ACSBlog

  • January 20, 2015
    Guest Post

    by Cameron F. Kerry. Kerry is the Sara R. & Andrew H. Tisch Distinguished Visiting Fellow at the Brookings Institution and a Visiting Scholar at the MIT Media Lab. He is the former General Counsel and Acting Secretary of the U.S. Department of Commerce.

    President Obama went to the FTC this past week to address ways to protect privacy and identity in what he called “a dizzying age” of new technologies. 

    One of the many new technologies changing the ways people interact with information is cloud computing. Whether it's Jennifer Lawrence saving intimate photos to Apple's iCloud, startups scaling up with Amazon Web services, or businesses and consumers moving their documents to Microsoft 365 or Google Docs, cloud computing is becoming a familiar part of our digital daily lives.

    Cloud services offer benefits of large-scale computing, which include efficiency, scalability, security, and computing power, as well as ubiquitous access to data from an increasing variety of devices. But turning over data wholesale to someone else also comes with questions about privacy, confidentiality, security, and control. 

    As evidenced by Microsoft’s challenge to a U.S. government warrant for emails stored in a data center in Ireland, these questions also present challenges to traditional notions of sovereignty and territorial jurisdiction because global networks and cloud systems transcend national borders.

  • January 20, 2015
    Guest Post

    by Valerie SchneiderAssistant Professor of Law at Howard University School of Law.

    On Wednesday, January 21, the Supreme Court will hear arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., one of the most important civil rights cases of the 2014-2015 Supreme Court term.  Via this case, the Justices will decide whether disparate impact claims – that is, claims where members of a protected class are disproportionately affected, but where intent to discrimination cannot be proven – are cognizable under the Fair Housing Act.

    Much has been written on the text, legislative history and case law that supports the validity of disparate impact analysis under the Fair Housing Act.  Indeed, as pointed out by many, in the Fair Housing Act’s over 45 year history, every circuit that has examined the issue has either assumed or decided that such claims are cognizable under the FHA.  The Department of Housing and Urban Development also weighed in last year, issuing a rule that clarifies the burden-shifting structure of such claims.  What is less examined, however, is why disparate impact analysis matters, not just as a litigation strategy, but as a behavior-modifier and as a moral imperative.

    Housing segregation was not just sanctioned, but explicitly enforced by public and private actors in our country for over 200 years. During that time, minorities were systematically denied not just access to housing, but access to all of the benefits that flow from housing opportunities:  educational opportunities, economic centers, healthy food, clean air, government services and many other critical threads in the fabric of American life. 

    After over 200 years of enforced segregation, housing discrimination has been prohibited for only 45 years.  Housing discrimination has been outlawed for less than one quarter of this country’s history. To say that prohibiting acts of intentional discrimination alone can reverse the ill-effects of our country’s long relationship with housing segregation is a fallacy.

  • January 20, 2015

    by Caroline Cox

    At The Atlantic, Garrett Epps examines the two questions that the Court has asked the parties to brief on the same-sex marriage issue and concludes that that there is not a way to split them. He also references the recent guest post from Steve Sanders on ACSblog.

    Nina Totenberg of NPR reports on Williams-Yulee v. Florida Bar, which considers whether judicial candidates can solicit campaign money.

    Brianne Gorod continues the Constitutional Accountability Center’s series on Chief Justice John Roberts with a look at the how the Chief Justice has changed access to the Courts.

    At The Nation, Ari Berman argues that the best way to honor Dr. Martin Luther King, Jr.’s legacy is to protect voting rights.

  • January 19, 2015

    by Jeremy Leaming

    On Saturday we posted a piece by Indiana University Maurer School of Law Professor Steve Sanders regarding distinct paths the Supreme Court could take in the consolidated cases challenging states’ bans on same-sex marriage. Sanders' guest post was noted in a Jan. 18 article by The Washington Post’s Robert Barnes examining a number of thoughts on how the high court might handle the questions before it. The Atlantic contributing writer and law professor Garrett Epps also cited the Sanders' piece in a Jan. 19 article.  (For more analysis of the questions before the justices, see University of Minnesota law school professor Dale Carpenter’s commentary for The Washington Post’s “The Volokh Conspiracy” blog.)

    Today ACS Board member Paul M. Smith, a longtime Supreme Court litigator and partner at Jenner & Block, took note of the matter before the high court and looked ahead to the work remaining to stop discrimination against LGBT persons.

    Smith, whose Supreme Court victories include the landmark case Lawrence v. Texas, which invalidated as unconstitutional a state’s sodomy law, told ACSblog:

    It’s great to finally know that this Supreme Court will almost surely resolve the merits of claims for marriage equality this year. Many have commented at how quickly things have moved since the Court invalidated a key part of the Defense of Marriage Act in 2013 in the Windsor case. But that key ruling was itself the product of long years of hard work and struggle. The movement has had the advantage of being able to plan careful steps leading up to this moment – attacking the sodomy laws, seeking marriage equality under state constitutions, demanding that the federal government recognize existing marriages of same-sex couples despite DOMA, and now claiming a federal constitutional right to marriage equality. It looks as if that strategy will now be vindicated.

