• March 26, 2015
    Guest Post

    by Sarah Hunger and Meredith Kincaid, Associates at Jones Day.  Jones Day represents The National Association of Black Veterans, Swords to Plowshares, Veterans Defense Project, and The Constitution Project in an amicus brief that the authors filed in support of Mr. Lockhart.  Mr. Lockhart is represented by Equal Justice Initiative.

    In 2010, an Alabama jury voted unanimously to spare the life of Courtney Lockhart, an Iraq war veteran facing the death penalty for a murder he committed while suffering from combat-related mental health issues.  Several months later, and upon consideration of evidence never shown to the jury, the elected judge overseeing Mr. Lockhart’s case sentenced him to death.

    In Alabama, the jury’s role at capital sentencing is merely advisory, and the imposition of the death penalty hinges upon specific, written findings of fact made by elected judges.  Under this regime, Alabama courts are empowered to make these factual findings “based upon information known only to the trial court and not to the jury.”  Adhering to this doctrine, Mr. Lockhart’s sentencing judge overrode the jury’s unanimous recommendation of life based upon information never presented to the jury, including evidence deemed inadmissible in a suppression hearing.

    In January, Mr. Lockhart filed a petition for certiorari to the Supreme Court arguing that his death sentence, as well as the Alabama regime that authorizes it, violates the Sixth and Eighth Amendments.  The Supreme Court’s review of this important and recurring issue is long overdue.  In the past decade, at least 28% of death row inmates in Alabama were sentenced via judicial override, and more than 100 inmates now sit on death row because of its use.  Nevertheless, the Supreme Court has not reviewed Alabama’s death penalty regime since 1995, well before it announced in Apprendi that the Sixth Amendment precludes judges from making findings that authorize an increase in the maximum punishment.

    Most notably, as Mr. Lockhart and amici assert, judicial override as practiced in Alabama deprives defendants of their Sixth Amendment right to trial by jury by making the heightened punishment of death dependent upon judicially found facts.  This means, in other words, that Alabama defendants are not eligible for the death penalty until the trial judge makes sufficient findings of fact to support it – a remarkably clear-cut Apprendi violation.  Alabama’s death penalty regime, which gives judges the unilateral power to impose death sentences on individuals that juries have voted to spare, should no longer go unchecked.  The Court should grant Mr. Lockhart’s pending petition.

  • March 26, 2015

    by Caroline Cox

    In The Atlantic, Joe Pinsker examines the implications of the Supreme Court’s ruling in Young v. UPS.

    At the National Partnership for Women & FamiliesJudith L. Lichtman provides a statement on the Supreme Court’s ruling in Young v. UPS, calling it “good news” for pregnant workers.

    John Eligon writes in The New York Times about a clash between the judicial and legislative branches in Kansas as the state debates a school financing plan.

    Josh Gerstein of Politico writes that a federal appeals court has set arguments on the question of whether to stay the order blocking President Obama’s executive action on immigration.

    The Editorial Board of the Los Angeles Times argues that a recent ruling from the U.S. Court of Appeals for the Ninth Circuit was wrong in saying that Seattle’s transit agency could bar ads related to the Arab-Israeli conflict.

    Jenna Portnoy reports in The Washington Post that a federal appeals court will hear a challenge to the Maryland’s 2013 ban on assault weapons.

  • March 25, 2015

    by Caroline Cox

    Rebecca Leber writes at the New Republic that the Supreme Court could allow the EPA to save thousands of lives in Michigan v. EPA.

    At Slate, Dahlia Lithwick argues that the Supreme Court should never have granted cert. for the EPA case in the first place.

    In Bloomberg View, Noah Feldman discusses the complicated free speech question of the Supreme Court case that considers whether Texas can exclude a specialty license plate featuring the Confederate battle flag.

    Leslie Gielow Jacobs also takes a look at Walker v. Texas Sons of Confederate Veterans at Hamilton and Griffin on Rights and considers what to expect from the case.

    A new study from the Consumer Financial Protection Bureau has found that forced arbitration may harm consumers. 

  • March 24, 2015

    by Caroline Cox

    At Election Law Blog, Rick Hansen argues that the Supreme Court’s refusal to hear the Wisconsin voter ID case this term is a blessing in disguise.

    Lisa Garcia writes in the Los Angeles Times that the Supreme Court should uphold the EPA’s ability to regulate the coal industry and protect public health.

    Conor Lynch argues at Salon that the Supreme Court has gone too far with corporate personhood and religious exemptions.

    In The Wall Street Journal, Jess Bravin provides an overview of the oral arguments for the Supreme Court case about whether Texas must allow specialty license plates that feature a Confederate flag.

    Conor Friedersdorf profiles in The Atlantic a prosecutor responsible for sending an innocent man to death row who now disavows the death penalty.

    The Editorial Board of The Wall Street Journal writes that the GOP’s desire to fight President Obama is a significant source of delays on the confirmation of Loretta Lynch.

    In Politico, Josh Gerstein reports that while Republicans are stalling on the attorney general nomination, Sally Yates, the nominee for deputy attorney general, has gained bipartisan support.

  • March 23, 2015
    Guest Post

    by Suja A. Thomas, Professor of Law at the University of Illinois College of Law; author of The Other Branch: Restoring the Jury’s Role in the American Constitution (forthcoming Cambridge University Press).  This post is based on her essay, Text-Bound Originalism (and Why Originalism Does Not Strictly Govern Same Sex Marriage).

    Many assume originalism has an important place in the debate about whether states can prohibit same sex marriage.  As the argument goes, the original public meaning of the Equal Protection Clause was the protection of African-Americans, so there is no constitutional barrier to states' prohibition of same sex marriage.  In deciding that states could prohibit same sex marriage, a panel of the U.S. Court of Appeals for the Sixth Circuit recognized the relevance of this originalist interpretation of the Equal Protection Clause along with other arguments for permitting the prohibition of same sex marriage—all of which the Supreme Court will soon consider.

    But does originalism have a significant place in the interpretation of the Equal Protection Clause and thus in the same sex marriage decision?  Those advocating the use of originalism believe that originalism must strictly govern the interpretation of the Constitution.  Thus far in arguing for this originalist methodology, however, they have not acknowledged that the text of the Constitution explicitly requires the application of originalism for the interpretation of one provision in the Constitution—the Seventh Amendment.  In ignoring this textual inclusion of originalism and corresponding textual exclusion of originalism elsewhere, originalists have not shown why originalism should strictly govern other parts of the Constitution.