Guest Post

  • June 16, 2016
    Guest Post

    by Robin Bradley Kar, Walter V. Schaefer Visiting Professor of Law at University and Professor of Law & Philosophy, University of Illinois College of Law, and Jason Mazzone, Professor, Lynn H. Murray Faculty Scholar in Law Co-Director, Program in Constitutional Theory, History, and Law, University of Illinois College of Law

    Much has been written about the Senate Republicans’ current plan to prevent President Obama from appointing a replacement for Justice Scalia and to leave the choice of a new justice to the next president. Many commentators have suggested that there is something wrong with this plan, but it has thus far been difficult to pinpoint the precise problem. In our recent study, The Garland Affair, published online in the New York University Law Review, we believe we have pinpointed the problem. We thank ACS for inviting us to describe our study and why we believe Senate Republicans should change course in order to avoid a number of pragmatic and constitutional risks with their current plan.

    First a brief discussion of where things stood prior to our study. Before publication of The Garland Affair, some opponents of the Republicans plan suggested that it was unprecedented for the Senate to block a President from making an appointment to the Supreme Court. Senate Republicans claimed that to the contrary no prior president has made an election-year appointment to the Supreme Court in the last 80 years—thus implying that it is President Obama’s attempt to fill the Scalia vacancy that contravenes historical precedent; defenders of the Republican plan also pointed to scattered cases where the Senate, resisting particular nominees to the Court, had succeeded in preventing a president from filling a vacancy. Given competing accounts of the historical record, it was difficult to determine precisely where precedent lay.

    Turning to constitutional matters, some opponents of the Republican plan have argued that the Appointments Clause imposes a general duty upon the Senate to proceed to a vote on all Supreme Court nominations. This claim has, however, met with resistance from certain constitutional scholars on the ground that the Senate’s role to provide advice and consent is completely discretionary and it is under no duty to act in any particular way.

  • June 16, 2016
    Guest Post

    by Jeff Clements, president, American Promise, and Board chair, Free Speech For People

    *This blog post is part of ACSblog’s “Justice in the Balance” symposium. See our infographic here.

    “Well, the court overruled part of what I wrote. . . . It is a source of concern today, the extent of campaign contributions and whether corporations and unions must be held to the [same] standard as an individual. These are tough issues for the nation and the court.”

    ‒ Justice Sandra Day O’Connor on Citizens United v. FEC, Newsweek, December 2010

    What a difference a Justice or two can make. The notorious 5-4 decision in Citizens United v. Federal Election Commission would never have happened without the twist in history in 2005 that brought John Roberts and Samuel Alito to the Court.

    The consequences are grave. As Justice John Paul Stevens wrote in his dissent, Citizens United is a “radical departure” from settled First Amendment law. Americans have worked to constrain the undue and corrupting influence of concentrated money in our democracy, particularly money of corporations, since the beginnings of the Republic. Until Citizens United, the tiny minority of Americans who share the current Court’s idiosyncratic view that the Constitution forbids Americans from doing so have almost always lost.

    They lost in the Gilded Age, when the federal government and most states enacted Corrupt Practices Acts to end the domination of elections and government policy by corporate political spending. They lost when more than a dozen major corporations were prosecuted and convicted for illegal election spending after the Watergate scandal forced President Nixon to resign in 1974.

    They lost in 1990, when the Supreme Court upheld Michigan’s law prohibiting election spending by corporations in Austin v. Michigan Chamber of Commerce. They lost in 2003 when the Supreme Court in McConnell v. Federal Election Commission upheld the same Bipartisan Campaign Reform Act provisions that Citizens United would strike down only a few years later. They might well have lost in the 1978 First National Bank of Boston v. Bellotti case that invalidated a state law prohibiting spending by corporations in citizen referenda, except for a false promise that other limits on corporate election spending would not be threatened (but that is another story).

    So how did they win in Citizens United? Suddenly, they had five votes on the Court.

  • June 15, 2016
    Guest Post

    by Harry Baumgarten, Partner Legal Fellow, Voting Rights Institute

    *This blog post is part of ACSblog’s “Justice in the Balance” symposium. See our infographic here.

    In 2013, the U.S. Supreme Court struck down the coverage formula of the Voting Rights Act by a narrow margin of 5-4 in Shelby County v. Holder. The coverage formula designated which states and local jurisdictions with histories of racial discrimination in voting were required to submit changes to their voting laws, practices and procedures to the Department of Justice or the D.C. Court for preclearance prior to going into effect.

    For nearly 50 years, this preclearance provision helped ensure that all eligible voters, regardless of their race, were able to meaningfully participate in the political process. However, following this disastrous decision, states and local jurisdictions acted with impunity by implementing onerous voter ID laws and discriminatory redistricting maps that previously would have been blocked by the Department of Justice. A single additional justice voting in favor of upholding the coverage formula could have prevented these discriminatory laws and stopped 2016 from marking the first presidential election in over 50 years without the full protection of the Voting Rights Act.

