January 2012

  • January 13, 2012

    by Nicole Flatow

    The Justice Department’s Office of Legal Counsel released a memo yesterday explaining the legal justification for President Obama’s recess appointments of Richard Cordray to head the Consumer Financial Protection Bureau and three others to the National Labor Relations Board.

    "This is one opinion that is likely to be followed by future presidents,” UNC law professor Michael Gerhardt told Mother Jones. “It's not easy to overturn opinions of the [Office of Legal Counsel], as the history of the [Bush-era] Torture Memos demonstrate."

    The memo concludes that Obama was authorized to act under the Constitution’s Recess Appointments Clause, and that the Senate’s attempt to block appointments by holding “pro forma” sessions every few days did nothing to disrupt its recess.

    "[W]hile Congress can prevent the President from making any recess appointments by remaining continuously in session and available to receive and act on nominations, it cannot do so by conducting pro forma sessions during a recess," Assistant Attorney General Virginia Seitz writes in the memo.

    Ohio State University’s Peter Shane calls the memo’s argument that Obama made the appointments during what was effectively a 20-day recess the more “institutionally modest” approach. He and others have argued that even during a three-day recess, Obama could have made such appointments.

    Bolstering these arguments is the fact that Obama only made appointments to those agencies that were unable to perform essential functions so long as the vacancies remained open.

  • January 13, 2012

    After meeting with Magistrate Judge Patty Shwartz, Sen. Robert Menendez (D-N.J.) announced that he will reverse course and support her nomination to the U.S. Court of Appeals for the Third Circuit. "Judge Shwartz satisfactorily answered questions covering important legal topics such as current law on the rights of corporations under the First Amendment, constitutional limits on Executive Branch power and the application of heightened standards of review under the Constitution," he said in a statement. Menendez had previously opposed her nomination and had not yet submitted the blue slip required to move the process forward.

    Following a swearing-in ceremony for now-U.S. District Judge Robert D. Mariani, Middle District of Pennsylvania Chief Judge Yvette Kane called on her U.S. senators to fill several vacancies in the district as soon as possible, The Scranton Times Tribune reports. The state has six vacancies – but no nominees – because Sens. Bob Casey (D-Penn.) and Pat Toomey (R-Penn.) have not sent recommendations to President Obama. Casey said they are “working on it,” but worried that the Senate would not confirm any nominees, now that election season is under way.

    Regarding President Obama’s four recent recess appointments, the Justice Department released a memo in which it advised that they are constitutional. In his press briefing, White House Press Secretary Jay Carney further supported the legality of the appointments, saying, “We believe our legal argument is very strong, will absolutely pass muster.” In retaliation for the appointments, Sen. Charles Grassley (R-Iowa) is threatening to halt pending nominations for Senate confirmation, Bloomberg News reports.

    The Latest in “In the News

    • “U.S. Sen. Robert Menendez right to meet with blocked judge,” from The Star Ledger
    • Obama Nominees Cool Heels as Divided Senate Stalls on Confirmation Votes,” from Bloomberg News
    • Senate Republicans consider blocking future presidential nominations,” from Daily Kos

    The Latest in “Recommended Readings

    • “Appointments Challenge Senate Role, Experts Say,” from The New York Times
    • President Obama’s Judicial Nominees: A Question of Qualifications,” from The Dallas Morning News
    • “Senator should drop block of judicial nominee,” from The Washington Post
  • January 13, 2012
    Guest Post

    By Leslie C. Griffin, Larry & Joanne Doherty Chair in Legal Ethics, University of Houston Law Center


    The EEOC and Cheryl Perich lost 9-0 in the Supreme Court when the Court dismissed schoolteacher Perich’s Americans with Disabilities Act [ADA] lawsuit against Hosanna-Tabor Evangelical Lutheran Church and School. The Court for the first time approved the ministerial exception, a rule that the state and lower federal courts had used for forty years to dismiss lawsuits by “ministers” against their religious employers, including churches, elementary and secondary schools, universities and hospitals.

    One of the arguments in the amicus brief I filed on Perich’s behalf concerned the Court’s leading free exercise precedent, Employment Division v. Smith. In Smith, the Court held that two Native American drug counselors who used peyote in a religious ritual could be denied unemployment compensation benefits because the criminal laws prohibit drug use. The most famous language from Smith is that all citizens are subject to “neutral laws of general applicability” because to permit exceptions from the criminal law “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

    Many supporters of religious freedom detested Smith for its incursion on free exercise. In other words, they believed that religious freedom should trump the law. In contrast, I agreed with Smith’s holding that religious belief should not be superior to the law of the land. I defended Smith because I think our constitutional system depends on a shared system of law. To exempt religious citizens from the laws undermines the rule of law. For the ministerial exception, I argued that, just as Alfred Smith had to obey neutral drug laws of general applicability, so too did Hosanna-Tabor Evangelical Lutheran Church and School and other religious employers have to obey the antidiscrimination laws.

    Chief Justice John Roberts’ opinion for a unanimous Court squarely rejected that argument. Although the Chief Justice conceded that the ADA is a neutral law of general applicability, which presumably could be applied to Hosanna-Tabor under Smith, he quickly distinguished Hosanna-Tabor from Smith:

    a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government’s regulation of “physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”).

