ACSBlog

  • July 1, 2015
    Guest Post

    by Brandon L. Garrett, Professor of Law at the University of Virginia, and Lee KovarskyProfessor of Law at the University of Maryland Carey School of Law.

    *This post originally appeared at The Huffington Post.

    Monday, the Supreme Court Justices delivered their oral opinion summaries in the Term's high-profile death penalty decision, Glossip v. Gross. Rather than reading from his concurring opinion or from a prepared statement, Justice Antonin Scalia -- still frazzled from release of the same-sex marriage cases -- appeared to be improvising. He accused Justice Stephen Breyer and Justice Ruth Bader Ginsburg of expressing personal "policy preferences," and added that the "two justices are willing to kill the death penalty outright rather than just pecking it to death." Why the defensiveness and outrage?

    Glossip was a 5-4 victory for death penalty states, which retained leeway to use new and untested lethal-injection "cocktails." Scalia was part of the majority but he sounded strangely like he was uttering last words. Justice Samuel Alito's presentation of the majority opinion was also unusually defensive and hostile to the dissenters. Justice Alito insists it is "settled that the death penalty is constitutional." In a career-defining dissent, Justice Breyer showed just how unsettled the American death penalty remains.

    The precise legal question in Glossip was whether states could use midazolam as the anesthetic in a three-drug legal-injection cocktail. For years, states used sodium thiopental, until suppliers stopped selling it for use in executions. Many states turned to pentobarbital, which also became difficult to obtain. Oklahoma turned to midazolam, considered more of an anti-anxiety medication than an anesthetic. After several "botched" executions, the Supreme Court agreed to hear whether improvements to Oklahoma's cocktail -- including a 400 percent increase the midazolam dosage -- satisfied the Eighth Amendment. Holding that it did, the Court seemed to announce a rule that an execution could not be Cruel and Unusual under the Eighth Amendment unless there is a "known and available alternative method of execution that entails a lesser risk of pain." Justice Sotomayor dissented, calling this a "surreal" endorsement of inhumane "human experimentation."

    Justice Breyer did more. Joined by Justice Ginsburg, he wrote a dissent arguing that the death penalty is flat out unconstitutional, and he characteristically loaded his opinion with empirical data. In doing so, Breyer and Ginsburg joined the ranks of predecessors such as John Paul Stevens and Harry Blackmun who, in their later years on the Court, declared they no longer believed that there exists a constitutional way to administer capital sentences. In 1994, an 85 year-old Blackmun penned a memorable single-Justice dissent swearing off his participation in capital process: "From this day forward, I no longer shall tinker with the machinery of death." For Justices Breyer and Ginsburg, the death penalty cannot escape a dilemma's horns -- the procedural protections necessary to make the penalty reliable mean that the process takes so long that it no longer serves its retributive or deterrent purposes.

  • July 1, 2015

    by Caroline Cox

    Chris Weller writes at Business Insider about comments by Georgetown University law professor Paul Butler explaining how pride for the Confederate flag is “to be proud of a legacy of terrorism and violence.”

    At Slate, Leon Neyfakh considers whether bail, which allows the wealthy to walk free while the poor wait in jail, is unconstitutional.

    Marci Hamilton discusses at Hamilton and Griffin on Rights how the decision in Obergefell will affect government and religious institutions.

    At NPR, Nina Totenberg provides an overview in the Supreme Court’s opinions from the last day of the term.

    Moshe Marvit argues at Talking Points Memo that a new Supreme Court case – Friedrichs v. California Teachers’ Association – is a major threat to public sector unions.

  • June 30, 2015
    Guest Post

    by Sam Kleiner, a fellow at the Yale Law Information Society Project 

    With his landmark opinion in Obergefell v Hodges, Justice Anthony Kennedy cemented his legacy as a gay rights icon. “He will be remembered for these decisions perhaps more than any other,” said Camilla Taylor, counsel and director of Lambda Legal’s marriage project. What makes this all the more remarkable, is that Justice Kennedy wasn’t supposed to be a justice at all. He was Reagan’s more conciliatory choice, the one who was “popular with colleagues of all political persuasions,” after the failed nomination of the far more right-wing Robert Bork.

    The effort against Bork has been immortalized in Senator Edward Kennedy’s speech on “Robert Bork’s America.” "To Bork" has entered the American lexicon as a hyperbolic attack on a good person.

    The reality, however, is that Bork was outside the legal mainstream. Whereas Senator Kennedy led an effort to skewer Bork, the chairman of the Senate Judiciary Committee led a far more substantive critique of Bork’s extremism that proved pivotal in the fight over the nomination. That senator was Joseph Biden.

    Bork was nominated with impeccable credentials- a professor at Yale Law School and a Judge on the D.C. Circuit court of appeals. The Senate had traditionally questioned the qualifications of a nominee but an inquiry into their judicial philosophy had not been done in a full-throated manner. Bork, however, had built his academic career disparaging an array of civil rights cases and Biden thought it was necessary to dig in on what exactly this nominee’s views of the Constitution were and what he would do on the Court.

