ACSBlog: The Blog of the American Constitution Society

Howard Bashman wrote at Law.com last week about a federal case challenging, on federal Due Process grounds, a California state appellate court rule prohibiting citation to unpublished judicial opinions.

In the federal suit, the plaintiff alleges harm on two theories: first, that unpublished opinions are less likely than published opinions to attract the interest of higher courts wielding discretion over which cases they hear, and second, that the rule against citing unpublished decisions precluded him from citing favorable unpublished precedents.

The Georgia Supreme Court ruled that a ten-year prison sentence for consensual oral sex between a 17-year-old and 15-year-old constitutes cruel and unusual punishment. The 4-3 decision reversed Genarlow Wilson's conviction for aggravated child molestation following a party where he was videotaped having oral sex with the 15-year-old girl. Wilson has already served 2 years.

The Georgia law that resulted in Wilson's conviction was reclassified subsequent to his conviction as a misdemeanor; the state Supreme Court had held the 2006 law could not be applied retroactively and his felony conviction would stand.

The U.S. Supreme Court will hear argument in Danford v. Minnesota on October 31, which considers whether state Supreme Court decisions must use the U.S. Supreme Court’s standard in applying criminal law decisions retroactively or instead may expand retroactive application of those decisions to a broader class of criminal defendants

The spring issue of the ABA's Human Rights magazine focuses solely on the death penalty.

by Kate Kendell Esq., Executive Director of National Center for Lesbian Rights

I am concerned that the deletion of express protection against discrimination based on gender identity from Employment Non-discrimination Act (ENDA) would result in a law that does not fully protect lesbians, gay men, and bisexual people in addition to leaving transgender people unprotected.  We are joined in this view by all of the other principal LGBT legal organizations, including the ACLU LGBT Project, Gay & Lesbian Advocates & Defenders, Lambda Legal and the Transgender Law Center. Collectively, our organizations have litigated more cases on behalf of lesbian, gay, bisexual, and transgender people in the United States than anyone else, including handling scores of employment discrimination cases over the past three decades.

Many have been working for the day when the federal government makes the workplace discrimination LGBT people face illegal since the first such proposal was introduced in Congress in 1976. But as much as we wish that day had already arrived, it will not do much good if all we get is a bill that would not protect the LGBT community’s basic rights. While the first version of ENDA introduced this year would have protected the LGBT community, the version introduced last week would not.

I see three significant problems with this weakened version of the bill:

1. Protections for transgender people were removed.
2. Definitions of who is protected by the bill leave gaping loopholes so that no one will be fully protected against discrimination.
3. The blanket exemption for religious employers is broader than the exemptions in other civil rights laws and leaves many workers with no legal protections.

“A New York woman filed suit against a West Village restaurant for being thrown out of a women’s room there by a bouncer who, she said, did not care she was really female,” the New York Times reported on Wednesday. The woman, Khadijah Farmer, 28, said that she was at Caliente Cab Company, a restaurant, with her companion and a friend after the June 24 New York gay pride parade.  She went the women’s room, and while she was there, a male bouncer came in:

He began pounding on the stall door saying someone had complained that there was a man inside the women’s bathroom, that I had to leave the bathroom and the restaurant. Inside the stall door, I could see him. That horrified me, and it made me feel extremely uncomfortable. I said to him, ‘I’m a female, and I’m supposed to be in here.’ After I came out of the bathroom stall, I attempted to show him my ID…and he just refused to look at my identification. His exact words were, ‘Your ID is neither here nor there.”

The Transgender Legal Defense and Education Fund has filed the lawsuit in State Supreme Court in Manhattan, accusing the restaurant of discriminating against Ms. Farmer because her appearance did not comply with society’s norms concerning gender identity.

ACS released an issue brief entitled "The Citizen's Advocate: A Perspective on the Historical and Continuing Role of State Attorneys General" by Peggy A. Lautenschlager, former Wisconsin Attorney General, and Daniel P. Bach, former Wisconsin Deputy Attorney General.

The brief explains that state attorneys general who have sometimes been accused of "activism" are in fact exercising their legitimate authority in areas traditionally reserved to the states or where concurrent federal/state enforcement authority exists to serve the citizenry they represent.

The ACS student chapter at Stanford Law School has released its first podcast of the 2007-2008 season, featuring Judge Raymond Fisher of the U.S. Court of Appeals for the Ninth Circuit.  Judge Fisher shares his insights about the controversies involving the Department of Justice and the Supreme Court's reversal this spring of his opinion ruling that the Seattle school district could consider the race of students when making school assignment decisions.

You can listen to the podcast at this link.  To receive further installments in the (approximately bi-weekly) series, either subscribe at i-Tunes here or paste this link into your RSS reader.

Immigration officials have unveiled a new test for immigrants to become citizens, the New York Times reports.

Here is the government document that describes how an immigrant becomes a citizen. There are two major components to the test: a civic test and an English test. For the civics test, an applicant will be asked 10 questions, 6 of which must be answered correctly. The questions are drawn from American government, civics, and American history. Here is a list of the possible questions.

The English test has three components: an oral test, a reading test, and a writing test. The oral test is comprised of the questions normally asked during the naturalization interview. In the reading vocabulary test, applicants will be given three chances to read a sentence in English. A vocabulary list is available here. In the writing test, applicants will have three chances to correctly write a sentence dictated by the adjudications officer. A list of vocabulary words for this test is available here.

This document compares the old and new civics test. Some questions from the new civics test are after the jump.

Maryland's highest court has reversed a lower court ruling that had struck down a ban on same-sex marriage, reported the Washington Post.

Baltimore Judge M. Brooke Murdock had held that "the 1973 law banning same-sex marriage is discriminatory and 'cannot withstand constitutional challenge.'"

In overturning that decision, the four judge majority wrote that absent evidence of discrimination:

Judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.

In declaring that the State's legitimate interests in fostering procreation and encouraging the traditional family structures in which children are born are related reasonably to the means employed by [the law banning same-sex marriage], our opinion should by no means be read to imply that the General Assembly may not grant and recognize for homosexual persons civil unions or the reasons.

The Post reported the "plaintiffs described the protections they do not have because their relationships are not legally recognized: [including] inheritance and adoption rights, decisions about life support, hospital visitation."

In a dissenting opinion, Judge Bell

faulted the majority for not recognizing gay people as a 'suspect class,' a group that warrants special protections from discrimination. Bell dismisses the majority view that gays are politically empowered and should not be viewed as constituting such a class.

Video of a panel hosted by ACS on the difference between marriage and civil unions at its 2007 national convention is available here. A transcript of a discussion at the 2004 national convention on gay marriage, federalism, and amendment the constitution is available here.

Jamie Gorelick, a former deputy attorney general, has an op-ed in today's Washington Post setting forth ten priorities for the next Attorney General. Here are the recommendations in a nutshell:

• Restore credibility and comity with Congress.
• Take care that the laws be faithfully executed.
• Bring the professionals back.
• Depoliticize hiring.
• Restore order to the relationship with the White House.
• Keep politics out of public integrity cases.
• Maintain vigilance against terrorism.
• Fight crime.
• Respect rights.
• Lead with values.

