Beyond refusing to reconsider its decision from this summer over the use of the death penalty in child rape cases, the high court yesterday granted cert. in 10 cases out of the approximately 2,000 that had accumulated over the summer recess, including two cases addressing environmental cleanup expenses under the 1980 Superfund law, and a case involving the proposed sale of nearly a third of the land in Hawaii, which was challenged by Native Hawaiians.  The court also granted cert. in several criminal cases, including the right to a speedy trial for an indigent defendant, a case involving prosecutorial violations of plea bargains, issues of proof under RICO, and several questions relating to self incrimination and police questioning.  More on those cases is available on Scotusblog.

by William S. Sessions, partner Holland & Knight, former FBI director and former Chief Judge, United States District Court for the Western District of Texas

The release of 130 individuals from death row has made clear that the administration of the death penalty is not infallible. When there are important questions about whether someone facing execution is actually guilty, those questions must be examined and resolved before the ultimate punishment is meted out. On Monday, October 6, the U.S. Supreme Court will likely announce its answer to such a question, and its decision literally means life or death for Troy Anthony Davis.

Mr. Davis has been on death row in Georgia for more than 17 years for the murder of a police officer, and related violent crimes. I was the director of the FBI under Presidents Reagan, Bush, and Clinton, and I believe that there is no more serious violent crime than the murder of an off-duty police officer who was putting his life on the line to protect innocent bystanders.

That being said, we must be convinced that the right person has been convicted. Serious questions have been raised about Mr. Davis’s guilt. The murder weapon was never found and other important physical evidence was missing. Key witnesses made inconsistent statements, and seven out of the nine non-police witnesses have now recanted or changed their original testimony, some stating that they had been pressured by the police to implicate Mr. Davis. One of the two witnesses who has not recanted his testimony has now been implicated as the real murderer by two witnesses at trial and four new witnesses. In addition, concerns have been raised about the conduct of the police and prosecutors.

by Harper Jean Tobin, staff attorney, National Senior Citizen Law Center

The 9th U.S. Circuit Court of Appeals Ninth Circuit Court of Appeals rejected yesterday a legal challenge to San Francisco’s universal health care ordinance. Employer groups, backed by the Department of Labor, argued that the local program was preempted by the Employee Retirement Income Security Act of 1974 (ERISA). The Ninth Circuit’s decision to uphold the plan, called Healthy San Francisco, bodes well for similar state and local reforms in Massachusetts, Vermont and elsewhere.

State and local governments have been hard at work in recent years devising innovative solutions to the lack of insurance for millions, the rising costs of health care and inaction by Congress. Several states and major cities have adopted some version of a “pay-or-play” system, where employers are required to either spend on employee health care or make payments to the government. But these plans have run into a major stumbling block in the form of ERISA, which the Supreme Court has interpreted broadly to preempt many state and local laws. Having succeeded in using ERISA to limit individual employees’ remedies for denials of coverage, businesses asserted that ERISA also preempted pay-or-play laws. Last year those arguments helped defeat similar laws in Maryland and New York.

San Francisco’s law requires that businesses with more than twenty workers make minimum expenditures for employee health care, either in the form of benefits directly to employees, or through payments to the city’s own health care program. If employers choose to pay the city, then their employees can enroll in the city plan or in city-sponsored medical reimbursement accounts, depending on their incomes. The employer need not provide its own benefits, or alter a plan it already has. Restaurant owners in San Francisco and the Bush administration challenged San Francisco’s law in federal court arguing that ERISA trumped it. On the day after Christmas, federal district judge Jeffrey S. White (a G.W. Bush appointee) enjoined the law, but the Ninth Circuit stayed the injunction and ruled yesterday that the city had the authority to require employers support the health care plan.

The U.S. Supreme Court will not reconsider its decision in Kennedy v. Louisiana, denying the use of the death penalty in child rape cases, The Washington Post reports. Louisiana officials and the U.S. Department of Justice had asked the high court to reconsider its June 25 decision, arguing that the majority opinion should have taken into consideration military law that allows the imposition of the death penalty in child rape cases. The Post notes that the five justices in the Kennedy majority agreed today not to rehear the case. Justice Anthony Kennedy wrote that the military law “does not draw into question our conclusions that there is a consensus against the death penalty for the crime in the civilian context and that the penalty is unconstitutional.” Chief Justice John G. Roberts Jr., and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., argued for a rehearing of the case.

