Privacy rights

  • October 31, 2012
    Guest Post

    By Professor David D. Cole, Professor of Law, Georgetown Law

    What if the government was tapping your phone unconstitutionally and there was nothing you could do about it? You’d be living in the United States of America, at least as understood by the Justice Department. Solicitor General Donald Verrilli, Jr., argued in the Supreme Court on Monday, October 29, that, for all practical purposes, the government’s authority to intercept Americans’ international phone calls and emails could not be challenged by the very people most likely to be harmed by it – lawyers, journalists, and human rights activists who regularly engage in such international communications on the very subjects and with the very people the government is likely to be monitoring. Resolution of the case, Clapper v. Amnesty International, may determine whether the most expansive government spying program ever authorized by Congress will be subject to adversarial constitutional review. 

    The Bush administration famously argued that the president’s actions in “engaging the enemy” in the “war on terror” could not be limited by the other branches. It used that argument to justify a secret warrantless wiretapping program run by the National Security Agency that monitored United States citizens’ international communications, in contravention of a criminal statute.  Richard Nixon similarly asserted, when asked by David Frost why he thought he could authorize warrantless wiretapping during the Vietnam War, that “if the President does it, that means it’s not illegal.” To his credit, President Obama has rejected these theories of uncheckable power.  But in defending the most sweeping electronic surveillance authority Congress has ever enacted, he has sought a similar result by contending that, for all practical purposes, the surveillance cannot be challenged in court.

  • October 17, 2012

    by E. Sebastian Arduengo

    A more conservative U.S. Supreme Court would likely result in the gutting of Roe v. Wade, which for close to 40 years has guaranteed women’s access to reproductive health care. A decision overturning Roe wouldn’t make abortion illegal nationwide, but would have the effect of putting the issue in the hands of state governments – a lot like the issue of same-sex marriage.

    Anyone who’s been following news about what the states have been doing to limit access to abortion providers knows that this is disconcerting news for women.

    In Mississippi over the summer, the state legislature passed a bill requiring abortion providers to have admitting privileges at local hospitals that would have had the effect of ending abortion in the state, the implementation of which was stayed by a federal judge. In Louisiana, a law was passed making abortion a strict liability medical procedure, meaning that patients would be able to recover against abortion providers without any proof of fault or negligence. That law too, was held to be unconstitutional by a judge.

    Many more states are itching for the day when the Supreme Court says that reproductive rights are no longer protected by the Constitution. The Center for Reproductive Rights, says there are at least five states that have so-called “trigger” laws that would automatically make abortion illegal without a post-Roe clash in the state legislature. Others would simply have their pre-Roe anti-abortion laws go into effect. Reproductive rights would be in immediate danger in about 30 states the second Roe is overturned.

  • October 2, 2012

    by Jeremy Leaming

    There really are very few Supreme Court justices worth celebrating and many more who are easily forgettable.

    But Thurgood Marshall, who joined the high court 45 years ago today, was a champion of equality before he became the first African American to join, at that time, the all-male, all-white Supreme Court.

    Marshall was named to the federal appeals court by President John F. Kennedy, and later to the Supreme Court by Lyndon B. Johnson. Both were historic appointments. As John Schachter notes in this post, much of Marshall’s life included historic achievements.

    After being denied admissions to the University of Maryland’s law school, because of racism, Marshall earned a law degree from Howard University and launched what would be a trailblazing legal career bolstering and advancing equality and liberty in the country.

    In 1940 he founded the NAACP Legal Defense and Educational Fund, which has become one of the nation’s leading civil liberties groups. Before reaching the federal bench, Marshall, as a highly successful attorney, took to the courts and started toppling Jim Crow era laws, tawdry efforts to continue the oppression of African Americans. As Juan Williams wrote in Thurgood Marshall: American Revolutionary, it was Marshall “who ended legal segregation in the United States. He won Supreme Court victories breaking down the color line in housing, transportation and voting, all of which overturned the ‘Separate-but-equal’ apartheid of American life in the first half of the century.” 

