April 2011

  • April 12, 2011

    The Supreme Court’s conservative wing appears bent on redefining politics by ensuring the wealthiest candidates are not hindered in their never-ending quest for political power. In its editorial, “Unfettered Money,” The New York Times notes that the conservative justices who invalidated major campaign finance regulations in Citizens United v. FEC appear united in their belief that money literally equals speech, and therefore campaign finance regulations are highly susceptible to being invalidated as unconstitutional restrictions on political speech.

    Noting recent oral argument in a case challenging Arizona’s public campaign financing law, the editorial notes that the conservative bloc appears eager to invalidate it. The law provides public funding to candidates who agree to participate in the public financing system. The opponents of the law argue that Arizona is trying to undercut the speech of wealthy candidates, and during oral argument, The Times notes, Chief Justice John Roberts Jr. agreed with that proposition.

    The Times concludes:

    That makes no sense. Arizona’s mechanism means more candidates – not just the wealthy – will be able to run in elections. And that means more political speech, not less. But that view depends on seeing money as enabling speech, not vice versa. Money already has far too much sway everywhere in politics. If the court continues this way, the damage and corruption will be enormous.

    In a guest post for ACSblog, Rick Hasen, an election law expert and founder of Election Law Blog, wrote that an opinion invalidating Arizona’s law “is likely to take away one of the only tools available to drafters of public financing measures to make such financing attractive to candidates. Public financing has a number of benefits, including reducing the threat of corruption and the appearance of corruption, providing a jump start for new candidates who are not professional politicians, and freeing up candidates and officeholders to have more time to interact with voters.” 

  • April 12, 2011
    Guest Post

    By Leslie C. Griffin, author of Law and Religion: Cases and Materials, and Ronald Turner, co-author of Employment Discrimination Law: Cases and Materials. Both authors are professors of constitutional law at the University of Houston Law Center.


    The Supreme Court recently granted cert. in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, an important employment case that implicates the Free Exercise Clause. Cheryl Perich was an elementary school teacher at Hosanna-Tabor Evangelical Lutheran School. Perich took a disability leave of absence from teaching after a diagnosis of narcolepsy. When her doctor cleared her to return to work, school officials refused to readmit her; without any medical evidence, they doubted her fitness to return to the classroom. Perich was fired after threatening to sue for disability discrimination, and filed a lawsuit for retaliation under the Americans with Disabilities Act.

    In another case with a cert. petition before the Court, a different elementary school teacher, Madeline Weishuhn of St. Mary Catholic School, was fired after she reported a student’s allegations of sexual abuse to the police without notifying the school’s principal. Weishuhn sued for retaliatory termination under Michigan’s Whistleblowers Protection Act.

    The legal issue is whether these two women and similar employees of religious organizations throughout the country will have their day in court. The full and fair enforcement of the employment laws is at stake in the Court’s ultimate decision.

    The courts have denied the protection of the employment laws to religious employees for almost 40 years. The legal justification is the so-called “ministerial exception,” a court-crafted rule that bars the courts from resolving employment disputes involving “ministers.” The antidiscrimination statutes authorize lawsuits against religious employers and do not exempt them from liability. Instead of resolving on the merits statutory claims of retaliation; disability, age, race or gender discrimination; and equal pay violations, the courts dismiss the cases on the grounds that the First Amendment does not even allow them to hear the cases because they may not intrude upon religion.

  • April 11, 2011

    A federal appeals court today upheld a decision to block key provisions of the controversial Arizona immigration law, The Washington Post reports.

    The U.S. Court of Appeals for the Ninth Circuit held, in a 2-1 decision, that U.S. District Judge Susan R. Bolton did not abuse her discretion in ”blocking parts of that law that would, among other things, require police to check immigration status if they stop someone while enforcing other laws,” according to The Post.

    Read more about the decision here. The ruling is available here.

  • April 11, 2011
    Guest Post

    By John Hollway, co-author of a book about John Thompson, Killing Time: An 18-Year Odyssey from Death Row to Freedom.


    While we as a nation have been focused on the economy, the Middle East, and the tragedy in Japan, a majority of the Supreme Court has been busy limiting the ability of Americans to hold elected officials – specifically, District Attorneys’ offices - accountable for repeated and blatant prosecutorial misconduct that results in the unjust imprisonment of innocent men and women.  The case in question is Connick v. Thompson, a case decided 5-4 late last month.

    Absolute immunity has long been the law of the land for individual prosecutors who are acting in their core prosecutorial function. This makes sense; a prosecutor who is honestly and morally pressing criminal charges against someone he or she truly believes is guilty based on the evidence should not have to worry about a retaliatory lawsuit if they fail to get a guilty verdict.

    The vast majority of prosecutions fall into the “honest and moral” category. Such conscientious self-policing was often not the case, however, in the District Attorney’s Office in Orleans Parish, La., run for almost 30 years by District Attorney Harry Connick, Sr. A disturbing number of convictions secured by Connick’s lawyers have been reversed due to the failure of his prosecutors to provide exculpatory evidence to defense lawyers as required by the Constitution and the 1962 Supreme Court case of Brady v. Maryland.  (Four published opinions cite Brady violations on Connick’s watch between 1974 and 1988, an astonishing number when one considers how rarely judges embarrass prosecutors in writing.)  And revelations of additional cases from the 1980s continue to surface today.

    This leads us to John Thompson – arrested in 1985 at age 22 and charged with murder and an unrelated armed robbery. He was convicted of both crimes and sentenced to death. In 1999, with his appeals exhausted and only weeks before his execution, his lawyers unearthed a blood test, conducted by Assistant DAs before his trials but never disclosed to the defense. The blood test proved Thompson’s innocence in the armed robbery; subsequent investigation revealed a number of material witnesses to the murder known to prosecutors and never disclosed to the defense. Thompson secured a retrial in 2003, and was rapidly acquitted. He was released in 2003 after 18 years of unjust imprisonment, 14 of them on Death Row.

    How did this happen?

  • April 11, 2011

    Shareholders of Home Depot will likely have more influence in the company’s political expenditures, reports Ciara Torres-Spelliscy for the Brennan Center for Justice.

    Torres-Spelliscy notes a recent no-action letter from the SEC that she says “will enhance the ability of shareholders to have more of a voice when publicly-traded corporations spend money on politics.”

    The SEC letter was prompted after Home Depot “tried to keep a shareholder resolution on corporate political spending off of this year’s proxy statement,” Torres-Spelliscy wrote. “The SEC said the shareholders would get a chance to vote on the matter. This action provides shareholders with greater protections when corporations spend their money, in the form of general corporate funds, on politics.”

    The SEC’s action according to Torres-Spelliscy means that the shareholders have the opportunity on “company-by-company basis” to take action the planned political spending. “This is a big step,” she writes, “in the right direction for giving shareholders more protections after Citizens United allowed corporations the ability to spend other people’s money in politics.”