Nicholas Stephanopoulos, an attorney with the Washington D.C. law firm of Jenner & Block and an ACS Issue Brief author, describes what may be the “last, best defense” the Supreme Court’s left-leaning bloc, Justices Breyer, Ginsburg, Souter and Stevens, has against the Court’s conservative majority in a recent article for The New Republic:

Unlike the lower federal courts, which must decide all cases that are brought to them, the Supreme Court has enormous control over its docket. Under the so-called Rule of Four, which originated almost a century ago as a way to ensure that enough lower court decisions are reviewed by the Court, cases are heard if just four justices vote to grant a petition of a writ of certiorari (the technical name for an appeal to the Court). The strategy for the four left-leaning justices should consider, then, is voting as a bloc to hear more cases whose outcome is very likely to be “liberal.” (“Liberal” here meaning that the criminal defendant or civil plaintiff wins, the government or corporation loses, or generally that civil liberties are vindicated.)

by Harper Jean Tobin and Simon Lazarus, attorneys with the National Senior Citizens Law Center

At the end of a week of widely noted blockbuster rulings, the Supreme Court on June 27 quietly refused to correct one of its most widely condemned areas of jurisprudence — what the late Third Circuit Chief Judge Edward Becker called the Court’s “unjust and tangled regime” interpreting remedies available under the Employee Retirement Income Security Act (ERISA). ERISA was enacted in 1974 to protect the over 130 million workers and family members covered by employer-sponsored retirement and health benefit plans.

By refusing to grant certiorari in Amschwand v. Spherion, the Court declined to revisit decisions that bar monetary compensation to “make whole” beneficiaries who are illegally denied pension benefits, life insurance proceeds, and medical treatment.

by Kia Franklin, Attorney and Fellow at the Drum Major Institute for Public Policy

As a young African American woman and the first lawyer in my family, I find Justice Thurgood Marshall’s life both professionally and personally inspiring. But today, which would have been Marshall’s 100th birthday, is not just personally significant. It is a day where everyone who is passionate about fairness and equality should pause and reflect on what we must learn from his legacy.

Duke Law School Professor and ACS Member Christopher Schroeder testified on Capitol Hill last week on “Administration Lawyers and Administration Interrogation Rules.” In his written testimony submitted to the House Judiciary Committee, Professor Schroeder explained how the Office of Legal Counsel memoranda authorizing controversial interrogation techniques were produced and “what can be done to help ensure that episodes like this one will not be repeated.”

by Anthony Barkow, Executive Director of the Center on the Administration of Criminal Law at New York University School of Law

A prosecutor’s primary obligation is to do justice. Daniel L. Bibb, a former Manhattan Assistant District Attorney who reinvestigated the 1990 murder of a bouncer outside the Palladium nightclub, thought he was doing just that when he deliberately lost the hearing in which he was told by his supervisors to defend the convictions of Olmedo Hidalgo and David Lemus, two men he believed to be innocent.

by Richard L. Revesz, Dean of New York University School of Law, and Michael A. Livermore, the Executive Director of the Institute for the Study of Regulation at New York University School of Law. Together, they authored Retaking Rationality: How Cost/benefit Analysis Can Better Protect the Environment and Our Health, published by Oxford University Press last month.

As the price of gas continues to rise, politicians keep scrambling to do something – anything. Hopefully someone can stop them from trampling all over the economy, environment, and public health in the process. To successfully do so, public interest advocates will need to pick up a tool they have disregarded: cost/benefit analysis.

ACS hosted its annual Supreme Court Review at the National Press Club on Tuesday, July 1, 2008. Video is available here.

