Tag Archives: Ruth Bader Ginsburg

Some Thoughts on DOMA on the Eve of Supreme Court’s Ruling

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Edie Thea
Thea Spyer and Edie Windsor. Windsor is suing the federal government for the return of over $363,000 that it charged her in federal taxes after she inherited her late wife Spyer’s estate. Had Windsor been married to a man instead of a woman, she would have been exempt from the tax. Picture via CNN.

We are now hours away from the last rulings of the Supreme Court’s term, and we know for certain that we’ll be getting a decision in United States v. Windsor, the challenge to the federal Defense of Marriage Act (as well as Hollingsworth v. Perry, the California Proposition 8 case). On the eve of what will surely be a historic day for gays and lesbians across the country, it’s worth going back and reading the March oral argument for the case. A few points I’d like to make ((With the major caveat, of course, that I realize oral arguments are not always an accurate indicator of the eventual outcome of a case.)):

  • Based on the way the other Justices were falling in line behind his questions at the oral argument and some deduction skills on the part of SCOTUSblog, there’s a decent chance that Justice Anthony Kennedy has the majority opinion in Windsor.
  • Assuming that Windsor isn’t decided on a standing issue (and I freely admit that it could be), I expect a Kennedy opinion to discuss states’ rights. Traditionally, family law has been left exclusively to the states, and Kennedy seemed quite concerned at the oral argument about the federalism issues implicated by DOMA, which orders the federal government not to recognize same-sex marriages even if they are legally recognized by the state. At one point, he reminded Paul Clement, the attorney defending the law: “[DOMA] applies to over 1,100 federal laws… when it has 1,100 laws, which in our society means that the Federal government is intertwined with the citizens’ day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”
  • Alternatively, if it does reach the merits of Windsor, the Supreme Court could strike down DOMA as a violation of the Fourteenth Amendment’s Equal Protection Clause (i.e. the law is unconstitutional because it singles out same-sex people for unfavorable treatment versus their opposite-sex counterparts). Such a ruling would, going forward, provide heightened legal protections for gays and lesbians in the face of discriminatory laws. However, this is also a much broader and groundbreaking route, and I’m not convinced that Kennedy will take it if he can decide the case based on a narrower states’ rights argument instead.

Associate Justice Elena Kagan Investiture Ceremony

While the lion’s share of attention re: DOMA has been focused on Kennedy (including, of course, this post, which has already given him three bullet points), I also want to highlight a couple of points that Justices Ruth Bader Ginsburg and Elena Kagan made at the Windsor oral argument:

        • Ginsburg drew big laughs at the argument when she compared the current state of same-sex marriage to “skim milk”––i.e. not the real thing. Snappy sound bite aside, however, it’s interesting to note that Ginsburg–who by all accounts had a happy, fulfilling marriage to the late tax attorney Martin Ginsburg–was the one justice who focused the most on the everyday effects DOMA has on very real people and very real relationships. Again and again, Ginsburg steered the discussion back to the everyday hardships caused by this law–the loss of benefits, a higher tax burden, the inability to take leave to tend to a sick spouse–implicitly asking her colleagues to think about what a marriage really means. We need to strike down DOMA, she was saying, because it is unconstitutional to subject these Americans to a lower quality of life than what their heterosexual brothers and sisters expect and receive.
        • Whereas Justice Ginsburg made it a point to talk about (to put it in a cheesy way) love being love, Justice Kagan had an equally compelling observation about hate. Kagan’s strategy at oral argument was to focus on the people behind the law rather than the people the law affected. DOMA has no place in our society, Kagan suggested, because there are indications that it was motivated by “fear,” “animus” and “moral disapproval” against gays and lesbians–all constitutionally impermissible reasons for imposing differential treatment on a whole class of people. Memorably, she shut down Paul Clement when he tried to dispute this by reading aloud the House Report for DOMA: “‘Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.'”
        • Together, Kagan and Ginsburg’s arguments about the suspect motivations and unjust results of DOMA made for a pretty good one-two punch. Assuming, again, that Kennedy actually has the majority opinion and dispatches DOMA based on a theory of states’ rights, I’m really hoping for a concurrence or two from either (or both) of these Justices, laying the intellectual groundwork for an equal protection decision somewhere down the line.
        • If that is the outcome, we can expect at least one fiery dissent as well. My money’s on Justice Scalia, who just last Friday gave a speech to the North Carolina Bar Association insisting that courts had no business deciding moral issues, which should be left to the political process. (He forgets that mixed-race marriage was also considered immoral back when Loving v. Virginia [the 1967 Supreme Court decision overturning anti-miscegenation laws] was decided, and that it was the Court that pulled public opinion along on this, not the other way around.)

Finally, it bears remembering that exactly ten years ago, the Supreme Court issued its landmark decision in Lawrence v. Texas, striking down the criminal convictions of two men who had been arrested and tried under a Texas law that prohibited certain forms of sexual conduct between members of the same sex. In overruling an earlier Supreme Court decision that had upheld the application of state sodomy bans to gay and lesbian sexual activity, majority opinion author Justice Anthony Kennedy invoked the Founding Fathers:

They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

In a few short hours, we’ll find out just how committed Kennedy and the rest of the Supreme Court remain to this principle.

