The Supreme Court opinion in Citizens United, which gives corporations unfettered ability to pump millions into electioneering, is emblematic of a narrow high court majority that is actively advancing corporate interests, Sen. Sherrod Brown told a gathering of law students at the Ohio State University Moritz College of Law.

In his speech, hosted by the law school's ACS law student chapter and the ACS Columbus Lawyer Chapter, Sen. Brown focused on progressive periods in the nation and how they produced lasting advancements for civil rights and economic justice. For instance, he lauded three years in the 1960s as "probably the best three years Congress has every had - 1964, 5 and 6, when Congress and a new president, President Johnson, passed Medicaid, Medicare, the Wilderness Act, and the Economic Opportunity Act, including Head Start; passed the Civil Rights and Voting Rights acts." But Brown said that progressive era resulted in pushback from voters who apparently thought Congress moved too quickly, yet enjoyed the benefits of those laws for many years to come.

He said the current progressive era is receiving enormous pushback from corporate interests. The financial reform package that was recently passed did so over intense corporate interest lobbying - a million per day - Brown maintained. And in Citizens United v. FEC, a slim, but radical, majority of the Supreme Court issued a ruling that will further embolden corporate interests, the senator said.

Brown noted, "For years, all we've heard over and over again from conservatives is that the courts have taken an activist role; that thirty-year drumbeat ... from conservatives is that we shouldn't make laws from the bench, that liberal courts are making law from the bench, this activism from the judiciary is bad for the country." He said that refrain from conservatives has been heard often, "ad nauseam."

"But," Brown continued, "there was really no better example of an activist judiciary legislating from the bench than the Citizens United case. It was a narrow Supreme Court ruling from a radical majority; a majority that always, always, always puts corporate interests in front of everything else."

The Citizens United decision, "will clearly allow corporations to have an even larger influence in our political system," the senator said. Video of Brown's comments is available here or by clicking the picture (right). Video of the entire event, including a question-and-answer session with Brown, is here.

 

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By F. Paul Bland, Jr., senior attorney at Public Justice.

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The consumer and civil rights communities are closely watching AT&T Mobility v. Concepcion, a case that will be argued in the Supreme Court this November. The case could decide the fate of most consumer and employee class actions for years to come.

The Concepcion case involves the widespread corporate practice of using standard-form contract terms that purport to prevent consumers and employees from ever participating in class proceedings. Consumers and employees rarely have time to read the lengthy agreements companies send them, let alone the ability to understand their dense legalese. And even if they did, few consumers or employees could negotiate the contracts' terms.

Many federal and state courts have held such class-action bans unenforceable under state laws providing that contract terms that block individuals from enforcing their rights under consumer protection and civil rights laws. Hoping to sweep aside many of those cases, AT&T Mobility ("ATTM") has asked the Supreme Court to find that at least some of that state law is preempted by the Federal Arbitration Act ("FAA").

Class-action bans dramatically undermine enforcement of consumer- and employee-protection laws. In many circumstances, very few individuals would ever bring a claim (in court, or in a small claims court, or in arbitration) even when those laws are broken. Many people never realize when their rights are violated, for example, and many people do not have the knowledge or skills to begin to pursue a case to protect their rights. For those who know to seek out a lawyer, very few lawyers will handle cases that are quite small, and few if any lawyers will handle fairly complex cases that involve only a few thousand dollars. There are many situations where a case will either be handled on a class action basis or it will never be brought at all.

In the worst case scenario, Concepcion could wipe away the vast majority of consumer and employee class actions for years to come. But that result is far from inevitable. For one thing, ATTM submitted a narrow question in its petition for certiorari, and if the Court sticks to the question presented (as it should), then the decision should be limited. On the merits, if the Court agrees with the vast majority of lower courts, then the decision will change little. If the Court uses this case to grant the fondest wishes of some corporate lawyers for immunity, however, then this case could have the kind of impact on class actions that an asteroid landing in Mexico millions of years ago had on dinosaurs.

For the court to rule for ATTM, it will have to sweep aside a widespread consensus of lower courts. Every single state supreme court to consider the enforceability of a class-action ban embedded in an arbitration clause has resolved the question of enforceability as a matter of state law. The last eight state supreme courts to consider the validity of class bans also happen to have struck them down, but even courts that have upheld class bans have done so by applying state law. In addition, federal circuit courts that have both struck down and upheld class action bans in unconscionability challenges have all examined the issue as one of state law. See here for a much longer blog offering case cites for these propositions.