Watch Jamie Gorelick and others discuss the role of the Justice Department from ACS' 2007 national convention. Clips from that discussion are forthcoming.

The GAO just published a report examining how federal agencies review existing regulations, concluding "Opportunities Exist to Improve Effectiveness and Transparency of Retrospective Reviews." The 122-page report's recommendations are after the jump.

Attorney General Gonzales will gain new power over state death penalty cases, according to TPMmuckraker.

The Los Angeles Times provides background:

The rules implement a little-noticed provision in last year's reauthorization of the Patriot Act that gives the attorney general the power to decide whether individual states are providing adequate counsel for defendants in death penalty cases. The authority has been held by federal judges.

Under the rules now being prepared, if a state requested it and Gonzales agreed, prosecutors could use "fast track" procedures that could shave years off the time that a death row inmate has to appeal to the federal courts after conviction in a state court.

The move to shorten the appeals process and effectively speed up executions comes at a time of growing national concern about the fairness of the death penalty, underscored by the use of DNA testing to establish the innocence of more than a dozen death row inmates in recent years.

Alan Berlow wrote an article in the Atlantic in July/August 2003 that examined how Alberto Gonzales, when he was legal counsel to Texas Governor George W. Bush, prepared 57 death penalty memoranda for Governor Bush's review.

Gonzales's summaries were Bush's primary source of information in deciding whether someone would live or die. Each is only three to seven pages long and generally consists of little more than a brief description of the crime, a paragraph or two on the defendant's personal background, and a condensed legal history. Although the summaries rarely make a recommendation for or against execution, many have a clear prosecutorial bias, and all seem to assume that if an appeals court rejected one or another of a defendant's claims, there is no conceivable rationale for the governor to revisit that claim. This assumption ignores one of the most basic reasons for clemency: the fact that the justice system makes mistakes.

A close examination of the Gonzales memoranda suggests that Governor Bush frequently approved executions based on only the most cursory briefings on the issues in dispute. In fact, in these documents Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence.

Civil rights attorney Oliver White Hill, a member of the Broad v. Board of Education legal team, died today at 100.  ACSBlog Guest Blogger Anurima Bhargava recently wrote about Hill's life:

One sees a great deal in 100 years. In 1907, Teddy Roosevelt was President, there were only 45 states in the union. And African Americans were locked into an ironclad system of injustice known as Jim Crow. This violent negation of democracy was secured by the Supreme Court decision in Plessy v. Ferguson and upheld by centuries of brutal custom. Only the most resilient optimist could foresee a day when access to education, public facilities, housing, jobs and transportation were not based on color-coded hierarchy, and the nation could realize a day such as the 53rd anniversary of the landmark Brown v. Board of Education decision.

Fortunately, Oliver Hill was one of those optimists. Hill, who turned 100 years old on May 1, 2007, not only witnessed the demise of that system, but he was one of the legal strategists who helped bring it down. He along with Thurgood Marshall, James Nabrit, Jack Greenberg and others were part of the legal team that brought an end to legalized segregation in 1954.

Time has a way of reducing even the most far-reaching moments of history into thumbnail sketches and in the case of Brown we see simply a case about segregated education. In reality, the Brown decision marked a legal turning point in which the 14th Amendment was returned to its true purpose. Crafted in the aftermath of the Civil War, the Amendment was intended to protect newly emancipated blacks from state laws that sought to virtually re-enslave them.  But a series of Supreme Court decisions culminating in Plessy v. Ferguson chipped away at the Amendment and left blacks nearly defenseless against resurgent racism, particularly in the Deep South. In short, achieving racial democracy in America meant finding a way to revive the spirit of that Amendment.

Inspired by their mentor Charles Hamilton Houston, Oliver Hill - and his classmate and close friend Thurgood Marshall understood this reality. When a group of black students marched out of R.R. Moton High School in Virginia to protest the dilapidated conditions of the building, Hill seized the opportunity to attack segregation. When the parents of eight year-old Linda Brown challenged the policy that sent her to a school miles away from her home simply because she was black, Marshall saw a chance to change the course of history. Joined by school desegregation cases from Delaware, South Carolina and Washington, D.C. that became collectively argued as Brown v. Board of Education, their 1954 Supreme Court victory opened more than the doors of schoolhouses.  It led to cases challenging racism in transportation, voting rights and housing. Brown provided a legal foundation that energized the Civil Rights Movement.

Last weekend, the Fifth Annual ACS National Convention included a breakout session on "Examining 'Backlash' and Attacks on Landmark Decisions from Brown to Roe to Goodridge."  Streaming video
of the discussion is now available in the ACS Multimedia Library.

This session -- which was taped and re-broadcast by C-SPAN and hosted by ACS's Issue Groups on Equality & Liberty and Constitutional Interpretation & Change -- explored the argument, heard lately with increasing frequency, that over-reliance on the courts has undermined progressive goals.

Among the discussions at this weekend's Fifth Annual ACS Convention, the plenary session on "Race and the Constitution" included a compelling exchange about the ongoing significance of race as a dimension of inequality.  Streaming video and downloadable audio of that session -- and all other speeches, plenary panels and breakout sessions at the Convention -- will be made available in the coming weeks.

Writing in The Washington Post, Ohio State University History Professor Kevin Boyle reflects upon the 40th anniversary of the Detroit Race Riots of 1967, noting in The Fire Last Time that "the urban crisis still smolders" in ways visible along both class and racial lines. 

In an op-ed that ran in several regional newspapers this week, Professor Joseph Thai of the University of Oklahoma College of Law notes a series of cases recently decided by the Supreme Court that, he argues, have "made it dramatically more difficult--if not impossible--for ordinary Americans to have their day in court."  He also criticizes "the new court's aggressive efforts to spare businesses the expense of litigation, and the executive the check of unfavorable judicial review," before concluding that "this is not the way it is supposed to be under our Constitution."

Professor Paul Taylor and Attorney Sarah von der Lippe criticize the recent Supreme Court decision striking down voluntary school integration plans in a recent op-ed in the Philadelphia Inquirer.

There are many specific problems with the court's decision, beginning with its cynicism. The court pleads that it is powerless to address economic and geographic isolation, as if Lady Justice is not blindfolded, but handcuffed. It pretends that intent doesn't matter, that considering race to reduce racial isolation is the moral equivalent of standing in the schoolhouse door. And it claims to leave all relevant precedents in place, while actually undermining decades of desegregation law.

They call for increased engagement with the political system.

We must demand that federal, state and local governments provide tools to assist children in racially isolated schools. A good start would be to press Congress for legislation that makes it easier for parents to challenge these schools in court. And we must seek out, implement, and support new strategies for diversifying our schools.

And they call for each person to shoulder a commitment to making a better future.

We must accept the responsibilities that diversity and democracy place on each of us as individuals. This means more than resisting the constrained moral vision and tendentious legal reasoning of the Roberts Court, more than finding ways to integrate our schools. It means working in our everyday lives for interracial understanding, instead of for the red herring of abstract color-blindness. We owe this to our fellow citizens, and to our children, the grandchildren of Brown.

