Walter Dellinger

  • January 13, 2012

    by Jeremy Leaming

    This week the U.S. Supreme Court issued at least a couple of opinions and heard oral argument in another case that deservedly grabbed court-watchers’ attention. The high court’s opinion allowing a Michigan church to fire a teacher for discriminatory reasons, and oral argument in the FCC case involving indecency on television are among the actions that garnered a great deal of notice.

    But federal appeals court Judge Edith Jones, writing for a three-judge panel of that court, ruled in favor of one of the country’s most onerous anti-abortion laws. The law, which requires women to undergo an ultrasound and then view images from it, even if they have no interest in doing so, was upheld against a class action challenge lodged by the Center for Reproductive Rights.

    Judge Jones, as NARL’s blog for choice, points out has a staunch anti-abortion background. In 1993, the blog noted that Jones, as a member of the U.S. Court of Appeals for the Fifth Circuit, voted to uphold a Mississippi law requiring “young women seeking abortion care to receive permission from both parents – even if she comes from a home where there is physical or emotional abuse.” And in a 2004 case, Jones wrote, as NARAL’s blog notes, “One may fervently hope that the Court will someday … re-evaluate Roe and Casey [Supreme Court opinions upholding a woman’s constitutional right to abortion] accordingly.”

    Earlier this week in Texas Medical Providers Performing Abortion Services v. Lakey, Jones leading the unanimous panel overturned U.S. District Judge Sam Sparks preliminary injunction against the Texas law finding that it likely violated the First Amendment. Sparks wrote, “The Act compels physicians to advance an ideological agenda with which they may not agree, regardless of any medical necessity, and irrespective of whether the pregnant women wish to listen.”

    Today at the urging of Texas Attorney General Greg Abbott, the federal appeals court panel sped up the effect of its opinion, saying the stringent anti-abortion could be immediately enforced.

    Blasting the Fifth Circuit’s opinion as extreme, the Center for Reproductive Rights said it was mulling an appeal.

  • November 18, 2011

    by Jeremy Leaming

    The House, led by Democratic members, defeated a proposed constitutional amendment to mandate a balanced budget. Opponents of the so-called balanced budget amendment argued that the proposed measure contained no mechanism for ensuring that the federal budget would indeed be balanced and would require courts to intervene in sorting out budgetary matters.

    The measure, similar to one the House passed in 1995, mandates that the federal government could not spend more revenue than it takes in. The proposed amendment, pushed by Rep. Robert Goodlatte (R-Va.), was defeated by a 261 – 165 vote, The Associated Press reports.

    “A constitutional amendment is not a path to a balanced budget,” Rep. Lloyd Doggett (D-Texas) said. “It is only an excuse for members of this body failing to cast votes to achieve one.”

    Earlier this week, Rep. Chris Van Hollen (D-Md.) sent a letter to fellow Democrats opposing the amendment, and urging them to read an ACS Issue Brief released this week examining “the dangers of enshrining a balanced budget requirement within the Constitution.”

    Rep. Hollen’s letter concluded, “A Constitutional amendment that cannot easily be enforced to balance the budget is a hollow gesture that at the very least will be ineffective. At the very worst, a balanced budget amendment enshrined within the Constitution could generate a Constitutional impasse with catastrophic consequences.”

    The ACS Issue Brief by Neil Kinkopf, a Georgia State University law school professor, states, in part, that the proposed amendment “provides no express enforcement mechanism. The leading proposals simply declare that total outlays shall not exceed total receipts, without explaining how this balanced budget is to be achieved. Merely imposing a mandate does not mean Congress will be able to fulfill it.”

  • November 16, 2011

    by Nicole Flatow

    Passage of a balanced budget amendment would “threaten to tear irrevocably the fabric of our constitutional structure,” warns separation of powers expert Neil Kinkopf in a new ACS Issue Brief.

    With the House of Representatives set to vote on a balanced budget amendment proposal this week, Kinkopf’s Issue Brief explains the dangers of inserting policy prescriptions into our founding document.

    Kinkopf, a law professor at the Georgia State University, notes that only once in our history did the Constitution dictate an outcome, when the 18th Amendment was passed, but “[s]uch a failure was this deviation from the Constitution’s design that it stands as the only amendment ever to be repealed.”

    “The founding generation faced divisive controversies that were every bit as momentous as the present-day budget crisis," Kinkopf writes. "Yet they consciously designed the Constitution not to resolve these issues, instead leaving them to be resolved through the constitutionally ordained process of legislation in compliance with constitutionally guaranteed individual rights.”

