ACSBlog

  • May 29, 2014
    Guest Post

    by Leah Aden, Assistant Counsel, Political Participation Group, NAACP Legal Defense and Educational Fund

    When Black voters in Fayette County, Georgia took to the polls during a primary election earlier this month, they experienced, for the first time in the county’s 191-year history, the opportunity to elect their candidates of choice to the Board of Commissioners and Board of Education.

    It is more than just serendipity that this election took place almost exactly 60 years to the day that our nation celebrated the Supreme Court’s landmark decision in Brown v. Board of Education on May 17, 1954. Brown ended legally enforced segregation in our country’s public schools and overturned the "separate but equal" doctrine that segregated all aspects of American society. The Brown decision also breathed life into the Civil Rights movement, which in turn led to the creation of the Voting Rights Acts of 1965, widely considered the movement’s greatest victory.

    But for the voters of Fayette County, that victory was a long time coming. Prior to the historic election in May 2014, Fayette County used at-large voting to maintain a racially segregated Board of Commissioners and Board of Education. Although Black voters comprise nearly 20 percent of Fayette County’s population, are geographically concentrated within the County, and consistently vote together to attempt to elect candidates of their choice, no Black candidate has ever been elected to either body under the at-large system of election. Indeed, because Black-preferred candidates are not meaningfully supported by white voters, who comprise 70 percent of Fayette County’s population, those candidates cannot win a county-wide election under the at-large electoral scheme.

  • May 29, 2014

    by Charles Withers

    In its decision in Hall v. Florida, the Supreme Court replaced the controversial term “mental retardation” with "intellectual disability" to describe someone with limited mental functioning. Tony Mauro at Legal Times notes how advocates for those with intellectual disabilities are praising the Court for abandoning the controversial term.

    In an op-ed for The New York Times, Joe Nocera highlights the recent killing spree by Elliot Rodger, whose horrific actions left numerous victims injured and six others killed. In his article, Nocera examines Michael Waldman’s The Second Amendment: A Biography and the growing inclination to elevate an individual’s right to bear arms over the public good.

    ACS board member Linda Greenhouse writes in a The New York Times op-ed that polarization is not the only problem facing the Robert’s Court, but also “that it’s too often simply wrong.” 

    At Balkinization, Joey Fishkin and Willy Forbath provide an abstract for The Anti-Oligarchy Constitution.

  • May 29, 2014
    Guest Post

    By Simon Lazarus, Senior Counsel at Constitutional Accountability Centerfrequent contributor to ACSblog, participant in ACS programs, and author of two ACS Issue Briefs on the legal challenges to the Affordable Care Act. Those Issue Briefs are available here and here.

    *This piece is cross-posted on Constitutional Accountability Center's blog

    Media battalions daily eye-ball every spike and dip in the Affordable Care Act’s implementation odyssey. On May 14, however, nearly to a person, they passed up a noteworthy event: a Fourth Circuit Court of Appeals hearing in Richmond, Virginia, involving one of a phalanx of Koch-backed lawsuits, that could, if successful, in the exuberant vernacular of columnist George Will, “blow [the ACA] to smithereens.” Much has been written about these cases, by ourselves and others, since conservative uber-litigator Michael Carvin filed in the District Court for the District of Columbia a complaint identical to the (subsequent) one at issue in the recent Fourth Circuit appeal. (Two other similar challenges are percolating in Federal district (trial) courts in Oklahoma and Indiana.) But, unnoticed by the press, in this recent hearing, high-voltage verbal duels broke new ground.

    Visibly animated, two of the three judges on the Fourth Circuit panel not only skewered the legal basis for the lawsuit—as had the two federal trial judges who earlier this year dismissed the claim (in the case now before the Fourth Circuit appeals court and the earlier-filed D.C. case). They questioned, as a matter of political and social injustice, Carvin and his backers’ desperation attempt to upend the ACA. In particular, Judge Andre Davis fired off one of the most telling sound-bites yet articulated by the law’s defenders over the course of this litigation. “You are asking us,” Judge Davis capped off an especially testy exchange near the end of the session, “to kick millions of Americans off health insurance, just to save four people [Carvin’s four individual plaintiffs] a few dollars.”  Davis had earlier foreshadowed that zinger, interrupting Carvin soon after he launched his argument, to chide him for bringing his case on behalf of four lone individuals instead of as a class action on behalf of all similarly reluctant premium assistance beneficiaries; the judge suggested that in fact Carvin could never assemble such a broad class: “No one wants what you want,” he scolded.

  • May 27, 2014

    by Charles Withers

    While May 17 marked the 60th anniversary of the Supreme Court’s landmark decision in Brown v. Board of Education, inequality along racial lines remains an important concern in today’s classrooms. In recent years, courts have addressed the egregious effects of education inequality within American higher education by weighing the necessity of race sensitive admission policies. According to a study conducted by The New York Times, in states that have banned race-cautious admissions, “prominent public universities have tended to enroll fewer black and Hispanic freshmen.” With these realities in hand, many have turned their focus to Supreme Court decisions like Schuette v. Coalition to Defend Affirmative Action to measure America’s progress in combating these inequalities in today’s college classrooms.

    Schuette v. Coalition to Defend Affirmative Action challenged an amendment to the Michigan constitution banning race sensitive admissions policies in public universities and addressed whether voters can choose to prohibit state universities from considering race in the admissions process. Justice Anthony Kennedy wrote for the plurality, upholding Michigan’s ban and overturning the U.S. Court of Appeals for the Sixth Circuit’s ruling that the voting policy violated the Equal Protection Clause.  

  • May 23, 2014
    Guest Post

    by Victor Williams, an attorney in Washington D.C. and clinical assistant professor at Catholic University of America, Columbus School of Law. Williams founded the American Institute for Disruptive Innovation in Law and Politics -- DistruptiveJustice.org.

    Partisans have purposely pushed our nation to the brink of fiscal default three times since 2011.  Each time, the Treasury Secretary warned Congress, bondholders, and the public that a “catastrophic” default was imminent. Credit markets shudder, financial houses take multi-million dollar risk precautions, and rating agencies balk. At the twelfth hour, partisans have granted a stay, but only temporary one. The current suspension expires on March 15, 2015 – thus the next battle is strategically scheduled  after expected GOP midterm victories. Beware the Ides of March. But how is Brown v. Board relevant to a debt limit disaster? 

    Facial Violations of the Fourteenth Amendment

    In Brown v. Board of Education, the Supreme Court struck-down segregation legislation as facially violating the Fourteenth Amendment’s Equal Protection Clause. In May 1954, Chief Justice Earl Warren wrote for the unanimous Court that separate educational facilities were “inherently unequal.” The violation was so patent that “any discussion whether such segregation” was a factual violation of due process was “unnecessary.” As Harvard Law’s Richard Fallon notes in Fact and Fiction About Facial Challenges, Brown is a classic example of the judiciary’s assessing the constitutionality of legislation on its face, “not as-applied.”  

    Similarly, the debt limit statute facially and inherently contravenes a fundamental provision of the very same Fourteenth Amendment. Section Four guarantees not only that public debt will always remain valid, but also that the “validity” of such obligations will never be “questioned.”  A centerpiece of the three Civil War Amendments, the absolutist prohibition against debt questioning joins other post- bellum proscriptions against slavery, unequal protection of the law, due process violations, and racial voting barriers.