Panelists included:

• Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center
• Thomas C. Goldstein, Partner, Akin Gump Strauss Hauer & Feld, LLP; Lecturer in Law, Supreme Court Litigation Clinic, Harvard Law School and Stanford Law School
• Alan B. Morrison, Special Counsel, Fair Elections Legal Network; Co-Founder and Former Director, Public Citizen Litigation Group
• John Payton, President and Director-Counsel, NAACP Legal Defense Fund
• Deborah Pearlstein, LAPA Visiting Scholar, Woodrow Wilson School of Public and International Affairs, Princeton University
• Andrew J. Pincus, Partner, Mayer Brown LLP; Visiting Lecturer in Law, Yale Law School
• Moderator, Kathleen M. Sullivan, Partner, Quinn Emanuel Urquhart Oliver & Hedges, LLP; Stanley Morrison Professor of Law and former Dean, Stanford Law School

Geoffrey R. Stone, professor of law at the University of Chicago and member of the American Constitution Society Board of Directors, writes in a column for today’s New York Times op-ed page that the next occupant of the White House should address the erosion of civil liberties in America. Stone argues that the nation’s standing as a protector of civil liberties has been “tarnished” by a series of events, including, the suspension of habeas corpus and torture of detainees. One way Stone says the next president could reverse course:

Presidents have a wide range of official advisers. There is a secretary of defense, a secretary of labor, a national security adviser, to name just a few. The next president should create a new executive branch position: a civil liberties adviser. Within the highest councils of every administration there should be a respected public official whose charge it is to defend our civil liberties against all comers.  

Stories

• An examination of the Supreme Court decision in the Second Amendment case D.C. v. Heller by Adam Winkler, professor of law, UCLA School of Law; a critique of the decision by Linda Singer, former Washington, D.C. Attorney General; and additional ACS resources on Heller.
• An analysis of the issues central to the recent Supreme Court punitive damages decision in Exxon Shipping Co. v. Baker by Alexandra B. Klass, associate professor at the University of Minnesota Law School and Member Scholar at the Center for Progressive Reform, and a criticism of the Supreme Court’s decision to reduce punitive damages by Doug Kendall, founder and president of the Constitutional Accountability Center.
• An overview of the main findings of a recent Center for American Progress study examining media bias in economic news coverage by David Madland, Director of the American Worker Project at the Center for American Progress.
• Reflections on the life and work of comedian George Carlin by Ronald Collins, a scholar at the First Amendment Center at the Newseum and co-author of The Trials of Lenny Bruce.
• Coverage of a government report showing that top officials at the Department of Justice passed over qualified attorneys and law students for its career honors and summer intern programs because of their affiliations with progressive legal organizations, including the American Constitution Society, and ACS’s reaction to the report.

Resources

• A newly released ACS Issue Brief on material support laws that examines how federal laws aimed at curtailing terrorism have unintentionally hampered the nation’s efforts to provide humanitarian aid, by ACLU Attorney Ahilan T. Arulanantham.
• Coverage of four Supreme Court decisions handed down on Wednesday.
• A review of the ACS National Convention panel discussion entitled “A Bill of Rights for the 21st Century.”

An en banc panel of the U.S. Court of Appeals for the Eighth Circuit voted 7-4 to overturn a preliminary injunction against South Dakota’s statute requiring “informed consent” prior to an abortion. Among other things, the statute requires physicians to provide a written statement to a patient declaring “the abortion will terminate the life of a whole, separate, unique, living human being.”

A panel discussion on “A Bill of Rights for the 21st Century,” which took place at ACS’s National Convention, included a fascinating progressive policy discussion. Professor Nina Pillard of Georgetown University Law Center, who moderated the discussion, laid out the panel topic — which was inspired by Cass R. Sunstein’s book, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever. In the book, Sunstein noted that President Roosevelt’s 1944 State of the Union Address asked Congress to adopt a “second Bill of Rights” to address issues of domestic economic security, including guarantees of work, healthcare, education, and adequate housing.

Professor Pillard explained that our country is still working to address Roosevelt’s agenda, which seems as timely as ever with a current housing crisis, clamor for universal health care, perpetual education issues, and the need to help American workers compete in a global economy.

by Linda Singer, former Washington, D.C. Attorney General and partner with Zuckerman Spaeder LLP

There are few surprised by the Supreme Court’s decision to overturn the District's 30 year-old ban on handguns and its holding that the Second Amendment guarantees an individual’s right to bear arms. But we should be shocked by the majority’s willingness to distort the text and history of the Second Amendment to ignore the considered judgment of the District's local legislature. 