Find the combined Supreme Court decisions in Parents v. Seattle School District and Meredith v. Jefferson County Public Schools here. Go here for more commentary on the wider implications of the decision.

by Tomiko Brown-Nagin^*

The legal analysis in the Supreme Court’s recent decision rejecting race conscious school assignment policies is subject to debate.  One’s conclusion about whether the Equal Protection Clause permits such policies turns on which school of constitutional interpretation one embraces; and that conclusion likely relates to whether one is cognizant of and believes that government should attempt to ameliorate racial stratification and subordination.  But one of the plurality’s analytical moves—its turn to history—should not be open to debate.  

Chief Justice John G. Roberts Jr. invoked the arguments of the NAACP Legal Defense Fund in Brown v. Board of Education in support of the plurality’s decision striking down the Seattle and Louisville’s school plans.   The NAACP argued that racial classifications were categorically unconstitutional, Justice Roberts noted, and the Brown Court unanimously agreed.  Therefore, it was axiomatic, he claimed, that the Seattle and Louisville plans, which also use race, albeit it a much different context, were unconstitutional.

The plurality’s opportunistic historical analysis was strategically simplistic and incomplete. It overlooked the context in which the NAACP litigated Brown, as well as the essential goal of its litigation campaign. NAACP lawyers made their case in a highly constrained legal environment, one in which the U.S. Supreme Court had made crystal clear that it was constitutional to classify public school students by race, provided the schools were equal. The NAACP thus made the equivalent argument — that it was unconstitutional to classify students by race, even if the schools were equal — to advance the opposite position. That was a tactical decision designed to garner a clear statement of legal principle from the Court that the South could not deny or evade by claiming that its segregated schools were somehow in fact equal. 

Speaking at last week's Supreme Court roundup, leading Supreme Court advocates Drew Days and Pam Karlan explain why Parents Involved should not be described as an "affirmative action" case.
 

For the first time in almost 40 years, the Supreme Court has vacated its own denial of cert in a case, and has agreed to hear a series of appeals by Guantanamo Bay detainees challenging their detention.  Lyle Denniston explains the unusual posture of this grant:

Under the Court's Rules and precedents, it would have taken the votes of five Justices to grant rehearing, compared with the requirement of four votes to initially grant an appeal. When the Court denied review in April, only three Justices voted to hear the cases. But two of the other six, Justices John Paul Stevens and Anthony M. Kennedy, indicated they wanted the detainees to first attempt to get legal relief in the D.C. Circuit. Under the Detainee Treatment Act of 2005, the Circuit Court has the authority to provide limited review of military decisions to continue holding Guantanamo prisoners as "enemy combatants."

Friday's order was an indication that those two Justices had decided that the Court needed to change its approach, and so provided the votes needed to grant rehearing. Under the Court's rules, a rehearing is granted only if there has been a change in "intervening circumstances of a substantial or controlling effect" or if counsel can cite "substantial grounds not previously presented."

If Denniston is correct, than the five Justices who agreed to hear this case are also the same five Justices who voted against the Bush Administration in Hamdan v. Rumsfeld.

Speaking at today's Supreme Court review, Stanford Law professor Pam Karlan offered her assessment of the Court's new view of reproductive freedom:

But the rationale the Court has given here would allow them to ban any abortion procedure, because any woman might regret.  Now of course, you might wonder “how does the Court know this?” and Justice Kennedy is quite candid.  The Court knows this because it looked deep inside itself.  At several points, [Justice Kennedy] said “there’s no evidence to support my position, but I don’t need no stinking evidence.”  And so, I think this is a very fundamental change in the Court’s sensibility about abortion, and it’s played out . . .  in a number of other cases where the Court has said “we don’t actually need evidence because we know this to be true.”

Today, ACS hosted it's annual review of the Supreme Court Term.  In their closing remarks, several of the panel of six leading Supreme Court advocates and constitutional experts commented on this Term as the beginning of a new, conservative era in the Court's history.

Frequent Supreme Court litigator Tom Goldstein suggested that this Term began a rightward lurch as significant as the leftward shift of the Warren era:

So I would say that we’re probably going to look back on this term as if it were June 15, 1961 in reverse.  June 15, 1961 was the day that Mapp v. Ohio was decided. It was in effect the birth of the Warren court era, it was decided by a five vote majority.  They Court overruled Wolf vs. Colorado and applied the 4^th amendment to the states.  And it started a whole trend of a series of cases from Reynolds and Sims to Frontiero. . . . all of the major doctrines that law students today think of as if they were written into the Constitution had their birth at the end of the term in 1961. 

Former Solicitor General Walter Dellinger lamented two of the Term's most significant decisions:

I just think the term’ll be marked by two cases that are historically tragic decisions.  I think the court has turned the corner on a jurisprudence that saw government control of women’s reproductive lives as a totalitarian intervention and was at the core of what we think of as liberty. And I think the school decisions were historically misguided because they conflate two uses of race that are so fundamentally different in such a hyper-technical way that belies common sense.  Brown condemned the system of southern racial apartheid, of domination and subordination.  The people of Louisville have worked together to try to come up with a system to keep people in the public school system.  They have refused to give up on the public schools.  They have worked across racial lines.  They know that they’re building upon a system of residential segregation which was created by federal, state and local governments.  And they know that just to choose that would be to perpetuate segregation.  They tried to bring the races together in public schools.  And that’s not the same thing that the court condemned in Brown. 

and Stanford Law Professor Pam Karlan closed the event with these thoughts:

[T]his term we saw the Court announce the first amendment applies to corporations, in the Wisconsin Right to Life case, but not to students, in the Bong Hits 4 Jesus case.  We saw the court announce that we should be deferential to state trial judges in criminal cases but not to democratically-elected local school boards in the schools cases.  So if this is the birth of a new constitutional era, all I say is what an ugly baby.

Jim Ryan, Professor of Law, University of Virginia School of Law

A quick reaction to today’s decision in the Seattle and Louisville cases:

            It is easy to conclude that today’s decision is a defeat for those interested in maintaining or increasing racial integration in public schools.  After all, a majority of the Court struck down two plans – one from Seattle and the other from Louisville – that used race in an attempt to integrate schools.  But this reaction misses the more important and surely more enduring principle contained in today’s opinion:  school districts can use race-conscious measures to achieve integrated schools.

            That principle is contained in Justice Kennedy’s opinion, which is the controlling opinion for the Court.  Justice Kennedy accepts that achieving diversity and overcoming racial isolation in public schools are compelling interests.  He concluded that the use of race by Seattle and Louisville was too crude, involving individual classifications that divided students into white and black, or white and other.  He explicitly endorses, however, a host of other means by which race can be taken into account, including race-conscious drawing of attendance zones, race-conscious siting of schools, and recruiting students in a “targeted fashion.”  He also endorses the consideration of race of students as one of a number of factors when determining student assignment.

Samuel Bagenstos, Professor of Law, Washington University Law School

At the end of his opinion in the school integration cases today, speaking for himself and Justices Scalia, Thomas, and Alito, Chief Justice Roberts reduces the matter to a simple point: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Here, he echoes Professor William Van Alstyne’s retort to Justice Blackmun’s famous statement in Bakke that “[t]o get beyond racism, we must first take account of race.” In response to that statement, Professor Van Alstyne wrote that “one gets beyond racism by getting beyond it now: by a complete, resolute, and credible commitment never to tolerate in one’s own life—or in the life or practices of one's government—the differential treatment of other human beings by race.”

