• July 20, 2016
    Guest Post

    by Barry Friedman, Jacob D. Fuchsberg Professor of Law at New York University School of Law, Director of the Policing Project and author of the forthcoming book, Unwarranted:  Policing Without Permission (Farrar Straus and Giroux 2017).

    In light of the deeply troubling events of the last couple of weeks—the shootings by police of Alton Sterling and Philando Castile, and the shooting of police officers in Dallas and Baton Rouge—the country rightfully is preoccupied with how to discuss, and address, issues of policing and race.

    Here, I want to turn to law—which has both exacerbated the problem, and can perhaps offer a somewhat novel solution for how to address it.

    First, the problem. Many people today suggest that one of the reasons why policing falls most heavily on communities of color is unconscious racial bias, or “implicit bias.” There is growing evidence in support of the claim. This is important for two reasons. First, it helps us understand that much of what is happening, or has happened, may have occurred in the absence of intentional racial animus. And second, it explains how—nonetheless—these many individual incidents can together add up to be a national crisis. The phenomenon of unconscious racial bias suggests that when officers exercise their discretion in individual cases, they tend—subconsciously—to be drawn to over-enforcement against racial minorities, which in the aggregate can produce observable and troubling racial effects. 

    To the extent that this indeed is the problem, it is instructive to see how much law is to blame here. One reason why individual biases have such a pronounced effect in the criminal justice system is because of the enormous discretion police officers possess—too much of which is the result of ill-advised Supreme Court decisions. The justices consistently resist adopting bright line rules that limit discretion, while putting such rules in place to grant it. The Supreme Court has said officers may arrest for any offense, no matter how small or insignificant. The Supreme Court also has said pretextual stops—meaning stops that are ostensibly about traffic enforcement but really are just an excuse to look for drugs or other evidence—are just fine. The Supreme Court has upped the incentives to conduct stops and arrests by allowing numerous other actions to follow, be they frisks or full-blown searches. Even if a stop, search or arrest violates state law, the justices have held that any evidence that is obtained still is admissible. The net result is enormous over-enforcement, which the data makes clear has occurred in racially discriminatory ways.

    Then, as is all too familiar, under Supreme Court doctrine it is almost impossible to hold a government liable under the Equal Protection Clause when these practices fall disproportionately on people of color.

  • July 19, 2016
    Guest Post

    by Harsh Voruganti, Founder and Principal of the Voruganti Law Firm

    As of today, July 15, 2016, there are currently 84 vacant Article III federal judgeships across the country, with over a dozen more that will come open in the next few months. In other words, approximately one in ten federal judgeships is currently sitting vacant, leading to judicial backlogs in the affected courts. Unfortunately, due to an obscure Senate theory called the Thurmond Rule, this vacancy rate will only increase in the coming weeks.

    Despite its moniker, the Thurmond Rule is not a formal Senate rule, but rather an informal theory. Under this theory, at some point in a Presidential election year, the Senate will cease considering judicial nominations presented by the President and leave their respective vacancies open for the next President to fill. The exact date at which the Thurmond Rule is triggered is unclear, with some arguing that June 1 is the date the Thurmond Rule is initiated. For his part, Senate Judiciary Committee Chairman Chuck Grassley (R-IA) has indicated his plan to trigger the Thurmond Rule upon the Senate recess in mid-July

    The origin of the Thurmond Rule is unfortunately unclear.  Democrats citing the “rule” during George W. Bush’s Presidency dated it back to Sen. Strom Thurmond’s (R-SC) blocking of judicial nominations made by the Carter Administration in 1980.  However, others argue that the rule had its origins in the failed nomination of Abe Fortas to be Chief Justice of the Supreme Court in 1968.  The “rule” has been cited by both Democratic and Republican Senators in supporting their decision to slow down the judicial nominations of an opposition President. 

