Equality and Liberty

  • January 16, 2014
    The remarkable silence of Chief Justice John Roberts cast a pall of uncertainty over oral arguments in McCullen v. Coakley, heard yesterday morning at the Supreme Court. Adding to the unusual environment was Justice Elena Kagan, who appeared to seek a middle ground between upholding the law at hand and scrapping it altogether.
    That law is a 2007 regulation enacted by the Massachusetts state legislature, mandating a 35-foot “buffer zone” around all reproductive health centers. The petitioner, 77-year-old Eleanor McCullen, has spent every Tuesday and Wednesday morning for the last 13 years outside one such center: the Planned Parenthood clinic on Commonwealth Avenue in downtown Boston. She claims the buffer zones infringe upon her First Amendment right to free speech by making her communication with patients less effective. “It’s America,” McCullen told NPR. “I should be able to walk and talk gently, lovingly, anywhere with anybody.”
    Mark Rienzi, attorney for Ms. McCullen, advanced the argument that buffer zones are unconstitutional. Under the test for “time, place and manner” restrictions as outlined in Grayned v. City of Rockford, he explained, the buffer zones were not narrowly tailored to the state’s stated interest in preventing obstruction and congestion. For example, in response to objections from Justice Sonia Sotomayor, Rienzi noted that laws governing military funeral protests were aimed specifically at acts that disrupt “the peace and good order” of the funeral, as opposed to all activity.
    Justice Ruth Bader Ginsburg was first out of the gate with a nod to the “considerable history of disturbances” outside of reproductive health clinics and the state’s inability to pick out bad actors in advance of any given moment. Justice Stephen Breyer acknowledged the limitations of the judiciary, reminding counsel that “we’re not legislators” and suggesting that the Court did not have the basis to demand more than a “reasonable record” from policymakers. And Justice Kagan took issue with a hypothetical situation proposed by Mr. Rienzi, which featured animal rights activists who wish to persuade the employees of a slaughterhouse. “You must have used it for me to say, oh, that’s terrible,” she said. “But my reaction was kind of, ‘What’s wrong with that? Just have everyone take a step back.’”
  • January 6, 2014
    Guest Post
    by Reuben A. Guttman, Director, Grant & Eisenhofer; Member, ACS Board of Directors
    This post originally appeared on The Global Legal Post.
    The Washington Capitals recently faced off in a National Hockey League contest against the New York Rangers. Amidst the fanfare of a stadium packed with more than 20,000 fans, during breaks in the action the jumbotron hanging above centre ice flashed season highlights. Curiously, the highlights included not just slick passing and scoring plays but fights. Why was this curious? Well, the National Hockey League at least hints that it is trying to crack down on fighting. But how serious is the NHL when team highlight reels tout fighting? It turns out that the League's rules outline various penalties for fighting, but nowhere - at least I cannot find it - do the rules say that the league does not condone fighting or that fighting is not part of hockey. 
    The truth is that while the NHL packs its arenas with people who want to see fights, it struggles from a public relations perspective to guard against criticism that hockey is a violent sport; hence the purported rules that create the illusion of addressing these concerns. Remember the old joke, "I went to a fight and a hockey game broke out."  (As an aside, this is a shame because ice hockey - without the fights - is quite glorious.)

    The point is that professional hockey is a business. These days big business is the master of illusion, focusing attention on benevolent activity as a distraction from conduct that is problematic from a legal or public relations vantage point. 
    Take the case of Wal-Mart and the Walton family which created the company and owns the majority of its shares. The Walton Family Foundation has given millions to the Environmental Defense  Fund, a US based environmental NGO, which in turn has praised Wal-Mart for being a "green company." At the same time Wal-Mart is winning accolades for its greenness, it is being pursued by the United States Department of Justice and various State Attorneys Generals for violations of the US Clean Water Act.  Embracing NGOs that perhaps were at one time corporate critics is just one facet of the illusion game.
  • January 3, 2014
    On December 31, while many Americans were celebrating the arrival of 2014, Supreme Court Justice Sonia Sotomayor (who herself would inaugurate 2014 by leading the famed Times Square ball drop) ended 2013 by erecting a judicial roadblock to an important provision of the Affordable Care Act (ACA). Earlier today the Obama administration answered Sotomayor with a defense of the policy that requires most companies to provide health care plans with access to contraceptives to their workers.
    Sotomayor had temporarily enjoined the federal government from enforcing the contraceptive coverage mandates against the Little Sisters of the Poor, as well as other Catholic non-profit groups who use the same health care plan called the Christian Brothers Employee Benefit Trust, who had brought suit claiming that the provisions violated the Religious Freedom Restoration Act (RFRA). The mandate was to go into effect on January 1. As the Supreme Court justice who oversees emergency matters emanating from U.S. Court of Appeals for the Tenth Circuit, Sotomayor issued the order after the Tenth Circuit had denied the request for an injunction earlier on New Year’s Eve.
