Category Archives: Civil Rights

A background on the issues in Dobbs vs. Jackson Women’s Health

By tmess2 | Published December 5, 2021

The Supreme Court heard arguments on Wednesday in a case involving Mississippi’s law banning pre-viability abortions after fifteen weeks.  For those not familiar with court terminology, here is a brief primer on the legal terminology that you might hear during coverage of this case.

SUBSTANTIVE DUE PROCESS & THE RIGHT TO PRIVACY

The Bill of Rights contains a rather extensive list of “enumerated” rights.  It also contains a catch-all provision in the Ninth Amendment.  Both the Fifth Amendment and Fourteenth Amendment contain a due process clause which forbids the denial of liberty without due process of law.  Over the years, the courts have had to deal with the limits of the rights contained in the Bill of Rights.  For example, the First Amendment expressly covers two forms of communication — oral (free speech) and written (free press).  But that leaves issues about other forms of expressive conduct (is dancing or painting speech) and whether press was limited to news or does it cover other written publications.  Similarly, there is debated about the due process clause — does it merely require appropriate proceedings (laws being properly passed, cases being properly head) before a person is deprived of their freedom (i.e. goes to prison) or does it also provide substantive protections against the passage of laws that eliminates rights. Continue Reading...

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A Republic if You Can Keep It

By tmess2 | Published July 4, 2021

While many American today are celebrating the anniversary of the issuance of the Declaration of Independence, the United States Supreme Court spent this week giving a green light to Republican attempts to cook the ballot box.  Forty years ago, both parties supported the Voting Rights Act.  Democrats wanted to increase minority representation in government, and Republicans realized that compliance with the Voting Rights Act made it easier for them to pack Democrats into “minority” districts and, thereby, make swing districts lean Republicans.

But drawing district lines is merely one way to reduce minority influence.  And, most importantly, district lines play no role in state-wide race.  To reduce minority influence in state-wide races, you need to keep minorities from voting.  And, while the Voting Rights Act clearly bars the blatant techniques like literacy tests which can be directed at minority voting, the question has remained about techniques which merely make it more difficult for minorities to vote.

Unfortunately, we now have a generation of Republican lawyers who have been hostile to the Voting Rights Act in the majority on the Supreme Court.  And we saw the results this week in a decision out of Arizona — Brnovich vs. Democratic National Committee.   This is not the first time that the issue of the meaning of Section 2 and the test that Congress wants the courts to use in analyzing Section 2 claims has been before the Supreme Court.  The original version of Section 2 merely barred practices which states were using to abridge the right of minority groups to vote.  After the Supreme Court interpreted that provision as only barring practices upon proof of a discriminatory intent, Congress amended Section 2 bar practices which “result” in the abridgment of the right of minorities to vote. Continue Reading...

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Supreme Court — Thursday Blockbusters

By tmess2 | Published June 18, 2021

Normally, at this time of the year, I am posting a look at the big cases to be decided in the last two to three weeks.  I got a little delayed this year by the redistricting posts, and  The Supreme Court beat me to the punch by releasing two of the biggest opinions of the term  — Texas vs. California and Fulton vs. Philadelphia.  

Texas is the latest, and hopefully last, round of the Republicans attempts to use the courts to accomplish what they can’t do in Congress — repeal the Affordable Care Act.  The latest theory was that, by repealing the tax penalty that is part of the individual mandate, Congress effectively repealed the entire Affordable Care Act.