    Of course Marshall’s greatest victory before the high court came in Brown v. Board of Education, where he argued that the odious separate-but-equal principle aimed to keep African Americans “as near [slavery] as possible,” violated the Constitution.

  • October 1, 2012

    by Jeremy Leaming

    A longstanding meme is that conservatives are concerned about the makeup of the Supreme Court, while progressives, not so much. A paper released by ACS on the opening of the Court’s new term, spells out why progressives should be really concerned about the Supreme Court, if they are not already.

    The paper, “Courts Matter: Justice on the Line,” notes the current high court is typically divided 5-4 along ideology on a host of matters that progressives should be concerned about, such as corporate funding of elections, abortion rights, voting rights, privacy rights and equality. The paper speculates on how a more conservative or progressive high court might address some of the nation’s most pressing legal concerns.

    For example, the document says a “more conservative Supreme Court might uphold onerous restrictions on a woman’s right to choose and otherwise limit her reproductive freedom – and perhaps even overturn the landmark Roe v. Wade decision.” There are two cases decided by a conservative Supreme Court that have already revealed a desire to limit, if not overturn, Roe.

    The high court’s 1992 Planned Parenthood v. Casey created a new standard for deciding when limits on reproductive freedoms pass constitutional muster. For example, waiting periods, parental consent and informed consent are no limits on women’s freedom to a medical procedure. For that matter states have also mandated that physicians give women lectures on abortion or force them to under ultrasounds to view sonograms. And in a 2007 opinion, the Court upheld as constitutional a state law banning late-term abortions.

    The advancement of marriage equality might also be slowed by a more conservative Supreme Court, the paper notes. In 2003, the high court by a 6-3 vote invalidated as unconstitutional a Texas law banning sodomy. The ACS paper maintains that today Lawrence v. Texas would likely be a 5-4 opinion.

    Let’s note here too that early next year, Jan. 18-19, ACS will host, along with the UCLA School of Law, the Williams Institute, the Yale Information Society, and the Program for the Study of Reproductive Justice, a conference focusing on the impact of Roe and Lawrence and contemplating the future of both equality and liberty concerns. See here for more information about the conference called “Liberty/Equality: The View from Roe’s 40th and Lawrence’s 10th Anniversaries.”

  • July 31, 2012

    by Jeremy Leaming

    Federal and state judges are not immune to falling for dubious studies passed off as science when ruling against gay couples in marriage or adoption cases. Wobbly science backing up outlandish state restrictions on abortions is just as troubling, if not as common.

    Salon’s Irin Carmon highlights a recent ruling by U.S. District Judge James Teilborg, appointed to the bench by President Clinton, to uphold an Arizona law that outlaws abortions before viability. It’s one of the few state laws to ban pre-viability abortions and Teilborg’s opinion runs counter to the U.S. Supreme Court precedent that forbids states from banning abortions before viability.

    But beyond Teilborg’s failure to grasp precedent, Carmon notes his reliance on the “suspect science of ‘fetal pain,’ a first in the federal courts ….”

    The ACLU and the Center for Reproductive Rights challenged the constitutionality of the Arizona law, but as Carmon notes did not delve into the suspect science because of the clear precedent on laws banning pre-viability abortions.

    The judge, however, claimed that there is “substantial and well-documented evidence that an unborn child has capacity to feel pain during an abortion at least 20 weeks gestational age.”

    Carmon notes that leading medical organizations, such as the Journal of American Medical Association and the Royal College of Obstetricians have found otherwise.

    That ruling, which can be appealed to the U.S. Court of Appeals for the Ninth Circuit, follows a recent one from a federal appeals court upholding a South Dakota law that orders physicians to tell women seeking an abortion that abortions cause an increased risk of suicide and suicidal thoughts. The U.S. Court of Appeals for the Eighth Circuit claimed there is “extensive evidence” of such risks.