ACSBlog

  • May 8, 2015
    Guest Post

    by John Paul Schnapper-Casteras, Special Counsel for Appellate and Supreme Court Advocacy at the NAACP Legal Defense and Educational Fund, Inc., which filed a brief in support of marriage equality, together with the NAACP. Follow him on Twitter @jpscasteras.

    It was a familiar scene at the U.S. Supreme Court: states argued that allowing certain couples to marry would impose long-term harms upon children, families and social institutions. They contended that it is not the judiciary’s place to scrutinize restrictions upon the freedom to marry.  And they fell back upon the claim that the definition of marriage is a longstanding tradition.

    No, I’m not talking about last week’s argument on same-sex marriage; I’m referring to the 1967 case of Loving v. Virginia, which ultimately struck down bans on interracial marriage as unconstitutional. Switch a few names and adjectives and you could have approximated swathes of the oral argument from 48 years ago, listening to Virginia defend a central vestige of segregation.  Indeed, Virginia now acknowledges that it had supported interracial marriage bans and school segregation with “the same arguments offered by marriage equality opponents today” and powerfully concedes that it was on the “wrong side” of those issues.

    The resemblance should come as no surprise.  Civil rights groups like the NAACP Legal Defense Fund and NAACP have long advanced briefs and analyses about the logical and legal parallels between interracial marriage and same-sex marriage.  Recently, Bloomberg and the Wall Street Journal released new studies comparing our nation’s ability to progress on these two issues.  Courts around the country have recognized the enduring relevance of Loving’s holding that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness” and that “all the State’s citizens” possess a fundamental right to marry.

    Likewise, last week, the justices repeatedly focused on Loving, referencing it ten times in the transcript and another half-dozen times indirectly.  Justice Kagan explored how “Loving was exactly what this case is” and Justice Breyer explained that the states’ reliance upon tradition today is “the same way we talk[ed] about racial segregation.”  The Solicitor General put it eloquently: allowing states to discriminate against same-sex couples “will approximate the nation as a house divided that we had with de jure racial segregation,” and he did not “know why we would want to repeat that history.”

  • May 8, 2015
    Guest Post

    by Jennifer Daskal, Assistant Professor of Law, American University Washington College of Law. Follow her on Twitter @jendaskal. [Cross-posted at Just Security]

    Yesterday the Second Circuit declared the NSA’s bulk telephone metadata program unlawful.  Specifically, it ruled that it was unauthorized by section 215 of the USA PATRIOT Act (and thus did not reach the constitutional law questions).  At the same time, however, it declined to grant an injunction that would have halted the program and instead sent the case back to the district court to reconsider the issues. As the Second Circuit recognized, many of the issues many of which could may be mooted by congressional action (or inaction) between now and June 1, when this key statutory provision is set to expire.

    The program’s continuing operation, at least for the next few weeks, has prompted commentators such as Orin Kerr to describe the ruling as “merely symbolic.”  I disagree.  To be sure, the telephony metadata program has long been given outsized attention relative to its impact and importance. But the ruling has significant import nonetheless not just for what it means for the continued operation of the program, but for the range of interconnected areas that the opinion addresses.  Below are four key, and substantive, implications of the ruling.

    1.      Collection Matters

    The Second Circuit resoundingly rejected the government’s argument that there is no cognizable injury until data is actually analyzed and reviewed.  According to the government,  appellants had no standing because they could not establish that the metadata associated with their telephone calls (i.e. the numbers called, received, and duration of the call) had actually been analyzed, rather than merely collected; absent subsequent review, the suffered no injury in fact.  The government makes analogous arguments with respect to other forms of bulk collection: Don’t worry we have robust limitations as to who can access the data and why.

    The Second Circuit was not persuaded, and rightly so.  As the Second Circuit concluded, collection is properly analyzed as a government seizure. If the collection is unlawful, then “appellants have suffered a concrete and particularized injury,” even without a subsequent review by human actors.  In other words, collection matters, even if the subsequent use restrictions are robust and strictly followed. That’s because we have a separate privacy interest not just in how the government uses our data, but in the government’s collection of our data in the first place.

  • May 8, 2015

    by Caroline Cox

    On Wednesday, the Senate Judiciary Committee conducted hearings for four White House nominees. The committee heard testimony from Dale A. Drozd, to be a United States District Judge for the Eastern District of California, Ann Donnelly and LaShann DeArcy Hall, to be United States District Judges for the Eastern District of New York, and Lawrence J. Vilardo, to be a United States District Judge for the Western District of New York.

