• October 29, 2015
    Guest Post

    by Leslie C. Griffin, Boyd Professor of Law, UNLV Boyd School of Law

    Should judges tell the Little Sisters of the Poor, a group of Roman Catholic nuns who devote their lives to caring for the elderly poor, how to analyze moral complicity?

    That’s a question the Supreme Court will consider on Friday, October 30, when the Justices decide whether to grant certiorari on cases brought by religious nonprofits challenging the contraceptive mandate of the Affordable Care Act (ACA). This particular question about nuns and moral complicity comes from the pen of Paul Clement, the seasoned Supreme Court litigator who represents the sisters. Clement and the Sisters are competing with the Archbishop of Washington for the attention of the Court.

    Background: Challenges to the Accommodation, not the Contraceptive Mandate

    The ACA requires employers to provide insurance coverage for preventive health services, which for women include reproductive care. The insurance regulations specifically require employer health care plans to cover twenty FDA-approved contraceptives as well as sterilization procedures and reproductive counseling.

    The Little Sisters are among 140 plaintiffs in 56 cases brought by religious nonprofits challenging, not the contraceptive mandate itself, but the accommodation that allows religious employers to opt out of the mandate. Under the opt-out mechanism, the employer merely has to inform the Department of Health and Human Services (HHS) of its objection to contraception, identify what kind of insurance plan it offers, and provide the name and contact information of the insurance plans’ third party administrators (TPAs) and health insurance issuers. Once HHS or the insurers receive the notification, the burden of coverage shifts completely to the TPAs and health insurance companies, who provide the contraceptive coverage in separate plans, with no financial input from the religious employers.

    The religious nonprofits argue that this accommodation violates the Religious Freedom Restoration Act (RFRA), which holds that [g]overnment may substantially burden a person’s exercise of religion . . . [only if it is] in furtherance of a compelling government interest; and it is the least restrictive means of furthering that government interest.”

    How Many Angels Can Dance on the Head of a Pin?

    A central debate in the cases is whether the “substantial burden” of RFRA is a theological term or a legal one. As Paul Clement’s question suggests, the moral casuistry of these cases would make a medieval monk proud. Unlike many of the non-Catholic plaintiffs, who oppose only four of the contraceptives that they believe to be abortifacient, all the Catholic plaintiffs believe that the use of artificial contraception is always immoral. The Sisters therefore believe that even signing the compliance form would “make them morally complicit in grave sin.” Their lawyer argues that the courts may not question that this moral belief is automatically a substantial burden under RFRA because it appears substantial to the sisters.

    The plaintiffs differ about just where the immorality occurs – in providing insurance, in signing the form, in authorizing the TPAs, in knowing that contraceptive access will occur, all of the above, or none of the above. Although the moral description varies from case to case, however, the plaintiffs uniformly want no judicial scrutiny of their moral analyses.

  • October 29, 2015
    Guest Post

    by Vinay Harpalani, J.D., Ph.D, Associate Professor of Law at Savannah Law School @VinayHarpalani

    Race-conscious university admissions policies have always engendered strong opinions and feelings. The debate will again take a public spotlight on December 9, 2015—when the U.S. Supreme Court hears oral arguments in Fisher v. University of Texas at Austin for a second time.  Much to the surprise of many legal observers, the Court decided to once again consider the constitutionality of race-conscious university admissions, only two years after hearing the initial Fisher case. In 2013, the U.S. Supreme Court reversed and remanded Fisher, directing the Court of Appeals for the Fifth Circuit to properly apply strict scrutiny and ensure that the University of Texas at Austin (UT) actually needs to use a race-conscious policy to achieve the educational benefits of diversity. The Fifth Circuit reaffirmed its prior approval of UT’s race-conscious policy in 2014, and this past summer, the U.S. Supreme Court granted Abigail Fisher’s petition for a writ of certiorari.

    I do not expect a profound new result in Fisher (II).  The Court will rule by June 2016, and elsewhere, I have predicted that the Court will strike down UT’s race-conscious policy on narrow grounds. It will likely hold that UT has not satisfied strict scrutiny and demonstrated that it needs a race-conscious policy, in addition to Texas’s Top Ten Percent Law, to achieve its educational goals. I would be surprised if the Court upheld UT’s use of race, and I would be even more surprised if the Court overruled its recent precedents in Fisher (I) and Grutter v. Bollinger (2003) and held that diversity is not a compelling interest. Fisher (II)’s result will likely be limited to UT and not have an immediate impact on other universities.

