Guest Post

  • May 18, 2016
    Guest Post

    by Ronald S. Sullivan, Jr., Clinical Professor of Law and Faculty Director of the Criminal Justice Institute, Harvard Law School            

    This week the United States Supreme Court will consider the case of Lamondre Tucker, an African-American man who was sentenced to death in 2011―under the banner of the Confederate flag. Tucker was convicted in Caddo Parish, Louisiana, a county that is plagued by racially biased jury selection. One recent study found that African-Americans have been excluded from juries in Caddo Parish at a rate that is three times higher than whites, a practice so insidious that it has earned the nickname “blackstriking.”

    An amicus brief filed by the Charles Hamilton Houston Institute for Race and Justice in Tucker v. Louisiana notes, “Of the twenty death sentences imposed in the modern era by Caddo Parish juries, fifteen were imposed on Black defendants. Of those fifteen, ten were charged with the murder of a white victim. Conversely, no white defendant has ever been sentenced to death in Caddo Parish for killing a Black victim. Taken at face value, these numbers suggest that the badges of the Confederacy adorning the courthouse entrance in Caddo Parish signify more than stale remnants of a bygone era.”

    Unfortunately, Tucker’s case is not an isolated incident. Just last month, Kenneth Fults was executed by the state of Georgia despite being represented by a lawyer known for using racial slurs. Fults, an African-American man, was accused of killing a young white woman. After the trial, one of the jurors reportedly explained, "that n***r got just what should have happened . . . I knew I would vote for the death penalty because that’s what that n***r deserved."

    Duane Buck’s case was equally contaminated by racial bias. Buck, an African-American man, was sentenced to death for a crime that occurred 20 years ago after a defense expert testified that Buck’s race was a relevant predictor of his future dangerousness. The prosecutor subsequently asserted that "the race factor, black, increases the future dangerousness . . ." The Texas jury sentenced Mr. Buck to death based upon the finding that he was likely to be a danger in the future. Mr. Buck has asked the U.S. Supreme Court to review his case.

    In South Carolina, Johnny Bennett had his death sentence reversed by U.S. District Judge Mark Gergel because the prosecutor, Donnie Myers, called Bennett, an African-American man, “King Kong,” a “beast of burden,” and other racist names during his trial. Myers also highlighted the fact that Bennett had a sexual relationship with a “blonde-headed lady” in order to fan the flames of racial prejudice. The state attorney general has, not surprisingly, announced that he is appealing Judge Gergel’s decision.

    Even when offered a chance to correct injustices of the not-so-distant past, many prosecutors cling to racially tainted verdicts. These cases are not relics of the past, they are evidence that racial bias continues to infect the entire capital punishment system.

  • May 18, 2016
    Guest Post

    by Christopher Wilds, Herbert and Nell Singer Social Justice Fellow, NAACP Legal Defense and Educational Fund

    Imagine being a Black student in a school district where, for decades, one school has almost never enrolled Black students and the predominantly Black school suffers from crumbling ceilings, decades old textbooks, bathrooms without stalls, and discriminatory discipline policies. Today, 62 years after the NAACP Legal Defense and Educational Fund, Inc. (LDF) litigated and won Brown v. Board of Education – the case that declared the doctrine of “separate, but equal” unconstitutional and heralded the end of legal segregation in this country – LDF remains enmeshed in the struggle to eradicate “apartheid schools” – the racially isolated “black schools” that are inferior to their counterpart “white schools” and undermine educational outcomes for far too many African-American children. While the legal victory in Brown has had a significant historical and societal impact, it did not completely eliminate the pervasive racial discrimination and educational inequalities faced by students of color.

    For students in far too many school districts across the nation ‒ including those in St. Martin Parish, Louisiana ‒ racially segregated schools are a fact of life. A report by the Center for Civil Rights Remedies at UCLA noted that the number of majority-minority schools (those with zero to 10 percent white enrollment) has more than tripled in enrollment in the past 25 years. And a report by the Government Accountability Office (GAO) released yesterday details the harms that flow from such racially and economically isolated schools: Specifically, the report found that schools that are isolated by poverty and race generally had fewer resources, more disciplinary actions, and poorer academic outcomes than other schools.

    Despite the pervasiveness of racially isolated schools, desegregation remains a significant challenge ‒ just as it was 62 years ago. The GAO report notes that that the Department of Justice is monitoring and enforcing about 178 open desegregation cases. LDF likewise oversees a docket of about 100 desegregation cases ‒ many of which have been open since the Brown era. LDF’s work in the Thomas v. School Board of St. Martin Parish desegregation case is a powerful example of how and why the contemporary effort to erase the vestiges of segregation in education remains critically important.

  • May 16, 2016
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center. Simon Lazarus helped draft an amici curiae brief in House of Representatives v. Burwell, filed by CAC on behalf of House Minority Leader Nancy Pelosi and other members of the Democratic Caucus, in support of the Administration.

    On Thursday afternoon, May 12, District of Columbia District Judge Rosemary Collyer ruled unconstitutional the Obama administration’s funding of “cost-sharing reduction” subsidies (CSRs) prescribed by Section 1402 of the Affordable Care Act (ACA), to complement the “premium assistance tax credits” prescribed by Section 1401, by assisting lower-income exchange subscribers to pay for medical services and products. According to an Avelere health study, at least 65 percent of all Obama enrollees are eligible for the subsidies, and 5.9 million people currently use them. The decision upheld a lawsuit filed in November 2014 by the House of Representatives, alleging that Congress had not enacted an appropriation covering the COS subsidies, and hence, the administration’s funding of them violated the constitutional command that “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.”

