ACSBlog

  • May 7, 2015

    by Devon Ombres

    Today, a panel of the U.S. Court of Appeals for the Second Circuit issued its unanimous opinion in American Civil Liberties Union v. Clapper, giving privacy advocates a victory they have long been seeking in holding that Section 215 of the PATRIOT Act does not authorize the bulk collection of telephone metadata.  Because the Second Circuit found that bulk telephone metadata collection is not permitted by the statute, the court did not reach the constitutional question of whether it would comport with the Fourth Amendment.  Additionally, despite vacating and remanding the lower court’s judgment, the Second Circuit did not enjoin the government from continuing the collection of metadata under Section 215, reasoning that the statute is set to expire on June 1, 2015 and there is significant legislative activity on the horizon that could impact the legal issues in play.

    As an initial matter, Judge Gerald Lynch’s opinion held that the ACLU and its affiliates were not precluded from bringing an action seeking an injunction against the government’s collection program.  Although the government argued that no private cause of action was permitted, the court held that the government’s reliance on “bits and shards of inapplicable statutes, inconclusive legislative history, and inferences from silence in an effort to find an implied revocation of the [Administrative Procedure Act’s] authorization of challenges to government action” was not sufficient to overcome the strong presumption against the preclusion of judicial review.

    As to the program’s validity under Section 215, the court reviewed whether the statute authorized the creation of a “historical repository of information” where the “sheer volume of information sought is staggering.”  The court did not accept the government’s argument that data collection under Section 215 is analogous to the permissiveness provided to prosecution requests for grand jury subpoenas, which cannot be denied unless a court determines “that there is no reasonable possibility that the category of materials the government seeks will produce information relevant to the general subject matter of the investigation.”  The court distinguished those subpoenas as bound by the facts of a particular investigation and a finite timeframe, while the Section 215 metadata collection program had no limitations on subject matter, individuals, or time, and there was no requirement of relevance to any particular set of facts.

  • May 7, 2015
    BookTalk
    Allegiance
    A Novel
    By: 
    Kermit Roosevelt

    by Kermit Roosevelt, Professor of Law, University of Pennsylvania Law School

    In 1896, in Plessy v. Ferguson, the Supreme Court upheld a Louisiana law that segregated railroad cars by race.  The Equal Protection Clause, the majority explained, prohibited discrimination that aimed to stigmatize or oppress a group, but racial segregation did not.  It was, instead, a reasonable, good faith response to the way things were.  In 1954, in Brown v. Board of Education, the Court changed its mind.  Segregation was inherently stigmatizing, it said, and anything to the contrary in Plessy was overruled.

    This pattern ‒ initial acceptance of a certain kind of discrimination followed, years later, by its rejection ‒ has repeated itself with each major civil rights movement in our constitutional history.  Plessy yields to Brown; Bowers to Lawrence; Bradwell v. Illinois (which upheld Illinois’ exclusion of women from the practice of law) to modern sex equality cases like United States v. Virginia.

    But how does this constitutional progress occur?  It is not, I’ve suggested, the work of heroic philosopher judges, discerning the true meaning of the concept of equality.  Nor does it rely on diligent historians, uncovering the understandings of the people who ratified the Fourteenth Amendment.  It happens because social movements change the minds of the American people about what is or is not oppressive, stigmatizing, or invidious.  It is the judicial recognition of a change that occurs, first and primarily, outside the courts.

    That change is the expansion of what Attorney General Francis Biddle called “the compass of sympathy” ‒ the scope of our ability to look at others and see our shared humanity.  Social movements changed the outcome of constitutional cases by convincing Americans that those who had seemed different were not so unlike them after all; that the aspirations and desires of blacks, or women, or gays, were fundamentally the same as those of the rest of society, and that what these groups sought was not special rights or unique privilege but equality and inclusion.

  • May 7, 2015

    by Caroline Cox

    In The New YorkerLincoln Caplan explores how increasing partisanship is leading to the destruction of the Wisconsin Supreme Court. 

    Karen Houppert reports at The Nation on the "haphazard mass arrests" that led to one man staying in a Baltimore jail for 44 hours simply for filming the police. 

