Constitutional Interpretation and Change

  • 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.
  • November 8, 2013
    Guest Post
    by J. Amy Dillard, Associate Professor of Law, University of Baltimore School of Law
     
    Early next year, the Court will hear argument in Hall v. Florida, a case that many practitioners have awaited since 2002. That year, the Court issued its opinion in Atkins v. Virginia, wherein it held that “the mentally retarded should be categorically excluded from execution.” The 6-3 decision in Atkins marked the great divide between those on the Court who embrace the concept of evolving standards of decency and those who eschew itfor determining which defendants may be put to death and which should be categorically excluded. The Court declined to define the parameters of mental retardation and left that task to the states. Some state legislatures, like Florida, have adopted a constrained definition of mental retardation, relying heavily on an I.Q. of 70 as a bright line.
     
    A fact often overlooked in Atkins is that the majority and Justice Scalia, in dissent, agreed that some people, due to their lack of cognitive capacity, should be excluded from the penalty of death. The majority reached its conclusion after a careful examination of the trends in state legislatures to exclude mentally-retarded defendants from execution. Justice Scalia reached his conclusion after several paragraphs of constitutional hermeneutics, whereby he ascertained that profoundly mentally-retarded defendants were excluded from execution at the time of the framing of the Constitution and its Eighth Amendment prohibition on cruel and unusual punishment. Where the majority and Justice Scalia were at odds was in defining which people fit into the category of defendants who should be categorically excluded from execution. But both the majority and Justice Scalia use the term “mental retardation” as a kind of marker to describe a group of people who must be excluded from the penalty of death.
     
    In 2002, when the Court decided Atkins, the term “mentally retarded” had already fallen from favor among medical and educational professionals, who favored the term “intellectual disability” to describe a person with limited cognitive capacity and limited adaptive functioning. With the publication of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders in May 2013, the American Psychiatric Association has jettisoned the now-pejorative “mental retardation” and replaced it with “intellectual disability disorder,” a subset of neurocognitive disorders, which include dementia. The APA first embraced the term “mental retardation” in 1961, in an effort replace older, pejorative terms such as “idiocy.”