California Gov. Arnold Schwarzenegger signed a measure into law on Sept. 30 requiring physicians who diagnose people with terminal illnesses to promptly inform them about the right to refuse or be withdrawn from life-sustaining treatment. The bill, AB 2747, will also require health care providers who do not want to comply with a patient’s end-of-life decisions to transfer the patient to another provider. Compassion & Choices, a nonprofit advocacy group that pushed for the measures’ passage, lauded it as the nation’s first law “to provide terminally ill patients with a full disclosure of, and counseling about, all available legal and ethical end-of-life care options.” Earlier this year, ACS released an Issue Brief by Kathryn L. Tucker, legal affairs director of Compassion & Choices, examining Oregon’s experience under that state’s law allowing terminally ill patients access to legal assistance in dying. That brief, “Choice at the End of Life: Lessons from Oregon,” is available here.

by Alexa Kolbi-Molinas, Staff Attorney, ACLU Reproductive Freedom Project.

Last Thursday, the 30-day public comment period closed on a controversial rule proposed by the Department of Health and Human Services (HHS) that would expand the ability of institutional and individual health care providers to refuse to provide services to which they have a religious or moral objection. If implemented, the rule could severely undermine access to reproductive health care, as well as other health care services for traditionally marginalized communities. 

The proposed rule has generated a tremendous amount of controversy since it was released in late August – an astounding 200,000 comments were submitted to the Department during the comment period demanding that it be withdrawn. With good reason, too: not only is the rule unnecessary, but it also seriously jeopardizes patients’ access to essential health care services and vastly exceeds the Department’s authority under existing law. As the ACLU pointed out in its own comments, for more than four decades, Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of religious belief, has required employers to attempt to accommodate current and prospective employees’ religious and moral objections to the provision of any health care service.  

Title VII has long been understood to protect individual religious belief so long as patients’ needs are also met in a safe and timely fashion. Alarmingly – but perhaps not surprisingly for an administration that has routinely put politics and ideology before science and patient health – the proposed rule threatens to take patients’ needs out of this equation.

Some state education officials in Texas are promoting a controversial Bible curriculum to public school officials and boards across the state. The Dallas Morning News reports that four State Board of Education officials sent letters to Texas superintendents and school boards recommending course materials from the National Council on Bible Curriculum in Public Schools, a North Carolina-based religious group.

The group’s curriculum, which uses the Bible as its primary text, has been the focus of federal lawsuits in Texas and Florida. The Ector County School District in Texas was sued last year after adopting a policy using the group’s curriculum in Bible courses. The lawsuit was settled in spring after the school district agreed to stop using the National Council’s curriculum. The Nation Council claims its curriculum is used in hundreds of public school districts nationwide, but does not name the school districts. Its Web site states that the “Bible was the foundation and blueprint for our Constitution, Declaration of Independence, our educational system, and our entire history until the last 20 to 30 years.”

The Texas Freedom Network, a progressive advocacy group, criticized the state education officials’ actions as “recklessly encouraging school districts to adopt a curriculum that will put those districts and their taxpayers in legal jeopardy and threaten the religious freedom of families to pass on their own faith beliefs to their children.”

Anthony S. Barkow is a volunteer consultant for Human Rights First. He is Executive Director of the Center on the Administration of Criminal Law at New York University School of Law (www.prosecutioncenter.org). Barkow is observing and analyzing the American military proceedings for Human Rights First. This is the fourth guest blog post from Barkow. His other reports are here, here and here.

Guantánamo Bay: Every courthouse in which I’ve observed the practice of law has them: court watchers.  They are a group of people--virtually always elderly--who spend their days going from courtroom to courtroom watching events.  Then they meet every day for lunch and discuss the day’s proceedings.  They are symbolic of the openness of United States courts:  anyone can enter, watch, and follow the court proceedings with minimal effort.