    Massive delays in filling judicial vacancies continue as Senate Republicans refuse to confirm nominees or schedule hearings for nominees. This week, Senate Minority Leader Harry Reid ​harshly criticized Senator Pat Toomey for blocking Senate Judiciary Committee hearings on Third Circuit nominee Judge L. Felipe Restrepo. As ​the blog for People for the American Way reports, Toomey has refused to explain his decision. 

    Judge Restrepo has already waited 176 days despite universal agreement on his qualifications for the position. Roll Call ​and the blog for the ​Alliance for Justice discuss the political machinations that are contributing to this wait. 

    The Des Moines Register ​criticized these delays, and argued that these judicial vacancies are making it more difficult for Americans to get their day in court. Senator Chuck Grassley has failed to schedule hearings for qualified candidates such as Restrepo despite judicial vacancies quickly turning into judicial emergencies.  

    There are currently 55 vacancies, and 24 are now considered judicial emergencies. There are 17 pending nominees. For more information see judicialnominations.org.

  • May 8, 2015

    by Caroline Cox

    At Salon, Elias Isquith interviews retired Judge James Nelson about how the Supreme Court's campaign finance decisions are hurting American democracy. Judge Nelson cites the ACS reports "Skewed Justice" and "Justice at Risk" during the discussion. 

    Amanda McGowan reports for Boston Public Radio that retired Massachusetts Supreme Judicial Court Chief Justice Margaret Marshall predicts that the Supreme Court will rule 6-3 in favor of same-sex marriage.

    Alan Morrison considers the ruling in Williams-Yulee v. Florida Bar at Concurring Opinions, calling it a "ruling with no real-world impact." 

    In The Washington PostSari Horwitz​ reports that the Department of Justice is launching an investigation of the Baltimore police.

    Richard Wolf USA Today discusses how Chief Justice John Roberts ​has shown an independent streak in some of his recent opinions.

    In The New York TimesAlan Feurer writes about Cody Wilson​, a man who posted 3D-printing instructions for a gun online and is now suing the State Department for violating his right to free speech. 

    Walter Shapiro ​argues at the blog for the Brennan Center for Justice​ that politics will always be expensive, but does not have to marry corruption with its price tag.

     

  • May 7, 2015

    by Devon Ombres

    Today, a panel of the U.S. Court of Appeals for the Second Circuit issued its unanimous opinion in American Civil Liberties Union v. Clapper, giving privacy advocates a victory they have long been seeking in holding that Section 215 of the PATRIOT Act does not authorize the bulk collection of telephone metadata.  Because the Second Circuit found that bulk telephone metadata collection is not permitted by the statute, the court did not reach the constitutional question of whether it would comport with the Fourth Amendment.  Additionally, despite vacating and remanding the lower court’s judgment, the Second Circuit did not enjoin the government from continuing the collection of metadata under Section 215, reasoning that the statute is set to expire on June 1, 2015 and there is significant legislative activity on the horizon that could impact the legal issues in play.

    As an initial matter, Judge Gerald Lynch’s opinion held that the ACLU and its affiliates were not precluded from bringing an action seeking an injunction against the government’s collection program.  Although the government argued that no private cause of action was permitted, the court held that the government’s reliance on “bits and shards of inapplicable statutes, inconclusive legislative history, and inferences from silence in an effort to find an implied revocation of the [Administrative Procedure Act’s] authorization of challenges to government action” was not sufficient to overcome the strong presumption against the preclusion of judicial review.

    As to the program’s validity under Section 215, the court reviewed whether the statute authorized the creation of a “historical repository of information” where the “sheer volume of information sought is staggering.”  The court did not accept the government’s argument that data collection under Section 215 is analogous to the permissiveness provided to prosecution requests for grand jury subpoenas, which cannot be denied unless a court determines “that there is no reasonable possibility that the category of materials the government seeks will produce information relevant to the general subject matter of the investigation.”  The court distinguished those subpoenas as bound by the facts of a particular investigation and a finite timeframe, while the Section 215 metadata collection program had no limitations on subject matter, individuals, or time, and there was no requirement of relevance to any particular set of facts.