    Regardless of the rhetoric on the issue, there is virtually no precedent for a complete shutdown of judicial nominations upon the summer recess. Looking back at the final years of the Carter, Reagan, H.W. Bush, Clinton, and W. Bush Presidencies, each Presidency has seen confirmations of judges occur after the summer recess. In 1980, when the Thurmond Rule was supposedly first invoked, the Senate confirmed two circuit court judges and eleven district court judges after the August recess. In 1988, a Democratic-majority Senate confirmed two circuit court judges and nine district court judges after the August recess. In 1992, a Democratic-majority Senate confirmed three circuit court judges and nine district court judges post-August. In 2000, a Republican-majority Senate confirmed four district court judges in October. In 2008, a Democratic-majority Senate confirmed ten district court judges in late September. Since the “inception” of the Thurmond Rule, every single President has seen district court confirmations post-recess, and three of the last five have seen circuit court confirmations. Averaging out the numbers, a President could reasonably expect one circuit court confirmation and nine district court confirmations post-recess. As there are currently nineteen judicial nominees pending on the Senate Executive Calendar, there is no reason why President Obama cannot see similar confirmation rates.    

    Additionally, many of the nominees confirmed in previous Congresses were nominated and processed late in the Presidential election season. In 1980, the Senate confirmed one judge in December, Justice Stephen Breyer, who was nominated after the Presidential election. In 2008, the Senate Judiciary Committee, under the Chairmanship of Patrick Leahy, held a hearing on ten district court nominations in mid-September, voting and confirming the nominees before the end of the month. Presidents Ronald Reagan and Bill Clinton saw their last judicial confirmations in October of their final term, while Presidents George H.W. Bush and George W. Bush saw theirs in late September. 

    The judicial confirmation pipeline in the Senate today has slowed to a crawl. In contrast to 68 judges confirmed by a Democratic Senate in the last two years of the Bush presidency, only 20 judges have been confirmed by the Republican Senate this Congress. Furthermore, judicial nominees have faced particularly long waits on the Senate floor, with the longest, Jeanne E. Davidson (U.S. Court of International Trade), having waited since February 2015 for a Senate vote. With Senator Grassley’s looming threat to implement the Thurmond Rule, the wait for confirmation votes will likely get worse, not better.     

    Looking at the actual practice of the Thurmond Rule, there is no precedent supporting a shutdown of judicial confirmations after the summer recess. Rather, if one looks at the historical information, the Senate maintains a responsibility to continue processing judicial nominations into late September and October. If the Senate fails to meet that goal, it cannot rely on the Thurmond Rule as a defense.

  • July 19, 2016
    Guest Post

    by Bidish Sarmaan attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans.

    Four decades ago, the U.S. Supreme Court implemented a major, nationwide policy that consolidated prosecutorial authority: it granted prosecutors absolute immunity for acts committed in their prosecutorial role. This decision sheathed prosecutors in protective armor while they pursued criminal convictions through an era of crime-related hysteria, and it eroded one of the few mechanisms available to hold prosecutors accountable. Considering the growing call to acknowledge and address an epidemic of prosecutorial misconduct, now is a critical time to reflect on Imbler v. Pachtman and evaluate whether it holds up to modern-day scrutiny.     

    In Imbler, the Supreme Court held that prosecutors are generally entitled to absolute immunity from civil liability under the federal civil rights statute, 42 U.S.C. § 1983, for actions, taken in their role as prosecutors, that may have violated the rights of a criminal defendant. Absolute immunity is exactly what it sounds like—a blanket and unconditional grant of protection from civil liability. A related doctrine, qualified immunity, also protects government officials from liability, but as the Supreme Court explained in Harlow v. Fitzgerald, only if “their conduct does not violate clearly established statutory or constitutional rights . . . .” Put simply, qualified immunity protects government officials who abide by the rules (although the law defines those rules very narrowly). Absolute immunity protects them from civil liability even when they break the rules.

    As some on the Imbler Court worried, courts have applied absolute immunity broadly, even foreclosing civil suits in cases where prosecutors intentionally violate their constitutional obligation to turn over exculpatory evidence to defendants as required by Brady v. Maryland.

    SCOTUS’s Imbler decision has been critiqued over the years. The opinion turned on two key considerations: (1) the Court’s view of immunities “historically accorded the relevant official at common law;” and (2) “considerations of public policy” underlying that historical rule. The Court’s view about the historical role of absolute immunity for prosecutors has largely been debunked by scholars and by none other than Justice Scalia who, in a concurring opinion joined by Justice Thomas, once observed that “[t]here was, of course, no such thing as absolute prosecutorial immunity when §1983 was enacted.”