    Nevertheless, the case does merit attention, because it will signal what universities must do in the future to defend their use of race-conscious admissions policies; and because it exhibits some fundamental values conflicts on the Supreme Court and in American society more generally.  The Top Ten Percent Law automatically grants admission to UT to the top students in Texas public high schools (originally, the top ten percent of each graduating class was guaranteed admission, but this percentage is now smaller due to various amendments to the law). Abigail Fisher contends that UT enrolls enough Black and Latina/o students with the Top Ten Percent Law alone, and that it does not need a race-conscious admissions policy to supplement these numbers. The Top Ten Percent Law does lead to some racial diversity at UT, but this is predicated on de facto segregation in Texas public schools. If a high school has a student body that is over 90 percent Black and/or Latina/o, then it follows that most of the top students in that high school’s class will be Black and/or Latina/o—and will garner automatic admission to UT. Thus, under the Top Ten Percent Law alone, de facto segregation serves as a prerequisite for racial diversity. 

  • October 29, 2015

    by Jim Thompson

    AJ Vicens at Mother Jones examines the growing influence of independent spending and dark money in judicial elections.    

    In The Huffington Post, Mollie Reilly discusses a recent study from the Movement Advancement Project that found that only half of LGBT Americans are protected against anti-LGBT employment discrimination.

    Julie A. Mujic at The Atlantic explains the misleading connection between classroom opportunity and economic mobility, arguing that education funding alone is not enough to combat income equality.

    This weekend, 6,000 prisoners will be released from federal prisons. At WNYC, Jami Floyd, John Keefe and Simone Weichselbaum discuss the significance of this release as well as the structural support needed to help these individuals reintegrate into American society. 

  • October 28, 2015
    Guest Post

    by Ashley Nellis, Ph.D., Senior Research Analyst, The Sentencing Project

    It may have been presumptuous to consider Montgomery v. Louisiana a done deal in advance of the Supreme Court oral arguments on the case earlier this month, which concerns the retroactive application of a 2012 ruling that juveniles can’t be mandatorily sentenced to life without parole (LWOP). After all, the Court has invited arguments on four separate cases pertaining to the importance of adolescent development in justice matters in the past five years and ruled favorably in all of them, pointing to science-driven evidence that young people are different when it comes to temptation, ability to foresee consequences, and engagement in risky behaviors.

    The justices focused on two points of discussion, neither of which casts any doubt on the established science that concludes that adolescents are less culpable for their role in crimes—even serious crime—and more capable of reform than older defendants. The majority of the 75 minutes of oral arguments was devoted to the issue of jurisdiction, or whether the justices even had the authority to rule on the case, as Montgomery did not make it to the Supreme Court through the usual channels. Instead of working up through lower federal courts, the case emerged directly from Louisiana’s state supreme court which ruled that Miller v. Alabama did not apply to Louisiana’s more than 250 prisoners serving such sentences.

    The second topic, to which considerably less time was devoted, was whether either of the two criteria demanding retroactivity of a ruling set forth in Teague v. Lane were met in Miller. On this matter, The Sentencing Project joined with dozens of other groups in submitting an amicus brief in support of the petitioner, arguing that Teague does apply since Miller represents a transformation in law, practice and jurisprudence which corrects for the now-discredited presumption that certain children cannot be reformed. In particular, the amici wrote:

    Miller cemented a seismic shift in Eighth Amendment jurisprudence relating to children. Given its significance, its categorical nature, and the precedents from which it descends, Miller is rightly viewed as both substantive and a watershed procedural rule and thus cannot be subjected to the Teague v. Lane bar on retroactivity.

  • October 28, 2015

    by Jim Thompson

    Rebecca Vallas and Billy Corriher write in The Nation that efforts to reform America’s criminal justice system are “doomed to fail” if policymakers do not also invest in civil legal aid to support formerly incarcerated individuals after their release.

    In The Atlantic, Sherrilyn A. Iffill asserts that continued battles over voter suppression and police brutality offer a “sobering challenge to claims that the project of the Second Founding has been completed.”

    In The Huffington Post, ACS President Caroline Fredrickson explains why Rep. Paul Ryan’s request for guaranteed time with his family should be used as a springboard for developing better family-work policies.

    In The New York Times, Robert Maguire warns that a new breed of politically active nonprofits is pushing the limits with regard to election spending rules, thereby increasing the tide of dark money in political campaigns.

    Deborah Kalb discusses Under the Bus with Caroline Fredrickson on Kalb’s personal blog.