The corporatist idea that the FAA preempts all state law limiting class-action bans hasn't caught on in the lower courts because there is no serious legal or intellectual basis for it. If the Supreme Court decides to completely federalize the law in this area, it will have to invent from whole cloth new federal law that is not supported by anything in the language of the FAA or in its history.

The only language in the FAA that relates to the question presented in Concepcion provides that agreements to arbitrate will be enforceable only if the agreement is not counter to laws that would lead to revocability of any contract. 9 U.S.C. § 2. In this case, the state laws at issue are the common-law doctrine that exculpatory get-out-of-jail-contract-terms that undermine statutes are unconscionable. This body of law applies to all contracts, does not mention or target arbitration, and thus does not conflict with the Federal "Arbitration" Act.

Also, the Supreme Court has said a number of times that arbitration clauses are only enforceable under the FAA if they let people "effectively vindicate their statutory legal rights." The Court will have to ignore those decisions if it's going to find that the FAA preempts state contract laws that insist that contract terms may not bar individuals from effectively vindicating their rights.

Will the majority of the Court abandon the humble role of umpire to invent sweeping and radical new law? Will scores of state and federal appellate cases be disregarded? Will the FAA be put on an inevitable collision course with the Congress? Or will the Court step back and do the right thing? No one will know for sure until the Court decides Concepcion next spring.

 

The jurors in the federal prosecution of former Illinois governor Rod Blagojevich were only able to render a conviction on one count - lying to the FBI. The jury could not reach a unanimous verdict on the slew of other more serious charges, including the one that he attempted to sell the Senate seat vacated when Barack Obama was elected president. In an op-ed for The New York Times, best-selling author and attorney Scott Turow says the jury's action can be traced to the Supreme Court's recent rulings on regulations of corporate campaign financing.

Turow writes:

I suspect the jury's indecision might have been a reaction at some level to the hypocritical mess our campaign financing system has become, especially in light of recent Supreme Court jurisprudence about political donations.

Turow notes that in a 5-4 decision last summer, the high court said a West Virginia Supreme Court judge should have recused himself in a case involving Don Blankenship, head of the Massey Coal company, because of Blankenship's enormous amounts of campaign contributions to the judge. But Turow continues, the high court "pointedly refused to require the same of other judges who received less grandiose campaign assistance from lawyers and litigants with cases before them."

Then the Supreme Court, earlier this year, issued its headline-grabbing decision in Citizens United v. FEC, which concluded that corporations can spend freely on campaigns.

Turow notes:

Indeed, in Citizens United v. Federal Election Commission, the court decided that such organizations could spend as much as they wished at any time, assuming there was no direct coordination with the candidate. In doing so, the court overturned its own precedents and refused to distinguish the free speech rights of corporations and unions in any way from those of actual people.

The problem with this logic is that corporations have a legal duty not to spend money unless it is likely to improve profits. Unions, too, are expected to make only contributions that will benefit members. As a result, no idealistic patina of concern about good government or values-driven issues can burnish these payments.

...

In any case, the bevy of ways in which donors can get around current spending laws, combined with the Supreme Court's elastic approach to the First Amendment, have left our campaign finance system as little more than a form of legalized influence-buying.

Turow suggests a constitutional amendment may be needed to reverse "the notion that unrestricted political spending deserves protection as free speech. Without that, who could fault a juror for looking around at contemporary political life and feeling that Rod Blagojevich had been unfairly singled out?"

 

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By Rick Hasen, William H. Hannon Distinguished Professor of Law, Loyola Law School - Los Angeles and Publisher, Election Law Blog.

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Does this week's Ninth Circuit order putting on hold any gay marriages in California pending the resolution of appeals in the case mean that the appellate court is likely to reverse Judge Walker's decision declaring California's Proposition 8 unconstitutional? Or, to the contrary, does the fact that the Ninth Circuit also ordered the Proposition 8 proponents to brief the question whether the initiative proponents have standing to appeal in the case mean that the Court is likely to dismiss the appeal without reaching the merits? I believe caution is in order, and that proponents and opponents of gay marriage should read very little into the Ninth Circuit's order as to how that court is likely to decide the Proposition 8 case. But the Ninth Circuit's decision to issue a stay could increase the chances that the Supreme Court ultimately will side with gay marriage supporters.