    When then-Speaker John Boehner first proposed the lawsuit in July 2014, a broad consensus of experts warned, in the words of former House legal counsel (for Congresses controlled by both parties) Charles Tiefer, that “it is a bad idea for a Speaker to file such an embarrassing loser.” Nonpartisan experts like Tiefer knew, as he wrote in testimony submitted to the House Rules Committee considering Boehner’s resolution to file the case, that applicable Supreme Court precedents dictated “no standing . . . for anything remotely like” the House’s lawsuit.

    No good would be served here by restating the precedents that Judge Collyer chose to disregard or, as she put it, distinguish and limit. Briefs filed by the Department of Justice and allied amici have done that job, and will surely repeat when the case is appealed to the D.C. Circuit. But it is worth briefly spelling out the real-world consequences of Judge Collyer’s arguments purporting to distinguish pertinent standing doctrine, in light of the separation of powers policy considerations undergirding established congressional standing limitations.

    In sum, given the political dynamics of inter- and, especially with respect to Congress, intra-branch behavior patterns and incentives, displacing those precedents in accord with Judge Collyer’s decision will provide irresistible incentives – for one house of Congress or, more realistically, internal factions with political leverage – to trigger lawsuits over a virtually limitless array of inter-branch or partisan disputes previously resolved through political processes, formal and informal.

  • May 16, 2016
    Guest Post

    by Johanna Kalb, Jurisprudence Fellow, Brennan Center for Justice

    *This post also appears at Brennan Center for Justice and Demos

    In May, the University of Pennsylvania Law Review Online will publish a series of essays examining the role that political equality could play in the Supreme Court’s campaign finance jurisprudence.  The authors in this collection are helping to relaunch a conversation that has been stagnant for forty years. 

    Today’s constitutional framework for money in politics dates back to the Supreme Court’s decision in Buckley v. Valeo.  The Buckley Court was asked to evaluate the constitutionality of the Federal Election Campaign Act of 1974, an extensive package of reforms including limits on contributions and independent spending, disclosure requirements for political spending, and the creation of a system of public funding for presidential campaigns.  Defenders of the law argued that regulating political spending was necessary to prevent corruption and promote voter confidence, as well as to equalize the ability of interested citizens to influence electoral choices and run for office.  The Buckley Court agreed that preventing corruption or its appearance was a compelling government interest, which justified an incursion on First Amendment rights.  However, the Court flatly rejected any government interest in promoting political equality, stating that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment. . . .”

    Buckley’s rejection of the equality interest was immediately and widely criticized.  As time passed, however, attention in political equality arguments quite understandably receded.  Instead reformers (and scholars) focused their energies on arguing for a broad understanding of the government’s interest in preventing corruption.  In the 1990s and early 2000s, this seemed like a winning strategy.  The Court upheld a variety of contribution limits, oftendescribing the government’s corruption interest broadly in terms of the dangers that wealth could pose to the integrity of the democratic process.  Then Roberts and Alito replaced O’Connor and Rehnquist, and the newly constituted Court began a concerted effort to dismantle the system of campaign finance regulation by narrowing the government’s interest in preventing corruption to the quid pro quo exchange of cash for votes.

    The Roberts Court’s aggressive attack on campaign finance regulation and the recent death of Justice Scalia have created an opening for rethinking the constitutional framework for money in politics.  Political equality is back on the table, bolstered in part by success of the Sanders presidential campaign and its focus on the relationship between economic and political inequality in America.  More than enthusiasm is needed, however, to move equality theory from the sidelines to the center of the constitutional doctrine.  As Rick Hasen has been saying for years (and most recently in his book, Plutocrats United), equality theory is replete with questions that have gone mostly unaddressed by scholars of campaign finance law.  We need to understand which form(s) of political equality justify regulation; equality of “inputs” into the political process – or equality of the “outputs” that process creates?  We need to have some way of thinking about how much equality is enough, in order to guide the Court in balancing the equality and liberty concerns raised by campaign finance regulation.  And, we need to have some idea of how the corporate media operates in this framework.

  • May 11, 2016
    Guest Post

    by Ruben J. Garcia. Ruben Garcia is Professor of Law at UNLV William S. Boyd School of Law, where he teaches Labor Law and Professional Responsibility. He can be reached at ruben.garcia@unlv.edu.

    We are looking at another hot summer of litigation over the Obama Administration’s attempts to bring a modicum of regulation to the workplace. Currently, the Department of Labor’s Persuader Rule, enacted pursuant to federal labor law, is being reviewed in three different district courts and in Congress. Since 1959, the Labor Management Reporting and Disclosure Act (LMRDA) has required employers to disclose certain expenditures used to persuade employees in their choice of a bargaining representative. Once the DOL’s final revised rule implementing the mandate of the statute was published, employers and their law firms quickly brought suit to block the rule. The House Committee on Education and the Workforce held a hearing on April 27 which included three witnesses opposed to the rule, and one supporting it. Republicans in the House have introduced a Congressional resolution challenging the revised Rule as well.

    Federal courts in three different states will soon decide whether the revised rule should be enjoined because it exceeds the DOL’s authority or violates the U.S. Constitution. Apart from the merits of these challenges, there have been several complaints about how the revised rule’s requirement to report arrangements to provide “indirect persuasion” might cause attorneys to violate their ethical duty of confidentiality. The former president of the American Bar Association testified at the April 27 hearing that the revise Persuader Rule would “undermine the confidential attorney-client relationship.” The problem with these concerns, as I and numerous other labor law and legal ethics professors have written in a letter to the Committee, is that the revised Persuader Rule can coexist comfortably with the ABA Model Rules of Professional Conduct.