Affirmative Consideration, Not Affirmative Action

In Students for Fair Admission v. Harvard the Supreme Court effectively ended affirmative action in college admissions. Although Justice Thomas would have gone further in his separate concurring opinion, the Court recognized a limit to how far it could push to end racial preferences. As the Court explained, “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” The Court has repeatedly emphasized that the Constitution protects individuals, not groups. But if the Court were to dictate complete race blindness in admissions practices, it would require universities to deny aspects of personal identity that are intrinsic to individuals. The Court carefully avoided this paradox, opening the path for a new practice in which universities can give affirmative consideration to whole persons, including aspects of their identities such as race, gender, sexual orientation, or class, among others.

This new form of identity-conscious decision making—call it affirmative consideration, as I have explained in a related scholarly piece—has a more enduring ground in the Constitution and can achieve many of the goals of affirmative action while avoiding some of its costs. Justice Kennedy’s opinions protecting the overlapping values of equality and liberty in same-sex relationships provide the roadmap. The Constitution protects the liberty of individuals to define and express their identities, including their racial identities.

By giving affirmative consideration to individual persons, a university would attend to the complex details of their identities in ways that are similar to programs of affirmative action. But as the Court was keen to point out, this is not an invitation to continue the old regime of racial categorization. Chief Justice Roberts explained that consideration of race has to be tethered to the identity and experience of the whole person (“a benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination”). But even when race is relevant to considering an applicant as a whole person, “the student must be treated based on his or her experiences as an individual—not on the basis of race.” Nonetheless, universities may consider the experiences and identities of individuals without imposing artificial blindness to the meaning of socio-economic background, race, gender, and sexual orientation, and other personal aspects that collectively comprise a person’s identity.

This new practice will be more organic and student-driven than affirmative action. Under the new regime, universities will be unable to impose racial categorizations for purposes of generalized institutional goals such as diversity. But such diversity-driven programs were always about the needs of the university as an institution, not about the identity of individual applicants. These preconceptions about racial identity were a problem for the Court because they provided categories into which individuals were expected to fit, which could have the effect of effacing individual identity to serve institution ends. As the Chief Justice admonished, universities had too easily “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.” By contrast, a program of affirmative consideration would allow individuals to create the meaningful categories they experience in society through the stories they tell of their lives.

Even though the Court did not explain the basis for this new race-conscious program of affirmative consideration, it has a natural home in the interaction between the Constitution’s protections for both equality and liberty. In opinions written by retired Justice Anthony Kennedy, the Court identified this interaction as protecting the equal dignity of individuals to define their own lives and relationships on an equal basis with others, free from the state imposing its own conception of their proper identity. By protecting the equal dignity of individuals to have same-sex relationships and marriages in Lawrence v. Texas and Obergefell v. Hodges, the Court also affirmed the right of all individuals to define their person identities by telling their unique stories. Freedom from the state imposing its own conception of individual identities—including race-blind identity—is a liberty shared equally by all.

Consistent with this principle, the Court cannot mandate complete colorblindness because it would have the effect of stripping individuals of their identities. A constitutional principle of equal dignity protects the integrity of their identity as whole persons, including their race. Following these precedents, race consciousness has an even firmer constitutional ground than the post-Bakke affirmative action, which was always plagued by temporal limitations, as the Court emphasized in Grutter v. Bollinger, and the Court embraced in Students for Fair Admissions. Liberty and equality form a stronger bond, as Justice Kennedy explained, opening up protection for what he termed “freedom in all of its dimensions” without temporal or remedial restraints.

The advantage of affirmative consideration grounded in equal dignity is that all applicants can receive a benefit. Nor does it run afoul of the problem Justice Thomas emphasizes: that some will feel, and others might perceive, the beneficiary as an unworthy token of racial preference. Giving every applicant an equal opportunity to tell their story, including how constitutive features of their identity such as race and gender and class have impacted their lives, does not deny any person of positive consideration. One of the weaknesses of affirmative action, which the Chief Justice identifies, is that it unavoidably involves zero-sum racial tradeoffs among racial groups that produce backlash claims of inequality. Because it gives preferences for some but not others, affirmative action has not enjoyed broad majoritarian support. Affirmative consideration would not have this weakness. It focuses on recognizing the dignity of individualized identities of persons on an equal basis.

