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Historic progress for women on the bench

Stephanie Rose confirmed to Southern District of Iowa, marking historic progress for women on the bench during Obama’s first term.
Judge Rose

On Monday, September 10, the Senate confirmed Stephanie Rose as a federal judge for the Southern District of Iowa by a vote of 89-1, with only Senator Jim DeMint (R-SC) voting no. Judge Rose’s confirmation highlights President Obama’s historic record on appointing women to the federal bench; in less than four years, President Obama has appointed 72 women as federal judges, matching the total number of women appointed during George W. Bush’s entire presidency. Judge Rose is also the first woman to serve as a district court judge in the Southern District of Iowa.  In addition to his historic number of female judicial appointments, 44.3% of President Obama’s appointees have been women, the highest percentage of any president.  President Clinton had the next best record, as 29.4% of his appointees were women. 

For a detailed breakdown of how President Obama compares with his predecessors in terms of the racial and gender diversity of his judicial appointees, please see the Alliance’s Judicial Selection Snapshot.  

Wal-Mart: too big to sue?

Chris tells her story in Unequal Justice
When Chris Kwapnoski worked at Sam’s Club, a Wal-Mart affiliate, managers told her that she needed to “doll up” and “blow the cobwebs off” her makeup if she wanted to get ahead. At the same time, a male associate was given a larger raise because he had “a family to support,” even though at the time Chris was a single mother raising two young children.

And when Chris and more than a million other women joined together to hold Wal-Mart accountable for the discriminatory pay and promotion practices of its management, the Supreme Court told them that Wal-Mart was too big to sue.

In Wal-Mart v. Dukes, a narrow majority of the Court ruled that the 1.5 million women who faced systemic discrimination as Wal-Mart workers did not have enough in common to qualify for a class action, ignoring the volumes of anecdotal and statistical evidence to the contrary. And because of the Wal-Mart decision, it is now harder for employees and consumers to band together to fight corporate misbehavior. The Court significantly raised the bar for forming a class, which is one of the only effective ways to fight against widespread injustices committed by large, deep-pocketed corporate interests.

Chris’s story is featured in AFJ’s latest documentary film, Unequal Justice: The Relentless Rise of the 1% Court, which will be released this fall. The short documentary explores the growing pro-corporate bias in key Court decisions, like Wal-Mart v. Dukes, and their real-world impact on ordinary Americans. Click here to learn more about the film and sign up to host a screening.

Immunity for generic drug manufacturers

Gabriel tells his story
When Gabriel Drapos was a first-year student at Harvard, he was diagnosed with an autoimmune disease that would ultimately take countless drug therapies, several invasive spinal column procedures, and three surgeries to manage.

He later found out that his disease was likely connected to a drug he had taken:
Personal pain becomes a social injustice in the presence of unconscionable ethics. I discovered there was likely a connection between my disease and a drug I had taken in high school. Allegedly, I should say. I’ll never get my day in court to prove it.
Gabriel had taken a generic form of the drug. And because of a recent Supreme Court decision protecting generic drug manufacturers from being sued in court when their labels don't warn consumers of health risks, he'll never get a chance to stand up for his rights in court and hold the drug company responsible.

Gabriel's story is featured in AFJ's latest documentary film,"Unequal Justice: the Relentless Rise of the 1% Court."

“Unequal Justice” explores the growing pro-corporate bias in key Court decisions and their real-world impact on ordinary Americans. The film looks at three cases – Citizens United v. FEC, PLIVA v. Mensing, and Wal-Mart v. Dukes – to show how the law has been distorted to create advantages for corporations within our democratic system, restrict access to the courts, and prevent ordinary people from banding together to fight corporate misbehavior.

For Gabriel, it was PLIVA v. Mensing that ensured he wouldn’t be able to stand up for his rights in court. In PLIVA, the Supreme Court shielded generic drug manufacturers from state tort liability when their labels inadequately warn consumers of health risks. Absurdly, brand name drug manufacturers can be held liable for that very failure. But generic drugs make up 75 percent of the prescription drug market, and millions of Americans take the generic versions of prescription drugs, often because insurance companies require that prescriptions be filled with generics.