Understanding the issues in the case requires a brief detour into the back history of the case and some basic things that most lawyers learn in law school (but which the dissent kindly forgets).  Before the New Deal, there were a lot of doctrines that a conservative Supreme Court used to block progressive legislation.  And, as will be discussed in the post on the remaining cases, it is important to understand that many in the Federalist Society think that the “Old Court” got it right and oppose the changes that the Supreme Court made in the 1940s to those doctrines.  One of those changes was a much broader definition of the power of the federal government to regulate economic matters under the Commerce Clause.  And when the Affordable Care Act was enacted, most thought that the individual mandate was authorized by the Commerce Clause.  And when the Republicans first challenged the individual mandate, the defense of the mandate relied, in part, on its significance in the overall scheme.  Unfortunately for the future of the Affordable Care Act, when the Supreme Court first analyzed the Affordable Care Act, the Chief Justice sided with the conservatives on the Commerce Clause issue but was willing to find that it was authorized as a tax.  When Republicans managed to repeal the tax in 2017, conservatives saw an opportunity to use that repeal to take a second run at the individual mandate and the Affordable Care Act. Continue Reading...

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The Chauvin Case and What It Might Mean

By tmess2 | Published April 18, 2021

The Derek Chauvin-George Floyd case is set to go to the jury on Monday.  Last year, Floyd’s death sparked a wave of tense protests across the country, and it is likely that there will be a response to the verdict in this case.

Before talking about the potential impact of this decision, it is important to keep several things in mind as this week unfolds.

First, on Monday, the attorneys for both sides will give closing arguments.  The nature of closing arguments is that it is a chance for the attorneys to point out the key evidence in the case and how that evidence supports the requested verdict.  In part, closing argument also points out why the other side’s evidence is not believable.  After the attorneys are done, the court will instruct the jury.  The instructions basically tell the jury what “facts” they have to find in order to return a guilty verdict.  After that, probably some time on Monday afternoon, the jury will begin deliberations. Continue Reading...

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The Supreme Court and Elections — Post 2020 Editions

By tmess2 | Published March 7, 2021

This past argument session (the February Session) saw the last gasps of the 2020 election.  There were three very different issues on the table:  1) the Trump attempts to overturn the election for alleged failure to follow election procedures: 2) the role of state legislatures, state election officials, state courts, and federal courts in setting the rules for election; and 3) the Voting Rights Act.

On the first issue, there are apparently two cases still pending at the U.S. Supreme Court — one a Wisconsin case that will likely be turned down on the March 8 order list and the other will not be considered until later (either the March 19 or March 26 conference).  The second one is a Pennsylvania case involving the issue discussed below.  Assuming that the Wisconsin case is denied, the Supreme Court will have denied Trump’s requests for review in all of the cases involving alleged fraud in the election over the past several weeks.

The second issue is likely to arise again.  Article I, Section 4, Clause 1 gives the primary authority to set the “times, places, and manner” of congressional elections to the “legislature” of each state subject to the ability of Congress to also legislate on these issues.  Similarly, Article II, Section 1, Clause 1 gives the power to direct the “manner” of choosing electors to the “legislature” of each state.  In recent years, there has been a significant amount of litigation involving these clauses.  There are two key legal questions:  1) what is the scope of “manner”; and 2) what is the “legislature.” Continue Reading...

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The Unfinished Civil Rights Agenda — The Commonwealth of Douglass and the State of Puerto Rico

By tmess2 | Published January 18, 2021

Today, we celebrate the legacy of the Reverend Martin Luther King, Jr.  And appropriately, later this month, we will see one of his successors, the Reverend Raphael Warnock sworn in as a United States Senator from Georgia.

But there is a lot of work still to be done.  And while I could probably write a much longer essay on the full civil rights agenda, I am going to limit this post to a very key symbolic part of the agenda.  Voting Rights was a key part of the King agenda.  And, while other parts of the voting rights agenda are important, today — over 4 million Americans are being denied the most basic of rights, voting representation in the House and the Senate.

At the time of the framing, the United States had vast, mostly unsettled territories.  Even in the states, the settlements were mostly limited to the coasts.  However, between 1784 and 1787, the original Congress under the Articles of Confederation adopted a series of ordinances related to the Northwest Territories (what are currently the states of Ohio, Michigan, Indiana, Illinois, and Wisconsin) that governed the settlement of those territories and their ultimate admission to statehood.  Under those ordinances, a territory was eligible for statehood when it had population in excess of sixty thousand people. Continue Reading...

