January 2012

  • January 20, 2012

    By Nicole Flatow

    Opponents of the landmark Supreme Court ruling in Citizens United v. FEC gathered at courthouses around the country today to protest the decision around its two-year anniversary, many petitioning for a constitutional amendment to overturn the ruling.

    The Constitutional Accountability Center released an Issue Brief bolstering the case for a constitutional amendment. To “those who think an amendment overturning Citizens United is a pipedream,” the Issue Brief and an accompanying blog post by Constitutional Accountability Center President Doug Kendall offer the story of Pollock v. Farmers' Loan & Trust Co. and its invalidation through the ratification of the Sixteenth Amendment.

    “Throughout our history, the American people have amended the Constitution in order to undo Court rulings that misinterpreted the Constitution," Kendall writes. "In addition to the Sixteenth Amendment, the Eleventh, Fourteenth, and Twenty-Sixth amendments were all sparked, at least in part, by divided Supreme Court rulings. In these Amendments, the American people agreed that the dissenting opinions, not the majority, better articulated the meaning of the Constitution.”

    But not everyone agrees that a constitutional amendment is the best solution to curb the infiltration of money into politics.

    Roosevelt Institute Senior Fellow Mark Schmitt writes for The New Republic that, unlike other movements to amend, an amendment to overturn Citizens United would “retract rights rather than expand them.” Schmitt suggests that this movement instead focus its energies on rooting out corruption in election spending more generally. He writes:

  • January 20, 2012

    Three years into President Obama’s term, vacancies on the federal district courts have increased “starkly,” in contrast to the usual trend of presidents reducing the number of vacancies they’ve inherited, a new report by The Brookings Institution confirms. “The report shows that Obama has been slower to nominate trial judges, the Senate slower to confirm them, and at the same time a larger number of judges are retiring,” NPR reports.

    Eighteen months after her nomination to the U.S. Court of Appeals for the Seventh Circuit, University of Wisconsin law professor Victoria Nourse has asked that her name be withdrawn from consideration, The Milwaukee Journal Sentinel reports. In a letter to the president, she lamented the obstruction tactics that held up her nomination for more than a year, saying, “To quote Chief Justice Roberts, ‘the system is broken.’”

  • January 20, 2012
    Guest Post

    By Mary Schmid Mergler, senior counsel for The Constitution Project’s Criminal Justice Program. Mergler is the coauthor with Christopher Durocher of the recent ACS Issue Brief The ‘Right-to-Counsel Term.’"


    On Wednesday, the Supreme Court held in Maples v. Thomas that Alabama death row inmate Cory Maples was entitled to have his claims heard in federal court despite a previously missed filing deadline, because his counsel’s complete abandonment of him constituted grounds to excuse that missed filing. The Maples decision was a welcome one, as the triumph of fundamental fairness over procedure and technicalities in our criminal justice system has grown increasingly rare.

    Cory Maples was convicted of murdering two acquaintances after a night of drug and alcohol use. His two court-appointed defense attorneys were inexperienced and ineffective. Their entire defense lasted about an hour. They failed to argue Maples’ obvious intoxication defense, and they failed to produce mitigating evidence of severe abuse that Maples had suffered as a child — the sort of evidence that often prevents juries from issuing a death sentence. In fact, the jury voted 10-2 to sentence Maples to death; a 9-3 vote would have meant life in prison.

    Two lawyers from the New York law firm of Sullivan & Cromwell (S&C) agreed to represent Maples pro bono during his state post-conviction appeals, since Alabama — virtually alone among death penalty states — provides no post-conviction counsel for death row inmates. A state court denied Maples’ initial habeas petition, triggering a filing deadline to appeal. However, prior to that decision, both of his pro bono attorneys had left S&C without providing the required notice to the court or Maples of their departure. When the notice of the denial and impending deadline arrived at S&C, no lawyer ever looked at it; a mailroom employee returned it, unopened, to the Alabama court clerk stamped “Returned to Sender—Attempted, Unknown.” The Alabama court clerk took no further action to ensure Maples or his counsel received notice. (There was a third attorney of record in the case, but as the Court’s opinion explains, he was only involved as local counsel to admit the S&C attorneys to practice in Alabama courts; he was completely uninvolved in the substance of the case.)

    As a general rule, federal courts cannot consider claims of state prisoners in habeas proceedings when a state court has denied those claims based on independent and adequate state procedural grounds. So when Maples subsequently filed a federal habeas petition, the federal district court held that his failure to raise the claims in state court in a timely manner barred the federal court from considering them. Fortunately, an exception to this procedural bar exists if the petitioner can demonstrate “cause for the [procedural] default [in state court] and actual prejudice as a result of the alleged violation of federal law.” The Supreme Court’s opinion in Maples addressed the question of whether such “cause” existed in Maples’ case.

  • January 20, 2012

    By Nicole Flatow

    The U.S. Supreme Court issued its much-anticipated decision this morning on Texas’s redistricting plan.

    In a unanimous unsigned opinion, the court rejected election maps devised by a Texas federal district court, asking the lower court to give the map-drawing another try, this time using the original maps drawn by the Texas Legislature as a "starting point."

    As UC Irving Law professor Rick Hasen notes in very early commentary for Election Law Blog, the decision is a win for the Texas, “and will require the drawing of districts much more likely to favor Texas’s interim plan.” The alternative court-drawn map was the result of legal challenges alleging that the map discriminated against minorities.  

    Hasen breaks down the decision:

  • January 20, 2012
    Humor

    by John Schachter

    Stephen Colbert gave new meaning to “Justice delayed is justice denied” when he interviewed a surprisingly game former Supreme Court Justice John Paul Stevens. Colbert apparently didn’t realize (wink, wink) that Stevens had retired from the high court but reluctantly forges ahead with the interview nonetheless.

    The meat of the interview was a discussion of the court’s controversial Citizens United decision, coming up on its two-year anniversary. While Colbert insisted that corporations are exactly like people and deserving of all the same rights, Stevens parried quite effectively. “As with natural persons as well as corporate persons, some have different rights than others do,” Stevens explained. “The same rights don’t apply to everyone in every possible situation.”

    At 91 years, Stevens makes 90-years old Hollywood star Betty White seem old by comparison. His quick wit and sharp legal mind were on full display during the nearly 7-minute interview. The highlight? Colbert asked Stevens if there were any decisions he made that he later regretted. Said Stevens in response, “Other than this interview? I don’t think so.”