June 2010

  • June 9, 2010
    The Supreme Court's conservative wing usually sides with corporate interests, according to a new report by the Constitutional Accountability Center (CAC).

    The report, "The Roberts Court and Corporations: The Numbers Tell the Story," states:

    The Supreme Court's 5-4 decision this past January in Citizens United v. Federal Election Commission, holding that corporations have the same constitutional rights aa individuals to spend money to influence elections, has focused a national spotlight on the rulings of the Roberts Court in cases involving the interests of big business and led to charges that the conservative majority on the Roberts Court is being ‘activist' in favoring corporate interests.

    To test empirically the idea that the five conservatives on the Roberts Court tend to side with corporate interests, at least more than their colleagues do, we have examined, for those cases in which the United Chamber of Commerce participated as a party or as an amicus curiae, every opinion released by the Roberts Court since Justice Samuel Alito began participating in decisions in early 2006 through May 2010 - a universe of 53 cases - and we tracked the votes of each Justice in each of the cases. Over that period, a cohesive five-justice majority on the Court has produced victories for the Chamber's side 64% of cases overall, and 71% of closely divided cases.

    Writing for Mother Jones, Stephanie Mencimer concludes the CAC study reveals that Justice Alito (pictured) is the Chamber's most reliable vote, noting he "voted for the Chamber in 75 percent of the cases. Even more striking, however, is that in the most contested 5-4 cases, Alito never voted against the Chamber."


  • June 9, 2010
    During a recent ACS event examining the nomination of Solicitor General Elena Kagan to the Supreme Court, Walter Dellinger, a constitutional law expert, took issue with conservatives' rejection of the so-called "empathy standard." Dellinger, chair of O'Melveny & Meyers' Appellate Practice and former Acting Solicitor General during the Clinton administration, said, "I feel really sorry for empathy. Empathy has been thrown under the bus. I think that's too bad. What the president was intending to convey, I would embrace the ‘e' word fearlessly. In some sense, it is nothing more than what Oliver Wendell Holmes said, the life of the law has not been logic, it has been experience. And the whole notion of balls and strikes and judges as umpires presents a view of the Constitution that in some ways delegitimizes parts of our constitutional text and constitutional tradition."

    The panel discussion moderated by Amanda Frost, a law professor at American University, included Rachel Brand, former assistant attorney general for legal policy in the George W. Bush administration, and Thomas Wilner, who represented Guantanamo Bay prisoners in the cases Rasul v. Bush and Boumediene v. Bush. Watch the entire event by clicking here or on the picture.

  • June 9, 2010
    Guest Post

    By Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center (CAC)

     Cross-posted at CAC's Text & History blog

    It seems that Tea Partiers' recent political victories may have gone to their heads faster than bubbles in a glass of champagne. Flush from this electoral success, the Tea Party movement is turning its attention to the Constitution with renewed fervor. The result has been some proposals that are at turns wacky, unwise, and even dangerous to our constitutional values.

    The Tea Party's sights appear to be set on constitutional amendments ratified after the Civil War. Rand Paul, recent winner of Kentucky's Republican senatorial primary, and Rep. Duncan Hunter of San Diego have called for repeal of the 14th Amendment's guarantee of citizenship at birth for all children born in the United States-not to mention Paul's much-publicized criticism of the Civil Rights Act, legislation passed pursuant to the power given to Congress by the 14th Amendment to enforce its guarantees of equal protection, due process of law, and the rights of citizenship. Sharron Angle, the Tea Party-endorsed candidate who appears poised to win the Republican senatorial race in Nevada, has called for repeal of the 16th Amendment, which allows for a federal progressive income tax. And many Tea Party activists are pushing for repeal of the 17th Amendment, which shifted the selection of U.S. Senators from state legislatures to the state's voters.

    To repeal these hard-won parts of our Constitution would be pure folly. The constitutional changes made in the aftermath of the Civil War and the abolition of slavery wrote into the Constitution the promises of equality made in the Declaration of Independence, and gave the federal government the power to ensure that these promises were kept. The pursuit of equality and greater democracy in the 14th and 15th Amendments-the 15th Amendment secured the right to vote free from racial discrimination-continued in the 16th Amendment, which corrected a Supreme Court ruling that allowed wage income of poorer day laborers to be subject to federal tax but exempted dividend and rental income of the wealthy, and the 17th Amendment, which provided for direct election of U.S. Senators to give more power to the people and lessen the influence of corporate interests.