Affirmative consideration is both more modest in its aspirations and more ambitious in its reach. But unlike affirmative action’s pursuit of diversity, it is a race-conscious practice capable of generating broad and lasting support, grounded in constitutional values shared by all, and focused on the complex mosaic of individual identity.

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Thomas P. Crocker is Professor of Law at the University of South Carolina School of Law and author of Equal Dignity, Colorblindness, and the Future of Affirmative Action Beyond Grutter v. Bollinger and Overcoming Necessity: Emergency, Constraint, and the Meanings of American Constitutionalism published by Yale University Press.

President Biden Has Fallen Behind His Predecessor on Judicial Confirmations

As of August 1, President Biden has fallen behind his predecessor on the number of federal court vacancies he has filled. President Biden has had 140 federal judges confirmed thus far, whereas former President Trump had had 144 judges confirmed by the end of July of his third year.

This lag is disappointing from a White House and Senate that have taken pride in exceeding the pace of judicial confirmation set by the previous administration. However, with 31 judicial nominees pending with the Senate, it is hard to blame the White House for this undesired milestone. President Biden falling behind Trump is predominantly the result of the Senate majority deprioritizing judges since November of last year. There remains an opportunity, albeit an up-hill one, for President Biden and the Senate to exceed the 187 judges that Trump had confirmed by the end of his third year, but it will require a much more concerted commitment by the Senate between now and the end of the year.

President Biden had 40 judges confirmed in 2021, 57 in 2022, and has had 43 confirmed thus far in 2023. If he and the Senate want to reclaim the lead in judicial confirmations this year, the Senate needs to confirm at least 47 more judges before the end of December. You read that right. The Senate will need to confirm more judges in four months than it did in the first seven months of the year, or in all of President Biden’s first year in office.

This uphill battle was both foreseeable and preventable. At the end of last year, Senate Majority Leader Schumer tweeted, “This Senate has confirmed 97 federal judges. That’s more than the first Congress in either of the two previous administrations.” While true, that 97 could have been much higher had the Senate better utilized the lame duck session to maximize confirmations. We at ACS urged the Senate to confirm at least 25 judges during the lame duck. Instead, the Senate only confirmed 13 judges.

There was another missed opportunity at the start of this year when the Senate did not confirm a single judge in the month of January. Much of the spring was hindered with attendance issues, which contributed to the Senate also not confirming a single judge in the month of April. However, the Senate majority has had full attendance since May and yet confirmed only six judges in June and four in July.

For months, we at ACS have been urging the Senate to expand its calendar to enable more time to confirm judges. As part of this, we urged the Senate to scrap its August recess, which would have provided the Senate with four more weeks to confirm judges. We’ve seen the Senate confirm as many as 12 judges in a week. A determined Senate could have used the month of August to confirm a significant chunk of the necessary 47 needed to exceed Trump by the end of the respective third year, certainly the 17 nominees currently pending on the Senate floor.

Instead, the Senate has opted to take its full August recess, leaving it with more nominees to confirm in less time when it returns after Labor Day. It is possible for the Senate to confirm 47 judges before the end of the year, but the Senate will need to consistently prioritize confirmations and use every tool in its toolbox, including:

  • Expanding the calendar immediately upon returning in September. This means having the Senate in session Monday through Friday, and potentially on the weekends. The good news here is that the Senate majority controls when the Senate is in session.
  • Amending the Senate rules to require only two hours of post-cloture debate time for circuit court nominees, akin to the two hours required for district court nominees.
  • Amending the Senate rules to enable multiple nominees to be considered by the Senate simultaneously.
  • Scrapping what remains of the blue slip tradition. During the previous administration, the GOP-controlled Senate Judiciary Committee eliminated blue slips for circuit court nominees. The current Senate majority should scrap the tradition for district court nominees, which enables individual Senators to effectively veto nominees for vacancies in their state. Scrapping blue slips does not in any way prevent the White House or the Senate Judiciary Committee from consulting with home state Senators about candidates for vacancies in their state. It simply prevents a single Senator from hijacking a vacancy.

The White House and Senate have already made history in the diversity of the judges they’ve put on the federal bench. President Biden’s 140 judges represent unprecedented racial and gender diversity, and many bring professional diversity to the bench. However, the total number of judges matters. Diversity is absolutely needed. Diversity and numbers are needed even more. If we are to achieve a judiciary that reflects the diversity of the public it serves, we need many, many more diverse judges.