But there is a disconnect here. The Louisville and Seattle school districts did not claim that they needed to engage in race-conscious student assignment to keep themselves from discriminating on the basis of race. As Chief Justice Roberts explained, the Louisville school district had already been declared unitary by a federal court, and there had never been any finding or admission of discrimination by the Seattle school district. The school districts contended instead that (among other things) racially identifiable housing patterns—themselves significantly the result of private discrimination—led to racially identifiable schools. Does a school system help us get beyond racism if it is forced to rely on and entrench the results of private housing segregation in school assignments? Do schools that are de facto segregated, as a result of these patterns, help us “stop discrimination on the basis of race”?

Via SCOTUSBlog:

Concluding its current Term with a historic ruling on race in public policy, the Supreme Court divided 5-4 on Thursday in striking down voluntary integration plans in the public schools of Seattle and Louisville. Chief Justice John G. Roberts, Jr., wrote the majority opinion in the combined cases. Justice Anthony M. Kennedy did not join all of the majority opinion, but joined in the result.

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Roberts wrote. On the two school plans, the majority found that the districts have "failed to provide the necessary support for the proposition that there is no other way than individual racial classifications to avoid racial isolation in their school districts."

The Chief Justice, in his oral announcement of the ruling, insisted that the Court was remaining faithful to Brown v. Board of Education in barring public school districts from assigning students on the basis of race. Answering that, Justice John Paul Stevens said in dissent that there was a "cruel irony" in making that claim, because it involved a rewriting of the history "of one of this Court's most important decisions." Stevens noted that he joined the Court in 1975, and asserted that "no member of the Court" at that time "would have agreed with today's decision."

Justice Kennedy recited from his separate opinion, in which he declined to join the Roberts opinion as it discussed the lack of a compelling interest in achieving racial balance in public school classrooms. The Chief Justice's opinion notes that Seattle was never officially segregated by race, and that Louisville is no longer under a court order to desegregate its once-segregated system. Kennedy said in his concurrence that ending racial isolation may sometimes be a compelling interest in public education, and can be pursued with race as "one component" of the plan to achieve racial diversity.

Opinion here.

UPDATE: Think Progress provides more on this decision:

In his dissent, Justice Stephen Breyer writes:

Finally, what of the hope and promise of Brown? For much of this Nation’s history, the races remained divided. It was not long ago that people of different races drank from separate fountains, rode on separate buses, and studied in separate schools. In this Court’s finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. … It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live. […]

Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it. … The plurality would decline their modest request.

The plurality is wrong to do so. The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.

UPDATE IV: In his opinion for the majority, Chief Justice John Roberts writes, “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” But as Justice John Paul Stevens notes in his separate dissent, there is a “cruel irony” in Roberts’s reliance on Brown:

The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, the Chief Justice rewrites the history of one of this Court’s most important decisions.

The Court is expected to issue decisions today in two closely watched school segregation cases.  These cases, which will decide whether local school boards are permitted to voluntarily integrate public schools, were featured in ACSBlog's mid-term feature on the state of the Court's docket:

School Desegregation

Among the most closely followed of the Court’s pending cases are Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Public Schools, two cases which will decide whether or not school boards are allowed to voluntarily integrate schools on racial lines. ACSBlog guest bloggers Anurima Bhargava & Elise Boddie explain what is at stake in these cases:

At issue are voluntary school integration plans in Louisville and Seattle that apply primarily to students who elect to attend schools outside of their neighborhoods. These cases are not affirmative action cases: they involve student assignment to public schools - where every child is guaranteed a seat - rather than competitive admissions to select institutions. However, they could have a far-reaching impact on the power of school districts to pursue voluntary measures that preserve integration in elementary and secondary schools in order to avoid the harmful educational effects of racial isolation.

The battle to integrate the nation's public schools and to secure a quality education for all students has been at the epicenter of the struggle for racial equality. These cases are significant for the effect they could have on the ability of school districts to fulfill the promise of Brown v. Board of Education, particularly against the backdrop of entrenched residential segregation. Yet there is an ironic twist to these cases that bears discussion, namely the possibility that the Court might prohibit school districts from voluntarily pursuing race-conscious measures to promote integration. The Court could bar school districts from pursuing that which it has previously ordered de jure systems to do. Understood in the context of this country's long, tragic history of racial discrimination and the continuing, widespread persistence of segregation in public schools, a Court ruling to this effect would turn the command of the Equal Protection Clause on its head.

Should the Supreme Court vote to strip local school boards of their power to integrate public schools, recent research shows that this could take away an effective tool in breaking down the achievement gap between minority and white students.  According to a report by University of Wisconsin-Madison professor Douglas Harris, empirical data gathered from No Child Left Behind shows that desegregation remains the most effective way of closing this gap:

The evidence that desegregation improves student outcomes is arguably stronger than evidence on other major systemic reforms recently considered. In the 1990s, school systems tried to decentralize and de-bureaucratize urban schools where a high percentage of minorities attend school. This was followed by a wave of test-based accountability and school choice programs, such as charter schools and vouchers, aimed at the same groupsof students. While there is some evidence that these reforms have some small benefits for minority students, the effects appear much smaller and less consistent than those of desegregation.47 It is worth continuing some of these new policy experiments in order to learn more about their long-term effects, but there is little evidence to date that even the broad application of accountability and school choice would have the same effects as desegregation.

The recent history of the Court’s decision has made it much more difficult for lower courts and school districts to pursue desegregation, however. Lower courts cannot require school districts to desegregate across district boundaries and they are limited in the ways they can require desegregation within districts. There is only one main option left—controlled choice implemented by school districts without court intervention. The decision before the Court is to determine whether this last remaining option will be allowed to stand. In making their ruling, the Supreme Court justices should know that racial integration is as essential to providing equal educational opportunity today as it was when Justice Warren announced the Court’s landmark Brown position in 1954.

UPDATE: Per SCOTUSBlog: "In the second decision of the day, also written by Alito and again dividing the Court 5-4, the Justices ruled that taxpayers do not have standing to sue to challenge the White House program on federal aid to faith-based organizations. The Court did not overrule Flast v. Cohen, also [sic] two Justices in the majority urged it to do so."

Today, the Supreme Court issued its decision in Hein v. Freedom From Religion Foundation.  ACSBlog will provide updates as they are available.  Justice Alito wrote the 5-4 opinion.

Here is ACSBlog's mid-term preview of this case:

The President & the Establishment Clause

In most cases, a person may not challenge an unconstitutional law in court merely because as a taxpayer, they disapprove of their tax dollars being spent in an unconstitutional manner.  In Flast v. Cohen, however, the Supreme Court held that taxpayers do have standing to challenge government spending which allegedly violates the Establishment Clause.  Concurring in Flast, Justice Fortas characterized this decision as necessary to ensure that laws which would otherwise be immunized from challenge be subject to scrutiny under the Constitution:

I believe, we must recognize that our principle of judicial scrutiny of legislative acts which raise important constitutional questions requires that the issue here presented - the separation of state and church - which the Founding Fathers regarded as fundamental to our constitutional system - should be subjected to judicial testing. This is not a question which we, if we are to be faithful to our trust, should consign to limbo, unacknowledged, unresolved, and undecided.