 

“Too Far, Too Fast:” A Timeline of Ruth Bader Ginsburg’s Disappointment with Roe v. Wade

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Judging. Picture via AP.

Justice Ruth Bader Ginsburg made headlines this past weekend when she criticized the legal basis of Roe v. Wade at an event marking its 40th anniversary, saying that the 1973 decision had gone too far and “given opponents of access to abortion a target to aim at relentlessly.”

Ginsburg, who was at the time of the decision head of the ACLU’s Women’s Rights Project, told the packed audience at the University of Chicago Law School that the Supreme Court should have stuck to a narrower ruling striking down the Texas statute challenged in Roe. (That law had banned abortion in all cases except for those that would save the woman’s life.) Instead, however, the Court issued a sweeping pronouncement on the right to privacy encompassing a woman’s choice to end her pregnancy–a decision which, Ginsburg said, stopped the momentum of grassroots pro-choice groups and galvanized the anti-abortion movement.  Ginsburg also characterized Roe as not being “woman-centered” enough, as the opinion focused mainly on “a doctor’s freedom to practice his profession as he thinks best” rather than “a question of a woman’s choice.”

Though Justice Ginsburg’s remarks may be particularly relevant now–her preferred bottom-up, state-by-state approach to abortion mirrors the strategy that same-sex marriage advocates have been using–this isn’t the first time that the justice has publicly expressed disappointment with Roe’s lack of judicial restraint. Over the years, Ginsburg has been quite vocal about the many roads not taken, even while she approves of the outcome of increased access to abortion. The following is a timeline of Ginsburg’s comments from 1985 to present (you can zoom in and click on each box for more detail):

 

 

If I’ve missed any other quotes from Justice Ginsburg during this period, please let me know in the comments.

“It’s a Magic Word:” Tweets from the Eminently Quotable DOMA Oral Argument

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Today, the Supreme Court heard two hours of arguments in United States v. Windsor, with fifty minutes allotted on the technical question of standing–namely, whether the DOMA case should even be before the Supreme Court at all–and sixty minutes on the merits. Though the Prop 8 case on Tuesday seemed to get the lion’s share of media attention–pictures of the line and the protests outside the Courthouse this morning show a smaller audience than yesterday’s–initial reactions and reports indicate that the DOMA argument and subsequent press conference from plaintiff Edie Windsor are 10,000% more quotable. A collection of tweets recapping the day’s events:

“Uncharted Waters:” Confused By Array of Options, Justices Mull Deciding Proposition 8 Case on Procedural Grounds

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Prop 8 Flag
Picture via Variety.

When all was said and done, there weren’t any major revelations in Tuesday’s oral argument for Hollingsworth v. Perry, but it did set the stage for an interesting two hours of arguments on the Defense of Marriage Act that the Supreme Court will hear today.

Chief Justice John Roberts looked for ways to dispose of the Proposition 8 challenge based on the procedural question of standing–as he has done in so many other cases during his tenure–and at least four of his fellow Justices seemed receptive to that option, dissatisfied with the alternatives that the attorneys before them were offering.

The Prop 8 challengers and the United States government framed this fight as the latest in a long line of struggles for equality, appealing to the liberal wing of the Court as we thought they might. They drew parallels to Brown v. Board of Education and Loving v. Virginia, the 1967 case that outlawed state bans on interracial marriages. Justice Ruth Bader Ginsburg–a civil rights pioneer in her own right–reminded Charles Cooper, the lawyer defending Proposition 8, that it was unsound to rely on the Constitutional reasoning of a thirty-year-old Supreme Court decision unfavorable to gay marriage (Baker v. Nelson), given that gender discrimination was barely even recognized back then. Justice Sonia Sotomayor questioned Cooper about whether the government had any rational basis to deny gays and lesbians benefits other than marriage, and Justice Elena Kagan repeatedly pressed Cooper to specify the harm that same-sex marriage causes.

And, as expected, Justices Samuel Alito and Antonin Scalia did not take kindly to the arguments of the Prop 8 challengers. Scalia managed not to emit any overly damaging sound bites this time–the worst thing he said concerned potential “deleterious effects” of same-sex parenting on children–but got into a testy exchange with anti-Prop 8 attorney Ted Olson. Seeking to make a point about America’s long and treasured history of discriminating against gays, he interrogated Olson on when exactly gay marriage bans became unconstitutional, berating him when Olson attempted to answer with a rhetorical question about interracial marriage prohibitions, and responding triumphantly when Olson admitted that he could not provide a specific day: “Well, how am I supposed to decide the case, then–if you can’t give me a date when the Constitution changes?”

Debates that the public has been having for years spilled over into the courtroom as the Justices extended each side’s arguments to their logical conclusions. They grilled Cooper on why, if procreation is the main point of marriage, the state hasn’t banned marriages between infertile, elderly or incarcerated couples. They asked Olson whether a state could prohibit polygamy or incestuous marriages if marriage is in fact a fundamental right under the Constitution. Neither of the answers that the attorneys provided–a convoluted riff about preventing the evils of infidelity from Cooper, and a muddy distinction drawn by Olson between status and conduct–seemed to satisfy a clear majority of the Justices.