    In The Atlantic​Bruce Ackerman and Ian Ayres consider how the Chief Justice's rulings on campaign finance cases have left an opening for Congress to tackle the problems of campaign fundraising.

    Molly Redden discusses at Mother Jones the record number of new laws restricting women's ability to get abortions. 

  • May 6, 2015
    Guest Post

    by Julie Nice, Herbst Foundation Professor of Law and Dean’s Circle Scholar, University of San Francisco School of Law

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    Whatever Justice Kennedy decides on the question of whether states can ban same-sex marriage, the name Obergefell will mark this landmark moment in constitutional history.  That’s fitting because the remarkable story of undying love between James Obergefell and his late husband, John Arthur, is truly what the battle for marriage equality is about.              

    The Obergefell story is about two men determined to marry before one of them succumbed to the ruthless disease that was taking his life.  It’s a story about a medical plane transporting two men to a wedding on a tarmac in a state that would recognize their same-sex marriage.  It’s a story about the pain of the indignity suffered when their home state refused to recognize their love and their marriage on that ultimate of legal documents, the death certificate.  It’s a story about seeking “that same ennoblement” bestowed on heterosexual couples.

    It’s also a story all-too-familiar within my own family.  My sister Suzanne Nice and her partner, Maureen Martin, devoted themselves to the life they built together and sustained for over thirty years.  Through the beauty of their quiet harmony, they provided an inspiring model of loving commitment to all of us in their circle of family and friends.  Maureen died early in 2014, just months before Illinois began recognizing same-sex marriage.

    When Maureen’s death suddenly appeared imminent, we furiously attempted to obtain a medical exemption from Cook County officials to authorize their marriage ahead of the announced date upon which Illinois would begin recognizing same-sex marriages.  But the bureaucratic requirements were impossible to meet given Maureen’s deteriorating condition, and time ran out far too quickly.  I sat in the funeral home with Suzanne, alongside Maureen’s brother and sister, barely able to endure bearing witness to my sister’s pain as she was forced to acquiesce to a death certificate listing Maureen as single and never married.

    As my mind listened to the Justices sparring with the lawyers about the constitutionality of denying same-sex marriage, my heart was with Suzanne and Maureen, James and John, and the countless other devoted same-sex couples who have suffered a similar denial of dignity.

  • May 6, 2015
    Guest Post

    by Camilla Taylor, Counsel and Marriage Project National Director, Lambda Legal. Ms. Taylor is a member of the Advisory Board the Chicago Lawyer Chapter.

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    As the four legal teams representing same-sex couples from Ohio, Kentucky, Tennessee and Michigan left the Supreme Court after oral argument in Obergefell v. Hodges, we felt overwhelmed by the significance of the moment.  The Supreme Court is now poised in our combined cases to decide whether the Constitution guarantees same-sex couples the freedom to marry.  Many of us had worked toward this day for well over a decade or longer.

    A victory in Obergefell would be transformative. Our 

    struggle for the freedom to marry has always been about far more than marital protections; at its essence, our struggle is nothing less than a demand for formal recognition of our common humanity and of the legitimacy of all families.  A win for same-sex couples and their children will breathe new life into our country’s promise of liberty and equality.  Children of same-sex couples will be able to grow up free of government-imposed stigma, and with pride in themselves and in their families.  Lesbian and gay youth will be able to hold their heads higher, secure in the knowledge that they may form families worthy of equal respect in the eyes of their government.

    However, while a victory in Obergefell would be historic, it would not be the end, even for our marriage work.  A movement to secure civil rights is never finished by a Supreme Court ruling, no matter how important that ruling may be.

    As we have seen after past marriage court victories, states determined to discriminate do not simply give up.  Instead, for example, they fight to deny the children of same-sex spouses two-parent birth certificates.  Same-sex spouses who were precluded from marrying until recently, or whose marriages were denied recognition as a result of discriminatory state marriage bans, may still have to fight for crucial marital protections subject to a relationship duration requirement (such as social security benefits for a surviving spouse, which accrue only to those who were married for more than nine months under state law).