May 2012

  • May 31, 2012

    by Jeremy Leaming

    At some point perhaps soon the U.S. Supreme Court’s conservative wing will have to reckon with some of its sweeping assertions in its controversial 2010 Citizens United v. FEC majority opinion.

    Retired Supreme Court Justice John Paul Stevens in a methodical, thoughtful speech at the University of Arkansas Clinton School of Public Services detailed why he thinks some of the holding in Citizens United is due for reconsideration.

    Stevens’ former colleague Justice Samuel Alito mouthed “not true” during President Obama’s 2010 State of the Union address when the president said Citizens United could “open the floodgates for special interests – including foreign corporations – to spend without fault in our elections.”

    But the majority opinion, Stevens said “placed such heavy emphasis on ‘the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.’”

    “Indeed,” Stevens continued, “the opinion expressly stated, ‘We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers.’”

    Stevens said:

    Given the fact that the basic proposition that undergirded the majority’s analysis is that the First Amendment does not permit the regulation of speech – or of expenditures supporting speech – to be based on the identity of the speaker or his patron, it is easy to understand why the president would not have understood that ambiguous response to foreclose First Amendment protection for propaganda financed by foreign entities.

    But Justice Alito’s reaction does persuade me that in due course it will be necessary for the Court to issue an opinion explicitly crafting an exception that will create a crack in the foundation of the Citizens United majority opinion. For his statement that it is ‘not true’ that foreign entities will be among the beneficiaries of Citizens United offers good reason to predict there will not be five votes for such a result when a case arises that requires the Court to address the issue in a full opinion.

    The former justice, the third longest serving justice on the high court, also pointed to an opinion, one he joined, that followed Citizens United. In Holder v. Humanitarian Law Project, the majority held that Congress can bar material support of terrorist groups, even if that support is advice on how to conduct peaceful protests.

  • May 31, 2012
    The U.S. Supreme Court
    A Very Short Introduction
    Linda Greenhouse

    By Linda Greenhouse, the Knight Distinguished Journalist-in-Residence, a Senior Research Scholar in Law and Joseph Goldstein Lecturer in Law at Yale Law School. Greenhouse, a member of the American Constitution Society's Board of Directors, will be signing copies of her new book at the 2012 ACS National Convention.

    Has there been a time recently when public understanding of the Supreme Court was so important – and so lacking?

    In a Pew poll two summers ago, only 28 percent of the respondents could identify John Roberts as chief justice (a position he had then held for nearly five years) from among a list of four names. The other options, all of which some people selected, were Thurgood Marshall, who had died 17 years earlier; John Paul Stevens, who was in the news for retiring; and Harry Reid, the Senate majority leader. Just imagine what people don’t know about how the court sets its agenda or construes statutes, or about the powers of the chief justice or the debate over constitutional interpretation.

    With a court of conservative activists substituting their policy judgments for those of Congress; using the First Amendment as a deregulatory tool; and proposing to unsettle long-settled understandings of affirmative action and voting rights, it’s essential that we become a nation of knowledgeable, or at least better-informed, court-watchers. That’s the big ambition of my new little book – and I use the word “little” as an accurate physical description (7 by 4.5 inches in dimension, 117 pages of text), not as false modesty.

  • May 31, 2012

    by Jeremy Leaming

    Besides being the first federal appeals court to invalidate the discriminatory Defense of Marriage Act (DOMA), at least one blogger says it is noteworthy because two of the federal appeals court judges are Republican appointees. The unanimous court opinion upholding a lower district court decision, found DOMA advanced disparate treatment of same-sex couples and interfered with the right of states to regulate marriage.

    In Gill v. Office of Personnel Management, a three-judge panel of the U.S. Court of Appeals for the First Circuit found that although DOMA does not invalidate same-sex marriages recognized in a growing number of states, “its adverse consequences for such a choice are considerable. Notably, it prevents same-sex married couples from filing joint federal tax retruns, which can lessen tax burdens, and prevents the surviving spouse of a same-sex marriage from collecting Social Security survivor benefits. DOMA also leaves federal employees unable to share their health insurance and certain other medical benefits with same-sex spouses.”

