ACSBlog

  • April 2, 2014
    Guest Post

    by Jessica Ring Amunson, Partner, Jenner & Block LLP; Co-author, Amicus Brief on Behalf of Democratic Members of the House of Representatives, McCutcheon v. FEC

    Editor’s Note: Just after oral argument in McCutcheon concluded last October, Jessica Ring Amunson joined Professor Justin Levitt of Loyola Law School on a call discussing the case, which can be accessed here.

    In today’s McCutcheon decision, the conservative majority of the Court took yet another step on the path toward dismantling what remains of campaign finance regulation. Although the opinion by Chief Justice Roberts claimed that it was not breaking any new ground in holding aggregate limits unconstitutional under the First Amendment, in reality the opinion redefined the campaign finance landscape. By holding that the only legitimate rationale for any campaign finance regulation can be to prevent “the direct exchange of an official act for money,” the conservative majority laid the groundwork for not only the invalidation of the aggregate limits, but also for calling into question the validity of any campaign finance limits at all.

    While the Chief Justice’s opinion purported to be faithfully following and applying past precedent, the dissent by Justice Breyer describes how the plurality opinion is actually breaking significant new ground. This is the first time the Court has squarely held that in enacting campaign finance regulation, “Congress may target only a specific type of corruption—‘quid pro quo’ corruption.” It is also the first time the Court has squarely held that “because the Government’s interest in preventing the appearance of corruption is equally confined to the appearance of quid pro quo corruption, the Government may not seek to limit the appearance of mere influence or access.”

  • April 2, 2014
    A recent American Constitution Society symposium explored the vitally important topic of state court judicial selection. Entitled (“Justice at Risk: Research Opportunities and Policy Alternatives Regarding State Judicial Selection” the event empirical evidence showing that how a state selects its judges can impact judicial decision making. The symposium (which was co-sponsored by the American Judicature Society and Vanderbilt Law School) built upon the foundation set by Justice at Risk, a study commissioned by ACS that sounded the alarm over the big money takeover of state courts across the nation. Written by Professor Joanna Shepherd-Bailey of Emory University, who examined thousands state court cases and over 175,000 judicial campaign contributions, Justice at Risk shows that consciously or unconsciously, judges tend to rule in favor of their contributors. For example, a judge who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time.
     
    Professor Shepherd-Bailey led the symposium’s opening panel which examined the findings of Justice at Risk and discussed its methodology. Two subsequent panels looked at the research opportunities presented by Professor Shepherd-Bailey’s research and a broader discussion at the policy implications of this empirical research. The latter panel featured the Honorable Martha Daughtrey of the U.S. Court of Appeals for the Sixth Circuit and the Honorable N. Randy Smith of the U.S. Court of Appeals for the Ninth Circuit.
  • April 1, 2014

    At The Huffington Post, former ACS Board Chair and current Co-Chair of the Board of Advisors for the ACS Chicago Lawyer Chapter as well as Co-Faculty Advisor for the University of Chicago Law School ACS Student Chapter Geoffrey R. Stone explains why the “NSA deserves the respect and appreciation of the American people. But it should never, ever, be trusted.” More analysis on the NSA from Professor Stone can be found here.
     
    Delaware Superior Court Judge Jan Jurden granted probation for a man convicted of sexually abusing his three-year-old daughter.  Slate’s Emily Bazelon argues why this “mind boggling” case is “a part of a disturbing pattern of late in which judges treat sexual assault crimes as worthy only of a slap on the wrist.”
     
    At the Brennan Center for Justice, Lauren-Brooke Eisen describes how Attorney General Eric Holder is combating the troubling effects of America’s ‘tough on crime legacy’ by “lowering the suggested penalties for certain drug crimes.” 
     
    At Education Week’s School Law blog, Mark Walsh discusses the Supreme Court’s denial of certiorari to a Roman Catholic school’s challenge to the Affordable Care Act.
     