The confirmation of diverse, qualified federal judges is one of the most impactful things this White House and Senate can do with a divided Congress. It is also one of the most long lasting with judges having life tenure and routinely staying on the bench for decades. Right now, there are 68 federal court vacancies and 22 future vacancies, for a combined 90 vacancies. The White House and Senate have an incredible opportunity to fill each and every one of those vacancies with a diverse, qualified judge who is committed to vindicating our fundamental rights, safeguarding democracy, and upholding the rule of law. The fate of those vacancies – whether they are filled or left empty – will be a lasting part of the legacy of this administration and this Senate.

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Zack Gima is ACS Vice President of Strategic Engagement.

 

 

 

 

New Challenges Threaten U.S. Rule of Law Recovery

This piece was originally published by the World Justice Project. 

Starting six years ago, a global rule of law recession has rippled and raged through communities around the world. Authoritarian trends compounded by the Covid-19 pandemic have eroded government accountability, rolled back human rights, and delayed justice in dozens of countries.

By 2021, the United States was among the countries with the sharpest deterioration in the rule of law. Declines in U.S. rule of law performance were roughly on par with those in Myanmar, Nicaragua, and the Philippines.

Then last fall, the U.S. score on the annual World Justice Project (WJP) Rule of Law Index rose for the first time since 2016. The country’s gains across all eight factors that the Index measures made it one of the world’s biggest rule of law improvers in 2022. Suddenly, it seemed imaginable that the United States could bounce back, although there was still a hill to climb.

But months later, an onslaught of escalating headlines suggest that U.S. rule of law not only remains at risk, but that it could unravel in new directions.

The former U.S. president appears to be facing criminal indictment for alleged schemes to undercut elections, an essential cornerstone of U.S. democracy and rule of law. Campaign speeches and a recent New York Times article suggest that if reelected, Donald Trump would work to dramatically consolidate presidential power and eviscerate congressional oversight of executive branch agencies. And the crown jewel of the government’s third branch, the judiciary’s Supreme Court, is embroiled in ethical controversy.

Some of these currents evoke the U.S. rule of law indicators that have fallen most sharply in recent years, notably those related to weakened checks and balances. Even with some recovery last year, the WJP Rule of Law Index measure for “Constraints on Government Powers” in the United States has fallen 15% since 2016. The capacities of the legislature, the media, and the judiciary to rein in executive power have all fallen significantly, as has confidence in election processes.

To create the Index, WJP draws on in-depth surveys of legal practitioners and subject-matter experts, as well as nationally representative polls. Those household polls show a stunning decline in people’s belief that Americans can vote freely without feeling harassed or pressured. In 2016, 91% of people surveyed believed this to be true. By 2021, only 58% still agreed.

Belief in government accountability has also taken a huge hit. In 2016, more than half of Americans (56%) believed that high-ranking officials would be held accountable for breaking the law.  Five years later, less than a quarter of Americans (24%) agreed.

However, one area of public and expert confidence that has remained strong over the years relates to judicial integrity. The proportion of Americans who say all or most members of the U.S. Congress are corrupt has steadily climbed in recent years, with more than half (54%) holding this belief in 2021. In contrast, less than a fifth of Americans (19%) believed judges to be corrupt, the same as a decade ago.

For years, the United States has scored highly on the judicial integrity indicator in the WJP Rule of Law Index. In 2022 it scored 0.91 out of 1, making it the country’s second-highest strongest rule of law indicator among 44 Index sub-factors. Only the U.S. score for lack of civil conflict (1.0) was higher.

In October, the 2023 WJP Rule of Law Index will show whether this previously solid U.S. strength may start to weaken. It’s a significant trend to watch because confidence in the judiciary is a bedrock of healthy rule of law.

The latest polling suggests that public confidence in the Supreme Court has taken a hit in the wake of recent controversies, including revelations of justices accepting lavish gifts from billionaires with business before the Court. Whether falling trust will persist and filter down to engulf the wider judiciary remains to be seen. But these new vulnerabilities couldn’t come at a more critical time.