    This is a strange argument in the context of the ministerial exception. In terms of religious freedom, the ingestion of peyote is a profound religious ritual with a long American history predating the Constitution. In sharp contrast, the ministerial exception involves cases where employees allege disabilities discrimination, retaliation, pregnancy discrimination, sexual harassment, hostile work environment, unequal pay, race discrimination, gender discrimination, and other civil rights violations. Women clergy, for example, sue for pregnancy discrimination, sexual harassment, hostile work environment and unequal pay. Other ministers sue for disabilities discrimination. Many of these “ministers” have been schoolteachers or non-ordained personnel who did not realize they were “ministers” until their lawsuits were dismissed.

  • January 12, 2012
    Guest Post

    By Tomiko Brown-Nagin, Munford Boyd Professor of Law, Justice Thurgood Marshall Distinguished Professor of Law, and Professor of History at the University of Virginia. She is the author of Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement.


    Judge Robert L. Carter passed away last week. I had the honor of serving as a law clerk to the judge and found that experience profoundly rewarding. The judge, a brilliant man best known for his role as a chief strategist in Brown v. Board of Education, inspired me and many others. I share memories of my experience with him to shed light on his stupendous legal ability, his character, and his contributions as a mentor who taught invaluable lessons about life and the law. 

    As a NAACP Legal Defense Fund lawyer, Judge Carter litigated Briggs v. Elliott, the South Carolina case consolidated with four others as Brown. We initially bonded over my South Carolina roots: he had a hand in my life’s trajectory, and he knew it. I, in turn, saw in the judge a model of professional success and outstanding moral character. Each day, he made something extraordinary seem ordinary:  the idea that one individual could touch another’s life and radically alter its course. After spending a year in the presence of this great man — a lawyer who faced racial threats and insults merely for practicing his profession — a clerk for Judge Carter could scarcely contemplate disengagement from the world. The judge’s life and work taught social responsibility.

    Over the course of his career as a lawyer, Judge Carter earned a reputation as a man of strong convictions, unyielding principle, and great passion. Carter earned the reputation when, as Thurgood Marshall’s lieutenant, he consistently took the most “radical” view among LDF strategists, and when he resigned as General Counsel of the NAACP to support a colleague’s right to criticize the Warren Court. Yet, the judge, a Nixon appointee, taught me that success in the legal profession requires a clear head, a balanced and context-specific assessment of a problem, and a judicious temperament. He conveyed that passion for one’s work or causes can be productive, only if coupled with strategic thinking and professionalism.

    The judge taught this lesson in chambers on many occasions. In a long-running class action employment discrimination suit he once counseled that it would be counterproductive to coerce compliance with his orders, despite the defendant’s continued resistance to opening job opportunities to the plaintiffs. Sanctions might have been ordered in that case. But the judge had presided over the action for years. Knowing the parties and issues very well, he concluded that it made no sense to force this defendant into submission at that particular moment in time. Judges should neither look for, nor create, confrontations where they can be avoided. A judge might effectively invoke the full force of his powers on some occasions, but on others a thoughtful judge might choose not make a big show of his full powers. Good judging required knowing when to do which. 

    The judge also taught judiciousness through his writings about Brown. Not content to bask in the afterglow of his great achievement, the judge critiqued the legal strategy in Brown. He found a paradox. Brown served the U.S.’s geopolitical interests, and in many ways, propelled race relations forward in this country. But, ironically, in the public schools context, Brown proved a tremendous disappointment. The federal judges charged with articulating rights, and local officials charged with implementing legal remedies, ultimately bear the blame for Brown’s mixed legacy in the schools. However, Judge Carter also found fault with himself and his colleagues. The lawyers, he said, fixated on the constitutional dimensions of Brown, when the case also touched upon critically important matters of educational philosophy and pedagogy. The attorneys did not seriously contemplate, much less adequately define, quality education. That limitation left generations of black students adrift in schools, subject to social experimentation, or worse, educational malpractice.

  • January 11, 2012

    by Jeremy Leaming

    Daniel Mach, director of ACLU’s Program on Freedom of Religion and Belief, wrote for ACSblog last summer about religious organizations' ability to shield themselves from anti-discrimination laws, citing their First Amendment right to the free exercise of religion. He asked whether religious institutions have a “categorical free pass to discriminate against certain people, regardless of the reason.”

    Today, in what The New York Times’ Adam Liptak suggested may be the U.S. Supreme Court’s “most significant religious liberty decision in two decades,” sided with a Michigan church’s effort to avoid defending itself against an employment discrimination charge lodged by a teacher it had fired after she took sick leave, and for informing the church she planned to persue an employment discrimination claim against the church.

    In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, a unanimous Court led by Chief Justice John G. Roberts Jr. found, in this instance, that a so-called “ministerial exception,” provided the Redford, Mich. church protection from Cheryl Perich’s employment discrimination claim. (When Perich took sick leave to treat a disability, the church eventually hired a replacement teacher. After Perich presented church officials with a letter from her physician that she was cleared to start work again, church officials urged her to resign and except payment of a portion of her health insurance premiums. When she refused to do so, church officials informed her they were considering letting her go, and she responded by warning them she planned to lodge an employment discrimination complaint.)

    Since the passage of the Civil Rights of 1964 and other employment discrimination laws, Roberts explained that the federal appeals courts “have uniformly recognized the existence of a ‘ministerial exception,’ grounded in the First Amendment, that precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers.”