This term, in Hein v. Freedom From Religion Foundation, the Bush Administration is seeking an exception to Flast which would strip taxpayers of standing to challenge many Executive Branch programs that violate the Establishment Clause.  Hein involves a challenge to White House sponsored conferences which allegedly promoted religious organizations in favor of non-religious ones.  According to the Solicitor General, these conferences should be immune to taxpayer challenges because they involve “Executive – not congressional – action,” and thus should be subject to a different rule than if the conferences were funded by a grant specifically authorized by Congress. 

ACSBlog guest blogger Steven Green comments on the implications of this argument:

If this distinction is accepted by the Court, then Executive expenditures that advance religion – or even favor one religion over others – would be potentially immune from challenge if they involved a discretionary funding source rather than a clear “statutory mandate.”  As Judge Posner hypothesized in his opinion, there would be nothing to stop the Secretary of Homeland Security from using unearmarked funds from his budget to build and fund an Islamic mosque that would support U.S. foreign policy on the assumption it would reduce Islamist terrorism in the country.  As Justice Brennan observed in his Valley Forge dissent, it is likely that the Framers were more concerned about government expenditures on behalf of religion and less concerned about the funding mechanism.  Hein, unfortunately, invites the Court to engage in such artificial line-drawing.

Several religious conservative groups are asking the Court to limit Establishment Clause challenges even further.  People for the American Way’s Judith Schaeffer discussed their amicus briefs at a recent ACS panel:

As far reaching as the government’s own position is in attempting to cut back on taxpayer standing in Establishment Clause cases, some of the amici supporting the government have taken even more extreme positions, that would be even more harmful to religious liberty if they were to be adopted by the Supreme Court. . . .
 

First there’s Pat Robertson’s ACLJ, the American Center for Law & Justice, which has come right out in its amicus brief and urged the Supreme Court to overturn Flast v. Cohen, and completely eliminate the right to taxpayers to challenge government expenditures in violation of the Establishment Clause.  The ACLJ is trying to close the courthouse doors to taxpayers who want to seek relief when the government forces them to subsidize religion. . . . 

On behalf of an organization called the Foundation for Moral Law, [former Alabama Chief Justice Roy] Moore has taken the truly extremist position not only that taxpayers should not have standing for Establishment Clause purposes, but that no individual should have.  In his view, the Establishment Clause “does not confer an individual right capable of vindication in the courts. . . .” 

Justice Clarence Thomas himself has indicated that he shares this view.  In his concurrence in the Newdow case—that was the Pledge of Allegiance case—Justice Thomas wrote “the Establishment Clause does not protect any individual right.”  That is simply an astonishing view of the Constitution.

Four distinct positions have thus been advocated in Hein.  The respondent, and Judge Posner’s majority decision for the court below, argue that Flast should remain the law of the land, and should apply equally to the Executive and Legislative Branches.  The Bush Administration believes that a special exception to Flast should be created for Executive appropriations.  Pat Robertson calls for taxpayer standing to be eliminated under the Establishment Clause. And Roy Moore and Justice Thomas argue that the Establishment Clause provides no individual rights whatsoever. 

The Roberts Court will decide which of these options it likes best sometime between now and June 25th.

Speaking on an international panel of judges, Justice Scalia offered an advisory opinion on the constitutionality of Jack Bauer:

Senior judges from North America and Europe were in the midst of a panel discussion about torture and terrorism law, when a Canadian judge's passing remark - "Thankfully, security agencies in all our countries do not subscribe to the mantra 'What would Jack Bauer do?' " - got the legal bulldog in Judge Scalia barking.

The conservative jurist stuck up for Agent Bauer, arguing that fictional or not, federal agents require latitude in times of great crisis. "Jack Bauer saved Los Angeles. ... He saved hundreds of thousands of lives," Judge Scalia said. Then, recalling Season 2, where the agent's rough interrogation tactics saved California from a terrorist nuke, the Supreme Court judge etched a line in the sand.

"Are you going to convict Jack Bauer?" Judge Scalia challenged his fellow judges. "Say that criminal law is against him? 'You have the right to a jury trial?' Is any jury going to convict Jack Bauer? I don't think so.

"So the question is really whether we believe in these absolutes. And ought we believe in these absolutes."

by Evan Wolfson, Executive Director, Freedom to Marry

"What difference does the word make?"

It's a question often asked of same-sex couples seeking to end their exclusion from marriage—as if these couples had just dreamed up the idea that somehow marriage matters. "Why can't you call it something else?" 

As Americans debate the freedom to marry, many are getting to a place of fairness by thinking anew. Others, however, find comfort in way stations, placeholders, and delays. The compulsion to "compromise" the freedom and equality of others is so common, so much a typical feature of civil rights history, that I dedicated an entire chapter of my book, Why Marriage Matters: America, Equality, and Gay People's Right to Marry, to the question, "Why Not Use Another Word?"

Words matter, of course. As the Hartford Courant noted, in a recent editorial urging Connecticut's legislature and high court to move past the 2005 civil union bill to full marriage equality: "Mark Twain famously illustrated the difference between the right word and the almost right word by using as an example the difference between 'lightning' and 'lightning bug'.... What's in a word? For those who want to marry and can't, plenty." 

Marriage, as it happens, is not "just" a word. It is a status, created by the law, the very law America pledges equal justice under, to all.

The reason why any other status, call it what you will—civil union, domestic partnership, or schmarriage—is not adequate or fair is that one of the main protections that comes with marriage is, indeed, that status of marriage. When you say, "We're married," everyone knows who you are in relation to the primary person you're building your life with. That clarity, security, and dignity—intangible though they may be—are precious and irreplaceable.

Every legislator debating a marriage bill or its alternative, every judge hearing a case brought by couples and kids excluded from marriage, every American wrestling with this question of fairness, should ask themselves these questions: Either civil unions and marriages are the same—in which case why do we need two lines at the clerk's office?—or they're not the same, in which case what is the government withholding from these couples and their kids, and why? Would you swap your marriage for a "civil union"? And if you say yes, have you checked with your spouse—and your mom?

Shortly before yesterday's landmark vote in which the Massachusetts legislature endorsed marriage equality by a 151-45 vote margin, Mildred Loving, one of the plaintiffs in the landmark racial marriage equality case Loving v. Virginia, endorsed equal marriage rights for gay and straight couples:

My generation was bitterly divided over something that should have been so clear and right. The majority believed that what the judge said, that it was God's plan to keep people apart, and that government should discriminate against people in love. But I have lived long enough now to see big changes. The older generation's fears and prejudices have given way, and today's young people realize that if someone loves someone they have a right to marry.

Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don't think of Richard and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the "wrong kind of person" for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights.

I am still not a political person, but I am proud that Richard's and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That's what Loving, and loving, are all about.