After all, the courts will decide the fate of the former president as he faces criminal charges, including those already filed for financial malfeasance and the mishandling of classified documents. And the future course of U.S. rule of law could rely on wide respect and acceptance of court decisions, including, and perhaps particularly, in any election-related disputes.

Just last week, the former president and current presidential candidate said that it would be “very dangerous” for a special prosecutor to even talk about sending him to jail. That’s because, Trump explained, “we do have a tremendously passionate group of voters.”

Voters’ ultimate response to former President Trump’s legal troubles is an open question. WJP data suggests the nation is not divided when it comes to the principle that no one is above the law.  For example, an overwhelming number of Democrats and Republicans believe it is important to obey the laws of the government, no matter who you voted for (Democrats 78%, Republicans 79%) and that the president must always obey the law and courts (Democrats 87%, Republicans 86%).

Keeping a focus on these core values can hopefully contribute to continued recovery from the backsliding the United States experienced between 2016 and 2021 and help the country maintain its historically strong rule of law.

The Disability Docket: What’s at Stake at the U.S. Supreme Court for People with Disabilities?

On July 26, we will celebrate the 33rd anniversary of the Americans with Disabilities Act (ADA), a law that was enacted to prohibit discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, government programs and services, and all places open to the public. In many ways, the COVID-19 pandemic, in exacerbating existing inequities, has made society at large more aware of the barriers faced by people with disabilities, particularly people of color with disabilities, and the life-or-death consequences such discrimination can entail during a time of crisis. During the pandemic, disabled activists also raised awareness of the reality that so many accommodations long sought by and often denied to disabled people, such as remote work and other virtual participation options, were, in fact, eminently achievable and preferred by many with and without disabilities alike.

But so much work remains to be done in achieving widespread understanding and awareness of the barriers facing people with disabilities and in realizing the full promise of the ADA in the daily lives of people with disabilities. Following improved access to elections for many voters with disabilities during the pandemic, we have seen multiple states enact large scale voter suppression laws that systemically disenfranchise voters with disabilities. Too many students with disabilities remain segregated in their schools and receive inferior education and harsh discipline that too often leads to the school-to-prison pipeline. Places of public accommodation too frequently remain inaccessible to people with disabilities, leading to ruined trips, meetings, and events. Airlines regularly recklessly mishandle, break, and lose travelers’ wheelchairs, with little accountability to address the immense harm and cost imposed by these actions.

With over 60 million people living with a disability in the United States, the field of disability law has grown exponentially in the 33 years since the ADA was enacted, but the topic of disability rights too often remains marginalized in broader discussions of civil rights law. When it comes to the Supreme Court, incredibly consequential cases pertaining to the rights of millions with disabilities are often overlooked by the media and legal scholars. In a recently published article in the American University Law Review titled “The Disability Docket” and co-authored with legal scholars Jasmine Harris and Karen Tani, we highlight (1) the role of disability cases in the retrenchment of civil rights; (2) the vast and underappreciated effects that certain “non-disability” cases are likely to have on people with disabilities; and (3) the difficult choices that disability law litigators and advocates face when disability law cases end up before the Supreme Court. Throughout the Article, we suggest legal areas that would benefit from further examination through a “disability lens.”

Two cases from the 2022-2023 and one in the upcoming term are illustrative of the stakes involved for people with disabilities before the Court.

In Health and Hospital Corporation of Marion County, Indiana v. Talevski, the family of Gorgi Talevski sued his nursing home, alleging that he was abused in violation of the Federal Nursing Home Reform Act (FNHRA), which applies to all nursing homes that receive federal Medicaid funds. After a district court dismissed the case and the Seventh Circuit reversed, the defendants sought Supreme Court review, urging the Court to disallow the use of Section 1983 to enforce the terms of the FNHRA and to find that Spending Clause legislation in general is not privately enforceable under Section 1983 (a position that would require reversing decades of precedent). Had the Court accepted the defendants’ argument, residents of state-run, federally-funded nursing homes would have lost what has historically been their best vehicle for holding those facilities accountable when they violate federal standards and a host of federal-state programs involving food assistance, income support, healthcare, and more would have been impacted. The disability community weighed in with public education campaigns and amicus briefs explaining the stakes of the litigation for millions with disabilities. Ultimately, the Court held in favor of Talevski and stated that the FNHRA “unambiguously” creates rights enforceable under Section 1983, a critical win upholding a private right of action as essential in the access, accountability, and antidiscrimination of our country’s Medicaid and other safety net programs. Complex government systems too frequently fail to help the people who need them most and private lawsuits remain one of the only ways beneficiaries can meaningfully enforce their rights. This decision also ensures there is accountability for service providers which has a direct impact on the quality of services and supports that millions count on.