Donald Verrilli
Solicitor General Donald Verrilli in 2008. Picture by the Associated Press, via Cleveland.com.

Though none of the questions came out of left field, there weren’t any obvious winners or losers, as each of the lawyers’ arguments had holes that made several Justices uncomfortable. Solicitor General Donald Verrilli, Jr., arguing the federal government’s position in support of the Prop 8 challengers, probably fared the worst out of the three attorneys. He took a verbal beating from both liberal and conservative justices over the Obama administration’s dubious stance that states offering civil unions must be made to offer same-sex marriage as well, while states that have never allowed the civil union option should not be required to legalize same-sex marriage. Wouldn’t such an “all or nothing” approach incentivize states to grant their gay citizens no rights instead of some rights, Breyer asked? Verrilli didn’t have a good answer. Then again, as last year’s oral arguments for the Affordable Care Act showed, he doesn’t have to be on his A game for the Justices to find in his favor. Even if the Justices are loath to accept the federal government’s preferred “eight state” course of action, the Obama administration would still celebrate any California-specific result that leaves intact federal district judge Vaughn Walker’s ruling against Prop 8 (or the Ninth Circuit affirmation of that decision).

In the end, it all comes down to Anthony Kennedy, as it has many times before and will again in the future. Justice Kennedy did quite not tip his hand at yesterday’s argument, asking probing questions of both sides. He showed concern over what would happen to the 40,000 children in California with same-sex parents if their fathers and mothers were denied the right to marry, yet balked at the thought of finding a fundamental right to same-sex marriage, warning that the Court was wandering into “uncharted waters.” Kennedy pushed Cooper to concede that he couldn’t think of any specific ways in which same-sex marriage injures society, but also suggested that the case might have been improvidently granted in the first place and should be thrown out based on standing rules. Basically, he appeared to be searching for a rationale to justify a limited rather than broad ruling. Hence, it’s unlikely that the Court will uphold Proposition 8 or make same-sex marriage constitutional across all 50 states–but beyond that, it is unclear what the exact decision is going to be.

Prior to Tuesday’s oral argument, David Boies, Ted Olson’s partner in Hollingsworth v. Perry, had confidently predicted that the Proposition 8 challengers would win the case by at least a 6-3 margin. Emerging from the courthouse into the sunshine yesterday afternoon, however, Olson didn’t sound so sure. “Based on the questions the Justices asked, I have no idea” what the Supreme Court will rule, he said. Most court-watchers don’t, either, but it will be very interesting to see how the Prop 8 arguments over standing, states’ rights and respect for the legislative process play out when the Justices tackle similar questions in the United States v. Windsor DOMA challenge today.

Supreme Court Opinion Alert: In Kirtsaeng v. Wiley, Supreme Court Chooses Consumers of Foreign-Made Products over Copyright Holders

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libraries

The American Library Association estimates that libraries in the United States contain over 200 million foreign-printed books. Picture via Wired.

Eliciting a huge sigh of relief from libraries, museums, used-car salesmen and wide swaths of eBay and Amazon, the Supreme Court held today that buyers of foreign-made works do not have to seek permission from the copyright holders to import the works into the United States. Under the 6-3 ruling in Kirtsaeng v. John Wiley & Sons, a copyright owner’s exclusive distribution rights to a product is extinguished once it is legally sold–even if the work in question was manufactured abroad and then brought overseas to be sold for a “gray market” profit.

Those who remember being broke students and working extra shifts at the university library, participating in mundane experiments for the Psychology department for a $5 bill, or balking at the price of required textbooks in the bookstore might appreciate the ingenuity of Supap Kirtsaeng. Kirtsaeng, a Thai student who had come to the United States in 1997 to study mathematics and subsequently obtained an undergraduate degree from Cornell and a Ph.D. from USC, had been looking for a way to make some cash while in the U.S. After he noticed that the textbooks he purchased in the United States were more expensive than identical Asian editions that he could buy back home, he asked friends and family to mail copies of the Asian editions to him for resale. Despite the fact that the foreign edition textbooks specifically carried a page stating that such books were not to be exported out of Europe, Asia and the Middle East, Kirtsaeng sold them in the United States, reimbursed his friends and family for the price of the books purchased in Thailand, and kept the difference.

Naturally, John Wiley, the publisher of the textbooks and the owner of Wiley & Sons Asia (the subsidiary that produced the Asian editions), did not appreciate Kirtsaeng’s moneymaking scheme and brought a copyright infringement suit once it caught wind of his business. To do this, however, they had to get around the “first sale” doctrine, an exception written into the Copyright Act which cuts off a manufacturer’s exclusive right to distribute a copyrighted work at the moment that it is originally sold. Once a lawful sale is made, the copyright holder no longer gets a say in where the product can go, and the buyer is free to do what he/she wants to do with it–whether the buyer’s purpose to gift it, put it in a library, donate it to a museum, or resell it to fellow students.

While there is no dispute that this purchaser-friendly first sale doctrine applies to domestically made works, Wiley successfully argued in lower courts that the language of the exception, as codified under Section 109(a) of the Copyright Act, only applies to works that are “lawfully made under this title.” In Wiley’s interpretation, the phrase “lawfully made under this title” limits the first sale exception to only works that are produced in territories subject to the Copyright Act (the United States), and not works that are made overseas, where the Copyright Act has no force. Under such a reading, then, Kirtsaeng needed Wiley’s permission to import the Asian textbooks into the United States and sell them there. Since he had not done so, the trial court found that he had infringed Wiley’s copyright and awarded Wiley damages of $75,000 per work, totaling $600,000 in all. The Second Circuit affirmed this ruling.

