ACSBlog

  • June 25, 2014

    by Paul Guequierre

    Proponents of marriage equality garnered two major victories today. This morning U.S. District Judge Richard L. Young ruled Indiana’s ban on marriages by gay and lesbian couples unconstitutional and the U.S. Court of Appeals for the Tenth Circuit upheld an earlier ruling that Utah’s same-sex marriage ban is unconstitutional. The Hoosier state’s marriage ban becomes the latest in a string of bans to be ruled unconstitutional since the U.S. Supreme Court’s historic rulings last year striking down Section 3 of DOMA and California’s Prop. 8. Utah’s marriage ban was struck down in December.

    According to the Human Rights Campaign, in Baskin v. Bogan, Lambda Legal and local private counsel sued the state on behalf of same-sex couples who argue that Indiana’s ban on marriage equality violates the U.S. Constitution.  In his ruling, Judge Young wrote, “In time, Americans will look at the marriage of couples such as Plaintiffs, and refer to it simply as a marriage – not a same-sex marriage. These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such.”   

    The Indy Star reports that Marion County Clerk Beth White is prepared to issue marriage licenses to same-sex couples in her office at the City-County Building in Downtown Indianapolis.

    Over in Utah, the Salt Lake Tribune reports that by upholding a Utah judge’s decision, the Tenth Circuit became the first appeals court to rule on the issue, setting a historic precedent that voter-approved bans on same-sex marriage violate the Fourteenth Amendment rights of same-sex couples to equal protection and due process. But the court stayed the implementation of their decision, pending a decision from the U.S. Supreme Court

    The split ruling affects all states in the Tenth Circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

    Earlier this month, U.S. District Court Judge Barbara Crabb ruled Wisconsin’s marriage ban unconstitutional. Hundreds of marriages took place in the Badger state before Crabb stayed her ruling. Just a week before Crabb’s ruling, the U.S. Supreme Court refused to block marriages of same-sex couples in Oregon.

  • June 25, 2014

    by Nicholas Alexiou

    The Supreme Court issued two opinions today in cases touching on technology. As Scott Lemieux explains at The American Prospect, in Riley v. California, a near unanimous Court found that police cannot search the cell phone of an arrested individual without a warrant. Daniel Fisher at Forbes details how the Court ruled 6-3 against tech start-up Aereo in American Broadcasting Companies, Inc. v. Aereo, Inc.

    The U.S. Court of Appeals for the Tenth Circuit upheld a lower court decision and found that Utah’s ban on same-sex marriage is unconstitutional. The court stayed its ruling pending a potential appeal to the Supreme Court. Zack Ford of Think Progress reports that Indiana’s same-sex marriage ban was also struck down today by a federal judge.

    At Vox, German Lopez looks at new analysis from the Prison Policy Initiative examining the incarceration rates in each U.S. state and how even the “most liberal states imprison more people than nearly any other country in the world.” PPI Executive Director Peter Wagner was the 2104 recipient of the ACS David Carliner Public Interest Award.

    On the first anniversary of Shelby County v. Holder, Tomas Lopez of the Brennan Center for Justice examines how voting laws across the country have changed in the aftermath of the Supreme Court’s ruling.

  • June 24, 2014
    Guest Post

    by Justin Pidot, Assistant Professor, University of Denver Sturm College of Law; Member, Board of Directors, ACS Colorado Lawyer Chapter; Faculty Advisor, University of Denver Sturm College of Law ACS Student Chapter

    The Supreme Court handed down its decision in Utility Air Regulatory Group v. EPA yesterday. While vacating aspects of the EPA’s decision, the Court chose to leave EPA with authority to address the vast majority of the polluters the agency sought to regulate. In so doing, the opinion also offers a twist on the Court’s continuing debate about statutory construction and administrative law. 

    Those needing a  refresher on this case, please refer to my two previous ACSblog posts, here and here. For the purposes of understanding the opinion, suffice it to say that the case involves EPA’s “tailoring rule,” which applies one of the more arcane provisions of the Clean Air Act – the Prevention of Significant Deterioration provisions (or “PSD”) – to greenhouse gases (“GHGs”). In so doing, EPA regulated two categories of sources: those subject to PSD regardless of their GHG emissions (referred to as “anyway sources” because they are already subject to PSD anyway). And those only subject to PSD because of the amount of GHGs they emit.

    The High Court’s View of the Tailoring Rule

    Justice Scalia authored the opinion for the Court, which was largely favorable to EPA despite his staunch opposition to Clean Air Act regulation of greenhouse gases in the 2007 Massachusetts v. EPA case. Writing for a seven-member majority, Scalia upheld the tailoring rule’s requirement that “anyway sources” control GHG emissions.  Writing for the conservative bloc of five justices, Scalia also ruled that EPA unreasonably applied PSD to sources that would not be subject to PSD but for their GHG emissions. 

    Practically speaking, this is a significant win for EPA. As Scalia acknowledges, “anyway sources” account for 83 percent of GHG emissions from stationary sources. EPA strenuously defended its authority to regulate “anyway sources”—both in its briefing and at argument—and its emphasis clearly paid off. The sources the Court’s conservatives exempted from the reach of PSD account for only an additional 3 percent of emissions.

    The decision also suggests that seven of the justices now view the issues decided in the Massachusetts v. EPA case as settled. Only Justices Thomas and Alito expressed the view that the case should be overruled. 

  • June 24, 2014
    Guest Post

    by Arthur Bryant,​ Chairman, Public Justice 

    *This piece is cross-posted on the Public Justice blog.

    Harvard Law School Professor Laurence Tribe, one of America’s preeminent constitutional scholars, says the U.S Supreme Court’s majority is not denying access to justice to consumers, workers, and civil rights plaintiffs just because it is “favorable to big business” and “doubts(s) that civil rights litigation does all that much good.” Tribe says the real reason is more fundamental and disturbing: The Roberts Court is an “anti-court Court.”

    We cannot leave this be. Tribe offers one solution; I have two more.

    Tribe’s new book, Uncertain Justice: The Roberts Court and the Constitution, co-authored with Joshua Matz, reviews and analyzes the Supreme Court’s rulings in several key areas – including equality, health care, campaign finance, freedom of speech, and privacy – since Chief Justice Roberts was appointed in 2005. In 2010, Tribe served as the first “senior counselor on access to justice” in the Obama administration. Perhaps for that reason, the final chapter of the book, “Making Rights Real: Access to Justice,” is the most revealing and instructive.

    Tribe documents the Roberts Court’s “dramatic rewriting” of procedural rules to “unmistakably” favor big business, including an “assault on class actions” and rulings that make it “virtually impossible to escape arbitration agreements.” He writes:

  • June 20, 2014

    by Paul Guequierre

    They may have taken different paths to civil rights stardom, but those paths started at the same place—the public housing projects in the Bronx, New York. Last night, attendees of the 2014 ACS National Convention got a glimpse into the events and personal journeys that got U.S. Supreme Court Justice Sonia Sotomayor and her longtime friend, civil rights leader and attorney Ted Shaw, where they are today.

    The two—who were high school classmates nearly 50 years ago in the Bronx—had a spirited conversation in front of hundreds of lawyers, judges, law professors and students and civil rights activists at the 2014 ACS National Convention. They shared their experiences growing up in tumultuous times during the civil rights movement in public housing and how that helped shape who they are today.

    After showing their high school yearbook to the audience, Justice Sotomayor asked Ted Shaw if he ever thought they would get to where they are in their careers. He replied, “Sonia, who would have ever imagined they would let the inmates run the asylum?”