Constitutional Interpretation and Change

  • December 9, 2013
    Guest Post
    by Frederick Mark Gedicks, Guy Anderson Chair and Professor of Law, Brigham Young University
     
    * This is the second in a series of posts on the two “contraception mandate” cases on which the Supreme Court recently granted certiorari review, Hobby Lobby Stores, Inc. v. Sebelius (10th Cir. June 27, 2013) and Conestoga Wood Specialties Corporation v. Sebelius (3rd Cir. July 26, 2013). Gedicks’ first post is available here.
     
    Most discussions of whether Hobby Lobby and Conestoga Wood are protected by the Religious Freedom Restoration Act (RFRA) as corporations have focused on their for-profit character. This is something of a red herring; for-profit character matters, but not in the way most people think. As law professors Micah Schwartzman, Richard Schragger and Nelson Tebbe have pointed out (see here and here), what disqualifies a corporation from RFRA protection is as much its size as its for-profit character.
     
    The corporate plaintiffs in Hobby Lobby, for example, insist that they “believe” and “practice” the religion of their owners because they are “family businesses” and “closely held” corporations that have very few shareholders. This self-description evokes the stereotypical image of the small-town “mom-and-pop” grocery store, staffed mostly by an extended family whose members greet everyone by name and whose customers, suppliers and other employees uniformly identify as the “real” owners irrespective of legal formalities.
     
    Federal laws are frequently sensitive to the needs of such genuinely small businesses. For example, Title VII of the Civil Rights Act exempts businesses with fewer than 15 employees, and the Fair Housing Act similarly does not apply to small apartment complexes where the owner resides on the premises. The ACA itself exempts businesses with fewer than 50 employees from the employer mandate to provide employee healthcare insurance.
     
    The corporations here are light years away from the “mom-and-pop” stereotype. Hobby Lobby and its affiliates employ 13,400 people in 600 locations scattered through 39 states (including a 3.4 million square foot headquarters complex). Forbes estimates its annual revenue at substantially more than $2 billion.
  • December 6, 2013
    BookTalk
    The Federalist Society
    How Conservatives Took the Law Back from Liberals
    By: 
    Michael Avery and Danielle McLaughlin

    by Michael Avery and Danielle McLaughlin. Mr. Avery is Professor of Law and Director of Litigation at Suffolk University Law School. Ms. McLaughlin is an associate at Nixon Peabody.

    In mid-November the Democrats finally exercised the so-called “nuclear option,” barring filibusters for all votes on judicial appointments in the Senate, other than for Supreme Court Justices. The change in the Senate Rules followed the Republican filibuster of three of President Obama’s nominees for the very conservative D.C. Circuit Court of Appeals and the radical increase in opposition to presidential judicial choices by Republicans since 2009. According to Harry Reid, almost half of the filibusters of presidential judicial nominations in our Nation’s history have been used against President Obama’s selections. The rules change will allow a simple majority of senators present and voting to approve presidential nominees to the federal bench and eliminate the 60-vote supermajority required to overcome a filibuster.

    Right-wing ideologues have been successful since the 1980 election of President Reagan in securing judicial appointments for conservatives during Republican presidencies. Ed Meese, the Reagan Attorney General and now elder statesman of the conservative legal movement, said that “no President exercises any power more far reaching, more likely to influence his legacy, than the selection of federal judges.” The Federalist Society, whose founders were mentored by Meese in the Reagan White House and Department of Justice, has always believed that the easiest way to change the law is to change the judges. We document their success in doing so at all levels of the federal judiciary in our book, The Federalist Society: How Conservatives Took the Law Back from Liberals. Federalist Society members are just as active with respect to judicial selection when a Democrat is president as they are when a Republican is in the White House. For example, in 2010, the Judicial Confirmation Network, formed to promote George W. Bush’s judicial nominations, simply changed its name to the Judicial Crisis Network (JCN), once President Obama began nominating judges. The leadership of the group remained in the hands of key Federalist Society members and it lobbied actively against the president’s appointments.

  • November 25, 2013
     
    Every year, a few blockbuster Supreme Court oral arguments and decisions dominate the news. In 2013, voting rights, LGBT equality, and affirmative action in education took center stage. Many Americans, whether lawyers or not, understood that these decisions could affect their own lives.
     
