from states that Trump captured in the election, supported him: Sens. Heidi Heitkamp (ND), Joe Manchin III (WV), and Joe Donnelly (IN). Republican Johnny Isakson of Georgia did not cast a vote.

With an immovable Democratic resistance threatening to derail the nomination of a candidate who, by many metrics, was qualified, Republicans took the extreme step of pursuing the “nuclear option.” For legislative votes, however, the filibuster will remain in place. The move was not without precedent. In 2013, then-Democratic Majority Leader Harry Reid dismantled the filibuster option for lower federal court picks and cabinet appointees.

After leading the resistance against Gorsuch, Sen. Chuck Schumer (D-NY), the minority leader, said he hopes Gorsuch will not be beholden to the man who nominated him to the court. “I hope Judge Gorsuch has listened to our debate here in the Senate, particularly about our concerns about the Supreme Court increasingly drifting towards becoming a more pro-corporate court that favors employers, corporations and special interests over working Americans,” Schumer said, imploring Gorsuch to be “the independent and fair-minded justice that America badly needs.” Gorsuch will be sworn in on Monday.

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 A Day After the Rule Change, Senate Confirms Neil Gorsuch to the Supreme Court appeared first on Law Street.

During his four years as president, Nicolás Maduro has faced an ever-growing political opposition and has become the focal point of near constant anti-government protests. On March 29, Venezuela’s pro-government Supreme Court ruled to dissolve the majority-opposition legislature and absorb its powers. Though the high court softened its decision after an intense backlash, anti-government protesters continue to flock to the streets of Caracas and cities across Venezuela in opposition to what they are calling a coup d’état. Although the opposition is growing louder, larger, and more determined, Maduro is intent on keeping power at all costs. The current conditions have been long in the making and it is unclear what lies ahead.

Hugo Chávez and Oil

By most estimates, Venezuela has the largest discovered crude oil reserves in the world. For decades, the Venezuelan economy has depended on the exports of this single commodity. When Hugo Chávez rose to power in 1998, world oil prices were high and the economy was booming. Chávez used the profits generated by Venezuela’s nationalized oil industry to build a country with his socialist vision. Under his rule, social spending increased and many felt that Chávez more than lived up to his promises of a socialist society. Chávez famously launched an initiative in 2011 to provide over one million houses to families in need.

In spite of his promise to defy capitalism and imperialism, Chávez’s undiversified and commodity-based economy was always at the mercy of international markets. After hitting an all time high in July 2008, oil prices crashed in January 2009, putting the Venezuelan economy under immense pressure. However, although Chávez’s approval rating did suffer slightly, he retained popular support and his mandate was rarely in doubt. In tough times, Chávez’s cult of personality guaranteed him a certain amount of unconditional support and there was no one who could mount a realistic challenge against him.

Maduro’s Rise

Nicolás Maduro took over the United Socialist Party (PSUV) upon Chávez’s death in March 2013 and won a special election the following month. Maduro’s surprisingly narrow victory suggested he would never have the kind of support that his predecessor had enjoyed. Venezuela’s economy had been flagging long before Maduro took over; soaring inflation rates and a dependency on imported consumer goods had resulted in widespread shortages. However, without Chávez at the helm, Venezuelans appeared far less willing to turn a blind eye. Though Maduro promised to continue the Chávez legacy, he would never be able replace the revolutionary figure.

In January 2014, anti-government demonstrations gained traction after a violent government response to initial demonstrations caused matters to escalate. In May 2014, oil prices crashed and the situation went from bad to worse. Already struggling in the polls, Maduro’s approval rating plummeted below 25 percent. Protests continued to rage, and in March 2015, the National Assembly finally granted him permission to rule by decree.

Political Resistance

In spite of Maduro’s move to expand his power, the political resistance continued to mount. In December 2015, the opposition Democratic Unity Roundtable Party (MUD) took control of the National Assembly for the first time in more than 16 years of PSUV rule. MUD controlled 112 (67 percent) of the legislature’s 167 seats–a supermajority that granted deputies expanded powers over Maduro’s executive branch.

While Maduro initially accepted the results, the loyalist Supreme Court ruled to block three newly elected MUD lawmakers from taking office, citing electoral irregularities. The ruling, which was handed down a week before the deputies were set to meet for their first session, was seen by opposition politicians as a blatant attempt to dismantle the supermajority. The MUD-controlled National Assembly ignored the ruling and swore the deputies in. It was this act of defiance that compelled the court to dissolve the National Assembly and hand control of the country back to Maduro and the PSUV on March 29.

While the ruling effectively restored Maduro’s control over Venezuela’s three branches of government, it in no way restored his control over the country. On the day of the ruling, protestors amassed outside the court. In response to the outcry, the Supreme Court revised the contentious decision last Saturday. While it seems the Supreme Court will no longer take over the legislature’s power to enact legislation, the ruling was not reversed. The legislature has still been ruled to be in contempt of the court and may not be allowed to pass new laws. Unsurprisingly, this revision has done little to quell the opposition. Protests continue to rage and have since turned violent.

While there are signs that Maduro could lose the faith of some high-ranking PSUV members and face a challenge from inside the party, it seems unlikely the party will turn on him just yet. Maduro is intent on expanding his powers, while an ever-increasing number of Venezuelans are adamantly opposed to his leadership.

Maduro would almost certainly lose a free and fair election–scheduled for October 2018–but any number of things could happen before then. Long-standing tensions have reached a point where some fear a civil war may be imminent.

Under Chávez, the PSUV dominated every aspect of Venezuelan politics. While critics often called Chávez a dictator and decried his authoritarian style, the popular support for the socialist leader was undeniable. Maduro, the heir to Chávez’s throne, does not enjoy this level of popularity. Maduro is simply incapable of filling the seat Chávez left behind. Many of the systemic issues that plague Venezuela pre-date Maduro’s presidency, but his approach to the role has only aggravated an already disgruntled, disenfranchised, and disenchanted public.

Callum Cleary

Callum is an editorial intern at Law Street. He is from Portland OR by way of the United Kingdom. He is a senior at American University double majoring in International Studies and Philosophy with a focus on social justice in Latin America. Contact Callum at Staff@LawStreetMedia.com.

The post Political Turmoil in Venezuela: What’s Next? appeared first on Law Street.

Neil Gorsuch will likely face an uphill battle in securing the Supreme Court’s vacant ninth seat. On Thursday, the last day of Gorsuch’s Senate confirmation hearings, Democrats signaled they would filibuster President Donald Trump’s nominee to the Supreme Court. That would leave Republicans with two options: introduce a new nominee, or pursue the so-called “nuclear option,” and obliterate the filibuster possibility for Supreme Court nominees.

In a speech on the Senate floor Thursday morning, Sen. Chuck Schumer (D-NY), the Minority Leader, said Gorsuch “will have to earn 60 votes for confirmation,” adding: “My vote will be no.” As the rules stand, Gorsuch would require 60 votes–eight Democrats along with the 52 Republican Senators–to pass. If Republicans decide to scrap the filibuster option, a simple majority would be sufficient.

Voicing a common concern among Democrats and liberal groups, Schumer said he fears Gorsuch would interpret the law in an ultra-conservative manner. “His career and judicial record suggest not a neutral legal mind but someone with a deep-seated conservative ideology,” Schumer said, adding that if Gorsuch cannot clear the 60-vote mark, “the answer isn’t to change the rules,” but “to change the nominee.”

If Republicans, led by Sen. Mitch McConnell (R-KY), choose to scrap the filibuster–something Trump has expressed support for–they would not be without precedent. In 2013, Democrat Harry Reid, the Senate Majority Leader at the time, changed the rules for most presidential appointments, including federal judiciary nominees and cabinet appointees, to require simple majorities instead of the 60-vote threshold. Reid, who recently retired, kept the filibuster in place for Supreme Court nominees.

In undoing the filibuster, Reid and most Democrats (a few opposed the move) said it was a necessary response to what they saw as unprecedented Republican obstruction. Republicans saw it as a gross abuse of power that would come back to haunt Reid. McConnell called it a “power grab.” Indeed, many of Trump’s less-popular cabinet appointments narrowly passed the Senate, and likely would have been thwarted had the ability to filibuster been in place.

Gorsuch’s best chance at securing the nomination could come through the handful of Democrats who will be up for re-election next year in states that Trump won. But if Sen. Bob Casey (D-PA), who is up for re-election next year, is a harbinger of how his colleagues will vote, Gorsuch would fall short of 60 votes. “I have serious concerns about Judge Gorsuch’s rigid and restrictive judicial philosophy,” Casey, said on Thursday. Gorsuch, he said, “employs the narrowest possible reading of federal law and exercises extreme skepticism, even hostility, toward executive branch agencies.”

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 Democrats Signal That They Will Filibuster The Gorsuch Vote appeared first on Law Street.

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.

“It cannot be right that the IDEA generally contemplates grade-level advancement for children with disabilities who are fully integrated in the regular classroom, but is satisfied with barely more than de minimis progress for children who are not,” Chief Justice John Roberts wrote in a unanimous opinion, using the acronym for the Individuals with Disabilities Education Act, which guarantees free public education for students with disabilities.

The plaintiff, Endrew F., has autism. In 2010, his parents determined that his public school was not providing him with a sufficiently rigorous education. They removed Endrew from public school and enrolled him in a private school, Firefly Autism House. After spending two years at the private school, Endrew’s parents sought reimbursement for his private school tuition with the Colorado Department of Education. That request was denied by an Administrative Law Judge, but the case moved forward.

A Federal District Court later ruled in favor of the school district; the Tenth Circuit Court of Appeals affirmed that decision. Wednesday’s decision vacates the lower court’s ruling. According to the National Association of State Directors of Special Education, which filed a brief for Endrew F. v. Douglas County School District, “public school educators across the nation have regularly set high expectations for and provided meaningful educational benefits to students with disabilities.”

The brief continued: “Decades of research and experience establish that the education of children with disabilities is enhanced by placing high expectations on these children – tailored to their individual abilities and potential – in order to prepare them to be college- and career- ready and to lead productive and independent adult lives.”

The 8-0 decision came as Neil Gorsuch, President Donald Trump’s Supreme Court nominee, is on the third day of his confirmation hearings. Gorsuch has been involved in over ten cases involving students with disabilities. In eight he sided with the school district. In today’s hearing, Sen. John Cornyn (R-TX), asked Gorsuch about his pro-school district record on cases like the Endrew. “I was wrong, Senator, because I was bound by circuit precedent, and I’m sorry,” he said.

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 Supreme Court Rules in Favor of Special Education Rights 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:

Republicans Finally Introduce Their Obamacare Replacement

Yesterday, House Republicans presented their draft version of a replacement of the Affordable Care Act, which was one of President Donald Trump’s most ardent campaign promises. The new law would keep some of the ACA’s key components, such as prohibiting companies from denying coverage to people with pre-existing conditions and allowing people under 26 to stay on their parents’ health plan. However, it would reverse the expansion of Medicaid and drop the requirement that bigger companies must provide health insurance for full-time employees. It also does away with the provision that requires Americans to either have health insurance or pay a penalty fee. And it would get rid of federal subsidies for low-income individuals and, as many people have feared, defund Planned Parenthood for one year (more on that below).

According to Republicans, the ACA is “a sinking ship.” But Democrats are highly critical of this new plan. “Republicans will force tens of millions of families to pay more for worse coverage–and push millions of Americans off of health coverage entirely,” said Minority Leader Nancy Pelosi. And some on social media were also critical of the language used to refer to the new plan, claiming it was out of touch and didn’t acknowledge the real costs of care in the U.S.

Yes, the reason poor have trouble affording health care is all the new iPhones they’re buying. https://t.co/EJsZaejOH1 pic.twitter.com/SWoUp2nvAe

— Jamelle Bouie (@jbouie) March 7, 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.

The post RantCrush Top 5: March 7, 2017 appeared first on Law Street.

The Supreme Court on Monday issued a landmark ruling on jury secrecy, while declining to hear what would have been its first case on transgender rights. In Peña Rodriguez v. Colorado, the court ruled that if racial bias is found to influence a juror’s opinion, an inquiry into the jury deliberations–a secret practice–could be launched. The transgender rights case involved Gavin Grimm, a high school student and transgender man whose school did not allow him to use the boys’ bathroom. Here’s what you need to know about each case: 

Peña Rodriguez v. Colorado

In 2010, a jury found Miguel Angel Peña Rodriguez guilty of sexually harassing two sisters in a racetrack bathroom. One of the jurors, a former police officer referred to as H.C., said he thought Peña Rodriguez was guilty “because he’s Mexican, and Mexican men take whatever they want,” according to sworn statements from his fellow jurors. H.C. said the defendant’s alibi witness was not credible because he was “an illegal,” the sworn statements said. 

On Monday, in a five-to-three decision, the Supreme Court found that racial bias on the part of a juror–like H.C. in the Peña Rodriguez case–warrants an inquiry into jury deliberations. “Racial bias implicates unique historical, constitutional and institutional concerns,” Justice Anthony Kennedy wrote for the majority opinion. He added that for an inquiry to be justified, “there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.”

Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan agreed with Kennedy, while Justices Samuel Alito, John Roberts, and Clarence Thomas dissented. Writing for the dissenting opinion, Alito called the prevailing opinion “startling,” adding that “although the court tries to limit the degree of intrusion, it is doubtful that there are principled grounds for preventing the expansion of today’s holding.”

The Gavin Grimm Case

In 2015, a local school board in Virginia enacted a policy that students must use the bathroom that corresponds with the gender on their birth certificate. This was a blow to transgender students who, like Grimm, want to use the bathroom that corresponds to their gender identity. Grimm, represented by the ACLU,  challenged the policy in court. Last year, a federal appeals court in Richmond, Virginia, ruled that the policy is unlawful, concurring with the Obama Administration that Title IX, which protects students from sexual discrimination, also protects transgender rights.

But on Monday, the Supreme Court vacated the appeals court’s ruling, sending it back for further consideration. The case would have been the first transgender rights case to appear in the highest court. The decision to throw away the case for the time being was likely influenced by the Trump Administration’s repeal of an Obama Administration directive requiring public schools to allow students to use whichever bathroom matches their gender identity.

“Thousands of transgender students across the country will have to wait even longer for a final decision from our nation’s highest court affirming their basic rights,” Sarah Warbelow, the legal director of the Human Rights Campaign, told the New York Times.

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 SCOTUS Declines Hearing for Gavin Grimm Case, Issues Ruling on Jury Secrecy appeared first on Law Street.

The Supreme Court has overturned the death sentence for a man who has been on death row since 1997 because of the racist testimony of a witness called by his own lawyers. On Wednesday, the court decided 6-2 to give Duane Buck another chance. Buck was convicted of killing his ex-girlfriend and her male friend, and wounding his own stepsister, with a shotgun in Texas in 1995.

During the sentencing phase of the trial in 1997, Buck’s own defense lawyers knowingly called an expert witness to the stand who claimed that Buck ran a higher risk of posing a danger in the future because he is black. “It’s a sad commentary that minorities–Hispanics and black people–are over-represented in the criminal justice system,” said former prison psychiatrist Dr. Walter Quijano.

ICYMI: Today #SCOTUS ruled in favor of a new sentencing hearing for our client, #DuaneBuck. Read our statement: https://t.co/xlU5mo1zPP pic.twitter.com/CxEOJPTgil

— Legal Defense Fund (@NAACP_LDF) February 22, 2017

The jury listened to Quijano and sentenced Buck to death. Then began Buck’s long series of appeals. He appealed the original sentence, but didn’t raise the issue of ineffective assistance of counsel. A state court affirmed his sentence. Then Buck’s lawyer filed a petition for a writ of habeas corpus, but it didn’t mention Quijano or his testimony. But then it was discovered that Quijano had given racist testimony in several other cases. Some of those convicted raised claims in federal court in 2000, and they were granted new sentencing hearings.

Duane Buck’s trial lawyer, who put on testimony that his own client was dangerous for being black, still works in the 208th court every day.

— Franklin Bynum (@bynumlaw) February 22, 2017

Buck’s lawyer filed a second habeas petition, claiming ineffective assistance of counsel by the trial lawyers, but it was filed in state court and not in federal. Then-Texas Attorney General John Cornyn said that because Buck’s own defense had called Quijano as a witness, there was no mistake made by the state and therefore nothing that needed to be fixed. The fact that Buck didn’t mention Quijano in the first habeas corpus was the final nail in the coffin.

In the new petition, filed in October, Buck’s defense cited “extraordinary circumstances” in order to pursue the ineffective assistance of counsel claims, even though that legally should have been done in the first place. This time SCOTUS listened. Chief Justice John Roberts wrote in the majority decision that the testimony in 1997 by Quijano claimed “that the color of Buck’s skin made him more deserving of execution. No competent defense attorney would introduce such evidence about his own client.”

Justices Clarence Thomas and Samuel Alito dissented, saying that the heinousness of Buck’s crime and his lack of remorse justify the death penalty. But, Buck will now be able to have a new hearing on his sentence.

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.

The post SCOTUS Overturns Death Sentence for Black Man Whose Lawyer Called Racist Witness 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.

The post Trump Administration Pulls Support for Transgender Bathroom Protections appeared first on Law Street.

A federal appeals court late Thursday night affirmed a lower court’s decision to block President Donald Trump’s executive order that banned travel from seven countries to the U.S. The ruling is a blow to Trump’s efforts to clamp down on refugees and immigrants from “terror prone” countries the White House says pose a threat to U.S. security. Trump said the ruling was a “political decision,” and pledged to bring the case to the Supreme Court.

For now, refugees and visa-holders–who have already been vetted and admitted to the U.S. by the Department of Homeland Security–from Syria, Yemen, Iran, Iraq, Sudan, Somalia, and Libya will be allowed to travel and settle in the U.S. Trump’s executive order, issued on January 27, barred refugees from entering the U.S. for at least 120 days, and visa-holders for at least 90 days. Syrians–refugees and travelers–would have been blocked indefinitely.

The U.S. Court of Appeals for the Ninth Circuit, in San Francisco, deliberated for two days before coming to a conclusion. The three-judge panel unanimously agreed that the executive order could violate the Fifth Amendment, which prohibits the government from denying “life, liberty, or property, without due process of law.”

The three judges, appointees of Presidents Barack Obama, Jimmy Carter, and George W. Bush, said: “we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.” Trump tweeted his disapproval just moments after the court’s decision:

SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!

— Donald J. Trump (@realDonaldTrump) February 9, 2017

The road to the appeals court began last Friday, when a district court judge in Seattle granted a temporary restraining order on the travel ban. That judge, James Robart, sided with the states of Washington and Minnesota, the plaintiffs in the case, and said that because of the travel ban, the states “are likely to suffer irreparable harm in the absence of preliminary relief.” The White House immediately appealed to the court in San Francisco, and after a day of oral arguments and two days of deliberations, the appeals court affirmed Robart’s ruling.

The appeals court was unconvinced by the administration’s argument that the judiciary has no authority to question executive actions involving national security. “It is beyond question,” the decision said, “that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.” The court did say the government should enjoy deference in matters of national security, but reiterated that those decisions are not “unreviewable.”

The Trump Administration will likely file an emergency appeal to the Supreme Court within the next few days. With the pending confirmation of Trump’s Supreme Court nominee Neil Gorsuch, the court has eight justices, which many consider ideologically split 4-4. If the case ends up in their docket, a 4-4 vote would keep the appeals court’s ruling in place. A Supreme Court hearing and decision could come as early as next week.

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 Federal Appeals Court Refuses to Reinstate Travel Ban: What You Need to Know appeared first on Law Street.

