• July 8, 2016
    Guest Post

    by Amy Larsen, joint-degree student at NYU Law and the Harvard Kennedy School of Government, outgoing president of NYU Law's ACS Student Chapter and a Next Generation Leader.

    Our democracy is, and will always be, a work in progress. Accordingly, public service requires both an urgency of now, and a patience with the longer term trajectory of making change, whether in the context of issues like criminal justice reform, climate change or consumer protection. While grand victories can be won, more often, public service consists, rather mundanely in Consumer Financial Protection Bureau Director Richard Cordray's words, of a "steady persistence of unsung, everyday improve the quality of life for others." In short, heeding the call to public service is often a halting and unceremonious, yet deeply rewarding, labor of love.

    Cordray’s speech reminds us that the messy and imperfect nation-perfecting process requires bringing our best selves to this honorable undertaking. Cordray offers the insights of someone who has gracefully navigated the pressure cooker of American politics, demonstrating conviction, endurance, and humility in his own life and in fighting for broader change. His resilience and continued idealism in spite of the defeats and delays that have intermittently punctuated his career path are inspiring and refreshing. Cordray’s story also counsels in favor of welcoming temporary defeat as a teacher, all while maintaining perspective and optimism. Perhaps counterintuitively, it is precisely those moments in which democracy feels the least satisfying, accountable, and responsive, when the call to leadership and service must be taken up with renewed vigor, commitment, and civic engagement. As such, much like an ACS talk on consumer protection that I heard Cordray deliver a few months ago, this personal reflection seems to double as a call to action: It is as an important reminder that each of us is responsible for shepherding this great country and the causes we care about forward, despite the inevitable setbacks and frustrations. No one is off the hook in our continuous nation-improving project, and so we must press on, attempting as we go to achieve just the right balance of patience and urgency, cautiousness and courage, humility and brazen idealism.

    Read CFPB Director Richard Cordray’s speech on public service at The Ohio State University John Glenn Leadership Forum here.  

  • July 7, 2016

    by Christopher Durocher

    *This post is part of the ACSblog Symposium on Policing and Race Relations

    Alton Sterling was murdered because he was selling CDs at a gas station and police thought he might have a gun. Louisiana law allows any person over the age of 17 to openly carry a firearm without a permit. Philando Castile was murdered during a traffic stop because he informed a police officer that he had a concealed carry permit and was, in fact, lawfully carrying a firearm. The National Rifle Association, the nation’s largest gun rights organization, has been silent on both murders.

    There is really no mystery in the NRA’s silence. Though it peddles an interpretation of the Second Amendment that provides an absolute right to carry nearly any gun, anywhere, anytime, that interpretation comes with a notable asterisk: under no circumstance should a person of color be allowed to own or carry a gun. In fact, much of the NRA’s appeal to its members is couched in the need for white gun owners to protect themselves from these dangerous others. The NRA’s pitch is premised on the idea that good, wholesome white people need guns to protect themselves from violent criminals who will invade their homes or accost them on the streets. The NRA is fomenting this white panic despite the fact that the U.S. is experiencing historically low rates of violent crime.

    In addition to its more official pronouncements, the NRA’s leadership seems incapable of disguising its racist id. NRA executive vice president Wayne LaPierre believes that to solve our gun violence problem we must get guns out of the hands of “thugs” by “direct(ing) every federal jurisdiction to round up every felon, drug dealer and gangbanger with a gun.” No need to limit the availability of illegal guns by closing the gun show and private seller loopholes or cracking down on strawman purchases—just throw more young black men in jail. NRA board member Ted Nugent, eschewing the subtly of LaPierre, has defended South African apartheid (explaining that “not all men are created equal”) and has called President Obama a “subhuman mongrel.” He’s also proven himself comfortable with casually using racial epithets and invoking anti-Semitic conspiracy theories.

    The NRA’s racial appeals, hypocrisy and double standard on gun rights would be troubling enough, if that was as far as it went. Unfortunately, the NRA insists on using its political weight to oppose nearly all common sense measures to curtail the availability of firearms, whether through a more robust and comprehensive system of background checks or limits on the types of guns that can be sold. At the same time, it exploits its members’ fear of potential gun control measures to drive up firearm and ammunition sales, a service to the gun manufacturers for whom the NRA is a front. The result is a nation that has an estimated 357 million guns. That’s more guns than people. With less than five percent of the world’s population, the U.S. has somewhere between 35 and 50 percent of the civilian owned guns.

  • July 6, 2016
    Guest Post

    by Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

    *This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.

    Political parties use the levers of power to consolidate their power. Sometimes, of course, they do so by advancing policies that their supporters prefer. At other times, they do so by changing the electoral environment. Partisan gerrymandering is a classic example. There are more subtle ways as well. For example, over the past generation the Republican Party has pursued a strategy of “defunding the left,” that is, denying financial resources to groups thought – probably accurately – to favor Democrats.

    The gerrymandering example shows that partisan strategies to consolidate power can occur in legislatures. When that occurs, the courts’ role – from the party’s point of view – is simply to get out of the way, that is, to refuse to find unconstitutional the legislature’s decision. (When a party uses executive authority to consolidate power, the courts also have to be willing to find the executive action authorized by law. That was the partisan dimension of what was at stake in United States v. Texas, the case challenging the Obama administration’s policy on removal of some immigrants not lawfully present in the United States.)

