Justice Ruth Bader Ginsburg has been a passionate advocate for progressive ideals during her long tenure on the Supreme Court. However, many on the left are urging Justice Ginsburg to retire at the end of the Court’s current term, in order to avoid risking “a Republican president filling her seat.” Garrett Epps at The Atlanticexplains why “this Supreme Court justice will leave the bench when she's ready, regardless of what others think.”
Writing for NYRblog, David Cole—Co-Faculty Advisor for the Georgetown University Law Center ACS Student Chapter—comments on the growing controversy regarding the Central Intelligence Agency’s alleged tampering with a Senate torture investigation. Cole argues that the CIA’s “desperate efforts to hide the details … are only the latest evidence of the poisonous consequences of a program euphemistically called ‘enhanced interrogation.’”
The Cleveland-Marshall College of Law has announced a plan to allow its students the opportunity to end law school early while earning a Master of Legal Studies degree. Karen Sloan at The National Law Journal breaks down the first “risk-free Juris doctor program.”
Ronald K. L. Collins at Concurring Opinions examines how Justice Antonin Scalia’s “view of textualism and originalism … plays out in the First Amendment context.”
At Balkinization, Marty Lederman provides readers with a collection of his commentary on Sebelius v. Hobby Lobby Stores, Inc. A list of ACS resources on Hobby Lobby and other challenges to the Affordable Care Act can be found here.
Peter Hardin at GavelGrab discusses the Tennessee Supreme Court’s decision to uphold retention elections.
Students from Yale Law School wrote a letter admonishing Sen. Chris Coons (D-Del.) for voting against the nomination of Debo Adegbile to head the Civil Rights Division of the Justice Department. Sen. Coons voted against Adegbile because he oversaw an appeals process for a convicted murderer while at the NAACP Legal Defense and Education Fund. Ryan J. Reilly at The Huffington Post reports on the letter.
On Monday, Tarek Mehanna’s lawyer asked the Supreme Court to review his client’s seventeen-year imprisonment by a Boston jury for “providing material support to the Al-Qaeda terrorist network.” Lyle Denniston at SCOTUSblog notes the First Amendment implications of Mehanna’s conviction.
Anticipation is growing as the Supreme Court prepares to hear oral argument for Sebelius v. Hobby Lobby Stores, Inc. In an article for Slate, Adam Winkler—Faculty Advisor for the UCLA School of Law ACS Student Chapter—explains why corporations should have the rights of “legal personhood that are essential to their operations” and why “Hobby Lobby should lose.”
Kirk Siegler at NPR discusses why “California is shaping up to be the next major battleground over the Second Amendment.”
Celebrating Women’s History Month, Cortelyou Kenney at Womenstake discusses the “gains women have made in terms of their representation on the federal judiciary … under the Obama administration.”
As we await a decision from the Supreme Court in the McCutcheon v. FEC money in politics case, the Justices themselves heard from a protester who rose in the courtroom to proclaim that “money is not speech, corporations are not people” and to urge the Court to “overturn Citizens United.”
That this breach was so surprising reminds us how cut-off the Supreme Court is from the life of the country. That separation also comes through in what the Justices had to say in the McCutcheon oral argument. Their comments illustrate flashpoints that underlie the Court’s money in politics cases and shed light on the fundamental fissures we may see in their decision.
1. Does the Court understand the Real World?
A fundamental lack of understanding surfaced regarding the real world context in which aggregate contribution limits operate, the implications and enforcement of other rules, and the need for a developed factual record to make informed judgments.
Several justices expressed concern that the Court was being asked to make a decision that wouldn’t be properly grounded in fact. Justice Sotomayor expressed surprise that the Court was being asked to determine the potential factual implications of striking the limits almost entirely in the abstract, since determining whether the government interest is sufficient to justify the law is impossible to judge in isolation. Questioning McCutcheon’s attorney on his claim that other laws are sufficient to stop corruption, she said:
Don’t you need facts to prove or disprove that proposition?
Justices also questioned the assertion that candidates wouldn’t be aware of who was making large aggregate donations. Justice Kagan observed:
[A candidate] knows all of his hundred thousand dollar donors, there are not all that many of them. He can keep them all in his head in a mental Rolodex.
Justice Sotomayor echoed this:
[I]t’s very hard to think that any candidate doesn’t know the contributor ... I mean, it’s nearly common sense, hard to dispute.
The Roberts Court has been mistaken about the workings of campaign finance law in the past, for example when it incorrectly assumed all the new money let in by Citizens United would be disclosed and transparent. It is a serious thing that the Court appears uninterested in grappling with a record to establish the real world operation of these rules, since their contestation and resolution is at the heart of these cases.
by Kanya Bennett, Director of Policy Development and Programming at the American Constitution Society, Angelyn Frazer, State Legislative Affairs Director at the National Association of Criminal Defense Lawyers, and Nkechi Taifa, Senior Policy Analyst at the Open Society Foundations
In 1989, five African American and Latino boys were wrongly convicted of a heinous crime committed in New York City’s Central Park. Filmmakers Ken Burns, Sarah Burns, and David McMahon document their story in The Central Park Five. As PBS describes, The Central Park Five documentary “raises important questions about race and class, the failings of our criminal justice system, legal protections for vulnerable juveniles, and basic human rights.”
The Central Park Five featured our criminal justice system at its very worst. The police, with great help from the media, made vulnerable juveniles of color the poster children for violent criminal activities or what they coined a “wilding,” a narrative they held on to even when the evidence suggested another story. Prosecutors played detectives and advanced their case against the boys using this flimsy support. And a lawyer whose job it was to poke holes in the district attorney’s assertions allegedly fell asleep, almost every day, during trial.
On Monday, March 10, the Senate voted in favor of cloture for Carolyn McHugh to the 10th Circuit (Utah) by a vote of 62-34.
On Tuesday March 11, President Obama nominated Leslie Joyce Abrams to the Middle District of Georgia. Her nomination was welcomed by many, including Rep. David Scott (D-Ga.) and Rep. Hank Johnson (D-Ga.). However, criticism of President Obama’s other judicial nominees in Georgia continues.
Also on Tuesday, the Senate continued with four cloture votes on nominees to the Eastern District of Michigan:
Matthew Leitman to the E.D. of Michigan, 55-43;
Judith Ellen Levy to the E.D. of Michigan, 56-42;
Laurie Michelson to the E.D. of Michigan, 56-43; and
Linda Parker to the E.D. of Michigan, 56-42.
With successful cloture votes, the Senate was able to vote on the confirmation of these five nominees on Wednesday. All five were confirmed, four with no opposition.
Carolyn McHugh to the 10th Circuit (Utah), 98-0;
Matthew Leitman to the E.D. of Michigan, 98-0;
Judith Ellen Levy to the E.D. of Michigan, 97-0;
Laurie Michelson to the E.D. of Michigan, 98-0; and
Linda Parker to the E.D. of Michigan, 60-37.
Carolyn McHugh will be the first woman from Utah to sit on the 10th Circuit.