Refugees from around the globe, and visa-holders from Syria, Iraq, Iran, Yemen, Libya, Sudan, and Somalia can once again travel to America–for the time being, at least. The window of relief came courtesy of James Robart, a federal district court judge in Seattle, Washington. On Friday, Robart granted a temporary restraining order on President Donald Trump’s recent executive order travel ban, which barred travelers from the seven aforementioned countries–refugees and visitors alike–for various amounts of time.

Trump responded to the injunction by taking the case to federal appeals court–and by tweeting:

The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!

— Donald J. Trump (@realDonaldTrump) February 4, 2017

While tweeting obviously does not have constitutional authority to overturn the opinion of a federal judge, an appeals court does. But the U.S. Court of Appeals for the Ninth Circuit in San Francisco did not re-instate the travel ban; instead it ordered the Trump Administration to file a brief defending the executive order by Monday at 3 p.m. In its emergency motion filed with the appeals court, which was denied, the administration wrote:

The injunction contravenes the constitutional separation of powers; harms the public by thwarting enforcement of an Executive Order issued by the nation’s elected representative responsible for immigration matters and foreign affairs; and second-guesses the President’s national security judgment about the quantum of risk posed by the admission of certain classes of aliens and the best means of minimizing that risk.

However the appeals court decides to rule on the motion, the losing side, either the Trump Administration or the states of Washington and Minnesota, which filed the initial lawsuit, will likely bring their case to the Supreme Court. In the meantime, Trump continues to lash out at the “so-called judge” Robart, Trump’s surrogates were dispatched to defend him, and Republican and Democratic politicians responded to the president’s apparent disrespect for the judicial branch.

On NBC’s “Meet the Press,” Vice President Mike Pence said Trump has “every right to criticize the other two branches of government.” He added that Trump and millions of Americans “want to see judges that will uphold the law and recognize the authority the president of the United States has under the Constitution to manage who comes into this country.”

In its emergency motion, the administration cited the Immigration Act of 1952 (amended in 1965) as “the framework for deciding which aliens may enter and remain in the United States.” This law, the administration said, gives the executive branch the authority to determine who is welcome to come to America, for refuge or for a visit.

The 1965 law was passed to undo America’s past quotas on immigrants from certain countries, notably Arabs, Africans, and European Jews fleeing the Holocaust. The law broadly established the current procedure for resettling refugees and welcoming immigrants, and the Trump Administration is likely to point to it as proof of the president’s authority to make immigration-related decisions.

As Trump continues to decry the federal courts (“just cannot believe a judge would put our country in such peril,” he tweeted on Sunday), Democrats and some Republicans are defending judicial authority. Sen. Mitch McConnell (R-KY) said its “best not to single out judges,” and Sen. Ben Sasse (R-NE), on ABC’s “This Week,” said: “We have people from three different branches of government who take an oath to uphold and defend the Constitution.”

The Senate Judiciary Committee’s top Democrat, Sen. Dianne Feinstein (D-CA) said Trump “is not a dictator,” and that the Founding Fathers “wanted a strong Congress for the very reason that most of these kinds of things should be done within the scope of lawmaking. This is done within the scope of executive power.” In the coming days, weeks and, most likely, months, federal courts, including the Supreme Court, will test the checks-and-balances system the founders established centuries ago.

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.

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It all began almost exactly one year ago: Supreme Court Justice Antonin Scalia was found dead in his hunting lodge in Texas. We all know what happened next. President Barack Obama nominated Merrick Garland to fill Scalia’s seat. Republicans, led by Senate Majority Leader Mitch McConnell, refused to allow Garland a hearing. The stonewalling paid off when Donald Trump won the presidential election in November. On Tuesday, President Trump nominated Neil Gorsuch, a federal appeals court judge in Denver, to fill the vacant post. But Gorsuch has a number of hurdles to clear before he can take a seat on the most coveted bench in the land.

First, he must complete a questionnaire that can run up to a few hundred pages long. Gorsuch will have to cite every opinion he has written. He will also have to divulge all of his sources of income–including speaking fees–and any essays and other documents he has written. The Senate will examine his answers, the FBI will conduct a background check, and members of the Senate Judiciary Committee will conduct investigations of their own.

Next, after procedural obstacles are cleared, the long and arduous journey to the confirmation hearing will begin. Gorsuch will meet privately with Senators of both parties. Meanwhile, Democrats and Republicans will hash out the details of the confirmation hearing, such as when it will be held, and how many witnesses will be allowed to participate. To prepare for the hearing, which can last three to four days, Gorsuch will undergo a mock hearing with his advisers, where they will try to foresee any questions that might be hurled his way.

The final step, a Senate vote, is where things can get really interesting. This is no ordinary vote. Many Democrats vividly remember how Republicans treated Garland; others seem ready to support Gorsuch. Confirmation, as the rules currently stand, requires 60 Senate votes. There are 52 Republican Senators and 46 Democrats (and two Independents). Therefore, if the GOP unanimously backs Gorsuch, they would need eight Democrats to push him through.

But the chorus of Democrats who wish to obstruct Trump’s nominee as the Republicans did Obama’s nominee is growing. As the rules stand, they do have that ability: Democrats could choose to filibuster and effectively refuse to give Gorsuch the 60 votes he needs to pass. There are signs, however, that McConnell is willing to change the rules to lower the threshold of votes needed to pass to 51, or a simple majority vote. If that happens, Gorsuch would sail through the confirmation vote.

In a meeting with McConnell and other Republicans, Trump seemed to support a rule change if it comes to that. “If we end up with that gridlock, I would say, ‘If you can, Mitch, go nuclear,'” he said. In 2013, Harry Reid, the Democratic Senate majority leader at the time who has since retired, provided a blueprint for a rule change. Responding to Republican opposition to Obama’s agenda, Reid slashed the filibuster option for cabinet positions and other presidential nominations, including judicial nominees. If McConnell embraces the same route, the rule change would affect Supreme Court nominations beyond Gorsuch, beyond Trump’s presidency, and beyond the current Republican hold on Congress.

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 What Happens Next for SCOTUS Nominee Neil Gorsuch? appeared first on Law Street.

Tuesday evening, the process of filling the vacant Supreme Court seat began, when President Donald Trump nominated Neil Gorsuch to succeed conservative Justice Antonin Scalia, who passed away last February. At 49, Gorsuch is the youngest Supreme Court nominee in 25 years and, if confirmed, would restore the 5-to-4 conservative bent of the court, which has been ideologically split since Scalia’s passing.

Gorsuch, a Denver native who practiced law in Washington D.C. and was in the same class as President Barack Obama at Harvard Law School, is widely seen as fitting the right-wing mold of Scalia. He has served for nearly a decade on the U.S. Court of Appeals for the 10th Circuit in Denver, and earlier in his career, clerked for two Supreme Court justices, Justice Byron White and Justice Anthony Kennedy. Here are five cases which provide a window into Gorsuch’s judicial philosophy:

Hobby Lobby Stores, Inc. v. Sebelius

One of the mandates in the Affordable Care Act is that employers must provide their employees with health insurance that covers contraceptives. In 2013, the owner of an Oklahoma-based arts-and-crafts chain, Hobby Lobby, challenged that mandate at the 10th Circuit appeals court. David Green argued that the ACA’s mandate infringed upon his religious liberty; providing health insurance that covered contraceptives went against his Christian faith.

Gorsuch, and four of his colleagues, agreed, and Green won the challenge. The Supreme Court later affirmed the 10th Circuit’s ruling. “As the Greens explain their complaint, the ACA’s mandate requires them to violate their religious faith by forcing them to lend an impermissible degree of assistance to conduct their religion teaches to be gravely wrong,” Gorsuch wrote in his concurring opinion.

Yellowbear v. Lampert

Andrew Yellowbear, an inmate at a prison in Wyoming, sued the director of the Wyoming Department of Corrections for denying him access to the prison’s sweat lodge. As part of his Native American heritage and religious beliefs Yellowbear, serving a life sentence for murdering his daughter, wished to use the sweat lodge for prayer and meditation. In 2014, Gorsuch and his colleagues at the 10th Circuit court agreed with the plaintiff, and reversed an earlier district court ruling.

Writing in the majority opinion, Gorsuch said: “While those convicted of crime in our society lawfully forfeit a great many civil liberties, Congress has (repeatedly) instructed that the sincere exercise of religion should not be among them — at least in the absence of a compelling reason. In this record we can find no reason like that.”

A.M. v. Holmes

In May 2011, a seventh grade student in Albuquerque, New Mexico interrupted a gym class by making fake burping sounds. He was arrested and charged with a misdemeanor. The student’s mother brought a case against the school’s principle and the police officer to a district court in New Mexico. The judges ruled in favor of the defendants, and last summer, the case wound up in the U.S. Court of Appeals for the 10th Circuit.

The justices confirmed the decision of the lower court, and sided with the defendants–the school and police. But Gorsuch disagreed with the majority opinion. “If a seventh grader starts trading fake burps for laughs in gym class, what’s a teacher to do? Order extra laps? Detention? A trip to the principal’s office? Maybe,” he wrote in his dissenting opinion. “Respectfully, I remain unpersuaded.”

American Atheists Inc. v. Davenport

In 2010, the U.S. Court of Appeals for the 10th Circuit found that memorial crosses that ran along a highway in Utah were unconstitutional as an “endorsement of religion” by the government. Gorsuch and three of his fellow justices disagreed with the majority on the case. The Supreme Court declined to hear the case in 2011.

In his dissenting opinion, Gorsuch cited a Supreme Court precedent that found roadside memorial crosses “need not be taken as a statement of governmental support for sectarian beliefs.” He also said the court’s finding that a “reasonable observer” might not be able to read the names on the crosses as they drove past, and thus that they could interpret the crosses as a government endorsement of Christianity is a moot point. “Most Utahans, the record shows, don’t even revere the cross,” he added.

Direct Marketing Association Inc. v. Brohl

This case centers around a 1992 Supreme Court decision, Quill Corp. v. North Dakota, which found that if an online retailer does not have a physical presence in a state (like Amazon), it is not required to collect a state sales tax. But an online retailer that does have a physical presence in a state (like Best Buy), is required to collect a sales tax.

Colorado enacted a law in 2010 that forced online retailers, no matter their brick-and-mortar presence in the state, to collect a state sales tax. Direct Marketing Association, a group of businesses, challenged the law in court. Last February, the case ended up in the 10th Circuit appeals court in Denver. The court reversed district court rulings in favor of the DMA, and found that the law does not “discriminate against nor does it unduly burden interstate commerce.” Gorsuch concurred.

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 Trump’s Supreme Court Nominee Neil Gorsuch: Five Key Rulings appeared first on Law Street.

The Supreme Court will not hear an appeal from Texas officials who wish to restore their state’s voter ID law, which lower courts ruled unconstitutional and discriminatory against minorities. Chief Justice John Roberts wrote the order on the case. In his brief statement, he left open the possibility of hearing the case after it is finished moving through the lower courts.

“Petitioners may raise either or both issues again after entry of final judgement,” Roberts wrote. “The issues will be better suited for certiorari review at that time.” The courtroom tussle over the ID law goes back to 2014, when a federal judge first struck down the bill as “unconstitutional.” Other federal courts took up the case as well; one affirmed the 2014 decision, and another is awaiting trial.

Enacted in 2011, the Texas law requires voters to present photo identification–a Texas driver’s license, gun license, military ID, or passport–at the voting booth. Critics contend that it is specifically aimed at silencing the minority vote; adherents say it is meant to stanch voter fraud. Up until 2013, the Voting Rights Act required states with a history of discrimination, which includes Texas, to get approval from federal authorities before changing a state-level voter ID law.

In 2013 however, the Supreme Court struck down the section of the Voting Rights Act that required federal approval for changes in a states’ voting laws. Texas began enforcing this one. But soon after, the law was challenged in the Federal District Court in Corpus Christi. Judge Nelva Gonzales Ramos found the law to be an “unconstitutional burden on the right to vote,” adding that it has “an impermissible discriminatory effect against Hispanics and African-Americans.”

Texas officials were adamant that the challengers to the law “presented no evidence that the law resulted in diminished minority political participation or prevented even a single person from voting.” The challengers to the law responded, saying it was an “unusually and unnecessarily harsh law, affecting over 600,000 registered voters, and taking aim specifically at minority voters.”

While the National Conference of State Legislatures previously classified the Texas law as a “strict photo ID law,” it now puts it in in the “nonstrict voter ID” category. This includes states that allow voters to sign an affidavit in lieu of a photo ID if they are unable to produce one at the polls. For now, at least, this policy will hold.

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 Supreme Court Rejects Hearing for Appeal to Restore Texas Voter ID Law 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.

The Supreme Court kicked off a new term on Monday by rejecting hundreds of appeals that built up over the summer recess. Because of the Jewish holiday of Rosh Hashanah, which commemorates the Jewish New Year, the justices did not hear any arguments on Monday. Three of the eight justices are Jewish. Arguments are scheduled to begin on Tuesday. Here are five cases that will not be heard by the high court this coming term.

Death Row Appeal

From 2009 to 2013, death row inmates in North Carolina were allowed to review sentencing statistics to prove their sentencing was tainted by racial bias under the Racial Justice Act. Four inmates–three African-Americans and one Native American–had their death sentences reduced to life in prison with no parole because of the newly enacted law. But North Carolina’s Supreme Court vacated the reduced sentences last December, after the Racial Justice Act was annulled in 2013, meaning the inmates’ death sentences could be reinstated.

The inmates sought to appeal that decision to the U.S. Supreme Court, which rejected their appeal on Monday. Their cases will be retried at the state level. North Carolina has not performed an execution in 10 years.

Obama Immigration Appeal

In late 2014, President Obama announced a proposal to shield illegal immigrants who met certain residency requirements and stopped children who were U.S. citizens from being deported. Twenty-six states sued, claiming Obama was overstepping his authority, and the Supreme Court, operating as an eight person bench due to Justice Antonin Scalia’s death in February, ruled in a 4-4 decision against the administration.

On Monday, the high court weighed an appeal from the Obama administration to reconsider his proposal when a ninth member joins the bench. They rejected the appeal.

Taser Gun Appeal

In 2011, police officers in North Carolina shot a man five times with a taser gun. The man, Ronald Armstrong, was mentally ill and refused to be taken to a mental hospital. He later died from the taser wounds.

The 4th U.S. Circuit Court of Appeals ruled the police used excessive force, and established new restrictions on police officers’ ability to use a taser gun on people resisting arrest. The U.S. Supreme will not rehear the case this term, they said on Monday, leaving in place the taser guidelines established by the lower court.

John Deere Appeal

Prior to 2013, New Hampshire’s Automobile Dealer Bill of Rights law barred automobile manufacturers from ending dealer contracts without just cause. Then, in 2013, New Hampshire Governor Maggie Hassan expanded the law to include farm equipment manufacturers. Led by John Deere, the newly expanded law was challenged in the state’s Supreme Court, which upheld the law.

The farm equipment firms appealed their case to the U.S. Supreme Court, which let the state court ruling stand by rejecting the appeal.

“Whitey” Bulger Appeal

James “Whitey” Bulger, the infamous Boston gangster, was arrested in 2011 after 17 years on the lam. Two years later, he was convicted of racketeering crimes, and of playing a role in at least 11 murders. Bulger, 87, appealed his 2013 conviction, arguing that a now-dead federal prosecutor promised him immunity.

His appeal to the Supreme Court was officially shut down on Monday, and he is now essentially guaranteed to spend the remainder of his life behind bars.

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 Supreme Court Kicks Off New Term with Hundreds of Rejected Appeals 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:

Donald Trump and the $400 Million Dollar Question

The White House rejects claims that a $400 million dollar transaction that took place between the U.S. and Iran is anything more than what it is, a legitimate transaction. In January, the United States delivered $400 million in cash to Iran “a long-standing financial dispute,” according to the White House press secretary Josh Earnest. Earnest spent Wednesday deflecting claims and criticism about the money order from all directions, including news outlets and Donald Trump.

Trump tweeted Wednesday that there was more to the money than met the eye:

Our incompetent Secretary of State, Hillary Clinton, was the one who started talks to give 400 million dollars, in cash, to Iran. Scandal!

— Donald J. Trump (@realDonaldTrump) August 3, 2016

Sounds like hot air, right? But it wasn’t until other top Republicans started speaking up that things started to get a little iffy.

Obama administration sent plan load of cash to #Iran as ransom as part of deal on hostages. Just unreal. https://t.co/UHfdK4BEyN

— Marco Rubio (@marcorubio) August 3, 2016

Rubio and many others are claiming that the money was a ransom payment for four U.S. soldiers who had been taken hostage in Iran after crossing into its surrounding waters. Earnest says that the money was part of a series of unrelated settlement from a decades-old debt and the release of the hostages just happened to be within the same timeline. Earnest claims that while the scandal rumors “make for a more colorful story,” but that the cash was just a boring debt payment. So opponents of the Iran deal need to shut up.

via GIPHY

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The post RantCrush Top 5: August 4, 2016 appeared first on Law Street.

“Deflategate” is easily one of the biggest scandals to ever rock the NFL, continuously generating headlines a year and a half later. The intricacies of the controversy have become so complex, that coming this fall the University of New Hampshire’s Law School will offer a class that focuses specifically on the scandal. A legal expert for Sports Illustrated and a nationally prominent UNH law faculty professor, Michael McCann, will lead the course.

According to the class description,

The nationally publicized “Deflategate” case illustrates the power struggle that results when sports and law collide. [The course] will introduce [students] to the role the legal system plays in sports, relevant practices and applications in the field, and the journalistic methods used to fuel a scandal that has dominated the professional sports landscape since January of 2015.

It’s been 544 days since the scandal began with the New England Patriots and the Indianapolis Colts’ AFC Championship Game. On Wednesday, the U.S. Court of Appeals for the Second Circuit rejected a request from Patriots quarterback Tom Brady to avoid a four-game suspension for his role in deflating footballs to make them easier to catch during rainy games. For now, it looks like the New England QB will be watching the games from the sidelines.

Why is this still a thing? #Deflategatepic.twitter.com/gLWWtwxGc1

— Ships Have Sailed (@ShipsHaveSailed) July 13, 2016

Click here to read Law Street Media’s previous coverage on “Deflategate.”

The federal appeals court’s decision could finally be the end to a long and embarrassing string of violations, but Brady can still ask the Supreme Court to overrule his suspension. The odds of that happening are slim though, because the Patriot’s first game takes place in less than two months.

“That would be an extremely long shot, and, of course, could not be finally resolved soon, even were the justices to hear the appeal,” said Carl Tobias, a law professor at the University of Richmond.

The NFL Players Association issued a statement regarding the court’s ruling to deny Brady’s request. The statement reads:

We are disappointed with the decision denying a rehearing, as there were clear violations of our collective bargaining agreement by the NFL and Commissioner Roger Goodell. Despite today’s result, the track record of this League office when it comes to matters of player discipline is bad for our business and bad for our game. We have a broken system that must be fixed. We will review all of our options carefully on behalf of Tom Brady and all NFL players.

Tom Brady when he heard his 4-Game Suspension was being upheld. #Deflatriots #DeflateGate https://t.co/l9b3S4hscM

— SteelersNation (@TheSteelZone) July 14, 2016

The transformation and complications of the scandal will make the law course on the topic an intriguing option for students. The scandal has transformed from cheating accusations over the air pressure in footballs, to a multi-million dollar legal battle involving the nation’s top lawyers. It has also raised questions about the powers of the commissioner and unionized employees’ right to due process in a disciplinary hearing.

“When deflated footballs dominate national headlines, it’s clear that sports have become much more than just a casual pastime in the United States,” reads the class description. “Often the real game takes place on a playing field where legal, regulatory, and journalistic systems converge on the governance of professional sports.”

