by William Kidder, the Assistant Provost at UC Riverside. Mr. Kidder’s post represents his personal views and not necessarily those of the UC administration. Mr. Kidder has a book review of Mismatch forthcoming in the Texas Law Review and a policy brief on the impact of Michigan’s Proposal forthcoming through the UCLA Civil Rights Project. His article on California’s Proposition 209 was published last spring in the Journal of College and University Law.
In discussing scientific evidence, Justice Breyer articulated a bare minimum standard that judges need to meet in order to protect the public interest and parties to litigation: “Consider the remark made by physicist Wolfgang Pauli. After a colleague asked whether a certain scientific paper was wrong, Pauli replied, ‘That paper isn’t even good enough to be wrong.’ Our objective is to avoid legal decisions that reflect that paper’s so-called science. The law must seek decisions that fall within the boundaries of scientifically sound knowledge.”
Regrettably, in last week’s oral argument in Schuette v. Coalition to Defend Affirmative Action, there were times where Michigan’s solicitor general John Bursch advanced arguments about higher education that aren’t “even good enough to be wrong” and that, if accepted, would leave the Court in a wilderness outside of the boundaries of sound statistics and social science knowledge.
In response to Justice Sotomayor’s question about the impact of California’s affirmative action ban, Bursch claimed, “The statistics in California across the 17 campuses in the University of California system show that today the underrepresented minority percentage is better on 16 out of those 17 campuses. It’s not at Berkeley; they haven’t gotten there yet; but its better on the rest.” There are only ten UC campuses, not seventeen. Of these campuses nine UC campuses (and eight with undergraduates) permit a comparison of pre- and post-affirmative action periods.
In contextualizing Bursch’s claims, it is also helpful to address African Americans, American Indians and Latinos separately. Most directly responsive to Bursch’s dubious claim are total enrollment figures (though that means combining undergraduate, graduate and professional school students). Compared to a baseline of 1996 (before California’s affirmative action took effect), the percentage of African Americans in 2012 is lower on a majority of UC campuses: Berkeley, Davis, Los Angeles, San Diego and San Francisco. The negative impact of prohibiting affirmative action is greatest at the most selective campuses that disproportionately train future leaders. At UC Berkeley African Americans were 5.1 percent of students in 1996 and only 3.3 percent in 2012, fifteen years after the campus implemented myriad rigorous race-neutral efforts to improve diversity. At UCLA African Americans were 5.8 percent of total enrollment in 1996, and 3.9 percent in 2012.
After more than four years of obstructing President Obama’s judicial nominations and causing the vacancies on the federal bench to hover at or above 80, right-wing organizations are ratcheting up their efforts to re-write history. The Heritage Foundation, proclaims that no obstruction has occurred and that Obama is remaking the federal bench, but asks us to ignore what unfolded during his first term. The lesser-known Judicial Crisis Network (JCN) is out with a slideshow of 13 graphics that aims to support an effort of Republican senators to shrink the size of the U.S. Court of Appeals for the District of Columbia Circuit, where vacancies have languished for years on end.
Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) has long sought to chop seats from the D.C. Circuit, widely considered one of the most powerful federal appeals courts in the land, claiming it has a flimsy workload. Grassley and his fellow Republicans successfully kept Obama from filling one of the D.C. Circuit’s longstanding vacancies until the start of his second term. There are still three vacancies on the 11-member court.
When Obama announced three nominations to those vacancies earlier this year, Grassley introduced a bill aimed at cutting – you guessed it – three seats from the D.C. Circuit, arguing the Circuit’s current judges had light caseloads and there was no need for more judges. But as the Constitutional Accountability Center (CAC) and others have noted, Grassley’s claims about the D.C. Circuit ignore reality. The D.C. Circuit hears far more complex and constitutionally weighty matters than the other federal appeals court circuits.
The JCN is headed by Carrie Severino, an attorney devoted like the Tea Party to destroying health care reform and mild regulations (Dodd-Frank) of the financial industry. The group's “infographic” containing 13 slides purports to show that the D.C. Circuit “is the most underworked court in the country.” It is, as People For The American Way’s blog notes, a slideshow “recycling old, discredited arguments ….”
Earlier this year when Grassley launched his latest attempt to slash judgeships from the D.C. Circuit, he claimed, “No matter how you slice it, the D.C. Circuit ranks last or almost last in nearly every category that measures workload.” That statement caught the attention of The Washington Post’s “The Fact Checker,” which concluded it was deserving of “Two Pinocchios,” meaning it contained “significant omissions and/or exaggerations.”
The government shutdown may have ended, but the hardline conservative attack on the Affordable Care Act hasn’t. In the coming months, the Supreme Court will decide whether to hear challenges brought by secular, for-profit corporations and their owners to a key provision of the ACA that requires certain employers to provide female employees with health insurance that covers all FDA-approved contraceptives. The ACA already exempts religious employers from the duty to provide contraceptive coverage, but these secular, for-profit corporations insist they are entitled to exemption as well. In its own challenge earlier this year, Hobby Lobby, an arts and crafts chain, succeeded in persuading the United States Court of Appeals for the Tenth Circuit to accept a truly remarkable proposition: that the corporate entity itself is a person exercising religion and is entitled, on grounds of religious conscience, to deny its female employees health insurance coverage for FDA-approved contraceptives. Two other federal circuits have rejected this analysis, and the Supreme Court has been asked to resolve the split between the federal courts of appeal. If, as is widely expected, the Court agrees to hear Hobby Lobby, the case will be vitally important on a broad range of issues: corporate personhood and the rights of business corporations, women’s health, employee rights, the role of religion in the workplace and more.