    Courts can play a more active role in partisan power consolidation. For example, the Roberts Court’s decisions restricting class actions and favoring arbitration – nominally interpretations of a federal statute and the rules of civil procedure – can be understood as part of the strategy of defunding the left, with the targets being plaintiffs’ side trial lawyers. (On the state level, this is made clear in conservative campaigns for state supreme court positions.) And, even more aggressively, courts can find that some party-favoring policy is constitutionally required.

    That was the strategy the conservative plaintiffs pursued in Evenwel v. Abbott. The case questioned the proper population basis for drawing district lines to satisfy the “one person one vote” rule. The candidates were total population and the population of eligible voters. In Texas the “eligible voters” rule would favor Republicans by eliminating from the apportionment base young people and, more important, noncitizens. The Court rejected the Republicans’ claim, holding that total population was a permissible basis for apportionment. But, it refused to address the position taken by Texas’s Republican Solicitor General and opposed by the U.S. Solicitor General, that states had legislative discretion to choose either total population or eligible voters as the basis for apportionment. (Texas’s litigation strategy was to defend what the Texas legislature had done, but leave it open for the Republican legislature to change the apportionment base if it wanted to.)

  • July 5, 2016
    Guest Post

    by Amy M. Gardner, Founding Member of the ACS Chicago Lawyer Chapter

    As the tributes to Judge Abner Mikva flood in, they naturally focus on his outstanding public service. I’d like to share the difference he made in my life and career over the last 15 plus years and how Judge Mikva’s encouragement, support and involvement have been so critical to the ACS Chicago Lawyer Chapter over the years.   

    I arrived at the University of Chicago Law School in as an idealist, liberal, former campaign staffer. While there were certainly exceptions, by my 2L year, I was accustomed to what could seem like a non-stop barrage of rapid-fire law and economics, Socratic method, and rolled eyes whenever someone mentioned “fairness."  Walking into Judge Mikva’s Law of the Executive Branch seminar was a relief. First, he assigned certain parts of the room to be on call for particular classes, ensuring that the atmosphere immediately became less tense. Beyond that, the class was more like a fireside chat listening to your favorite uncle or grandfather share stories that made us feel we were somehow his equals and worthy of hearing his views on particular Supreme Court Justice’s poor poker skills, and the political realities behind his work on civil liberties, on freedom of speech, and so many other issues. I came to view his class as a weekly chance to exhale, to feel challenged intellectually in a fun and relaxed environment, and to remember that the legal profession was critical to the function of all three branches of our government.

    I left his class grateful to have had the chance to learn from him and feeling as though I had a bit of my mojo back. (The next fall, following Judge Mikva’s advice, I took a class from another noteworthy professor, Barack Obama.) Later, when I worked as the dean of students at the University of Chicago Law School, I created and taught many programs, including co-teaching a class on appellate advocacy. In designing programs or a course, I thought back to Judge Mikva’s classroom and considered how I could best create that type of educational environment for my own students. 

    As dean of students, I also talked about Judge Mikva in my orientation speech, hoping incoming 1Ls might be inspired by his remarkable public service, and was also able to greet him when he returned to speak for the Law School’s ACS Chapter. His joy at talking to students was obvious, and he stayed and chatted with students long after the next class had started and we had run out of Diet Dr. Peppers and Diet Cokes for him. The last time I saw him at the Law School was in November of 2014, when he spoke in a fireside chat with the Law School’s then-Dean, Mike Schill. I was glad to see that he was still the same Judge Mikva, proclaiming, "I remain an optimistic liberal.” I often cite his remarks that day to disillusioned students and young lawyers, reminding them that if Judge Mikva could be involved in government service for decades, be fully informed on issues and events, and still retain his optimism (and liberalism) at 88, they can surely resist the temptations of cynicism during their 20s and 30s.  

  • July 5, 2016
    Guest Post

    by Neil S. Siegel, David W. Ichel Professor of Law and Professor of Political Science, Co-Director of the Program in Public Law, and Director of the DC Summer Institute on Law and Policy at Duke University

    Rarely is a Supreme Court decision both reassuring and concerning. Whole Woman’s Health v. Hellerstedt is such a decision. Supporters of women’s reproductive freedom can breathe a sigh of relief, but they should not celebrate too much or too long. 

    The Court’s decision offered the strongest reaffirmation of the constitutional status of abortion rights in America since its 1992 decision in Planned Parenthood v. Casey. The five-Justice majority in Whole Woman’s Health held that it is unconstitutional under Casey for states to restrict access to abortion in the name of protecting women’s health when those restrictions lack medical justification and have the effect of making it significantly more difficult for women to obtain safe reproductive healthcare. 

    The Court’s ruling is correct under Casey, which prohibits laws that have the purpose or effect of imposing an “undue burden” on the abortion right—and which, in applying that standard, balanced the asserted benefits and actual burdens of the abortion regulations at issue. Abortion is so safe that complications rarely arise. Yet Texas, notwithstanding the absence of any health justification, required doctors who perform abortions to have admitting privileges at local hospitals (which they cannot obtain). Texas also required abortion clinics to be outfitted as mini-hospitals (which is prohibitively expensive for most clinics). No such requirements were imposed on childbirth, colonoscopy or liposuction, which have substantially higher mortality rates than abortion. As the Court concluded, a “burden” on abortion access that is imposed in the name of protecting women’s health is “undue” when the burden is both severe and very unlikely to protect women’s health. 

    TRAP laws (targeted regulation of abortion providers) around the country are in serious constitutional trouble. So are many fetal-protective regulations of abortion, because they too are governed by Casey and so are subject to the same balancing test.