• October 6, 2016
    Guest Post

    by Ron Fein, Legal Director at Free Speech For People

    Why do we want to limit the influence of money in politics and what do we tell the courts? For 40 years, since the Supreme Court’s 1976 Buckley v. Valeo decision, the legal arguments for limiting big money in politics have been compelled to focus on “corruption” as the only reason.

    Not anymore. On Wednesday, Free Speech For People (along with partners Indian Law Resource Center, American Independent Business Alliance, American Sustainable Business Council and retired Montana Supreme Court Justice James Nelson) filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit in support of the state of Montana’s campaign contribution limits against a challenge led by noted campaign finance reform opponent James Bopp. The amicus brief advances a political equality argument. The district court had chastised Montana’s voters, who passed the contribution limits by a 1994 ballot initiative, for trying to achieve political equality.

    As background, the Supreme Court’s campaign finance precedent has long insisted that limits on political contributions must be grounded in concern about “corruption” and its appearance. In years past, justices with a pragmatic sense of political reality understood “corruption” to include broader concerns of influence and access; more recently, the Roberts Court constrained it to just mean “quid pro quo” corruption, not much more than bribery. And certainly corruption is one legitimate concern.

    But that is not the only, or perhaps even the main, reason that Americans want to limit the influence of big money. A more fundamental principle is political equality. This concept has been part of our constitutional history since before we had a Constitution. “We hold these truths to be self-evident, that all men are created equal,” not equal in assets or abilities but in their unalienable right “to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” So wrote Thomas Jefferson in the Declaration of Independence. And when the Constitution was submitted for ratification by the states, James Madison assured hesitant readers, worried that Congress would be dominated by the wealthy, thus: “Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune.”

  • October 4, 2016
    Guest Post

    by Joshua Smith, Law Clerk at Debevoise and Plimpton

    On Sept. 21, 2016, ACS’s New York Lawyer Chapter and the NYU Student Chapter co-hosted a Supreme Court Preview event at NYU School of Law featuring Above the Law’s Elie Mystal and Joe Patrice. This is an annual event, but this year’s was different. They spent as much time talking about who was not on the Court as they did the issues before the Court. And those issues this term are not exactly rising to the level of exciting fare to which we have become accustomed.

    Because the Supreme Court has the unique ability to choose its own docket, we can read between the lines of the cases it chooses and discover what the Court thinks about itself. For example, the Lochner Era Court fiercely defended the interests of an industrial class facing a barrage of court challenges from workers seeking protections in the workplace. The Warren Court tackled the tough questions of post-war America, including racial justice, the rights of criminal defendants and the right to privacy. In the past decade, the Roberts Court has been defined as one receptive to corporate interests, issuing opinions allowing corporate political spending and pushing back on the proliferation of class action suits.

    The message between the lines from the Court regarding the upcoming term is less ambitious. The Court is telling us that it is not functioning. As Joe and Elie pointed out, instead of the typical docket with many high-profile cases resolving closely disputed legal questions, this year’s term is loaded with cases to avoid the embarrassing 4-4 splits from the end of last term. This year’s headliners wrestle with questions more mundane, such as damages for design patent infringements, local zoning regulations as a governmental taking and whether a state can provide resources to build a playground at a parochial school without violating the establishment clause.

    For 234 days, the Supreme Court has been attempting to function with only eight members. This is in spite of President Obama’s nomination of Chief Judge Merrick Garland, undisputedly the most qualified Supreme Court nominee in decades. Despite his credentials, Judge Garland has become a political football, with the Senate refusing to even grant him a hearing during a heated election year. Senate leaders have articulated numerous justifications for this delay, but none counter two simple facts. First, the president is elected for a full four year term without regard to the electoral calendar. Second, on six occasions in the 20th century, Supreme Court justices were confirmed during a presidential election year. Already, Judge Garland has waited longer for a confirmation vote than any nominee in history. We still have another month until Election Day.

  • October 4, 2016
    Guest Post

    by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States at Chicago-Kent College of Law

    As the Supreme Court’s new Term begins, one of the key questions is how the Court will be affected by Justice Scalia’s absence. As interesting as the question of how the Court itself responds, however, is the question of how litigants behave – and what we can learn from that behavior. One datapoint came shortly after Justice Scalia’s death in February 2016, in a major antitrust case involving Dow Chemical. In this case, known in the lower courts as In re Urethane Antitrust Litigation, a class of purchasers of certain polyurethane chemical products sued Dow Chemical for price fixing. The plaintiffs prevailed at trial and obtained a $1.1 billion jury verdict. On appeal in the 10th Circuit, Dow Chemical argued, among other things, that the case was inappropriate for class adjudication and that the plaintiffs’ method of calculating damages was improper. The 10th Circuit upheld the jury verdict and Dow filed a petition for certiorari (Dow Chemical Co. v. Industrial Polymers, Inc., No. 14-1091) in March 2015.