The Patriots’ backup quarterback, Jimmy Garoppolo, is expected to fill in for Brady in games against the Arizona Cardinals, Miami Dolphins, Houston Texans, and Buffalo Bills. Brady would be eligible to make his regular-season debut in Week 5 against the Cleveland Browns.

Despite the team playing with a second-string player, the Patriots are still predicted to perform well this upcoming season. But during those four games, Brady is set to lose approximately $235,294 in salary.

Inez Nicholson

Inez is an editorial intern at Law Street from Raleigh, NC. She will be a junior at North Carolina State University and is studying political science and communication media. When she’s not in the newsroom, you can find her in the weight room. Contact Inez at INicholson@LawStreetMedia.com.

The post UNH School of Law Offers Course on “Deflategate” appeared first on Law Street.

The Supreme Court handed down several major rulings yesterday and, as is the case whenever the court decides to weigh in on a social issue, a lot of people got really mad. While watching people get angry on social media is always good fun on its own, this time, there was an added level of entertainment as people tweeted their dissatisfaction at SCOTUSblog’s twitter account, thinking that it was the actual Supreme Court.

SCOTUSblog, a website dedicated to tracking all things related to the Supreme Court of the United States (SCOTUS), is not, in fact, operated by or in any way affiliated with the actual Supreme Court. But that doesn’t stop the flood of angry Twitter mentions that it receives at the end of each court term. In fact, its Twitter bio features a nice disclaimer, “A private blog. NOT THE JUSTICES OR THE COURT.” Thankfully, its Twitter account sets aside some time on each of these special nights to respond to many of the mistaken Twitter users.

On Monday afternoon, it started off with a warning to its current followers (who are presumably aware that it is not the actual Supreme Court) as well as some satire to set the scene:

You have one minute to unfollow us before we fill your Twitter feed.

— SCOTUSblog (@SCOTUSblog) June 27, 2016

#BREAKING: facing constitutional crisis, in an unprecedented move, a blog was named to the empty ninth seat on the Supreme Court.

— SCOTUSblog (@SCOTUSblog) June 27, 2016

And then it began. Here’s a collection of some of the best responses from yesterday:

We don’t rule “against the Constitution.” We twist it however we want. MT @pswise1 @SCOTUSblog Is RACIST &Again Rules Against Constitution

— SCOTUSblog (@SCOTUSblog) June 27, 2016

So funny bc we’re just flipping coins. Math says we’ll eventually get one right MT @somhrd50 @SCOTUSblog always on the wrong side of history

— SCOTUSblog (@SCOTUSblog) June 27, 2016

No! Expose who killed Vince Foster, indict Clinton, THEN impeach him. MT @hendog127@SCOTUSblog -Your first OBLIGATION IS TO IMPEACH OBAMA

— SCOTUSblog (@SCOTUSblog) June 27, 2016

Here’s someone calling SCOTUSblog dumb (while at the same time confusing SCOTUSblog for the actual Supreme Court):

What makes you look dumbest, Bets’? MT @BetsyKerr Nothing makes @SCOTUSblog look dumber than a judge dissenting w/irrelevant opinion.

— SCOTUSblog (@SCOTUSblog) June 27, 2016

I’ll let you unpack this one:

Keep it? Most men will prolly oblige. #nadaforzada MT @zadabee @SCOTUSblog Stop killing sperm! Man controls the sperm: KEEP IT~

— SCOTUSblog (@SCOTUSblog) June 27, 2016

Here’s a nice reference to SCOTUSblog’s Twitter bio, which pretty clearly states that it is not affiliated with the actual court. But hey, who takes the time to read Twitter bios before angry tweeting?

Twitter descriptions are good reads too MT @carryabigstaff @SCOTUSblog If you read the Constitution, you know there is no right to privacy.

— SCOTUSblog (@SCOTUSblog) June 27, 2016

Not all of the tweets were angry–some were happy with the court’s decision to strike down provisions in Texas’s HB 2, a law that placed what the court deemed to be undue restrictions on abortion providers.

Honestly, we were 5-3 on selling you to @zombieblog. MT @slclaridge Thanks @SCOTUSblog for continuing to let ME have control over MY body.

— SCOTUSblog (@SCOTUSblog) June 27, 2016

To cap it off, SCOTUSblog ended up trolling unknowing Twitter users so well that Twitter actually suspended its account thinking that it was hacked. The blog posted an update explaining what happened and after a couple of hours, everything was back to normal: it returned to tweeting serious court news. Apparently the annual “running of the trolls” worked too well this time around.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

The post No Twitter Users, SCOTUSblog is not the Supreme Court 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.

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.

Abortion Restrictions: Whole Woman’s Health v. Hellerstedt

The decision: In a 5-3 ruling, the Supreme Court struck down Texas’s restrictive regulations on abortion clinics. Justices Stephen Breyer and Anthony Kennedy joined Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan to provide the majority necessary to overturn Texas’s House Bill 2. The ruling concluded that the restrictions placed an undue burden on women seeking an abortion.

History of the law:

In 2013, Texas legislators passed HB2, which placed many restrictions on abortion clinics, such as:

• Requiring doctors who perform abortions to have admitting privileges at a hospital that is no more than 30 miles away.
• Requiring that an abortion facility meets the same minimum standards as ambulatory surgical centers.

HB2 has caused roughly half of the abortion clinics in Texas to close, leaving many women, especially in rural areas of the state, without reasonable access to an abortion.

Whole Woman’s Health, a private abortion provider, sued the state of Texas over these restrictions. The 5th U.S. Circuit Court of Appeals had previously upheld the law.

What were the arguments?

Texas legislators argued that these regulations were added to make women safer when getting an abortion. They also argued that these restrictions did not impose a burden on women seeking an abortion.

However, opponents of the legislation argued there is no evidence that these regulations will lead to increased safety without imposing serious consequences on women. In addition, opponents argued that an abortion is no more dangerous than many other medical procedures that are not subject to such strict regulations.

The American College of Obstetricians and Gynecologists, American Medical Association, American Academy of Family Physicians, and American Osteopathic Association all filed an amicus brief saying that HB2’s ambulatory surgical center requirement “imposes medically unnecessary demands on abortion facilities and serves no medical purpose.”

What about all of the other states’ regulations?

Several states around the country have laws similar to Texas’s (although some are currently blocked) and if they are deemed similar enough, they will most likely be thrown out or will suffer intense hurdles in order to become lasting laws.

However, lawmakers have found ways to increase restrictions on abortions even after other landmark abortion cases, so time will tell if this ruling will make a large impact nationwide.

Strong opinions on both sides

Justices Clarence Thomas and Samuel Alito offered dissenting opinions. However, unlike Thomas, who would’ve upheld the previous ruling, Alito and Chief Justice John Roberts would have sent it back to the lower courts for further discussion.

“The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution,” Thomas wrote in his scathing dissent.

On the other side, Breyer wrote in the majority opinion that the Texas restrictions “vastly increase the obstacles confronting women seeking abortions in Texas without providing any benefit to women’s health capable of withstanding any meaningful scrutiny.”

Ginsberg offered up a concurring opinion as well.

“Given those realities, it is beyond rational belief that H.B. 2 could genuinely protect the health of women, and certain that the law ‘would simply make it more difficult for them to obtain abortions,'” she wrote. “When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.”

You can read the full opinion here.

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 SCOTUS Strikes Down Texas Abortion Restrictions appeared first on Law Street.

Several major Supreme Court rulings came out on Thursday, including what amounts to a rejection of President Obama’s executive actions on immigration as well as an opinion upholding the affirmative action admissions program at the University of Texas at Austin. This post will be updated as more rulings come out, check back on Monday for the next wave of decisions.

Here is Law Street’s editorial team with what you need to know:

Update–June 26 rulings:

Corruption: McDonnell v. United States

The decision: The U.S. Supreme Court ruled unanimously to overturn corruption convictions of former Virginia Governor Bob McDonnell and his wife. However, there is still a possibility that they can be retried under the court’s new interpretation of the law.

Click here to read a full analysis of the ruling and what it means for the future of political bribery.

Abortion Restrictions: Whole Woman’s Health v. Hellerstedt

The decision: In a 5-3 ruling, the Supreme Court struck down Texas’s restrictive regulations on abortion clinics. Justices Stephen Breyer and Anthony Kennedy joined Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan to provide the majority necessary to overturn Texas’s House Bill 2. The ruling concluded that the restrictions placed an undue burden on women seeking an abortion.

Click here to read a full analysis of the ruling and what it might mean for similar abortion restrictions in other states.

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.

Click here to read a full analysis of the ruling and what it might mean for gun control.

Immigration: United States v. Texas

The decision: With the court in a 4-4 split, the decision of the Fifth Circuit is upheld, blocking president Obama’s executive action on immigration, namely DAPA and the expansion of DACA.

Click here to read a full analysis of the ruling and what it means for immigrants in the United States.

Affirmative Action: Fisher v. University of Texas at Austin

The decision: The Supreme Court ruled that the University of Texas at Austin can, legally, continue to factor race into admissions decisions.

Click here to read a full analysis of the ruling and what it means for the future of affirmative action.

The Fourth Amendment: Utah v. Strieff

The decision: In a 5-3 decision, the Supreme Court narrowed its interpretation of the Fourth Amendment and it protections against illegal searches, allowing evidence that may have been obtained illegally to be used in court.

Click here to read a full analysis of the opinion and how it may lead to more illegal searches in the future.

—

Check back here for additional coverage of new Supreme Court rulings. The final round of decisions is expected to be released on Monday, June 27.

Correction: a previous version of this article incorrectly stated the date when the next round of decisions are expected. It is Monday, June 27 not Monday, July 1.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

The post Everything You Need to Know About the Recent Supreme Court Rulings 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.

Corruption: McDonnell v. United States

The decision: The U.S. Supreme Court ruled unanimously to overturn corruption convictions of former Virginia Governor Bob McDonnell and his wife. However, there is still a possibility that they can be retried under the court’s new interpretation of the law.

What corruption charges?

In 2014, McDonnell and his wife were convicted on federal bribery charges. He received luxury gifts and financial benefits from Virginia businessman Jonnie Williams in exchange for what prosecutors deemed “government favors” or “official acts.” In total, the gifts and benefits that the McDonnells received were worth more than $175,000–including a Rolex watch, catering their daughter’s wedding, and a $20,000 shopping trip for Mrs. McDonnell.

“There is no doubt that this case is distasteful; it may be worse than that,” Chief Justice John Roberts wrote for the court. “But our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute.”

What does this mean for the future of political bribery?

This case was centered around the question of what constitutes an “official act” under federal law. McDonnell arranged meetings between Williams and state officials in the form of a luncheon thrown at the Governor’s Mansion with a guest list consisting of healthcare leaders. Williams is the chief executive of Star Scientific, a tobacco-based dietary supplement company, and he wanted state universities to perform research on his product.

McDonnell said he never made an official act in favor of Williams or his business, which left the justices searching for where to draw the line between a politician’s regular activities and ones that violate corruption laws. A bipartisan group of officials wrote an amicus brief for the case, arguing that if McDonnell’s convictions were upheld, it would criminalize routine favors that politicians do for donors.

To avoid confusion in the future, Chief Justice John Roberts created a clearer definition of an “official act:”

“In sum, an ‘official act’ is a decision or action on a ‘question, matter, cause, suit, proceeding or controversy,” Roberts wrote. “Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so)–without more–does not fit that definition of an official act.”

Read the full opinion here.

Inez Nicholson

Inez is an editorial intern at Law Street from Raleigh, NC. She will be a junior at North Carolina State University and is studying political science and communication media. When she’s not in the newsroom, you can find her in the weight room. Contact Inez at INicholson@LawStreetMedia.com.

The post Supreme Court Overturns Former Virginia Governor’s Corruption Conviction 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.

Affirmative Action: Fisher v. University of Texas at Austin

The decision: the Supreme Court ruled that the University of Texas at Austin can, legally, continue to factor race into admissions decisions.

This case has a lot of history

This isn’t exactly a new issue–or a new case. Affirmative action has been in and out of court for years and Abigail Fisher first brought this particular suit forward in 2012. It made its way up to the Supreme Court in 2013 only to be kicked back to lower courts.

It started back in 2008 when the University of Texas at Austin declined to admit Fisher into the school. Fisher then sued the university, claiming that UT denied her admission because she is Caucasian. Yes, you read that right. Fisher felt disadvantaged for being white.

How did that happen?

UT Austin, being the state’s flagship school, automatically accepts any applicant from a Texas public school who is in the top 10 percent of his or her graduating class. That batch of 90th percentile students makes up about 75 percent of UT’s incoming freshman class. For the last 25 percent, the university combines two scores to evaluate applicants.

Alongside SAT scores and high school grades, which make up an applicant’s Academic Index, students not automatically admitted are given a Personal Achievement Index (PAI). The PAI is UT’s way of giving people credit for non-academic factors like race, economic background, and life experience.

Check out this article: to read more about the case’s background.

So what does today’s ruling mean?

The 4-3 decision upholds the use of affirmative action, to an extent. Justice Anthony Kennedy wrote the majority opinion, in which he stated that admissions officers can’t run wild with affirmative action. He wrote:

“The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies”

You can put your fingers away, we did the math for you. Seven of the eight justices weighed in, while Justice Elena Kagan recused herself because she was involved as solicitor general.

You can read the opinion here.

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 Upholds UT Austin’s Affirmative Action Program 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.

Immigration: United States v. Texas

The decision: With the court in a 4-4 split, the decision of the Fifth Circuit is upheld, blocking president Obama’s executive action on immigration, namely DAPA and the expansion of DACA.

So what are DACA/DAPA?

DACA (Deferred Action for Childhood Arrivals) is an initiative launched in 2012 as an act of prosecutorial discretion by president Obama. The order allows undocumented immigrants who move to the United States before the age of 16 to seek temporary relief from deportation given they meet criteria for age, arrival time, criminal record, and schooling.

The expansion of DACA (or DACA+) was authorized by President Obama in 2014 that eliminates certain arrival timeline requirements, the age ceiling, and extends relief period from two years to three years.

DAPA (Deferred Action for Parents of Americans) is also an initiative launched in 2014 that would allow parents of U.S. citizens and permanent residents to seek temporary relief from deportation and apply for work permits.

These executive actions were intended to allow deportation officials to focus on illegal immigrants who engage in criminal behavior and thus threaten public safety, while allowing other immigrants who do not have legal status but have vested interests in the United States (for example, if they spent their childhood here or  have a child who is a citizen) to stay for a temporary period.

How did the lawsuit begin?

The lawsuit came to fruition when 26 states sued the federal government claiming that DAPA/DACA+ violated the Administrative Procedure Act by not allowing a notice-and-comment period during rulemaking.

When the states took the case to district court in February 2015, Judge Andrew S. Hanen issued a preliminary injunction, prohibiting further action on DAPA/DACA+ indefinitely. In November 2015, the Fifth Circuit Court of Appeals upheld the district court’s order to grant a preliminary injunction. The federal government filed a petition for certiorari later that month and the Supreme Court decided to take up the case in January. The Supreme Court also decided to consider whether DAPA/DACA+ violated the “Take Care Clause” of the Constitution.

Check out this article to read more about the case’s background.

What does today’s tie mean?

The deadlocked ruling in United States v. Texas affirms Fifth Circuit Court’s decision to block the president’s executive actions. Today’s ruling amounted to just one sentence: “The judgment is affirmed by an equally divided Court.” As a result, as many as five million undocumented immigrants will no longer be protected from deportation

Because the court did not actually decide on the case but rather affirmed the affirmation of an indefinite suspension of a program, the future of DAPA/DACA+ is obviously ambiguous. Immigration advocates find it unfair that the Court of Appeals for the Fifth Circuit would be able to determine immigration policy for the whole country. Some also speculate that another group of states will sue in favor of the actions, which could create a split between appellate courts while the Supreme Court remains deadlocked in a tie.

If the decision remains through the 2016 election, the future of DAPA/DACA+ and immigration policy will be decided by the next president or it may require a ninth Supreme Court justice to break the tie.

You can read the (very brief) opinion here.

Ashlee Smith

Ashlee Smith is a Law Street Intern from San Antonio, TX. She is a sophomore at American University, pursuing a Bachelor of Arts in Political Science and Journalism. Her passions include social policy, coffee, and watching West Wing. Contact Ashlee at ASmith@LawStreetMedia.com.

The post Supreme Court Split Blocks Obama’s Immigration Actions appeared first on Law Street.

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.

The case began when a narcotics detective in Salt Lake City, Utah stopped Edward Strieff after he exited a house that was being monitored for potential drug activity. The detective had seen multiple people making brief stops at the house, calling Strieff’s activities into suspicion. When the detective stopped Strieff, he asked him what he was doing and to provide some identification. He relayed Strieff’s information to a dispatch officer who found that Strieff had an outstanding arrest warrant for a traffic violation. Strieff was arrested for this violation and promptly searched upon arrest.

So, what’s the Fourth Amendment question? The search revealed that Strieff had methamphetamine and a pipe on him, which were later used as evidence against him. Strieff challenged the case to the District Court, arguing that the evidence should not be used because it was obtained from an illegal search. The District Court and the Court of Appeals both ruled against Strieff, but when he appealed once again to the Utah Supreme Court, the ruling turned in his favor. Finally, the Utah Attorney General appealed to the U.S. Supreme Court.

In his majority opinion, Justice Clarence Thomas argues that the evidence used to convict Strieff was legally gathered. Thomas writes that, although the original stop may not have been constitutional, the fact that the officer later obtained an arrest warrant meant that the evidence was collected legally. As Thomas puts it,

The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff.

Three justices–Sotomayor, Ginsburg, and Kagan–dissented from the majority opinion. In her dissent, Justice Sonya Sotomayor destroyed the opposing argument. She eloquently described exactly why police powers should not be so broad and how the court’s decision, and the unlawful stops that will likely follow, will have disastrous effects on the public. The end of her dissent is a chilling reminder of how far we have to go as a country when it comes to liberty and equality:

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives.

Several groups were also deeply disappointed with the case’s outcome and the effects it may have in the future. The ACLU tweeted its disapproval:

We are deeply disappointed. #SCOTUS got it wrong on the 4th Amendment in Streiff, with terrible repercussions, esp. for people of color.

— ACLU National (@ACLU) June 20, 2016

Regardless of the circumstances of this case, the decision gives unprecedented power to police under the Fourth Amendment. People may now be stopped on the streets without having committed a crime. Even worse, any incriminating evidence that results from an unlawful stop may be legally used against you in court. This decision has the power to lead to more and more unconstitutional searches by police.

In the words of Justice Sotomayor, people who are targeted by the police in the way that this decision will now expand, are a warning to us all. They point to injustice in our justice system and show us where we need to improve in order to ensure the liberty for all that is promised in our Constitution. She concluded her dissent saying,

“Until their voices matter too, our justice system will continue to be anything but.”

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 Utah v. Strieff: SCOTUS Narrows Fourth Amendment Protections 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.

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.

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A Georgia man on death row, Tyrone Foster, may get a second chance after the Supreme Court weighed in on the evidence of racial bias found in his jury trial. SCOTUS’s decision overturned the Georgia Supreme Court ruling, and will most likely lead to a new trial for Foster–29 years after he was first sentenced to death.

Foster, a black man charged with the rape and murder of an elderly white woman, Queen Madge White, was tried by an all-white jury. Moreover, there’s plenty of evidence to suggest that the prosecutors wanted it that way–they struck black jurors for reasons that appeared to be racially motivated. For example, in the notes that the prosecutors took during jury selection, they marked black potential jurors with a “b.” According to the LA Times, one black juror was excluded because the prosecutor said that “his son was convicted of ‘basically the same thing’ as the defendant, who was charged with rape and murder. In fact, the man’s son had been given a suspended sentence five years earlier for stealing hubcaps from a car.” Chief Justice John Roberts, who authored the decision, wrote that “the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”

A 1986 case, Batson v. Kentucky, made it clear that it’s up to judges to watch over prosecutors when it comes to jury selection, and probe their choices if anything seems amiss. But that process does rely on judges to actually follow through–and in Foster’s case, the judges accepted the prosecutors’ reasoning for why certain jurors were selected and others weren’t.

