Last night, the Oklahoma execution of Clayton D. Lockett was “halted when the prisoner, began to writhe and gasp” in a horrific scene, which had onlookers witnessing “agonizing suffocation and pain.” Lockett suffered a fatal heart attack after the botched lethal injection attempt which used untested compounded drugs. Erik Eckholm at The New York Times reports on this troubling story while Andrew Cohen at The Atlantic highlights its grave implications. According to Cohen, “what happened last night was the inevitable result of a breakdown in government in Oklahoma, where frustration at the continuing delay in the resolution of Lockett's case blinded state officials to the basic requirements of due process. From these officials' perspectives, the fight over this man's fate seemed to be personal, rather than a dispassionate exercise in bureaucracy.”
Peter Williams at NBC News reports on yesterday’s Supreme Court oral argument in Riley v. California and United States v. Wurie, suggesting that “the court could allow police to search phones for evidence in serious crimes but not to rummage through them in minor ones.”
Writing for Reuters, Lawrence Hurley explains why the high court handed “President Obama a victory on Tuesday by upholding a federal environmental regulation requiring some states to limit pollution that contributes to unhealthy air in neighboring states.”
At Balkinization, David Fontana discusses Bruce Ackmerman’s “We the People” trilogy and how understanding “where American constitutional change comes from” can help us “better understand many unique features of constitutional order [in] the United States.”
Earlier this morning, the Supreme Court heard oral argument in two cases which raise the question of whether or not police can search confiscated cellphones of arrestees without a warrant. In both cases, the defendants argued that the information obtained from their cell phones by police was in violation of the Fourth Amendment. NPR’s Nina Totenberg discusses Riley v. California and United States v. Wurie.
Yesterday, the Supreme Court denied cert in Jackson v. Louisiana, a case that examined whether or not a non-unanimous jury verdict violates the Sixth Amendment. At CAC’s Text & History Blog, Brianne Gorod explains why the high court’s failure in taking the case “is not only tragic, it’s inexplicable.”
Yesterday, the U.S. Court of Appeals for the Fifth Circuit heard arguments concerning whether a state law can close the last abortion clinic in Mississippi. Writing for MSNBC, Irin Carmon asserts that “what’s at stake stretches far beyond Mississippi.”
At Just Security, Marty Lederman explains why the Director of National Intelligence James Clapper’s Directive 119, which “prohibits employees of the Intelligence Community from unauthorized ‘contacts’ with the media about intelligence ‘sources’ ” isn’t a “clear-cut matter.”
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.”