Today, however, the Supreme Court rejected that argument by a 6-3 vote, ruling that the “first sale” doctrine has no geographical limitation and does in fact apply to works manufactured abroad. Justice Stephen Breyer, writing for a majority that included Chief Justice Roberts and Justices Sotomayor, Alito, Kagan and Thomas, pointed out that Wiley’s interpretation of “lawfully made under this title” would affect many sections of the Copyright Act, leading to a parade of nonsensical and nearly-unenforceable horribles. For example, this reading would give copyright owners the power not only to control the resale but also the display of foreign-made works–the result being that tourists would not be able to attach to their cars bumper stickers bought on vacation, arcades would not be able to install video games manufactured overseas, and teachers would not be able to show their students documentaries made abroad without first obtaining permission from the copyright holder.

Breyer’s opinion snowballs on: havoc would be wreaked on museums and libraries across the country, which collectively host millions of foreign-made works. Technology companies that create products made of multiple copyrightable foreign-manufactured components would be affected. The used-car market–a good portion of which involves cars made abroad–and the $2.3 trillion imported goods market would be impacted. Looking to the text and the history of the Copyright Act and “considerations of simplicity and coherence,” Breyer concluded that Congress could not have intended such restrictive consequences. Thus, the first sale doctrine barred John Wiley from exercising distribution rights over the Asian-edition textbooks that were lawfully sold to Kirtsaeng’s family and friends.

Justice Ruth Bader Ginsburg’s dissent, which was joined by Justice Kennedy in full and Justice Scalia in part, argued that the Court’s ruling “shrinks to insignificance” copyright protections against gray market unauthorized imports and hurts the U.S.’ trade interests in the long run. Characterizing Breyer’s parade of horribles as “imaginary” and “absurd,” the dissent dismissed the majority’s fear of a flood of litigation against museums and libraries and used-car salesmen, pointing out that the Copyright Act already has other exemptions that would allow for the importation, without copyright holders’ permission, of products for certain governmental, academic, educational and personal uses.

From a practical standpoint, however, it isn’t difficult to see why Breyer, and not Ginsburg, was able to line up five Justices behind his position. In the end, there are just too many things in this country that would have been swept up under Wiley & Sons’ proposed rule, and the deep fear of an ensuing legal avalanche won the day for Supap Kirtsaeng. Few things are made in the USA anymore, and foreign trade is increasingly important to the national economy. Giving publishers and manufacturers such immense and potentially perpetual power over legally sold products would have up-ended, as Breyer said, “ordinary scholarly, artistic, commercial and consumer activity,” and it is too late for Wiley to go back and change the rules that everyone has been playing by for decades. Some genies, as it turns out, cannot be put back into their Made In China bottles.

Supreme Court Must-Read: Jeffrey Toobin’s New Yorker Profile of Justice Ruth Bader Ginsburg

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Ruth Bader Ginsburg SOTU

She’s still got it: Justice Ruth Bader Ginsburg receives a warm welcome at the State of the Union.

The New Yorker has just published Jeffrey Toobin’s illuminating profile on Justice Ruth Bader Ginsburg ahead of her 80th birthday on March 15th. (Subscribers to the magazine can access the full text of the ironically-titled piece, “Heavyweight,” at this link.) Chronicling Justice Ginsburg’s early struggles in the male-dominated legal world of the 1950s (Ginsburg had trouble finding someone who would hire her despite having graduated first in her class at Columbia Law), her triumphs as a leading women’s rights advocate with the ACLU, her marriage to the late tax attorney Martin Ginsburg, and her tenure on the Supreme Court, the profile is an understated and touching pre-tribute to the Justice who conventional wisdom tells us is most likely to retire next.

From same-sex marriage ceremonies to retired Justice Sandra Day O’Connor, partial-birth abortion bans to Lilly Ledbetter, “Heavyweight” is full of interesting tidbits and little gems from Justice Ginsburg herself: 

On her brief-writing strategy while litigating cases before the Supreme Court:

“I was doing all these sex-discrimination cases, and my secretary said, ‘I look at these pages and all I see is sex, sex, sex. The judges are men, and when they read that they’re not going to be thinking about what you want them to think about,’ ” Ginsburg recalled. Henceforth, she changed her claim to “gender discrimination.”

On work-life balance:

“It bothers me when people say to make it to the top of the tree you have to give up a family. They say, ‘Look at Kagan, look at Sotomayor’ … What happened to O’Connor, who raised three sons, and I have James and Jane [her son and daughter with Martin Ginsburg]?”

On Chief Justice John Roberts:

“For the public, I think the current Chief is very good at meeting and greeting people, always saying the right thing for the remarks he makes for five or ten minutes at various gatherings.”

On how long she will remain on the bench:

“As long as I can do the job full steam… You can never tell when you’re my age. But, as long as I have the candlepower, I will do it. And I figure next year for certain. After that, who knows?”