But Foster’s case is also somewhat rare, in that the defendant’s lawyers were actually able to prove that there was racial motivation in the jury selection. Stephen Bright of the Southern Center of Human Rights, who was Foster’s lead lawyer, pointed out:

This discrimination became apparent only because we obtained the prosecution’s notes which revealed their intent to discriminate. Usually that does not happen. The practice of discriminating in striking juries continues in courtrooms across the country. Usually courts ignore patterns of race discrimination and accept false reasons for the strikes.

Foster’s case will now be reevaluated–and while it’s not ensured he’ll receive a new trial, it certainly seems like the most likely possibility.

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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As the Supreme Court declined to hear the Authors Guild challenge of Googles Book’s digitizing program on Monday, a legal battle that lasted for over a decade comes to an end. The court’s denial to hear the case will leave in place an appeals court decision that upheld Google’s book scanning program as a fair use of copyrighted works. In its decision not to take up the case, the Supreme Court also avoided making a sweeping ruling on copyright law in the digital age.

“Today authors suffered a colossal loss,”Authors Guild President Roxana Robinson said in a press release after the Supreme Court’s decision. “We believed then and we believe now that authors should be compensated when their work is copied for commercial purposes,” Robinson said of the longstanding legal dispute. But advocates like the Electronic Frontier Foundation (EFF) have strongly supported Google’s project. The EFF concluded, “All in all, it’s a good day for fair use” after the circuit court ruled in favor of Google–the ruling that the Supreme Court’s decision now leaves in place.

Back in 2004, Google undertook an effort to digitize millions of books in order to create a database to help bolster the company’s dominance in the internet search market. Google also argued that it was providing a public service because it would help people discover existing pieces of writing. The project began as a collaboration with libraries to create searchable versions of works in the public domain, but it also expanded to include works currently under copyright.

At the heart of the issue is the question of whether or not Google’s project falls under the category of fair use, a legal doctrine that allows for copyrighted works to be used when serving certain public interests. The suit began back in 2005 when the Author’s Guild took issue with Google’s digitization project, arguing that the company would illegally take away authors’ profits. The case became a class action effort in 2012 after authors and copyright holders came together to challenge Google.

The Authors Guild’s primary issue with Google’s program is that the company did not seek out permission from the copyright holder before digitizing their work and making the contents searchable online. Although Google did not make the full text of copyrighted works available online, it did allow users to search for text within books as well as see a limited sample of the surrounding text. The Authors Guild also argues that allowing Google to digitize authors’ books without permission for its own profit is a clear violation of copyright law.

Google’s profit from the project was a major issue earlier on because the company initially displayed advertising in search results and on individual book’s pages. Although the two parties reached a sort of compromise to share ad revenue, Google eventually ended the program, noting that it wasn’t a major source of revenue. The two sides nearly settled the entire case back in 2011, but a New York district court judge rejected it, arguing that the arrangement would have given Google a de facto monopoly.

After rejecting the settlement deal, the New York district court ruled in favor of Google, saying that the way Google digitized and uses the books in its search engine constitutes a transformation in the context of fair use. In his opinion, which issued summary judgment to Google dismissing the Authors Guild complaint, Judge Denny Chin ruled in favor of Google, saying that its project

Advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders.

After the district court ruling, the Authors Guild appealed to the U.S. Court of Appeals for the Second Circuit, which also ruled in Google’s favor. Ultimately, the Guild appealed to the Supreme Court, but after its decision not to take up the case on Monday, Google Books will now remain intact.

The court’s decision also reflects a reluctance to issue a major ruling on fair use in the age of the internet. The authors involved in the lawsuit claim, “the internet was not anticipated” when modern copyright law was written back in the 1970s and that the court needed to settle the issue. In light of the recent decision, we’ll likely have to wait for another high-profile case to make its way to the Supreme Court before to get a better understanding of the relationship between copyright law and the internet.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

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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.

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The Supreme Court ruled this week that states can continue drawing election districts based on the idea of one person, one vote. The lawsuit, brought by a conservative activist group in Texas, sought to challenge the practice of drawing districts using total population numbers that include people who are ineligible to vote, notably illegal immigrants, but would also include children under the age of 18. While the court unanimously upheld the existing practice, it did not directly take up the question of whether states can change their redistricting processes to only include eligible voters.

Had the court ruled against the current practice, a massive shift in the way states draw their election districts would have ensued. The challenge would have had the most significant effect on areas with high immigrant populations like Texas, where the lawsuit originated. The appellants’ intended change would have shifted a lot of political influence from populated urban areas–which tend to have more ineligible voters like immigrants without citizenship, illegal immigrants, and children–to rural areas. That shift would also help Republicans at the expense of Democrats, whose voters tend to cluster in cities.

The challenge was brought by the Project for Fair Representation, an activist group that is also responsible for a pending challenge to the University of Texas at Austin’s use of affirmative action and recently mounted a successful legal battle against the Voting Rights Act of 1965. The group’s argument focuses largely on the idea of voter equality, claiming that counting ineligible voters when drawing districts inflates the importance of eligible voters in the district.

Texas, like all other states with some slight exceptions, uses total population numbers from the decennial census as the basis for its redistricting plans. The Constitution requires districts to have about the same number of people in them. The standard for Congressional districts is particularly strict, requiring each district to be equal in population “as nearly as is practicable.” If any Congressional district is smaller than the average district, also known as the ideal district size, then its size must be explicitly justified.

The rules are looser for state legislatures like the Texas Senate that the case targeted specifically. Court precedent requires state districts to be “substantially” equal. In practice, this means that if the size of a state’s largest district is within 10 percent of the size of the smallest district they are generally acceptable to the Constitution’s standards. There are some cases where district sizes deviate from that norm, notably to make exceptions for districts that meet minority representation requirements in accordance with the voting rights act.

Justice Ginsburg wrote the court’s opinion, joined by Chief Justice Roberts as well as Justices Kennedy, Breyer, Sotomayor, and Kagan. Justices Alito and Thomas wrote concurring opinions. In her opinion, Justice Ginsburg concludes,

Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries. Appellants have shown no reason for the Court to disturb this longstanding use of total population.

She also notes the fact that non-voters have legitimate interests in public policy as they often receive government services.

The opinion largely focuses on the fact that based on historical precedent, states should not be forced to change the ways in which they draw districts. However, in the opinion Ginsburg acknowledges that she is not ruling on whether a state could switch its redistricting process to a system that only looks at eligible voters–leaving that question open for a future legal challenge. While states will not be forced to change the way they draw districts, they could conceivably change to a system that only counts people who can vote.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

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The United States for the first time in history promised to cut its carbon dioxide emissions when it joined the Paris Agreement. In order to meet those targets, the Obama Administration created the Clean Power Plan to reduce emissions and move American states toward cleaner energy sources. However, the Clean Power Plan is currently being challenged in the Supreme Court and it’s unclear whether or not the U.S. government will be able to make its promises a reality. Read on to learn more about the past, present, and potential future of federal pollution regulation in the United States.

The Current Political Context

Currently, the United States has the second highest rate of carbon dioxide emissions in the world, surpassed only by China. The United States has also historically avoided participating in international climate negotiations and is one of  a small number of developed nations that chose not to ratify the Kyoto Convention. While both industrialized and developing countries around the world have joined onto the convention over the past two decades and made pledges to reduce their emissions, the United States has struggled to make national commitments to reduce its own emissions. This is, in part, because American fossil fuel companies have been able to exert a great deal of influence on political decisions through lobbying and because Congress is divided on whether or not climate change is even scientifically valid.

COP21, the 21st Conference of Parties for the U.N. Framework Convention on Climate Change, marked the first time that the United States made a national pledge to reduce its emissions. However, while the COP21 was hailed as an international victory, it remains unclear if America can actually follow through on its commitments. U.S. policymakers remain divided on the issue of climate change and many believe that the government’s attempts to regulate fossil fuel usage directly interfere with the economy. As of February, the Clean Power Plan, with which the EPA began strictly regulating CO2 emissions from power plants, has been stayed by the Supreme Court and risks being ruled unconstitutional. The United States may have made an international commitment to reduce emissions, but on a domestic level, is it ready for such a change to take place?

A Brief history of Climate Change Negotiations

The first United Nations Framework Convention on Climate Change, also known as the Kyoto Protocol, was held on December 11, 1997. The convention entered into force on February 16, 2005–90 days after it was ratified by 55 nations emitting at least 55 percent of the CO2 emissions in 1990. The protocol required industrialized countries to make pledges to reduce their emissions by 5 percent before 2012.

Developing nations weren’t required to make pledges in the first incarnation of the Kyoto Protocol, although many did pledge to use aid from the U.N. and World Bank to invest in renewable energy sources. This was decided by the principle of “common but differentiated responsibilities,” meaning that since industrialized countries did the most damage to the environment, they should bear the heaviest burden of fixing it. Likewise, since dramatically reducing emissions would handicap growth in developing nations, it’s viewed as unfair to expect them to make the same level of commitment.

The United States did sign onto the Kyoto Protocol but it did not ratify the convention, meaning essentially that it gave its public support but refused to individually reduce its emissions. Decisions not to make emissions pledges from some major nations such as the United States, Canada, and Russia–although Russia did eventually agree to ratify the convention in 2004–are often cited by smaller countries as justification to not participate as well.

“High-level ministerial roundtable under the Kyoto Protocol” courtesy of UNclimatechange via Flickr

In 2012, following the end of the Kyoto Protocol’s first commitment period, another conference was held to establish new international pledges. The second conference produced the Doha Amendment, which gathered binding emissions reduction commitments from much of the industrialized world, including the entirety of the European Union and 37 other developed countries. Many developing countries ratified the amendment and made their own commitments, but their participation was on a non-binding basis.

In December 2015, COP21 was held in Paris and attended by representatives from 188 different countries, making it one of the largest international conferences in history. Rather than set specific reduction targets, COP21 let each participating country decide its own emission reduction plan with the ultimate goal of keeping global warming from raising the earth’s temperature by more than 2 degrees Celsius. COP21 was successful in bringing together almost every country on earth to participate in the conference, including a wide range of developing countries and many of the world’s top polluters, such as China, India, Indonesia, and the United States. The United States pledged to reduce its emissions between 26 and 28 percent by 2025, focusing primarily on carbon dioxide but also on methane, nitrous oxide, perfluorocarbons, sulfur hexafluoride, and nitrogen trifluoride.

The Clean Air Act and the EPA’s Role in Emissions Regulations

While COP21 marks the first time that the United States made an international commitment to reduce its emissions, the U.S. government has exercised power internally to regulate emissions since Congress passed the Clean Air Act in 1973. The Clean Air Act gave the EPA the power to create National Ambient Air Quality Standards (NAAQS) for six hazardous air pollutants: nitrogen dioxide, particulate matter, ozone, sulfur dioxide, carbon monoxide, and lead. Each state was required to design a State Implementation Plan (SIP) to upgrade and regulate industrial air polluters in order to meet these NAAQS. The act was amended in 1977 and in 1990, both of which were made to redesign the NAAQS and extend the deadlines for states that failed to reach their goals. The 1990 amendment also set new standards for technology upgrades for large-scale, stationary polluters.

The Clean Air Act addressed both stationary and mobile sources of pollution: power plants were forced to upgrade their technology and install filters on smokestacks and the auto industry was forced to redesign its engines and cars to reduce effects of harmful chemicals released into the atmosphere as well as meet average miles-per-gallon efficiency standards. The act has made a significant impact on air quality in the United States, reducing smog by more than 25 percent since 1990, lead pollution by 92 percent, sulfur dioxide by 71 percent, nitrogen dioxide by 46 percent, and ending the production and distribution of many chemicals that adversely affect the ozone layer.

However, while the Clean Air Act has existed for 43 years, its use to regulate greenhouse gas (GHG) emissions is a recent development. In 2007, the Supreme Court ruled  in Massachusetts v. the EPA that if it could be scientifically proven that greenhouse gas emissions were dangerous to human health, then it would be the EPA’s responsibility to regulate them. Only two years later, in 2009, scientific evidence proved both that GHGs were harmful to the human respiratory system and that an increase in heat waves due to global warming could be dangerous, especially for the elderly and infirm.

“Smokestack” courtesy of Dean Hochman via Flickr

The Clean Power Plan Explained

The Supreme Court’s ruling in Massachusetts v. the EPA gave the EPA the power to use the Clean Air Act as a viable policy tool to combat climate change and paved the way for the creation of the Clean Power Plan. The United States’ greenhouse gas emissions can be broken down into five major categories: 31 percent comes from electricity generation (also referred to as the power sector), 27 percent from transportation, 21 percent from industry, 12 percent from commercial and residential sources, and 9 percent from agriculture.

If the United States is to successfully reduce emissions by its target of 26 to 28 percent, a substantial amount of those reductions will have to come from the power sector, which contributes the largest share of greenhouse gasses and is also likely where the government can exert the most regulatory control. This has been the guiding logic behind the creation of the Obama Administration’s 2015 Clean Power Plan.

The Clean Power Plan mandates that power plants across the United States reduce their carbon dioxide emissions by 26 percent below 2005 levels by 2020 and 32 percent by 2030. The plan works differently on a state-by-state basis according to the energy mix used in each state, how efficient and environmentally friendly the current power plants are, and how effective a variety of traditional emission reduction tools can be in the context of the first two factors. The different emissions reductions targets vary widely because of these variables. For example, Montana is required to reduce its emissions by 47 percent while a few states aren’t required to make any changes because they don’t have power plants that the plan applies to. The EPA’s job is only to set these reduction targets; each state is allowed to design its own plan to meet its target. The only condition is that the plans must be submitted by September 1, or the EPA will impose a federal plan on states that failed to create their own.

Each state may choose to pursue the emissions reductions either through rate-based methods, which focus on reducing the amount of carbon emitted per unit of energy; or through mass-based methods, which focus on reducing the overall number of tons of carbon emitted. Regardless of their method of choice, the EPA offers four basic building blocks to aid the construction of each state’s plans: making existing coal plants more efficient; using existing gas plants more efficiently; increasing renewables and nuclear and increasing end-use energy efficiency. These four principles are not binding constraints but rather general guidelines; each state is expected to create a unique plan.

Legal Challenges

Since the release of the Clean Power Plan, 29 states have attempted to sue the EPA but the majority of these cases were quickly dismissed. But in January, one case, West Virginia v. the EPA, may be on its way to the Supreme Court. While the D.C. circuit court initially plans to review the case in June, on February 9 the Supreme Court voted 5-4 to issue a stay to stop the Clean Power Plan’s implementation prior to undergoing judicial review. That stay stops the EPA’s regulations until after a court ruling has determined whether they are within the agency’s authority. A ruling against the EPA could effectively cripple the plan’s intended purpose of combating climate change.

Image courtesy of Phil Richards via Flickr

However, on February 24, less than two weeks after the Supreme Court issued the stay, Justice Antonin Scalia passed away. Justice Scalia led the decision to overturn the Clean Power Plan and his death significantly complicates the plan’s legal future. The Supreme Court now seems to be divided 4 to 4 on the issue, but there has been no mention of changing the decision to stay the case. The issue is also further complicated by the GOP’s refusal to hold hearings on the President Obama’s Supreme Court nominee.

The looming question now is whether or not the Supreme Court will wait to hear the case until after the 2016 Presidential election and/or the confirmation of a ninth justice. The D.C. Circuit Court is currently scheduled to hear the states’ lawsuit this upcoming summer after which point the Supreme Court will decide whether or not it wants to take up the case. If the court refuses to take up the case or issues a 4-4 split ruling, then the circuit court’s decision will stand. However, legal experts note that the court could delay the case until a new justice joins the bench, which would likely lead to a 5-4 decision based on the ideological leaning of the ninth justice.

So What will Happen in the Meantime?

The Clean Power Plan is critical to the United States’ ability to fulfill its COP21 commitments. However, the fact that the plan is currently pending a court ruling does not mean that it failed. Last year, the Clean Power Plan already exerted considerable influence on the American energy systems as states have begun to redesign their energy systems for the future and many power plant operators have already begun retrofitting their plants and designing compliance plans. The primary focus of the Clean Power Plan is to dramatically reduce the use of coal in American energy and that may very well be happening. The implementation of the plan also coincides with a time when we have new access to domestic reserves of natural gas and energy investors have already started to move away from coal toward less expensive forms of energy.

Coal stocks plummeted in 2015 and many plants across America declared bankruptcy. However, this isn’t to say that the Supreme Court decision isn’t important. If the Clean Power Plan is overturned, then a new series of political barriers to regulating emissions may be created.  The decision also sets a dangerous legal precedent, marking the first time the Supreme Court has stayed federal regulations before hearing the case. The EPA’s legal authority to address airborne pollution is the major weapon that gives the United States a real chance to reduce its emissions. If that power is called into question then that may dramatically impede the EPA’s ability to make progress on climate change.

Conclusion

The Clean Power Plan’s emphasis on increasing renewable energy in America is a large part of what makes it an effective weapon against climate change. Coal may still die out on its own, but without the plan in place, it seems likely that energy investors will shift to the more cost efficient natural gas rather than renewable energy. Natural gas releases less CO2 than coal but is still very much a greenhouse gas and a national dependence on methane as an energy source would still result in high levels of GHG emissions.

As long as the Clean Power Plan is in legal limbo it’s difficult to predict what direction American energy will take. Currently, it seems likely that there won’t be a final hearing on the case until after the 2016 election is decided and a new justice is confirmed by the Senate. Whether that new justice ends up being liberal or conservative will most likely make or break the plan and will strongly influence the United States’ ability to meet its Cop21 goals. The next president will also have control over executive branch policy, meaning that he or she could peel back a significant portion of existing regulation or continue President Obama’s efforts and reduce greenhouse gas emissions further.

Resources

The Atlantic: A Legal Win for the E.P.A.

The Atlantic: Will a Reconfigured Supreme Court help Obama’s Clean Power Plan Survive?

The Atlantic: Did the Supreme Court Doom the Paris Climate Change Deal?

The Atlantic: The Supreme Court’s Devastating Decision on Climate Change

CNN: Kyoto Protocol Fast Facts

CNN: Obama: Climate Agreement ‘Best Chance we have to Save the Environment‘

Earth Institute, Columbia University: What is the U.S. Commitment in Paris? 

Environment and Energy Publishing, LLC: Clean Power Plan: A Summary

The EPA.: The Clean Air Act Requirements and History

The EPA: The Clean Power Plan for Existing Power Plants

The EPA: Summary of the Clean Air Act

The Guardian: The Kyoto Protocol is Not Quite Dead

The Hill: Supreme Court Overturns Landmark EPA Air Pollution Law

Inside Climate News: For U.S. and China, World’s Biggest Climate Polluters, It’s Still Business as Usual

Moyers & Company: Here are the 56% of Republicans who Deny Climate Change

NRDC: NRDC Summary of EPA’s Clean Power Plan

United Nations Conference on Climate Change: 188 Countries have Committed to Reducing their Carbon Emissions

United Nations Framework on Climate Change Convention: Status of Ratification of the Kyoto Protocol

Union of Concerned Scientists: The Clean Air Act

Kyle Downey

Kyle Downey is an Environmental Issues Specialist for Law Street Media. He graduated from Skidmore College with a Bachelor’s degree in Environmental Studies. His main passions are environmentalism and social justice. Contact Kyle at Staff@LawStreetMedia.com.

