Remember, back in junior high school, when you read that classic of American literature, “The Lottery” by Shirley Jackson? In the story, a small town ritualistically draws straws each summer to see who among them will be stoned to death, to ensure a good harvest later that fall. (Goes the local proverb, “lottery in June, corn be heavy soon!”) As the lottery begins, the townspeople gather in the public square and begin to collect rocks. The head of each family draws a slip of paper from the box, hoping not to see an inky black dot. The family that draws the black dot advances to the next round, in which one member is selected for sacrifice the same way. Tessie Hutchinson, a wife and mother of young children, draws the condemning dot, and the story ends as the terrified woman is stoned by her neighbors while she frantically protests.
Now, looking around your own world, does any of this seem familiar? Thankfully not, you are probably thinking – but if we’re really being honest, it should. On the anniversary of the soul-wrenching Newtown shootings, it’s time to concede that we, too, are participants in a lottery of our own making – one so horrifying that we mostly choose not to see it. But let’s face the grim reality. We are all living in that same nightmare town, where innocents are mindlessly sacrificed in service to ideals that don’t require this kind of sacrifice. When it comes to gun violence in America, we play the nightmare lottery every time we send our children off to school, each time we visit a public place, walk the streets, and in some cases, live in our homes.
A year ago this week, twenty-six first graders and their teachers were gunned down at the Sandy Hook elementary school in Newtown, Conn. Only days earlier, two people were killed and ten thousand terrorized by a gunman at a mall in Clackamas, Ore., where I live. A few months before that, a man walked into an Aurora, Colo., movie theater and opened fire on hundreds of people, shooting eighty-two and killing twelve. Just last week, hundreds of terrified teens were led out of a suburban Denver high school with hands on their heads after a fellow student shot two classmates and then killed himself while seeking revenge on a teacher. The mass shootings are particularly wrenching, but nearly 100 children under ten years old were killed by deliberate gunfire in 2012 alone, often by adults they knew.
Guttman heads Grant & Eisenhofer’s Washington, D.C. office and is also a member of the ACS Board of Directors. Guttman provides additional thoughts on the American justice system in an interview with ACSblog embedded below.
A few years back, a colleague from Beijing made his first journey to the United States to present a paper we wrote together for an academic conference in San Francisco. I frankly do not remember much about the paper or the conference – what I do remember is our lunch break. We took that time to walk over to San Francisco’s UC Hastings College of the Law Library. "What are all of these books?” my colleague asked me. I told him about the doctrine of stare decisis or adherence to precedent, how we publish judicial opinions, and the importance of those opinions to our common law tradition. He seemed a bit perplexed. I remembered that China has laws but no judicial precedent interpreting the laws or precedent establishing common law in the absence of statute.
It is, of course, such judicial precedent that creates expectations and obligations in our common law system. Guided by the doctrine of stare decisis, judicial authors including Learned Hand, Benjamin Cardozo, Roger Traynor, and others wrote opinions that used age-old logic to address the conflicts of their time. Their opinions did not change the law as much as they explained its application to newer problems. Writing an opinion, in some respects, is akin to a mathematician showing his work. The legal opinions essential to our common law tradition allow us to understand the answer, even if we do not agree with it. And, if the process leading to the answer is flawed, it is easier to spot the flaw and correct the result. Of course, through the doctrine of stare decisis, jurists make an art of reading the law and applying it to contemporary fact patterns. Emory Law Professor Frank Vandall’s book, A History of Civil Litigation: Political and Economic Perspectives (Oxford University Press: 2011), masterfully portrays the elegance of our common law tradition through a history of the evolution of products liability law.
To illustrate the importance of transparency, our next stop was the United States Federal Courthouse. "We have to make an appointment," my colleague told me, strongly hinting that we risked getting arrested. I told him that our court system is open for all to watch. Keeping the courts open, I explained, is integral to maintaining confidence in the results, even where people disagreed with the outcome. We visited the Clerk’s office where the person at the counter partially allayed my colleague's fears by saying, "Honey, you can look at any file you want." Next, we walked into a courtroom where there was a live trial. I vividly recall that convincing my colleague to enter the courtroom was about as difficult as giving our cat a bath.
“In my opinion, the Religious Freedom Restoration Act of 1993 (RFRA) is a ‘law respecting an establishment of religion’ that violates the First Amendment to the Constitution,” wrote Justice John Paul Stevens in City of Boerne v. Flores, the 1997 case that invalidated RFRA for state governments. RFRA still prohibits the federal government from “substantially burden[ing] a person’s exercise of religion.” Congress drafted RFRA to express its dissatisfaction with the Supreme Court’s important ruling in Employment Division v. Smith that all citizens must obey neutral laws. Smith rejected the argument that religious citizens are constitutionally entitled to disobey the law. In contrast, “RFRA establishes an across-the-board scheme that deliberately singles out religious practices, en masse, as a congressionally favored class of activity,” as Cardozo law professor Marci Hamilton argued in briefingBoerne.