Writing on Huffington Post, Bernard Cohen and Evan Wolfson compare the nation's experience with Loving to the continuing debate over equal marriage rights for gay couples:

In 1991, three same-sex couples likewise challenged their exclusion from marriage. After a thorough trial in 1996, Judge Kevin Chang found that denying gay people the freedom to marry recognized in Loving as a "basic civil right" serves no legitimate government purpose. The state constitution was subsequently amended to prevent the courts from ordering marriage licenses. Nevertheless, the Baehr case launched a nationwide, indeed international, discussion that led to the 2003 marriage equality by the Massachusetts high court and the first same-sex couples marrying in that state. The Massachusetts court cited Loving and Baehr, as have courts and legislators in the other places that have ended marriage discrimination, including South Africa, Spain, and Canada.

When the U.S. Supreme Court got Loving right, the polls showed 70 percent still opposed to interracial marriage. Imagine the injury to our nation if the Court had flinched, or if the opposition had prevailed with arguments like "let the people vote" or attacks on "activist judges," and had cemented discrimination into our Constitution, as in Hawaii.

The New Jersey legislature recently passed a bill which requires pharmacists to fill all valid prescriptions brought to them, even if they are personally opposed to providing their patients with certain medications.

As Alta Charo explains in a recent ACS Issue Brief, Health Care Provider Refusals to Treat, Prescribe, Refer or Inform: Professionalism and Conscience, conservative health care providers in many states claim the legal right to refuse to dispense birth control, or to deny care to a gay patient.  Should this New Jersey bill be signed into law, that state will join North Carolina, Massachusetts, Delaware, New York, Oregon, Texas and California, which have each put in place some legal framework to protect patients seeking prescriptions.  In contrast, Arkansas, Georgia, Mississippi, and South Dakota have passed laws explicitly allowing pharmacists to refuse to fill prescriptons.

A vote which could potentially end efforts to amend Massachusetts' constitution to overturn that state's landmark marriage equality decision in Goodridge v. Department of Public Health, is scheduled during today's legislative session.  Supporters of marriage equality believe they are within one or two votes of blocking the amendment.

UPDATE: The anti-gay amendment has been defeated by a 45-151 vote.  Under the Massachusetts constitution, opponents of marriage equality needed 50 votes to advance the proposed amendment to the next stage of the process.

Writing in the Chicago Tribune, ACS Board of Directors member and University of Chicago law professor Geoffrey Stone speaks out against Don't Ask, Don't Tell:

I recognize, of course, that not everyone accepts the analogy between discrimination against blacks and discrimination against gays.

But those who fail to see the power of that analogy have blinded themselves to reason, in the same way that Strom Thurmond, Ross Barnett and Orval Faubus blinded themselves (or pretended to be blind) to the moral connections between slavery, racial discrimination and "separate but equal" laws.

Like racial, gender, age, disability, religious and ethnic discrimination, discrimination on the basis of sexual orientation is grounded in ignorance and immorality. It is a deeply irrational policy that has no more place in American law than a rule forbidding Mormons, Italians, Aquarians or those born on Friday the 13th from serving openly in the military. Our nation is dedicated to the proposition that we are all "created equal." It embraces and celebrates the principles that we are all endowed with certain "inalienable rights," that we are all entitled to "equal protection of the laws" and that we are all deserving of equal dignity and respect.

We do not always live up to those principles, but the history of our nation is one of progress toward a more tolerant, more open, more reasoned society. It is a source of righteous pride that we Americans have overcome the prejudices, hatreds, fears and narrow-mindedness of those who came before us.

"Don't ask, don't tell" is not a policy that reflects true American values. Like "separate but equal," it is at best a transitional compromise with bigotry.

Today marks the 40th anniversary of Loving v. Virginia, the landmark Supreme Court decision which ended race discrimination in marriage.  A coalition of civil right organizations are celebrating this decision by running ads featuring famous interracial couples who now enjoy the right to marry due to Loving.

In Goodridge v. Department of Public Health, the landmark Massachusetts decision extending equal marriage rights to gay couples, the court also looked to Loving for guidance:

For decades, indeed centuries, in much of this country (including Massachusetts) no lawful marriage was possible between white and black Americans. That long history availed not when the Supreme Court of California held in 1948 that a legislative prohibition against interracial marriage violated the due process and equality guarantees of the Fourteenth Amendment,, or when, nineteen years later, the United States Supreme Court also held that a statutory bar to interracial marriage violated the Fourteenth Amendment.  As both Perez and Loving make clear, the right to marry means little if it does not include the right to marry the person of one's choice, subject to appropriate government restrictions in the interests of public health, safety, and welfare. In this case, as in Perez and Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance--the institution of marriage--because of a single trait: skin color in Perez and Loving, sexual orientation here. As it did in Perez and Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination.

The House Committee on Education and Labor held a hearing today to consider restoring anti-discrimination protections for workers which were removed by the Supreme Court's recent decision in Ledbetter v. Goodyear Tire.  In testimony before the Committee, the Leadership Conference on Civil Rights' Wade Henderson made the case against Ledbetter:

Goodyear argued that Ms. Ledbetter filed her complaint too late and, by a 5-4 margin, the Supreme Court agreed. Title VII requires employees to file within 180 days of "the alleged unlawful employment practice."  The court calculated the deadline from the day Goodyear first started to pay Ms. Ledbetter differently, rather than – as many courts had previously held -- from the day she received her last discriminatory paycheck.  As a result, Ms. Ledbetter was unable to challenge or receive compensation for any of Goodyear's salary discrimination, even though the discrimination continued unabated for more than 15 years.

In this decision, the Court got it wrong.  A narrow majority, led by Justice Alito, set aside the clear intent of Congress in favor of its own policy preferences.  

The outcome in Ledbetter is fundamentally unfair to victims of pay discrimination.  By immunizing employers from accountability for their discrimination once 180 days have passed from the initial pay decision, the Supreme Court has taken away victims' recourse against continuing discrimination. 

Moreover, the Court's decision in Ledbetter ignores the realities of the workplace.  Employees typically don't know much about what their co-workers earn, or how pay decisions are made, making it difficult to satisfy the Court's new rule. 

As Justice Ginsberg pointedly emphasized in her dissent, pay discrimination is a hidden discrimination that is particularly dangerous due to the silence surrounding salary information in the United States.  It is common practice for many employers to withhold comparative pay information from employees.  One-third of private sector employers have adopted specific rules prohibiting employees from discussing their wages with co-workers, and a significant number of other employers have more informal expectations that employees do not discuss their salaries.  Only one in ten employers has adopted a pay openness policy.  

Workers know immediately when they are fired, refused employment, or denied a promotion or transfer, but norms of secrecy and confidentiality prevent employees from obtaining compensation information.   As Justice Ginsberg's dissent points out, it is not unusual for businesses to decline to publish employee pay levels, or for employees to keep private their own salaries.

The reality is that every time an employee receives a paycheck that is lessened by discrimination, it is an act of discrimination by the employer.  The harm is ongoing; the remedy should be too.