But the military commission hearings at Guantánamo Bay are different.  I flew here on a 12-seat turbo-prop commercial airplane with no toilet.  The plane wasn’t allowed to fly over mainland Cuba so it took 3 ½ hours to get here from Fort Lauderdale; a direct flight would’ve taken about an hour.  I sleep in a tent on an abandoned airstrip.  The tent is kept at what feels like sub-zero temperatures to discourage cat-sized “banana rats” and other unnamed critters from invading, while at the same time being so humid inside that it feels like you are sleeping in a wet ice box.  I cannot go anywhere, at any time, without an escort, and I am not supposed to go anywhere, at any time, without going with the entire group of human rights observers who are here.  I do not question why the military base has decided this is necessary for the base’s security, but of course one who makes that point presupposes that these proceedings should be held on a military base.

The public access problems here run much deeper than the small discomforts of life on the base and the inability of the “court watchers” easily to peruse the court proceedings.  Despite the military’s claims that these proceedings are open, public access here pales in comparison to courts back home.  Criminal proceedings in federal court are presumptively open.  Anyone can enter the courtroom at virtually any time and stay as short or as long as one wishes.  Transcripts are publicly available and, in significant cases, are typically available at the end of each court day.  Written pleadings and court orders are publicly-available, and docket sheets are instantly updated online.  Thus, the public, victims and their families, scholars, the entire media, and others can follow federal court proceedings as closely as they wish.

by Rob Boston, assistant director of communications for American United for Separation of Church and State and assistant editor of the organization’s monthly magazine, Church & State.

The Alliance Defense Fund, a Religious Right legal group based in Arizona, persuaded 33 pastors nationwide to defy federal tax law last Sunday and endorse candidates from the pulpit. Today, Americans United for Separation of Church and State asked the Internal Revenue Service to investigate six of those churches whose actions were most egregious.

The Religious Right seems determined to provoke a showdown over the issue of pulpit politicking. I’m not sure why. Religious Right groups have already lost this case once before. In 1992, Americans United reported a church in Binghamton, N.Y., that in late October placed a full-page newspaper ad advising people not to vote for Bill Clinton.

The Church at Pierce Creek lost it tax-exempt status, and, aided by attorneys with TV preacher Pat Robertson, sued to get it back. The church lost. The U.S. Court of Appeals for the District of Columbia ruled unanimously that the IRS acted within the scope of its authority. The court rejected arguments that the IRS had violated the church’s free-speech or freedom of religion rights, noting that tax exemption is a benefit that comes with conditions. One of those conditions is no politicking. In light of the precedent in the Branch Ministries v. Rossotti case, another test case seems foolhardy.

Furthermore, Americans in record numbers are telling pollsters that they do not support pulpit politicking. Last week, the Baptist Press released a new LifeWay Research poll that found that 75 percent of Americans do not believe “it is appropriate for churches to publicly endorse candidates for public office.” In addition, 85 percent think it is not “appropriate for churches to use their resources to campaign for candidates for public office.” Eighty-seven percent do not “believe it is appropriate for pastors to publicly endorse candidates for public office during a church service.” A majority supports revoking the tax-exempt status of churches that violate the law.

Number like this should tell us something: Americans attend houses of worship for spiritual reasons, not political ones. They want to get closer to God and enjoy fellowship among a community of believers. Americans don’t go to church to get a list of candidate endorsements. Churches, to put it simply, are not political action committees and should not act like them.

Most clergy in America understand this. They have no interest in politicizing their pulpits or driving wedges into their congregations. The few who can’t grasp this concept and insist on signing up with reckless stunts promoted by the ADF can look forward to some interesting visits from the IRS.

Following the recommendation of today’s extensive report from the Justice Department’s Office of the Inspector General (OIG) and Office of Professional Responsibility (OPR), Attorney General Michael Mukasey named a federal prosecutor to investigate the removal of nine U.S. Attorneys in 2006. The report, more than 300 pages, revealed a “blistering critique of the political motivations that lead to the firings” of the attorneys, The New York Times reported. 