In the 225 years since the ratification of the Constitution, the Supreme Court has never held that secular, for-profit corporations are entitled to the Constitution’s protection of the free exercise religion. As we explain more fully in this legal brief and issue brief, it should not do so now.
From the Founding on, the Constitution’s protection of religious liberty has always been seen as a personal right, inextricably linked to the human capacity to express devotion to a God and act on the basis of reason and conscience. Business corporations, quite properly, have never shared in this fundamental aspect of our constitutional traditions for the obvious reason that a business corporation lacks the basic human capacities – reason, dignity, and conscience – at the core of the Free Exercise Clause. No decision of the Supreme Court, not even Citizens United, has ever invested business corporations with the basic rights of human dignity and conscience. To do so would be a mistake of huge proportions, deeply inconsistent with the text and history of the Constitution and the precedents of the Supreme Court.
The U.S. Supreme Court this week heard argument in DaimlerChrysler AG v. Bauman, a case arising out of the Dirty War in Argentina. The plaintiffs allege that Daimler, the German automaker, is responsible for the disappearance and torture of workers at a Mercedes-Benz plant in Argentina, because plant managers identified union leaders and others as “subversives” who were then targeted for persecution. This case is worth watching, because it could herald broad new protections for multinational corporations that enjoy the privilege of doing business in the United States.
The focus of the Supreme Court hearing, however, was not on the substance of the claims, but on whether Daimler can be sued in the United States at all. The Ninth Circuit Court of Appeals ruled that Daimler could be sued in California because its subsidiary Mercedes-Benz USA (MBUSA) does extensive business in California, and MBUSA’s activities could be attributed to Daimler. My organization, EarthRights International, submitted an amicus brief on the side of the Bauman plaintiffs, arguing that the Constitution does not require courts to treat corporations and their subsidiaries separately for jurisdictional purposes, especially where they are economically integrated.
Several justices seemed hostile to the victims of torture and disappearance, but they did not suggest a coherent rationale for dismissing the case. Few seemed to want to constitutionalize a rule of corporate separateness, but most expressed some discomfort with the case.
What’s at stake here is essentially whether Congress, or any U.S. state, has the power to tell a corporation: “If you do business here, even if it’s through a subsidiary, victims of your crimes in other countries can sue you here.” In this case, the abuses are torture and disappearance; in another case it might be selling chemical weapons. Do we really want to establish a constitutional rule that a company that sells chemical weapons to a foreign regime can exercise the privilege of doing business in the United States without submitting to justice from its victims?
by Paul M. Smith, Partner, Jenner & Block. Mr. Smith is a longtime Supreme Court practitioner and a member of the ACS Board.
As the lawyer who argued the constitutional challenge to the Indiana Voter ID law in the Supreme Court in 2008, I was both fascinated and pleased to hear that Judge Richard Posner – the author of the Seventh Circuit majority opinionaffirmed by the Supreme Court in Crawford v. Marion County Elections Board – has now publicly stated that he was wrong. It is refreshing, if not unprecedented, for a jurist to admit error on such a major case.
I was a little less pleased to see that he attempted to excuse his error by blaming the parties for not providing sufficient information to the court. As he put it in an interview quoted in the New York Times, “We weren’t given the information that would enable that balance to be struck between preventing fraud and protecting voters’ rights.” Really? The information provided was enough for the late Judge Terence Evans, dissenting from Judge Posner’s decision, to say quite accurately: “Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by folks believed to skew Democratic.”
That insight about the purpose of the law was supported by this information, all of which was provided to Judge Posner and the Seventh Circuit:
There had never been a single known incident of in-person voter impersonation fraud in the history of Indiana and there have been precious few nationally – yet the Indiana law targeted only in-person voting.
The law was passed immediately after Republicans took complete control of the legislature and governorship of the State of Indiana.
Every Republican legislator supported the law, while every Democratic legislator opposed it.
But what about the effects of the law? Well, Indiana Secretary of State Todd Rokita, the primary supporter of the bill, himself stated that there are certain “groups of voters for whom compliance with [the Voter ID law] may be difficult” because they are “registered voters who do not possess photo identification; who may have difficulty understanding what the new law requires of them; or who do not have the means necessary obtain photo identification.” As examples he mentioned “elderly voters, indigent voters, voters with disabilities, first-time voters, [and] re-enfranchised ex-felons.” Moreover, the district court had conservatively estimated that there were 43,000 voting-age Indianans without a state-issued driver’s license or identification card, and that nearly three-quarters of them were in Marion County, which includes Indianapolis. In other words, the persons most likely to be affected were poor and minority residents in the state’s largest city, who tended to vote Democratic and lived in a city that was trending Democratic.