The post Will the United States be Able to Keep its Paris Agreement Commitments? appeared first on Law Street.

The George Mason University School of Law, located just outside of Washington, DC, in Arlington, Virginia, is getting a new name. After a series of donations totaling $30 million, the school will be renamed after the late, great Supreme Court Justice Antonin Scalia. The new full name of the school will be the Antonin Scalia School of Law at George Mason University.

The $30 million total in donations was the largest fundraising haul in the school’s history. An anonymous donor gave a staggering $20 million, and the Charles Koch Foundation donated $10 million. The Board of Visitors approved renaming the law school to honor Antonin Scalia’s recent passing–the $20 million donation was contingent on that name change.  By July, the name change will be complete, including signs and logos.

The money will go to funding three new scholarships at the law school. According to Bloomberg:

One, called the Antonin Scalia Scholarship, will award students with top academic credentials. Another, the A. Linwood Holton, Jr. Leadership Scholarship, will award students who have overcome barriers to academic success, demonstrated outstanding leadership qualities, or who have helped others overcome discrimination in any facet of life. The third, the F.A. Hayek Law, Legislation and Liberty Scholarship, will award students who have demonstrated interest in studying the application of economic principles to the law.

George Mason’s Law School does have a conservative lean, rendering the new Scalia name particularly appropriate–many of its professors are known for being libertarian.

Scalia’s colleague, Supreme Court Justice Ruth Bader Ginsburg lent her support for the renaming, stating:

Justice Scalia was a law teacher, public servant, legal commentator, and jurist nonpareil. As a colleague who held him in highest esteem and great affection, I miss his bright company and the stimulus he provided, his opinions ever challenging me to meet his best efforts with my own. It is a tribute altogether fitting that George Mason University’s law school will bear his name. May the funds for scholarships, faculty growth, and curricular development aid the Antonin Scalia School of Law to achieve the excellence characteristic of Justice Scalia, grand master in life and law.

If George Mason Law is looking to climb up in various law school rankings and attract more students–offering these scholarships is certainly a solid start.

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 George Mason University School of Law to Be Renamed After Justice Antonin Scalia 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.

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.

The post Supreme Court Justice Antonin Scalia Found Dead appeared first on Law Street.

The use of drug dogs is a relatively normal practice in American policing, and they’re often used to conduct searches, and catch people who have drugs (or sometimes other contraband) in their possession. But, new evidence has shown that the dogs may not be as reliable as once believed–they are often susceptible to the biases of their handlers.

The issue with drug dogs is not that they can’t sniff out drugs–they can. But dogs are assigned to handlers within their units, who they aim to please. Studies that test the accuracy of drug dogs have discovered that dogs will sometimes take cues from their handlers–tests that aim to “fool” handlers are more successful than tests that aim to “fool” the dogs. Dan Hinkel and Joe Mahr, of the Chicago Tribune, pointed out that there are certain things that handlers do that make dogs more likely to alert for drugs where there are none, such as leading a dog too many times around a car suspected of containing drugs.

Studies indicate that this can lead to issues with racial bias–according to the Chicago Tribune:

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 How Reliable are Drug Dogs? appeared first on Law Street.

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.

The post SCOTUS Undoes “Life Without Parole” Sentences For Juveniles 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

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In an 8-1 decision, the Supreme Court ruled that part of the process used to confer death sentences in the State of Florida violates the Sixth Amendment on Tuesday. The ruling focuses on the state’s use of a judge, rather than a jury, to make the final determination of a death sentence and does not weigh in on the constitutionality of death sentences in general.

“The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough,” wrote Justice Sotomayor in her majority opinion. The case, Hurst v. Florida, involves Timothy Lee Hurst’s conviction for the murder of his co-worker Cynthia Harrison in 1998. The state of Florida has a unique sentencing procedure for death penalty cases, which Sotomayor argues is in violation of the Sixth Amendment.

In Florida, the maximum sentence for someone convicted of just a capital felony is life in prison. But, a death sentence may be given to a capital felon only after an additional sentencing proceeding. This process, which the Supreme Court refers to as “hybrid” sentencing, puts the final decision in the hands of the judge after a jury gives an “advisory verdict.” Although the jury provides the verdict, it does not give the factual basis for its sentencing recommendation, instead, the judge is tasked with providing the legal justification for a death sentence. Justice Sotomayor argues that under the Sixth Amendment, which guarantees the “right to a speedy and public trial, by an impartial jury,” the Florida system is unconstitutional.

Much of the reasoning in the Hurst v. Florida case comes from the court’s ruling in Ring v. Arizona back in 2002. The previous Arizona sentencing system is very similar to the structure that the court stuck down in Florida, making Sotomayor’s opinion a pretty straightforward interpretation of court precedent. The Arizona sentencing process ultimately put the burden on a judge to determine whether the presence of aggravating factors justify the death penalty. The court ruled that doing so violated the Sixth Amendment and largely applied the same justification to the ruling in Hurst v. Florida.

So what does this mean going forward? In light of the ruling, two primary questions remain. First, what does this mean for all of the inmates currently on death row? And second, what changes will the state need to make to issue death sentences in the future? As Think Progress points out, the Ring V. Arizona decision did not retroactively affect prisoners who received death sentences prior to the Ring ruling. In a subsequent decision, Schriro v. Summerlin, the Supreme Court ruled that the precedent set by Ring does not apply retroactively to other Arizona inmates because it amounted to a procedural change in the law, not a substantive one. Based on that precedent, the court’s recent ruling in Hurst will likely not affect previous cases.

However, there is some evidence to suggest that the ruling may, in fact, be retroactive. As NPR notes, retroactivity is also a matter of state law and the Florida Supreme Court uses a more generous application of retroactivity than most states. It is important to note that Florida has the second highest number of inmates currently on death row, making the question of retroactivity particularly important for the state.

In the wake of the ruling, Florida Attorney General Pam Bondi issued the following statement:

In light of today’s United States Supreme Court decision holding Florida’s capital sentencing procedure unconstitutional, the state will need to make changes to its death-sentencing statutes. I will work with state lawmakers this legislative session to ensure that those changes comply with the Court’s latest decision. The impact of the Court’s ruling on existing death sentences will need to be evaluated on a case-by-case basis.

Based on Bondi’s statement, there is some possibility that the ruling could apply retroactively, but it seems clear that Florida will need to amend or pass a new law in order to issue future death sentences.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

The post Supreme Court Deems Florida Death Penalty Sentencing Unconstitutional appeared first on Law Street.

After a two year investigation into complaints of civil rights and health violations, the Equal Employment Opportunity Commission (EEOC) announced a $4 million settlement for former employees at the Sara Lee factory located in Paris, Texas. This case marks the largest settlement in EEOC history involving a hostile work environment. The EEOC took on the case after twenty-five workers filed complaints against the company during their time at the now-shuttered factory, which closed in 2011. Attorneys now estimate that over seventy employees stand to benefit from the settlement. In addition to financial reparations, the company will be required to implement measures to prevent workplace discrimination and to submit regular reports to the EEOC. Read on for a look inside the landmark case.

The Allegations Against Sara Lee

The EEOC’s two year investigation found that black employees were targets of intimidation and were denied promotions that went to their white peers. Black employees reported racial slurs and graffiti during their time at the factory, incidents which were corroborated by the EEOC. A lawsuit filed separately from the EEOC complaint revealed that the graffiti included racial slurs, threats, and crude drawings of apes and black men with nooses. A large portion of the alleged abuse came from white supervisors within the factory and several Sara Lee officials have been accused of ignoring complaints from black employees about the conditions within the factory. In addition, workers were reportedly exposed to black mold asbestos and other toxins during their daily work. The working conditions were so hazardous that:

One of the cake lines was nicknamed the ‘cancer line,’ because so many people were getting sick, said Sara Kane, one of the workers’ attorneys, of the law office Valli, Kane & Vagnini.

According to the investigation, black employees were exposed to these conditions while their white colleagues were promoted to positions located in safer areas of the factory. These white employees were allegedly often less-experienced than their black co-workers but they received promotions nevertheless.

According to the EEOC’s report, several black employees contracted cancer and other diseases as a direct result of their exposure to toxins in the workplace. When black employees reported their diseases to management, their complaints were either ignored or dismissed as being unrelated to working conditions within the factory. The closure of the factory in 2011 meant that the EEOC had relatively limited exposure to the physical conditions of the factory, so the investigation did rely heavily on interviews with employees.

 The Role of the EEOC

The EEOC enforces federal laws against discrimination in most companies with 15 employees or more (although this can vary according to certain jurisdictions and circumstances). The EEOC processes both private sector and federal sector violations of discrimination laws, although it takes a more active investigative role in private sector cases. There are two distinct private sector and a federal sector mediation programs, which each offer dispute resolution with EEOC cooperation. If conciliation cannot resolve a private sector dispute, the EEOC has the right to pursue litigation and also has a right to participate in an ongoing lawsuit. According to the EEOC website,

The EEOC has the authority to investigate charges of discrimination against employers who are covered by the law. Our role in an investigation is to fairly and accurately assess the allegations in the charge and then make a finding. If we find that discrimination has occurred, we will try to settle the charge. If we aren’t successful, we have the authority to file a lawsuit to protect the rights of individuals and the interests of the public. We do not, however, file lawsuits in all cases where we find discrimination.

The EEOC may handle tens of thousands of complaints every year, but they very rarely escalate to the heights that the Sara Lee case has, which makes the future of Sara Lee critically important. If Sara Lee complies with the EEOC regulations and actively changes its workplace environment in the coming years, it will serve as a model for other companies that have had large-scale reports of discrimination. The successful transformation of the Sara Lee case will lie with its parent company–Tyson Foods.

A New Name and a New Brand

In 2012, so chronologically after the alleged abuse occurred, Sara Lee went through a major re-branding, effectively splitting the business in two. The food side of the business was labeled Hillshire Brands while the tea and coffee end of the company (centered in Europe) was named D.E. Master Blenders 1753. The name change was speculated to have been prompted by lackluster sales of meat products.

In 2014, Hillshire Brands completed a merger with Tyson Foods, Inc. which The Wall Street Journal referred to as the “meat industry’s biggest deal.” After the merger, Hillshire’s chief executive Sean Connolly stepped down, clearing the way for new leadership. However, the Sara Lee discrimination case did not disappear with the name change. Although headlines associate the case with Sara Lee, Tyson is now liable for the settlement and for rebuilding the brand’s image in the wake of the EEOC investigation. In an interview with Buzzfeed News, Tyson Foods spokesperson Worth Sparkman said the company is

‘Committed to treating our team members with dignity and respect and have a policy against harassment and discrimination,’ noting Tyson Foods requires annual training and offers a toll-free help line for workers to report any concerns without fear of retaliation. ‘While we don’t agree with all of the allegations in this case, we oppose any unlawful discrimination in the workplace and believe it makes sense to resolve this matter,’ Sparkman wrote in an email. When asked which allegations the company disagrees with Sparkman said, via email, ‘We’ll point out that any alleged conduct in this case occurred before portions of Sara Lee were acquired by Tyson Foods in 2014.’

The Tyson brand has also had a series of legal skirmishes over working conditions over the past few years. This November, the Supreme Court heard a case against Tyson in which employees argued that Tyson unlawfully failed to pay for the time it took them to put on and then remove safety equipment during their daily tasks. In a lower court, employees were awarded half of what their counsel requested. The case has raised interesting questions about collective action lawsuits, as the case involves more than 3,000 workers in total: Should that many employees be allowed to file their complaint at one time, in a single case?

The Supreme Court has approached the case less as an issue of wage violations and more as a debate over what the threshold should be for the number of participants in a collective action lawsuit. Yet, if the Supreme Court rules in favor of the employees, Tyson may pay out even more than they it in the Sara Lee case–approximately $6 million.

Conclusion

The Sara Lee case is a unique one in that a significant number of workers were courageous enough to file complaints and patient enough to wait for the legislative process to work over several years. Not every discrimination case is investigated by the EEOC, either because there is not sufficient evidence or because victims do not feel safe reporting misconduct. Hopefully, the Sara Lee case will inspire other companies to enact preventative measures to disband discrimination. The EEOC has delivered a decisive victory for the employees of the Texas factory, and we’ll have to see what effects it might have in future discrimination cases.

Resources

CBS Dallas Forth Worth: $4M Settlement Awarded In Sara Lee Discrimination Case

The Chicago Tribune: Sara Lee Discriminated Against Black Employees, Attorneys Say

Dallas Business Journal: EEOC Wins Record Settlement for Former Texas-based Sara Lee Factory Workers

Buzzfeed: Sara Lee Will Pay $4 Million To Settle Racial Discrimination Suit

Business Insider: Turning Sara Lee Into Hillshire Brands Is A Perfect Example Of How Not To Name A Company

The Wall Street Journal: Tyson Completes Acquisition of Hillshire

EEOC: Overview

JD Supra: United States Supreme Court Hears Argument in Tyson Foods’ FLSA Collective Action

The New York Times: Supreme Court Hears Case for Tyson Foods Class-Action Lawsuit

Jillian Sequeira

Jillian Sequeira was a member of the College of William and Mary Class of 2016, with a double major in Government and Italian. When she’s not blogging, she’s photographing graffiti around the world and worshiping at the altar of Elon Musk and all things Tesla. Contact Jillian at Staff@LawStreetMedia.com

The post The EEOC and Sara Lee: A Landmark Discrimination Case in Texas 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.

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. Read on to learn more about the development of drunk driving as a crime and what the new cases hold for the future.

History of Regulating Alcohol Consumption

Despite its widely accepted consumption, alcohol is still a drug and one that not only endangers the drinker, but in some cases the lives of others. The federal government and state governments have long been involved with the regulation of alcohol. Mothers Against Drunk Drivers, or MADD, incorporated in September 1980, has been a forefront lobbyist in terms of pressuring the government for stricter and more consequential laws for drunk drivers. Following MADD’s influence, the federal government signed into law the Federal Uniform Drinking Age Act of 1984, which established a uniform drinking age of 21 in the United States and governed state implementation of the Act through apportionment of funding for highway construction, repair, and maintenance. While states have flexibility and control over alcohol policy development and enforcement, the federal government maintains regulation over whether alcohol is sold in the state, whether it can be imported into the state, its distribution, and its possession.

Furthermore, states control the laws pertaining to drunk drivers and the potential consequences and punishment suffered by those charged with drinking and driving. In a breaking development on Friday, December 11, the Supreme Court agreed to review three cases all dealing with the same ultimate issue–“whether a blood or breath test for drunk driving can be made without a search warrant and whether, if there is no warrant, an individual can be charged with a crime for refusing to take such a test.” The upcoming Supreme Court decision will have a nationwide effect regarding drunk driving roadside manner as 13 states make it a crime to refuse to take a drunk driving test. The three cases chosen for review were picked out of 13 submitted because they involved 3 different scenarios regarding drunk testing and hail from both North Dakota and Minnesota.

The Important Legalities of Drunk Driving

While the evolution of drunk driving policy and law-making has a rich history on both a state and federal level, we will focus on post-2000 development. One of the most noteworthy nationwide implementations was finalized in 2004 with the adoption, by all 50 states, of the .08 blood alcohol concentration (BAC) standard and implementation of the per se laws. Such laws establish that if an individual is tested and their BAC is .08 or over, no additional evidence of intoxication is required–that individual is considered intoxicated by law.

Image courtesy of [Ashleigh Jackson/KOMUnews via Flickr]

However, in 2013, the Supreme Court reviewed Missouri v. McNeely which found that in a routine drunk driving investigation where no additional factors existed which created a special circumstance, exception, or emergency situation, save for the natural dissipation of alcohol within one’s body, a non-consensual and warrantless forced blood test violated the Fourth Amendment right to be free from unreasonable searches of one’s person. The facts of McNeely were straightforward–Tyler McNeely was stopped shortly after 2AM, had admitted to having a few beers, failed a field sobriety test, smelled of alcohol, declined to take a breathalyzer test, and was placed under arrest. The officer did not secure a search warrant prior to taking McNeely to the local hospital where he asked for signed consent for a blood test, which McNeely denied. A lab technician, under the direction of the officer, was told to collect a blood sample from McNeely despite not obtaining consent to do so. McNeely’s BAC was 0.154, almost double the legal limit, and he was subsequently charged with driving while intoxicated.

The Court in McNeely recognized that Fourth Amendment precedent allows for warrantless searches of a person only if the search falls within a recognized exception. A number of exceptions give rise to an exigent circumstance including an emergent need to provide assistance to someone in a home, chasing and pursuing a fleeing suspect, to enter a burning building or investigate a fire, or to prevent the destruction of evidence, among other factors. While the time restraint on testing a blood alcohol level could present an exigent circumstance not only because of the natural dissipation of alcohol, but also for the time required to obtain a warrant, the Court had to analyze the full picture regarding McNeely’s specific situation. They ultimately decided that the State’s argument–that the natural dissipation of alcohol from a driver’s body is considered an exigent circumstance in every case–was unsupported and unfounded on a Fourth Amendment basis. Essentially, the fact that the test may not be accurate hours later after the alcohol wore off was not a good enough reason to perform a warrantless test.

The Statistics of Drunk Driving 

Despite the legal disputes around drunk driving policies, statistics have come to show a significant decline in the number of drunk driving deaths from 1982 to 2014. The rate of drunk driving is highest among individuals between the ages of 21-25 with drunk driving costs reaching an upward of $199 billion a year. Furthermore, over 1.2 million people were arrested in 2011 for driving drunk and approximately one-third of those arrested or convicted of drunk driving were repeat offenders. Needless to say, there is work to be done to further drop those statistical reports.

The Supreme Court’s Upcoming Drunk Driving Review

Despite the ruling in Missouri v. McNeely, the Supreme Court is tackling the warrantless blood or breathalyzer test again in addition to assessing the constitutionality of criminalizing the refusal of a driver to submit or consent to a test. Of the three cases taken up for review, two come from North Dakota where it is a crime to refuse a blood, breath, or urine test, one punishable to the same extent as a conviction for drunk driving.  The lead appeal comes from Danny Birchfield, who in 2013, drove his car off the road, failed a breathalyzer test, and subsequently refused to take a blood test. Birchfield pled guilty to a misdemeanor charge, but reserved his right to appeal.

The third case operates under Minnesota law, which makes it a crime to refuse an officer’s request to take a blood test, if a valid arrest has been made for drunk driving. William Bernard Jr. was arrested and charged with two felony counts of refusing to submit to a sobriety field test, blood, or breath test. Witnesses reported Mr. Bernard after his truck was struck trying to pull a boat out of the water. Police requested he submit to a test because he smelled strongly of alcohol and was driving the truck–he denied the test and was arrested under Minnesota’s “implied consent law,” agreed to when a driver obtains his or her drivers license and criminalizes a refusal to take a test. Ultimately, Bernard was convicted–a conviction that is in conflict with Missouri v. McNeely because it allowed for warrantless drunk testing and an arrest without the presence of additional factors or emergent circumstances.

Image Courtesy Of [grendelkhan via Flickr]

Conclusion

The Supreme Court review of the upcoming cases is expected to clarify the issues that McNeely did not, such a bright line rule pertaining to warrantless demands for drunk testing and exigent circumstances, as well as addressing the criminalization of refusal through implied consent laws. Although the Supreme Court may be wary of completely controlling process and punishment of drunk driving, a long-term power of the states, it will have to develop a more clear requirement since the number of cases challenging drunk driving test procedures under Fourth Amendment claims continues to grow, particularly in the 13 states with implied consent laws. Many state rulings allowing for warrantless testing are in direct conflict with McNeely–it is therefore imperative, for continuity and consistency, that the Court create a bright line rule for drunk driving test procedures. Whether it will or not in the upcoming case review is to be determined.