The Fourth Circuit held today that a so-called "enemy combatant" who was taken from his Peoria, IL home and detained without charges in South Carolina, must be freed from military custody.  Lyle Denniston explains the court's holding:

[T]he panel concluded, it would grant al-Marri habeas relief, though not immediate release. It said the government had accused him -- though not with formal charges -- of "grave crimes." The case was returned to a federal judge in South Carolina with instructions to order the Pentagon to release al-Marri from military custody "within a reasonable period of time to be set by the District Court. The Government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in connection with grand jury proceedings, or detain him for a limited time pursuant to the Patriot Act. But military detention of al-Marri must cease."

The court added that detainees "captured and detained within the United States" may not be stripped of their habeas rights by an act of Congress, and thus the Military Commissions Act of 2006 did not strip the court of jurisdiction to hear this case. 

The case is al-Marri v. Wright.  Judge Diana Gribbon Motz wrote the opinion, joined by Judge Roger Gregory.  District Judge Henry Hudson, who was appointed by President George W. Bush, dissented.

UPDATE: Human Rights First details some of the facts:

Ali Saleh Kahlah al-Marri, a Qatari student, was arrested in Peoria, Illinois in December, 2001 and detained in New York City as an alleged material witness in the 9/11 attacks.  For the next 18 months, the case against Mr. Al-Marri was based on financial fraud and false statement charges, to which he plead not guilty. On June 23, 2003, just weeks before Mr. al-Marri's planned trial in the federal court, President Bush declared him an "enemy combatant" in the “war on terror” and ordered him transferred to military custody. The Justice Department asked the court to dismiss all charges against al-Marri, and civilian authorities in Peoria, Illinois, turned him over to the Defense Department for detention at the Naval Consolidated Brig in Charlestown, South Carolina. Mr. Al-Marri was held incommunicado at the Naval Brig for 17 months while being interrogated under allegedly coercive and abusive conditions.  On July 8, 2004, Mr. Al-Marri’s counsel filed a Petition for a Writ of Habeas Corpus, challenging Mr. Al-Marri’s detention as an “enemy combatant.”

UPDATE II: The opinion is available here.

Last September, ACSBlog hosted a debate between federal appellate judge Richard Posner and University of Chicago law professor Geoffrey Stone concerning Judge Posner's book Not a Suicide Pact: The Constitution in a Time of National Emergencies.  In latest issue of the Stanford Law Review, a book review by Georgetown law professor David Cole adds to the discussion of Judge Posner's view of civil liberties in wartime.  Here is the abstract:

THE POVERTY OF POSNER’S PRAGMATISM: Balancing Away Liberty After 9/11 by David Cole
59 Stan. L. Rev. 1735 (2007)

This review of Richard Posner’s Not a Suicide Pact: The Constitution in a Time of National Emergency argues that Posner’s particular brand of pragmatic utilitarianism is particularly ill-suited to constitutional interpretation, as it seems to negate the very idea of precommitment that is so essential to constitutionalism. Instead, Posner treats the Constitution as little more than an invitation to pragmatic policy judgment, and then employs that judgment through speculative cost-benefit balancing to find constitutionally unobjectionable most of what the Bush Administration has done thus far in the “war on terror,” including coercive interrogation, incommunicado detention, warrantless wiretapping, and ethnic profiling. Indeed, Posner’s Constitution would permit the Administration to go much further than it has—among other things, he defends indefinite preventive detention, banning Islamic extremist rhetoric, mass wiretapping of the entire nation, and making it a crime for newspapers to publish classified information. All of this is permissible, Posner argues, because unless the Constitution “bend[s]” in the face of threats to our national security, it “will break.”

Ironically, Posner reaches these results with a constitutional theory more in keeping with Chief Justice Earl Warren than Justice Antonin Scalia. Eschewing popular conservative attacks on “judicial activism,” Posner argues that given the open-ended character of many of the Constitution’s most important terms, it is not objectionable, but inevitable, that constitutional law is judge-made. He dismisses the constitutional theories of textualism and originalism favored by many conservative judges and scholars as canards. But having rejected textualism and originalism, Posner proceeds unwittingly to offer a book-length demonstration of what textualists and originalists most fear from constitutional theorists who emphasize the document’s open-ended and evolving character. In Posner’s approach, the Constitution loses almost any sense of a binding precommitment, and is reduced to a cover for judges to impose their own subjective value judgments on others.

The review first discusses Posner’s analysis of several specific security-liberty issues, in order to illustrate how his method works in concrete scenarios. I then turn to the broader implications his theory has for constitutional law, which in my view are quite dangerous.

By Giovanna Shay ^*

In a brief, per curiam opinion issued June 4^th and joined by seven Justices, the Court reaffirmed a theme that it has sounded in other decisions this term: unless a statute or rule directs otherwise, the regular rules of pleading under the Federal Rules of Civil Procedure apply to prisoner cases too.  Courts are not free to create heightened requirements in order to clear their dockets of inmates’ cases.

In this month’s case, Erickson v. Pardus, a Colorado prisoner alleged that prison officials had terminated his hepatitis C treatment while he was “still in need of treatment,” with “life-threatening consequences.”  The district court dismissed his complaint, and the Tenth Circuit affirmed, saying that his allegations were “conclusory.” 

The Supreme Court granted certiorari and vacated the opinion of the Tenth Circuit.  It explained that the Court of Appeals was wrong to impose heightened pleading standards in a prisoner’s case.  “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’” the Court explained.  “Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests,’” the Court continued.  “The case cannot . . . be dismissed on the ground that petitioner’s allegations of harm were too conclusory to put these matters in issue,” it concluded. 

In most jurisdictions, both prosecutors and defense attorneys may exercise a limited number of "peremptory challenges," which allow them to remove jurors for any reason, except because of racial or other discriminatory reasons forbidden by the Constitution.  According to Scott Lemieux, however, so long as there are peremptory challenges, unconstitutional discrimination may be inevitable:

Liptak mentions the 2005 Miller-El case, which I discussed here. (Remarkably, despite extensive evidence that created an exceptionally strong inference of unconstitutional race-based peremptories, Scalia, Thomas and Rehnquist dissented.) This case illustrates, however, the difficulty of proving racial discrimination no matter how overwhelming the patterns of exclusion are, and despite the Supreme Court's invitation state courts are unlikely to supervise procedures very aggressively. Like Liptak, Thurgood Marshall, and Stephen Breyer, I think it's time to do away with peremptory challenges entirely. They aren't constitutionally mandated, and it's increasingly hard to see how permitting the arbitrary exclusion of jurors would lead to fairer trials.

As ACSBlog recently discussed, an Alliance For Justice report on controversial Fifth Circuit nominee Judge Leslie Southwick argues that peremptory challenges also give some judges the ability to engage in racially discriminatory decisions themselves:

Judge Southwick has participated in numerous cases involving challenges to the racial makeup of a jury under Batson v. Kentucky, in which the United States Supreme Court held that peremptory challenges to jurors cannot be used in a racially discriminatory manner. In 59 of the 70 Batson cases reviewed for this report, the defendants challenged their convictions on the ground that the prosecution had used peremptory challenges to strike African- American jurors. Judge Southwick, voting with a majority of the Court in every case, voted to uphold the convictions in all but five of these cases.

