June 2010

  • June 21, 2010
    Newark Mayor Cory Booker, during the final event at the 2010 ACS National Convention, gave a passionate, personal call for all Americans to do something to advance equality, making the nation a more caring one.

    America is a great nation that has seen many dispiriting and disastrous periods, but we should all strive to create a fairer and more just country for all individuals, Booker said.

    He described the struggle of his parents in the late 1960s to purchase a home in New Jersey. Realtors attempted to block the family's efforts, arguing that allowing an African American family to move into a New Jersey neighborhood would destroy the place. His family, with the help of young activist lawyers, was eventually able to move into the New Jersey town. "As our father affectionately called us, the four raisins in a tub of vanilla ice cream," Booker noted.

    "And this is how I grew up - in an affluent, at that time, all white town in northern New Jersey," Booker said. "And I sat around a table where pictures of Thurgood Marshall were apparent in my house. Where the poetry of Langston Hughes filled my ears as bedtime stories, where busts of presidents like John F. Kennedy sat there watching me eat my eggs in the morning.

    "But yet my parents made it very clear to my brother and me every single day - you did not get here on your own," Booker continued. "'All the privilege that you have young man was paid for by someone else, you drink deeply from wells of freedom and liberty that you did not dig. You eat lavishly from banquet tables that were prepared for you by your ancestors. You have an obligation; you have a burden - a righteous, glorious burden, because this nation is not finished. We have so much work to do. So this was the charge of my brothers and my life.'"

    Mayor Booker said that the more he ventured out into the world, the more he realized his parents were right.

    "That we were living in a world that has come so far, but yet is still is so short of what we say to our kids - like a chorus to our conscience in schools from east to west - stand up and declare that we are one nation .... " He continued, "But that we are one nation under God, indivisible, with liberty and justice for all -- for all. But I could take you to classrooms no less than five miles apart and you could see that is just not true yet."

    Booker urged the gathering of law students, lawyers, activists, academics and others in the grand ballroom of Washington's Renaissance Mayflower Hotel, to not lose hope and to strive to achieve equality for all.

    Watch Booker's entire speech below.

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  • June 21, 2010
    The Supreme Court, voting 6-3, upheld a federal law that bars "material support" of groups the government deems are terrorist organizations.  The Associated Press reports that the majority opinion, written by Chief Justice John Roberts, finds that the government "may prohibit all forms for aid to designated terrorist groups, even if the support consists of training and advice about entirely peaceful and legal activities." Roberts, joined by Justices John Paul Stevens, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, wrote that the "material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute in the future." In Holder v. Humanitarian Law Project a group of individuals and nonprofit organizations, including the Los Angeles-based Humanitarian Law Project challenged the constitutionality of the material support provision. The groups sought to provide financial support and legal and political training to the Kurdistan Workers' Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE). Both of those groups had been designated by the State Department as foreign terrorist organizations. Roberts wrote that the government "has presented evidence that both groups have also committed numerous terrorist attacks, some of which have harmed American citizens."

    The groups and individuals who wanted to provide financial support and training for peaceful political purposes to the PKK and LTTE argued that the material support law violated their free speech rights and association rights, and that the law is unconstitutionally vague.

    Justice Stephen Breyer lodged a dissent joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Breyer read his dissent from the bench.

    Breyer wrote, "The plaintiffs, all United States citizens or associations, now seek an injunction and declaration providing that, without violating the statute, they can (1) ‘train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes'; (2) ‘engage in political advocacy on behalf of Kurds who live in Turkey'; (3) ‘teach PKK members how to petition various representative bodies such as the United Nations for relief'; and (4) ‘engage in political advocacy on behalf of Tamils who live in Sri Lanka.'"

    "All these actions," Breyer continued, "are of a kind that the First Amendment ordinarily protects."

    He continued, "In my view, the Government has not made the strong showing necessary to justify under the First Amendment the criminal prosecution of those who engage in these activities. All the activities involve the communication and advocacy of political ideas and lawful means of achieving political ends. Even the subjects the plaintiffs wish to teach - using international law to resolve disputes peacefully or petitioning the United Nations, for instance - concern political speech."

    The opinion (pdf) is available here.

    During the 2010 ACS National Convention, expert panelists examined the material support law and its constitutional implications. Video of that panel, "Material Support Provisions and the First Amendment," is available here.

