The words of President Lyndon Baines Johnson echoed at the beginning of each program of the Civil Rights Summit in the LBJ Auditorium last week in Austin, Texas. A montage of historic photographs followed onscreen to a soundtrack of songs about change or progress mixed with other recordings of LBJ’s iconic words. I had the privilege of attending the panels on Wednesday and Thursday as well as the address by former President Bill Clinton and the keynote address by President Barack Obama.
I have started to realize that when commemorating the anniversary of certain laws or court decisions like the Civil Rights Act, or last year, with Gideon v. Wainwright, it becomes more than simply a celebration; it is an evaluation of how far we have come and how far we must go, and it is a call to action. As President Clinton said in his speech, saying “thank you” to the politicians and activists who made the signing of the Civil Rights Act possible is not enough.
University of Texas’ President Bill Powers introduced the Summit’s panels by talking about UT’s involvement with civil rights. Powers acknowledged that UT has not always been on the right side of history, and in fact the university played a role in stalling “separate but equal” in Sweatt v. Painter in 1950. Today, the university awaits the a decision by the U.S. Court of Appeals for the Fifth Circuit in Fisher v. University of Texas that was vacated and remanded by the Supreme Court last year. “We stand ready to defend diversity.”
by Peter M. Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, The Ohio State University
* Author's Note: I had the privilege on April 4 of delivering the following remarks as part of a panel on "Creating the Politics of Privacy," a session of the capstone conference for Ohio State's 2013-14 series of campus-wide programs on the distinction between public and private.
America's cultural turn in recent decades toward a glorification of the private and a denigration of the public has coexisted with what quite obviously is a deterioration in privacy. As individuals, we have dramatically less capacity than in earlier decades to control information about even the most personal aspects of our lives. This is not just historical coincidence. The cultural turn to the "private" has actually hurt privacy.
What I mean by a cultural turn is that, for the last 35-ish years, U.S. law and politics have moved away from the public-regarding orientation of the New Deal and its programmatic outgrowths and toward the individualist orientation of Reaganite small-government conservatism. We can see these moves in a variety of ways that implicate the private/public distinction. For example, we know that public institutions, such as schools, simultaneously create both public value and private value. They help both to benefit society through an educated citizenry and to prepare individuals for economic self-sufficiency. Yet our public policy toward schools has increasingly emphasized only their private value as providing persuasive reasons for their support.
Likewise, private action simultaneously has both private and public impacts. What I do as an individual both serves my personal needs and gratifications and imposes externalities on others. Not all externalities are positive. Yet courts and politicians have increasingly resisted treating negative externalities as a sufficient justification for regulation. Supreme Court decisions limiting Congress' powers to keep guns away from schools or to provide federal remedies for domestic violence are perfect examples. The court's 2012 decision that Congress lacked power under the Commerce Clause to compel the private purchase of health insurance was based on legal arguments that earlier courts would have rejected out of hand.
The Justice Department has accused the Albuquerque Police Department of “a pattern or practice of use of excessive force that routinely violated people’s constitutional rights.” Fernanda Santos at The New York Times reports on the 16-month investigation which found that “too often, the officers kicked, punched and violently restrained nonthreatening people … many of whom suffered from mental illnesses,” while other victims “were disabled, elderly or drunk.”
Last week, the U.S. Court of Appeals for the Tenth Circuit heard oral arguments in Kitchen v. Herbert, a case challenging Utah’s ban on same-sex marriage. State officials filed an appeal after the U.S. District Court for the District of Utah held the ban to be unconstitutional last December. Writing for Jost on Justice, Kenneth Jost comments on the legal and “unmistakably personal” implications of the case.
The Federal Trade Commission won an important victory in a case that challenged its authority to “regulate data security under the FTC Act.” Daniel Solove at Concurring Opinions breaks down Federal Trade Commission v. Wyndham Worldwide Corporation, et al.
In a study conducted by the Center for American Progress, Jenny DeMonte and Robert Hanna reveal that in some areas, impoverished students are “less likely to receive highly effective teaching.” In their report, DeMonte and Hanna provide ways to combat this troubling inequality.
In an excerpt from Six Amendments: How and Why We Should Change the Constitution highlighted in The Washington Post, former Supreme Court Justice John Paul Stevens discusses the recent shooting massacres, the influence of the National Rifle Association and “the five extra words that can fix the Second Amendment.”
During the long, hard fight to bring the outdated Electronic Communications Privacy Act (ECPA) into the 21st century, advocates have run into the most unlikely of opponents: the Securities and Exchange Commission (SEC). Yes, the SEC—the agency charged with regulating the securities industry—has brought the ECPA update to a screeching halt. Yesterday the ACLU, along with the Heritage Foundation, Americans for Tax Reform and the Center for Democracy and Technology, sent the agency a letter calling them out on their opposition.
ECPA, enacted in 1986, is the main statute protecting our online communications from unauthorized government access. Unfortunately, as our lives have moved online the law has remained stagnant, leaving dangerous loopholes in our privacy protections. A broad coalition including privacy and consumer advocates, civil rights organizations, tech companies, and members of Congress from both parties has been pushing for an update. Strong bipartisan legislation to update the law has over 200 sponsors and is making serious headway in Congress. Even the Department of Justice—the law enforcement agency with arguably the most to lose in such an update—testified that some ECPA loopholes need to be closed.
But the SEC is pushing back – essentially arguing that they should get to keep one of the loopholes that have developed as the law has aged. When ECPA was passed in 1986, Congress developed an elaborate framework aimed at mirroring existing constitutional protections. Newer email, less than 180 days old, was accessible only with a warrant. Based on the technology of the time, older email was assumed to be “abandoned” and was made accessible with a mere subpoena. Similarly, another category of digital records, “remote computing services,” was created for information you outsourced to another company for data processing. Seen as similar to business records, it could also be collected with a subpoena under the law.
Fast forward to the 21st Century. Now we keep a decade of email in our inboxes and "remote computing services” has morphed into Facebook keeping all our photos or Microsoft storing our Word documents in their cloud. Suddenly the SEC can access content in way it never could before.
This was a slow week for judicial nominations. On Tuesday April 8, Senate Majority Leader Harry Reid (D-Nev.) filed cloture on the nomination of Michelle Friedland to the U.S. Court of Appeals for the Ninth Circuit. On Thursday, April 10, the Senate voted 56-41 in favor of cloture on her nomination. Because she is nominated to a circuit court, Senate rules require 30 hours of post-cloture debate before a final confirmation vote, unless there is unanimous consent to yield back that time. As they have done since the November rules change, Senate Republicans refused to yield. Sen. Reid had said that he would keep the Senate in session for an usual Friday afternoon vote but he changed course Thursday evening, announcing that the confirmation vote for Friedland would take place on Monday, April 28, the first day the senators return from a two week recess.
Also this week, there were conflicting reports about President Obama’s progress on filing judicial vacancies. Some argued that he has been as successful as President Bush because of the number of nominees confirmed at this point in their presidencies. Others, however, argued that raw numbers do not offer an accurate comparison because President Obama has seen more vacancies, yet had a lower percentage of his nominees confirmed.
There are now a total of 85 current vacancies and 23 future vacancies (including three vacancies that will become current if a sitting district court judge is elevated to a circuit court). There are 50 pending nominees, two of whom are nominated to future vacancies. There are 36 judicial emergencies. Thirty-one nominees remain pending on the Senate floor.