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February 2010

February 3, 2010
Expert Blasts High Court's Jurisprudence on Race
Largely premised on the unanimous Brown v. Board of Education decision, which galvanized the civil rights movement, the U.S. Supreme Court's reputation for protecting minorities' rights is not often challenged. But, according to Harvard Law Professor Michael Klarman, that conventional wisdom is a myth.

In "Has the Supreme Court Been Mainly a Friend or a Foe to African Americans?" at SCOTUSblog, Klarman argues that, over the course of its history, the Court has repeatedly proven to be "regressive force on racial issues."

By way of example, Klarman observes:

Before the Civil War, the Court sustained the constitutionality of federal fugitive slave laws, invalidated the laws of northern states that were designed to protect free blacks from kidnapping by slavecatchers, voided Congress's effort to restrict the spread of slavery into federal territories, and denied that even free blacks possessed any rights "which the white man was bound to respect." After the Civil War, the Court freed the perpetrators of white-on-black lynchings and racial massacres, and it invalidated a federal law designed to secure blacks equal access to public accommodations. Well into the twentieth century, the Court sustained the constitutionality of state-mandated racial segregation and various southern state measures for disenfranchising African Americans.
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Civil rights, Death penalty, Supreme Court, Criminal Justice, Equality and Liberty, Brown v. Board of Education, Michael Klarman
February 3, 2010
Professor Heather Gerken Urges Congressional Response to Citizens United
The Senate Committee on Rules & Administration considered ways to counter the Supreme Court's Jan. 21 decision that limited Congress' ability to regulate corporate campaign spending. During yesterday's hearing, called "Corporate America vs. The Voter," Yale Law School professor Heather Gerken testified that the Supreme Court "has gradually dismantled key campaign-finance provisions that were designed to protect our democratic system from the damaging effects of money and undue influence." Gerken, a frequent ACS participant, told the Senate Committee that even after the high court's decision in Citizens United v. FEC, there remained avenues "for congressional action." Professor Gerken urged new legislation to "strengthen disclaimer and disclosure rules for corporations' independent expenditures," for regulation to "ensure that shareholders exert meaningful control over corporate spending," and for Congress to "take steps to protect U.S. elections from foreign influence." Gerken's prepared testimony is available here.

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Campaign finance, Constitutional Interpretation and Change, Democracy and Voting, Citizens United v. FEC
February 2, 2010
Top Military Officials Say Time to End ‘Don’t Ask, Don’t Tell’
Defense Secretary Robert Gates and Adm. Mike Mullen, the chairman of the Joint Chief of Staff, told the Senate Armed Services Committee that "Don't Ask, Don't Tell," the ban on openly gay service members, should be repealed.
"Last week, during the State of the Union address, the President announced that he will work with Congress this year to repeal the law known as ‘Don't Ask Don't Tell,'" Gates said in prepared testimony. "He subsequently directed the Department of Defense to begin preparations necessary for a repeal of the current law and policy.

"I fully support the President's decisions," Gates continued. "The question is not whether the military prepares to make this change, but how we best prepare for it. We have received our orders from the Commander in Chief and we are moving out accordingly. However, we also can only take this process so far as the ultimate decision rests with you, the Congress."

Adm. Mullen said, "No matter how I look at the issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens," The New York Times reported.

Mullen added that "allowing gays and lesbians to serve openly would be the right thing to do."

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LGBT issues, Equality and Liberty, Adm. Mullen, Armed Services Committee, Don't Ask Don't Tell, Secretary Gates
February 2, 2010
State Secrets, Torture Case Appealed to High Court
Maher Arar is appealing his torture suit to the U.S. Supreme Court, presenting the justices an opportunity to review the controversial "state secrets" privilege asserted by the Bush and Obama administrations. Arar's suit against the United States government stems from his 2002 arrest in New York and transfer to Syria for alleged ties to terrorism. At a prison in Syria, Arar alleges, he was tortured, interrogated and detained for almost a year.

Arar (pictured at right) is a Canadian citizen who successfully sued his government for its role in misinforming the United States about his ties to terrorism. In lower courts here, though, Arar has been rebuffed. The government's assertion of the "state secrets" privilege has barred Arar from presenting evidence necessary to the advancement of his suit.
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Access to Justice, Executive power, Supreme Court, Other courts, Rights of detainees, Separation of Powers and Federalism, Amanda Frost, Arar v. Ashcroft, Center for Constitutional Rights, David Col, Devon Chaffee, Extraordinary Rendition, Maher Arar
February 2, 2010
Third Circuit Opens Gate to Executions in Del.
Delaware will resume executions for the first time since 2005, after yesterday's decision by the U.S. Court of Appeals for the Third Circuit.

The unanimous, 47-page opinion stated:

This appeal, brought by a class of inmates sentenced to death by the State of Delaware, presents two main questions for our review. First, we must decide how to interpret the Supreme Court's highly splintered opinion in Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520 (2008), which upheld Kentucky's lethal injection protocol against a challenge under the Eighth Amendment of the Constitution. The second question, whose resolution is largely dependent on the outcome of the first, is whether the lethal injection method employed by Delaware violates the Eighth Amendment. We conclude that, under Baze, an execution protocol that does not present a substantial risk of serious harm passes constitutional muster and that, based on the record before us, Delaware's protocol presents no such risk. Accordingly, we will affirm the District Court's grant of summary judgment for Delaware and dissolve the District Court's stay. [Link added.]

Despite endorsing the state's position, the three-judge panel warned Delaware about its "occasional blitheness" regarding its application of the three-drug protocal used by approximately three dozen states. Without finding qualms rising to the constitutional level, the court did advise Delaware of its "moral obligation to carry out executions with the degree of seriousness and respect that the state-administered termination of human life demands."

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Death penalty, Supreme Court, Other courts, Criminal Justice, Beau Biden, Delaware, Eighth Amendment, Lethal Injection, Third Circuit, Three-Drug Cocktail