• February 11, 2016

    by Nanya Springer 

    The Editorial Board of The New York Times reflects on the U.S. Supreme Court’s unprecedented decision to stay the Clean Power Plan before review by a lower trial court, opining that the move reinforces the commonly-held belief that the Court is “knee-deep in the partisan politics it claims to stand above.”

    In The Nation, Tracey Ross and Danyelle Solomon write that the water contamination crisis in Flint, Mich., is only one incident in a long history of environmental racism in the United States.

    Matt Ford at The Atlantic reports that the U.S. Department of Justice filed a lawsuit Wednesday against Ferguson, Mo., after the Ferguson City Council reneged on settlement that would have substantially reformed the way police operate there.

    At Race and the Law Prof Blog, Neil Gotanda discusses U.S. v. Cruikshank, which he says established a foundational principle that “armed Black resistance will be met with overwhelming military force.”

  • February 10, 2016
    Guest Post

    by Patrick Parenteau, professor of law, Vermont Law School  

    In a move that stunned even the most seasoned court watchers, the conservative majority of the U.S. Supreme Court has blocked the Environmental Protection Agency’s Clean Power Plan, which seeks to reduce carbon pollution from coal-fired power plants. The unsigned order, without any explanation, puts a hold on the rule pending the outcome of proceedings currently underway in the D.C. Circuit, which had earlier denied a stay. Justices Ginsburg, Breyer, Kagan and Sotomayor voted against the stay.

    This action is unprecedented in a number of ways. The majority made none of the findings typically required to obtain a stay. There is no analysis of the merits of any of petitioners’ claims. There is no showing that the rule threatens any immediate harm to petitioners, especially given the long lead times EPA has built into the process. There is no showing that the balance of hardships tips decidedly in favor of the petitioners, especially given the fact that most states are well into the process of developing implementation plans and those that do not want to submit a plan don’t have to. There is no showing that the stay is in the public interest, especially given the warnings from the scientific community that time is fast running out to avoid catastrophic consequences of climate disruption. Never before has the Court interjected itself in a case with such high stakes that hasn’t even been fully briefed and argued before the lower court.

    Some have speculated that the majority may be reacting to what happened last term in Michigan v. EPA (the mercury rule case). By the time the case got to the Court, over two years had passed and 80 percent of the industry had already complied with it. Thus, when the Court found a flaw in EPA’s cost analysis, it was faced with a fait accompli which no doubt irked the conservatives. But it would be a sad comment on the Court’s integrity if the decision to issue a stay was motivated by pique or distrust of the agency.

  • February 10, 2016

    by Jim Thompson

    In an unprecedented move, the Supreme Court on Tuesday temporarily blocked the president’s Clean Power Plan before review by a federal appeals court, report Adam Liptak and Coral Davenport at The New York Times.

    At Time, Benjamin Crump, president of the National Bar Association, calls for the criminal prosecution of Michigan Gov. Rick Snyder (R) and other officials responsible for supplying the city of Flint with contaminated water.

    On Tuesday, the Maryland General Assembly overrode a veto from Gov. Larry Hogan (R) and re-enfranchised over 40,000 formerly-incarcerated individuals, says Zachary Roth at MSNBC.

    In Newsweek, Andrew Hamm discusses new research showing a correlation between the political ideologies of Supreme Court justices and their birth order. According to the study, “a justice who was a first or only child is more likely than other justices to hold conservative political ideologies and is less willing to strike down legislation, even when disagreeing with the law.”

  • February 9, 2016
    Guest Post

    by Ekow N. Yankah, Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University

    *This post is part of ACSBlog's Symposium Recognizing Black History Month.

    The core values of ACS, by my lights, can be captured in our commitment to both equality under the law and equality through the law. Indeed, many of our most progressive values do not require complex justification. They only require us to think truthfully about how we would structure the law when its weight is borne by those we care about the most. To that end, I hope to provoke real reflection on the way our drug policies are shaped by how much we care about those in the grip of addiction.

    Please read my op-ed in The New York Times, titled "When Addiction Has a White Face."


  • February 9, 2016
    Video Interview

    by Nanya Springer

    Last June in Obergefell v. Hodges, the U.S. Supreme Court issued a landmark ruling granting marriage equality to LGBT couples nationwide. Last week, the named plaintiff in the case, Jim Obergefell, spoke to the Indiana University Maurer School of Law Student Chapter about his status as a civil rights icon and how he unwittingly became the modern face of the fight for LGBT rights.

    Obergefell, before a packed auditorium, recounted the events that spurred him to file a federal lawsuit to force the state of Ohio to recognize his marriage to his ailing longtime partner John Arthur. The couple had decided to marry after the U.S. Supreme Court ruled in United States v. Windsor that the federal government must recognize same-sex marriages performed in states where such unions were legal. Obergefell told the audience he proposed to Arthur because “that was the first time in our almost 21 years together that suddenly at least one level of our government would say, ‘You exist. We acknowledge you. Your relationship matters.’” The couple famously flew to BWI Thurgood Marshall Airport in Maryland, where same-sex marriage was already legal, and tied the knot on the tarmac in a brief ceremony before immediately flying back to Ohio.

    When asked by moderator Steve Sanders, co-counsel on a brief in favor of the Obergefell plaintiffs, whether he foresaw a legal battle for recognition of the marriage in his home state, Obergefell replied, “When we decided to marry, we made that decision solely to get married. We had no plans to do anything else. We simply wanted to live out John’s remaining days as husband and husband.” As the case gained national attention, however, Obergefell realized the case was “a lot bigger than just us.” Nevertheless, following Arthur’s death mere months after their marriage, Obergefell quit his job and spent a year traveling and “running away from life” before reengaging in the movement for LGBT equality.

    Consistently humble, Obergefell expressed some guilt about his designation as the lead plaintiff, which was due to the low number of his federal case, and his resulting celebrity. “I felt guilty. I really did, because it isn’t just me. It’s my name and my face that’s out there so much, but I’m not the only one. . . . There are thirty-some plaintiffs in our case,” he said. After the blockbuster decision, though, his attention was refocused on the gravity of the plaintiffs’ achievement. “Wow. We really do matter,” he remembered thinking. He added, “I have the utmost respect for [the legal] profession and the court system.”

    Watch the full conversation below.