Rarely have so few words engendered so much debate. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Was the opening clause meant, as we believe, to define the reason for, and context in which, the right to bear arms was to be preserved — that is, for use in a state militia? Justice Scalia, writing for the 5-4 majority, rejects the military tenor of the language in both clauses of the Amendment. But, as Justice Stevens points out for the dissent, history belies that view.

The U.S. Supreme Court in a 5-4 ruling today invalidated the nation’s strictest gun law. In D.C. v. Heller (opinion), the high court said the District of Columbia’s 32-year-old ban on handguns violated the Second Amendment, which holds that “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

Justice Antonin Scalia, writing for the majority, said the Second Amendment does not permit “the absolute prohibition of handguns held and used for self-defense in the home.”

Justice John Paul Stevens wrote a dissent, which was joined by Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter. Stevens said the majority “would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.”

ACS Resources

• Blogpost commentary: Supreme Court Should Have Deferred to D.C. Legislature (June 2008)
  
• Blogpost review: First Thoughts on Heller (June 2008)
• Blogpost preview: The Second Amendment: The Middle Path Leads Over a Cliff (June 2008)
• Panel discussion: The Smoking Gun: Interpreting the Second Amendment (June 2008)
• Blog debate: A Week of Second Amendment Arguments: Professors Winkler and Tushhnet
• Panel discussion: The Second Amendment in the Supreme Court (March 2008)
• Blogpost preview: Praying for a Second Shot on the Second Amendment (March 2008)

Reactions

• The Brady Campaign to Prevent Gun Violence
• District of Columbia
• National Rifle Association

Updated: 6/26/2008 at 4:20 PM

by Adam Winkler, Professor of Law, UCLA School of Law

Today’s decision in D.C. v. Heller (opinion) clearly held that the Second Amendment protects an individual right to bear arms for private purposes, including self-defense. On this basis alone, the decision is worthy of landmark status: the Court has never previously invalidated any law on Second Amendment grounds. A long academic debate about the meaning of the Second Amendment has now been settled, at least for legal purposes.

What Heller Decided – And What It Did Not

The Court, however, left the most important question unanswered: what exactly does the Second Amendment prohibit? The majority refused to adopt a standard of review for judging future disputes. This is unfortunate, because lower federal courts and state courts should now see a tidal wave of litigation challenging gun control laws. All they can know for sure is that the government cannot ban the most popular weapon or adopt restrictions so onerous as to effectively nullify or destroy the right to self-defense in the home.

by Alexandra B. Klass, Associate Professor at the University of Minnesota Law School and Member Scholar at the Center for Progressive Reform. She is the author of Punitive Damages and Valuing Harm, which discusses awards of punitive damages in environmental cases.

In its decision in Exxon Shipping Co. v. Baker, the Supreme Court finally put its mark on the 19-year litigation over the grounding of the Exxon Valdez oil tanker in Prince William Sound, Alaska, and the resulting oil spill. In reducing the punitive damages award against Exxon from $2.5 billion to $500 million, the Court created federal common law on punitive damages in maritime cases and undermined the punitive and deterrent purposes of these kinds of awards. The punitive award will exactly match the compensatory award of $15,000 per plaintiff.

The case framed three specific issues for the Court. First, whether Exxon could be held liable in its corporate capacity for punitive damages based on the actions of its employee, ship’s captain Joseph Hazelwood. Second, whether federal fines imposed on Exxon under the Clean Water Act preempted individual tort claims for punitive damages. Third, whether the $2.5 billion punitive damages award imposed by the lower court was excessive.

By Doug Kendall, founder and president of the Constitutional Accountability Center

At a time when gas prices and oil company profits are at record highs, the U.S. Supreme Court has taken $2 billion from 32,000 Americans who lost their livelihood in the worst oil spill in U.S history… and given it back to Exxon.