    The high court issued three other opinions today. For coverage of those opinions and other court action, see SCOTUSblog here.

  • June 20, 2010

    The conservative wing of the Supreme Court has actively, and successfully, overturned and narrowed laws meant to protect workers' rights, minority voting rights, access to courts, as well as taking and construing cases to advance corporate interests, maintained several panelists at the final plenary panel of the 2010 ACS National Convention.

    Moderator Linda Greenhouse, a senior research scholar at Yale Law School and former Supreme Court correspondent for The New York Times, asked constitutional law expert Pamela S. Karlan to explain the judiciary's role among the three branches of federal government.

    Karlan, a Stanford Law School professor, said, "The Constitution is written in very broad language about very broad principles that were intended to endure for a long period of time and to be applicable to a nation that the framers knew would emerge, but they didn't know in what form. That's why the most important parts of the Constitution are written in broad and sweeping language."

    But at the second framing of the Reconstruction Amendments - the 13th, 14th and 15th Amendments - the framers gave "Congress special power to enforce by appropriate legislation the guarantees that go into the rights of citizenship, the guarantees of the privileges or immunities clause, the equal protection clause, and the due process clause," Karlan said. "And they gave Congress that power in part because they distrusted the Supreme Court. I mean today the Supreme Court is living off of the fumes of Brown against Board of Education, that's why it has such power in our country."

    But, at the middle of Reconstruction, the high court, Karlan noted was "living off the fumes of Dred Scott." She said, "the Supreme Court was not the place you went to get equality, you went to the legislature."

    "So the Constitution's broad sweeping powers are given their real-life meaning by Congress. If you ask where did we get equality, it's from the Civil Rights Act of 1964. If you ask ‘how is that the 15th Amendment actually enfranchised African Americans?' More African Americans were enfranchised in the first two years after the passage of the Voting Rights Act of 1965 than in the entire prior century through judicial enforcement alone. And that's because Congress banned literacy tests [for voting] when the Supreme Court wouldn't. Congress gave people the right to register, when the Courts didn't."

    Karlan noted that it is just as important, if not more so, to confirm lower court judges who understand the role of the judiciary, the Constitution and are taking appropriate action. As she noted, it is not useful to pass health care reform law only to then have it hobbled by conservative jurists or to pass environmental regulations that are subsequently gutted by similar judges.

    Karlan co-authored a book published by ACS called Keeping Faith with the Constitution, which takes a critical look at the cramped constitutional interpretation promoted by many conservative jurists and lays out an alternative one that promotes fidelity to the Constitution. 

    Congressman Jerrold Nadler (D-N.Y.) knocked the Roberts Court for its "campaign to shut the door on litigants." I've introduced a bill, Nadler said, to try to restore the pleading standards, but the business community and its lobbyists, such as the Chamber of Commerce, are targeting the bill, the Open Access to Courts Act. "I don't know if we can bring that to a vote this year or not," he said.

    Nadler continued, that the Roberts Court, contrary to Chief Judge Roberts' confirmation testimony, "has been a very activist court."

    Someone suggested a few years ago that maybe we start inserting into our legislation the words, "this time we mean it," Nadler added.

    John Payton, head of the NAACP Legal Defense and Educational Fund, Inc., said that Congress should take action to "shore up the Voting Rights Act," in light of the high court's recent 5-4 ruling that suggested the conservative wing, led by Chief Justice John Roberts' was seeking the necessary fifth vote to gut Sec. 5 of the Voting Rights Act, which requires a number of states and localities with a history of voting discrimination to get federal preclearance before making any change to voting practices or procedures. But, Payton said he didn't believe there was a "chance that Congress could take any action on the Voting Rights or any other major piece of Civil Rights legislation in this poisoned atmosphere."

    Video of the Congress and the Courts plenary:

  • June 18, 2010

    Helping to kick off the 2010 ACS National Convention, Sen. Al Franken criticized Republican efforts to scuttle the Obama administration's nominations to the federal courts and numerous administration positions. 

  • June 17, 2010

    Dawn Johnsen, President Obama's initial nominee to head the Office of Legal Counsel (OLC) provided a ringing call for young lawyers and other advocates of progressive values to stay to true to their principles and not fear speaking out on behalf of them for fear of losing potential political rewards.