Let's begin with the tenuous relationship between the stay order and an ultimate resolution of this case in the Ninth Circuit. As ACSBlog readers no doubt know, on August 4, federal district judge Vaughn Walker declared unconstitutional under the equal protection and due process clauses California's Proposition 8, an initiated constitutional amendment which bars same sex-marriage. On August 12, Judge Walker denied the request by Proposition 8's proponents to stay his ruling pending appeal, though he issued a temporary stay to allow the proponents time to seek a stay from the Ninth Circuit. Judge Walker's stay denial raised the question whether initiative proponents have adequate standing to bring an appeal in the case (given that California government officials have aligned themselves with plaintiffs' position that Proposition 8 is unconstitutional and were not going to appeal).

Proposition 8 proponents then sought a stay from the Ninth Circuit; otherwise, under Judge Walker's order, gay marriage would have been legal as of 5 p.m. today. On paper, appellate courts are supposed to give considerable deference to a trial court judge's decision to grant temporary relief such as a preliminary injunction or a stay. In practice, in hot button cases the Ninth Circuit has shown little deference to district court stay decisions and the Supreme Court has shown even less deference to the Ninth Circuit.

Under the Ninth Circuit's general orders, emergency stay motions are decided by a "motions panel" of up to three judges, assigned monthly on a rotating basis. The judges who decided the Proposition 8 stay order are not the same judges who will decide the ultimate appeal. Instead, three other judges - possibly the judges who decided an earlier appeal in the case involving the use of a video feed of the trial - will be deciding the merits of the appeal.

So one reason why the Ninth Circuit's decision on the stay is not a likely reflection of what the Ninth Circuit will do on the merits of the appeal is that the decisionmakers are not the same (unless, of course, the same judges on the motions panel are chosen by chance). Even so, some have suggested that the decision to grant a stay must have reflected a belief on the part of the motions panel that the appeal had merit, because judges are supposed to take likelihood of success on appeal into account in deciding whether or not to grant a stay. Though it is possible that likelihood of success on appeal played a part in the motions panel's decision, my guess (and it is only a guess, because the motions panel offered no explanation for its stay order) is that a stronger factor was a desire to preserve the status quo pending appeal. Without a stay, there could have been a number of gay marriages performed while the case was on appeal, and in the event that Judge Walker's decision was reversed on the merits, then there would be further litigation over the status of those marriages and potentially a lot of disappointed people and difficult financial and family law issues to untangle. Preserving the status quo has always been a very strong factor in considering whether or not a stay should be granted.

Nor would I make much of the fact that the Ninth Circuit motions panel directed the proponents to address the standing question. Federal courts are courts of limited jurisdiction, and it is only prudent to have a jurisdictional issue like standing fully briefed once it was raised by Judge Walker. Indeed, in a little-noticed second order yesterday, the same motions panel also consolidated an appeal of the Proposition 8 ruling by Imperial County (a supporter of Proposition 8), raising the possibility that Imperial County could be found to have standing in the case. If the mention of standing in the first order meant the judges were dubious about standing, the second order meant the judges were thinking of a way out of the standing problem.

There's one more reason why at least some of the judges on the Ninth Circuit motions panel could have supported a stay besides concern about the status quo: It makes it more likely that the Supreme Court would ultimately find Proposition 8 unconstitutional. Had the Ninth Circuit upheld Judge Walker's denial of a stay, the issue would have fallen into the lap of Justice Kennedy (the Supreme Court Justice who handles emergency appeals from the Ninth Circuit) on an expedited schedule. Observers believe he's likely the swing vote on Proposition 8's constitutionality, and an emergency stay request could have brought the issue to him without giving him time for adequate reflection and rumination on the constitutional issues.

Now the case is on the back burner. The Ninth Circuit can be very slow in issuing opinions. There's no deadline after the scheduled December argument for the court to issue an opinion. Once an opinion issues, the losing party can ask for a larger "en banc" panel of Ninth Circuit judges to hear the case. It is even possible that the case could be heard by the entire Ninth Circuit. It is entirely possible for a few years to elapse before the case could get to the Supreme Court. By then, public opinion could shift more firmly toward gay marriage, and it is possible that such an emerging social consensus could influence Justice Kennedy toward striking down Proposition 8.