The Court’s reduction of punitive damages in Exxon Shipping Co. v. Baker is a nakedly activist decision that pulls its standard for limiting damages out of thin air, demonstrates hostility to the role of Congress, and continues a pattern of ignoring the Framers’ views on the importance of civil juries.  Progressives would do well to treat this decision with resounding scorn, and highlight it as a textbook example of why the Supreme Court matters.

The case arose from the 1989 Exxon Valdez spill, wherein Exxon allowed Joseph Hazelwood, a relapsed alcoholic, drunk at the time, to the helm of a massive oil tanker navigating the treacherous waters of Alaska’s Prince William Sound at night.  The ship ran into a reef, ruptured and spilled 11 million gallons of crude oil, devastating the Sound’s fragile and pristine ecosystem.   Grant Baker is one of 32,000 commercial fishermen and Alaska Natives that sued Exxon for their economic losses and for punitive damages against Exxon. 

More than 6,000 of these victims have died during the course of this litigation, which Exxon has tenaciously prolonged for 16 years with appeal after appeal.   In 2006, the Ninth Circuit Court of Appeals cut what was originally a $5 billion jury verdict down to $2.5 billion.  Today, the Court cut this again for Exxon to a maximum of $500 million.

ACLU Attorney Ahilan T. Arulanantham asserts in an American Constitution Society Issue Brief published today that a myriad of federal laws aimed at curtailing terrorism have also unintentionally hampered the nation’s efforts at providing humanitarian aid.

Arulanantham, an attorney with the ACLU of Southern California, writes in the Issue Brief, “A Hungry Child Knows No Politics,” that a “constellation of statutes” to enhance national security are so broad that “humanitarian organizations and volunteers operating throughout the world in conflict zones and natural disaster sites have scaled back and in some cases, simply abandoned their efforts to aid those in greatest need of help.” Arulanantham also lays out ways for Congress to amend the numerous laws to help bolster global humanitarian efforts without jeopardizing national security.

High Court Decisions Handed Down Today:

Kennedy v. Louisiana

In Kennedy v. Louisiana, the Supreme Court held 5-4 that the Eighth Amendment prohibits the death penalty for the crime of child rape, invalidating a Louisiana law that authorized the death sentence for rape of a child under 12. Justice Anthony Kennedy, writing for the Court, examined state practice and death penalty statistics, and “the Court’s own understand­ing and interpretation of the Eighth Amendment.” He concluded that there was no national consensus in favor of the death penalty, and that statistics show that no one has been executed for a non-homicide crime since 1964. Kennedy further noted that children are particularly open to suggestion while being questioned, thus making the risk of error in child rape cases too great to support the death penalty. Also, the death penalty would not serve the purposes of criminal punishment; executing the attacker would not balance the harm to the victim. Further, applying the death penalty would remove the attacker’s incentive not to kill the child to cover up the crime; in this case, a harsher penalty could make children less safe. Justice Samuel Alito, joined by Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas, dissented, arguing that the majority had overlooked America’s growing pro-death penalty trend, and claiming that previous Supreme Court decisions had stifled national dialogue on the issue. News coverage here.          

Exxon Shipping Co. v. Baker

In Exxon Shipping Co. v. Baker, the Court declared that a $2.5 billion punitive damages award against Exxon for its 1989 oil spill in Alaska was “excessive” and must be reduced. Justice Samuel Alito recused himself from the case, leaving the Court split 4-4 on whether a wrongful act by a ship’s captain could result in punitive damages against the ship-owner, and allowing a previous Ninth Circuit judgment against the owners to stand. Justice David Souter, writing for the Court, ruled that the $2.5 billion damage amount was unreasonably excessive, and should be reduced to a maximum of $507.5 million. He arrived at this figure by reducing punitive damages to a 1:1 ratio with compensatory damages, citing general principles of maritime common law. Although all justices concurred in the judgment, Justices John Paul Stevens, Stephen Breyer and Ruth Bader Ginsburg each also wrote separate dissents in part. Justices Stevens and Ginsburg both argued that the 1:1 ratio had no basis in law, and that Congress, not the Court, should set the maximum amount of punitive damages. Breyer suggested a limited exception to the 1:1 ratio. See ACS coverage here and here.