  • June 8, 2010
    The federal government may be ill-equipped to stop the torrent of oil coursing through the Gulf of Mexico following the April 20 explosion of the Deepwater Horizon oil rig, but it has the means to prosecute those responsible for the environmental disaster, writes David M. Uhlmann.

    In a recent column for The New York Times, Uhlmann, a law professor at the University of Michigan and former head of the environmental crimes section of the Justice Department, maintains that the oil spill - unlikely a result of weather - increasingly appears to have been caused by "negligence or worse in the events leading to the explosion of the rig." So, Uhlmann writes, "Now it's up to Attorney General Eric H. Holder Jr. to ensure that the legal response to the calamitous oil spill in the Gulf of Mexico is better than the emergency response."

    Uhlmann notes the entities the government should focus on: BP, Transocean, owner of the drilling rig, and Halliburton, which worked on the creation of the deepwater drilling structure. And if news reports on missed warning signs about the potential for disaster are accurate, Uhlmann writes that DOJ should lodge "criminal charges against BP, and possibly Transocean and Halliburton, for violations of the Clean Water Act, the Migratory Bird Treaty Act and the Refuse Act - the same charges brought in the Exxon Valdez case."

    Uhlmann continues:

    No one thinks BP, Transocean or Halliburton intended to spill oil into the gulf. But given good evidence, the government could argue that the companies cut corners or deviated so much from standard industry practice that they knew a blowout could happen. Or, the government could argue that, even if the initial gusher involved only negligence (a misdemeanor under the Clean Water Act) each additional day represents a knowing violation. Both approaches are untested, because there have been so few oil spill cases - but the gulf disaster warrants trying aggressive strategies.

    In 2008 ACS released an Issue Brief by Uhlmann, in which he urged Congress to bolster criminal penalties for the violations of the Occupational Safety and Health Act (OSHA). That Issue Brief is available here.

  • June 8, 2010
    Guest Post

    By Dale Ho, Assistant Counsel, NAACP Legal Defense & Educational Fund, Inc.
    Last week, the NAACP Legal Defense & Educational Fund, Inc. (LDF) issued a report entitled Captive Constituents: Prison-Based Gerrymandering and the Distortion of Our Democracy.

    As our report explains, "prison-based gerrymandering" is a practice whereby many states and local governments count incarcerated persons as residents of the areas where they are housed when election district lines are drawn. This practice distorts our democratic process by artificially inflating the population count-and thus, the political influence-of the districts where prisons and jails are located. As a result, everyone living outside of those districts suffers a dilution of their voting power.

    The easiest way to understand how prison-based gerrymandering undermines the integrity of our political process is to look at how prisons affect local elections. Most (in)famously, during the 2002 election cycle, the town of Anamosa, Iowa was divided into 4 City Council wards of about 1,370 people each. Ward 2, however, contained a state penitentiary that housed over 1,320 prisoners. Thus Ward 2's actual population was comprised of fewer than 60 non-incarcerated residents.

    Anamosa's districting plan (pictured) therefore granted the approximately 60 constituents of Ward 2 the same level of political representation accorded to over 1,300 people living in each of the other wards. Remarkably, a man was elected to Anamosa's City Council from Ward 2 on the strength of two write-in votes.

    The Anamosa example and others like it across the country make a mockery of the principle of "one person, one vote." Articulated by the Supreme Court in the seminal case Reynolds v. Sims, the one person, one vote principle requires that election districts be comprised of roughly the same number of constituents so that every person receives the same level of representation. As Anamosa illustrates, prison-based gerrymandering contravenes that basic principle of political equality.

    Unfortunately, the Anamosa pattern has been replicated throughout the country, and at all levels of government - from school boards to city councils to statewide legislatures. It is a problem that is not limited to any particular region, and that distorts democracy for both rural and urban communities alike.

    Undoubtedly, however, the communities that are the most thoroughly victimized by prison-based gerrymandering are urban communities of color-a result of the racial discrimination that infects our nation's criminal justice policies.