Supreme Court

  • October 13, 2016

    by Caroline Fredrickson

    “This is not an election about who’s going to be president just for the next four years. This is an election about the direction of the Supreme Court for the next 40 years”

    Senator Chuck Grassley (R-Iowa)
    The Gazette

    Senator Grassley nicely sums up the importance of Nov. 8.

    If I had to quibble with his quote, I would add that with more than 10 percent of the judgeships vacant in the lower courts this is an election about the direction of the third branch of the federal government for the next generation. 

    Fortunately, the Presidential Commission on Debates announced that Fox News’s Chris Wallace has selected the Supreme Court as one topic for the final debate. But the list of topics is “subject to possible changes because of news developments.” The Supreme Court deserves to be topic A.

    Many articles have documented the proxy fight over the federal courts. But it bears repeating that the election results may continue an almost 50-year run of a conservative majority on the Supreme Court or begin a new period with a more progressive majority.

    Since February, the Court has been ideologically split down the middle with four conservative justices and the same number of progressives. This past month Justice Elena Kagan offered one of the best explanations, that I have heard, on why we need a ninth justice. During a September 16th event at Harvard Law School, Dean Martha Minow asked Justice Kagan about her experience on a Court that has no tie-breaking vote. Below is Kagan’s answer:

  • October 10, 2016

    by Christopher Durocher

    Nearly a decade ago, the Supreme Court held that it is unconstitutional to take race into account in assigning students to particular schools, even if the goal is to integrate those schools. Chief Justice John Robert’s opinion for the majority dismantled two school districts’ desegregation plans and erected a roadblock to the legacy of Brown v. Board of Education. He justified the Court’s holding with the solipsistic truism that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Two cases before the Supreme Court this term present the type of undeniable, explicit racial discrimination that speak directly to the Chief Justice’s colorblind philosophy. How the Court handles these questions of racism will determine the fate of two men and will also highlight the Court’s repeated unwillingness to acknowledge the implicit racism that infects our criminal justice system.

    Pena Rodriguez v. Colorado and Buck v. Davis are cases that in many ways could not be more distinct. Miguel Angel Pena Rodriguez was convicted of three misdemeanors for allegedly attempting to grope two teenage girls. Dwayne Buck was convicted of murder. Mr. Pena Rodriguez was sentenced to two years’ probation and required to register as a sex offender. Mr. Buck was sentenced to death. What they do share are juries that were both infected with explicit appeals to racist stereotypes, which in turn fatally compromised the deliberation process.

    In Mr. Buck’s case, during the penalty phase of the trial his own attorney called an expert witness, Dr. Walter Quijano, who testified that Mr. Buck was more likely to commit crimes in the future because he is Black. In Texas, where Mr. Buck was tried, future dangerousness is an element the jury must unanimously find in order to impose the death penalty. The prosecutor then exploited the expert’s testimony in his closing arguments to convince the jury that Mr. Buck was too dangerous to have his life spared. The jury returned a sentence of death.

    In Pena Rodriguez, the jury was in the midst of heated deliberations, when, according to two jurors’ affidavits, one member of the jury who identified himself as a former law enforcement officer, made a series of racist comments. These included observations that the defendant likely committed the crime because where the juror “used to patrol, nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.” The juror also dismissed an alibi witness, who was also Latinx, because the juror claimed that the witness was an illegal immigrant, though the witness was in fact a legal resident. The jury was unable to reach a verdict on a felony charge, but found Mr. Pena Rodriguez guilty of three misdemeanors.

  • October 7, 2016

    by Lena Zwarensteyn

    This week, the Supreme Court opened its October Term with only eight justices to hear oral arguments. In the 237 days the Court has operated at less than full capacity, the Senate Majority Leader Mitch McConnell (R-Ky.) has remained steadfast in his refusal to allow the chamber he leads the opportunity to fulfill its constitutional duty to provide “advice and consent” on President Obama’s nominee. While President Obama’s nominee to the Supreme Court, U.S. Court of Appeals for the District of Columbia Chief Judge Merrick Garland, has been patiently waiting for any signal of a public confirmation hearing, he joins a cadre of other languishing judicial nominees. The vacancy on the Supreme Court is mirrored in federal courts across the country and is reaching crisis proportions. As Professors Michael Gerhardt and Richard Painter note in their new Issue Brief, “The New Normal:  Unprecedented Judicial Obstruction and a Proposal for Change,” there are 108 current and future vacancies in our federal courts. This represents more than 10% of our federal judiciary, and the shutdown of this vital branch of government means that Americans are shut out.

