• May 19, 2014
    Guest Post

    by Frederick Gedicks, Guy Anderson Chair and Professor in Law, Brigham Young University Law School

    The recent case of Town of Greece v. Galloway saw Justice Clarence Thomas once again astride a favorite hobby horse, the benighted notion that both logic and text should have precluded the application of the Establishment Clause against the states. As in his many other forays into this field, Thomas concedes that the Clause (“probably”) prohibits a federally established church, but he otherwise reads the Clause as entirely devoted to the protection of state sovereignty—specifically, state power to establish or disestablish religion. Like the 10th Amendment, Thomas maintains, the Establishment Clause was meant to protect the states and thus is rendered absurd when applied to limit state power. Thomas relies on this purported absurdity to excuse himself from any serious engagement of the historical record, unilaterally shifting the burden of historical proof to incorporationists. As I have shown elsewhere in detail, all of this is demonstrably wrong.

    It is puzzling that such an ardent champion of federalism as Justice Thomas should fail to grasp that the Establishment Clause, like the Constitution’s other structural limitations on the federal government, was originally understood to protect individual liberty as well as state sovereign power. The Federalist Papers repeatedly emphasize that the division of sovereignty between the federal government and the states protects both state power and personal liberty from federal power. The Court’s own precedents emphasize this as well, most recently in Bond v. United States (2011), a unanimous opinion which unambiguously declared, “Federalism... protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions.”

  • May 19, 2014
    Guest Post

    by Mary Smith, enrolled member of the Cherokee Nation, President of the National Native American Bar Association

    On May 14, 2014, history was made with the confirmation of Diane Humetewa (pictured) to be a district court judge in the United States District Court for the District Court of Arizona.  Ms. Humetewa, an enrolled member of the Hopi Tribe, is the first Native American woman in the history of our nation to serve on the federal judiciary, and will be the only American Indian serving as an Article III judge in the federal judiciary. She previously served as the Senate-confirmed U.S. Attorney for the District of Arizona, and earlier in her career, she worked as an attorney on the U.S. Senate Indian Affairs Committee under then Chairman John McCain and as an Appellate Judge on the Hopi Appellate Court. Ms. Humetewa was confirmed unanimously by the U.S. Senate with a final vote of 96-0. 

    In addition to being the first Native American women, she is only the third American Indian to serve as a federal district court judge with the first two being men from Oklahoma. Judge Frank Howell Seay was appointed by President Carter in 1979. Billy Michael Burrage, the last American Indian appointed to the federal bench, was confirmed during the Clinton administration. Unfortunately, as of May 2014, there are 874 Article III federal judgeships in the United States—nine on the Supreme Court, 179 on the Courts of Appeals, 677 on the District Courts and nine on the Court of International Trade – and now only one of these judgeships is held by an American Indian or Alaska Native. The Honorable Derrick Watson, serving as a district judge in the United States District Court for the District of Hawaii, is Native Hawaiian and was confirmed on April 18, 2013. In addition, out of the population of federal magistrates in this country, only one – the Honorable Leo Brisbois in Minnesota – is Native American.

  • May 19, 2014
    In 2008, before he was the Solicitor General of the United States, Donald B. Verrilli Jr. argued the dangers of administering the three drug lethal injection protocol in Baze v. Rees. Now, following the botched execution of Clayton D. Lockett, many of the risks highlighted by General Verrilli have come true. Writing for The New York Times, ACS Board Member Linda Greenhouse discusses the state of capital punishment.
    Adam Liptak at The New York Times describes the troubling case of Billy Wayne Cope, a man convicted of raping and murdering his 12 year-old daughter. After confessing three times to the crime, Cope’s lawyers are appealing his conviction, blaming intense police interrogation for his multiple confessions.
    The Utah Supreme Court has granted a stay in response to previous orders for the state’s Department of Health “to issue birth certificates in same-sex parent adoptions.” The Associated Press has this story.
    As we celebrate this year’s college graduates, Henry Louis Gates Jr. at The Root  introduces his readers to America’s “first black collegians who faced a system that explicitly favored the white elite.”
    Gerard Magliocca at Concurring Opinions examines the influence of M’Culloch v. Maryland and The Federalist
  • May 16, 2014
    Guest Post

    by A. Anthony Antosh, Ed.D. and Andrew Imparato.  Antosh is the Director of the Paul V. Sherlock Center on Disabilities and a Professor of Special Education at Rhode Island College. Imparato is the Executive Director of the Association of University Centers on Disabilities and formerly served as Senior Counsel and Disability Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions, Chaired by Senator Tom Harkin of Iowa.

    *May 17 is the 60th Anniversary of the landmark Supreme Court opinion, Brown v. Board of Education. This post is part of an ACSblog symposium noting the landmark decision and exploring the ongoing inequalities in our society.

    The 1954 Brown v. Board of Education ruling laid the foundation for the 1975 federal law (now called the Individuals with Disabilities Education Act) requiring access to a free appropriate public education for all children with disabilities. Before 1975, about one million American children with disabilities were receiving no education from the public school system. Since then, we have made progress in securing quality, integrated educational opportunities for American children with disabilities, but we still have a long way to go – particularly for children with intellectual disabilities. 

    There is a history of people with intellectual and developmental disabilities learning, living and working in separate settings. As the Court noted in Brown, “Separate educational facilities are inherently unequal.” That statement was a stimulus for a civil rights movement that sought to integrate people with disabilities into every aspect of society. In the 1960s it was rare to find any public school that integrated students with intellectual disabilities. Although progress has been made, we still find widespread segregation of these students. Fifty-six percent of students (ages 6-21) with intellectual disabilities are primarily educated in separate classes or separate schools (United States Department of Education. 31st Annual Report to Congress on the Implementation of IDEA, 2009). The effects of segregation are significant. Twenty-seven percent of people with intellectual disabilities (aged 21-64) do not have a high school diploma (American Community Survey, 2012). The curriculum offered in segregated settings is often vastly different than the curriculum offered in typical classrooms (Wehmeyer, 2003). Students in segregated classrooms are less engaged and spend more time alone (Hunt, Farron-Davis, Beckstead, Curtis, & Goetz, 1994).

  • May 16, 2014

    by Rebekah DeHaven

    The Senate began this week’s judicial nominations action on Monday, May 12 with the confirmation of Robin S. Rosenbaum to the U.S. Court of Appeals for the Eleventh Circuit by a vote of 91-0.

    Also on Monday, Sen. Majority Leader Harry Reid (D-Nev.) filed cloture on the following three nominees:

    Steven Paul Logan, U.S. District Court for the District of Arizona;

    John Joseph Tuchi, U.S. District Court for the District of Arizona; and

    Diane J. Humetewa, U.S. District Court for the District of Arizona.

    The Senate Judiciary Committee held a hearing on seven judicial nominees from Georgia the following day.

    Julie E. Carnes, U.S. Court of Appeals for the Eleventh Circuit;

    Jill A. Pryor, U.S. Court of Appeals for the Eleventh Circuit;

    Leslie Joyce Abrams, U.S. District Court for the Middle District of Georgia;

    Michael P. Boggs, U.S. District Court for the Northern District of Georgia;

    Mark Howard Cohen, U.S. District Court for the Northern District of Georgia;

    Leigh Martin May, U.S. District Court for the Northern District of Georgia; and

    Eleanor Louise Ross, U.S. District Court for the Northern District of Georgia.