• June 19, 2015
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    I do not like the idea of confederate flags on license plates issued by the State of Texas, but I found the Court’s reasoning very troubling in allowing the Texas Department of Motor Vehicles to prohibit this. In Walker v. Texas Division, Sons of Confederate Veterans, the Court in a 5-4 decision, held that the Texas Department of Motor Vehicles did not violate the First Amendment in refusing to issue a license plate with the confederate battle flag.

    Texas, like all states, requires license plates on cars. In Texas, people can have either the general type of plates issued by the state or they may have specialty plates. One type of specialty plates are those where a non-profit organization asks the Texas Department of Motor Vehicles Board to approve a design and then issue plates with it. The Texas Division of the Sons of Confederate Veterans proposed a specialty license plate design featuring a confederate battle flag, but the Board rejected the proposal.

    The Supreme Court held that the Board did not violate the First Amendment because license plates are government speech and when the government is the speaker it cannot violate the speech clause of the First Amendment. Justice Breyer, writing for the majority said, “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.” The Court explained, “Were the Free Speech Clause interpreted otherwise, government would not work.” The government must be able to express messages such as to encourage recycling or energy conservation or vaccination of children.

    The Court said that the license plate is government speech and therefore the choice of the Board to not allow the confederate flag does not violate the First Amendment. The Court stressed that license plates have long communicated messages from the state and that license plate designs are perceived by the public as coming from the state. The Court said that Texas license plates are essentially government IDs. The Court stressed that Texas retains control over the content of its license plates. The Court said that Texas was not creating a forum for private speech, where the First Amendment would apply, but it was Texas speaking itself.

    It is easy to like the result in this case because confederate battle flags convey a message of racism that is inherently hurtful and divisive.   Indeed, it may be for exactly this reason that Justice Clarence Thomas was the fifth vote in the majority – joining Justices Breyer, Ginsburg, Sotomayor and Kagan – in an alignment that is rare on the Court.  In Virginia v. Black (2003), Justice Thomas was the sole dissenter arguing that the government should be able to ban cross burning because of its vile history and hateful message.

  • June 19, 2015

    by Caroline Cox

    The Senate Committee on the Judiciary conducted hearings for three judicial nominees on Wednesday, June 10. The Committee heard testimony from Luis Felipe Restrepo, nominated to be a U.S. Circuit Judge for the Third Circuit, Travis Randall McDonough, nominated to be a U.S. District Judge for the Eastern District of Tennessee, and Waverly D. Crenshaw, Jr., nominated to be a U.S. District Judge for the Middle District of Tennessee.

    The problem of judicial vacancies is clear from the federal appeals court vacancy on the Seventh Circuit that has remained vacant for over 2,000 days. At the Huffington Post, Nan Aron, president of Alliance for Justice, takes a look at why this this key judgeship has remained unfilled for so long and why action must be taken on this long-standing vacancy.

    The problem of judicial vacancies in Wisconsin is particularly severe. The Editorial Board of The Des Moines Register recently called for Senator Chuck Grassley to take action and begin sending nominees out of committee at a faster rate.

    Judge L. Felipe Restrepo’s long wait for confirmation hearings could mean that the Third Circuit will have two simultaneous vacancies. The blog for People for the American Way discusses how Senator Pat Toomey could help avoid this situation.

    There are currently 59 vacancies, and 27 are now considered judicial emergencies. There are 17 pending nominees. For more information see

  • June 19, 2015

    by Caroline Cox

    The staff of The Root provides statements from civil rights organizations responding to the shooting in Charleston, South Carolina at a historically black church.  

    Nina Totenberg of NPR takes a look at the two major Supreme Court free speech cases that were decided yesterday.

    At The Atlantic, Garrett Epps discusses Justice Clarence Thomas’s position in the recently decided Texas license plate case and how his vote was deciding in taking on “a symbol of white supremacy.”

    Other coverage of the Texas license plate case comes from Noah Feldman at Bloomberg View who argue that Justice Thomas “was telling us that the Confederate battle flag still means something” in his decision to join the majority.

    At the Los Angeles Times, David Savage and Noam Levey consider the legal arguments that have a chance of swaying the Supreme Court in King v. Burwell.

  • June 18, 2015

    by Caroline Cox

    Dahlia Lithwick writes in Slate that the restrictive abortion laws in Texas and Mississippi will force the Supreme Court to act in the coming term.

    At The New Yorker, Richard Socarides considers the work remaining after marriage equality in the United States.

    Richard Wolf of USA Today profiles Evan Wolfson, “the godfather of the same-sex marriage movement” and Freedom to Marry’s founder.

    The Editorial Board of the Los Angeles Times examines the decision in the recent Supreme Court visa case and argues that “Congress should require more transparency in the visa process.”

    Adam Liptak reports for The New York Times that a federal appeals court in New York has revived a lawsuit brought by immigrants for post-September 11 detentions.

  • June 17, 2015

    by Caroline Cox

    Theresa Amato argues in The New York Times that the American legal system needs to do a better job of placing lawyers where they are most needed.

    At Slate, Chanakya Sethi explains how the Supreme Court could reach an agreeable compromise in its same-sex marriage decision.

    Adam Benfordado presents doubts about the fairness of the jury system at The Atlantic.

    At The Nation, Ari Berman discusses the North Carolina voting restrictions that have disenfranchised thousands of voters.

    Brian Beutler writes at The New Republic that a Supreme Court ruling against the Affordable Care Act would be disastrous for Republican candidates.