This case already has had more than its share of twists and turns. But for those who want to predict what will happen in the appellate courts, there's really very little to go on so far. Certainly we should not rely on a procedural order containing no written rationale offered by a different set of decisionmakers than the judges who will decide the merits of the appeal.

A bipartisan group of former senior Department of Justice attorneys and other federal prosecutors recently lodged an amicus brief with the Supreme Court urging it to leave intact a Louisiana jury verdict against prosecutors who withheld evidence in a case that produced a murder conviction. The unique collaboration of the DOJ and federal prosecutors maintains in its friend-of-the-court brief filed in Connick v. Thompson that prosecutors should be responsible for ensuring that constitutional rights are not subverted in the process of securing convictions. The Supreme Court will hear oral argument in Connick early in its forthcoming term, which starts on Oct. 4. 

In the Connick case, a jury awarded John Thompson $14 million, in part, because prosecutors withheld evidence to help secure his murder conviction. Thompson spent 18 years in prison and had come close to being executed before he was acquitted in a retrail. Following his acquittal, Thompson sued Harry F. Connick, who led the district attorney's office at the time Thompson was convicted in 1985. (Connick is the father Harry Connick Jr., the Grammy-award winning singer.) The New Orleans district attorney's office has fought the jury award, arguing that it should not be liable for the actions of prosecutors in the case. As The Associated Press noted, the Supreme Court has "approved only narrow instances in which local government agencies can be sued for wrongdoing of their rank-and-file employees."

Thompson's attorneys have argued that prosecutors violated his rights pursuant to federal law, 42 U.S.C. Sec. 1983, which requires prosecutors to discharge their duties in a manner that does not violate constitutional rights. In Supreme Court precedent regarding Sec. 1983, such as Brady v. Maryland, the high court held that withholding evidence is a violation of prosecutors' obligations. Thompson's legal action maintained that the New Orleans district attorney's office violated the federal law because it failed to train its prosecutors on avoiding Brady violations.

The coalition of former DOJ attorneys, in its amicus brief, states that its "interest is in ensuring that Section 1983 realizes its promise as a remedy for conduct that causes constitutional violations and that the balance of interests carefully struck by this Court's precedents is preserved. The Court's precedent with respect to section 1983 failure-to-train claims promotes respect for the rule of law by holding municipal entities to account when they demonstrate deliberate indifference to constitutional rights and cause constitutional violations. Although successful failure-to-train claims are, and should be, rare, their continued availability strengthens public respect for the criminal justice system, particularly against criticism that the system is indifferent (if not hostile) to the rights of those charged, especially those wrongly charged, with criminal acts."

The coalition includes former Assistant Attorneys General and Acting Assistant Attorneys General Bill Lann Lee and William Yeomans, both ACS participants. Counsel for the coalition of attorneys includes former Solicitor General Paul D. Clement, who served during the administration of President George W. Bush, and Stanford law school professor and ACS Board member Pamela S. Karlan. See the entire amicus brief here.

Oral argument in Connick v. Thompson is scheduled for Wednesday, Oct. 6, 2010.

 

On the 45th anniversary of the Voting Rights Act of 1965, President Barack Obama called the Act "an affirmation that although the arc of the moral universe may be long, it bends toward justice."

The chance for blacks to vote for Obama was itself was a major victory for blacks and the Voting Rights Act, writes Cord Jefferson for The Root, but "sadly, the good news ended there."

Criminal disenfranchisement remains a major barrier to voting, Jefferson writes, citing Human Rights Watch statistics that nearly a third of all black men in Alabama and Florida are permanently disenfranchised by past convictions.

"The issue of felon disenfranchisement turns the spotlight on some uncomfortable facts about who goes to prison in the United States, a country with the highest incarceration rate in the world," ACS board member Linda Greenhouse wrote in a column for The New York Times last month.

In her column, Greenhouse, a Pulitzer Prize-winning journalist, highlighted an opportunity for the Obama administration to take leadership on the issue of felon disenfranchisement. The Supreme Court has asked the Office of the Solicitor General to take a position on whether laws that disenfranchise those in prison or on parole are a violation of the Section 2 of the Voting Rights Act.

