• October 12, 2016
    Guest Post

    by Matthew Stanford,  Senior Law Student at the University of California, Berkeley School of Law; Articles & Essays Editor of the California Law Review and President of the ACS Student Chapter at the University of California, Berkeley School of Law

    To the surprise of no one, the first presidential debate was short on substance, long on bluster. But one real issue that emerged from the spin-induced haze was the constitutionality of “stop-and-frisk.”

    During the debate, moderator Lester Holt suggested that the controversial and long used police practice of stopping people on the street and patting them down for weapons had been deemed “unconstitutional in New York, because it largely singled out black and Hispanic young men.”

    An onslaught of Trump and Clinton surrogates followed with their respective positions on the constitutional upshot of U.S. District Court Judge Shira A. Scheindlin’s 2013 decision.

    Prognostications about the narrow ruling’s certain demise on appeal––that is, if the appeal had continued to fruition––inevitably led to accusations of moderator bias. Most notably, former New York Mayor Rudy Giuliani penned an op-ed suggesting that the Second Circuit’s removal of Judge Scheindlin from the case amounted to a reversal of her underlying ruling. To be sure, that logic is flawed: removing a judge is an administrative decision, not a ruling on the merits.

    But a more disturbing trend has emerged from the week’s stop-and-frisk chatter. Far from discussing the merits of the decades-old doctrine that allows police discretion to stop people on the street, the campaigns prefer instead to carry on with the punch and parry about moderator bias and candidate performance––sacrificing yet another critical discussion on the altar of media ratings that has come to define contemporary electoral culture.

  • October 11, 2016
    Guest Post

    *This post was originally published on

    by Adam Levitin, Professor of Law, Georgetown University Law Center

    The headlines look pretty bad: the DC Circuit Court of Appeals held the CFPB’s structure to be unconstitutional in a case called PHH v. CFPB, which deals with kickbacks in captive private mortgage reinsurance arrangements allegedly in violation of the Real Estate Settlement Procedures Act. In fact, however, the ruling is a blessing in disguise for the CFPB. While the 110 page decision is filled with inflammatory rhetoric, it gives the CFPB’s detractors very little succor in the end. The CFPB lost on the decision’s rhetoric, but won on the practical implications. Although the CFPB’s current structure was declared unconstitutional, the court also immediately remedied the flaw by declaring that the CFPB Director is now removable by the President at will, rather than only "for cause" as provided for by the Dodd-Frank Act. There are four critical implications from this ruling:   

    ·    First, the CFPB’s existing rule makings and enforcement actions remain valid and unaffected. That is a huge win for the CFPB. It is business as usual at the CFPB for all intents and purposes.

    ·    Second, the CFPB’s Director is now under direct Presidential political control, but that does not have partisan implications: a GOP-appointed director could be removed as easily by a Democratic president as a Democratic-appointed director could be removed by a Republican president. Now the CFPB Director, instead of running on a five-year term will be on a five-year term that might get curtailed with every change in Presidential administration. That is not a particularly big deal.

  • October 10, 2016

    by Christopher Durocher

    Nearly a decade ago, the Supreme Court held that it is unconstitutional to take race into account in assigning students to particular schools, even if the goal is to integrate those schools. Chief Justice John Robert’s opinion for the majority dismantled two school districts’ desegregation plans and erected a roadblock to the legacy of Brown v. Board of Education. He justified the Court’s holding with the solipsistic truism that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Two cases before the Supreme Court this term present the type of undeniable, explicit racial discrimination that speak directly to the Chief Justice’s colorblind philosophy. How the Court handles these questions of racism will determine the fate of two men and will also highlight the Court’s repeated unwillingness to acknowledge the implicit racism that infects our criminal justice system.

    Pena Rodriguez v. Colorado and Buck v. Davis are cases that in many ways could not be more distinct. Miguel Angel Pena Rodriguez was convicted of three misdemeanors for allegedly attempting to grope two teenage girls. Dwayne Buck was convicted of murder. Mr. Pena Rodriguez was sentenced to two years’ probation and required to register as a sex offender. Mr. Buck was sentenced to death. What they do share are juries that were both infected with explicit appeals to racist stereotypes, which in turn fatally compromised the deliberation process.

    In Mr. Buck’s case, during the penalty phase of the trial his own attorney called an expert witness, Dr. Walter Quijano, who testified that Mr. Buck was more likely to commit crimes in the future because he is Black. In Texas, where Mr. Buck was tried, future dangerousness is an element the jury must unanimously find in order to impose the death penalty. The prosecutor then exploited the expert’s testimony in his closing arguments to convince the jury that Mr. Buck was too dangerous to have his life spared. The jury returned a sentence of death.