Resources

Primary

98th Congress: Federal Uniform Drinking Age Act of 1984

FindLaw: Per Se DUI Laws

Justia: Missouri v. McNeely

Additional

SCOTUSblog: Court to Rule on Drunk-Driving Tests

National Institute on Alcohol Abuse and Alcoholism: Alcohol Policy

Foundation for Advancing Alcohol Responsibility: .08 BAC Legal Limit

Mothers Against Drunk Drivers

 Mothers Against Drunk Drivers: Drunk Driving Deaths 1982-2014

Mothers Against Drunk Drivers: Drunk Driving Statistics

 Bring Me the News: No Warrant Needed: Ruling OKs Arrest if You Refuse Drunk Driving Test

The Chicago Tribune: Supreme Court to Review Blood-Test Requirement for DWI Cases

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 Drunk Driving on Trial at the Supreme Court appeared first on Law Street.

As racial tensions become more visible in the United States, particularly at American universities, the Supreme Court finds itself hearing oral arguments on a major affirmative action case. While legal underpinning for affirmative action has been weakening in recent court decisions, the plaintiffs in this lawsuit seek to end the practice altogether.

The lawsuit, Fisher v. University of Texas, was brought by Abigail Fisher after she was denied acceptance to the University of Texas’ flagship school at Austin. Fisher alleges that while she was not accepted other, less-qualified students were admitted to the school because of their race. UT-Austin has a relatively unique admissions process because the school automatically accepts all students from Texas in the top 10 percent of their high school class. In practice, the actual percentage has been slightly lower since a law modified the rule in 2009, which said that UT-Austin must be able to fill 75 percent of the available residences with students from the top of their high school class. Importantly, though, Fisher was not granted automatic admission and was then forced to be considered using the university’s holistic evaluation process, in which race is considered alongside a wide range of factors.

Interestingly, the university’s 10 percent policy has actually helped increase diversity at UT-Austin. The policy leverages the fact that Texas high schools are often racially homogenous in order to promote diversity. Because many of the state’s high schools are primarily black or primarily white, the top 10 percent admissions policy ends up increasing the number of minority students accepted to the school.

What’s particularly interesting about this case is that there is little evidence to suggest Fisher would have been accepted even if race wasn’t a factor. Instead, the case is more accurately a challenge to the use of race in admissions itself and not a challenge of the school’s particular decision in Fisher’s case. Pro Publica’s candid analysis of the case states the subject of the case pretty clearly: it’s about the conservative view that the Constitution is colorblind and no one should be treated differently based on their race. On the other hand, proponents of affirmative action argue that it is necessary to combat the legacy of racism and inequality in the United States, and by many measures those resulting racial disparities still exist today.

That underlying debate is at the heart of the discussion around the case, and it becomes particularly clear you look at the facts. When Fisher applied to UT-Austin in 2008, the 10 percent rule accounted for about 92 percent of all incoming students from Texas. Although she had good grades Fisher did not meet that qualification. Instead, she was evaluated using the university’s holistic review process  using both an academic index (AI), which is based on test scores and grades, and a personal achievement index (PAI), which is based on two essays, the applicant’s life experiences, and, importantly, “special circumstances” that can range from economic background to race.

Based on the applicant pool, available evidence suggests that her rejection was not a result of her race. This fact is put clearly in the case’s court documents, in which UT-Austin notes,

Because petitioner [Fisher] was not in the top 10 percent of her high school class, her application was considered pursuant to the holistic review process described above… The summary judgment record is uncontradicted that—due to the stiff competition in 2008 and petitioner’s relatively low AI score—petitioner would not have been admitted to the Fall 2008 freshman class even if she had received ‘a “perfect” PAI score of 6.’

Put simply, regardless of Fisher’s score on the personal achievement index, her grades and test scores were too low to grant her admission–meaning that race had nothing to do with the school’s decision as the PAI wasn’t a factor. Fisher was also denied admission to the school’s summer program, but the evidence suggests that the same thing happened. For the summer program, there were better qualified black and white students who did not earn acceptance.

Rather than seeking to correct Fisher’s admissions decision, this case is, transparently, about eliminating affirmative action from the college admissions process. The group funding the lawsuit, the Project on Fair Representation, seeks to “support litigation that challenges racial and ethnic classifications and preferences in state and federal courts.” This ranges from ending affirmative action in admissions and employment to eliminating voting protections for minorities. And so far, the group has had some notable success achieving that goal. In fact, it was the force behind the Shelby County court case that invalidated a major part of the civil rights act a couple years ago.

In the last landmark ruling on affirmative action, Justice Sandra Day O’Connor wrote the majority opinion that allowed schools to use race as a factor for admissions in order to achieve diversity but gave a sort of expiration date on the practice. According to the decision, affirmative action could be used if it was narrowly tailored to promote greater diversity among the student body. In the opinion, she said, “the court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” That was 2003, but 12 years later a renewed push to end affirmative action may move that deadline up considerably.

The Supreme Court is now tasked with determining whether affirmative action remains acceptable or if it should be further restricted and possibly eliminated altogether. Notably, Justice Elena Kagan recused herself from the case because the Justice Department filed a brief on it during her time as Solicitor General. There is a possibility that the Justices split the decision 4-4, in which case the lower court’s ruling in support of the admissions program will hold.

It’s pretty clear that the Justices are not eager to hand down a landmark decision on affirmative action. In fact, they have already heard this case once before but remanded it back to the lower court to evaluate UT-Austin’s use of affirmative action with stricter scrutiny. In oral arguments earlier this week, some of the Justices wanted to stall even further, questioning whether sending it back for a trial could be beneficial. Now that race is at the forefront of political discussion, the court is in a particularly tricky position. The fate of affirmative action programs now hangs in the balance.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

The post Affirmative Action Makes its Way Back to the Supreme Court appeared first on Law Street.

Women have, for centuries, been fighting a battle to obtain equal rights and autonomy within the patriarchal society in which we live. From voting rights, equal pay, gender equality, and financial independence to stigmatized domestic violence ideologies and highly controversial contraceptive and reproductive rights, women continue to strive toward a gender equilibrium.

While their history is bountiful, reproductive rights–specifically those focused on abortion–have morphed from a religious, hot-button voting issue and politically polarizing topic of interest into a women’s rights and equality war zone, which has mixed reviews even from within. For years, various states have been testing the limitations of abortion laws by trying to implement restrictions to access, mandatory and burdensome requirements, and regulations upon women and healthcare providers. Most have not passed muster, however, in early November 2015, the Supreme Court agreed to hear a major and consequential abortion rights case for the first time since 2007. Read on to learn more about the history of abortion rights, the important facts of Whole Women’s Health v. Cole, and what it could mean for future generations of women.

A “Brief” History of Abortion Rights

Laws pertaining to contraception came to the Supreme Court in 1965 with Griswold v. Connecticut, where the court found that a state statute forbidding the use of contraceptives, punishable by fine and imprisonment, was unconstitutional. Justice William O. Douglas crafted the “penumbra” argument, stating that, “…the First Amendment has a penumbra where privacy is protected from government intrusion,” finding that “the sacred precincts of marital bedrooms” is not a place that is subject to government control and infringement. Marital privacy was to remain private. The curtain would remained closed on the intimacies of married life.

Image Courtesy Of [Kate Ausburn via Flickr]

In 1973, the Supreme Court decided the landmark abortion case, Roe v. Wade. Justice Harry Blackmun, a conservative father to three daughters who served as resident counsel in the Mayo Clinic (1950-1959), authored the weighty opinion. The importance of the right to privacy and a woman’s autonomy over her pregnancy led him and the Court to find the restrictive Texas statute unconstitutional and abortion a private legal matter encompassing a woman’s right to choose. The Court quoted the Texas District Court below, agreeing that the “fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment.” However, the opinion explained vested interests in abortion proceedings and outlined different levels of state interests in regulating abortion procedures in the second and third trimester.

While 1992 brought United States citizens “Aladdin,” Windows 3.1, and the birth of Miley Cyrus, it also bestowed upon us the sequel to Roe v. Wade in the form of Planned Parenthood of Southeastern Pennsylvania v. Casey—a complex multi-part decision that ultimately addressed what regulations were and were not acceptable by the states regarding abortion procedures under a undue burden/substantial obstacle analysis. The Court reaffirmed its Roe holding by adhering to the three major principles in Roe: 

1. That a woman has the right to abort prior to viability “without undue interference from the State:”
2. That the State has the right to restrict abortions after fetal viability so long as its laws contain exceptions for any pregnancy that endangers the life or health of a woman; and
3. That the State has a “legitimate interest” in the pregnancy to protect the life of the woman and fetus.

Planned Parenthood v. Casey challenged five provisions of the Pennsylvania Abortion Control Act of 1982. One required women, prior to getting an abortion, to obtain informed consent. Informed consent is a process in which a woman is provided with the risks of abortion, fetal development, gestational age of the fetus, whether the fetus can feel pain during the procedure, and that personhood begins at conception, etc. The act also require women to wait a mandatory 24 hours following signed consent to proceed with the procedure, obtain parental consent for minors with the allowance of a judicial bypass, and obtain signed spousal consent. Additionally, the act defined a “medical emergency” within the context of abortion procedures and set out specific reporting requirements by the facilities performing abortion services. The Court, in a plurality decision, upheld the central holding in Roe, but did however, overturn Roe’s trimester analysis framework and only found one provision–requiring spousal consent–burdensome and an unconstitutional regulation on a woman’s right to choose. The rest of the provisions were upheld.

Legal discourse pertaining to abortion did not end there.  In 2000, Stenberg v. Carhart surfaced to challenge a Nebraska statute prohibiting and criminalizing “partial birth abortions,” also known as “dilation and extraction” in the medical community. The court’s scientifically detailed opinion ultimately held that the Nebraska statute was unconstitutional and therefore could not be enforced as it did not carve out an exception for the “preservation of the health of the mother.” Additionally, the statute, with its ambiguous wording and terminology, unduly burdened the mother’s ability to choose an abortion, noting that in certain situations and in the presence of specific circumstances, partial birth abortions were “safer” than alternative procedures and methods.

In 2003, Congress and President George W. Bush signed into law the Federal Partial Birth Abortion Ban Act which expressively banned the “dilation and extraction” abortion method cited in Stenberg. Advocates that challenged the federal statute in lower courts had the statute struck down, but the challenge to the federal statute did not reach the Supreme Court until 2007 in Gonzales v. Carhart.

The court in Gonzales v. Carhart addressed the issue of whether the federal statute imposed a substantial obstacle for late-term pre-viability abortions and found it to be constitutional. The act directly outlined the procedure prohibited–the delivery of a viable/living fetus to an anatomical landmark which required an additional “overt act,” an act separate from the delivery usually involving piercing or crushing the fetal skull, to be taken in order to kill the partially delivered fetus, hence countering any argument that the statute was “vague.” Further, the court addressed the possibility of other legal abortion options and stated that, “if intact [dilation and extraction] is truly necessary in some circumstances, a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act’s prohibition only applies to the delivery of ‘a living fetus.'” Here, Congress sought, and the court agreed, to create a hard line between abortion and infanticide.

Since Gonzales, states have taken to further testing the limitations of abortion regulation, introducing “fetal pain” laws. Fetal pain laws proceed to assert that a fetus can feel pain at 20 weeks of gestation and therefore abortion should be prohibited after 20 weeks of pregnancy, but no challenges pertaining to these laws have reached the Supreme Court yet. In fact, Whole Woman’s Health v. Cole will be the first major abortion case to be reviewed by the Supreme Court since 2007.

Sifting Through Whole Women’s Health v. Cole

In 2013, the state of Texas passed into law House Bill 2 (H.B. 2), in an effort to “raise the standard and quality of care for women seeking abortions.” The statute, which contained four primary provisions pertaining to abortion regulation, is currently being challenged for two of its provisions. The first is a requirement of physicians performing abortions to have admitting privileges at a hospital located within a radius of 30 miles from where the abortion is being performed. The second provision being challenged requires abortion clinics to comply with the same set of standards applicable to ambulatory surgical centers (ASCs) along with compliance to standards set for abortion clinics.

The challenger? Whole Woman’s Health, a privately-owned women’s healthcare facility that offers comprehensive gynecology services, including abortion, and provides a holistic approach for the care of their patients. The organization was founded in 2003 by Amy Hagstrom Miller who saw a need in the communities of women to address pregnancy and reproductive choice not only as a medical matter, but also as something that requires a woman to evaluate her identity, goals, and future plans–an emotional and weighty process.  Whole Woman’s Health has seven offices within the United States and assists over 30,000 women per year for a variety of reproductive healthcare reasons.

Image Courtesy Of [Ann Harkness via Flickr]

At the time of trial, seven ASCs, located in five major Texas cities, were licensed to perform abortion services and would be able to comply with H.B. 2. Although Texas had over 40 abortion clinics prior to the law taking effect, it was stipulated that, at most, eight abortion-providing centers would be able to comply with the ASCs provision of H.B. 2, subjecting women exercising their right to choose to increased travel and transportation costs. During trial, the State offered expert testimony to suggest that the regulation would be “medically beneficial,” but did not prove necessity, and as such, the District Court found that the ASC requirement, in its entirety, was overly burdensome. Furthermore, the District Court also found that the physician privilege requirement “was not medically justifiable and that the burdens it imposed were not outweighed by any potential health benefits.”

The United States Court of Appeals for the Fifth Circuit found that res judicata barred any facial challenge and as-applied challenge (under a different analysis) on the admitting privilege and ASC compliance provisions of H.B. 2 and that the District Court erred in rejecting the State’s res judicata defense during the motion to dismiss stage of proceedings. Essentially, due to a previous lawsuit that was still pending a decision when Whole Women’s Health challenged H.B. 2 but was shortly thereafter decided, the Plaintiffs could not challenge the bill again as any injury arose out of the same claim and the parties had a legal relationship with one another.

The Court did, however, provide an analysis on the merits as well concluding that:

1. The Plaintiffs failed to prove that H.B. 2 was enacted with an “improper purpose,” mainly to close a majority of abortion clinics in Texas;
2. That the District Court incorrectly analyzed legislative factfinding of information that led to the passage of the Texas law under the “rational basis review,” which solely calls for the court to presume the law in question is valid and inquire whether that law is “rationally related to a legitimate state interest;”
3. The District Court’s analysis and the Plaintiff’s evidence did not satisfy the “large fraction test,” requiring a showing that the law imposes a substantial obstacle on a large fraction of women in Texas;
4. That the abortion services offered at the McAllen Whole Woman’s Health location, a clinic not complying with ASC standards, and lack of a “qualified” clinic for 235 miles created a substantial obstacle for a woman to obtain an abortion and therefore was granted injunctive relief until a licensed facility opened closer to the Rio Grand Valley;
5. That the Plaintiffs offered a considerable amount of evidence showing that the physicians at the McAllen location were denied privileges at the local hospital for reasons “other than their competence,” and were therefore granted injunctive relief enjoining the State of Texas from enforcing the privilege requirement; and
6. That the El Paso clinic was not granted injunctive relief based on an undue burden of women to travel over 550 miles to the nearest Texas abortion clinic in San Antonio because they could travel across state lines to Santa Teresa, New Mexico, which shares a metropolitan area with El Paso to obtain the procedure.

The Fifth Circuit largely upheld the challenged provisions of H.B. 2.

So…What Could That Mean for the Rest of Us?

H.B. 2 showed the level of impact that such abortion regulation could have on the availability of abortion services, bringing down the 40+ available abortion clinics in Texas to a mere 8-10 as outlined in the United States Court of Appeals for the Fifth Circuit decision. Such legislation could create a large and costly barrier, not only to the 5.4 million women in Texas, the second largest female populated state in the country, but to all women in the United States.

In four states–Mississippi, North Dakota, South Dakota, and Wyoming–only one abortion clinic remains and it is unclear whether or not those clinics would be able to survive with the Texas-based legislation.

If such regulation passed muster in the Supreme Court, there could be an increase in self-attempted abortion and risky abortion procedures, which was noted, by the Plaintiffs in Whole Women’s Health, as a growing trend after H.B. 2 was passed in Texas. Additionally, costs would increase in travel, transportation, lodging, and in the procedure itself, potentially costing women their actual right to choose. Qualified abortion clinics would be overwhelmed, appointments would be scarce and harder to coordinate with travel and work schedules, and ultimately, those most impacted would be individuals in poverty and those with transitioning immigration status. Such legislation would force an unhealthy psychological effect on woman already making a difficult decision and consequently impose a great burden on a major woman’s right without proof that the abortion clinics functioning today are doing so at a sub-par or dangerous level.

So, one question remains–what’s next for abortion regulations in the United States?

RESOURCES

Primary

FindLaw: Whole Women’s Health v. Cole

JUSTIA: Griswold v. Connecticut

JUSTIA: Roe v. Wade

JUSTIA: Stenberg v. Carhart

JUSTIA: Gonzales v. Carhart

Legal Information Institute: 18 U.S. Code § 1531

State of Texas Legislature: House Bill 2

Additional

The New York Times: Supreme Court to Hear Texas Abortion Law Case

Planned Parenthood: Federal and State Bans and Restrictions on Abortion

Linda Greenhouse: Becoming Justice Blackmun

Guttmacher Institute: State Policies in Brief – Counseling and Waiting Periods for Abortion

USA Today: Idaho First State to have Fetal Pain Law Rejected

National Public Radio (NPR): High Court’s Pass on ‘Fetal Pain’ Abortion Case Unlikely to Cool Debate

Whole Woman’s Health

Bloomberg: The Vanishing U.S. Abortion Clinic

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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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.

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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.

Capital punishment has long been a controversial practice in the United States. Some feel that society needs to rid the country of America’s most heinous criminals in order to make room for new prisoners or to save taxpayer money, while others point out that the U.S. has executed more than 150 innocent people and this punishment cannot be undone. But why do people feel so strongly about the death penalty, how have their feelings changed over time, and what does this mean for capital punishment moving forward?

The Death Penalty Today

Demographics of the Death Penalty

In 2013, of the 2,979 inmates on death row, roughly half of them were held in four states: California, Texas, Florida, and Pennsylvania. Divided by race, inmates were 56 percent white and 42 percent black. Along gender lines, men outnumbered women one to 49, with men comprising 98 percent of death-row inmates and women only two percent.

Which states still use the death penalty?

The following states still use capital punishment:

The federal government and military also use capital punishment.

Each state determines which crimes are punishable by death. Crimes other than murder that can end in a death row sentence include rape of a child, weapons of mass destruction resulting in death, aggravated kidnapping, assault by an escaped capital felon, and aircraft hijacking.

The U.S. Federal Government uses the death penalty for 41 capital offenses including murder for hire, treason, terrorism, espionage, genocide, large-scale drug trafficking, and attempting to kill a witness, juror, or court officer in certain cases.

The following states abolished or no longer use capital punishment:

When the death penalty was removed or abolished in some states, lawmakers were faced with the question of what to do with those already on death row. Should those sentenced to death before the new law be allowed to live? In New Mexico and Connecticut, the answer was no. In 2009 when New Mexico eliminated the penalty, the law was not retroactive, which meant the two people on the state’s death row would still face execution. As of 2015, those two are still on death row. Also those who committed crimes worthy of the death penalty before 2009 could still face execution. The same ruling occurred in Connecticut, which had 11 people still on the state’s death row.

Arguments For and Against the Death Penalty

According to a 2014 Gallup poll, the most common justification for the death penalty is that the punishment fits the crime: an eye for an eye. This reasoning has dramatically decreased in the last 13 years, with 48 percent support in 2001, to 35 percent in 2014. Other reasons include a belief that the convicted person deserves it, that the death penalty can be used to set an example, and that it saves taxpayer money.