    While others wanted Biden to go after Bork’s personal life, he took the higher road. “When confronted with a request to subpoena Judge Bork’s video rental records in a search for possible pornography, Mr. Biden refused,” noted Jeff Rosen (then a Biden intern).

    Instead, Biden went into an in-depth hearing on Bork’s understanding of the Constitution. Biden, as Rosen noted, focused the “questioning on Judge Bork’s substantive views about the right to privacy." In 1965, the Court in Griswold had ruled that a law banning the use of contraceptives by a married couple was unconstitutional as a violation of the “right to marital privacy.” Professor Bork had built his career criticizing decisions like Griswold and Biden used the hearings as a way to highlight just how extreme Bork was.

    In the hearings, Biden, at some length, prodded Bork on his argument against Griswold. Bork gave “weak-kneed statements from a man known for verbal muscle,” as one historian notes.  Biden’s objective was not to disprove Bork’s views explicitly but he was able to discredit him in the court of public opinion. The strategy worked.

    The concern raised about Bork was that he had always been opposed to the development of new liberties and was unlikely to be a defender of liberty on the Court. “As one imagines the kinds of great new issues that might come before the court in the years ahead, there surely are reasons to fear that on these great issues, Judge Bork will not be there when it counts,” testified Bork’s Yale Law colleague Paul Gewirtz at a Biden-led hearing.

  • June 30, 2015
    Guest Post

    by Robert N. Weiner, partner, Arnold & Porter LLP

    *This post originally appeared on casetext.com.

    The first lawsuit seeking to strike down the Affordable Care Act (ACA) came just seven minutes after the President signed the bill on March 23, 2010. The assaults continued even after the Supreme Court upheld the law as constitutional. For all but those first seven minutes, the ACA has weathered nonstop legal attack, as its opponents sought to enlist judges to undo their political defeats in Congress.

    To that end, an American Enterprise Institute Conference in late 2010 foraged through the 900 pages of the ACA in search of some plausible flaw to eviscerate the statute “as a matter of political hygiene.” All the quest turned up was an awkward phrase in what the Court in King called the “ultimate ancillary provision: a sub-sub-sub section of the Tax Code.” This previously undiscovered provision supposedly barred subsidies that help low-income families afford insurance if their States opted to have the Federal Government establish insurance Exchanges rather than doing it themselves. Congress, in other words, deliberately embedded a self-destruct mechanism deep in the statute.

    Before jumping to the four-word phrase at issue, it is not only useful but necessary to examine its context ‒ the history, purpose, and structure of the ACA, as the Court did in King. Congress enacted the ACA to reduce the number of people without health insurance. The law barred insurers from refusing to cover consumers because of their preexisting illnesses, but counterbalanced that prohibition with a requirement that virtually everyone maintain insurance coverage. To make that requirement affordable, the ACA directed each state to establish a marketplace, called an Exchange, that would function like Travelocity, affording individual consumers the knowledge and leverage to negotiate insurance contracts as favorable as those offered to purchasers of large group policies. To ensure that these Exchanges functioned everywhere, the Act instructed the Secretary of HHS to step in and establish “such Exchange” if the State did not do so itself. As a further step to make insurance affordable, the ACA also lowered the net cost by providing tax subsidies, based on income, for those purchasing policies on an Exchange.

  • June 30, 2015
    Guest Post

    by Sean J. Young, Staff Attorney, ACLU Voting Rights Project

    Yesterday, the United States Supreme Court issued a 5-4 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission, which preserved a vital weapon against partisan gerrymandering, a practice which artificially keeps the dominant political party in power regardless of popular will. The Court held that the Elections Clause of the Constitution, as well as a federal statute (2 U.S.C. § 2a(c)), permit the people of Arizona to use the initiative process to take the congressional redistricting process largely out of the hands of state legislators (those who benefit directly from the redistricting process), and to entrust that important process to an independent body. 

    As has been widely reported, the congressional redistricting process in many places has devolved into an anti-democratic procedure where politicians essentially decide who they want their voters to be. Using demographic models and projections of voting patterns calculated down to the neighborhood-level, districts can be drawn in such a way (often into odd-looking shapes) so as to virtually guarantee an electoral outcome. Both parties are guilty of this. Thus, for instance, in 2012, in states where Democrats controlled the process, their candidates won about 56 percent of the vote and 71 percent of the seats. In states where Republicans controlled the process, their candidates won roughly 53 percent of the vote but 72 percent of the seats.  As one politician has put it, “We are in the business of rigging elections.”

    Though courts have long recognized the anti-democratic nature of partisan gerrymandering, they have thus far been reluctant or unable to stop it. So in states like Arizona and California, the people themselves have taken action. Voter-passed initiatives in both states have put redistricting into the hands of independent commissions, which are required to adhere to neutral redistricting principles such as ensuring compactness and contiguity. Though imperfect, independent commissions have been an important weapon in the fight against partisan gerrymandering.