February 2016

  • February 29, 2016
    Guest Post

    by Eric J. Segall, Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law. Follow Professor Segall on Twitter @espinsegall.

    On Wednesday, the Supreme Court will hear arguments in an historic abortion case involving two Texas laws that, if upheld, will make it much more difficult for poor women in Texas to obtain abortions. The death of Justice Scalia has little effect on the outcome of this case. There are likely three conservative votes to uphold the laws (Roberts, Alito, and Thomas) and four liberal votes to invalidate the laws (Ginsburg, Breyer, Sotomayor and Kagan). If Justice Kennedy votes with the liberals, the laws will be struck down 5-3 (instead of 5-4 had Scalia remained on the bench). If he votes to uphold the laws, the decision of the lower court sustaining both laws will be affirmed by a 4-4 vote (though the case would not have national implications).

    One of the Texas laws requires clinics that perform abortions to have the physical plans of ambulatory surgical centers while the other requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of the clinic. Before these laws went into effect, there were over 40 clinics in Texas where women could secure a safe abortion. If these laws are upheld, the number will be less than 10. Women in West Texas will have to drive over 150 miles to obtain an abortion should the Supreme Court affirm the lower court.

    The legal standard currently in effect for abortion laws is whether they pose an “undue burden” on the right to an abortion. There can be little dispute that these laws do exactly that (in fact that is their very purpose). As the Texas Solicitor General announced shortly after the laws were passed:

    These laws were not enacted solely to advance the State’s interest in maternal health. They were also enacted to advance the State’s interest in promoting and protecting fetal life. A law that is enacted to advance the State’s interest in the life of the unborn need not be medically necessary to survive constitutional challenge.

    Although Texas does argue that both laws further women’s health by making abortion clinics safer and by ensuring doctors have access to a hospital should something go wrong, both rationales are patently absurd. As Judge Posner held in a case striking down the same admitting privileges law in Wisconsin, and as many other folks have pointed out, abortion is a much safer medical procedure than many other outpatient procedures, including colonoscopies and liposuction, yet nether Wisconsin nor Texas requires doctors to have admitting privileges at local hospitals when performing those services.

  • February 29, 2016

    by Jim Thompson

    At Jost on Justice, Kenneth Jost criticizes the unprecedented obstruction efforts of Senate Republicans, noting, “In the modern era of public hearings for Supreme Court confirmations that began in 1916, no nominee has been denied a hearing and only one has been denied a vote: Abe Fortas, filibustered in 1968 by Republicans.”

    Supreme Court Chief Justice John Roberts “loathes writing in the minority,” so a shift in the high Court’s balance of power would force Roberts to moderate his views or “let himself drift into irrelevance,”  writes Mark Joseph Stern at Slate.

    Nina Martin at Mother Jones explains how Justice Antonin Scalia’s deeply conservative views on abortion may oppress reproductive rights even after his death.

    Justice Anthony Kennedy will likely cast a crucial swing vote in the upcoming Supreme Court case Whole Woman’s Health vs. Hellerstedt. Irin Carmon at MSNBC examines the factors that will influence his decision.

    In strong defense of the Second Amendment, Justice Clarence Thomas spoke from the bench for the first time in decade, reports Cristian Farias at The Huffington Post.

  • February 29, 2016
    Guest Post

    by Jarrett Adams, J.D., exoneree, advocate, and co-founder of Life After Justice. Follow him on Twitter (@JarrettFocused) and Facebook.

    *This post is part of ACSBlog's Symposium Recognizing Black History Month.

    Prosecutors hold the key to equitable charges against criminal defendants. They decide when to bring a case and when to drop charges, how and whether to prosecute, and what level of charges and sentences to pursue. And, in our current system of criminal injustice, they should be scrutinized for their choices.

    As Suffolk County Assistant District Attorney Adam Foss described in a recent TED Talk, we rarely talk about the prosecutor when we talk about criminal justice reform. Rather, we complain about police, sentencing laws, and prison. But, as Foss further explains, prosecutorial power is “virtually boundless.” And for years this discretion of prosecutorial power has resulted in a disgusting amount of poor black and brown men, and increasingly women, going to prison with unconscionable prison sentences.

    For example, in 1998, I was 17 years old when I–along with two other black teenagers from Chicago, Dimitri Henley and Rovaughn Hill–was falsely accused of sexually assaulting a white woman after attending a college party. Unfortunately, this case was no different than the cases that often arise on college campuses. The only difference, which was the biggest difference, was the race of the accused and the accuser. A month after this party, the prosecutor decided to bring sexual assault charges based solely off an inconsistent and unbelievable accusation. This allegation was not only false, it was supported by nothing and completely undermined by statements from alibi witnesses that both the police and the prosecutor were aware of from the very beginning.