Money quotes aside, Toobin’s piece is particularly fascinating when he discusses Justice Ginsburg’s views on the relationship between Congress and the Court. Though she is classified as one of the Supreme Court’s liberals in the vein of Earl Warren and Thurgood Marshall, Ginsburg does not share these predecessors’ conviction that the Court should be the driving force for widespread social change. Instead, Toobin writes, she believes that the Court’s role is to begin dialogue with the elected branches of government, to ask them to reconsider “ancient positions” that may no longer work in our day and age, and then to kick the proverbial ball back to them. In this respect, Justice Ginsburg is very much like President Obama, who also prefers to see social change enacted through the legislative rather than judicial arena (and whose similar views on the judiciary have also been discussed at length by Toobin). It is little wonder, then, that the two seem to get along so famously.

Anyway, the profile is a must-read for anyone who is interested in the Supreme Court, the women’s rights movement, or even just a good life story.

The next four years

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With the election safely behind us — and, fortunately, without any controversy or recount in the offing — we can now pivot towards prognostications for the future. And no, not 2016. (Please, not for another two and a half years at the least.)

To that end, The First Casualty contributors Sam Lim, Mark McAdam, and Victoria Kwan have each weighed in with their thoughts on what to watch for — especially given their areas of interest — in the coming months and years. Feel free to join in the conversation in the comments!

Sam Lim: Higher Education

In his first term, President Obama worked to make higher education more affordable, shifting over $60 billion from private student loan providers to boosting the federal Pell grant program. In his second term, I expect that President Obama will continue pushing for maintaining — and hopefully increasing — Pell grant funding for students with financial need.

I expect further simplification of the process for applying for federal student aid. Changes to the Free Application for Federal Student Aid (FAFSA) over the past few years have made it immensely easier for students, but then-candidate Obama proposed even simpler solutions in 2008 (such as streamlining the FAFSA application process with the filing of tax returns).

Combined with the continued development of financial tools such as college price comparison calculators for students and families offered by the Consumer Financial Protection Bureau, I expect to see an effort to make processes like applying for aid or choosing the best type of loans even more transparent and accessible.

Of greatest concern are the skyrocketing costs of college tuition and rising student debt. As he mentioned in his 2012 State of the Union address, President Obama will work to ensure that colleges and universities are not pricing higher education out of range for most middle- and low-income students.

I would expect to see either financial incentives or sanctions for public colleges and universities to bring tuition down and keep it in check. If not proposed, I would at least expect these options to be strongly considered. I would also expect to see further initiatives to help students and graduates manage their debt, potentially through expanded loan forgiveness programs tied to public service and other high-need areas.

The Obama Administration seems to favor addressing educational issues most by incentivizing local solutions (more so in K-12, but also in higher ed), so I would fully expect to see more incentive-based programs and initiatives to encourage local level education reform through programs similar to Race to the Top or Innovation (i3) Grants. With jobs and economic growth a key focus, I expect areas that might be further targeted include community colleges, career and technical education, and college-to-career pipelines.

Without a doubt, given the little support for higher education demonstrated by Governor Romney, students and supporters of higher education should be hopeful that President Obama has four more years to continue working to make higher education an accessible opportunity for all students.

Samson Lim is the Executive Director of Seattle-based Scholarship Junkies, a scholarship resource organization that works to help students make higher education more affordable. Sam spent a year conducting ethnographic research on access to higher education in Berlin, Germany, as a 2010-11 U.S. Student Fulbright Scholar. Currently, Sam can be found buried in reading for his Masters of Education program in Politics and Education at Teachers College, Columbia University, although he emerges every once in a while to highlight higher ed and financial aid issues in 140 characters or less at @samsonxlim.

Mark McAdam: The (Indispensable) Republican Reformation

“What a waste.”

It is more than likely that this was the sentiment Republican strategists awoke to on Wednesday morning, as they pondered the past 16 months on the campaign trail.  “What a waste because–a sluggish economic recovery provided–it should have been so easy to beat Barack Obama on Tuesday.”

As pundits have begun offering their own explanations as to why Republicans failed to win back the White House on Tuesday, the Republican Party will have to reexamine its own platform if it hopes to remain electorally competitive and actually win future national elections. Below is an outline of four issue areas Republicans must address:

1) Same-sex marriage: 2012 is not 2004. Whereas opposition to gay marriage in 2004 actually helped bring out the vote and secured a second term for George W. Bush, public opinion on gay marriage has changed significantly in the past eight years. With 69% of voters under 30 years of age supporting gay marriage (not to mention 37% of Republicans between ages 18 and 29!), it hardly seems feasible to build a party platform around discriminatory policies which young people–i.e. those voting for the next sixty years–largely reject.

2) Immigration: The Republican primary process was a disgrace and provides clear evidence that a “race to the bottom” is possible in selecting a party’s nominee. On no issue was this as apparent as on how to deal with undocumented immigrants. With demographic trends suggesting that the United States is becoming less and less Caucasian, it should have been surprising that each candidate attempted to outperform the next in terms of alienating voters with an immigration background. (Or, for that matter, voters who know immigrants.) Wanting to cause conditions which would lead to “self-deportation” and endorsing ideas like that of an electric fence on the border does not only seem eerily un-American, but xenophobia is also bad politics in a demographically changing electorate.