    The First Circuit panel continued that the federal law, enacted by President Bill Clinton, works “to the disadvantage of same-sex married couples in the half dozen or so states that permit same-sex marriage. The number of couples thus affected is estimated at more than 100,000.” [Maryland recently joined seven other states and the District of Columbia in recognizing same-sex marriage.]

    The public interest group, GLAD brought the case, representing seven Massachusetts same-sex couples and three surviving spouses to block the federal government from enforcing DOMA, which would block the couples from benefits available to straight married couples in the state. GLAD was founded in 1978 to end discrimination based on sexual orientation, HIV status, and gender identity and expression, argued that DOMA violates the equal protection rights of same-sex couples.

    GLAD said the appeals court’s “decision reaffirms the lower court ruling that all married couples and surviving spouses deserve the same opportunities to care and provide for each other and their families.”

  • May 31, 2012

    by Jeremy Leaming

    For low-taxes, weak safety nets for the most vulnerable and tattered corporate campaign finance regulations to remain the status quo, right-wing policy makers in a slew of states are feverishly working to suppress the votes of students, minorities and others typically not inclined to support regressive policies. 

    Florida perhaps provides the most egregious example of attempts to enact voter suppression policy, with new onerous restrictions on voter-registration drives and early voting opportunities. The ACLU of Florida and the U.S. Department of Justice have fought the efforts of Republican Gov. Rick Scott and to alter voting practices in a state with a history of efforts to suppress minority voters. In March, ACLU of Florida Executive Director Howard Simon blasted the governor, saying he was “so intent on suppressing the right to vote that he’s even taken the extreme step of launching a challenge to the Voting Rights Act itself because that landmark of the Civil Rights Movement stands in the way of implementing his voter suppression agenda.”

    The Miami Herald reported yesterday that Scott was also ordering county officials statewide to purge noncitizens from the voter rolls. A list of more than 2,600 voters to be purged was created by the state’s Division of Elections, and according to analysis by the Herald was “dominated by Democrats, independents and Hispanics. The largest numbers were from Miami-Dade home to the state’s highest foreign-born population.”

    The Florida list, as the newspaper, notes was based on outdated information provided by the state’s Department of Highway Safety and Motor Vehicles. Reps. Ted Deutch (D-Boca Raton) and Alcee Hastings (D-Miramar) sent a letter earlier this week to Scott urging him to halt the purging of voters.

    “Providing a list of names of questionable validity – created with absolutely no oversight – to county supervisors and asking them to purge their rolls will create chaotic results and further undermine Floridians’ confidence in the integrity of our elections.” the lawmakers’ letter states.

    Deutch and Hastings at a May 29 press conference in Davie, Fla., highlighted the state’s faulty removal of Bill Internicola, a 91-year-old World War II veteran, from the voting rolls. State election officials claimed they had information that Internicola born in Brooklyn was not a citizen.   

  • May 30, 2012

    by Nicole Flatow

    When it comes to mandatory minimum sentences for drug offenders, judges’ hands are tied. Prosecutors, on the other hand, have discretion to implement the law, and a New York federal judge is calling on the Department of Justice to start using that discretion to curb the mass overuse of minimum sentences.

    “This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences,” writes U.S. District Judge John Gleeson in a recent opinion accompanying the sentencing of low-level offender Jamel Dossie, whom Gleeson had no choice but to sentence to five years in prison.

    As The New York Times’ Adam Liptak points out in a column highlighting the opinion, Gleeson is no softy on crime. In fact, he led the team of prosecutors that sentenced John J. Gotti to life in prison.

    But mandatory minimums, Gleeson writes in the opinion, do not just capture the managers and strategists that the Anti-Drug Abuse Act of 1986 intended to punish. The ADAA, enacted after the overdose of college basketball star Len Bias, now ensnares some 74 percent of crack defendants, including many “low-level, substance abusing defendants” like Jamel Dossie, whose role in several drug deals was simply to ferry money between the buyer and the dealer.