    The New York Times is reporting today that many Republican political operatives are pleased at the prospect of the Court taking this issue out of the political debates by resolving it before the next presidential campaign. My guess, however, is that immediately after a victory on marriage equality the focus would shift rather strongly toward the need to prohibit private discrimination against LGBT persons and the opposition of most Republicans in Congress to a federal anti-discrimination law. That could become a significant issue in the upcoming campaign.

  • January 19, 2015
    Guest Post

    by Elise C. Boddie, Associate Professor of Law, Rutgers University-Newark; former director of litigation NAACP Legal Defense & Education Fund, Inc.; and a member of the ACS Board of Directors.

    One of the many indelible images of the civil rights era is a black and white picture of an African-American boy, maybe nine or ten years old, holding a poster in front of the Dallas County courthouse in Selma, Alabama. The year is 1964. The boy’s small hands are clutched around the edges of his poster, which in plain, scrawled lettering, calls for people to register to vote in the name of “freedom.”   We cannot see his eyes because they are averted from the camera.  Instead, he has fixed his gaze on a group of policemen who are about to descend upon him and, as we later learn, arrest him just after the picture is taken.[1]

    The picture is a reminder that the right to vote is more literally secure than it was in Selma in 1964.  Less than a year later, Selma would emerge as the birthplace of the 1965 Voting Rights Act, following a march from Selma to Montgomery, led by Dr. Martin Luther King, Jr. and a host of civil rights leaders, including now-Congressman John Lewis.  An earlier attempted march to Montgomery led demonstrators over the Edmund Pettus Bridge, where they were beaten mercilessly by Alabama state troopers before having to turn back, all in full view of the national press.[2]  The horror and disgrace of that moment helped catalyze national support and the political will to pass voting rights legislation.[3]

    We rightly celebrate and honor Dr. King as the “drum major for justice”[4] who helped bring that fight to fruition, along with the countless, nameless thousands – the young Selma boy among them –  who laid their bodies on the line so that future generations could exercise their constitutional rights.   The police no longer beat African Americans in the street for trying to register; and literacy tests, which barred so many Blacks, Latinos, and other people of color from voting, no longer exist as a result of the 1965 Act.  The frontal indignities of Jim Crow at least are gone.

    And yet, like a weed with roots deep beneath the surface, other practices soon emerged in their place, including at-large voting schemes,[5] racially-discriminatory annexations[6] and redistricting plans that sought to “crack” or “pack” minority voters in order to dilute their voting strength.[7]   Evidence of this adaptive discrimination carries through to the present.  For example, following the record turnout of voters of color for Obama in the 2008 and 2012 presidential elections states enacted restrictive laws that made it harder to vote.[8]

    Against a record of  “unremitting and ingenious defiance of the Constitution,”[9] Congress included in the Voting Rights Act a core provision that limited the authority of states with “the most aggravated records of rank discrimination against minority voting rights”[10] to unilaterally change their voting practices.  This “preclearance” provision, known as Section 5, required covered jurisdictions with certain indicia of low voter participation to secure federal approval of any proposed voting changes[11] by demonstrating that they would not disfranchise minority voters.[12]  In a landmark case, South Carolina v. Katzenbach, the Supreme Court upheld the Act against a constitutional challenge,[13] as it would in later cases brought by jurisdictions that sought to evade the statutory protections for minority voters.[14]  In 2013, however, the Supreme Court gutted Section 5 in Shelby County v. Holder, striking down a companion provision that established the scope of Section 5’s geographic coverage.[15]  While acknowledging that voting discrimination persists, [16] the Court concluded that the coverage provision no longer reflected the most “current” manifestations of such discrimination.  In light of “dramatic” improvements in the landscape of voter suppression, the Act’s incursion on the “equal sovereignty” of the states was no longer justified.[17]   

    After Shelby, fifteen states enacted laws that discouraged voter participation.[18]  Although the precise impact of these laws is hard to determine, voters of color appear to have been disproportionately affected in at least five states – Texas, Alabama, North Carolina, Virginia, and Georgia, each of which had been covered by the Act’s preclearance provision before Shelby and each of which had also experienced a significant increase in the population of voters of color.[19]  Thus, in a time of burgeoning “minority” voting power, states have actively sought to limit accessibility to the polls.  The timing, of course, is hardly coincidental, but rather – as a Texas federal district court judge concluded with respect to that state’s photo identification law[20] – appears calculated to suppress minority turnout.[21]