• July 18, 2014
    Guest Post

    by Gabriel J. Chin, Professor of Law, UC Davis School of Law

    *Noting the 50th anniversaries of Freedom Summer and the Civil Rights Act of 1964, ACSblog is hosting a symposium including posts and interviews from some of the nation’s leading scholars and civil rights activists.

    Practicing the art of the possible rather than seeking perfection may be an inevitable feature of civil rights legislation. Even the greatest and most honored laws have loopholes; the Thirteenth Amendment, for example, allows slavery based on conviction of crime, any crime, and the exception was liberally exploited in the former Confederacy after Redemption. The Fifteenth Amendment seems to countenance discrimination on the basis of sex, and a protection in earlier versions of the right to hold office was stripped out before enactment.        

    Nevertheless, I’ll take them; I do not criticize the Reconstruction Amendments or their makers for being merely as good as was possible at the time. Similarly, it would not have been better to give up what was good in the 1964 Act simply because of its deficiencies. At the same time, recognizing a law’s compromises and gaps is essential to understanding its real import, and to thinking about how policy can be shaped to fully reflect the principle at stake.

    Among the important compromises in the bill are exemptions from the employment discrimination prohibition of Title VII for businesses of less than 15 people, and the exemption from the Public Accommodations provision of Title II for small, owner-occupied motels and lodging establishments. Presumably, these exceptions exist for the benefit of racists who grew up in a racist system through no fault of their own. Congress might reasonably have concluded that forcing close contact between racial minorities and these racists might have been more trouble than it was worth.  But these exemptions should have been time-limited; at this point, all but the oldest business owners spent their entire lives, or at least their adulthoods, in a nation were discrimination has clearly been against the law and public policy. The case for continued compromise of the policy is not obvious.

    Another major gap in the Civil Rights Act is the lack of protection against discrimination of members of the LGBTQ community. Clearly, this was no oversight. The desegregation struggle was to some degree a Cold War propaganda effort. Fair treatment on the basis of race was a “cold war imperative,” and so too was controlling the potentially subversive effects of sexual minorities. Thus, the 1965 Immigration Act, a close cousin of the Civil Rights Act, eliminated discrimination on the basis of race in immigration law, but simultaneously clarified and strengthened a prohibition on gay and lesbian immigration. The Civil Rights Act makes little sense unless it recognizes a fundamental human dignity and equality. The Americans with Disabilities Act and the Age Discrimination in Employment Act closed unjustified gaps in the coverage of the original law, and the prohibition on gay immigration is gone. Continuing to allow discrimination against gays and lesbians in the Civil Rights Act is indefensible.

  • July 18, 2014

    The following interview of Harvard Law School Professor Laurence Tribe about his book Uncertain Justice: The Roberts Court and the Constitution (Laurence Tribe and Joshua Matz, Henry Holt and Co., 2014, ISBN 978-0-8050-9909-6) took place in the Ohio Room of the Capitol Hilton in Washington, D.C. on June 20 during the 2014 Convention of the American Constitution Society. The Interviewer is Frank Housh of the Housh Law Offices, PLLC, in Buffalo New York, Chair of the ACS WNY Lawyer Group and a member of the National Book Critics Circle.



    Your book seems to consciously avoid some of the characteristics of books written for the legal profession, such as voluminous footnotes and block quotes.  Was this a book meant for the general public?

    Laurence Tribe

    It wasn't so much that I consciously was not writing a book for lawyers. I was consciously not writing a book only for lawyers. I definitely want the legal community to get a better understanding than it seems to have displayed about what makes the Supreme Court operate the way it does, what drives the decisions, why the standard sort of press accounts are such oversimplified caricatures. At the same time, I certainly wanted to speak to my own colleagues and the people who teach constitutional law with fresh insights. So I didn't want it to be only for non-lawyers, but I wanted it to be very broadly accessible. So that for me, as soon as someone like Doris Kearns Goodwin said that she thought everybody would enjoy my book it, find it thrilling and fascinating, that's what I was aiming for—because I think that lawyers too often speak only to one another and judges and there's a kind of clique and almost a sort of inside mentality of the high priesthood of the law that I wanted to break through.


    I guess that's what I meant by the question. It seems that you were constantly trying to avoid legal speak, legalese, that often accompanies writing by lawyers for lawyers.

    Laurence Tribe

    Right. And all the talk of levels of scrutiny and intermediate review and so on, things that are substitutes for thought very often, and that are pigeon holes, but very few birds are pigeons. 


