• April 11, 2016

    by Jim Thompson

    In The Des Moines Register, former Bush aide and ACSblog contributor Richard Painter urges Sen. Chuck Grassley (R-Iowa), chairman of the Senate Judiciary Committee, to honor his constitutional duties and support a hearing for Chief Judge Merrick Garland.

    “A new report from the McKinsey Global Institute finds that greater gender parity in the workforce—in terms of pay, hours worked, and access to full-time jobs—would also benefit the entire country’s economy,” writes Gillian B. White at The Atlantic.

    Facing stiff budget cuts, Louisiana public defenders are turning away clients with hopes that a lawsuit brought against them will force elected officials to reconsider the way the state funds criminal defense for its low-income residents, says Edwin Rios in Mother Jones.   

  • April 8, 2016
    Guest Post

    by Sean Aronson, president, ACS student chapter at University of Hawaii at Manoa William S. Richardson School of Law

    The Hawaiian Kingdom existed as a sovereign nation for nearly one hundred years (1795 – 1893) before the United States overthrew the Kingdom in an illegal, bloodless coup d’état. Although the United States apologized for this illegal act in 1993, to date the U.S. has not offered any compensation or redress for it. The overthrow still casts a long shadow in Hawaii and divides the people, with some who question the state judiciary as a legitimate body. Just last month Native Hawaiians met to form an independent government with a separate constitution.

    On November 27, 2015, First Circuit Court Judge Jeanette Castagnetti issued a ruling, ordering the state legislature to provide sufficient funding to the State Department of Hawaiian Homelands (DHHL) which is constitutionally mandated to “enable native Hawaiians to return to their lands in order to fully support self-sufficiency for native Hawaiians.” Judge Castagnetti ruled legislators would have to make available $18 million to DHHL this year to comply with Article XII of the Hawaii State Constitution, which requires the legislature to “make sufficient sums available” for the department’s administrative and operating budget. Many legislators viewed this decision as an intrusion into their legislative powers and sought retaliation through a series of proposed bills attacking the judiciary.

    The attacks began with a judicial elections bill that proposed open voting on judicial positions by the general electorate. The subsequent hearing saw Hawaii’s tight-knit legal community come out strong in opposition. After a meeting to discuss strategy, Richardson School of Law ACS chapter and individual students submitted testimony in opposition to the open elections initiative. The bill was defeated on the senate floor, but the struggle continued through an attack on the retention process. The senate quickly pushed through a bill that would require a senate hearing for every judicial reappointment. The proposed bill also required a reappointment hearing every six years, instead of the present 10 years. That bill was also defeated.

  • April 8, 2016

    by Jim Thompson

    “While Justice Ginsburg is rarely classified as an originalist, during her tenure on the Court, she has written a series of brilliant text and history opinions, powerfully making the case that Constitution’s text and history point in a progressive direction,” writes David Gans at Balkinization.

    Ahead of this month’s oral arguments in United States v. Texas, Brianne J. Gorod at Huffington Post predicts Chief Justice John Roberts will reject a challenge to the president’s executive action on immigration, guided by his beliefs that the role of courts should be limited and nonpartisan.

    In The Wichita Eagle, Judith E. Schaefer criticizes Kansas Sen. Jerry Moran (R) for reversing his position on Judge Merrick Garland’s nomination hearing, yielding instead to the obstructionist views of his conservative colleagues. 

  • April 7, 2016
    Guest Post

    by Jeymee Semiti, National Center for Transgender Equality

    This past week we celebrated the International Transgender Day of Visibility, which was founded in 2009 as an annual celebration of transgender lives. The visibility of transgender individuals has increased both in mainstream media as well as in the legal world, with the Supreme Court’s marriage equality decision, a rise in trans-inclusive healthcare (Delaware recently became the 15th state banning trans health exclusions), and the Equal Employment Opportunity Commission’s precedent-setting conclusion in 2012 that gender identity is protected under Title VII of the 1964 Civil Rights Act (Macy v. Holder). 

    However, along with visibility, transgender communities are seeing a continuing rise in anti-trans homicides, unchecked state-sanctioned violence against trans women of color in detention centers, and a surge of anti-trans legislation targeting trans people in public accommodations. North Carolina’s House Bill 2, officially the Public Facilities Privacy and Security Act, was the first of these anti-trans initiatives to pass into law. It not only nullifies the pre-existing LGBT nondiscrimination ordinance recently passed in Charlotte, the state’s largest city, but also requires everyone to use the facilities according to the sex designated on their birth certificate.

    HB 2 has made transgender issues a national conversation. Opposition to the bill has federal agencies reviewing legality of the practice under federal funding requirements, businesses taking their business elsewhere and interest groups filing lawsuits on its unconstitutional nature. The bill delegitimizes the existence of trans and gender-non-conforming individuals, and specially targets the visibility of trans women by mischaracterizing them as “voyeuristic” threats to the privacy of women and young girls.

  • April 6, 2016
    Guest Post

    by Anthony S. Winer, professor of law, Mitchell Hamline School of Law

    In the last few weeks, Georgia and North Carolina proposed anti-LGBT legislation. The Georgia bill was cast as a measure “to protect religious freedoms.” The North Carolina bill was cast mainly to “provide for” single-sex multiple occupancy bathrooms. But both were actually designed to prevent LGBT people from obtaining protection against discrimination. The bills present notable contrasts.

    The most important contrast was that the governor of Georgia vetoed his state’s bill, while the governor of North Carolina signed his so that the North Carolina bill is now law in that state. The next most salient contrast was indicated above: The Georgia statute purports to be based in preserving religious freedom, while the North Carolina statute is entirely secular. This can serve to illustrate that anti-LGBT prejudice can be expressed either in purportedly religious or in secular terms.

    Another glaring contrast is that the Georgia bill was drafted clumsily, while the North Carolina bill reflected a sophisticated (if malevolent) understanding of key Supreme Court precedents.

    The Georgia bill purported to protect “religious freedoms,” but its coverage was pitiably parochial. Its definition of one of its key defined terms, “faith based organization,” referenced any “church . . . association or convention of churches . . . or any integrated auxiliary of a church or convention or association of churches.” In the entire bill, there was no reference to any synagogue, mosque, temple, or other house of worship that was distinctly not Christian. This phraseology betrayed the narrow mindset of the bill’s authors.

    The Georgia bill reflected inept drafting in a variety of additional ways, from the maladroit repetition of certain provisions to the bizarre restatement of the self-evident. (For example, the bill actually contained a provision stating that religious ministers are “free to solemnize any marriage . . . or to decline to do the same, in their discretion.”)