    Although Dow Chemical was an antitrust case, the issues it presented echo class-action-related issues in a wage-and-hour case that the Court heard last term, Tyson Foods, Inc. v. Bouaphakeo. In both cases, the defendant challenged the use of averages or representative proof of damages and argued that differences between the damages different class members may be entitled to rendered class (or collective) actions inappropriate. In Tyson Foods, for example, the defendant claimed that it was improper for the court to certify a class or collective action where the plaintiffs calculated damages by extrapolating from the time it took for certain employees to perform the tasks (donning and doffing protective and sanitary gear) for which they had not been paid overtime. In Dow Chemical, the class relied on a damages expert who looked at prices paid by some class members and extrapolated to classwide damages and Dow Chemical argued that differences between damages actually suffered by individual class members rendered class certification improper. Indeed, the Court took no action on the cert petition in Dow Chemical while Tyson Foods was pending, a sign that it considered the issues in the cases related and that the outcome of one might affect the other.

  • October 3, 2016
    Guest Post

    by Shira Scheindlin, former Senior Judge of the United States District Court for the Southern District of New York, of Counsel, Stroock & Stroock & Lavan LLP

    The issue of policing arose during the recent presidential debate. This issue is one of great importance throughout the country – particularly in light of a number of recent and documented shootings by police of unarmed African American and Hispanic victims. As the former federal judge who ruled on the constitutionality of stop and frisk as used in New York City, I write to clarify a number of the misstatements or misconceptions that have tainted this debate.

    Based on the evidence of racial bias presented during the 2013 trial in Floyd v. New York City, over which I presided, I found that stop and frisk – as practiced in New York – was unconstitutional. In a separate opinion, I directed a series of remedies to address the problem. It ordered very specific reforms that would result in the constitutional use of stop and frisk.

    There is no question that the use of stop and frisk is permitted by the Constitution as interpreted by the United States Supreme Court in Terry v.Ohio. The Court held that a stop can be made when an officer has “reasonable suspicion” that a person has committed, is committing or is about to commit a crime. The Court later held that in order to conduct a frisk, the officer must have reasonable suspicion that a person is armed and dangerous. If a stop and frisk is done in accordance with these principles then it will pass constitutional muster.

    But this is not what happened in New York, when the numbers of stops and frisks began to climb dramatically from approximately 2004 to 2012. In those years more than 4.4 million stops were made and it appears that most were not based on the required reasonable suspicion. This conclusion was reached by an examination of (1) the uncontested statistical evidence; (2) the testimony of experts who analyzed more than 4.4 million stops to determine whether there was racial bias; (3) institutional evidence of deliberate indifference (including the unconscious racial biases or indirect racial profiling exhibited by police officers) and (4) the examples of individual stops by selected plaintiffs who were members of the Floyd class.

  • September 30, 2016
    Guest Post

    by Danielle Lang, Deputy Director of Voting Rights and Anna Bodi, Partner Legal Fellow at The Campaign Legal Center

    Larry Joe Newby is a U.S. citizen living in Huntsville, Alabama. Mr. Newby is married, attends church, is raising his two adopted grandsons and works for the County as an assistant supervisor. However, due to a few minor non-violent offenses from well over a decade ago, Mr. Newby has not been able to vote and will not be able to cast a ballot this November. Mr. Newby is just one of the 5.85 million citizens whose voices have been silenced by felony disenfranchisement laws across the United States. 75 percent of these disenfranchised voters are no longer in prison, but are still unable to vote.

    Unwilling to accept the denial of his fundamental right to vote, Mr. Newby is a named plaintiff in a new lawsuit filed by the Campaign Legal Center, alongside a team of pro bono and civil rights litigators, that could finally turn the page on a dark history of discriminatory felon disenfranchisement in Alabama and nationwide.

    Alabama’s Strict and Discriminatory Felon Disenfranchisement Regime

    Alabama has one of the most severe and discriminatory felon disenfranchisement laws in the nation: it is one of only 12 states that permanently disenfranchise some or all citizens convicted of felony offenses and, as a result, disenfranchises 7% of its total voting age population and 15% of its black voting age population.