ACSBlog

  • September 25, 2014
    BookTalk
    The Case Against the Supreme Court
    By: 
    Erwin Chemerinsky

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

    How should we assess the Supreme Court’s performance over the course of American history? That is the central question of my new book, The Case Against the Supreme Court. My conclusion is that the Supreme Court often has failed at its most important tasks and at the most important times. Recognizing this is important in order to focus on how to improve the institution and make it much more likely to succeed in the future.

    Obviously the evaluation of any institution requires criteria by which it can be assessed.   In the introductory chapter, I posit that the Court exists, above all, to enforce the Constitution. The Constitution exists to limit what government and thus the democratic process can do. As Marbury v. Madison said long ago, the limits contained in the Constitution are meaningless unless enforced and that is the “province and duty” of the courts. The judiciary is particularly important in protecting the rights of minorities (of all sorts) who cannot rely on, and should not have to rely on, the democratic majority. Also, the courts need to play a special role in times of crisis to ensure that society’s short-term passions do not cause it to lose sight of its long-term values.

    I believe that all, liberal and conservative, can agree that these are fair criteria by which to assess the Supreme Court. I also think that liberals and conservatives can agree that the Court very often has failed. Part I of the book looks at the Court historically. Chapter one looks at the Court’s dismal record over the course of American history with regard to race. For the first 78 years of American history, from 1787 until 1865, the Court aggressively protected the rights of slave owners and upheld the institution of slavery.  For 58 years, from 1896 until 1954, the Court approved and enforced the doctrine of “separate but equal.” The Court’s failure with regard to race continues to this day, as evidenced by the decision in Shelby County, Alabama v. Holder, which declared unconstitutional a key provision of the Voting Rights Act of 1965. This is the first time since the 19th century that the Court has invalidated a federal civil rights law to protect racial minorities.

  • September 25, 2014
    Guest Post

    by Brandon L. Garrett, Professor of Law, University of Virginia School of Law. Since the 2011 publication of Convicting the Innocent: Where Criminal Prosecutions Go Wrong, Professor Garrett has written widely on issues of criminal procedure, scientific evidence, corporate crime, and the law. This fall, Harvard University Press will publish his new book, Too Big to Jail: How Prosecutors Compromise with Corporations.

    Can the State execute a person who is insane to the point of delusional? In 1986, the U.S. Supreme Court held in Ford v. Wainwright that the Eighth Amendment forbids the execution of the mentally ill, questioning “the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life.” However, the Court left the standards for defining the required “comprehension” unclear in some respects. And despite strong insistence from the Court that medical expert opinion be heeded, the State of Texas and the Fifth Circuit Court of Appeals have been nothing if not determined to push the outer bounds of the Eighth Amendment to permit execution of the insane.  When the Court reviews petitions for certiorari next week, it will consider the case of Scott Panetti, a case that will hopefully put this important question to the test for the second time in a decade.

    The insanity defense was the only one Panetti raised at his trial in 1992. It seemed like a textbook case. Panetti, a schizophrenic had been institutionalized repeatedly before the murder of his in-laws in Fredericksburg, Texas.  He had brutally shot his in-laws with a hunting rifle, right in front of his estranged wife and his daughter.  He told police that a character named “Sarge,” one of his four or five personalities, who he would regularly hallucinate about, made him do it. At a separate initial trial on the issue whether he was competent, he was medicated with massive doses of antipsychotic drugs.  The first jury hung; after a surprise change of venue a second jury found him competent to be criminally tried. At his death penalty trial, he represented himself, without taking his antipsychotic medication, wearing a purple cowboy suit, and requesting the opportunity to examine witnesses such as John F. Kennedy, Pope John Paul II, and Jesus Christ. His standby lawyer called his trial performance “bizarre,” “scary,” and “trance-like.” 

  • September 25, 2014

    by Caroline Cox

    The Constitutional Accountability Center offers a review of Chief Justice John Roberts’ tenure on the Court with an introductory chapter penned by Brianne Gorod.

    Amy Davidson argues in The New Yorker that Democrats should stop focusing on Justice Ruth Bader Ginsburg’s retirement.  

    Geoffrey R. Stone finds evidence of a more politically polarized Supreme Court in The Huffington Post.

    In Rolling Stone, Tim Dickinson profiles the Koch brothers and how they acquired both their fortune and political influence.

    The Editorial Board of The New York Times decries the long lines at polling places in black and Hispanic neighborhoods, arguing that these areas are systematically deprived of resources. 

  • September 24, 2014
    Guest Post

    by Carlos Sandoval, Esq. and Catherine Tambini. Their award-winning film, The State of Arizona, will be screened by the ACS’ New York Chapter on Tuesday, October 7 at the offices of Baker Hostetler.

    Who has a right to be an American citizen? Most agree the 14th Amendment's "birthright citizenship" clause, as interpreted by the Supreme Court, settles one aspect of the matter. If you’re born on US soil, you’re a citizen, with minor exceptions.

    In 2011, a group of state legislators concerned about the flow of unauthorized migrants sought to redefine the exceptions. Undocumented parents, they argued, were not subject to the jurisdiction of the United States and therefore their children could not be US citizens “simply by virtue of their GPS location.”

    As we transition from Constitution Week to Hispanic Heritage Month, we’d like to invite you to watch an emotionally packed scene that reveals the potency of the Constitution as a living document. It’s also a scene that reverberates with the centuries old question of identity among Latinos in America.

    For reasons of storytelling and time, we had to drop the footage from the final cut of our film, The State of Arizona. The scene takes place on the grounds of the Arizona State Legislature and inside its Senate Chamber.  Though we filmed in 2011, the arguments haunt us today in the absence of national immigration reform.

     

    A Birthright Citizenship Battle from caminobluff on Vimeo.

  • September 24, 2014
    Guest Post

    by Robin Maril, Senior Legislative Counsel, Human Rights Campaign. This post is part of our 2014 Constitution Day symposium.

    Following last summer’s Supreme Court decision in U.S. v. Windsor invalidating Section 3 of the Defense of Marriage Act (DOMA), the federal government began recognizing same-sex couples nationwide for the first time. The majority of federal benefits and programs recognize couples regardless of where they live – employing a “state of celebration” standard. This standard looks to the laws of the state where the couple was married to determine the validity of their marriage. In practice, this has provided expansive recognition for legally married same-sex couples nationwide — including for federal tax purposes.

    In response to the Windsor decision, the IRS published revenue ruling 58-66 implementing a state of celebration standard for federal tax purposes and applying the generally applicable statute of limitations for requesting a refund to same-sex couples who were legally married and would have been recognized under IRS policy but for DOMA. This standard statute of limitations provides all taxpayers with an option to amend a tax return up to three years after filing. This revenue ruling therefore retroactively recognizes same-sex married couples who were legally married but were required to file as individuals because of DOMA beginning in 2010.