Without the risk of legal liability, generic drug manufacturers have little incentive to ensure that their warning labels are accurate. And when people like Gabriel are harmed by a generic drug, they have no legal remedy.

“Unequal Justice” will be released this fall. You can learn more and sign up to host a screening of the film at

Will the Roberts Court overturn Roe v. Wade?: Part III

In this last installment of our three-part series on reproductive health cases in the lower federal courts, we look at challenges to state laws that place restrictions on abortion providers, defund Planned Parenthood, restrict insurance coverage for reproductive health services, and restrict access to Plan B. Only time will tell if any of these cases will end up before the Court. If they do, will the Roberts Court take the opportunity to overturn Roe v. Wade?

Placing undue restrictions on abortion providers

According to the Supreme Court, a state cannot impose an undue burden on a woman seeking to terminate her pregnancy. However, states have been trying to circumvent this ruling by heightening restrictions on abortion providers.

On July 1, federal District Judge Daniel Jordan temporarily blocked a Mississippi law that would have required an OB-GYN who performs abortions to have hospital privileges, even though doctors who perform abortions are regularly denied hospital privileges in the state. As a result of Judge Jordan’s ruling, Mississippi’s only abortion clinic was able to remain open for the time being.

In Louisiana, a strict liability law was enacted to target abortion providers with a different malpractice standard than applies to other doctors in the state. Under this law, doctors who perform abortions could be held liable for malpractice regardless of whether the doctor acted negligently or was otherwise at fault for any harm. Abortion providers were also excluded from the state-run medical malpractice fund, leaving them particularly vulnerable in the face of a malpractice claim. In Hope Medical Group for Women v. LeBlanc, federal District Judge Helen Berrigan held in March that the Louisiana law placed an undue burden on a woman’s right to have an abortion and violated the Equal Protection clause because it treated abortion providers differently from other medical providers. The court found that the law was designed to scare doctors away from providing abortions in Louisiana.

Defunding Planned Parenthood’s non-abortion services

As we speak, Texas is trying to defund Planned Parenthood’s family planning and health services, even though this arm of the organization is separate from its abortion services. After the Texas Health and Human Services Commission decided to defund Planned Parenthood, the organization sued under § 1983 and the First and Fourteenth Amendments. On April 30, federal District Judge Lee Yeakel enjoined the state’s action in Planned Parenthood v. Suehs. On August 21, the Fifth Circuit lifted the injunction, finding that Planned Parenthood was unlikely to prevail in its claims, leaving the state free to withhold funds pending the October trial scheduled in the matter.

Denying health insurance coverage for reproductive health services

In a clever act to curtail abortions, Kansas enacted a law that prohibits insurers from covering abortions. In March, federal District Judge Julie Robinson held that the ACLU of Kansas and Western Missouri had a cognizable claim under the Fourteenth Amendment’s Due Process and Equal Protection clauses. In ACLU v. Praeger, the ACLU argued that the Kansas law would even limit access to abortions that women needed to protect their own health or because of a pregnancy that posed a severe fetal anomaly or was caused by rape or incest. The court found that having to pay out-of-pocket for an abortion placed an undue burden on women and allowed the ACLU’s claims to proceed.

Denying access to Plan B

Whether or not pharmacists can be required to provide Plan B has been challenged in several states. In Washington State, lawmakers passed a law requiring pharmacists to dispense anti-contraception pills. But in February, federal District Judge Ronald Leighton held in Stormans v. Selecky that the law was unconstitutional based on rather suspect reasoning. The court found that the Washington law was unconstitutional under the Free Exercise clause of the First Amendment because it targeted religious conduct, and unconstitutional under the Equal Protection clause of the Fourteenth Amendment because it did not apply to all citizens regardless of their religious affiliation. The end result of the court’s decision is that women in Washington State are being denied access to Plan B.