    I interpreted your book, especially the Prologue and Epilogue, as an attempt to write a historical perspective on the Roberts Court during its existence. Is that a fair statement? 

    Laurence Tribe

    It's not a retrospective view as it would be if I was writing about the Hughes, Taft, Stone,  Warren, or Burger Courts. It’s a Court in process; it's a Court that's ongoing. We're living through it and the world that we're living through is being constantly reshaped in profound and dramatic ways in respect to issues of personal anonymity, issues of whom you can marry, who can carry a gun, who can vote, what kinds of government action can be based on race and in what way, and what are the limits of the President's powers. It is really a book about things that are very much in the news and that affect all of us, but that most of us in a society that is self-governing understand far too little about. So I wanted to do my bit in overcoming that knowledge gap, that understanding gap.

  • July 18, 2014

    by Rebekah DeHaven

    The Senate earlier this week voted 54-43 for cloture and 56-43 to confirm Ronnie White to the Eastern District of Missouri. White -- the first African American to serve on the Missouri Supreme Court -- was first nominated to the Eastern District of Missouri 17 years ago by President Bill Clinton. His nomination was defeated when then-Senator John Ashcroft accused him of being soft on crime.

    The Senate Judiciary Committee on July 17 voted to send three nominees on to the full Senate:

    • Pamela Harris, nominated to the Fourth Circuit (Maryland), by a vote of 10-8;
    • Pamela Pepper, nominated to the Eastern District of Wisconsin, by a voice vote; and
    • Brenda K. Sannes, nominated to the Northern District of New York, by a voice vote.

    There are now a total of 60 current vacancies and 24 future vacancies (including one vacancy that will become current if a sitting district court judge is elevated to a circuit court). There are 28 pending nominees, one of who is nominated to a future vacancy. There are 22 judicial emergencies. Thirteen nominees remain pending on the Senate floor.

    For more information on judicial nominations, see the latest from “In the News” and “Recommended Readings” on, a project of ACS.

  • July 18, 2014

    by Ellery Weil

    From The Huffington Post, lieutenant gubernatorial candidate Lucy Flores speaks out about her position on reproductive rights, as influenced by her own abortion at age sixteen.

    In light of several recent controversies surrounding attorneys’ representations of controversial defendants, San Francisco Public Defender Jeff Adachi for The Sacramento Bee argues that criminal defense lawyers are “safeguards against vigilantism, kangaroo courts, and mob justice.” (Adachi is a member of the Bay Area Lawyer Chapter’s Board of Advisors.)

    Ciarra Torres-Spelliscy of the Brennan Center for Justice argues that, despite an outwardly polarized government, bipartisanship is still present in Congress, on issues including voter reform.

    From SCOTUSblog, Florida will take the question of same-sex marriage to a higher court, after officials in Monroe County were required to marry same-sex couples.

    Louise Melling of the ACLU argues that Hobby Lobby, and particularly the potential it opens up for discrimination against the LGBT community, violates basic human dignity of those refused services.

  • July 18, 2014
    Guest Post

    by Arthur Bryant, Chairman, Public Justice

    *This piece was originally posted in Public Justice's blog.

    An eye-opening piece by Stephen Davidoff Solomon in The New York Times highlights a huge, unappreciated danger of corporations requiring employees to sign mandatory arbitration “agreements” to get or keep their jobs – hiding outrageous misconduct, including sexual harassment. 

    Solomon demonstrates that mandatory arbitration isn’t just bad because it bars workers from having their day in court. It also keeps misconduct – including extensive sexual harassment – secret from investors, customers, other workers and the public, so bad behavior and actors can thrive.

    Dov Charney, the CEO of American Apparel, was unanimously fired by the company’s Board of Directors late last month. Charney was dramatically over-the-top and openly publicized his sexual focus. In 2004, a female reporter from Jane magazine watched him engage in oral sex and then wrote about it. The article was full of quotes from Mr. Charney like, “Masturbation in front of women is underrated.”

    When a series of sexual harassment charges were made, Charney continued with his Board’s full support. After the company’s financial performance decreased, however, and an arbitrator issued a finding of sexual harassment, American Apparel let him go.

    Charney got away with it for so long, at least in part, because employees were required to sign agreements to have all disputes handled through arbitration. As a story in the New York Times explains:

    Arbitration hearings, unlike trials, are usually closed, and any filings are more likely to be sealed, often enabling defendants to avoid embarrassment and maintain their powerful positions.