Perez v. Sturgis Public Schools had the potential to narrow existing individual and collective rights in that it addressed how many administrative hurdles a plaintiff might have to clear before seeking relief for a civil rights violation directly in federal court. Perez, the plaintiff, is a deaf student who was assigned an aide from his school district to translate classroom instruction into sign language. He alleged the aides he received were unqualified or absent from the classroom for hours. Over the course of a decade, the school district allegedly misrepresented Perez’s educational progress, leading his parents to believe he was on track to graduate from high school. Then, months before graduation, the district informed Perez that he would not receive a diploma. Perez and his family filed an administrative complaint under the Individuals with Disabilities Education Act (IDEA) against the district and reached a settlement prior to the administrative hearing. Perez then filed a lawsuit in federal district court under the ADA seeking compensatory damages, which Sturgis defended against by arguing that Perez could not bring an ADA claim without first exhausting the IDEA’S administrative procedures. The district court dismissed Perez’s lawsuit on these grounds and the Sixth Circuit affirmed. The Supreme Court granted certiorari to address the extent to which families of children with disabilities must exhaust administrative procedures under the IDEA before seeking relief under other federal antidiscrimination statutes, such as the ADA. Although the Court ultimately reversed the Sixth Circuit, helpfully clarifying that the IDEA’s exhaustion requirement does not preclude a student in Perez’s position from moving forward with an ADA lawsuit, the oral argument surfaced at least one troubling point, regarding the availability of damages post Cummings. Ultimately, the case is an important victory for disabled students who face a multitude of barriers in getting the supports they need to thrive in school – these barriers include overt segregation and discrimination and force parents to become experts in advocacy and the law in order to get the education their children are entitled to. The decision helps to remove unnecessary burdens from families seeking relief and helps ensure that students with disabilities and their families are able to pursue every avenue of justice available to them when their civil rights are violated.

Lastly, the Court recently granted certiorari in Acheson Hotels, LLC v. Laufer, in which petitioners raise the question of whether an ADA “tester” has Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, if that tester lacks any intention of visiting that place of public accommodation. Laufer is disabled, with impaired vision and limited use of her hands; she uses a wheelchair or cane to ambulate. She has a number of accessibility needs with respect to hotels, including accessible parking, passageways that fit her wheelchair, lowered surfaces, and bathroom grab bars. Searching the Acheson Hotels website for information pertinent to her needs, Laufer found that the site did not identify accessible rooms, did not provide an option for booking an accessible room, and did not give her sufficient information to determine whether the rooms and features of the hotel were accessible to her. Laufer sued, alleging discrimination under Title III of the ADA and arguing that Acheson Hotels’ failure to include accessibility information on its website “deprives her of ‘the ability to make a meaningful choice’” and causes her to “suffer ‘humiliation and frustration at being treated like a second class citizen, being denied equal access and benefits to . . . accommodations and services.’” Acheson Hotels moved to dismiss, arguing that, because Laufer never intended to book a room at its hotel, she lacked standing to bring her suit. The district court dismissed the case on standing grounds, but the First Circuit reversed. The petition to the Supreme Court encapsulates a narrative that has become central to public understandings of disability civil rights laws. Although Congress designed the ADA with private enforcement in mind, the citizens who do this enforcement work are sometimes portrayed as self-interested vigilantes who prey especially on small businesses. In Acheson Hotels’ telling, Laufer is part of “[a] cottage industry ... in which uninjured plaintiffs lob ADA lawsuits of questionable merit, while using the threat of attorney’s fees to extract settlement payments.” Acheson Hotels also suggests that the most notable results of such efforts have not been to vindicate the ADA’s purposes, but rather to “burden[] small businesses, clog[] the judicial system, and undermine[] the Executive Branch’s exclusive authority to enforce federal law.” Laufer, in contrast, characterizes “testers” as simply bringing to light longstanding discriminatory practices of public accommodations, as well as a class of businesses that has affirmatively chosen to wait to be sued rather than comply with the clear mandates of a now decades-old law. Laufer also notes that without “testers,” the ADA would go radically underenforced, because of the law’s lack of allowance for damage awards. The case is set for oral argument on October 4.