The future of a woman’s right to choose

As we approach the 40th anniversary of Roe v. Wade, anti-choice activists seem to be revving up their efforts to restrict a woman’s right to choose on a state-by-state basis. State legislatures have become bolder in trying to sidestep Casey’s “undue burden” test by incrementally restricting a woman’s right to choose. Once again, the federal courts must intervene to reinforce what the Supreme Court said definitively in 1973: that a woman’s right to choose an abortion is a fundamental right under the Constitution.

Will the Roberts Court overturn Roe v. Wade?: Part II

Part II of our three-part series on the status of reproductive health issues in the lower courts resumes with more examples of court splits and fodder for Supreme Court review. There is growing concern that anti-choice activists are looking to take advantage of a sympathetic Supreme Court to ultimately overturn Roe v. Wade.

Photo: Planned Parenthood Action Fund/
Requiring doctors to provide non-medically necessary information to women seeking abortions

In addition to the spate of state laws mandating unnecessary procedures like ultrasounds, as examined in Part I, other states have recently passed laws requiring the provision of unnecessary information to women seeking abortions. Much of the legislation requires doctors to make statements that have nothing to do with women’s health, but are simply a way to discourage women from getting abortions. The lower federal courts have been split on this issue, upholding some state laws while striking down others as unconstitutional. None of these cases have yet been appealed to the Supreme Court, however, the circuit split increases the chances that the Court might grant review in one or more cases.

This July, in Planned Parenthood v. Rounds, the U.S. Court of Appeals for the Eighth Circuit upheld a South Dakota “suicide advisory” provision requiring doctors to tell a woman seeking an abortion that after the procedure she has an increased risk of committing suicide. Despite the shaky evidence for this assertion, which has been soundly refuted by the American Psychological Association, the Eighth Circuit upheld the provision, finding that “a truthful disclosure cannot be unconstitutionally misleading or irrelevant simply because some degree of medical and scientific uncertainty persists.”

In Nebraska and Indiana, similar laws mandating non-medically necessary information were rejected. A Nebraska “informed consent” abortion law was challenged in Planned Parenthood v. Heineman. The law had two troubling provisions. First, it required abortion providers to conduct risk evaluations that were impossible to complete satisfactorily. According to the law, abortion providers would have to evaluate women for every risk factor and disclose every associated complication and individualized quantified risk rate for them. Second, it created a private cause of action for a woman against medical workers and health facilities for failing to meet these impossible standards. Federal District Court Judge Laurie Smith Camp granted a preliminary injunction in July 2010 on the grounds that the law would likely be found unconstitutional under Casey as placing an “undue burden” on a woman’s right to choose. In June 2012, anti-choice groups appealed to the Supreme Court to reverse the Eighth Circuit’s decision denying their motion to intervene in this case.

In Indiana, Planned Parenthood challenged a law that required abortion providers to tell women that a fetus younger than 20 weeks old feels pain, despite scientific evidence to the contrary. The Indiana law also banned state agencies from contracting with or granting money to organizations that provide abortions. In June 2011, Federal District Court Judge Tanya Walton Pratt granted a preliminary injunction to halt enforcement of the law in Planned Parenthood v. Commissioner.

Restricting abortions after 20 weeks

Eighteen states have laws prohibiting dilation and extraction procedures (so-called “partial birth abortion”). The most recent challenge to such a law is currently pending before the Ninth Circuit.

In Arizona, three doctors who perform abortions challenged a state law that would ban abortions after 20 weeks even if it is known that the fetus would not be born alive or survive after birth. The doctors sought an injunction to prevent the law from going into effect, which Federal District Court Judge James Teilborg denied on July 30. Judge Teilborg went even further by dismissing the doctors’ claims in the case, styled Isaacson v. Horne, finding that the law is constitutional because it does not place an undue burden on a woman’s right to choose. Teilborg relied on the same suspect “fetal pain” science that is at issue in the Indiana case discussed above. Plaintiffs immediately sought an injunction from the Ninth Circuit to prevent the law from taking effect. The Ninth Circuit granted the injunction and ordered a first set of briefs on the constitutionality of the law to be submitted by September 4.