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October Term 2020 — Supreme Court Preview (Part One)

By tmess2 | Published September 19, 2020

Last night, Justice Ruth Bader Ginsburg lost her fight against cancer.  In the upcoming days, much will be written commemorating her long fight for justice.  Much will also be written about the politics of appointing her replacement (and I will almost certainly be putting in my two cents).  But very little pauses the Supreme Court calendar, and the Supreme Court’s term effectively begins next week when the justices will meet (either with appropriate social distancing in a large conference room or via teleconferencing) for the annual “long” conference that reviews all of the applications for review that have piled up over the summer.  The following week — on the First Monday in October — the Supreme Court will commence hearing argument on this term’s cases.

Before starting a look at the cases on the docket, three key things to note.  First, until the Ginsburg vacancy is filled, there will only be eight justices on a case (barring a recusal).  That creates the possibility of a 4-4 tie.  In the case of a 4-4 tie, there are two options.  On the one hand, the Supreme Court can “affirm by an equally divided court.”  Such a decision leaves the lower court ruling in place for the parties involved in the case, but is not a precedent for future cases.  On the other hand, the Supreme Court can set the case for re-argument when there is a full court.  It is really up to the justices to decide which option to take.   Second, who ultimately fills the vacancy will impact the outcome of a small number of cases, but those cases tend to be the most significant.  Third, at least for the October argument session (the Supreme Court term typically consists of seven argument sessions of two weeks each) and probably for most of this term, the Supreme Court will be holding its arguments by teleconference with each justice, taking turns by seniority, getting approximately three minutes per party to ask questions to the attorney.  The audio from these arguments will be livestreamed by several news organizations.

October is likely to be the calm before the storm.  Back last Spring, the Supreme Court had to cancel the March and April argument sessions.  The Supreme Court decided to hold a special May argument session, but only put the most important (and politically sensitive) cases into that argument session.  That left about half of the cases that would have been heard in March or April on the docket.  Those cases are being heard in October.  The biggest case in October is probably the first case up for argument — Carney v. Adams.  This case arises from Delaware.  Delaware requires that judges on the top three courts be balanced with no more than a one-judge majority for either major party with the other judges coming from the other major party.  So, on a seven judge court, there would likely be four Democratic judges and three Republican judges.   The claim presented to the Supreme Court is that conditioning eligibility for a judicial vacancy on an applicant’s partisan affiliation violates the First Amendment rights of potential judicial applicants. Continue Reading...

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Native Americans and the Supreme Court

By tmess2 | Published July 12, 2020

While most of the news coverage of Thursday’s decisions focused on Donald Trump’s financial records, the  other case on Thursday may be just as big.  In that case — McGirt vs. Oklahoma — the Supreme Court had to decide who had the authority to try Native Americans for criminal offenses.  And the story behind that case is 200+ years of the troubled relations between Native Americans and the descendants of the immigrants who gradually took over all of the land that used to belong to the original settlers.

While the story predates the founding of the United States, for lawyers, the story begins in 1787.  At that time — and for most of the next 100 years — there were two United States.  First, there was the nominal United States with borders set by treaties with European nations (which at that time were the only ones that counted to the Framers other than a handful of countries bordering the Mediterranean).  Then there was the real United States defined by the current extent of settlements.  Just over that border were the native tribes. And, the early conflicts involving the colonies revealed that the tribes were potential enemies that could ally with foreign powers or potential allies in those struggles.   Thus the Constitution treated the tribes as being somewhat similar to foreign countries or the individual states with the federal government having exclusive authority over dealings with the tribes.