  • July 18, 2016
    Guest Post

    by Simon Lazarus, Senior Counsel, Constitutional Accountability Center

    *This post originally appeared on the Constitutional Accountability Center's Text & History Blog.

    Republicans in the U.S. House of Representatives – undaunted despite having come up short for six years with ceaseless efforts to kill or maim the Affordable Care Act – struck again, on Thursday, July 7, and Friday, July 8, with back-to-back hearings in two separate committees. As touted in the headline of their joint press release, the two committees – Ways & Means and Energy & Commerce – sought to “Highlight Obama Admin’s Unprecedented Obstruction to Withhold Facts On Billions In Illegal Obamacare Payments.” 

    The purported occasion for the redundant hearings was the release of a 158 page “investigative report” amplifying House Republicans’ claim that the Administration has funded the ACA “Cost-Sharing Reduction” program without a “constitutionally required appropriation from Congress.”  The cost-sharing reduction (CSR) program currently helps 6.4 million lower income individuals to afford deductibles, co-pays, and co-insurance prerequisites for purchasing health care services and products. Many of these individuals could not afford health care, and therefore might forego buying buy health insurance without it, antithetical to the outcome the ACA was designed to produce.

    The CSR subsidies work in tandem with the ACA tax credit program subsidizing insurance premiums, which the Supreme Court held applicable nationwide one year ago in King v. Burwell, rejecting a high-profile lawsuit by anti-ACA activists. If successful, that lawsuit would have barred the premium assistance tax credits in the 30+ states with exchange marketplaces managed by the federal government, rather than by the state on its own.  

    Much like that failed legal challenge, the committees’ attack on the complementary CSR program, itself the subject of an unprecedented lawsuit by the House Republican majority now pending in the D.C. Circuit Court of Appeals, promotes two persistent partisan objectives: to render the ACA dysfunctional, and to reiterate Republicans’ chestnut that President Obama constantly breaches his legal authority, violating his constitutional obligation to “take care that the laws be faithfully executed.” 

  • July 18, 2016
    Guest Post

    by Stephen I. Vladeck, Professor, University of Texas School of Law 

    *This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.

    None of the capsule summaries of the Supreme Court’s most recent Term will likely include the Justices’ June 9 ruling in Puerto Rico v. Sanchez Valle—in which a 6-2 majority held that Puerto Rico and the federal government are not separate sovereigns for purposes of the Fifth Amendment’s Double Jeopardy Clause, and so they cannot each prosecute the same person for the same criminal offense. Nor will even the most comprehensive assessments likely so much as mention the Court’s denial of certiorari, four days later, in Tuaua v. United States—in which the D.C. Circuit had held that individuals born in American Samoa are not entitled to birthright citizenship under the Citizenship Clause of the Fourteenth Amendment. But at the end of a Term with bigger headlines, and which may come to be seen more generally as the beginning of a new era, the reasoning in Sanchez Valle and the denial of certiorari in Tuaua highlight the Justices’ continuing unwillingness to revisit one of the more troubling chapters in the Court’s history—the early-twentieth century decisions known as the Insular Cases.

    The Insular Cases refer to dozens of rulings (there’s disagreement as to exactly how many) handed down by the Supreme Court in the first decades of the twentieth century concerning the applicability (or lack thereof) of different constitutional provisions to those residing in the United States’ nascent “insular” possessions—territories such as Puerto Rico, the Philippines and even Panama (never mind that it’s not an island).

    Although the Insular Cases cannot easily be summarized, the basic framework they articulated was to distinguish between how the Constitution applied in “incorporated” territories (i.e., territories “destined for statehood”) versus “unincorporated” territories—and to only apply the entire Constitution to the former. Whether specific provisions applied in the “unincorporated” territories turned on case-by-case assessments of whether the constitutional provision at issue was sufficiently “fundamental”—although, to be clear, the answer was usually “no.” Thus, constitutional protections ranging from the right to uniform import and export prices to the right to a jury trial in criminal cases were held inapplicable to many—if not most—of the United States’ new possessions, five of which (American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico and the U.S. Virgin Islands) continue to fly an American flag to this day.