In announcing the special prosecutor, Mukasey in a statement issued this morning notes that the OIG/OPR findings “have made the judgment that the circumstances” warrant a special prosecutor to continue investigating the firings. “This Report describes a disappointing episode in the history of the Department,” Mukasey said in his statement. “What should not be lost in this are the efforts of the dedicated and hard-working employees of the Justice Department who are focused on what they do best, which is protecting our country and faithfully enforcing our laws.” Mukasey named Nora Dannehy, a career federal prosecutor, to the job.   

Today’s report concludes that, “we believe that the process used to remove the nine U.S. Attorneys in 2006 was fundamentally flawed. While the Presidential appointees can be removed for any reason or for no reason, as long as it is not an illegal or improper reason, Department officials publicly justified the removals as the result of an evaluation that sought to replace underperforming U.S. Attorneys. In fact, we determined that the process implemented largely by Kyle Sampson, Chief of Staff to the Attorney General, was unsystematic and arbitrary, with little oversight by the Attorney General, the Deputy Attorney General, or any other senior Department official.”

by Rena Steinzor, a Center for Progressive Reform (CPR) member scholar, Wendy Wagner, a CPR member scholar, and Matthew Shudtz, a policy analyst at CPR.

A new Center for Progressive Reform white paper proposes nine legal reforms to help eliminate political meddling in regulatory science. Many environmental, health and safety statutes depend on scientific research to inform federal policymakers tasked with their implementation. The Clean Air Act, Clean Water Act, Consumer Product Safety Act, and Food, Drug and Cosmetic Act are examples. Federal agency staff has the difficult responsibility of collecting and analyzing all of the scientific information relevant to their work. All subsequent actions must be supported by the best available science. But good science isn’t always available, and the available science isn’t always good.

The Bush administration’s efforts to deny global warming and then suppress scientific research to the contrary have been the subject of much media attention. But the problem runs much deeper, particularly where regulation is concerned. Private sponsors recruit prominent scientists to sign ghost written articles based on skewed research or try to censor research results that they do not like. Researchers face spurious charges of scientific misconduct. Government peer review panels lack balance or include members with blatant financial conflicts of interest. Special interests seeking to influence the policymaking debate submit studies without the underlying data critical to evaluating the studies’ validity, or claims that information crucial to understanding a chemical’s toxicity is a trade secret. 

Even when companies suspect that exposures to their products may cause harm, they fail to file “adverse effects reports” so the problems can be investigated. These assaults on regulatory science have already cost us dearly, delaying the battle to control climate change and prolonging government efforts to protect people and the environment.

A Colorado county official acknowledged encouraging a college official to wrongly inform out-of-state students that they could not vote in the state if their parents claimed them as a dependent on their tax returns.

Robert Balink, a delegate to the Republican National Convention and El Paso County Clerk, admitted that he had misinterpreted state law and “mistakenly published information that was incorrect,” after officials with the Colorado Democratic Party accused him of trying to suppress the college vote.

Martha Tierney, with the state Democratic Party, told McClatchy Newspapers that she had obtained e-mails about Balink’s office sending a flier to the Colorado College president’s office for circulation to students. The flier stated that, “What this means is that if your parents still claim you on their income tax returns, and they file that return in a state other than Colorado, you are not eligible to register to vote or vote in Colorado.”

The incident, McClatchy notes, follows similar ones in Virginia and South Carolina that have garnered attention. For example, on the campus of Virginia Tech in Blacksburg, Va., a county official circulated memos suggesting that students from outside the state who register to vote in Virginia could endanger their scholarships, health insurance and parents’ ability to claim them as independents on their tax returns.

During an ACS panel discussion of a new article on the declining success of employment discrimination cases in the federal courts, Wade Henderson, head of the Leadership Conference on Civil Rights, said the current administration has advanced an ideological agenda with its federal court picks and that the forthcoming election will greatly impact the bench’s make-up for decades to come.