    Henley and I were unable to afford an attorney, so the court appointed us one while Hill’s family put up their house to secure a paid attorney. The case was ultimately severed, and Henley and I were convicted at trial after two ill-prepared court appointed attorneys failed to investigate the case or call any witnesses. Meanwhile, Hill’s attorney hired an investigator and prepared for trial by locating a crucial alibi witness whom the police had initially interviewed but failed to turn over his full statement.

    After the discovery of this witness’s statement, the prosecutor correctly used his discretion and filed a motion dismissing all charges against Hill. At the time the charges were dismissed against Hill, Henley and I had been incarcerated for close to a year and fully expected for the prosecutor to file a motion to dismiss our case or at the least join in a motion for a new trial to present the evidence that supported our innocence. After all, this was the same case, same false accusation, and ultimately the same alibi witness that would free both Henley and I almost a decade later.

  • February 26, 2016
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr. Professor of Law, Georgetown University Law Center. This post draws from Heinzerling’s article, "The Supreme Court's Clean-Power Power Grab," to be published in the Georgetown Environmental Law Review in May 2016.

    The Environmental Protection Agency's "Clean Power Plan" establishes emission guidelines for states to follow in regulating carbon dioxide from existing power plants. Many states and industry groups have challenged the rule in the D.C. Circuit. Some of the challengers asked the D.C. Circuit to stay the rule pending the court's review, but the D.C. Circuit declined, explaining that the challengers had not met the strict requirements for such relief. The challengers then moved on to the Supreme Court, filing five separate applications to stay EPA's rule pending judicial review in the D.C. Circuit. The applicants for a stay did not file petitions for certiorari or indicate that they intended to file petitions for certiorari, and they did not challenge the D.C. Circuit's decision denying a stay. Instead, they challenged the Clean Power Plan itself and asked that it be stayed pending initial judicial review of the rule in the D.C. Circuit. No party weighing in on the applications for a stay, either in favor or opposed, was able to identify any previous case in which the Supreme Court had stayed the application of a nationally applicable agency rule before any court had reviewed it. Nevertheless, the Court granted the stay.

    The unique posture of the case creates uncertainty about the jurisdictional basis for the Court's action. In its terse, identical orders granting the five applications for a stay, the Court did not identify the source of its power to hear the case. Moreover, the five different sets of applicants for a stay did not agree among themselves about the source of the Supreme Court's authority to hear the case and issue a stay. The applicants' disarray reflects the uncertain jurisdictional basis for the Court's orders.

    The applicants for a stay cited, in varying configurations, four different statutory provisions which, they asserted, gave the Supreme Court jurisdiction to hear the case: 5 U.S.C. § 705 (Administrative Procedure Act's provision on stays of administrative action), 28 U.S.C. § 2101(f) (on stays pending the filing of petitions for writs of certiorari), 28 U.S.C. § 1254(1) (on certiorari jurisdiction), and 28 U.S.C. § 1651(a) (All Writs Act).

    Did one of these statutory provisions give the Supreme Court the power to stay the Clean Power Plan? I don't think so. Let's take them one at a time.

  • February 26, 2016

    by Jim Thompson

    In The New York Times, Nicholas Kristof lambastes conservative policymakers’ reckless disregard for their constitutionally-established roles in the judicial confirmation process. USA Today’s Editorial Board also denounces senators who have prematurely vowed to block any Supreme Court nominee submitted by President Obama, stating, “This outright obstructionism represents a new low in this long-running conflict.”

    Kimberly Robinson at Bloomberg BNA explains how the motives of Texas legislators will factor into Whole Woman’s Health v. Hellerstedt, quoting ACS President Caroline Fredrickson who says their real mission is to “make abortion more costly and stigmatized.”

    In a surprising move, Douglas Laycock–who argued against the ACA’s birth control mandate at last year’s ACS National Convention–opposed plaintiffs’ arguments in Zubik v. Burwell, writes Sarah Posner at The American Prospect. Laycock said, “Religious liberty can be endangered by exaggerated claims and overreaching as well as by government intransigence and judicial under-enforcement.”

    Reuben J. Garcia, faculty advisor to the ACS Student Chapter at the University of Nevada, Las Vegas, discusses the current Supreme Court vacancy on KNPB.

    Ted Olson, the prominent lawyer representing Apple in its battle with the FBI, says there is no law requiring the company to redesign iPhone security features to allow the government access to the San Bernardino shooter’s cellphone, reports Camila Domonoske at NPR.