    At Bloomberg View Cass R. Sunstein picks the “the all-time greats” of the Supreme Court. 
  • March 31, 2014
    Guest Post

    by Frederick Gedicks, Guy Anderson Chair and Professor of Law, Brigham Young University Law School

    In the wake of last week’s oral argument of the contraception mandate cases, numerous reporters and bloggers have suggested that the government’s defense of the mandate went badly because (roughly), “Justice Kennedy thinks Hobby Lobby is an abortion case.” The basis for this take is that Justice Kennedy’s questions linked the mandate with abortion rights, to which he has only a limited commitment: Justice Kennedy joined the joint opinion of Planned Parenthood v. Casey (1992) which upheld the “core” of Roe v. Wade (1973), but he subsequently authored the majority opinion in Gonzalez v. Carhart (2007), which upheld a federal statutory ban on late-term abortions despite the absence of health exception. (See also Stenberg v. Carhart (2000), with Kennedy dissenting to the Court’s striking down of a state ban.)

    But there’s another way of seeing Hobby Lobby. Justice Kennedy also asked questions that linked Hobby Lobby’s opposition to the mandate to the burdens a religious exemption from the mandate would impose on its employees, and he has expressed concern in past decisions about religious exemptions that shift the cost of accommodation from those who practice the accommodated religion to those who don’t. For example, Kennedy wrote in the Kiryas Joel that “a religious accommodation demands careful scrutiny to ensure that it does not so burden nonadherents or so discriminate against other religions as to become an establishment” (concurring in the judgment).

    This concern about cost-shifting religious accommodations would presumably be front and center in any case involving religious exemptions that would burden gays and lesbians. Whatever he thinks about abortion rights, there can be no question that Justice Kennedy has long been unequivocally opposed to discrimination against gays and lesbians. See United States v.  Windsor (2013); Hollingsworth v. Perry (2013); Lawrence v. Texas (2003); Romer v. Evans (1996). Indeed, it would appear from Windsor that Justice Kennedy is prepared to hold that state prohibitions and restrictions on same-sex marriage violate the both the Equal Protection and Due Process Clauses of the 14th Amendment.

    Religious Freedom Restoration Act (RFRA) exemptions for Hobby Lobby would open the door to state religious exemptions excusing for-profit businesses from serving same-sex couples or providing certain benefits to gay and lesbian employees. A religious exemption from the contraception mandate for Hobby Lobby would establish a more general principle that for-profit businesses and their owners are entitled to statutory accommodation of their religious beliefs, even when such accommodations impose significant costs on others who do not share those beliefs. Under this principle, not only could an employer claim the right not to provide services for a same-sex wedding on religious grounds, it could also claim the right not to provide mandated employee benefits like health insurance coverage for same-sex spouses, or leave under the Family and Medical Leave Act for gay employees who adopt a child.

  • March 31, 2014

    In an op-ed for The New York Times, Bruce Ackerman eloquently compares the current state of gay marriage to the struggle of the civil rights movement in order to “emphasize the link between institutionalized humiliation and the constitutional requirements of equal protection.” Indeed, as Ackerman’s analysis points out, “dignity is a constitutional principle.”
     
    Earlier this morning, the U.S. Supreme Court heard oral argument in Alice Corporation Pty. Ltd. v. CLS Bank International, a case examining whether computer software is “eligible for copyright and patent protection.” Timothy B. Lee at The Washington Post provides useful commentary on the case.
     
    At Jost on Justice, Kenneth Jost notes that death row inmates are challenging the lethal injection formula that is being used for executions. In the piece, Jost explains why “it is not too much to ask that courts make sure that lethal injections, as carried out, are the humane executions they are supposed to be.”
     
    Jeffrey Toobin at The New Yorker reports on the successes of the Affordable Care Act thus far, the fecklessness of some of its promoters and the law’s most critical hurdle.
     
    Writing for Just Security, Marty Lederman describes why Hussain v. Obama is “a habeas case to keep an eye on.”