Leading gay rights groups are directing their efforts to promoting civil rights for gays and lesbians throughout the south. The “new strategy reflects the growing worry within the movement that recent legal and political successes have formed two quickly diverging worlds for lesbian, gay, bisexual or transgender Americans: one centered on the coasts and major cities, and another stretching across the South.” Nicholas Confessore and Jeremy W. Peters at The New York Times have the story.
Writing for The Atlantic, Andrew Cohen discusses Louisiana’s “broken justice system” and why, “by allowing non-unanimous verdicts in murder trials, the state makes it possible for prosecutors to accept minority jurors—and then discount their views.”
Tomorrow, the Supreme Court will hear oral argument in two cases which raise the question of whether or not police can search through confiscated cellphones of arrestees without a warrant. Lyle Denniston at SCOTUSblog previews Riley v. California and United States v. Wurie.
At ISCOTUSnow, Christopher Schmidt discusses Justice Sotomayor’s dissent in Schuette v. Coalition to Defend Affirmative Action, and why the Justice’s “portrayal of oral dissenting as ‘entertainment for the press’ is not only refreshingly candid, it also happens to be a remarkably accurate.”
Debbie Elliott at NPR discusses one Mississippi abortion clinic’s fight to stay open.
On Monday, the Supreme Court “declined to review an executive order issued by Florida Governor Rick Scott that had required all state employees take random drug tests,” leaving in place a decision by the U.S. Court of Appeals for the Eleventh Circuit that Gov. Scott’s order was too broad.
Shalini Goel Agarwal of the American Civil Liberties Union, who represents the American Federation of State, County and Municipal Employees in the litigation, stated that “without a threat to public safety or a suspicion of drug use, people can't be required to sacrifice their constitutional rights in order to serve the people of Florida.” Lawrence Hurley at Reuters has the story.
On Tuesday, the high court heard oral argument for a case involving “a request from television broadcasters to shut down Aereo, an Internet start-up they say threatens the economic viability of their businesses.” Adam Liptak at The New York Times breaks down American Broadcasting Companies, Inc. v. Aereo, Inc.
Writing for The Daily Beast, Michael Waldman explains why, when it comes to “executive actions to improve our democracy” President Obama “should go further on voting and transparency to make government work better.”
TPM’s Sahil Kapur notes “the Supreme Court's unprecedented public clash over race.”
by Gabriel J. Chin, Professor of Law, University of California Davis School of Law
Schuette v. Coalition to Defend Affirmative Action (BAMN), decided this week, did not deal another blow to affirmative action, exactly, but it upheld an earlier attack. The justices, 6-2 with Justice Kagan recused, approved a Michigan law prohibiting voluntary affirmative action in higher education. The eight participating justices issued five separate opinions.
In 2006, the voters of Michigan responded to the Court’s 2003 decision in Grutter v. Bollinger, allowing affirmative action to promote educational diversity by passing an initiative banning it. The Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary persuaded a panel of the Sixth Circuit, and then a majority of the court en banc, that Michigan’s ban was unconstitutional. The Sixth Circuit was on firm ground; Washington v. Seattle School District Number 1, a 1982 decision, invalidated an initiative banning voluntary bussing to achieve racial integration. The laws at issue were, seemingly, indistinguishable: Both involved initiatives meant to squelch voluntary measures to achieve racial integration, in situations where remedies where not legally required. The Seattle case built upon earlier decisions invalidating anti-civil rights initiatives.
I read Justice Kennedy, whose plurality opinion was joined by the Chief Justice and Justice Alito, as distinguishing Seattle School District Number 1 on a subtle point: the identity of the beneficiaries. Voluntary bussing to achieve integration has often been defended because it benefits the racial minorities or other disadvantaged pupils who are bussed. Prohibiting voluntary bussing harms minorities, and thus might be a subject of equal protection concern. The trick, though, is that since Bakke, in 1978, diversity has been the compelling interest justifying voluntary affirmative action in higher education. African-American students are not admitted under Bakke or Grutter primarily for their own benefit, but instead, for the benefit of other students – thus Richard Delgado’s famous observation that affirmative action is a “majoritarian device” for the benefit of whites. Since affirmative action in higher education cannot be primarily for the benefit of minorities, its elimination is also not necessarily to their disadvantage. Thus, unlike this case, Justice Kennedy explained, the older cases in which the court invalidated initiatives “were ones in which the political restriction in question was designed to be used, or was likely to be used, to encourage infliction of injury by reason of race.”
* Garces is an Assistant Professor of the Higher Education Program and Research Associate of the Center for Study of Higher Education at Penn State College of Education. Kidder is the Assistant Executive Vice Chancellor at UC Riverside. Orfield is the Professor of Education, Law, Political Science and Urban Planning and Co-Director of the Civil Rights Project/Proyecto Derechos Civiles at UCLA.
Chief Justice Hughes famously said that a dissenting opinion is “an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” Dred Scott, the Civil Rights Cases, Plessy, Korematsu—In these and other landmark race-related cases, dissenting Justices spoke eloquently to “the intelligence of a future day” in laying bare the errors in the holding and reasoning of the Court’s majority opinions.
Justice Sotomayor’s dissenting opinion in , joined by Justice Ginsburg, is both brooding and compelling in the way it speaks to an intelligence of a future day, a day when, “as members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.”
We deeply regret the decision by the Supreme Court upholding Michigan’s ban on race-sensitive admissions as constitutional and overturning the Sixth Circuit’s en banc ruling that the referendum violated the federal constitutional guarantee of equal protection. On the heels of recent voting rights and campaign finance decisions—decisions that not only create enormous barriers but further weaken minority political power and increases the power of money—the Schuette ruling exemplifies how legal decisions can ignore the stark realities of our nation and the deep racial inequalities that continue to exist in America.
A new Justice Department initiative could expand clemency eligibility for nonviolent drug offenders. Announced Wednesday by Deputy Attorney General James M. Cole, the plan “would canvass the entire federal prison population for the first time to find inmates who committed low-level crimes and could be released early.” Matt Apuzzo at The New York Times examines the implications of the DOJ’s decision.
Justice Sonia Sotomayor read her impassioned dissent in Schuette v. Coalition to Defend Affirmative Action from the bench Tuesday, stating that the plurality were “out of touch with reality [and] one not required by our Constitution.” MSNBC’s Adam Serwer reports on the “simmering tensions over the high court’s approach to race.”
Garret Epps at The Atlantic explains how Seventh Circuit Judge Richard Posner’s opinion involving a chicken-gutting case, demonstrates “how judges change details they don’t like.”
Joel Mintz at the CPRBlog explains why the Environmental Protection Agency’s Final Enforcement Strategic Plan “contains a modest silver lining in an ominous dark cloud.”
At Womenstake, Beccah Golubock Watson discusses a bipartisan effort by a group of senators to reduce sexual assault on college campuses.