ACS Criticizes DOJ Use of Politics in Hiring for Career Honors, Intern Programs

Encouraged By Attorney General Mukasey’s Decision To Follow Report’s Recommendations

Washington, D.C. – The executive director of the American Constitution Society today expressed concern over a government report showing that top officials at the Department of Justice passed over qualified attorneys and law students for its career honors and summer intern programs because of their affiliations with progressive legal associations, including the American Constitution Society.

“I’m dismayed at the findings of the Inspector General’s report on hiring practices at the Department of Justice,” said ACS Executive Director Lisa Brown. “It was a grave mistake to turn over to political appointees non-political hiring decisions that historically have been left to career employees. It is entirely appropriate to take ideology and past political affiliations into account when hiring political appointees, but it corrupts the system when it occurs with career positions. The IG’s report speaks for itself regarding the consequences that flowed from this regrettable practice."

The U.S. Justice Department’s inspector general office and the U.S. Office of Professional Responsibility issued a report today revealing that top officials in the Department of Justice used political and ideological considerations in staffing its honors and summer intern programs. The report says that the DOJ passed over “many qualified candidates” for the department’s honors and summer intern programs because of their affiliations with perceived liberal groups, while attorneys and law students affiliated with conservative groups, like the Federalist Society, were given more favorable treatment.

The New York Times reports that the inspector general’s report found that the Justice Department’s practice “constituted misconduct and also violated the department’s policies and civil service law that prohibit discrimination in hiring based on political or ideological affiliations.”

The report includes analysis of data showing that applicants for both the DOJ’s honors program and summer intern program who had “liberal affiliations were” turned down at a “much higher rate." For example, the report's data on the honors program "indicates that candidates with liberal affiliations were deselected at a much higher rate (15 out of 18)  than candidates with conservative affiliations (0 out of 5) or candidates with neutral affiliations (11 out of 48) ...."  

The inspector general and professional responsibility offices studied “membership in the American Constitution Society and Federalist Society to determine if there were any differences in the selections rates for candidates who reported an affiliation with either of these groups.”

The report revealed that all seven applicants who were ACS members were turned away for interviews, while only 2 of the 29 applicants with Federalist Society connections were rejected. 

 Applicants for the DOJ’s Summer Law Intern Program (SLIP) were also affected by affiliations with the American Constitution Society or the Federalist Society. ACS Executive Director Lisa Brown criticized the DOJ's practice, saying it was "a grave mistake to turn over to political appointees non-political hiring decisions that historically have been left to career employees."

The report showed that 12 of 13 applicants who described themselves as members of ACS were not selected for the intern program. None of the applicants connected to the Federalist Society were denied interviews for the intern program.

U.S. Rep. John Conyers Jr., (D-Mich.), who chairs the House Judiciary Committee, said the report confirms that politics was being improperly wielded in the department. “When it comes to the hiring of nonpartisan career attorneys,” Conyers said, “our system of justice should not be corrupted by partisan politics. It appears the politicization at Justice was so pervasive that even interns had to pass a partisan litmus test.” The inspector general’s report is the beginning of a series of investigations growing from the 2007 scandal over the firings of nine United States attorneys, the Times reports.

The Text & History blog reviewed yesterday's Sprint Communications decision, asserting that the Court's "liberals are increasingly finding that constitutional history supports progressive outcomes such as broad access to court, while the Court’s conservatives are more than willing to discount historical arguments when they find them inconvenient."

George Carlin, Emmy-winning comedian and legendary First Amendment frontiersman (as well as the target of FCC v. Pacifica Foundation) died  Sunday at the age of 71.  His work pushed the edges of comfort in the name of free expression. His best-known routine centered on the seven dirty words that you were not allowed to say on broadcast television, but as his career progressed, both his vocabulary and his taste for biting social commentary expanded far beyond what the Supreme Court heard in that 1978 broadcast-censorship case.  The Court decided in favor of the FCC, but Mr. Carlin continued to push the limits.