States have imposed other requirements that "restrain the right to vote," including a photo ID requirement in Indiana, and a system that relies on outdated information to verify citizenship in Georgia, writes CNN contributor Donna Brazile. Adds Brazile:

Other states have enacted similar laws or have simply refused to comply with federal demands, perhaps betting that they are unlikely to face reprimand from an overburdened federal government. This year, an election administrator in Texas -- a state employee -- publicly mocked the Voting Rights Act's language minority protections, telling an audience that poll workers should simply speak in slow, broken English to Spanish-speaking voters. The administrator was fired.

In addition to state laws that have eroded the Act, the constitutionality of the core provision of the Act, Section 5, has been challenged in multiple lawsuits in recent months, writes Kristen Clarke in The Grio.

But, Clarke adds, "It is perhaps because of the success of the Voting Rights Act that the law has a target on its back."

"A few years ago, people could not vote simply because of the color of their skin," Congressman John Lewis (D-Ga.), who led the civil rights march now known as "Bloody Sunday," said during remarks in Florida recently. "With the passage and implementation of this Act we have witnessed a nonviolent revolution in America," he added in a statement commemorating the Act's anniversary.

On September 28, Congressman Lewis and historian Taylor Branch will discuss the Voting Rights Act during an ACS symposium in Washington, D.C. The symposium will include two panels of leading voting rights experts, who will discuss the Act in light of recent precedent and explore election administration issues in the 2010 mid-term. More details about the event will be announced at ACS's website.

Celebrating the historic confirmation of Elena Kagan to the Supreme Court, President Obama noted in comments at the White House today that Kagan is a trailblazing legal figure who at various occasions has garnered standing ovations from audiences of both ACS and the Federalist Society. President Obama said, "The bipartisan support she received in yesterday's vote is yet another example of the high esteem in which she is held by folks across the political spectrum. There aren't many law school deans who receive standing ovations from both the Federalist Society and the American Constitution Society."

The president also noted, "For nearly two centuries there was not a single woman on the Supreme Court. When Elena was a clerk, there was just one. But when she takes her seat on that bench for the first time in history there will be three women serving on our nation's highest court."

Video of President Obama's remarks is available here. A transcript of the remarks is here.

Reaction to Kagan's confirmation:

Sen. Dianne Feinstein (D-Calif.) told The Washington Post, "Her great strength, I believe, is that of a conciliator, a reconciler, being able to bring people together, and we've had a whole raft of 5-4 decisions."

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said, "Her qualifications, intelligence, temperament and judgment will make her a worthy successor to Justice John Paul Stevens."

In an analysis for The Wall Street Journal, Jess Bravin traces the similarities and differences in the careers of Kagan and Chief Justice John Roberts, now the two youngest members of the court, who "could wrestle over competing visions of American law for decades to come." They followed similar paths - "one groomed by the Democratic legal establishment, the other by the Republican" - they both worked in the administration and in prestigious clerkships, and their personalities overlap, each "exuding confidence without arrogance" and attracting supporters with opposite ideologies.

Sen. Amy Klobuchar (D-Minn.), quoted in Bravin's analysis, said, "She's smart, she's experienced as a manager, a consensus builder, as someone who's been on the front line. ... She will be an intellectual counterweight to Chief Justice Roberts."

Also, in the WSJ article, Erwin Chemerinsky said he doesn't believe Kagan is going to persuade Justice Kennedy, the swing vote, "where Stevens and [retired Justice David] Souter couldn't." "Ultimately, it is still the Kennedy court."

"She brings a keen intellect, considerable talent, and a commitment to core constitutional values," Alliance for Justice President Nan Aron said in a statement praising Kagan's confirmation. "We now call on the Senate to swiftly confirm all lower court nominees, many of whom have been languishing on the floor for months. It is time for the Senate to stop placing politics ahead of equal justice."

For additional information on Kagan, and the confirmation process, see the following ACS material:

Video: Kagan at the 2008 ACS National Convention, "What's At Stake: Law and Justice Policies in a New Administration."

Video: Kagan at the 2007 ACS National Convention, "Congress and the Balance of Power."

Panel Transcript: Kagan at the 2005 ACS National Convention, "The Commander in Chief in the 21st Century."

ACSblog Guest Post: "Kagan Hearings: Did Kagan Bury the Umpire Analogy? Maybe," by Professor Howard M. Wasserman.

ACSblog Guest Post: "Kagan Hearings: Get Shorty!" by Professor Geoffrey R. Stone.