“The Leadership Conference is a nonpartisan, nonprofit organization and I represent the Leadership Conference,” Henderson said. “ACS is a nonpartisan, nonprofit organization and we are not here to advocate on behalf of any candidate in any election. But having said that, elections matter and this presidential election, among other things, will determine the future of the federal courts perhaps for a generation to come.”

Watch video of Henderson’s entire comments by clicking the picture.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) displays a copy of an article from a forthcoming issue of the Harvard Law & Policy Review, the official journal of ACS. The occassion was a hearing this week highlighting how the federal courts treat employment discrimination cases. Cyrus Mehri, founding partner of the Washington, D.C. law firm Mehri & Skalet, was among the panelists testifying before the committee. Leahy asked one of panelists to elaborate on the article's findings that employment discrimination cases increasingly fare poorly in the federal courts. The article, by Cornell Law School Dean Stewart J. Schwab and Cornell Law Professor Kevin Clermont, was also the center of a recent panel discussion hosted by ACS.  

by Anthony S. Barkow, a volunteer consultant for Human Rights First. He is Executive Director of the Center on the Administration of Criminal Law at New York University School of Law (www.prosecutioncenter.org). Barkow is observing and analyzing the American military proceeding for Human Rights First. This is the third guest blog post from Barkow. His other reports from the military proceedings are here and here.

Guantánamo Bay, September 24, 2008: It is a fundamental precept of American justice that an accused defendant must understand the proceedings against him. It is similarly fundamental that, when a defendant speaks during those proceedings, the court and jury must accurately hear and understand, and the record must accurately capture, what the defendant says. And it is fundamental that a defendant must be able to understand the proceedings so that he may assist in his defense. Each of these principles is being violated in the military commission proceedings at Guantánamo Bay.

In criminal proceedings in federal district court, all interpreters must be qualified to interpret court proceedings contemporaneously. Federal court interpreters interpret facts and complicated legal concepts in real time. And, in my experience, federal court interpreters rarely have difficulty keeping up with the normal pace of proceedings or doing their jobs. When they do, the proceedings come to a halt, and competent interpreters are brought in. But this week in the military commission proceedings against the five men facing capital charges for allegedly participating and planning the Sept. 11, 2001 attacks, it hasn’t worked that way.

Over the last two days, on too many occasions to count, interpreters could not keep up with events in court, or incorrectly interpreted what was being said. At least some of these interpreters -- who are shielded from public view and whose identities and credentials are kept secret -- are simply not up to their tasks. 

Congress is nearing passage of a measure to require health insurance companies to expand coverage for mental illnesses. The U.S. House of Representatives has already passed a bill requiring stronger health care coverage of mental illnesses and the Senate on Tuesday included the measure in a larger legislation package, reports The New York Times. An agreement on the health care coverage measure must be met between the two chambers, which The Washington Post reports might not get done before the approaching congressional recess.  The legislation, which both newspapers say has support across party lines and of the White House, would require that expenses for treatment for mental health  be no greater than treatment for physical ailments. One of the measure’s backers, Sen. Christopher Dodd (D-Conn.) said it represented a “victory for the millions of Americans who live with mental illness ….”

by Anthony S. Barkow, executive director of the Center on the Administration of Criminal Law at New York University School of Law (www.prosecutioncenter.org). Barkow is observing and analyzing the American military proceedings for Human Rights First.  

Guantánamo Bay, September 23, 2008: Military Judge Marine Col. Ralph Kohlmann held a pretrial hearing Monday for the five defendants facing capital charges in connection with the Sept. 11, 2001 attacks. One of the defendants, Ramzi bin al Shibh, refused to leave his cell to attend the hearing. By the end of the day—largely occupied by legal wrangling over how to make bin al Shibh appear—Judge Kohlmann ordered bin al Shibh to appear in court the following day, by force if necessary.

The hearing revealed an odd internal split among government lawyers. The prosecution’s position was that bin al Shibh should be forced to appear. But the detention facility commander (and JTF Gitmo lawyers) apparently reasoned that bin al Shibh could not be forced to attend absent a court order, thus shifting to the court the obligation–and the blame and accountability–for any “forcible extraction” of bin al Shibh from his cell. The defense, seeking to avoid a “forcible extraction,” asked the judge to adjourn all proceedings against bin al Shibh pending a competency evaluation. They assert he has severe mental health issues, which have been exacerbated by the use of psychotropic drugs and by his extreme confinement conditions, and which they further imply may stem partly from the torture bin al Shibh alleges he endured. 

