February 2010

  • February 22, 2010
    The Supreme Court resuming its term today will hear oral argument this week in several cases, including ones involving an employment discrimination claim and the constitutionality of the material support law.

    In Lewis v. City of Chicago, the justices will consider whether a group of African-American applicants to be firefighters properly brought a discrimination claim against Chicago officials. The group of potential firefighters argued that Chicago officials employed a test in a way that negatively impacted black applicants. A lower federal court agreed that the city's use of the test did discriminate against black applicants, but that decision was later overturned by the U.S. Court of Appeals for the Seventh Circuit. The Seventh Circuit concluded that the plaintiffs had not lodged their complaint under federal law in a timely manner. The New York Times, in an editorial today, noted that the case is similar to one the high court ruled on involving Lilly Ledbetter's lawsuit against Goodyear Tire Company, which also centered on a claim brought pursuant to Title VII of the Civil Rights Act.

  • February 22, 2010
    Guest Post

    By Virginia Sloan, President and Founder, The Constitution Project; & Cait Clarke, Director of Public Interest Law Opportunities, Equal Justice Works

    Across the country, public defender offices are underfunded and understaffed, drowning in overwhelming caseloads. Public defenders are dedicated lawyers trying their best to represent their clients in often-impossible circumstances. Even worse, in many areas around the country, there are no public defender systems at all, resulting in a haphazard system of appointing lawyers who may be unprepared, without sufficient resources, and have no relevant experience.

    It has been nearly 50 years since the U.S. Supreme Court's decision in Gideon v. Wainwright decreeing that there is a constitutional right to a lawyer in criminal cases and that the government must provide one if the defendant cannot afford one. The Court recognized that well-trained and adequately resourced defense lawyers are the best way to determine whether the right person has been arrested for a crime. Yet states and localities are not providing the funds to pay for these lawyers, meaning that poor people are languishing in jail at the taxpayers' expense with no real opportunity to mount a defense.

    While funding for indigent defense has increased since Gideon was decided, funding is woefully inadequate and the current economic crisis confronting many state and local governments is exacerbating the situation tremendously.

    The U.S. Department of Justice has just hosted a National Symposium on Indigent Defense, the first of its kind in 10 years. One of the goals of the Symposium was to look at America's indigent defense systems in each state from top to bottom, and to examine both successful and failed attempts at indigent defense reform. Attendees committed to working together to craft new ideas for successful reforms, while forging alliances and building partnerships to achieve them. We applaud the Department of Justice's leadership in hosting this Symposium. It is a much-needed effort to spotlight the failings of the nation's criminal justice system and the crises persisting in state public defense programs.

    However, the Symposium is, in our view, only the beginning of the work that must be done to fulfill the promise of Gideon.

  • February 19, 2010

    The widely anticipated Second Amendment case pending before the Supreme Court is creating strange bedfellows, reports Jess Bravin in The Wall Street Journal. Bravin writes that, "as gun-rights groups battle each other over how to argue the case, ... some left- and right-leaning legal theorists unite over how to interpret the Constitution."

    As noted at ACS's Supreme Court Preview for the Court's current term, some progressive advocates support incorporation of the Second Amendment to the states in McDonald v. Chicago. They see McDonald as an opportunity to revive the Fourteenth Amendment's Privileges or Immunities Clause, which was neutered by the Supreme Court in the 1873 Slaughterhouse Cases. Since then, incorporting rights to bar infringement by state action has been a burden carried by the Fourteenth Amendment's Due Process Clause, which speaks merely to deprivations of rights, as opposed to the broader language of the Privileges or Immunities Clause.

    As to the Second Amendment, the Supreme Court left the question of incorporation for another day in the 2008 D.C. v. Heller decision, which -- for the first time -- recognized the right to bear arms as an individual right, rather than a right bestowed upon members of a militia collectively. And that day will be before the Court soon in McDonald.  

  • February 19, 2010
    Virginia Gov. Robert McDonnell (R) has signed an executive order removing protection for lesbians and gay men against discrimination in state jobs. McDonnell's order was signed earlier this month, The Washington Post reports, and rescinds an order that former Gov. Tim Kaine (D) signed in 2006 that added language to the state policy specifically barring discrimination against employees based on their sexual orientation. 

    Talking Points Memo reported that McDonnell's chief of staff claimed that the new order still bars "any and all discrimination." Kaine declined comment on the matter, but his spokesperson Hari Sevugan told TPM that the governor's new order "says a lot about the Republican party that they would anoint as their ‘rising star' someone who in 2010 is actually stripping away from Americans legal protections against discrimination."

    While the setback for equal rights in this country sparked consternation among civil liberties groups, several nations in Africa are taking aggressively muscular efforts to snuff out any attempts to even jump-start a movement for gay rights. For example, in Uganda a law is being pushed that would order a life sentence or death for gay men and lesbians.

    In another example, Malawi's government is drawing worldwide attention for recently imprisoning two men for publicly celebrating their engagement at a lodge in Blantyre, reported The New York Times. Days after the celebration the men were imprisoned on charges of "unnatural acts and gross indecency" and have remained in jail. Some Malawi media coverage of the arrest has heralded the same-sex couple's celebration as "the first recorded public activity for homosexuals in this country." The nation's minister of information and civic affairs maintained, "These immoral acts are not in our culture; they are coming from outside. Otherwise, why is there interest from around the world? Why is money being sent?"

  • February 18, 2010
    The Supreme Court's decision in Citizens United v. FEC is one the Court's most "polarizing," and could signal that Chief Justice John Roberts is not committed to forging unity on the Court with narrow opinions, maintains Jeffrey Rosen, a George Washington University law school professor and Legal Affairs Editor for The New Republic (TNR).

    Rosen notes in a column for TNR that in 2006, Chief Justice Roberts said he wanted the justices to produce more unanimity in its decisions and, in particular, show "humility when dealing with the First Amendment." But in Citizens United, Rosen writes, the chief justice "deputized Anthony Kennedy to write one of his characteristically grandiose decisions, challenging the president and Congress at a moment of financial crisis when the influence of money in politics - Louis Brandeis called it ‘our financial oligarchy' - is the most pressing question of the day."

    Rosen adds, "If Roberts continues this approach, the Supreme Court may find itself on a collision course with the Obama administration - precipitating the first full-throttle confrontation between an economically progressive president and a narrow majority of conservative judicial activists since the New Deal."

    Although Rosen writes that he and others, including some of Roberts' colleagues on the high court, initially gave Roberts the "benefit of the doubt" hoping that he would put the "bipartisan legitimacy of the Court above his own ideological agenda," that seemingly widespread benefit started to erode in 2007.

    In summer 2007, Rosen asked Justice John Paul Stevens whether Roberts would succeed in leading the Court down a more conciliatory path. "I don't think so," Stevens said. "I just think it takes nine people to do that. I think maybe the first few months we all leaned over backward to try to avoid writing separately."