According to the same poll, the most popular reasons why people do not support capital punishment include a belief that it’s wrong to take a life at (40 percent), the fear of wrongful execution (17 percent), and religious purposes (17 percent). The fact that it costs more to keep prisoners on death row is very far down the list, polling at only two percent.

These are the various ways in which Americans perceive the death penalty, but are they correct?

The Cost of the Death Penalty

Despite 14 percent of Americans supporting the death penalty in order to save taxpayer dollars, it is actually more expensive to kill an inmate than to incarcerate him for the rest of his life. This revelation complicates the argument over whether or not it makes sense to employ the punishment.

A Los Angeles Times study found that the state of California spent more than $250 million per execution. California has executed 11 people over the course of 27 years and spends an average of $114 million per year on death row inmates. The state spends an additional $114 million per year on security and legal representation. The study also found that housing a death row inmate costs $90,000 more than non-death row inmates. Since reinstating the death penalty in 1978, California has spent more than $4 billion on executions. The reason why death row inmates are so costly is due to the complex and drawn out judicial process. Appeals cost the state and federal government time and money, and the concrete evidence needed, such as DNA testing, is costly. 

Other states have also found that the cost of the death penalty is higher than life sentence cases as well. A Seattle University study that examined death penalty cases in Washington state since 1997 concluded that on average capital punishment cases cost $1 million more than cases that did not seek the death penalty, with costs of $3.07 million and $2.01 million, respectively. Defense and prosecution costs were more than triple in death penalty cases. Since Washington reinstated the death penalty in 1981, the state has spent $120 million on five executions with an average of $24 million per execution.

In Nevada the cost of a capital punishment case is between $1.03 million and $1.3 million while a non-capital punishment case costs about $775,000. The reason for this difference is because death penalty cases are more lengthy and costly to make certain that the sentence is correct.

The average time a convict sits on death row has been increasing since the 1980s. In 1984 the average time between sentencing and execution was 74 months, or a little over six years. In 2012 it was 190 months, or nearly 16 years. That means the average inmate executed in 2015 was convicted in 1999.

In order to prove a fair sentence for execution all doubts must be erased. That is why death row inmates are given due process and appeals after their original sentences.

Concerns Over Wrongful Executions

Even today death row inmates are exonerated due to new evidence and doubts. As of May 2015 there have been 152 people exonerated from death row in United States history, leading to the concern that the justice system is far from infallible.

For example, in 2015 accused murderer Anthony Ray Hilton was freed after 30 years on death row in Alabama. His case made it to the Supreme Court and his defense attorney during his 1985 trial was found “constitutionally deficient” and ballistic evidence proved that he was not the murderer. The case was dropped by the Jefferson County district attorney’s office on April 1, 2015 and two days later his conviction was overturned. Because of his wrongful incarceration, Hilton missed the birth of his grandchild and the death of his mother.

So, is public opinion on the death penalty changing?

Since the 1930s, statistics show that a majority of the U.S. population supports the death penalty. The public’s opinion has fluctuated slowly over time with approval increasing from 47 percent in 1967 to 80 percent in 1995 and decreasing to 63 percent in 2014.

One thing is clear: Americans are losing confidence in the death penalty. According to Gallup, since the late 1990s, support for the death penalty for a convicted killer has fall by 17 percent and opposition has increased by 17 percent.

Conclusion

Capital punishment is legally complicated in many states. Some have the death penalty but do not use it. Others have abolished it but can still sentence people to death. Americans have a lot of things to take into account when deciding what side of the debate they fall into–whether its ethics, costs, or the time it takes to enact capital punishment. The more than 150 confirmed wrongful executions in the United States show that trials and law are not infallible. While approval of the death penalty continues to decrease every year, it’s doubtful that the U.S. will be making a big change any time soon.

Resources

Primary

Bureau of Justice Statistics: Prisoners in 2013

U.S. Department of Justice: Capital Punishment

Additional

Gallup: Death Penalty

Death Penalty: The High Cost of the Death Penalty

Death Penalty: Cost of the Death Penalty

Guardian: Alabama Man Off Death Row After 28 Years

Death Penalty Info: States With and Without the Death Penalty

Mike Stankiewicz

Mike Stankiewicz came to Washington to follow his dream of becoming a journalist. The native New Yorker studied Broadcast Journalism and Law and Society at American University. In his leisure time he enjoys baseball, hiking, and classic American literature. Contact Mike at staff@LawStreetMedia.com.

The post Capital Punishment: Is American Opinion Changing? appeared first on Law Street.

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.

The Supreme Court of Canada has just ruled that the users of marijuana for medical purposes now have the right to bake the drugs in cookies, take it in lozenge form or as tropical oils in addition to smoking it. The unanimous ruling against the federal government expands the definition of medical marijuana beyond the “dried” form, and speaks volumes about the changes happening in the marijuana industry.

The Court found that the current restriction to dried marijuana violates the right to liberty and security “in a manner that is arbitrary and hence is not in accord with the principles of fundamental justice.” Restricting medical access  in Canada to marijuana in a dried form has now been declared “null and void.” That renders sections four and five of the Controlled Drug and Substances Act, which prohibits possession and trafficking of non-dried forms of cannabis, unenforceable.

This decision supports earlier rulings by lower Courts in British Columbia that said they went against a person’s right to consume medical marijuana in the form they choose.

Medical marijuana patients don’t always want to expose themselves to the effects of smoking the drugs. Inhaling marijuana could present health risks, and is said to be less effective for some conditions that administer cannabis derivatives. With inhalation being a large issue, the smoking process is said to irritate the lungs, which is why smokers are more likely to have an ongoing cough or other health problems like chest colds and lung infections.

A 2011 systematic review of the research concluded that long-term marijuana smoking is associated with an increased risk of some respiratory problems, including an increase in cough, sputum production, airway inflammation, and wheezing–similar to that of tobacco smoking. 

Some medical marijuana users wanted to avoid those side effects. But other methods like brewing marijuana leaves in tea or baking weed into brownies left patients vulnerable to be charged with possession and trafficking under the law.

“This is monumental,” said David Posner, CEO of Nutritional High, a Canadian company that has been testing marijuana-infused candy and drinks for sale in the United States later this year. “Another market the size of California just opened up for our products.”

So what does this mean for the U.S. exactly? Four states–Washington, Colorado, Oregon, and Alaska, as well as Washington D.C.–have legalized marijuana, while a total of 14 states have decriminalized certain amounts of possession. Legal marijuana is said to be the fastest-growing industry in the U.S. According to ArcView, over the next five years, the marijuana industry is expected to continue to grow. They are predicting that 14 more states will legalize recreational marijuana and two more will legalize medical marijuana. At least ten states are already considering legalizing recreational marijuana in just the next two years through ballot measures or state legislatures.

In that context, Canada extending its medical marijuana market, and the U.S.’s current growing market promise continued growth. Non-traditional ways to consume marijuana will continue to rise–this week’s decision was just the beginning.

Angel Idowu

Angel Idowu is a member of the Beloit College Class of 2016 and was a Law Street Media Fellow for the Summer of 2015. Contact Angel at staff@LawStreetMedia.com.

The post Weed Trend Grows: Canada Legalizes Medical Edibles 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.

The post Born in Israel? Not on Your American Passport appeared first on Law Street.

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.

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.

It sometimes seems that we’ve been seeing the same faces in Congress for years. It feels like people such as Representatives John Boehner and Nancy Pelosi have been in office forever despite Congress’s dismal approval ratings. Why do the same people keep getting reelected, and why is it so hard to unseat incumbents?

One popular answer to that question is gerrymandering. Gerrymandering is a redistricting tactic that is used to increase the influence and power of a particular political party. It has been practiced since the country’s founding and has long been a controversial endeavor. Courts have battled with the legality of gerrymandering based on race, ethnicity, and other factors for decades. Read on to learn about what gerrymandering is, what role it plays in American politics, and the arguments against the practice.

What is gerrymandering?

Gerrymandering occurs during the drawing of Congressional district lines when attempts are made to give one political party or candidate an election advantage. These lines are drawn specifically to make reelections easier for a party, or give a party greater influence on other districts. The main intention of gerrymandering is to help one party win as many seats as possible, whether in Congress or in state elections.

Each state has its own process for drawing district lines, and it is the people in charge, typically state legislators, who draw and approve of new boundary lines. Each district has to have close to the same population and new lines are drawn due to population fluctuations, most typically after a census.

What’s in a name?

One of the first known occurrences of gerrymandering in the United States happened during the 1789 election of the very first U.S. Congress. The Anti-Federalists and founding father Patrick Henry controlled the Virginia House of Delegates, the legislative body that drew the boundaries for the state’s districts. They purposely designed Virginia’s 5^th district in a way to keep James Madison, a Federalist, from winning the seat. However, their attempts were unsuccessful and Madison won the seat.

The term “gerrymander” came from the actions of the Governor of Massachusetts Elbridge Gerry in 1810. He was responsible for shaping new districts and the Boston Gazette commented that one of them was shaped like a salamander. Gerry’s name was combined with salamander and the term “gerrymander” was born.

Later, the Republican Party also used gerrymandering on a larger scale to acquire more states that were beneficial to the party. For example North and South Dakota, Republican friendly locations, were admitted as two separate states. That created more districts and senators for the Republicans than one state alone would.

Who draws the lines?

Each state has its own processes of redistricting. In 37 states, the state legislature governs the redistricting process and redraws the districts. It is usually passed like a piece of legislation and requires only a majority vote to pass. Because of this, the majority party in the legislature decides the district lines.

Of these 37 states, five use advisory commissions to help make fair district lines, but the ultimate decision is still up to the state legislature and it has no obligation to follow the commission’s recommendation.

In two states (New Jersey and Hawaii) the task of redistricting is up to political commissions, commissions comprised of certain elected officials. Typically there’s an equal amount of commissioners from each party and several commissioners from neither party. This ensures that no plan gets approved with only partisan support.

Four states (Washington, Idaho, California, and Arizona) use commissions made up of non-elected officials in an attempt to regulate the redistricting process and stop political influences altogether.

Seven states (Alaska, Montana, Wyoming, North Dakota, South Dakota, Delaware and Vermont) have no need for redistricting plans as they have only one congressional representative each, also know as “at-large” districts.

Is redistricting allowed to benefit one party?

The Supreme Court Case Davis v. Bandermer (1986) found that partisan gerrymandering violated the Equal Protection Clause of the Fourteenth Amendment. At the same time, no decision was made on what legal standards partisan gerrymandering claims could be made. This has made it difficult to make legal claims against alleged partisan gerrymandering and has allowed it to continue.

In the 2004 Supreme Court case Vieth v. Jubelirer the court, once again, could not determine how gerrymandering claims could be evaluated.

Four Gerrymandering Tactics

There are four common types of gerrymandering:

Cracking is when voters of one type are spread throughout many districts in order to prevent them from having a large voting bloc in any district. An example of cracking is when poor, urban voters are spread across districts where a large majority of the voters are rural. This prevents the urban voters from carrying much weight during elections. This is the most common type of gerrymandering.

Packing involves concentrating as many as possible of a single bloc of voters into one district to reduce their impact in other districts. An example would be putting most urban voters in one district and very few in other districts to give them only one district where they have a large presence. Many times this creates a majority-minority district, when one district is composed mostly of minority groups.

Hijacking is done when a state’s districts are redrawn after a census. Two districts are altered so that two incumbents of the same party are forced to run against each other. This guarantees that one of them will be voted out. The other district, with no incumbent, is then more easily won by the other party.

Kidnapping also occurs during redistricting, when voters of the incumbent’s party are moved out of the district to make reelection more difficult. For example, Democratic voters are moved out of an incumbent Democrat’s district and are replaced with Republican voters. This makes it difficult for the Democratic candidate to be reelected and easier for a Republican candidate to win.

What do gerrymandered districts look like?

Sometimes districts are shaped in very deformed ways. For example, check out this map by the United States Geological Survey that shows Illinois’ 4th Congressional District. It was designed to connect Chicago with other cities in order to make a heavily Democratic district.

How does gerrymandering impact elections?

Approval ratings for Congress have been below 20 percent for years, but that doesn’t mean that 80 percent of incumbents get ousted every election. Instead, it’s usually the opposite.

During the 2012 U.S. House of Representatives election, Democratic candidates received 59,318,160 votes and Republicans received only 58,143,273 votes (48.8 percent to 47.6  percent.) But Democrats won 201 seats and Republicans won 234 seats (44.9 percent to 51.7 percent). Despite the Democrats receiving more votes as a whole due to gerrymandering, Republican incumbents were mostly able to hold on to their seats. Overall roughly 90 percent of incumbents won reelection in 2012. On a state level, in 2010 Republicans won majorities in many state legislatures, and given the 2010 Census results, many districts were redrawn to benefit Republican incumbents.

Almost all districts have been gerrymandered to help incumbents get reelected. Most legislatures are typically comprised of both the majority and minority parties; they mutually agree to pack each district with their respective party’s voters in order to ensure reelection. Many of these districts are called 70/30 districts where two districts that are split 50/50 in party affiliation are each drawn 70/30 for a different party, guaranteeing each party wins one district. This is known as bipartisan gerrymandering, which protects both parties’ interests.

But sometimes a legislature is controlled largely by one party. They may redistrict in a cracking manner that prevents the minority party from having any significant influence in any district, making reelection very easy for the majority party’s incumbents.This is partisan gerrymandering which favors only one party.

How can boundary lines be decided objectively?

One of the biggest problems opponents have with gerrymandering is that the self-interested party is the one who oversees and commands redistricting. These parties are accused of only caring about aiding themselves and not their constituents. Opponents to gerrymandering have proposed different remedies to prevent gerrymandering.

Court approved redistricting would prevent specific party-favored redistricting and strike down gerrymandering plans. This would require all redistricting plans to be presented and approved by either state or federal courts. The Supreme Court has already ruled that if a plan violates the Voting Rights Act of 1965, a new plan must be presented that fixes the gerrymandering problem. If that plan also violates the law, a federal court could draw the plan.

Independent non-partisan commissions have been proposed to decide redistricting plans without political influence. Arizona, California and Washington have already adopted similar commissions.

Who agrees with gerrymandering?

Despite the disapproval by many of gerrymandering practices, there are some who argue for the practice.

By making it easier for incumbents to be reelected, there is less of a chance of a huge wave of change each election. If voter opinion changes from cycle to cycle (as it often does) there will not be huge shifts of changing leadership. If one party in the House is given an outstanding majority, any bill passed may be too polarizing to pass in the Senate, resulting in gridlock. Gerrymandering allows for gradual changes in representative composition.

Packing gerrymandering can also be used to prevent a minority group from being underrepresented. If a minority does not have enough voters in any district to have much influence in elections, then putting them in one district gives them a higher chance of electing someone based on their beliefs.

Conclusion

Party politics holds a very large role in how districts are drawn. While the United States’ democracy ensures that everyone will have the chance to vote on who represents them, gerrymandering is seen by some as an impediment to true representation. While gerrymandering can have some benefits, it is also responsible for keeping many disliked representatives in office. While there may never be a way to make sure that everyone’s vote makes a big impact, drawing districts fairly is an admirable goal toward which we should all strive.

Resources

Primary

NationalMaps.gov: Printable Maps

Additional

Study: Gerrymandering: Definition, History, Types & Examples 

Politics & Policy: Gerrymandering – Proving all Politics is Local

Loyola Law School: Who Draws the Lines?

Gallup: 2014 U.S. Approval of Congress Remains Near All-Time Low

POLITICO: 2012 Reelection Rate: 90 percent

Newsworks: Boehner and House Republicans Lack Mandate to Oppose Obama

Mike Stankiewicz

Mike Stankiewicz came to Washington to follow his dream of becoming a journalist. The native New Yorker studied Broadcast Journalism and Law and Society at American University. In his leisure time he enjoys baseball, hiking, and classic American literature. Contact Mike at staff@LawStreetMedia.com.

The post Gerrymandering: (Mis)Shaping America’s Vote? appeared first on Law Street.

This Monday, I had the opportunity to attend the Shakespeare Theatre Company’s annual Mock Trial event at the Sidney Harman Hall in downtown Washington D.C. The event, a tradition two decades old, deals each year with a legal question regarding a character from a play or musical. This year’s focus was on Don Quixote, or more accurately Alonso Quijana, from “Man of La Mancha.” The legal star-studded event welcomed well-known Washington attorneys and judges to the stage to weigh in on the fictional knight’s fate.

In the scenario presented on Monday night, Don Quixote had already been placed into the guardianship of his niece Antonia. Given his proclivity for attacking windmills among other suspect acts, the Family Court of La Mancha determined that he was unable to take care of himself, putting Antonia in charge of his affairs. However, an advocate speaking on behalf of Don Quixote made a twofold argument that Don Quixote did not need a guardian, and even if the court decided he did, the guardianship should be put in the hands of his faithful squire “Sancho Panza.” Both the judges and the “jury”–the audience–were tasked with considering these questions.

In order to make the arguments feel as realistic as possible, the stage was fastened into a courtroom, complete with five judges and two attorneys. The presiding judge was Supreme Court Justice Ruth Bader Ginsburg. She was joined by fellow SCOTUS Justice Stephen Breyer, Chief Judge Merrick Garland, Judge Patricia Millett of the U.S. Court of Appeals for the D.C. Circuit, and U.S. District Judge Amy Berman Jackson. The attorney arguing on behalf of Don Quixote was Tom Goldstein, of Goldstein & Russell, and a co-founder of SCOTUSBlog. The attorney arguing to uphold the decision of the Family Court of La Mancha was Carter Phillips of Sidley Austin.

Thomas C. Goldstein of Goldstein & Russel, P.C. at the Shakespeare Theatre Company’s 2015 Mock Trial. Image courtesy of [Kevin Allen]

The curtains opened to roughly an hour of rather high-spirited presentation and questioning of the legal arguments. There were some excellent pop culture references–including jokes about the Kardashians, Katy Perry’s left shark, and a wonderfully sharp Deflategate-esque jab about Tom Brady relieving some pressure. My personal favorite moment of the night came when Goldstein made a comment about Justice Ruth Bader Ginsburg’s opinions on procedure being “notorious”–a hilarious reference to the beloved Notorious RBG meme.

There were also jokes clearly tailored to the attorney-heavy Washington D.C. audience. For example during a back-and-forth about the usefulness of windmills, Justice Garland questioned whether we should “appoint a guardian for everyone who opposes renewable energy.” A remark about the 9th Circuit, and it’s “inexplicable” calls garnered a lot of laughs from those in the know–the 9th Circuit is famous for reversing decisions.

After the argument portion came to a close, the judges left to deliberate and the audience was asked whether we, as the “jury,” think that Antonia should remain as Don Quixote’s guardian. We were instructed to place tokens indicating our thoughts into provided baskets–a red token if we thought that Don Quixote should be guardian-less, or a blue token to agree with the Family Court of La Mancha and keep Antonia as the guardian. When the votes were tallied, it was determined that the audience wanted to see Don Quixote continue to live out his dreams without Antonia’s interference, reversing the decision. Happily, the judges agreed. They returned to the stage after their deliberations to inform the crowd that they decided to reverse the Family Court of La Mancha’s decision.

The overwhelming decision to grant Don Quixote his metaphorical freedom wasn’t surprising, given the mood of the night. As the judges consistently noted throughout the evening with their questioning of Goldstein and Phillips, this came down to a question of dreams versus delusions, and it’s a lot happier to put stock in the former rather than the latter.