These are but a few cases in the Court’s recent and upcoming terms that have significant impacts for people with disabilities and federal disability rights laws. As discussed in our article, there are a myriad of other cases, both disability-specific and otherwise, that are relevant to this discussion, including: Cummings v. Premier Rehab Keller, P.L.L.C., (holding that emotional distress damages are not available under Section 504 of the Rehabilitation Act and the Affordable Care Act); Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc. (holding that the Medicare Secondary Payer statute does not authorize disparate-impact liability); United States v. Vaello Madero (holding that the Constitution does not require Congress to extend Supplemental Security Income benefits to residents of Puerto Rico); Dobbs v. Jackson Women’s Health Organization (holding that the Constitution does not confer a right to abortion); West Virginia v. Environmental Protection Agency (holding that Congress did not grant the Environmental Protection Agency the authority to devise emissions caps in the way it did in the Clean Power Plan); and Allen v. Milligan (holding that Plaintiffs demonstrated a reasonable likelihood of success on their claim that the districting plan adopted by Alabama for its 2022 congressional elections likely violated Section 2 of the Voting Rights Act).

As we discuss in our article, this “disability docket” matters for disabled people seeking access, inclusion, and remedies for harm, but it also has wider implications and shows how central the concept of disability is to the current legal landscape:

[A]pplying a disability lens can yield rich and important insights—about trends in contemporary jurisprudence and their real-world effects; about the experiences of people who identify as disabled or are so labeled; and about the current workings of the concept of disability, a malleable and manipulable term that has had various meanings and uses throughout U.S. history.

As we celebrate the ADA’s 33rd anniversary, it is a good opportunity to apply this “disability lens”—a dimension of legal analysis that is too often marginalized or omitted—to the Court’s recent jurisprudence.

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Shira Wakschlag is the Senior Director of Legal Advocacy and General Counsel at The Arc.

An Attempt to Disempower Ohio Voters

For 111 years, since 1912, the Ohio state constitution has enshrined majority rule by enabling the constitution to be amended by a majority of voters. Ohioans opted for majority rule specifically to make their state government more responsive to the people. Certain lawmakers in Ohio and special interests want to change that. The details and timing of their effort, known as State Issue 1, reveal it for what it is, an attempt to disempower Ohio voters and make it harder for them to have their voices heard, most immediately on the issue of abortion rights.

State Issue 1, placed on the ballot by the GOP-controlled state legislature back in May, would require that amendments to the state constitution, whether proposed by the General Assembly or through citizen initiatives, be approved by 60 percent of voters, instead of the current requirement of a simple majority of voters. In addition, Ohioans who want to place an amendment on the ballot would have to collect signatures from at least five percent of voters from the previous gubernatorial election in all 88 counties, rather than the current requirement of 44 counties. This effectively would give veto power to a single county. State Issue 1 would also eliminate the ten-day period in which Ohioans can replace any signatures collected that are deemed faulty by the Ohio Secretary of State’s Office. These are significant changes and would make it substantially harder for citizen initiatives to get on the ballot and for voters to approve them.

Ohio’s existing process has worked well, and Ohioans have been judicious, adopting just 19 of 71 citizen-initiated amendments. With a 60 percent threshold, Ohioans would not have been able to limit increases in unvoted property taxes, eliminate straight-ticket voting, or pass reforms like the Clean Ohio Fund and the Third Frontier Project, which have attracted, retained, and created thousands of Ohio jobs. There is no reason to change the constitutional amendment process now and certainly not with this cynical ploy.

An indication of that cynicism is the fact that the election for State Issue 1 is scheduled for August 8th. Ohio held its statewide primary in August last year and saw record low voter turnout. Low voter turnout is predictable in August, the month when many people are on vacation with their families, trying to enjoy the final days before school starts again, and to generally disengage. For those behind State Issue 1 to schedule the election for August suggests they want low voter turnout, perhaps because they don’t think State Issue 1 has popular support.