Justice Stevens and Professor Hamilton were right. The most fundamental Establishment Clause rule is that the government may not prefer religion over irreligion or non-religion. RFRA, however, “privileges religion over all other expressions of conscience.” Unfortunately, in 1997 only Stevens and Hamilton recognized the establishment problems with RFRA, which continues to bind the federal government.
Those problems were confirmed by the Tenth Circuit’s decision in Hobby Lobby, which exempted the large arts and crafts chain store from the contraceptive mandate of the Affordable Care Act without mentioning the Establishment Clause. The mandate requires employee health care plans to contain preventive care coverage that includes FDA-approved contraceptive methods and sterilization procedures. Because Hobby Lobby’s Christian owners believe that contraception causes the death of a human embryo, they want to deny contraceptive insurance to their employees. The Tenth Circuit ruled that RFRA grants the employers that right.
In a potentially significant ruling, Judge Richard Leon of the U.S. District Court for the District of Columbia has found that the National Security Agency’s (NSA) bulk collection of phone metadata program likely violates the Fourth Amendment.
In Klayman et al. v. Obama et al., Plaintiffs Larry Klayman (founder of the conservative Judicial Watch and Freedom Watch) and Charles Strange (father of a Michael Strange, a slain Cryptologist Technician with Navy SEAL Team VI, who has been a vocal opponent of President Obama) allege, in part, that the NSA collection program violates the First, Fourth and Fifth Amendment of the U.S. Constitution. They sought a preliminary injunction that would prohibit the NSA from collecting the plaintiff’s call records under the existing collection program, require the destruction of all records already collected, and prohibit the “querying” of any metadata already collected.
Judge Leon has found that plaintiffs have standing to challenge the NSA’s program, regardless of whether the program was in accordance with the rulings of the Foreign Intelligence Surveillance Court (FISC), and that the plaintiffs have shown both “a substantial likelihood of success on the merits of their Fourth Amendment claim, and that they will suffer irreparable harm absent preliminary injunctive relief.” Therefore, Judge Leon granted, in part, plaintiff’s motion for a preliminary injunction; but recognizing the “significant national security interests at stake . . . and the novelty of the constitution issues” the injunction is stayed pending an appeal. Finding sufficient evidence to grant the preliminary injunction on Fourth Amendment grounds, Judge Leon did not address either the First or Fifth Amendment arguments.
In analyzing the Fourth Amendment question, Judge Leon notes that the scope and technological sophistication of the NSA program far surpasses any other governmental surveillance program previously examined by the judiciary. In 1979, the Supreme Court ruled in Smith v. United States that an individual had no legitimate expectation of privacy in the numbers they dialed on their phone, for they were voluntarily submitting them to the telephone company. Therefore, a pen register installed by the police without a warrant was not barred by the Fourth Amendment as it did not constitute a “search.”
At the beginning of the recent fall semester, Professor Russell Christopher asked the students in his Criminal Procedure class at the University of Tulsa College of Law to raise their hand if they had heard of Gideon. Out of the 40 second and third year students present, only two hands went up.
Clarence Earl Gideon, the man to which Professor Christopher was referring, was the Plaintiff in the 1963 landmark Supreme Court case Gideon v. Wainwright, which held that the Sixth Amendment’s guarantee of counsel applies to the states.
This year, Gideon celebrates its 50th anniversary. Law schools across the country have commemorated the case for both legal instruction and historical edification. This milestone, however, has also been met with a critical eye. Indeed, the real topic of study is not what Gideon was meant to accomplish, but whether it has succeeded.
In her new book, “Chasing Gideon: The Elusive Quest for Poor People’s Justice,” author Karen Houppert describes a crisis in our nation’s courts. Discussing her work with the ACS Student Chapter at Harvard Law School, Ms. Houppert explained that the war on drugs, mandatory minimum sentencing, tough-on-crime policies and pre-trial incarceration have overtaxed our public defense system. She described one defendant in Spokane, Washington who was acquitted of vehicular manslaughter in 2004 only after the public defender was able to obtain a delay in the trail so that he could fully investigate the case, something that would have been impossible without the delay due to the defender’s caseload. That same year, a twelve-year-old boy pled guilty to a class B felony having never had an independent interview with his public defender, who was handling 440 other cases.