    Yet, this is not what happened. Instead, five justices in Shelby County found that the coverage formula was outdated and therefore violated the “equal sovereignty of the states.” However, this essentially legislative determination by the Court flew in the face of more than 15,000 pages of congressional findings based on 20 hearings and testimony from more than 90 witnesses that had led Congress to conclude that the coverage formula was still applicable. In fact, the coverage formula was reauthorized four times—in 1970, 1975, 1982 and 2006—with overwhelming bipartisan support in Congress, confirming the clear congressional findings that it was still necessary.

    Outraged by the Court’s logic, Justice Ginsburg wrote a 37-page dissent in which she correctly proclaimed that “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” Indeed, if one justice had switched sides, Justice Ginsburg’s dissent could have represented the majority opinion and the preclearance provision would still be in effect.

  • June 15, 2016
    Guest Post

    by Arthur Bryant, Chairman, Public Justice

    *This post originally appeared on Public Justice's blog

    When corporations or the government value money over lives and safety, injure people, or discriminate against them, the courts are where they can be held accountable. But corporate and government wrongdoers don’t want to be held accountable.

    That’s why, for decades, they’ve been waging a massive propaganda campaign to demonize trial lawyers, litigation, juries, and our system of justice. They’re trying to poison public perception by attaching toxic adjectives to everything that could make them pay. They attack “greedy” trial lawyers, “frivolous” lawsuits, “runaway” juries, and “jackpot” justice— and call our legal system a “lottery”—because they don’t want justice to be done.

    Each year, Public Justice counters this self-serving, corporate PR campaign by making sure people know the truth. We recognize the lawyers who made the greatest contribution to the public good by trying or settling a case as finalists for our nationally-prestigious Trial Lawyer of the Year Award.  This year’s finalists, listed alphabetically by case name below, will be honored—and the winner will be announced—at Public Justice’s 34th Annual Gala & Awards Dinner on Sunday, July 24, at the Millennium Biltmore Hotel in Los Angeles.  Their cases show what trial lawyers and lawsuits can do — and why they’re really being attacked.

    Andrews v. Lawrence Livermore National Security

    In 2008, Lawrence Livermore National Laboratory was taken over by a private company, Lawrence Livermore National Security (LLNS), controlled by the Bechtel Corporation and the University of California. LLNS promised to save the federal government $50 million annually. To do so, it then fired more than 400 of the lab’s most senior workers, including many top scientists and researchers. It gave them one hour to pack up their belongings and return their badges before they were “perp-walked” out of the lab.

    Gary Gwilliam and his team at Gwilliam, Ivary, Chiosso, Cavalli & Brewer and Omar Habbas of Habbas & Associates would not let this stand. They sued on behalf of 130 workers, litigated for more than seven years, and won a $2,728,327 jury verdict for breach of contract and breach of implied covenant of good faith and fair dealing for five test plaintiffs. They then negotiated a $37.25 million settlement for 129 of the 130 plaintiffs—the equivalent of over three years’ salary for each. When the defendants insisted that the settlement be confidential, the plaintiffs’ counsel refused—because the public had a right to know the disastrous effects of the government’s attempt to privatize a national lab.

  • June 14, 2016
    Guest Post

    by Ronald S. Sullivan, Jr., Clinical Professor of Law and Faculty Director of the Criminal Justice Institute, Harvard Law School. Mr. Sullivan served as the first Executive Counsel to the Orleans Indigent Defender Program when it was organized in the wake of Hurricane Katrina.

    In 2011, David Brown was on trial in Louisiana. At stake were his liberty and his life. Fortunately for Mr. Brown, he was on trial in a country whose legal system includes important rights for every defendant and a presumption of innocence. If the state, in its years-long investigation into the crime he was charged with, had uncovered any evidence favorable to Mr. Brown or likely to be material to the outcome of his trial and sentencing, he had a constitutional right to that evidence.

    This is a key mechanism of our criminal system intended to create just results.

    And, in fact, the state did have something important to Mr. Brown’s defense. In a case with five co-defendants, prosecutors had evidence of a statement from another co-defendant indicating that Mr. Brown was not one of the two men involved in taking a life.

    Unfortunately, in addition to the constitutional rights of defendants, there was another legal force at play: an insidious tradition of Louisiana’s prosecutors failing to give the accused all the information they are obligated to share. Mr. Brown didn’t get the information. His judge and jury didn’t hear it. He was sentenced to die.

    Soon, the U.S. Supreme Court will consider whether to address Mr. Brown’s case, Brown v. Louisiana. Several legal ethics scholars, myself included, have submitted a friend-of-the-court brief in support of Petitioner Brown. As we wrote in our brief, if the Court doesn’t act, the bad ruling in Brown could usher in a new, darker age of disregarding the rights of defendants to discovery materials that are essential for fair trials. For this reason, and also to hold prosecutors accountable for meeting all their constitutional obligations, the Court should take the case.