In 10 of these 70 Batson cases, the defendants challenged their convictions on the ground that the prosecution had unfairly prevented them from using their peremptory challenges to exclude white jurors (in one case the juror whom defendant sought to strike was Asian American). Defendants, with Judge Southwick again joining the majority of the Court in every case, lost all ten of these challenges. In the final case, the defendant challenged his conviction on both grounds and lost on both grounds, with Judge Southwick again in the majority.

In other words, Judge Southwick and a majority of the judges on the Court of Appeals routinely rebuffed allegations of prosecutorial racism against African Americans in jury selection while upholding allegations of anti-white discrimination levied against defendants.

Lemieux concludes his commentary on the issue with a quote from Justice Goldberg: "[w]ere it necessary to make an absolute choice between the right of a defendant to have a jury chosen in conformity with the requirements of the Fourteenth Amendment and the right to challenge peremptorily, the Constitution compels a choice of the former."

by Priti Patel.
Priti Patel is an attorney at Human Rights First focusing on U.S. detention practices and the impact of these practices on human rights and civil liberties. This is the second in a series of posts from the military tribunals at Guantanamo Bay, Cuba

Today, two military judges hammered a couple of more nails into the coffin of the military commissions when they dismissed the cases of Omar Khadr and Salim Ahmed Hamdan.  Army Col. Peter Brownback III and Navy Cpt. Keith Allred both held that the prosecution had failed to show that Omar Khadr and Salim Ahmed Hamdan were unlawful enemy combatants and thus the military commissions did not have jurisdiction to try them.   

The primary grounds for the dismissal were the same in both cases.  Basically, the Military Commissions Act of 2006 (MCA) provides the military commissions with jurisdiction over: (1) individuals who meet the MCA’s definition of unlawful enemy combatant (which HRF has criticized for being overbroad and vague) or; (2) over individuals who have been found to be unlawful enemy combatants by a Combatant Status Review Tribunal (CSRT) or by another competent tribunal.  The MCA specifies that military commissions do not have jurisdiction over so-called “lawful enemy combatants.”  And herein lies the problem.  The CSRTs established by the Bush Administration beginning in 2004 only determined whether a person was an enemy combatant, using a different definition than the MCA’s, for the purpose of detention.  The CSRT did not determine if a person was an unlawful enemy combatant – as defined in the MCA – for the purpose of trial by a military commission.    

In both the Hamdan and the Khadr cases, the prosecution attempted to argue (among other things) that this distinction didn’t matter.  According to the prosecution, based on President Bush’s February 7, 2002 memorandum (in which the President found that Taliban and al-Qaeda detainees did not qualify as prisoners of war under the Geneva Conventions), all al-Qaeda and Taliban detainees were unlawful combatants.   In addition, the CSRT proceedings found each of Khadr and Hamdan to be enemy combatants.  Merging these two determinations, the prosecution argued, Khadr and Hamdan were unlawful enemy combatants for the purposes of the MCA.    Both Col. Brownback and Cpt. Allred disagreed.

The Sixth Circuit, in what may be the first lower court decision examining the impact of the Supreme Court's decision in Gonzales v. Carhart on state abortion restrictions, struck down a Michigan law which banned several abortion procedures.

Gonzales upheld a federal ban on an abortion procedure known as "intact dilation and extraction" ("D&X").  As the Sixth Circuit explains in today's opinion, however, it is "not apparent" which other abortion procedures Gonzales strips of constitutional protections.  In resolving this ambiguity, the opinion by Judge Boyce Martin held that a woman's right to abort a non-viable fetus survives Gonzales:

Stenberg applied this standard to a Nebraska law regarding procedures that critics labeled “partial-birth abortion.”  The Court held that the undue burden standard simply barred a state from prohibiting “the more commonly used D&E procedure,” as doing so would place “a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” This portion of Stenberg’s holding is relatively straightforward: if a statute prohibits pre-viability D&E procedures, it is unconstitutional. The other aspect of Stenberg’s holding allowed a general statutory ban on less common abortion procedures (including D&X), presumably as part of a state’s ability to regulate previability abortion methods, but with a caveat: “where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health, Casey requires the statute to include a health exception when the procedure is ‘necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’”  The Stenberg Court ruled that such an exception to Nebraska’s ban on D&X was necessary, in light of the district court’s “highly plausible record-based explanation” of why D&X “obviates health risks in certain circumstances,” in light of “a division of opinion among some medical experts,” and in the absence of controlled medical studies on the issue. Stenberg’s two-part holding, in sum, was that it is an undue burden for a state to prohibit “the more commonly used D&E procedure,” and that “a statute that altogether forbids D&X creates a significant health risk,” and is therefore impermissible.

At the time of the district court’s opinion, and during briefing and argument in this case, this precedential framework governed the limitations that Michigan could constitutionally place on abortion procedures. Since that time, however, the Supreme Court issued its decision in Gonzales v. Carhart, in which it upheld as constitutional the federal Partial-Birth Abortion Ban Act of 2003, codified at 18 U.S.C. § 1531. The first relevant portion of Stenberg’s undue burden analysis — that a statute regulating abortion procedures cannot prohibit the D&E procedure without imposing an unconstitutional undue burden — was left undisturbed in Gonzales.

Also interesting is the court's discussion of what relief is appropriate in this case.  The court struck down Michigan's abortion ban in its entirety, relief similar to that granted by the Supreme Court in Stenberg.  In doing so, the court distinguished Supreme Court precedent which suggested that more limited relief is appropriate in other cases:

by Priti Patel.
Priti Patel is an attorney at Human Rights First focusing on U.S. detention practices and the impact of these practices on human rights and civil liberties. This is the first in a series of posts from the military tribunals at Guantanamo Bay, Cuba

So much has happened since my last trip to Guantanamo Bay over a year ago to monitor the previous incarnation of the military commissions.  Last Wednesday night, we heard the sad news that another Guantanamo detainee, Abdul Rahman Maadha al-Amry, apparently committed suicide.  Al-Amry was a national of Saudi Arabia.  As my colleague Hina Shamsi, who monitored the last military commission proceedings in March, said, "This latest death was a preventable tragedy.  The administration has had every indication over more than five years that the prolonged and arbitrary detention of prisoners is a moral, diplomatic, legal and policy failure.”

As I head back to Guantanamo to observe the arraignments of Omar Khadr and Salim Ahmed Hamdan before the newly constructed military commissions, I am struck by the depressing reality that life for the detainees remains unchanged since my previous trip.  Detainees (through their lawyers) are still struggling for independent judicial review of the legal and factual basis of their detention.  Harsh detention conditions at Guantanamo continue.  Most detainees are left with little hope that they will ever be released or charged and prosecuted.

Writing in the American Prospect, Simon Lazarus and Rochelle Bobroff discuss the impact of last Tuesday's decision in Ledbetter v. Goodyear Tire:

The Court's interpretation effectively neuters Title VII as a safeguard against discriminatory pay practices. In the real world, many employees, Ledbetter included, only learn what their colleagues earn by happenstance over long periods of time. Typically, most employees would try other, less confrontational options before resorting to litigation and risking the effective end of their career with that employer. Indeed, sensible public policy considerations should encourage suc