    In Pena Rodriguez, the jury was in the midst of heated deliberations, when, according to two jurors’ affidavits, one member of the jury who identified himself as a former law enforcement officer, made a series of racist comments. These included observations that the defendant likely committed the crime because where the juror “used to patrol, nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.” The juror also dismissed an alibi witness, who was also Latinx, because the juror claimed that the witness was an illegal immigrant, though the witness was in fact a legal resident. The jury was unable to reach a verdict on a felony charge, but found Mr. Pena Rodriguez guilty of three misdemeanors.

  • October 7, 2016

    by Lena Zwarensteyn

    This week, the Supreme Court opened its October Term with only eight justices to hear oral arguments. In the 237 days the Court has operated at less than full capacity, the Senate Majority Leader Mitch McConnell (R-Ky.) has remained steadfast in his refusal to allow the chamber he leads the opportunity to fulfill its constitutional duty to provide “advice and consent” on President Obama’s nominee. While President Obama’s nominee to the Supreme Court, U.S. Court of Appeals for the District of Columbia Chief Judge Merrick Garland, has been patiently waiting for any signal of a public confirmation hearing, he joins a cadre of other languishing judicial nominees. The vacancy on the Supreme Court is mirrored in federal courts across the country and is reaching crisis proportions. As Professors Michael Gerhardt and Richard Painter note in their new Issue Brief, “The New Normal:  Unprecedented Judicial Obstruction and a Proposal for Change,” there are 108 current and future vacancies in our federal courts. This represents more than 10% of our federal judiciary, and the shutdown of this vital branch of government means that Americans are shut out.

    Americans seeking their day in court do so in a judicial system that is significantly overburdened and understaffed. The Senate Majority claims they have done enough, yet they have not even done the minimum to ensure that justice is administered in a fair and efficient matter. Since the Republicans took over the Senate leadership in 2015, they have only confirmed 22 Article III judicial nominees to the Courts. Compare this to other presidents who faced oppositional Senate leadership: President George W. Bush had 68 judges confirmed in his final two years in office and President Bill Clinton had 73 judges confirmed in his final two years in office.  One has to go back to the 1950s to find a remote comparison, and even then President Dwight Eisenhower had twice as many judges confirmed in his final two years (44 judges) compared to President Obama.

  • October 7, 2016
    Guest Post

    by Elise C. Boddie, Professor of Law, Henry Rutgers University Professor, Robert L. Carter Scholar

    Buck v. Davis, which was argued in the Court earlier this week, raises a troubling question:  will a person who was sentenced to death, after his trial counsel introduced evidence that his race makes him more likely to be violent, be procedurally barred from raising an ineffective assistance of counsel claim that challenges the constitutionality of that death sentence?  This question is highly technical, but crucially important. At a time when the country is increasingly attentive to grievous racial bias in our criminal justice system, Buck poses a very grave threat to the public’s confidence in the fairness and integrity of the judicial process. [Disclosure:  My former employer, the NAACP Legal Defense & Educational Fund, Inc., represents Mr. Buck.] 

    The facts of Buck alone are deeply disturbing, but the case also raises larger questions about our broader system of justice in matters of race. That this case had to wind its way all the way to the Supreme Court for the possibility of relief, now for the second time, shows how doctrinal and procedural complexities in capital litigation undermine racial justice. It also reveals how differently race is regarded in the criminal justice system when compared to standards of judicial review in civil constitutional litigation. The cavalier treatment of race by the state and lower federal courts in Mr. Buck’s case is wildly inconsistent with the Supreme Court’s interpretation of equal protection doctrine, which treats any governmental use of race as presumptively unconstitutional, regardless of motive or context. Indeed, in Fisher v. University of Texas, the Court twice heard a challenge to a university’s race-conscious admissions policy, even though race had no demonstrable impact on the university’s decision to deny admission to the white plaintiff. There is a tragic irony in the lopsidedness of this judicial scrutiny, where even the faintest consideration of race triggers close review if it threatens to disadvantage a white plaintiff, but the overtly discriminatory use of race—in a way that may have led a black man to be sentenced to death—is buried by courts in procedural technicalities.  

    The case has a lengthy and complicated history, but the core facts are as follows:  Mr. Buck was convicted of capital murder. During sentencing, his court-appointed counsel introduced expert testimony, exploited later by the prosecution on cross-examination, that Mr. Buck was more likely to commit criminal acts of violence in the future because he is black. Let me repeat that:  Mr. Buck’s own attorney inserted evidence into the sentencing proceedings that Mr. Buck’s race was a legitimate factor for assessing his proclivity for future violence. Texas juries are required to find “future dangerousness” unanimously and beyond a reasonable doubt before a defendant can be sentenced to death. There is good reason to believe that this expert testimony —which perpetuates deeply rooted racial stereotypes that black people are predisposed to violence—could have persuaded at least one Texas juror that the death sentence was justified for Mr. Buck. If the Court agrees, it could clear the path for Mr. Buck to challenge the constitutionality of that sentence. (He is not challenging his conviction.)