In a bizarre turn of events reflecting the ad hoc nature of the military commission system, bin al Shibh’s four co-defendants were enlisted in the court’s effort to secure his presence. The court approved a request by the lead defendant, Khalid Sheikh Mohammed to write a note to bin al Shibh. Ultimately, all four of bin al Shibh’s co-defendants wrote separate notes, each signed by all the others. The notes urged bin al Shibh to come to court, pointed out that his absence had slowed the proceedings (in fact, the judge suggested that if bin al Shibh persisted in refusing to participate, he would consider severing his case from the others’), told him that all five defendants should remain together in one case, and advised him to come to court voluntarily in order to avoid forcible removal from his cell.

Congress should take a “simple step” toward advancing equality by “extending health benefits to same-sex partners of federal employees,” says a new Center for American Progress report. The report’s authors note that by passing a law to extend health care coverage to same-sex domestic partners, the federal government would fall in line with more than a dozen states and thousands of private businesses that already provide similar coverage. Winnie Stachelberg, Josh Rosenthal and Claire Stein-Ross write:

The federal government will be able to look for guidance to the 15 states and the District of Columbia who already provide same-sex domestic partner benefits for their employees as it enters the process of considering the Domestic Partner Benefits and Obligations Act. States began offering these benefits in different ways – from union negotiation to legislation to judicial decisions – but all have seen lower rates of enrollment and lower costs than expected. Their experiences show that the federal government has a lot gain from offering same-sex domestic partner benefits without serious costs.

 

The report is available here.

by Anthony S. Barkow, a volunteer consultant for Human Rights First. He is Executive Director of the Center on the Administration of Criminal Law at New York University School of Law (www.prosecutioncenter.org).

Guantánamo Bay, September 22, 2008: I arrived in Guantánamo Bay on Saturday night, just as The Washington Post reported that Air Force Brigadier General Thomas W. Hartmann was being removed from his position as the Legal Advisor to the Convening Authority for the military commission proceedings. 

The move followed decisions by military judges in three separate cases barring Gen. Hartmann from further participation in various aspects of the commission proceedings. The judges found Gen. Hartmann had demonstrated a lack of objectivity and a pro-prosecution bias.

Cases in Guantánamo are prosecuted by the Office of the Chief Prosecutor (“OCP”). The Convening Authority (“CA”) is a position that exists generally in military court martial proceedings, but that was not included when Congress established the Guantánamo military commission structure. Instead, the Secretary of Defense created by regulation the CA position to represent the Secretary in the military commission proceedings.

Gen. Hartmann was the CA’s chief legal adviser. The CA and her staff are required to exercise a neutral role in the commissions, overseeing but not dictating the work of prosecutors and allocating resources – for example, appointing prosecutors and defense lawyers and allocating funds to hire experts -- to both the prosecution and defense. 

The U.S. Senate Judiciary Committee today heard extensive tesitmony on the increasing struggles employees face in acheiving workplace equality.

Committee Chairman Sen. Patrick Leahy (D-Vt.), in his opening remarks this morning, highlighted inequality in pay and the increasing refusal of federal courts to hear employment discrimination legal actions.

“The current Supreme Court seems increasingly willing to overturn juries who heard the factual evidence and decided in the case," Leahy said. "In employment discrimination cases, statistics show that the Federal Courts of Appeal are five times more likely to overturn an employee’s favorable trial verdict against her employer than they are to overturn a verdict in favor of the corporation.”