    Almost under the radar, however, the Court has been chipping away at the very process that enables the American people to seek redress in court when they’ve been injured. In particular, the Court’s decisions enforcing arbitration clauses and class action waivers have closed the courthouse door to litigants harmed by corporate wrongdoing. Most recently, in American Express Corp v. Italian Colors last Term, the Court ruled that class action waivers are enforceable even when they render it functionally impossible for plaintiffs to vindicate their rights under federal law.
     
    Rich Freer, the Robert Howell Professor of Law at Emory Law School, explains the impact of these cases.
     

  • November 19, 2013
    Guest Post
    by Jo-Ann Wallace, President and CEO, National Legal Aid and Defender Association
     
    Fifty years ago, a unanimous Supreme Court held in Gideon v. Wainwright that “in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” This holding was described in the opinion to be “an obvious truth,” a recognition that Gideon’s clear and powerful proclamation – protecting the fundamental human right to liberty – is one that resonates with us all.
     
    But the mandate was not self-executing, and far too little planning or coordination was undertaken to translate the legal pronouncement into consistent practice. The fundamental constitutional right of the Sixth Amendment was left to fall victim to the inertia of the “machinery of criminal justice” – a counterweight poignantly exposed in Gideon -- and the political realities of each state and county. The failure to act on a federal level has reversed the tides of history to the very problem Gideon attempted to correct. That is: local political entities cannot be solely relied upon to ensure the constitutional right to counsel is properly structured and funded. As a result, the Attorney General declared on the anniversary of the Gideon decision: “It’s time to reclaim Gideon’s petition – and resolve to confront the obstacles facing indigent defense providers.”
     
    The criminal justice system is an eco-system in which the component parts are inextricably intertwined. If police officers arrest more individuals, prosecutors have more cases to process and public defense organizations have more people for whom to provide legal representation. However, while other system actors have mechanisms to prioritize cases or to exercise discretion over which cases to pursue, the Constitution affords public defenders no such “release valve” for controlling workload. This reality exacerbates funding inequities that exist at the state and local levels.
  • November 15, 2013
    Guest Post
    by Hillary B. Farber, Associate Professor of Law, University of Massachusetts School of Law, and author of a forthcoming article on the domestic deployment of drones in Vol.64 of the Syracuse Law Review
     
    Editor’s Note: On Tuesday, November 19, ACS is hosting a panel discussion on constitutional protections of privacy in a time of rapid technological innovation and increasing surveillance, featuring Dahlia Lithwick of Slate, Chris Calabrese of the ACLU, Stephen Vladeck of American University Washington College of Law and others.  We hope that you will join us for this important and timely conversation.  If you are interested in attending, please RSVP here.

    By the end of this decade it is estimated that 30,000 drones will occupy national airspace.  In 2012, Congress passed the Federal Aviation Administration Modernization and Reform Act, which ordered the Federal Aviation Administration (FAA) to promulgate regulations for the integration of drones into the national airspace. Law enforcement agencies around the country have purchased drones and are testing the new technology. As of May 2013, four Department of Justice (DOJ) divisions had acquired drones: the FBI; Bureau of Alcohol, Tobacco and Firearms (ATF); Drug Enforcement Agency (DEA); and, the U.S. Marshals Service.  On June 19, FBI Director Robert Mueller told Congress that the FBI has deployed drones for surveillance on domestic soil and is developing guidelines for their future law enforcement use. 

    As compared with manned airplanes and helicopters, unmanned aerial surveillance bears unique risks to society's expectation of privacy. Drones, properly called unmanned aerial vehicles (UAVs), are practically invisible at altitudes where a manned aircraft could be seen with the naked eye. Smaller UAVs operate almost silently, making them significantly harder to detect. Moreover, UAVs can be equipped with sensory enhancing technologies such as thermal imaging devices, facial recognition software, Wi-Fi sniffers, GPS systems, license plate readers and cameras that can provide high resolution images from significant altitudes.  This type of aerial surveillance presents the potential for intrusion of privacy far more pervasive than the flyover of a plane or helicopter.  Drone surveillance has the potential to enable users to gather unprecedented amounts of information about people and retain it well into the future.