This past June, the Supreme Court struck down a key provision in “arguably one of the most successful acts passed by Congress in any area,” said Richard Reuben, the James Lewis Parks Professor of Law at the University of Missouri School of Law, at a recent event on Shelby County v. Holder hosted by the ACS University of Missouri School of Law Student Chapter.
The affected provision of the Voting Rights Act, Section 4(b), contains the coverage formula for determining which jurisdictions are subject to a preclearance requirement before they can amend their voting laws. Section 5 details the logistics of the requirement, which was designed to target states and local governments with a history of discriminatory practices. By declaring Section 4(b) unconstitutional under the claim that the formula was based on obsolete data, the Court essentially nullified Section 5. States that were once required to have a federal court or the Department of Justice sign off on changes to voter law may now proceed unchecked.
Appeals to Section 2 result from policies or practices in voting areas with a discriminatory purpose or result. Sadly, explained Ms. Fernandes, these after-the-fact remedies often take a long time, are very expensive and result in complicated litigation. Violations of the Fifteenth Amendment may also be remedied by preclearance requirements set forth in Section 3(c). Yet intentional discrimination must be a predicate in these cases, she said, and courts do not often find said discrimination.
In a post-Shelby world, Ms. Fernandes identified the need for a new, data-driven preclearance formula; the expansion of federal courts’ ability to institute preclearance requirements; and public notice and disclosure of voting law changes.
The D.C. Circuit’s recent decision addressing the contraception mandate – Gilardi v. United States Department of Health and Human Services – got some things right but many more things wrong. The contraception mandate is the Affordable Care Act’s requirement that health care plans, now mandatory for large employers, include all FDA-approved contraception without any cost sharing by employees.
Francis and Philip Gilardi own and manage Freshway Foods and Freshway Logistics, fresh food processing and delivery companies. The brothers are religiously opposed to contraception and argued that the mandate violates their corporations’ and their own religious rights under the Religious Freedom Restoration Act (RFRA). Under RFRA, “persons” are entitled to exemptions from federal laws that impose a substantial burden on their religious conscience unless the challenged law passes strict scrutiny. A divided panel of the D.C. Circuit held that the brothers were entitled to an exemption from the mandate under RFRA.
What the Gilardi Court got right. The Gilardi Court held that secular corporations are not “persons” capable of religious exercise and therefore cannot bring a RFRA claim. Because RFRA draws from Free Exercise Clause jurisprudence, the D.C. Circuit took the occasion to examine whether corporations had free exercise rights. It rejected such a notion, observing that the Supreme Court has never extended free exercise protection to secular corporations and “has expressed strong doubts about the proposition.” “When it comes to the free exercise of religion . . . the [Supreme] Court has only indicated that people and churches worship.”
Every year, a few blockbuster Supreme Court oral arguments and decisions dominate the news. In 2013, voting rights, LGBT equality, and affirmative action in education took center stage. Many Americans, whether lawyers or not, understood that these decisions could affect their own lives.
Almost under the radar, however, the Court has been chipping away at the very process that enables the American people to seek redress in court when they’ve been injured. In particular, the Court’s decisions enforcing arbitration clauses and class action waivers have closed the courthouse door to litigants harmed by corporate wrongdoing. Most recently, in American Express Corp v. Italian Colorslast Term, the Court ruled that class action waivers are enforceable even when they render it functionally impossible for plaintiffs to vindicate their rights under federal law.
Rich Freer, the Robert Howell Professor of Law at Emory Law School, explains the impact of these cases.
In our criminal justice system, we ask jurors to make incredibly difficult decisions about life and death, guilt and innocence, all without much training, preparation or support. One day you are a mother, father, employee, ordinary citizen; the next, you are deciding whether someone should be executed by order of the State.
This is the American system. Citizens become jurors and are suddenly entrusted with the most important decisions a society is required to make. Jurors are elevated to a constitutional role and given more power than ever before, all in the name of keeping the democratic legitimacy of citizen representation in our criminal justice system.
Just not in Alabama when it comes to the death penalty.
For the ninety-fifth time, a duly constituted local Alabama jury spared the life of a defendant facing the death penalty. In Woodward v. Alabama, the jurors voted 8-4 to sentence Mario Dion Woodward to life in prison without the possibility of parole. A single judge overrode the decision and sentenced Mr. Woodward to death.
In her dissent from a denial of certiorari, Justice Sonya Sotomayor raised significant Sixth and Eighth Amendment concerns about the practice of allowing judges (facing the political pressure of reelection) to impose the death penalty because those judges disagree with the jury’s assessments of the facts. Such reasoning runs directly against the logic of Ring v. Arizona and may violate the constitutional rights of the accused.
However the Supreme Court ultimately decides the constitutional issue, I see a broader problem focusing not on the accused but on the citizen. Simply stated, a judicial override process devalues civic participation and threatens to undermine the legitimacy of the jury system. By disrespecting the jury verdict, the judge is disrespecting the juror’s role in the criminal justice system.
by Brigitte Amiri, Senior Staff Attorney, ACLU Reproductive Freedom Project
Earlier this week the U.S. Supreme Court issued a decision refusing to block a Texas law that has forced more than one third of the women's health centers to stop providing abortion. The Court reached its decision despite the fact that the law is having devastating effects on women in the three weeks that it's been in place. Women have been turned away from clinics. They are frustrated, angry, and in tears. In large parts of the state, including the Rio Grande Valley, there is no abortion provider. One woman whose appointment at a Harlingen health center was cancelled said that she did not have the money to travel north, and she would likely be forced to carry to term.
The law at issue requires doctors to have admitting privileges at a local hospital. At first glance, that sounds reasonable. But this requirement is simply a backdoor attempt to shut providers down. As the District Court found after a trial, admitting privileges will place a substantial obstacle in the path of women seeking abortion, and will do nothing to ensure patient safety. This is why the American Congress of Obstetrician and Gynecologists Texas Medical Association, and the Texas Hospital Association opposed the law.
So where to do we go from here? We keep fighting. As disappointed as we are, we will do everything we can to protect Texas women. We know the public is behind us too. In a poll, 80 percent of Texans opposed this law. As we saw in New Mexico Tuesday night, when asked directly, voters routinely reject laws that attempt to take away personal and private decisions from women and their families.
Our case continues on the merits, and the Fifth Circuit Court of Appeals will hear arguments in January. We hope we will find justice at some point in the court process.