Banning certain abortion drugs so that abortions have to be performed in a hospital

In yet another challenge to women’s right to choose, Ohio passed a law that prohibited the use of an abortion drug that does not require a hospital stay. In Planned Parenthood v. DeWine, Federal District Court Judge Susan Dlott ruled last September in favor of Planned Parenthood because the ban placed an undue burden on women’s right to choose by requiring surgery rather than the less invasive option of taking a prescribed drug.

Women are facing an ever more oppressive landscape of restrictive state abortion laws. While pro-choice groups have had some success in challenging these laws in court, the results have been uneven. Today, it seems, a woman’s right to choose depends on what state she is in. Tomorrow, if the Supreme Court decides to weigh in, the reality could be even more drastic.

Up next . . .

Part III will examine recent legal challenges to laws that place undue restrictions on abortion providers, defund Planned Parenthood, and deny health insurance coverage for reproductive services. Finally, recent lawsuits involving access to Plan B will be discussed.


Part I focused on the cases and issues most likely to reach the Supreme Court in the near future.

Will the Roberts Court overturn Roe v. Wade?: Part I

With the airwaves dominated by talk about “legitimate rape” and “forcible rape” (as opposed to their nonsensical counterparts, “illegitimate rape” and “consensual rape”), it is clear that the War on Women rages on. At stake is not merely offensive language, but real battles over the ability of women to control their own bodies and destinies. Yet another episode in this fight may be coming soon, this time before the U.S. Supreme Court. A series of lawsuits making their way through the federal and state courts may be setting the stage for the Supreme Court to overturn Roe v. Wade as it nears its 40th anniversary in 2013.

Photo via
This post is the first in a three-part series describing the recent legal skirmishes about a new wave of proposed or enacted laws restricting reproductive rights across the country. It is difficult to predict which case, if any, will be heard by the Supreme Court, but the attempts to restrict women’s right to choose range far and wide, including legislation that
  • grants “personhood” to fetuses in Oklahoma and Missouri
  • mandates non-medically necessary ultrasounds in Oklahoma, North Carolina, and Texas
  • requires doctors to provide non-medically necessary information to women seeking abortions in South Dakota, Nebraska, and Indiana
  • restricts abortions after 20 weeks in Arizona and Idaho
  • bans certain abortion drugs so that abortions have to be performed in a hospital in Ohio
  • places undue restrictions on abortion providers in Mississippi and Louisiana
  • defunds Planned Parenthood’s non-abortion services in Texas
  • denies health insurance coverage for reproductive services in Kansas
  • denies or limits access to Plan B in Florida and Washington
The framework for these legal challenges is necessarily the Supreme Court’s 1992 plurality decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. In that decision, the Supreme Court upheld a woman’s right to choose as established by Roe v. Wade, but created a new test to determine whether an abortion regulation was constitutional. Under Casey, a law is constitutional if it does not place an “undue burden” on a woman’s right to have an abortion. An abortion restriction that has only the incidental effect of making it more difficult or expensive to get an abortion would be constitutional. However, if a regulation is implemented in order to obstruct the right to choose rather than to effectuate a legitimate health purpose, it may be unconstitutional. Much ink has been spilled over the past 20 years regarding what is or is not an “undue burden,” but the practical effect of Casey has been to allow more restrictions on access to abortion.

In this first post, we will focus on the cases and issues that have the best chance of reaching the Supreme Court in the near future.