  • November 8, 2011

    by Nicole Flatow

    Even Supreme Court Chief Justice John G. Roberts expressed concern about secret warrantless GPS tracking by police during oral argument in U.S. v. Jones today, SCOTUSblog’s Lyle Denniston reports.

    When Obama administration lawyer Michael R. Dreeben cited precedent upholding the use of a beeper to track a suspect in public places, Roberts responded, “That was 30 years ago. The technology is very different and you get a lot more information from the GPS surveillance than you do from following the beeper.”

    Justice Stephen Breyer warned that a win for the government in the case would allow 24-hour monitoring over the “public movement of every citizen” and Justice Ruth Bader Ginsburg worried that only a person’s home would be safe from intrusion, Reuters reports.

    In this case, federal officials placed a GPS tracking device on the bottom of Antoine Jones’ car using an invalid warrant, and tracked the car’s movements for 30 days. The GPS took snapshots of Jones’ movements every ten seconds, which were uploaded to a computer and searchable by police, explained O’Melveny & Myers Partner Walter Dellinger during the American Constitution Society Supreme Court Preview.

    The court has previously held that individuals do not have a reasonable expectation of privacy in a public thoroughfare such as a road, where someone could observe their actions. But at what point that reasoning breaks down is the question the justices considered today.

    “You may understand that your neighbor can observe you on a public street when you leave the house,” Dellinger explained during the Supreme Court Preview. “What you cannot expect is that your neighbor will attach a GPS device under your car and use a GPS device to track your every movement.”

    The lower court adopted this reasoning when it held that officials should have obtained a valid warrant, writing, “[w]hen it comes to privacy . . . the whole may be more revealing than the parts.”

    Even a government loss in this case will not preclude police use of GPS tracking, George Washington University law professor Daniel Solove points out in an ACSblog guest post.

    ”Applying the Fourth Amendment to GPS surveillance won’t mean stopping the government from engaging in it,” he writes. “It will just mean that law enforcement officials who engage in GPS surveillance will be subjected to judicial oversight and will be required to justify their need to engage in the surveillance before doing so. These requirements seem reasonable given the fact that GPS surveillance technology can track a person so pervasively.”

    Read Solove’s post here, and watch video of Dellinger’s discussion of the case below.

  • October 26, 2011

    by Jeremy Leaming

    Making life impossible for others is sometimes just not enough. There’s a desire among some zealots to also make it miserable.

    For example, the right to an abortion is a privacy right protected by the Constitution. But a number of states this year have bowed to the pressure of special interest groups, many of them Religious Right outfits, to enact laws restricting the ability of women to obtain abortions. But, as reported by The New York Times, a group called Personhood USA is trumpeting measures that would give legal rights to embryos that would effectively brand “abortion and some forms of birth control as murder.”

    In Mississippi, as the newspaper notes, it is already nearly impossible for a woman to obtain an abortion. And because of the push by Personhood USA, Mississippians will vote in November on a proposed constitutional amendment providing an embryo the same rights as a human.  

    Personhood USA’s website reveals that its ballot initiative drive is invasive – it’s apparently being pushed in “all 50 states.” The group’s website also reveals this is yet another Christian Right effort to limit other people’s rights. (Many of the efforts to defeat marriage quality are driven by Religious Right activists.) Personhood USA states on its About Us, page, that it is “working to respect the God-given right to life by recognizing all human beings as persons who are ‘created in the image of God’ from the beginning of their biological development, without exceptions.”

    Personhood USA, moreover, “desires to glorify Jesus Christ in a way that creates a culture of life so that all innocent human lives are protected by love and by law.”

    Civil liberties groups are not knocking the free speech or religious liberty rights of Personhood USA, but many are attacking its effort to circumvent Supreme Court opinions that have upheld the right to abortion.

    Nancy Northrup, head of the Center for Reproductive Rights, told the newspaper, “This is the most extreme in a field of extreme anti-abortion measures that have been before the states this year.”

    In an interview with ACSblog, earlier this year, the ACLU’s Louise Melling noted the troubling string of state efforts to further restrict abortion, citing as one of the most egregious a North Carolina law that required physicians to encourage pregnant women seeking an abortion to view ultrasound images of their fetuses. (Yesterday, U.S. District Judge Catherine Eagle issued a preliminary injunction of that portion of the law. The law was enacted over the opposition of the state Gov. Beverly Perdue, who called it an extreme measure that interfered with the doctor-patient relationship, The Associated Press reported.)   

    Former U.S. Solicitor General Walter Dellinger (pictured), during this year’s ACS National Convention, also took a shot at state laws requiring doctors to try and influence a woman’s decision to have an abortion.

    Dellinger said, “We hear the talks about government intrusions into health care – that this represents an extraordinary step about liberty. And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about [a] government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods, government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”