Testifying before the committee, Cyrus Mehri, a founding partner of the law firm Mehri & Skalet, highlighted a new study released last week by ACS revealing that “the federal courts disfavor employment discrimination plaintiffs.” Holding up a copy of the study, Mehri called it “seminal.” Mehri, who participated in an ACS panel discussion on the study by Cornell Law School Dean Stewart J. Schwab and Cornell Law Professor Kevin M. Clermont, said the study revealed hostility in the courts to employment discrimination lawsuits. Mehri added that the study found that the hostility to plaintiffs’ employment discrimination claims has resulted in “an absolute drop in employment discrimination cases of 37 percent from fiscal 1999-2007.” Mehri’s testimony can be obtained from the Senate Judiciary Committee’s Web site.

In an exclusive interview with ACS, Stewart J. Schwab, dean of Cornell Law School and professor of law, discusses a new article he co-authored revealing that employment discrimination plaintiffs increasingly fare poorly in the federal courts. (The article, “Employment Discrimination Plaintiffs In Federal Court: From Bad To Worse?” can be obtained here.)

At the trial level, Schwab tells ACS the study shows that employers are going to win 80 percent of employment discrimination lawsuits. “So employment discrimination plaintiffs have a very tough row to hoe, as we say, in the federal courts,” says Schwab. View entire interview below by clicking photo.

by William L. Taylor, chair of the Citizens’ Commission on Civil Rights and vice chairman of the Leadership Conference on Civil Rights. The post is taken from a speech Taylor gave earlier this month at an ACS Student Chapter event at the University of Missouri School of Law - Columbia.

I imagine at least some of you are in law school because you have a desire to use the legal skills you are acquiring to do some good.

My central proposition is that if the federal courts are dominated by judges chosen for their conservative ideology, you may never in your professional careers go into a federal court with the expectation that you will be able to attain something of lasting benefit to your clients – whether it is equal treatment and opportunity in education, housing, jobs; whether it is a safe environment; safety on the job; social services provided in various laws.

There may be some state courts you will be able to go to for that kind of relief, but that will vary from state to state.

What is the basis for my seemingly extravagant (Cassandra-like) statement?

First, federal courts are teetering on the brink. The Supreme Court, with the resignation of Sandra Day O’Connor and the accession of John Roberts and Samuel Alito, is decidedly conservative – hostile to the claims of disadvantaged people – on many issues. Even one new appointment in the mold of Justices Roberts, Alito, Scalia and Thomas could sway the outcome of many cases.

Abstinence-only sex education programs are not only ineffective, but also advance harmful gender stereotypes, say Bonnie Scott Jones and Michelle Movahed, in a recent Issue Brief released by the American Constitution Society. The authors, both with the U.S. Legal Program at the Center for Reproductive Rights, examine a little-noticed aspect of an issue that has otherwise been much studied. In their article, “Lesson One: Your Gender is Your Destiny – The Constitutionality of Teaching Sex Stereotypes in Abstinence-Only Programs,” Jones and Movahed note that the programs used in the nation’s public schools “suffer from numerous flaws.” For example, some of the programs include the dissemination of lots of misinformation.

But they assert that some of the abstinence-only programs also contain the “deeply harmful flaw” of promoting gender stereotypes. Some of the programs “teach boys and girls their abilities, natures, capacities, and potential are defined and limited by gender,” states the article. The entire Issue Brief is available here.

The U.S. Supreme Court has been steered sharply rightward, says Geoffrey R. Stone, American Constitution Society Board of Directors member and professor of law at the University of Chicago. Stone writes:

The Supreme Court is at present more conservative than at any time in living memory. Twelve of the last fourteen appointments were made by Republican presidents. Seven of the nine sitting justices (all but Breyer and Ginsburg) were appointed by Republican presidents. Four of the current justices (Scalia, Thomas, Roberts and Alito) are more conservative than any other justice who has served on the Supreme Court in more than half-a-century. As Justice Stevens has observed, with one possible exception, every Supreme Court justice appointed since the mid-1970s has been more conservative than the justice he or she replaced.

An interesting aspect of the Bush administration’s proposed bailout of troubled financial institutions deals with court access. Bloomberg.com reports that some lawmakers have noticed a part of the Bush plan that would block courts from reviewing the U.S. Treasury Department’s acquisition of up to $700 billion in troubled assets. “I think that it may be illegal, not to be able to challenge things,” Sen. Christopher Dodd (D-Conn.) told the news agency.