April 2015

  • April 30, 2015
    Guest Post

    by Justin Pidot, Assistant Professor, University of Denver Sturm College of Law; Member, Board of Directors, ACS Colorado Lawyer Chapter; Faculty Advisor, University of Denver Sturm College of Law ACS Student Chapter.

    With Michigan v. EPA, the Supreme Court continues its tradition of reviewing the Environmental Protection Agency’s efforts to regulate under the Clean Air Act. Last year, the Court considered, and partially invalidated, a rule regulating greenhouse gas emissions. This year, the Court considers a rule EPA issued to reduce mercury and other hazardous air pollutants from power plants ― which we have long recognized release significant amounts of heavy metals and other toxins into the air.

    In 1990, Congress gave EPA the task of studying hazardous emissions from power plants and deciding whether to regulate those emissions to protect public health. Twenty-five years later, EPA finally decided to take up this task. A coalition of states and industry groups challenged EPA’s regulation.

    The Supreme Court heard oral argument in the case brought by that coalition on March 25, 2015, and it will likely release a decision within about a month.  Several commenters, like Lyle Denniston at SCOTUSblog and Catherine O’Neill at CPRBlog, have suggested that the outcome is difficult to predict, although a slight majority of participants in “Fantasy SCOTUS,” a platform that allows individuals to predict the outcomes of Supreme Court cases, believe that EPA will win.

    After reading the transcript of the argument, I am left feeling pessimistic for EPA. While the outcome of the case is far from clear, my sense is that the power industry may continue to evade regulation for a while longer.

  • April 30, 2015
    Guest Post

    by Jessica Eaglin, Counsel, Justice Program, Brennan Center for Justice

    Protests in Ferguson, Mo. led to investigations that uncovered a deeply problematic justice system that pulled thousands of people into a web of criminal justice debt and aggressive debt collection practices. Among those harsh enforcement practices: Driver’s license suspension for failure to pay court-imposed debts.  Using driver’s license suspension to enforce debt payment is not unique to Ferguson. Today, driver’s license suspensions are a frequently used tool to enforce collection of criminal justice debt.

    Criminal justice debt” refers to the accumulation of fees and fines that a defendant acquires while being processed through the justice system. Fees and fines may be imposed for anything from restitution to make the victim whole to punitive fines designed to deter future wrongdoings. Most commonly, courts impose user fees to recover operating costs. These fees are imposed at various stages throughout the process; including charges for bookings, jail stays, prosecution, public defense and probation services.

    Fees and fines do not disappear once a person has been convicted and incarcerated. Rather, those costs linger. When combined with other debts most people face – credit card debt, child support and insurance payments, for example – the additional costs of criminal justice debt can be difficult or impossible to pay. In California alone, there is more than $10 billion in uncollected, court-ordered debt.

    Enter collection enforcement, such as suspension of a driver’s license. It is growing in popularity. In 2010, the Brennan Center reported that at least eight of the 15 states with the largest prison populations suspended licenses based on missed debt payments: California, Florida, Louisiana, Michigan, North Carolina, Pennsylvania, Texas and Virginia. At least four states suspended licenses for failure to appear in court for an arrest warrant, the underlying cause being failure to pay debts.  In the Lone Star state, individuals convicted of a drug offense have their licenses suspended for 180 days. In Florida, a drug conviction leads to license suspension for one year. Nationally, 40 percent of license suspensions are for unpaid traffic tickets, unpaid child support and drug offenses.

  • April 30, 2015

    by Caroline Cox

    In The New York TimesAdam Liptak​ writes that Chief Justice John Roberts may use the issue of gender bias to rule in favor of same-sex marriage. The article quotes the ACSblog post by Eric J. Segall. 

    David Fontana and Donald Braman argue in The Washington Post against the notion that the public wants the democratic process, not the courts, to decide the fate of same-sex marriage. 

    Amy Davidson provides perspective on the oral arguments in the same-sex marriage cases and why now is the time for marriage equality in The New Yorker.

    The Editorial Board of The New York Times celebrates the Supreme Court ruling in Williams-Yulee v. The Florida Bar as a victory for campaign finance law. The editorial cites the ACS-sponsored report Skewed Justice.  