    Americans seeking their day in court do so in a judicial system that is significantly overburdened and understaffed. The Senate Majority claims they have done enough, yet they have not even done the minimum to ensure that justice is administered in a fair and efficient matter. Since the Republicans took over the Senate leadership in 2015, they have only confirmed 22 Article III judicial nominees to the Courts. Compare this to other presidents who faced oppositional Senate leadership: President George W. Bush had 68 judges confirmed in his final two years in office and President Bill Clinton had 73 judges confirmed in his final two years in office.  One has to go back to the 1950s to find a remote comparison, and even then President Dwight Eisenhower had twice as many judges confirmed in his final two years (44 judges) compared to President Obama.

  • October 7, 2016
    Guest Post

    by Elise C. Boddie, Professor of Law, Henry Rutgers University Professor, Robert L. Carter Scholar

    Buck v. Davis, which was argued in the Court earlier this week, raises a troubling question:  will a person who was sentenced to death, after his trial counsel introduced evidence that his race makes him more likely to be violent, be procedurally barred from raising an ineffective assistance of counsel claim that challenges the constitutionality of that death sentence?  This question is highly technical, but crucially important. At a time when the country is increasingly attentive to grievous racial bias in our criminal justice system, Buck poses a very grave threat to the public’s confidence in the fairness and integrity of the judicial process. [Disclosure:  My former employer, the NAACP Legal Defense & Educational Fund, Inc., represents Mr. Buck.] 

    The facts of Buck alone are deeply disturbing, but the case also raises larger questions about our broader system of justice in matters of race. That this case had to wind its way all the way to the Supreme Court for the possibility of relief, now for the second time, shows how doctrinal and procedural complexities in capital litigation undermine racial justice. It also reveals how differently race is regarded in the criminal justice system when compared to standards of judicial review in civil constitutional litigation. The cavalier treatment of race by the state and lower federal courts in Mr. Buck’s case is wildly inconsistent with the Supreme Court’s interpretation of equal protection doctrine, which treats any governmental use of race as presumptively unconstitutional, regardless of motive or context. Indeed, in Fisher v. University of Texas, the Court twice heard a challenge to a university’s race-conscious admissions policy, even though race had no demonstrable impact on the university’s decision to deny admission to the white plaintiff. There is a tragic irony in the lopsidedness of this judicial scrutiny, where even the faintest consideration of race triggers close review if it threatens to disadvantage a white plaintiff, but the overtly discriminatory use of race—in a way that may have led a black man to be sentenced to death—is buried by courts in procedural technicalities.  

    The case has a lengthy and complicated history, but the core facts are as follows:  Mr. Buck was convicted of capital murder. During sentencing, his court-appointed counsel introduced expert testimony, exploited later by the prosecution on cross-examination, that Mr. Buck was more likely to commit criminal acts of violence in the future because he is black. Let me repeat that:  Mr. Buck’s own attorney inserted evidence into the sentencing proceedings that Mr. Buck’s race was a legitimate factor for assessing his proclivity for future violence. Texas juries are required to find “future dangerousness” unanimously and beyond a reasonable doubt before a defendant can be sentenced to death. There is good reason to believe that this expert testimony —which perpetuates deeply rooted racial stereotypes that black people are predisposed to violence—could have persuaded at least one Texas juror that the death sentence was justified for Mr. Buck. If the Court agrees, it could clear the path for Mr. Buck to challenge the constitutionality of that sentence. (He is not challenging his conviction.)

  • October 6, 2016
    Guest Post

    by Ron Fein, Legal Director at Free Speech For People

    Why do we want to limit the influence of money in politics and what do we tell the courts? For 40 years, since the Supreme Court’s 1976 Buckley v. Valeo decision, the legal arguments for limiting big money in politics have been compelled to focus on “corruption” as the only reason.

    Not anymore. On Wednesday, Free Speech For People (along with partners Indian Law Resource Center, American Independent Business Alliance, American Sustainable Business Council and retired Montana Supreme Court Justice James Nelson) filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit in support of the state of Montana’s campaign contribution limits against a challenge led by noted campaign finance reform opponent James Bopp. The amicus brief advances a political equality argument. The district court had chastised Montana’s voters, who passed the contribution limits by a 1994 ballot initiative, for trying to achieve political equality.

    As background, the Supreme Court’s campaign finance precedent has long insisted that limits on political contributions must be grounded in concern about “corruption” and its appearance. In years past, justices with a pragmatic sense of political reality understood “corruption” to include broader concerns of influence and access; more recently, the Roberts Court constrained it to just mean “quid pro quo” corruption, not much more than bribery. And certainly corruption is one legitimate concern.

    But that is not the only, or perhaps even the main, reason that Americans want to limit the influence of big money. A more fundamental principle is political equality. This concept has been part of our constitutional history since before we had a Constitution. “We hold these truths to be self-evident, that all men are created equal,” not equal in assets or abilities but in their unalienable right “to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” So wrote Thomas Jefferson in the Declaration of Independence. And when the Constitution was submitted for ratification by the states, James Madison assured hesitant readers, worried that Congress would be dominated by the wealthy, thus: “Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune.”