• June 19, 2015
    Guest Post

    by Chris Edelson is an assistant professor of government in American University's School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.

    The most important fact about the killings in Charleston on Wednesday night is that nine people who should be alive today were murdered.  No discussion of what happened should lose sight of this essential truth.  However, it is well worth considering why they were murdered and what actions can be taken to address the racial hatred that led a white man to end the lives of nine African Americans.

    We know that the confessed killer, Dylann Roof, was motivated by racism.  A survivor of the shooting tells us that the killer responded to pleas that he stop shooting by saying “No, you’ve raped our women, and you are taking over the country…I have to do what I have to do.”  The killer reportedly told investigators that he hoped to start a race war.

    Ta-Nehisi Coates has quite rightly observed that the killer’s “crime cannot be divorced from the ideology of white supremacy which long animated [South Carolina] nor from its potent symbol—the Confederate flag.”  South Carolina, of course, continues to fly “the Confederate battle flag—the flag of Dylann Roof—…on the Capitol grounds in Columbia.” Coates points out that the right thing to do -- the long overdue thing to do -- is to “take down the Confederate flag -- now.”

    Those who defend South Carolina’s continuing decision to fly the Confederate flag often claim the flag stands for states’ rights, not slavery and racism. South Carolina Congressman Mark Sanford argued last night that some people see the flag as “a symbol of heritage, a symbol of states’ rights.” People are of course entitled to have an opinion, but the idea that the Confederate flag stands for states’ rights is not an opinion, it is a distortion of historical fact -- a dangerous distortion, because it can be used as cover by racists who seek to sanitize their hateful views.

    The reality is that, as historian Eric Foner says, “slavery was the fundamental cause of the civil war.”  The Confederate states subordinated states’ rights to the central goal of preserving slavery and white superiority.  The evidence supporting this reality is clear and compelling.  The Confederate constitution contained a federal supremacy clause closely modeled on the federal supremacy clause in the U.S. Constitution, declaring that:  “This Constitution, and the laws of the Confederate States made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the Confederate States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.”  In other words, the individual states making up the Confederacy did not enjoy the unfettered ability to make their own laws.  When a state law conflicted with the Confederate constitution or a law passed by the Confederate Congress, the state law would yield. 

  • June 19, 2015

    by Nanya Springer

    For those who attended, the 2015 ACS National Convention was not only an opportunity to catch up with old friends, make new connections, and obtain CLE credits; it was also a time to reflect upon the important work that attorneys do every day and gain inspiration for the road ahead.  Speakers from across the country and from diverse professional backgrounds delved into the issues of the day, including voting rights, women’s access to reproductive health care, LGBT rights and marriage equality, access to counsel, and more.  Here are some highlights with links to high-quality video for those who missed the live event.

    Stephen Bright, president and senior counsel at the Southern Center for Human Rights, received a stirring round of applause when he encouraged students and young lawyers to represent unpopular clients, saying “we need to see the kinds of injustices that got . . . people where they are.” In attendance with Mr. Bright were Theo Shaw, one of the exonerated “Jena 6” who is now on his way to law school on a full scholarship, and Jarrett Adams, an exoneree who graduated from law school and will soon begin clerking for the court that exonerated him.

    Wendy Davis, women’s rights crusader and a former state Senator from Texas, discussed how rampant voter suppression has led to bad policies in her state, particularly concerning access to reproductive health care. “Women who lack the means to manage their fertility lack the means to manage their lives,” she declared. “It is just that simple.”

    Former U.S. Attorney General Eric Holder called for automatic registration of all eligible voters in the U.S., stating that “the ability to vote is a right, it is not a privilege.” He decried efforts to make voting less accessible, explaining that in-person voting fraud is very rare and no such widespread schemes have been detected.

    U.S. Representative Hakeem Jeffries discussed the ongoing need to address faulty police practices, including so-called “taxation by citation,” “stop and frisk,” and “broken windows” tactics that disproportionately target low-income people and communities of color.

    U.S. Supreme Court Justice Ruth Bader Ginsburg drew laughs and applause during her conversation with California Supreme Court Justice Goodwin Liu. Speaking about her groundbreaking career, she said “I don’t think the meaning of feminism has changed,” it has always meant “girls should have the same opportunity to dream, aspire, achieve . . . as boys.” It’s about “women and men working together to help make society a better place.”

  • 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.