In the high-stress and hectic environment that is the Washington law and policy field, Monday night’s show stood as a seemingly rare moment of levity and a reminder of the lighter and funnier aspects of life. In true Don Quixote fashion, while it may not always be pragmatic to dream the impossible dream, imagining a world where that’s possible seemed to serve as a welcome respite for many of Washington’s legal elite.

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 Dreams or Delusions? Two Supreme Court Justices Pick Their Side and it May Surprise You appeared first on Law Street.

Last week I wrote about the Supreme Court beginning to hear arguments in a historic gay marriage case that could potentially lead to same-sex marriage being approved nationally. And while many rejoiced at the possibility of loving couples across the country finally being able to marry in all 50 states, others adamantly disapproved, turning to their keyboards to share their objections online. However, one Nebraska woman took her opposition to same-sex couples to new heights by deciding to sue all homosexuals. Yes, you read that correctly, the defendant in this case is listed as “Homosexuals.”

According to the Omaha.com, Sylvia Ann Driskell, 66, a self-identified ambassador for God and his son, Jesus Christ, is asking the U.S. District Court of Omaha to decide if homosexuality is a sin or not.

In an apparent seven-page letter sent to the court, Driskell cited Bible passages describing homosexuality as an abomination arguing,

That homosexuality is a sin and that they the homosexuals know it is a sin to live a life of homosexuality. Why else would they have been hiding in the closet(?)

Patheos was able to obtain a copy of the Driskell’s lawsuit, and let me tell you, it is just as bizarre as you would think. Besides being completely handwritten, the letter is written as if Driskell herself believes the true plaintiffs are God and Jesus, and she is merely representing them.

This is a Nebraska woman’s actual (handwritten) petition to sue all “homosexuals.” #LGBT http://t.co/z4iKfv2sBl pic.twitter.com/rJzIGCPcJ6

— Robert Crawford (@jurassicpork59) May 5, 2015

She ends her letter with the following passage (misspellings and all):

I’m sixty six years old, an I never thought that I would see the day in which our Great Nation or Our Great State of Nebraska would become so compliant to the complicity of some peoples lewd behavior.

Why are judges passing laws, so sinners can break religious and moral laws?

Will all the judges of this Nation, judge God to be a lier?

Driskell is said to be representing herself–and apparently, by extension God and Jesus–in the case, which comes as no surprise since no lawyer in their right mind would want to take her case. She is reportedly not answering calls for comments, but I think it’s fair to say both this lawsuit and this woman are a little crazy.

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 Nebraska Woman Sues “All Homosexuals” appeared first on Law Street.

This week the Supreme Court began its historic consideration into the federal legality of gay marriage. The nine justices are attempting to decide whether or not the Constitution’s Due Process and Equal Protection clauses give same-sex couples marriage rights. Currently 37 states have laws permitting same-sex marriage, but a ruling from the court in favor of the challengers would make gay marriage legal in rest of the states.

The legality of #gaymarriage on a federal level is being decided right now: https://t.co/1XiJaJyG3G

— AJ+ (@ajplus) April 29, 2015

Even though the court’s decision won’t be announced until June, people have already begun to categorize the justices in order to decide who could be the deciding factor in the case. The court’s four liberal judges appear to be ready to approve gay marriage, with moderate Justice Anthony M. Kennedy being declared the one to watch. Many are speculating that he’ll be the swing vote, like he’s been in the past. However people shouldn’t count conservative Chief Justice John Roberts out as a deciding factor. He was quoted yesterday in the court transcripts as saying,

I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t.  And the difference is based upon their different sex.  Why isn’t that a straightforward question of sexual discrimination?

Framing the legality of gay marriage in such a way may be convincing enough to move Roberts to vote with the liberal side of the court. 

The delay in a decision didn’t stop demonstrators from both sides of the argument from flooding the steps of the Supreme Court to share both support and opposition for a change in the way our country defines marriage.

Overflow crowd awaits entry to historic #SCOTUS hearing on gay marriage #WTOP pic.twitter.com/acHOOLCVIB

— Kristi King (@kingWTOP) April 28, 2015

People wait before SCOTUS ahead oral arguments on gay marriage cases Tuesday. (@pmmichalski) http://t.co/tMx9gxrxnu pic.twitter.com/jFChRMv2yo

— Your Take (@yourtake) April 28, 2015

Today KY couples will be part of history. Covering #SCOTUS case on #gaymarriage,protesters by the hundreds outside pic.twitter.com/beoBLcPWae

— Lindsay Allen (@LindAllenWDRB)

Lots of people in front of #SCOTUS ahead of gay marriage oral argument #AFP covers pic.twitter.com/SMCzVWcYBW

— Chantal Valéry (@chantalvalery) April 28, 2015

href=”https://twitter.com/LindAllenWDRB/status/593033167667392512″>April 28, 2015

Early crowds are to be expected in a landmark case of this magnitude. We can be sure to see even more people show up in June when the decision will be announced. As for now things are looking good for marriage equality supporters, but you never know which way the case could turn.

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 Hears Arguments in Historic Gay Marriage Case appeared first on Law Street.

Much ado has been made about the potential impacts of gay marriage on immigrants, and the potential impacts of comprehensive immigration reform on LGBTQ people. But what does all that mean? How do laws aimed at immigrants and laws aimed at LGBTQ people impact those who are both immigrants and LGBTQ? Read on to learn about the different difficulties of LGBTQ immigration, what progress is being made, and what problems still exist.

“Don’t Separate my Family”: Marriage and Immigration

When people hear about immigration and gay rights together in mainstream media sources, chances are that the conversation is about the impacts of gay marriage on immigration policy and individual couples in which one partner is an immigrant and the other is a citizen.

In the build up to the Supreme Court’s 2013 decision in United States v. Windsor, which provided full federal recognition of legally married same-sex couples by striking down a critical component of the Defense of Marriage Act (DOMA), many couples in which one partner was not a citizen were featured in efforts of advocacy for gay marriage. A perfect example is the couple featured in the YouTube clip above. In the aftermath of federal recognition of same-sex marriage, a good deal of media coverage focused on long-term lesbian and gay relationships in which one of the partners was granted legal immigration status through marriage to a citizen partner. This New York Daily News article, for example, frames the triumph of gay marriage advocates in New York through the lens of immigration, discussing same-sex marriage as a win for a binational couple’s ability to obtain a green card for one of the partners.

Legal recognition for same-sex marriage has somewhat been a boon for proponents of more accessible immigration. LGBTQ couples no longer need to live in fear that they will not be able to live together in the U.S. because their marriage isn’t recognized: after the DOMA decision, same-sex couples have the right–as straight couples do–to have an immigrant partner obtain a green card through their marriage to a citizen spouse. Prior to the DOMA decision, no federal rights of marriage, including federal taxes and federal benefits, were afforded to same-sex couples, even if they were married in a state where it was legal. There was a lack of ability to obtain a green card for an immigrant partner in a binational couple; these rights are now assured. Transgender immigrants in a binational marriage, rest assured–whether you’re in a straight or  gay/lesbian relationship, the DOMA decision ensures that you or your partner can qualify for a green card.

New Concerns After the DOMA Decision

After the DOMA decision, however, concerns remain for LGBTQ immigrant couples. For example, investigative reporter Seth Freed Wessler writes for Colorlines.com that,

The parts of the marriage-based visa process that include investigation by federal immigration officers into the validity of a marriage… [can pose a problem for] LGBT couples who may not be out to their families, communities, neighbors or bosses, the prospect of a United States Citizenship and Immigration Services (USCIS) officer showing up at their apartment building or calling their mother to ask about the relationship poses a pretty serious risk.

This is indeed something to be concerned about, and it may well bar access to green cards for many LGBTQ immigrants. Yet it is precisely this articulation of the U.S. as a liberal bastion and safe-haven for LGBTQ people–juxtaposed against “homophobic” countries–that causes many LGBTQ people to critique the entire framing of same-sex marriage as a vehicle for positive immigration policy.

Many LGBTQ people argue that fighting for marriage takes away attention, energy, and resources (millions and millions of dollars worth) from addressing the underlying issues of structural racism, state oppression and heteronormativity that shape anti-immigrant and anti-LGBTQ attitudes to begin with. Queercents writer Yasmin argues that marriage “being presented as THE immigration cause for LGBT people” detracts crucial attention away from comprehensive immigration reform, which she and many others assert should be the focal point of immigration efforts. Responding to American Apparel’s same-sex marriage-inspired “Legalize Gay” shirts Yasmin writes that:

Do people wearing this t-shirt have a clue what it really means to be illegal? To be, for instance, an ‘illegal alien’ who gets swept up in an Immigration and Customs Enforcement raid and be deported soon thereafter? To not be able to travel freely because they lack the proper documentation? To pay for their school tuition and rent in cash because they lack social security numbers? [And i]t’s not just the undocumented whose lives are effectively erased by this t-shirt, but the millions who are being funneled into the prison industrial complex in order to increase its profits.

Even if an undocumented immigrant who is LGBTQ is familiar with the fears and oppressions discussed here, they may not have marriage available to them–or may not desire marriage–if they want a green card.

Executive Action and Legal Challenges

President Obama’s executive action in November 2014 that attempted to grant relief from deportation for millions of undocumented immigrants is being legally challenged by 26 states. These legal challenges have left millions of people in limbo, without knowing their status or rights, because the parents of U.S. citizens and families who were protected from deportation under his executive orders now must wait to learn what courts will decide about the legal challenges.

The impacts of Obama’s exercise of executive power (and, then, the impacts of the legal challenges to this power) for LGBTQ people have been much debated in LGBTQ communities. Staff correspondents Rachel Roubein and Lauren Fox argue in the National Journal that Obama’s actions on immigration were a tremendous help to LGBTQ people. They cite, among other things, the life-saving potential of prosecutorial discretion in immigration cases, which can prevent many LGBTQ people from being deported.

Other critics are less optimistic about the potential of Obama’s executive action to serve as the immigration overhaul that many desire, even if the cases against it are unsuccessful. Colorlines.com reporter Julianne Hung reminds her readers that:

The terms [of the action] are stringent: It will apply only to those who have been in the U.S. for five years or more; those who came to the country as young teens; and parents of U.S. citizen children and green-card holders. People with various criminal violations on their records will be barred from relief.

While these familial provisions were portrayed as being meant to keep families together, they do not grant access to many of the 267,000 undocumented LGBTQ adults who will not qualify for relief under Obama’s action because they lack these kinds of familial connections. These stringent terms may be particularly prohibitive for many of the 20,000-50,000 undocumented transgender immigrants in the country, for whom accessing potential relief will likely be particularly difficult due to virulent institutional transphobia that trans immigrants face.

“Mass Incarceration of Immigrants”

Currently, there’s a “mass incarceration of immigrants” in which the state and prison corporations generate many billions of dollars of profit from privately run and revenue-generating facilities that lock up people who are immigrants. In light of that, many LGBTQ immigrants are concerned about prisons generally, and the ways transgender people are targeted for especially horrific treatment in prisons and immigration detention centers. When the Department of Homeland Security came out with new immigration detention policies in 2014 that were aimed at preventing sexual abuse in immigration detention facilities, many lauded the changes as a victory. LGBTQ immigrants in these centers often experience much higher rates of abuse than their non-LGBTQ peers, so the changes were often welcomed by LGBTQ immigration advocates.

However, transgender immigrants did not receive adequate protections under the new guidelines. National Center for Transgender Equality director of policy Harper Jean Tobin referred to the new policies in the following way:

A tremendous missed opportunity which adds urgency to ending our multibillion-dollar mass incarceration of immigrants… The lack of adequate protections for transgender immigrants in particular makes it clear that these vulnerable individuals are not safe in detention facilities and should no longer be detained.

Many transgender asylum seekers are detained in the wrong facilities, particularly women being placed in all-male facilities, making those women targets of extreme sexual violence in immigration detention facilities.

This kind of abuse is experienced at higher rates by transgender immigrants, but LGB immigrants also are sexually abused at 15 percent higher rates than their non-LGB peers in detention facilities.

Organizations like the National Center for Transgender Equality, the National Immigrant Justice Center, and the Sylvia Rivera Project’s Immigrant Rights Project work at the intersections between immigration and LGBTQ justice. They operate in ways that attempt to make detention safer for LGBTQ immigrants specifically while also working to make detention and deportation non-existent for all immigrants.

Conclusion

For immigrants who are LGBTQ, obstacles to obtaining a green card and safety from deportation can be much greater than for immigrants who are not LGBTQ, though the obstacles and the stakes are quite high for all immigrants. Same-sex marriage may chip away at these obstacles for some LGBTQ immigrants in binational, married relationships, but more overarching reform of the system of detention and deportation of immigrants may be a more holistic way forward for LGBTQ immigrants.

Resources

Primary

Oyez: United States v. Windsor

Additional

National Immigrant Justice Center: Stop Abuse of Detained LGBT Immigrants

Sylvia Rivera Law Project: Immigrant Rights Project

National Center for Transgender Equality: Our Moment For Reform

ABC News: DOMA Ruling Could Mean Green Cards for Gay Immigrants

Colorlines: LGBT Immigrants Could Face Hard Road Applying for Green Cards

Washington Post: Gay Marriage Fight Will Cost Tens of Millions

MakeZine: Is Gay Marriage Racist?

Queercents: Legalize Gay: Or, So You Think You’re Illegal?

Queercents: Uniting American Families Act: Fact, Fiction, Money, and Emotions

Immigration Policy Center: A Guide to the Immigration Accountability Executive Action

AlJazeera: 26 States Sue Obama Over Immigration Plan

National Journal: In Immigration Action, the LGBT Community Once Again Feels Left Behind

Feministing: Is Mass Incarceration and Detention of Women Becoming the New Normal?

Center for American Progress: Dignity Denied: LGBT Immigrants in U.S. Immigration Detention

Jennifer Polish

Jennifer Polish is an English PhD student at the CUNY Graduate Center in NYC, where she studies non/human animals and the racialization of dis/ability in young adult literature. When she’s not yelling at the computer because Netflix is loading too slowly, she is editing her novel, doing activist-y things, running, or giving the computer a break and yelling at books instead. Contact Jennifer at staff@LawStreetMedia.com.

The post LGBTQ Immigration: Not Just About Marriage 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.

The University of Notre Dame, a Roman Catholic institution, may now resume its battle against birth control after the Supreme Court revived its religious objections to the government contraceptive coverage requirements. The whole debate boils down to an Obamacare provision that has religious opponents in this case advocating for some separation between church and state.

The 2010 Affordable Care Act, otherwise known as Obamacare, has been a topic of contention for some religious organizations unwilling to adhere to its contraception provision. The act mandates employers supply health insurance policies to their female employees that cover contraception and sterilization, but detractors say that violates their religious beliefs.

Christian business Hobby Lobby battled boycotts while defending their moral opposition to the act last summer in the Supreme Court and won. Burwell v. Hobby Lobby Stores, Inc.‘s landmark decision in favor of Hobby Lobby set a precedent for other religious organizations to seek exemptions from the law due to their religious preferences, based on the Religious Freedom Restoration Act. The justices asked the 7th U.S. Circuit Court of Appeals to reconsider its decision for the Catholic university in light of that ruling.

According to Reuters, the lower court threw out a February 2014 appeals court ruling denying Notre Dame an injunction against the requirement. The appeals court ruling pre-dated the Supreme Court’s June 2014 Hobby Lobby exemption decision. Despite the landmark decision, courts have continued to hear cases on the issue, but have all decided in favor of the government, finding “the compromise does not impose a substantial burden on the plaintiffs’ religious beliefs.”

Louise Melling, deputy legal director for the American Civil Liberties Union, discussed Notre Dame’s objections with the Wall Street Journal. She advocated for women’s rights, saying:

It’s absurd to assert that simply filling out a form stating an objection violates religious freedom. What Notre Dame and others really object to is women getting the contraceptive coverage they need. That’s discrimination, plain and simple.

The Catholic church and some Christian opponents don’t see the issue as discrimination, but rather a violation of their rights to represent their beliefs while operating private businesses. Catholicism has historically been opposed to all forms of birth control except abstinence and natural family planning. So, insurance plans that cover birth control, especially in the form of emergency contraception like the Plan B pill and intrauterine devices, stand contradictory to their beliefs.

However, the church may be loosening its stance some when it comes to sex. Pope Francis, who has been recently hailed as a revolutionary force in the Catholic Church, was just quoted saying “Catholics needn’t feel compelled to breed like rabbits.” Even so, following the church’s voice on sexual matters has become less and less important for modern Catholics.  The New York Times broke down Gallup’s “Values and Beliefs” survey from last May finding:

Catholics were only slightly less open to birth control, with 86 percent of them saying that it was “morally acceptable” in comparison with 90 percent of all respondents. But Catholics were more permissive than all respondents when it came to sex outside marriage (acceptable to 72 percent of Catholics versus 66 percent of Americans overall) and gay and lesbian relationships (70 percent versus 58).

Regardless of the feelings of average Americans, however, Notre Dame has stuck to the lawsuit.

Overall this battle between church and state is a fight over health vs. morals. Providing adequate health care coverage for employees is an employer’s responsibility, and maintaining sexual and reproductive health is essential to all women’s wellbeing. The Supreme Court’s decision and reexamination of Notre Dame’s objections may mean some women will have to decide whether or not they’re willing to forfeit that right to adhere with company culture when choosing to work for a religious organization.

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.

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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 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.

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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.

It’s still the holiday season, and during this time of the year it’s easy to forget to check the news. Luckily, Law Street has you covered with this week’s edition of “In Case You Missed It.” Our top story last week covered the ongoing legal battle between Colorado, Nebraska, and Oklahoma over Colorado’s legalization of recreational marijuana, written by Anneliese Mahoney. Our number two post, by Lexine DeLuc,a should help any Serial fans out there with their withdrawals–it’s a great collection of parodies inspired by the hit podcast. Finally, rounding out the list was a story from blogger Katherine Fabian on how to spot fake handbags during your holiday gift shopping. ICYMI: Check out what you missed on Law Street last week.

#1 Nebraska and Oklahoma Sue Colorado Over Marijuana Legalization

Colorado voted to legalize recreational marijuana in 2012, and officially started selling it in the beginning of this year. Now, almost a year later, Colorado is experiencing some backlash for its choice to legalize. Two of Colorado’s neighbors–Nebraska and Oklahoma–are suing the state because of the impact of legal marijuana within their borders. Read the full article here.

#2 Five Parodies to Get You Through Serial Withdrawal

Serial‘s first season has ended and if you’re feeling a little separation anxiety, here are the top five parodies to help fill that void. The list includes selections from Saturday Night Live, Funny or Die, SubmissionsOnlyTV, and even a few parodies with multiple episodes. Read the full article here.

#3 Holiday Gift Guide: How to Authenticate a Designer Handbag

It’s almost 2015 and there is now a plethora of consignment sites to get your second-hand designer goods. But as great as sites like Ebay, Amazon, and the new Alibaba are, sometimes sellers aren’t always honest when they claim their items are authentic. So to make sure that you don’t get duped (like my poor brother did when he ordered those fake Nikes from China) I’ve put together a handy guide on how to spot a fake. Read the full article 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.

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 2014 midterm elections weren’t the only reason to pay attention to political news this year. Keep scrolling to check Law Street’s top 10 political stories of 2014.

1. BridgeGate: 7 Reasons to Watch the Chris Christie Scandal

This winter, revelations about Governor Chris Christie’s involvement in the shutting down of the George Washington Bridge came to light. The whole scandal raised a lot of questions about Christie’s ability to be a contender on the national stage, quite possibly as the 2016 Republican Presidential nominee. Whether or not Christie chooses to run, there will be a lot of eyes on his handling of “Bridgegate.”

2. Marijuana Legalization: Let’s Be Blunt