Supreme Court

  • January 22, 2015
    BookTalk
    Madison's Music: On Reading the First Amendment
    By: 
    Burt Neuborne

    by Burt Neuborne, Inez Milholland Professor of Civil Liberties, NYU Law, and Founding Legal Director, Brennan Center for Justice

    We honor James Madison as the driving force behind the Bill of Rights.  We recognize him as Thomas Jefferson’s indispensable political lieutenant.  We applaud him as the nation’s fourth president.  But we will never do Madison full justice until we revere him as a great poet.

    Not a literary poet like Wallace Stevens, or a prophet-poet like Abraham Lincoln, or even a peoples’ poet like Ronald Reagan.  Madison’s poetic genius was structural – a mastery of the interplay between democracy and individual liberty.  His poetic voice speaks to us in the harmony of the 462 words, 31 ideas, and 10 amendments – each in its perfectly chosen place and all interacting to form a coherent whole – that is the magnificent poem to democracy and individual freedom called the Bill of Rights.

    Today, we hear only broken fragments of Madison’s music.  Madison’s poetic vision of the interplay between democracy and individual freedom is hiding in plain sight in the brilliantly ordered text and structure of the Bill of Rights, but we have forgotten how to look for it.  Instead of seeking harmony and coherence in the Bill of Rights, the current Supreme Court majority reads the Bill of Rights as a set of self-contained commands, as if each clause – and at times, each word of each clause – existed in splendid isolation from the body of the constitutional text.  Consider the fate of the 45 words in Madison’s remarkable First Amendment:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble; and to petition the Government for a redress of grievances.

  • January 21, 2015
    Guest Post

    by Fred Wertheimer, President, Democracy 21. Democracy 21 is a nonprofit, nonpartisan organization that works to strengthen democracy, prevent government corruption and empower citizens in the political process.                                                                    

    On January 21, 2010, five Supreme Court justices rejected decades of the Court’s own precedent and a century of national policy aimed at keeping corporate money out of our elections to issue the Citizens United decision.

    In issuing the decision, Chief Justice Roberts and his four colleagues wreaked havoc on our democracy and our constitutional system of representative government.

    Five years later, these five justices have bequeathed the following to the American people:

    • More than $1 billion in unlimited contributions that have flowed into federal elections through Super PACs – including more than $300 million through single-candidate Super PACS used by federal candidates and their supporters to circumvent and eviscerate candidate contribution limits.
    • More than $500 million in secret, unlimited contributions that have flowed into federal elections through tax-exempt 501(c) organizations.

    Citizens United has returned to federal elections massive amounts of the same kinds of money that played a central role in the Watergate corruption scandals – unlimited contributions and secret money.

    In 1976, the Supreme Court in Buckley v. Valeo upheld the constitutionality of contribution limits that were enacted in response to the Watergate scandals.  The Court found that “corruption” is “inherent” in a system of unlimited contributions.  The Court also upheld disclosure on the grounds that “disclosure requirements deter actual corruption.”

    In 2012, more than thirty-five years later, U.S. Seventh Circuit Court Judge Richard Posner explained the destructive impact of Citizens United.  Judge Posner, widely considered the most influential conservative judge not on the Supreme Court, said in an NPR interview:

    Our political system is pervasively corrupt due to our Supreme Court taking away campaign- contribution restrictions on the basis of the First Amendment.

    The Citizens United decision, written for the majority by Justice Anthony Kennedy, is based on a series of indefensible, if not astonishing, premises.

  • January 20, 2015
    Guest Post

    by Valerie SchneiderAssistant Professor of Law at Howard University School of Law.

    On Wednesday, January 21, the Supreme Court will hear arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., one of the most important civil rights cases of the 2014-2015 Supreme Court term.  Via this case, the Justices will decide whether disparate impact claims – that is, claims where members of a protected class are disproportionately affected, but where intent to discrimination cannot be proven – are cognizable under the Fair Housing Act.

    Much has been written on the text, legislative history and case law that supports the validity of disparate impact analysis under the Fair Housing Act.  Indeed, as pointed out by many, in the Fair Housing Act’s over 45 year history, every circuit that has examined the issue has either assumed or decided that such claims are cognizable under the FHA.  The Department of Housing and Urban Development also weighed in last year, issuing a rule that clarifies the burden-shifting structure of such claims.  What is less examined, however, is why disparate impact analysis matters, not just as a litigation strategy, but as a behavior-modifier and as a moral imperative.