Ronald Collins, a scholar at the First Amendment Center at the Newseum, is co-author of The Trials of Lenny Bruce, which lead to the posthumous pardon of Mr. Bruce's New York State obscenity conviction.  Mr. Collins interviewed Carlin for that book and a copy of the interview is included on the audio program that accompanies the book.   The following article is cross-posted at the First Amendment Center's web site. 

“I believe you can joke about anything” — it was a window to his mind and his world. It was why George Carlin was who he was — a funny, irreverent, insightful and carefree comic who didn’t let taboos silence him. “I don’t like euphemistic language, words that shade the truth,” he once said. Like his late friend Lenny Bruce, Carlin took great pride in lampooning hypocrites and hypocrisy. Now, his voice is silenced by the Great Censor — death.

In November George Carlin was to receive the Kennedy Center’s prestigious Mark Twain Prize for American Humor. “In his lengthy career as a comedian, writer, and actor,” said Kennedy Center Chairman Stephen A. Schwarzman, “George Carlin has not only made us laugh, but he makes us think.” Indeed.

by David Madland, Director of the American Worker Project at the Center for American Progress and co-author of “The Progressive Generation: How Young Adults Think About the Economy.”

The Center for American Progress has released a new report which finds that “the media ignores ordinary workers and instead covers economic issues from the perspective of business.”

Last week’s front-page Washington Post article on why Americans are “gloomier than the economy” exemplifies this trend. The reporter, Neil Irwin, sets out to prove that the economy is not as bad as most Americans believe – and though he talked to several business representatives -- avoided talking to a single, ordinary worker and thus failed to mention that incomes for most workers have declined since 2001, that health care and retirement benefits have become scarcer and more expensive, and that inequality has risen to unprecedented levels.

It may seem surprising that a story about how Americans perceive the economy didn’t talk to any regular citizens, but, unfortunately this kind of coverage is far too common. Only when the media covers consumer issues, such as credit card debt, do they give equal weight to the perspective of average citizens.

If the media included the perspective of workers in more stories, coverage would significantly improve.

Stories

• An analysis of the legal issues at play in a recent feud between the Associated Press and bloggers who link to AP content, by Christopher Sprigman, associate professor of law, the University of Virginia School of Law.
• An overview of the importance of constitutional text and history in the Boumediene v. Bush decision, by Elizabeth Wydra, Chief Counsel to the Constitutional Accountability Center, and an examination of the potential implications of the Boumediene decision for other prisoners seeking federal habeas relief, by Giovanna Shay, Assistant Professor, Western New England College School of Law. ACSBlog also provided coverage of the Boumediene decision.
• An examination of the responsibilities of judges with regard to state secrets, by Barry Siegel, Director of the Literary Journalism Program, UC Irvine; Pulitzer-Prize winning former national correspondent, Los Angeles Times.
• An update on progress regarding amending the Foreign Intelligence Surveillance Act.

Resources

• Videos from the 2008 ACS National Convention.
• Award recipients of the ACS Richard D. Cudahy Writing Competition, National Student Writing Competition, the Constance Baker Motley National Moot Court Competition, and a number of chapter awards.
• A new ACS Issue Brief, entitled “Choice at the End of Life: Lessons from Oregon,” by Professor Kathryn L. Tucker, and another new Issue Brief: “The Pitfalls of Voter Identification Laws in a Post-Crawford World,” by Carrie Apfel of Jenner & Block.
• Seven recent Supreme Court decisions.
• This week’s congressional activities.
  
  

The Supreme Court handed down three decisions today, clarifying issues of standing, the right to counsel, and federal sentencing.  The court held 5-4 in Sprint Communications v. APCC Services that an assignee of a claim retains standing even if the assignee has contracted to return all proceeds from the lawsuit to an assignor.  In Greenlaw v. United States, in a 6-1-2 decision (Justice Breyer concurring), the court held that an appellate court can not increase a defendant's sentence "acting on its own initiative."  Rothergy v. Gillespie County, an 8-1 decision with Justice Thomas dissenting, affirmed that the 6th Amendment right to counsel attaches at the first adversarial proceeding.

Summaries below.