• September 15, 2015

    by Jim Thompson

    In The Atlantic, ACS President Caroline Fredrickson denounces the treatment of adjunct professors at many universities, arguing that colleges may be evading their legal responsibilities as employers.

    Jason Rosenbaum at NPR provides an overview of the Ferguson Commission Report released Monday morning. The 189-page document offers recommendations for addressing the city’s systemic racial discrimination problems.

    In The Atlantic, Ta-Nehisi Coates presents a frank, honest look at the residual effects of mass incarceration on black families. When reforming our criminal justice system, he argues, we must remedy the sustained influence of prison on one’s socioeconomic standing.

    Chris Johnson reports in The Washington Blade that the governor and attorney general of Mississippi intend to defend in court the state law banning same-sex couples from adopting children.

  • September 14, 2015

    by Jim Thompson

    In The Washington Post, Rep. John Lewis praises the latest book from The Nation's Ari Berman, Give Us the Ballot. The book, he argues, explains why Congress must fix the Voting Rights Act “without passion or favoritism.”  

    In The American Prospect, ACS President Caroline Fredrickson argues that the taxi industry needs a legal overhaul to ensure the safety of vehicles, dependability of drivers and fairness of payment schemes.    

    Lynette Holloway at The Root reports that a black woman was committed to a mental institution after police officers rebuffed her claims that she owned the BMW which she was arrested for driving.

    In The New Republic, Rebecca Leber discusses enduring obstacles for same-sex couples in the South.

    Liz Seaton at Talking Points Memo warns against the recent initiatives of some state legislatures seeking to inject partisan politics into state legal systems. 

  • September 14, 2015
    Guest Post

    by Joseph Kimble, Distinguished Professor Emeritus, WMU-Cooley Law School

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    In Reading Law, Justice Antonin Scalia and Bryan Garner make this assertion about the interpretive theory called textualism, which they endorse and expound:

    [W]e must lay to rest at the outset the slander that [textualism] is a device calculated to produce socially or politically conservative outcomes. Textualism is not well designed to achieve ideological ends, relying as it does on the most objective criterion available: the accepted contextual meaning that the words had when the law was enacted. A textualist reading will sometimes produce “conservative” outcomes, sometimes “liberal” ones. [Reading Law, p. 16.]

    But that assertion is belied by the overwhelmingly conservative results that textualism does in fact produce, especially in the cases that matter most. Who can honestly doubt it?

    In a recent article, I’ve summarized six empirical studies. (See pp. 30–35 for details and attribution.) Four of the studies show a strong ideological bent in Justice Scalia’s opinions. Another concludes from an analysis of more than 600 Supreme Court cases that the textual canons of construction “are regularly used in an instrumental if not ideologically conscious manner.” The other study examines a 25-year set of the Court’s cases and concludes that a principal defense of originalism — its constraining effect on judges — “is overstated at best and illusory at worst.”

    In one of the studies, Professor Geoffrey Stone polled colleagues to identify the 20 most important Supreme Court cases since 2000. In every one, Justice Scalia voted for the conservative position. And Stone notes that originalism “in no way” explains that voting record.

    Besides the empirical studies, I cite 11 other sources that cast doubt on the neutrality and consistency of Justice Scalia’s textualism. (P. 35 note 96.)

  • September 11, 2015

    by Paul Guequierre

    Solitary confinement has been described as a living death. Jack Henry Abbot said about the practice: “Time descends in your cell like the lid of a coffin in which you lie and watch it as it slowly closes over you. When you neither move nor think in your cell, you are awash in pure nothingness. . . . Solitary confinement in prison can alter the ontological makeup of a stone.”

    Solitary confinement, the topic of a new Issue Brief by law professor Laura Rovner released today by ACS, is viewed by much of the developed world as torture. The international community has almost universally condemned the use of long-term isolation. In 2011, the U.N. Special Rapporteur on Torture concluded that prolonged solitary confinement is prohibited by the International Covenant on Civil and Political Rights (“ICCPR”) and the Convention Against Torture, and declared that the use of solitary confinement for more than 15 days constitutes torture. So why then, is use of the practice so rampant in the United States? The good news is it’s gaining renewed scrutiny in the court of public opinion. The question is: How will federal courts respond?

    As long ago as 1890, the U.S. Supreme Court criticized the use of solitary confinement. Justice Samuel Miller, who was a physician as well as a lawyer, observed that: “A considerable number of the prisoners [subjected to solitary confinement] fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others, still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.”

    And as recently as this year, U.S. Supreme Court Justice Anthony Kennedy criticized the practice, practically asking for a solitary confinement case, saying: “Research still confirms what this Court suggested over a century ago: Years on end of near-total isolation exacts a terrible price.

  • September 10, 2015
    Guest Post

    by James C. Nelson, Justice, Montana Supreme Court (Retired)

    The swings in public perception are amazing. Case in point: Kim Davis, the Kentucky Clerk who thumbed her official nose at the U.S. Supreme Court’s decision that marriage is a fundamental right of all persons, not just heterosexuals. Not on Davis’ watch, that is.

    No marriage licenses to gay and lesbian couples would be issued over her official title, because to do so would violate her personal religious beliefs. That, apparently, is the belief that the Bible and the “loving” God who inspired it and who created all people in his own image, condemns marriages which are not between one man and one woman.

    Davis can believe what she wants, but the fact is that in Kentucky, as is the case elsewhere, public officials like her swear an oath (which my recollection is a promise to God) to support and uphold the Constitution. That is the same Constitution that the U.S. Supreme Court has decreed guarantees equal protection of the marriage laws to all people.