    Housing segregation was not just sanctioned, but explicitly enforced by public and private actors in our country for over 200 years. During that time, minorities were systematically denied not just access to housing, but access to all of the benefits that flow from housing opportunities:  educational opportunities, economic centers, healthy food, clean air, government services and many other critical threads in the fabric of American life. 

    After over 200 years of enforced segregation, housing discrimination has been prohibited for only 45 years.  Housing discrimination has been outlawed for less than one quarter of this country’s history. To say that prohibiting acts of intentional discrimination alone can reverse the ill-effects of our country’s long relationship with housing segregation is a fallacy.

  • January 9, 2015
    Guest Post

    by Sejal Zota, Staff Attorney, National Immigration Project of the National Lawyers Guild

    Moones Mellouli is a native of Tunisia, but a lawful permanent resident of the United States, engaged to marry a U.S. citizen. The federal government is trying to deport Mellouli for his Kansas conviction for possessing a sock – yes a sock! – deemed drug paraphernalia when used to conceal or store drugs. ACS thrives on its law-student participation, so let’s build a hypothetical with socks to illustrate this important Supreme Court argument. When a DOJ attorney steps to the podium at the Court on Jan. 14 to defend this deportation order, imagine for a moment his credibility if he walked up wearing two different colored socks; say a pink argyle and a green striped one.

    But these socks would likely be hidden by the podium -- so imagine, instead, that he walked in on his hands to parade his mismatched stockings before the justices. Far-fetched perhaps, but the eyebrows this would raise should match the justices’ reaction to the government’s mismatched administrative interpretations of the single statute at issue here, Section 1227(a)(2)(B)(i) of the Immigration and Nationality Act.   

    First things first, this statute itself in no way calls for Mellouli’s deportation. It specifically calls for the removal of “any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance (as defined in section 802 of Title 21).” But the record of Mellouli’s conviction does not disclose anything about the drug he had socked away.  Kansas law bans plenty of substances -- a list far broader than those defined in section 802 of title 21. For example, salvia is on the Kansas list, a type of mint plant, which Miley Cyrus (another adventurous dresser) recently made news smoking.

    The Board of Immigration Appeals (BIA) is the administrative agency responsible for interpretation of this and other immigration statutes. Courts typically give administrative agencies a fair amount of leeway to interpret statutes. This principle is known as Chevron deference.  But this deference is not free for the taking. Federal courts don’t give it when the agency interpretation bears little relation to the statute, and they throw deference completely to the side when the agency starts offering inconsistent interpretations of a single statute. The government is asking for Chevron deference in this case, but suffers from both of these problems.

    The plain language of the federal statute requires the state paraphernalia conviction be directly and necessarily tied to a controlled substance under federal law. Keeping paraphernalia used with salvia and other Kansas-forbidden drugs may be criminal in Kansas, but these drugs are not on the federal list of controlled substances. There is no necessary federal tie Mellouli’s Kansas crime, and no basis for interpreting the statute otherwise. 

  • January 8, 2015
    Guest Post

    by Steve Sanders, Associate Professor of Law, Maurer School of Law, Indiana University Bloomington.

    * This piece originally appeared on The Huffington Post.

    The Supreme Court has been reluctant to jump into the question of same-sex marriage, preferring to let the issue percolate through state-by-state litigation in the lower federal courts.  But the time has come for the justices to come out of hiding.  The denial of marriage equality is a national problem, not a state-level problem, and it requires a national resolution that only our nation’s constitutional court can provide.

    At the moment, 35 states allow marriage equality, while 15 forbid it.  The anti-equality states not only refuse to allow same-sex marriages to be licensed and celebrated; 14 of them also refuse to recognize marriages from sister states where such unions are perfectly legal.  Petitions from cases in four of those states – Kentucky, Michigan, Ohio, and Tennessee – will be considered by the justices at their next private conference this coming Friday.

    One reason marriage equality is a national issue is that our current patchwork of marriage laws imposes unreasonable, indeed absurd, burdens on same-sex couples’ security in their marriages and their freedom to move from state to state.  A married gay couple from a pro-equality state can relocate for job, education or family reasons to an anti-equality state – as long as they’re willing to give up their marriage, and perhaps even their property and parental rights.  A rational legal regime cannot tolerate this state of affairs.

    In a 2012 article in the Michigan Law Review, I first proposed that the Constitution provides not only a right to get married, but a right to remain married.  Multiple federal court decisionsincluding one from the 10th Circuit U.S. Court of Appealsinvolving Utah’s marriage laws, have since endorsed this principle.  There is also an argument to be made that denial of interstate marriage recognition offends the Constitution's Full Faith and Credit Clause.