ACSBlog

  • 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.

  • May 7, 2015
    BookTalk
    Allegiance
    A Novel
    By: 
    Kermit Roosevelt

    by Kermit Roosevelt, Professor of Law, University of Pennsylvania Law School

    In 1896, in Plessy v. Ferguson, the Supreme Court upheld a Louisiana law that segregated railroad cars by race.  The Equal Protection Clause, the majority explained, prohibited discrimination that aimed to stigmatize or oppress a group, but racial segregation did not.  It was, instead, a reasonable, good faith response to the way things were.  In 1954, in Brown v. Board of Education, the Court changed its mind.  Segregation was inherently stigmatizing, it said, and anything to the contrary in Plessy was overruled.

    This pattern ‒ initial acceptance of a certain kind of discrimination followed, years later, by its rejection ‒ has repeated itself with each major civil rights movement in our constitutional history.  Plessy yields to Brown; Bowers to Lawrence; Bradwell v. Illinois (which upheld Illinois’ exclusion of women from the practice of law) to modern sex equality cases like United States v. Virginia.

    But how does this constitutional progress occur?  It is not, I’ve suggested, the work of heroic philosopher judges, discerning the true meaning of the concept of equality.  Nor does it rely on diligent historians, uncovering the understandings of the people who ratified the Fourteenth Amendment.  It happens because social movements change the minds of the American people about what is or is not oppressive, stigmatizing, or invidious.  It is the judicial recognition of a change that occurs, first and primarily, outside the courts.

    That change is the expansion of what Attorney General Francis Biddle called “the compass of sympathy” ‒ the scope of our ability to look at others and see our shared humanity.  Social movements changed the outcome of constitutional cases by convincing Americans that those who had seemed different were not so unlike them after all; that the aspirations and desires of blacks, or women, or gays, were fundamentally the same as those of the rest of society, and that what these groups sought was not special rights or unique privilege but equality and inclusion.

  • May 7, 2015

    by Caroline Cox

    In The New YorkerLincoln Caplan explores how increasing partisanship is leading to the destruction of the Wisconsin Supreme Court. 

    Karen Houppert reports at The Nation on the "haphazard mass arrests" that led to one man staying in a Baltimore jail for 44 hours simply for filming the police. 

    In The Atlantic​Bruce Ackerman and Ian Ayres consider how the Chief Justice's rulings on campaign finance cases have left an opening for Congress to tackle the problems of campaign fundraising.

    Molly Redden discusses at Mother Jones the record number of new laws restricting women's ability to get abortions.