The rest of the story from that point on is one of treaties made and treaties broken as the various tribes were compelled to surrender parts (or all) of their original lands in exchange for guarantees of title to specific lands.  One of these tragic stories was the Trail of Tears with many of the tribes (the Five Nations) in the southeastern U.S. moved to what is modern day Oklahoma.  In the latter part of the nineteenth century, a series of acts opened up first the rest of Oklahoma and then part of the lands set aside to the native tribes for settlement by non-tribe members.  Around the same time, there were several key developments.  First, there were “allotment acts” which converted much of tribal land into private property owned by tribe members which could then be sold to non-members.  Second, the various territories into which the tribes had been moved became states.  Third, Congress passed laws dealing with crimes committed by natives. Continue Reading...

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Equality Maybe?

By tmess2 | Published June 15, 2020

In a somewhat surprising decision, the United States Supreme Court issued its long awaited decision on Title VII and the LGBTQ community.  There were several unexpected things in the opinion.  Going in the best bet was that the Supreme Court would find that discrimination against transgender individuals fit the requirement that the discrimination was “on the basis of sex,” but that the Supreme Court would find that “on the basis of sex” did not cover sexual orientation.  Second, because of this potential split in the reasoning, there was a good reason to expect two separate opinions, one dealing with the two homosexual employees and one dealing with the transgender employees.  Third, as I noted on Saturday, it looked like Chief Justice Roberts would be writing at least one of the opinions.

Instead, what we got was one opinion covering all three cases that sided with the employees.  Even more unexpected was that the justice holding the stolen Supreme Court seat — Justice Neal Gorsuch — was the author of the opinion.  (Yes, part of me is having thrills of joys at how Trump is going to be able to explain this one to the folks who just voted out a conservative Republican congressman for officiating at a same-sex marriage.)  Of course, the opinion was not unanimous, (6-3 with Chief Justice Roberts joining the majority) and two justices (Justice Alito and Justice Kavanaugh) wrote dissents driving the total length  of the opinions in this case to 172 pdf pages.

Now for the bad news.  First, the dissenters tried to hide their true colors on the issue of equality by painting this case (like the previous decisions in the gay marriage cases) as being about what the law is, not what the law should be.  They even went so far as to express the incredible belief that, but for this decision, we are within years of Congress acting to expand anti-discrimination laws to cover sexual orientation, claiming that the Supreme Court was overstepping its bounds by acting.  (Of course, they failed to identify the reason why the proposed fix has never managed to get past both houses in the same session — Republican Party control of the other house.  See the above-mentioned result this weekend in the nominating convention for Virginia’s Fifth District.) Continue Reading...

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Supreme Court October 2019 Term — COVID 19 Reset

By tmess2 | Published April 18, 2020

As with other institutions of government, COVID 19 has caused a degree of chaos in the court system.  The judicial system requires a degree of interaction between parties and judges, and social distancing requires finding new ways to handle these interactions.

The Supreme Court, like every other judicial institution, has had to find ways to cope.  Of course, the Supreme Court has been a notoriously slow institution to adapt to modern technology.  It was the last federal court to accept electronic filing.  As recently as a few years ago, everything but emergency petitions were filed by mailing (or having somebody personally deliver them) to the Supreme Court.

As this site has discussed over the years, the Supreme Court is what lawyers call a discretionary court.  That means that, with a limited number of exceptions, a party has to request that the Supreme Court take a case (the formal name for the request is a petition for writ of certiorari).  The Supreme Court then decides if it wants to hear the case.  So most of the decisions of the Supreme Court are decisions to not take a case.  There are also two small categories of cases in which the Supreme Court takes and immediately decides the case — both involving a reversal of the lower court.  One category is frequently referred to as “grant, vacate, and remand.”  Those cases typically involve an issue that the Supreme Court decided while the application for review is pending.  In these cases, the Supreme Court grants review, vacates the decision on that issue by the lower court, and remands (sends the case back) for the lower court to reconsider in light of the recently decided Supreme Court case on the issue.  The other is summary reversal.  These cases typically involve the unanimous conclusion that the lower court simply ignored the prior decisions of the Supreme Court.    But every year, the Supreme Court decides that it wants to fully hear approximately 70 cases per year (representing about 1% of the applications that the Supreme Court receives). Continue Reading...

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