Ohio Secretary of State Frank LaRose, who supports the ballot initiative, has admitted that he “wouldn’t be surprised” by low voter turnout. In fact, LaRose and GOP legislators worked last year to prevent most August elections moving forward because of concerns over low voter turnout. Ohio has not had a statewide issue, such as a constitutional initiative, on an August ballot in almost 100 years. And yet, here we are, with another election in August and with a constitutional initiative as the only item on the ballot.

The timing is intentional. This November could see a ballot measure to protect abortion rights in Ohio. Recent polling suggests strong public support for the measure. Were State Issue 1 to be adopted, however, its new requirements for ballot initiatives would immediately apply to that November ballot measure. Rather than oppose the measure about abortion rights on the merits and let the people of Ohio decide, certain legislators would rather change the rules. They would rather game the system in an effort to thwart the November initiative and anything like it in the future.

Ohio voters already have to face extreme gerrymandering, restrictive voter registration rules, and other barriers to the ballot box erected by conservative supermajorities in the state legislature. Constitutional initiatives are a critical tool for Ohio voters to provide checks and balances of their state government. Moreover, Ohioans have repeatedly demonstrated an appreciation and respect for constitutional initiatives and have given the legislature no reason to revise the process. This is not a partisan issue -- both Republicans and Democrats have spoken out in opposition to State Issue 1, including former Republican and Democratic Ohio Governors and Attorneys General.

The effort behind State Issue 1 has an “under the cover of darkness” cynicism to it, from the substance proposed to the timing of the election. We will soon know whether such cynicism succeeds. Regardless, we hope the lesson that other states take from this is to respect their processes and to ensure that proposals for changing how their state constitutions are amended are transparently taken up and every effort is made to ensure the final result reflects the will of the people.

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Russ Feingold is the President of ACS.

 

 

 

Lee Fisher is Dean and Joseph C. Hostetler-BakerHostetler Chair in Law at Cleveland State University College of Law. Fisher previously served as Ohio Lt. Governor (2007-2011) and Ohio Attorney General (1991-1995). Follow Lee Fisher on Twitter @fisher4justice.

 

 

Justice Clarence Thomas’ Omissions Are Criminal; Thomas has Deprived the Public of Honest Services, and of What Alexander Hamilton Called “The Good Behavior” Required of Federally Appointed Judges

The revelations from ProPublica about Justice Clarence Thomas’ undisclosed receipt of gifts from a particular Republican mega-donor, followed a few weeks later by ProPublica reporting of similarly undisclosed gifts to Justice Samuel Alito from a hedge fund billionaire, have struck yet another blow to a Supreme Court already suffering a legitimacy crisis.

Though the justices are not subject to a binding federal code of conduct (such as those regulating all other federal judges’ acceptance of gifts or restricting Department of Justice employees from accepting gifts from a single source in excess of $20 or $50 in a single year), they are bound by what we old-timers at DOJ called “the Watergate forms.” The latter are financial disclosure forms, mandated post-Watergate, that supervisory, high-level and/or Senate confirmed federal employees from the three branches (congressional, executive, and judiciary) must complete every year.

While nothing prevents the nine federal jurists occupying One First Street NE in D.C. and their families from accepting whatever gifts they choose, they (like the rest of the supervisors on the federal payroll who maintain positions of public trust) must truthfully and completely fill out the annual disclosure forms. The purpose of the legislation that mandates disclosure for the federal higher-ups who receive paychecks from the U.S. Treasury is crystal clear from its title. It’s called the Ethics in Government Act of 1978.

Justices Thomas and Alito, like me when I was a federal prosecutor, are required to disclose what they, their spouses, and their dependents received from third parties. Why? Because the public is entitled to know. For Justice Thomas to say that “colleagues and others in the judiciary” said it was okay to not provide information to the public about these gifts conflicts with the explicit words of the disclosure statute. In my over 30 years as a prosecutor, in those cases when a defendant took the stand, I cannot recall one where a jury bought the defense of “my friends said it was okay to do.”

Nor was there any need for Justice Thomas to rely on colleagues for direction. Just like the other two branches of government – the executive branch (from the President to those of us at DOJ) and Congress – the judiciary, including Justices Thomas and Alito and all their colleagues on the Court, have a detailed instruction manual that explains the nuts and bolts of disclosure.