ACSblog Guest Post: "Elena Kagan: In Her Own Words," by Emily J. Martin, National Women's Law Center.

ACSblog Guest Post: "Kagan Hearings: Following Precedents," by Professor David Kairys.

ACSblog Guest Post: "Kagan Hearings: Will Kagan Disappoint Progressives?" by Professor Adam Winkler.

[image via The White House, Lawrence Jackson]

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By Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School. Professor Schwinn is also co-editor of the Constitutional Law Prof Blog.

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There's a lot to criticize in Federal District Court Judge Henry Hudson's ruling earlier this week allowing Virginia's case challenging the individual health insurance mandate to move forward. For example, the ruling gave credence to the recently enacted Virginia Health Care Freedom Act, the state's effort to nullify the federal mandate through legislation that purports to exempt Virginians. The Act was a thinly disguised attempt to legislate standing for the state-to give Virginia an interest in defending its own state laws. But Virginia has no real interest other than making a political statement. Its manufactured standing mocks Article III's case-and-controversy requirement and risks inspiring other states to fabricate standing simply by enacting legislation anytime a majority in a state legislature objects to a federal law.

Then there's the ruling's apparent conflation of Congress's Commerce Clause authority and its taxing authority under the General Welfare Clause. The ruling runs uncomfortably close to saying that congressional authority to tax is cabined by its authority to regulate interstate commerce - a position flatly rejected by the Supreme Court since 1936. In fact the ruling says almost nothing about Congress's taxing power; instead, it falls back on the Commerce Clause, suggesting, with little analysis, that the mandate looks more like a "penalty" (enacted under the Commerce Clause) than a "tax" (enacted under the General Welfare Clause).

These and other similar concerns with the ruling are troubling, but they come at only a preliminary stage of the litigation. The court will have another opportunity to consider the substance of the constitutional arguments, and not merely whether Virginia adequately pleaded its constitutional case. And as Judge Hudson wrote, this court will almost certainly not have the final say in the matter.

Aside from these immediate and serious, but perhaps fleeting, doctrinal concerns, there is another problem with the ruling: The court embraced and legitimized Virginia's theory that the mandate amounts to "regulating non-action," and in so doing transformed a mere political argument into a budding constitutional doctrine.

This "non-action" theory is by now well known: Congress can't require individuals to purchase insurance, because this amounts to regulating non-action; and non-action is inherently non-commercial, beyond Congress's Commerce Clause authority. Opponents of the individual mandate routinely make this argument, and Virginia pressed it hard before the court. The court bit, framing the mandate as "forg[ing] new ground and extend[ing] Commerce Clause power beyond its current high watermark." It wrote that "this case raises a host of complex constitutional issues," but that "all seem to distill to the single question of whether or not Congress has the power to regulate -and tax- a citizen's decision not to participate in interstate commerce."

But the "non-action" theory is constitutionally hollow. The decision to purchase health care without insurance is undoubtedly economic activity within the ambit of the Commerce Clause. We all at one time or another purchase health care - this is different than purchasing three servings of vegetables, the hypothetical that Senator Tom Coburn used to bait Elena Kagan-and the only question is whether we do it with or without insurance. Moreover, the government argued that the mandate was a critical element of the new national health care scheme. Just as the Supreme Court upheld federal regulation of home-grown marijuana for personal medical use as part of a larger federal regulatory scheme in Gonzales v. Raich, so too the mandate should be upheld as a critical part of a larger regulatory scheme that itself is authorized by the Commerce Clause. Finally, the aggregative impact of "non-action" certainly has a substantial effect on interstate commerce. The mandate is every bit as much within congressional Commerce Clause authority as the regulation of home-grown wheat for personal use in Wickard v. Filburn and the regulation of home-grown marijuana for personal use in Raich.

This conclusion is buttressed by the Necessary and Proper Clause and the Court's ruling this spring in United States v. Comstock. In that case, the Court held (7-2) that the Necessary and Proper Clause authorized Congress to enact a law that allows a federal district court to order the civil commitment of a federal prisoner designated as "sexually dangerous," even beyond the term of the prisoner's sentence. The ruling underscores the substantial sweep of the Necessary and Proper Clause and, taken with the Commerce Clause, the vast power of Congress. Federal power may be limited (as in "enumerated"), but in a complex, interdependent society it is not, as we so often hear, limited (as in "slight").