3) Foreign Policy: The days in which neoconservative thought ruled Republican thinking on foreign policy seem over, yet instead of a competing paradigm emerging to replace it, Republicans face an intellectual void on foreign policy matters. (Admittedly, the same–i.e. an intellectual void–is also true for the Democratic Party.) Substantively meaningless, Republicans seem motivated to “be tougher than their opponents” on foreign policy, yet this reveals nothing about whether to intervene in Libya, how to respond to developments in Syria, or what the country’s relationship with Pakistan should look like. More importantly, there is no understanding–no vision–of what America’s role in the post-Cold War and post-9/11 world is or should be.

4) The Economy & The State: Likely the issue on which Republicans perform best, one is nevertheless forgiven to assume that the Republican answer to all economic matters is to deregulate and to cut taxes and government spending. Yet the assumption that the economic state of nature is one of harmony finds no credible support. Indeed, Republicans, who are only partially justified in purporting to be heirs of the free enterprise tradition, would do well to argue that the state can and must take on a positive role in a free enterprise framework: it must provide a legal framework, including oversight of markets; it must provide proper regulation; and it should push for legislation fostering competition. All of these ideas are entirely consistent with a free enterprise approach and, if put into place properly, do not lead to a path towards socialism.

Republicans mistakenly hoped that unemployment at 7.9% would suffice to win the White House. But without altering their rigid party platform and making it more amenable to the electorate as a whole, Republicans could lose many more national elections.

Mark McAdam is a football guru. When he’s not writing about the Bundesliga, he advocates on behalf of free societies. He has a Master’s degree in “Politics, Economics & Philosophy” and studied at the University of Hamburg’s Institute for Economic Systems, the History of Economic Thought and the History of Ideas.

Victoria Kwan: The Federal Judiciary

How much will Barack Obama’s re-election affect the composition of the Supreme Court? Looking at current circumstances, the answer is “not much.” Right now, there are three Supreme Court justices over the age of 75: Ruth Bader Ginsburg (79), her best friend Antonin Scalia (76), and Anthony Kennedy (76). Of the three, Justice Ginsburg is the most likely to retire in the coming four years.  The Brooklyn native is tough as nails–she has already weathered two bouts of cancer (while barely missing any work) and the death of her husband in her 19 years on the Court, and her mind remains as sharp as ever–but given her health history, her age and her liberal stance, it would not be surprising at all if she stepped down and gave a Democratic administration the chance to fill her place. President Obama would surely replace Ginsburg with a moderate to liberal justice who would preserve the current balance on the Court (four conservatives, four liberals and one swing vote).

Now, if either Justice Scalia or Justice Kennedy were to step down, Obama would have the opportunity to put together a five-liberal majority bloc. Barring a serious health issue, however, this isn’t likely to happen. Scalia accumulated quite a list of furious dissents before finally seeing a five-conservative majority coalesce under George W. Bush’s administration, and he relishes his position as the anchor of the Court’s conservative wing too much to voluntarily give up his seat. Meanwhile, despite all protestations to the contrary, Kennedy seems to greatly enjoy his current role as the swing vote.  Their job satisfaction and apparent good health mean that Citizens United–the ruling that the Democrats would most like to see SCOTUS overturn, and hence, the liberal equivalent of Roe v. Wade–will remain intact for at least the next four years.  On the other hand, Obama’s re-election also means that Roe continues to be safe for now.

Beyond the Supreme Court, there is the question of the re-election’s impact on the rest of the federal judiciary. George W. Bush made the appointment of young conservative judges a top priority in both terms, filling a total of 325 federal judgeships over eight years. So far, Obama has appointed 160 (which is behind the pace Bush and Clinton set in each of their first four years). The rate at which Obama has been able to fill judicial vacancies has been slow to say the least, creating judicial emergencies in some understaffed and overworked courts. Part of the reason for this is Republican obstructionism. As Slate reported in September, citing studies from the Congressional Research Service, even the uncontroversial Obama nominees have seen their confirmation times (the number of days between nomination and confirmation) jump up sharply compared to Bush’s nominees. None of Obama’s nominees to federal appeals courts have been confirmed in under 100 days, while 28.6% of Bush’s were.

But the blame does not rest solely on the Republican party: Obama himself has not made the appointment of judges a top priority in the same way Bush did. He has moved slowly to even name candidates–many of the current vacancies don’t even have nominees to vote on–and when he does nominate, Obama more often than not chooses moderates over outspoken liberals. And of course, in this past election cycle, the federal judiciary was barely discussed by the Obama campaign. One optimistic explanation (for liberals, that is) for Obama’s moderate first-term approach could be that he had re-election in mind, and can now nominate liberal judges at a much faster and more aggressive clip. But the likelier explanation is that, as Jeffrey Toobin writes, Obama simply does not see the courts as the most appropriate place to enact widespread social change, preferring to problem-solve through the legislative arena.

Bottom Line: when it comes to the courts, we should expect to see more of the same.

Victoria holds a J.D. from Columbia Law School in New York and has recently completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and posts primarily on legal issues, especially those involving the Supreme Court.

