March 2016

  • March 31, 2016
    Guest Post

    by Joshua A. Douglas, Robert G. Lawson & William H. Fortune Associate Professor of Law, University of Kentucky College of Law; faculty advisor to the University of Kentucky College of Law ACS student chapter

    *In my op-ed in the Louisville Courier-Journal, I examine the disaster situation that would occur if the 2016 presidential election goes into overtime and a case to resolve the dispute reaches the Supreme Court with only eight Justices―a Bush v. Gore round two for 2016. The Op-Ed highlights the catastrophe that would occur in this scenario, providing a further argument on why the Senate should consider President Obama's nominee to the Supreme Court, Judge Merrick Garland. Here is an excerpt:

    Imagine the worst case scenario.  It is Wednesday, Nov. 9, the day after the election, and we do not yet know the winner of the presidential race. Worse still, the outcome will turn on a ballot-counting dispute in one state.  A lawsuit is filed, and the courts are enmeshed in an election law contest. It’s Bush v. Gore round two: Trump v. Clinton.  The case reaches the Supreme Court.

    Do we want to take the chance of having an even number of justices deciding that dispute, hoping that the court will not deadlock 4-4?

  • March 31, 2016
    Guest Post

    by Mary Kelly Persyn, Principal, Persyn Law & Policy and member of the ACS San Francisco Bay Area Lawyer Chapter

    Is a ten-year-old child capable of waiving his Miranda rights to silence and counsel?

    Joseph H., who was traumatized and abused from birth by his parents and others, shot and killed his father five years ago. The juvenile court found that he waived his Miranda rights, and the California appeals court affirmed. In re Joseph H., 237 Cal. App. 4th 517 (2015). The Supreme Court of California denied review. In re Joseph H., No. S227929 (Cal. 2015). Justice Goodwin Liu filed a docket dissent, as noted by the LA Times and others. Petitioner Joseph H.’s request for review in the Supreme Court was docketed on February 29, 2016.

    The Supreme Court has implicitly found that unassisted waivers by children as young as 15 are invalid. But the Miranda “totality of the circumstances” test remains the law, and children are not excluded from its purview. Joseph’s certiorari petition requests that the Court create a prophylactic rule requiring the assistance of counsel or a competent and un-conflicted adult before a Miranda waiver can be accepted. The Court’s recent findings that children are “constitutionally different” provide reason to believe it may choose to decide the issue.

    Joseph’s incapacity depends on more than his youth. In addition, he was traumatized and abused from birth. In its amicus curiae brief, the American Professional Society on the Abuse of Children argues that trauma distorts normal brain development, rendering Joseph even less capable of waiving Miranda rights than the normal ten-year-old. APSAC elaborates further in its press release, finding Joseph’s case “shocking” and any expectation that he could understand Miranda “shameful.”

    The Supreme Court will decide whether to hear the case later this year.

    --Disclosure: Mary Kelly Persyn is counsel of record for APSAC in the Supreme Court.

  • March 31, 2016
    Guest Post

    by Gregory Magarian, Professor of Law, Washington University School of Law

    Today I and nine other law professors who study the Second Amendment and legal issues related to gun violence have called on the Senate Judiciary Committee to evaluate President Obama's nomination of Merrick Garland to the United States Supreme Court without regard to the right-wing fantasy that Judge Garland hates the Second Amendment.  Senate Majority Leader McConnell has all but stated that the N.R.A. will dictate the Senate's approach to its constitutional responsibility of advice and consent on the nomination.  The N.R.A. has all but branded Judge Garland a gun-seizing thug.  Both positions are very important and very dangerous.

    In Judge Garland's nearly two decades on the D.C. Circuit, he has twice encountered cases that touched on gun rights.  In one case he voted, along with a bipartisan group of colleagues, for en banc rehearing of a panel decision that upheld an individual right to keep and bear arms, the decision the Supreme Court eventually affirmed in District of Columbia v. Heller. In the other case he wrote an opinion that let the George W. Bush administration temporarily maintain some records about gun ownership. The idea that, based on those actions, a Justice Garland would vote to overrule or limit the decisions in Heller and/or McDonald v. Chicago is, regrettably, irrational. The N.R.A., however, portrays the barest nod toward caution or procedural regularity about gun rights as a black helicopter on the horizon.

    That unhinged or calculated (take your pick) attitude toward the law makes it especially terrifying that the Senate Republican Conference has effectively outsourced its judgment about the Court to the N.R.A. The Senate is supposed to work for the American people. The present Senate -- to whatever minimal extent it deigns to work at all -- has sworn blind obedience to one very special interest group, a group whose sole reason for being is to make sure that any person, no matter how homicidal, can add to his private arsenal any gun, no matter how lethal.

  • March 31, 2016

    by Jim Thompson

    ACS President Caroline Fredrickson calls on Republican senators to follow the lead of Sen. Jerry Moran (R-Kan.) and allow hearings on Merrick Garland in The Topeka Capital-Journal.

    In, Joseph Tomain, incoming faculty advisor to the University of Cincinnati College of Law chapter, uses examples from recent environmental litigation to explain why the Supreme Court must be restored to full power.

    Joshua Douglas, faculty advisor to the University of Kentucky student chapter, warns that a 4-4 split could cause catastrophe in the event of a contested presidential election in The Courier-Journal.

  • March 30, 2016
    Guest Post

    by Charlotte Garden, associate professor at Seattle University School of Law, litigation director of the Korematsu Center for Law & Equality, and faculty advisor to the ACS student chapter at Seattle Law. Follow her on Twitter @CharlotteGarden.

    On Tuesday, the Supreme Court affirmed the Ninth Circuit’s decision in Friedrichs v. California Teachers Association by equally divided vote. This result—a win for public sector unions—has been anticipated by Court watchers since Justice Scalia’s death made a tie vote among the remaining eight justices nearly inevitable. Still, a tie vote did not require the Court to affirm the judgment below—instead, the Court could have held the case over for reargument once it was back to the full compliment. That the Court did not go that route could reflect the Justices’ own recognition of the political reality that Senate Republicans’ intransigence makes confirmation of a ninth justice before the presidential election in November unlikely. More important, though, Friedrichs is a sign of things to come—the 4-4 affirmances that are all but certain to arrive later this Term will cause far more disruption and uncertainty.

    What Does Affirmance in Friedrichs Mean for Public Sector Unions?

    As I previously described for ACSblog, January’s argument in Friedrichs left public sector unions—as well as states that have chosen to manage their workforces through collective bargaining with unions supported by agency fees—little reason for hope. The Court seemed poised to hold that public sector employees have a First Amendment right not to contribute financially to the unions that represent them, even as they benefit from that representation. A ruling against the union and state defendants would have reversed a nearly 40-year-old Supreme Court precedent, Abood v. Detroit Board of Education, and handed a long-sought victory to the right.

    Thus, Tuesday’s decision was a reversal of fortunes for public sector unions and employers. It means that in the nearly half of states in which public sector agency fees are required or authorized, unions will not be left scrambling to cover the gap that would have inevitably resulted when represented workers made the economically rational decision to free ride on their co-workers. And the timing of that reversal—which would have left unions to cover their shortfall using dues paid by members on a voluntary basis—is also critically important. Unions would have had to divert member dues that could otherwise have gone to election-related advocacy (among other things). And that reallocation would have dampened union members’ ability to engage in political speech through their unions during the upcoming presidential election season—a fact not lost on the plaintiffs’ lawyer, Michael Carvin.