• April 2, 2015

    by Caroline Cox

    Senate Majority Leader Harry Reid announced his intention to retire last week. The New Yorker considers Reid’s impact on federal judiciary, particularly his focus on federal judges rather than simply Supreme Court nominees in Senate deliberations.

    Senate Republicans remain slow to confirm judicial nominees. A comparison of recent trends to the final two years of George W. Bush’s presidency made by People for the American Way reveals just how problematic the delays are.

    John Michael Vazquez, one of President Obama’s most recent United States District Court judge nominees, “comes as the District of New Jersey faces three judicial vacancies and will soon have a fourth.” The New Jersey Law Journal provides a look at the nominee and the problem of judicial vacancies in New Jersey.

    There are currently 55 vacancies, and 23 are now considered judicial emergencies. There are 18 pending nominees. For more information see

  • April 2, 2015

    by Caroline Cox

    Nina Totenberg of NPR reports on the recent Supreme Court ruling that private Medicaid providers cannot sue states for higher reimbursement rates to keep pace with rising medical costs.

    Monica Davey and Richard Pérez-Peña report for The New York Times that Indiana Republicans will revise the state’s controversial religious freedom law to prohibit discrimination.

    In the Huffington Post, Brianne Gorod writes that the battle in lower courts over same-sex marriage shows how important it is for the Supreme Court to recognize marriage equality.

    Following the ruling in Young v. UPS, George Gao and Gretchen Livingston of the Pew Research Center explain that working while pregnant is even more common than when the Pregnancy Discrimination Act was first made into law.

    At Slate, Mark Joseph Stern writes that the Supreme Court is considering whether to allow Louisiana to execute a man who claims to be intellectually disabled.

    Michael Li reports at the blog for the Brennan Center for Justice that the courts are likely to review Virginia’s congressional map.

  • April 1, 2015
    Guest Post

    by Leslie A. Shoebotham, Victor H. Schiro Distinguished Professor of Law, Loyola University New Orleans

    This week, the U.S. Supreme Court in a per curiam opinion held that monitoring a recidivist sex offender via an ankle bracelet device was a “search” for Fourth Amendment purposes.  In Grady v. North Carolina, the Court concluded that United States v. Jones controlled the case – i.e., attachment of an ankle bracelet and monitoring of the device to determine Grady’s location was a “search,” just as the government’s attachment and monitoring of a Global Positioning System (GPS) device onto Jones’s vehicle was a Fourth Amendment search.  The Court issued a summary reversal of the North Carolina Supreme Court’s non-search decision and remanded the case to the state courts to determine whether the search is reasonable based on the totality of the circumstances.

    Because of society’s strong interest in preventing child sexual abuse, as well as the overall contempt with which sex offenders are often viewed, it might be easy to assume that the North Carolina courts should find the search to be reasonable.  Don’t be lulled by the opprobrious nature of Grady’s prior crimes, however.  Based upon the facts in Grady, the ankle bracelet search at issue is premised on a future-looking ongoing search – a search that is conducted in the absence of probable cause, or even reasonable suspicion, that a crime will be committed.  If this search is upheld as reasonable, it opens the door to attachment of devices and monitoring in countless other situations.

  • April 1, 2015

    by Caroline Cox

    Linda Greenhouse, member of the ACS Board of Advisors, writes in The New York Times about the persistent problem of the death penalty for the Supreme Court.

    In the Los Angeles Times, Erwin Chemerinsky explains how the Indiana Religious Freedom Restoration Act differs from religion laws in other states.

    At Talking Points Memo, Caitlin MacNeal reports that the Indianapolis Star has taken a strong stand against the new Indiana religious freedom law.  

    Alan B. Morrison writes about the Alabama redistricting case and its implications for future cases on racial gerrymandering at On the Docket.

    At The Atlantic, Joe Pinsker considers how corporations are using – and expanding – their free-speech rights.

  • March 31, 2015
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The controversy over Indiana’s recently enacted Religious Freedom Restoration Act shows the importance of context in understanding a law. The bill signed by Indiana Governor Mike Pence is very similar to the federal Religious Freedom Restoration Act (RFRA) and laws that exist in 19 states. But the timing of the enactment of the Indiana law and the rhetoric surrounding it give every reason to believe that it was intended to allow businesses in Indiana to discriminate against gays and lesbians based on claims of religious freedom. Governor Pence reinforced this impression when on Sunday talk shows he repeatedly refused to deny that it would have exactly this effect.

    Governor Pence constantly emphasizes that the Indiana law is much like the federal RFRA signed by President Clinton in 1993. He stresses that nothing within the Indiana law expressly authorizes discrimination against gays and lesbians.

    That is true, but Governor Pence and supporters of the Indiana law are ignoring its context. Why is Indiana adopting the law now, 25 years after Employment Division v. Smith changed the law of the free exercise clause and 22 years after the enactment of the federal RFRA?

    It is clear that Indiana’s goal is to permit businesses to discriminate against gays and lesbians. Last June, in Burwell v. Hobby Lobby, the Supreme Court for the first time held that secular corporations can claim to have a religious conscience and free exercise of religious belief. In fact, the protection of corporations and businesses is much more explicit in the Indiana RFRA than in the federal statute.

    The Indiana RFRA comes soon after the decision of the United States Court of Appeals for the Seventh Circuit declaring unconstitutional the Indiana law prohibiting same-sex marriage and soon before the Supreme Court is likely to recognize a right to marriage equality for gays and lesbians. It is telling that repeatedly in his interviews, Governor Pence refused to deny that the Indiana law would have the effect of permitting businesses to discriminate based on sexual orientation. He also was emphatic that there would be no expansion of rights for gays and lesbians on his “watch.”

    This is why there are loud protests against the Indiana law and calls for boycotts of Indiana. If Indiana does not mean to allow such discrimination based on sexual orientation, it should amend the law to provide that no one can discriminate against others based on race or sex or sexual orientation or religion based on the statute or on the grounds of religious beliefs. 

    Governor Pence has refused to say that he favors such an amendment to the law. He can’t have it both ways:  either the Indiana law was meant to allow discrimination against gays and lesbians and the vehement objections to it are justified, or the law was not meant to permit discrimination against gays and lesbians and it should be amended immediately to say this. Discrimination in the form of the refusal to do business with a person because of his or her religion or race or sex or sexual orientation is wrong whether based on religion or anything else. Until Governor Pence and the supporters of the law recognize this and amend the law to say this, the protests and boycotts are justified.