It’s That Time of the Year Again: Supreme Court Preview 2012 – 2013

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The width of the smile seems to be inversely proportional to the amount of time the Justice has been on the court.

After a busy summer spent lecturing abroad, appearing at book promotions, publicly sparring with other federal judges, attending Yankees games and having their homes robbed, the Supreme Court is set to start its 2012-2013 session next Monday, October 1st. Though it may not quite match last term’s level of drama with its Affordable Care Act and immigration rulings, this term promises to bring a few blockbusters as the Court prepares to tackle cases on hot-button issues such as affirmative action, gay marriage, government wiretapping and capital punishment for the mentally incompetent. The Supreme Court’s calendar for the term is not entirely set in stone–an opening conference held on September 24th  placed six new cases on the docket, and more cases are yet to be added–but here are some highlights we can expect to see in this coming year:

  • Revisiting Affirmative Action in Higher Education: Abigail Fisher, a Caucasian student, applied but did not gain admission to the University of Texas. She claims that UT unfairly denied her a spot on the basis of her race: under a 1997 Texas law, automatic admission to state-funded universities, including UT, is granted to the top 10% of students in every Texas high school regardless of race. At UT, race is then used as one factor among many to determine admission for the rest of the remaining spots. Fisher did not make the top 10% cutoff at her high school and her application was passed down to the pool that took the applicant’s race into consideration. In 2003, SCOTUS ruled in Grutter v. Bollinger that the University of Michigan could constitutionally take race into account as one factor in its admissions decisions since racial diversity in higher education was a “compelling state interest.” Sandra Day O’Connor famously wrote in her opinion then that she expected the Court to review this ruling again in 25 years, when racial disparities had (hopefully) faded to the point where affirmative action for ethnic minority students was no longer necessary. It has only been nine years since Grutter, but the Court has seen some personnel changes and a marked shift to the right since then–and some believe that Justice John Roberts (who has in a previous case indicated that racial diversity at the elementary school level is not a compelling state interest) & Co. are ready and willing to either overturn or restrict the Court’s previous ruling. Fisher will be argued on October 10th.
  • Gay Marriage (Finally) Makes Its Way Up to SCOTUS… We Think: Last year saw a boom of gay marriage cases being fought in various federal appellate courts across the country, and a number of these decisions have now been petitioned to the Supreme Court. Of the various cases seeking review, most involve challenges to the constitutionality of the Defense Of Marriage Act (which currently denies federal benefits to same-sex couples even if their marriages are legally recognized by their home states), while one involves an appeal from the Ninth Circuit’s February 2012 decision finding unconstitutional California’s Proposition 8 (which changed the state’s constitution to bar same-sex marriage). This last case, Hollingsworth v. Perry, is the most marquee of the bunch, though Emily Bazelon of Slate argues in this essay that proponents of gay marriage should want SCOTUS to take a step-by-step approach and hear one of the less-glitzy DOMA cases instead of Hollingsworth–which may demand too much of SCOTUS by seeking a sweeping decision that marriage is (or is not) a basic right guaranteed to all. SCOTUS has not decided exactly which case to grant cert to yet, if any–none of the six new cases that it agreed to review on Monday involved gay marriage–but Ruth Bader Ginsburg did mention at a University of Colorado conference this summer that the high court is likely to hear a DOMA case this term.
  • Can Suspected Drunk Drivers be Forced to Undergo Warrantless Blood Tests?: In a case concerning the privacy rights of motorists stopped by police for drunk driving, the Supreme Court will consider Missouri’s appeal of a state supreme court ruling that its police wrongly administered a warrantless, non-consensual blood test on Tyler McNeely. Under current Fourth Amendment jurisprudence, there are certain defined exceptions that would justify a police officer’s warrantless search and seizure of a person, but McNeely claims that none of these exceptions applied to his blood test, which was forcibly taken at a hospital less than a half-hour after he was first pulled over and refused to take a breathalyzer test. McNeely argues that over half the fifty states have laws prohibiting law enforcement from administering non-consensual blood tests without a warrant. On the other hand, Missouri argues that the 1966 precedent of Schmerber v. California allows for warrantless blood tests where the “special facts” exception exists, including the fact that the body begins eliminating alcohol from its blood shortly after drinking.
  • While We’re On the Subject of Warrants, Drug-Sniffing Dogs Come Under Scrutiny As Well:
    Franky the drug-sniffing dog. We’re not sure what the white stuff around his muzzle is.

    On October 31st, the Court will hear a pair of Florida cases involving drug-sniffing dogs and warrantless searches. In Florida v. Jardines, the defendant argues that the police violated his Fourth Amendment Rights against illegal search and seizure when they brought a drug-sniffing dog named Franky to sniff at his door without a warrant. Jardines contends that there was no probable cause for the sniff, which constituted a search in and of itself. Meanwhile, in Florida v. Harris, the Supreme Court will decide whether an “alert” from drug-sniffing dog Aldo can be assumed credible (thereby establishing probable cause for a warrantless search) merely on the basis that Aldo attended sniffing school, or whether prosecutors must provide more detailed information to show that the dog is indeed reliable. The Florida Supreme Court ruled last year in favor of the latter approach, ordering that the State provide evidence of the dog’s training and certification, field performance records, and evidence of the handling officer’s own experience and training.

