Equality and Liberty

  • July 11, 2013

    by Jeremy Leaming

    The secret court that hears government requests for spying on Americans' communications is a durable check against government overreach because it’s made up of esteemed, independent federal court judges and the lawyers representing the nation’s intelligence apparatus are really good at their jobs. At least that’s the take of a large number of government officials who support  sweeping surveillance programs, which the secret has approved.

    Last year the Foreign Intelligence Surveillance Court (FISA Court) did not deny or reject the 1,789 government FISA applications. Apparently 40 of applications were modified, but since the FISA Court’s actions are secret, we don’t know in what why they were altered. In 2010, Salon reported, “there were 1,511 applications, of which five were withdrawn and 14 modified.”

    This week James Comey, President Obama’s nominee to head the FBI, told a Senate committee that the FISA Court is no “rubber stamp” and that people just don’t understand the highly secretive court, George Zornick reported for The Nation. Comey also maintained that another reason the FISA Court rarely rejects government demands for more information about Americans is that the government’s attorneys work really hard to put together sound applications.

    But just as this defense of the FISA Court as a serious check is being built, more information is seeping out about the secret court’s work. The New York Times reported that the Court does more than secretly grant general warrants for the NSA to sweep up mass amounts of information about Americans. It is also issuing opinions on “broad constitutional questions and establishing important judicial precedents with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.”

    Ten of the FISA Court’s 11 independent federal judges, Salon’s Joan Walsh reports are appointed by U.S. Supreme Court Chief Justice John Roberts. The judges Roberts appointed are ones named to the bench by Republican presidents. “Over the last 12 years, they approved 20,909 surveillance and property search warrants and rejected only 10 government requests,” she added.

  • July 1, 2013
    Guest Post

    by Senator Terri Bonoff, (DFL – Minnetonka), Minnesota State Senate. Sen. Bonoff is chairperson of the Higher Education and Workforce Development Committee.

    I was a proud co-author of the Minnesota Marriage Equality Law that recently passed in our legislative session that ended May 21. As many know, the law will take effect on August 1, 2013. August 1, is my birthday. On my 50th birthday the University Avenue bridge fell, making my birthday bittersweet in the years following. While I am a “holiday” gal, love to celebrate, sharing the day with those who lost so much has made the day also marked by sorrow.

    I am pleased to mark my forthcoming birthday, with something to celebrate - marriage equality. As a Democrat from a western suburban district that leans Republican, I am truly a swing voter in every way. I not only represent swing voters I am fiercely independent myself - my votes on fiscal matters often line up with my colleagues on the other side. Yet on matters of social justice, I am clear where I stand. It is because of this that I believe I was asked to be a co-author. I told my community during the campaign that I would not vote to raise their income taxes, but I would vote to support marriage equality. I did not say, “Don’t vote for the constitutional amendment because it is not necessary - our laws dictate that only one man and one woman can marry.” Instead I said, “I am for marriage equality, and you?” There was no confusion in my community about where I stood -- I put it in newspaper surveys, on my website and spoke of it in debates.

  • June 28, 2013
    Guest Post

    by Emily J. Martin,  Vice President and General Counsel at the National Women's Law Center

    You may have missed it in the flurry of newsmaking by the Supreme Court this week, but on Monday, five of the Justices gave early Christmas presents to defendants accused of employment discrimination, when the Court handed down important decisions in two Title VII cases: Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar.  In both Vance and Nassar, the 5-4 decisions ignored the realities of the workplace and the ways in which employment discrimination and harassment play out every day.  Placing new obstacles in the path of workers seeking to vindicate their rights, the Court set aside the longstanding interpretations of the Equal Employment Opportunity Commission (the agency charged with enforcing Title VII), and closed out a term in which the Court repeatedly limited the ability of individuals to challenge the actions of powerful corporations.

    Justice Samuel Alito wrote the Vance decision.  Prior cases have held that when a plaintiff shows she was sexually harassed, or racially harassed, or harassed on some other unlawful basis by a supervisor, her employer is liable, unless the employer can prove that the plaintiff unreasonably failed to take advantage of a process that the employer provided for addressing harassment. An employer is only liable for harassment by a co-worker, however, when a plaintiff can show that the employer was negligent in controlling working conditions—a far tougher standard.  Vance posed the question of who is a supervisor: Is it only someone who has the authority to hire, fire, or take other tangible employment actions? Or is it anyone who oversees and directs the plaintiff’s work on a day-to-day basis? Ignoring the ways in which day-to-day supervisors have been invested with authority over other employees that empowers them to harass, the Court ruled on Monday that employers are not vicariously liable for harassment by day-to-day supervisors who do not have the authority to hire, fire, and the like. Indeed, showing even more solicitousness for the interests of employers than the defendant in the case had shown for itself, the majority adopted an even narrower interpretation of the word “supervisor” than had been urged by Ball State.

  • June 28, 2013
    Guest Post

    by Deirdre M. Bowen, Associate Professor of Law, Seattle University School of Law

    The long awaited affirmative action case, Fisher v. University of Texas at Austin, came down with more of a whimper than the expected wail. While much is being made of the limited nature of the decision, the legal battle over affirmative action is far from over.  Indeed, the opinion suggests more of a long-path towards the demise of affirmative action through its shifting language and unclear standards.  And in creating more questions than it answers concerning how to prove the validity of an affirmative action program, and thus leaving more lines open for its attack, the opinion takes the focus away from the need to design programs which ensure that all students benefit from diversity.   

    Indeed, Fisher appears to invite further attack of affirmative action. The Court makes abundantly clear that it takes no position concerning the continued validity of Grutter v. Bollinger, in which the Supreme Court upheld the use of affirmative action in higher education to achieve diversity and the benefits that flow from it. In other words, it remains an open question how long a university’s educational mission that includes creating a racially diverse campus will continue to pass constitutional muster. Instead, the Court in Fisher focuses on how the strict scrutiny standard, which is used in equal protection cases, should be applied in affirmative action cases involving higher education. And, even more narrowly, Justice Kennedy uses the Fisher opinion to clarify how that analysis should work when evaluating a university’s chosen method of implementing its diversity mission.

  • June 27, 2013
    Guest Post

    by Deirdre M. Bowen, Associate Professor of Law, Seattle University School of Law

    Without a doubt, the Supreme Court’s ruling in United States v.Windsor No. 12-307 (June 26, 2013) offers immense hope for same-sex couples, at least for those who reside in states that allow same-sex couples to marry.

    The Supreme Court affirmed a Second Circuit opinion that determined Section 3 of the Defense of Marriage Act (“DOMA”), which defines marriage as the union of a man and a woman, is unconstitutional as applied to New York resident Edith Windsor, the widow and executor of her wife’s estate. What is remarkable, however, is how the Supreme Court essentially ignored the Second Circuit’s rationale and developed its own.

    The Second Circuit laid out a clear Equal Protection analysis of DOMA. In doing so, it bumped up the tier of scrutiny from rational basis, which the Southern District of New York Court applied, in favor of intermediate analysis, based on its finding that lesbians and gay men were a quasi-suspect class. Specifically, the Second Circuit found, after engaging in a four-part factor analysis, that gay people have been the target of discrimination and mistreatment in public and private spheres in the United States, and this triggered an intermediate level of scrutiny. The Second Circuit then evaluated the reasons that the Bipartisan Legal Advisory Group (“BLAG”) offered to determine whether these reasons were substantially related to an important government interest. In this task, the Second Circuit determined that BLAG had failed to demonstrate persuasive set of rationales.