The justices (who both espouse an originalist, literal view of the words of the constitution and statutes) know better than to blame the "bad advice” of unnamed colleagues, in Justice Thomas case, or a contorted interpretation of the word “hospitality,” in Justice Alito’s case, for their misbehavior. The words of the 1978 Watergate disclosure statute are clear and require disclosure of benefits to the federal employee, the federal employee’s dependents, as well as the employee’s spouse. In fact, the ethics statute was amended after the 2013 case of U.S. v. Windsor that recognized marriage equality in federal law, to make clear that federal employees must also disclose benefits provided to same-sex spouses. Thomas, who rejects reliance on legislative history and historical context outside of the words of a statute, could have just looked at the words of the statute. He did this earlier in his life as a jurist, when he disclosed the 2001 gift from Harlan Crow, the Republican megadonor, of a copy of the bible owned by Frederick Douglass.

It is bad enough that Justice Thomas did not disclose the foreign and domestic travel on a private jet, including his luxury travel to a cemetery where the statue of the jurist’s favorite nun – commissioned and paid for by Crow – was unveiled, as well as the jurist’s luxury stays at Crow’s private lakeside up-state New York resort; the payment of Thomas’ mother’s mortgage and his wife’s consulting fees, plus a commissioned portrait of the justice and his wife.

But the fact that the donor, Harlan Crow, is an incendiary Republican cultural warrior who funds groups that deride women’s bodily autonomy, deny climate change, are anti-voting access, and entertain and connect those who support a Christian nationalist theocracy, makes the disclosure to the public all the more necessary. Absent ProPublica’s reporting, it would have been hard for the public to know about the numerous gifts Crow has bestowed on the justice and his family and the fact that Crow’s “connected groups” have a near “perfect record of litigation” in cases before the Court.

Justice Thomas’ decades of material omissions warrant his resignation from the court. This will not happen. No one can make him resign. Nor is Congress likely to use its authority to impeach him. Some in Congress have characterized the coverage of Justice Thomas’ decades of brazen omissions as a partisan attack. This leaves it to Chief Justice John Roberts to do the right thing. A huge swath of Thomas’ misconduct has been on Roberts’ watch.

Roberts surely understands that the high court may be called the Roberts’ Court, but it is no longer his. Recall that although he concurred with the outcome in the June 2022 Dobbs (death of Roe) case, the Chief Justice  wrote his own concurring opinion. Roberts could not abide Justice Alito’s oozing vitriol or what noted California attorney and author William Domnarski calls the ”embarrassingly one-sided” majority opinion in Dobbs. The Chief Justice well knows that the Supreme Court is no longer a body operating under his purported mantra of “institutional integrity.”

The Supreme Court’s post-Brown v. Board of Education (1954) legitimacy is lost. Those of us who teach law talk differently about the role of the Court since Dobbs. We bemoan the loss of what Justice O’Connor (in Planned Parenthood v. Casey (1992)) referred to as the reliance of a generation of women on the court’s Roe decision to make the most personal of life’s decisions.

All who serve in government owe the public a duty of trust. The Chief Justice owes us a specific, heightened duty as the highest of our Article III jurists. If the Chief cannot corral one or more of his “brethren” to do the right thing and take his leave, then Chief Justice Roberts should do so in Thomas’ stead. That action would speak volumes.

Even absent action by the Chief Justice, there are ample grounds for the United States Attorney General to take action. In 1988, Congress amended the bread and butter of federal fraud crimes against government officials, 18 United States Code Section 1346, to clarify that public officials who deprive the citizenry of the right to good government violate federal law. It codifies “the good behavior” of jurists that founding father Alexander Hamilton promised in his famous Federalist Paper No. 78.

Attorney General Garland, Justice Thomas has violated the law under multiple statutes and in multiple ways. At a minimum, present this case (involving Justice Thomas and the first of the recent Supreme Court ethics disclosure omissions) to the grand jury.

My prediction is that the grand jury will indict, a petite jury will convict, and America will be better for it.

Julie A. Werner-Simon is a former federal prosecutor who served the United States in Los Angeles and Alaska. She held positions at the U.S. Department of Justice to include Senior Litigation Counsel of Major Frauds and Deputy Chief of the Organized Crime Strike Force. She has an LLM in constitutional studies and is an adjunct law professor at University of Southern California’s Gould School of Law, at Drexel University’s Kline School of Law, and is also a legal analyst in emerging business at Drexel’s LeBow School of Business.