    The U.S. Department of Justice argued in its brief opposing an injunction of the ACA’s contraception policy that there is a simple distinction to be made between the present case and the Hobby Lobby and Conestoga Wood cases that the Court recently agreed to hear on the issue -- that the Little Sisters of the Poor “are eligible for religious accommodations set out in the regulations that exempt them from any requirement ‘to contract, arrange, pay, or refer for contraceptive coverage.’  They need only self-certify that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, and then provide a copy of their self-certification to the third-party administrator of their self-insured group health plan.” (citations omitted).
    For the government, this case is not about religious accommodations, but rather, “whether a religious objector can invoke RFRA to justify its refusal to sign a self-certification that secures the very religion-based exemption the objector seeks.” Furthermore, the government points to decisions of lower courts and notes that the church healthcare plan at issue is exempted from regulation under the Employee Retirement Income Security Act (ERISA).
    With the government’s response now before the Court, a decision from either Justice Sotomayor or the full Court should come shortly.
    For more on Hobby Lobby and Conestoga Wood, you can read two recent ACSblog posts from BYU law professor Frederick Mark Gedicks. For more on RFRA, UNLV law professor Leslie Griffin recently examined the law’s constitutionality.
  • January 3, 2014
    Guest Post
    by Geoffrey R. Stone, Edward H. Levi Distinguished Professor of Law and ACS Co-Faculty Advisor at the University of Chicago, and former ACS Board Chair
    * This post originally appeared on The Huffington Post and is the third part of an ongoing series. The first part can be read here; the second part can be read here; the fourth part can be read here; the fifth part can be read here.
    In my last post, I explored the pros and cons of the NSA's bulk telephony meta-data program. As I reported, after considering all the competing interests and perspectives, the Review Group concluded that, in light of the availability of other means by which the government could achieve its legitimate objectives, there was "no sufficient justification to allow the government itself to collect and store bulk telephony meta-data." The Review Group therefore recommended that the meta-data program, as currently constituted, "should be terminated as soon as reasonably practicable."
    At the same time, though, the Review Group found that access to telephony meta-data can be useful to the government in its effort to identify terrorists operating inside the United States. The challenge was to figure out how best to preserve the legitimate value of the program while at the same time reducing its risks to personal privacy and individual freedom.
    To strike a better balance, the Review Group recommends several important changes in the program as it currently exists.
    First, and perhaps most important, the Review Group recommends that the government should not be permitted to store the telephony meta-data. The Review Group reasoned that taking the meta-data out of the hands of government would substantially reduce the potential for government abuse. The Review Group therefore recommends that the telephony meta-data should be held by private entities. That is, the meta-data should be held either by the various telephone service providers themselves or, upon a showing that that solution would make effective use of the meta-data impossible, by a private organization created specifically for that purpose. This approach would both prevent the government from having direct access to the database and ensure that an independent set of eyes could monitor the government's access to the information.
  • January 3, 2014
    Guest Post
    by Deborah A. Roy, Trial Attorney, Antitrust Division, United States Department of Justice and author of  "Justice William J. Brennan, Jr., James Wilson, and the Pursuit of Equality and Liberty," 61 Clev. St. L. Rev. 665 (2013)
    * The views expressed are not purported to reflect those of the United States Department of Justice.
    Justice William J. Brennan, Jr., who served on the United States Supreme Court for 34 years from 1956 to 1990, was one of the most influential justices during his term on the Court. Today, however, it is unlikely that a president would announce his intent to appoint a justice in the mold of Brennan or that a nominee to the Court would invoke Brennan’s jurisprudence. Justice Brennan has been criticized for legislating from the bench and enacting his own liberal social views, rather than strictly interpreting the United States Constitution. To the contrary, however, Justice Brennan’s opinions were often directly opposed to his personal beliefs. For example, Justice Brennan acknowledged that, as a lifelong Roman Catholic, the rulings outlawing prayer in schools were difficult for him. And while he upheld the right of a demonstrator to burn the United States flag, it is unlikely that Brennan, a World War II veteran who cherished the country established by the Constitution, would himself burn its flag.
    In fact, Justice Brennan interpreted the Constitution taking into account his understanding of the document’s founding principles. And his constitutional vision is consistent with that of James Wilson, a Framer from Pennsylvania, who is one of only six men to sign both the Declaration of Independence and the Constitution. Wilson is considered by many scholars to be second only to James Madison in his influence on the drafting of the Constitution. Justice Brennan and James Wilson shared a constitutional vision based on respect for the individual. Brennan frequently referenced human dignity as the foundational principle of his jurisprudence, while Wilson emphasized that the fundamental unit of democratic government is the individual person. From the principle of individual dignity, both men derived rights to equality and liberty. In a speech urging Pennsylvania to ratify the Constitution, Wilson stated that among the advantages of a constitutional democracy are the rights to liberty and equal laws for its citizens. Two centuries later, Brennan’s opinions furthered the realization of racial and gender equality, and upheld the liberty of individuals to make personal decisions without interference from the State.