Thus the "non-action" argument isn't a serious constitutional argument at all. Instead, it's merely a political argument. And here's the problem: When opponents of the mandate (or of health reform in general) masquerade their political argument as a constitutional one, they risk constitutionalizing their ephemeral ideals for the sake of short-term, opportunistic politics. As a result, opponents contribute to a constitutional creep-first one judge, then the next, until rhetoric becomes reality. (This strategy -constitutionalizing ordinary political arguments - is played out over several constitutional provisions in today's politics. For example, the so-called "Tenthers" have been pressing their strong and novel states-rights version of the Tenth Amendment through public rhetoric and court cases to challenge federal policies that they don't like. At some point, with sufficient organization and support, their rhetoric could creep into our constitutional reality.) This could lock us all into a Commerce Clause that nobody likes when a future federal policy - perhaps one designed by the mandate's opponents - comes down the pike. For the opponents of the mandate, today's alluring argument against the mandate may become tomorrow's disfavored argument against their own preferred federal policies.

This is - and ought to be - the stuff of ordinary politics, not constitutional law. The debate shouldn't be about whether Congress has authority to enact the mandate; it does. Instead, the debate should be about whether Congress ought to exercise the authority in this way.

But that's not how the court treated the case this week. Instead, the court moved to constitutionalize the "non-action" argument by framing the case in its terms. The decision this week thus represents a first serious step toward transforming this political argument into a constitutional principle.

 

The Senate, by a vote of 63-37 confirmed the nomination of Elena Kagan to the U.S. Supreme Court, making her the 112th justice. A single Democrat, Sen. Ben Nelson, opposed the confirmation, while five Republican Senators, Susan Collins, Lindsey Graham, Richard Lugar, Olympia Snowe and Judd Gregg, voted for Kagan. Kagan, former dean of the Harvard Law School and a frequent ACS participant, becomes the fourth woman selected to the Supreme Court and is President Obama's second appointment to the Court, following the confirmation of Justice Sonia Sotomayor, nearly a year ago.

Senate Judiciary Committee Chairman Patrick Leahy said, "Her qualifications, intelligence, temperament and judgment will make her a worthy successor to Justice John Paul Stevens," The New York Times reported. See a special ACS Web page on resources about Kagan and the confirmation process here.

The U.S. criminal justice system should take a lesson in improvement from the medical community's model of embracing day-to-day errors as "important opportunities to illuminate hidden flaws," recommends the author of a recent ACS Issue Brief.

"The pattern in criminal justice has been to wait for the catastrophic miscarriage of justice. Everyone then looks for an individual or an agency to blame," writes James M. Doyle, a lawyer with Carney & Bassil and former head of the Public Defender Division of the Massachusetts Committee for Public Counsel Services, a statewide public defender agency. "The organizational accident approach is not only a more accurate way to describe what happened in a wrongful conviction; it opens a more productive avenue to remedial action."

In "From Error Toward Quality: A Federal Role in Support of Criminal Process," Doyle proposes the federal government create a national template for routinely reviewing "helpful errors" and dispense funding to localities for analysis of such errors by "everyone-to-the-table" teams of police, prosecutors, defenders, judges and any other relevant players, such as victim's advocates or probation personnel.

Doyle suggests that a federal "learning-from-error initiative" will help identify problems that undermine compliance with the Sixth Amendment, and move the criminal system away from the counterproductive practice of blaming one person or agency for high-visibility errors.

Doyle's Issue Brief is the second in an ACS series on roles the federal government can play in addressing the persistent crisis in indigent defense. Attorney General Eric Holder, Congress, and many other federal policymakers have identified reform of the indigent defense system as a priority.

In the first Issue Brief, "A Legislative Approach to Indigent Defense Reform," law professor Cara H. Drinan writes that the nation's system for upholding the right to counsel for indigent defendants is woefully lacking and needs a strong response by the federal government.

Doyle's Issue Brief is available here. For further discussion of the Sixth Amendment right to counsel, view the video of ACS 2010 National convention panel discussion, "The Federal Role in Improving Indigent Criminal Defense." Southern Center for Human Rights President and Senior Counsel Stephen B. Bright talked with ACSblog about reforming indigent defense services following his participation in the "Federal Role" panel. His interview is available here.