    At The Economist​,  Steven Mazie discusses Glossip v. Gross, the Supreme Court case that considers a new lethal injection drug used in numerous states.  

  • April 30, 2015
    Guest Post

    by Suzanne B. Goldberg, professor and director of the Center for Gender & Sexuality Law, Columbia Law School

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.  It originally appeared in the National Law Journal.

    Love and commitment have nothing to do with marriage.  So said the state of Michigan to the U.S. Supreme Court in Obergefell v. Hodges on Tuesday while defending its ban on marriage for same-sex couples.  Instead, marriage’s purpose as a civil status is to ensure adults take responsibility for their biological children, according to Michigan’s lawyer.

    The difficulty for Michigan and the three other states seeking to preserve “defense of marriage” laws ― Kentucky, Ohio and Tennessee ― is that this procreation-focused definition of marriage is fundamentally unbelievable.  Many people ― including gays and lesbians ― understand marriage to have “nobility and . . . sacredness,” as Justice Anthony Kennedy observed during the argument in Obergefell and its companion cases.  Many states likewise recognize that marriage “enhance[es] the dignity of both parties,” Kennedy added.

    The procreation-focused argument also makes no sense against the backdrop of the states’ marriage laws.  There is no childbearing litmus test for people seeking to marry, as Justice Ginsburg pointed out.  Nor do states restrict marriage to couples seeking to have children biologically rather than by adoption.  And no state, Justice Stephen Breyer noted, favors biological children over adoptive children.  Importantly, the state’s argument that marriage provides the “glue” needed to keep parents connected to their children also fails to explain why gay couples are excluded from marriage.  As Justice Elena Kagan said, “It's hard to see how permitting same-sex marriage discourages people from being bonded with their biological children.”

  • April 29, 2015
    Guest Post

    by Sherrilyn A. Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund. Follow her on Twitter @Sifill_LDF.

    Yesterday, as the U.S. Supreme Court heard oral arguments about whether states can exclude gays and lesbians from the benefits of marriage, the crisis in Baltimore flooded the airwaves and brought renewed attention to long-simmering issues of racial justice. While the two issues might seem worlds apart, the often-overlooked truth is that both come down to the fundamental question of whether we as a nation take seriously the responsibility to confer equal dignity upon every citizen.

    It is Justice Anthony Kennedy who has elevated the principle of human dignity in a series of rulings. In a 2003 decision that decriminalized “homosexual conduct,” Justice Kennedy stressed that adults must “retain their dignity as free persons.” When the Court eliminated the death penalty for children, a majority led by Kennedy explained that the U.S. Constitution “reaffirms the duty of the government to respect the dignity of all persons.”  In a 2013 decision striking down the so-called Defense of Marriage Act, Kennedy’s opinion emphasized the principle that gays and lesbians “occupy the same status and dignity” as heterosexuals.  Yesterday, at oral argument, Kennedy again raised this concern, stressing that the whole purpose of marriage is “enhancing the dignity of both the parties.”

    Yet it is not only Justice Kennedy.  In 1954, the Court in Brown v. Board unanimously struck down segregation in schools, precisely because it engendered a “feeling of inferiority as to [students’] status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”  In upholding the Civil Rights Act of 1964, the Court stressed “the personal dignity” of individuals who seek to access public accommodations on an equal basis.

    Most relevant to marriage equality, dignity has animated the NAACP Legal Defense Fund and its litigation dating back to the 1960s case of Loving v. Virginia.  Loving involved a married, interracial couple who were dragged out of bed by police in the middle of the night, hauled to jail, and eventually exiled from the state for 25 years in return for a suspended one-year jail term.  Not coincidentally, Virginia charged the Lovings with violating “dignity of the Commonwealth.”  LDF argued that this was unconstitutional and violated the fundamental right to marry and the justices unanimously agreed.  Building upon Loving, LDF filed a brief last month in the Supreme Court underscoring that “all persons yearn and deserve to be treated with equal dignity and respect, both individually and as married couples.”