  • Capital Punishment, Habeas Relief and the Mentally Incompetent: In the U.S., inmates who have been tried and sentenced to death have a right to challenge their convictions and sentences in a habeas corpus hearing. The Supreme Court has also held that the Eighth Amendment bars capital punishment for the insane and the mentally disabled. But what happens when an inmate is convicted of a capital crime, sentenced to death, and then argues at the habeas corpus petition stage that he is mentally incompetent and therefore cannot assist his lawyers in preparing the petition? Is he entitled to a competency hearing? Two Circuits have found that inmates do have a “right to competence” at the habeas stage and have granted mentally incompetent inmates indefinite stays until they become competent–meaning that if they never do become competent, their death sentence is effectively turned into life imprisonment. Supporters say that it is unjust to force the mentally incompetent into habeas proceedings if they cannot help their own counsel assemble their case, and point out that capital punishment for the insane and mentally disabled is unconstitutional anyway. Opponents argue, however, that these indefinite stays run contrary to the state’s interest in the finality of convictions. The Supreme Court will hear arguments for Ryan v. Gonzales and Tibbals v. Carter on October 9th.
  • Corporations Behaving Badly and Causing Human Rights Atrocities Abroad: The Alien Tort Statute was penned in 1789 to provide for foreign citizens redress for violations of international law, in United States courts. Modern applications of this law have focused on bringing to justice former government officials accused of atrocities abroad, but Kiobel v. Royal Dutch Petroleum adds a Citizens United-esque twist: can corporations be sued under the ATS for genocide, torture and other violations of international law committed abroad? And what is the exact scope of the ATS in cases where the alleged violations were committed outside of the U.S., anyway? The Second Circuit said no to the first question in 2010, dismissing the case based on its holding that corporate liability is not a universally recognized norm of customary international law. Upon Kiobel’s appeal, the Supreme Court held oral argument on the case in February 2012, but took the unusual step of ordering further argument for the new term beginning in October. This will be the first argument of the 2012-2013 year: look for the justices to focus not so much on the corporate liability issue but on the question of whether Kiobel can even bring her case in an American court for human rights abuses committed on foreign territory.
  • Government Wiretapping: The Supreme Court referees on October 29th the latest chapter in the fight between national security and civil liberties. In Clapper v. Amnesty International USA, a group of strange bedfellows (including Amnesty Int’l, the New York State Bar Association and the Gun Owners Foundation) have banded together to sue the government over the constitutionality of a provision in the Foreign Intelligence Surveillance Act that permits the “targeting” of “persons reasonably believed to be located outside the United States” for the purposes of “gathering foreign intelligence information.” Amongst other things, the law authorizes the government to wiretap such persons’ communications. The trouble for Amnesty and friends, however, is that in order to even sue in federal court, they must have standing, which requires them to show that they have suffered or will imminently suffer the injury they are complaining of. Unfortunately, they have no definitive proof that the government is in fact wiretapping their communications. Despite this obstacle, the Second Circuit permitted the case to proceed; SCOTUS will now decide whether the group does in fact have standing to sue.
  • Davids v. Goliaths–Immunity for Government Officials in Military and Prison Contexts: On Monday, the Supreme Court added to its docket not one but two cases from lawyerless petitioners, each involving the rights of individuals to sue the federal government. Millbrook v. United States arises from the claims of Kim Lee Millbrook, an inmate at a federal prison in Lewisburg, Pennsylvania who accused three prison guards of sexually assaulting him. Though his suit was dismissed by the lower courts, Millbrook handwrote an appeal in pencil to the Supreme Court, which then decided to use Millbrook’s case to resolve the question of government liability for claims made against federal prison guards, according to the Associated Press.  Meanwhile, Levin v. United States addresses government liability for tortious acts committed by military medical personnel. The case arises from a battery claim against the U.S. government, made by a Guam resident whose eye was allegedly damaged in a botched cataract operation carried out by a U.S. Navy surgeon. Levin appealed to the Supreme Court after the Ninth Circuit ruled against him and held that the federal government has sovereign immunity from battery claims.
  • Does the Government “Take” Your Land If It Repeatedly Floods Those Lands? Finally, the Supreme Court will settle this term the age-old question of whether the government must compensate parties under the Fifth Amendment’s takings clause if it repeatedly causes those parties’ properties to flood, thus “taking” the private property for “public use.” Arkansas contends that over a six-year period, the United States Army Corps of Engineers did just that to one of its forests, the 23,000-acre Dave Donaldson Black River Wildlife Management Area, causing degradation of the forest’s timber and destroying wildlife habitats. The government’s response is that the lands were not rendered completely unusable because the flooding was only “temporary” and the waters always receded. It maintains that its behavior may constitute a tort but does not rise to the level of a “taking.” While this case may sound a little bit like a no-brainer–why shouldn’t the government pay back the state for this recurring damage?–SCOTUS has in the last half-century chipped away slowly at the Takings Clause, going so far as to allow a Connecticut city to take over private property, without compensation, for the purpose of selling it to a private developer (in 2005’s Kelo v. City of New London). Oral argument for Arkansas Game & Fish Commission v. United States will be held on October 3rd.

Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post periodically here on legal issues. Rumor has it she and Jay Pinho are dating.