An extreme "personhood" amendment makes its way to the Supreme Court

One of the most serious recent challenges to Roe comes in the innocuously named In Re Initiative Petition No. 395 State Question No. 761 out of Oklahoma. On July 30, 2012, an anti-choice group called Personhood Oklahoma filed a cert petition to the U.S. Supreme Court in its push for a “personhood” amendment. The personhood amendment would grant full rights and privileges at conception. Notably, it does not include standard language deferring to the Constitution or the Supreme Court, in effect, snubbing Supreme Court precedent. In April, the Oklahoma Supreme Court ruled against the proposed amendment as unconstitutional under Casey.

In 1989, the Supreme Court considered a challenge to a similar Missouri law in Webster v. Reproductive Health Services. The states’ laws are similar because they both grant the rights and privileges of personhood at the moment of conception, but the Missouri law specifically defers to the Constitution and the Supreme Court. Additionally, the Missouri law was primarily aimed at restricting state abortion funding and services, including the life-at-conception language only in the preamble to the law. In contrast, the Oklahoma proposal would add life-at-conception language as an amendment to the state constitution, allowing for the possibility that abortion could be classified as murder.

Although the Oklahoma law goes further than the Missouri law, suggesting that it might not survive scrutiny by the Supreme Court, the composition of the Supreme Court is also different than it was in 1989: most notably, Thurgood Marshall has been replaced by Clarence Thomas and Sandra Day O’Connor has been replaced by Samuel Alito. This shift in personnel could well make the difference in the Court’s reproductive rights jurisprudence.

The U.S. Supreme Court will decide in the next couple of months whether to hear Personhood Oklahoma’s appeal.

A court split on mandating non-medically necessary ultrasounds

There is a court split regarding whether states can require women to undergo ultrasounds before they have an abortion. The split makes it more likely that the Supreme Court may accept the case in order to standardize laws in the different states.

More than 20 states have a mandatory ultrasound law according to a recent report from the Guttmacher Institute (PDF). The severity of the laws varies, from actually requiring an invasive ultrasound, to requiring doctors to provide anti-choice brochures and pamphlets to a woman. Oklahoma, North Carolina, and Texas have some of the strictest requirements. In March, Oklahoma’s ultrasound law with so-called “speech-and-display requirements” was struck down by an Oklahoma federal district court in Nova Health Systems v. Edmonson. Speech-and-display requirements mean that the doctor performing the abortion must present an ultrasound image of the fetus to the woman and describe its anatomy to her.

Such requirements have also been challenged in North Carolina. In December 2011, District Court Judge Catherine Eagles preliminarily enjoined these requirements in Stuart v. Huff. She found that the speech-and-display requirements were unconstitutional under the First Amendment and that there was no medical purpose to support a governmental interest in the law.

Pro-choice advocates in Texas have not been as successful. Chief Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit upheld a mandatory ultrasound law with speech-and-display requirements in Texas Medical Providers Performing Abortion Services v. Lakey. Jones ruled in another notable abortion case, McCorvey v. Hill, in which Norma McCorvey, a.k.a. “Jane Roe,” who has become an anti-choice activist, sought to have the Supreme Court’s judgment in Roe v. Wade overturned thirty years later. In addition to writing the majority opinion rejecting McCorvey’s claim, Jones wrote a separate concurring opinion to criticize the Supreme Court’s decision in Roe.

The Fifth Circuit’s decision in Lakey bound District Court Judge Sam Sparks to uphold Texas’ “informed consent” abortion law on remand. Judge Sparks explicitly criticized the Texas law as a way to discourage women from getting abortions. As a result of the ruling, Texas abortion providers are required to perform and display a sonogram and to play the heartbeat for the woman seeking an abortion. Additionally, there is a mandated 24-hour waiting period after the sonogram is performed.
The split between federal courts in Oklahoma, North Carolina, and Texas regarding similar speech-and-display laws suggest that this issue may well end up before the Supreme Court at some point soon.

Up next . . .

Part II will explore legal challenges to laws that require doctors to provide non-medically necessary information to women seeking abortions, restrict abortions after 20 weeks, and ban certain abortion drugs so that abortions have to be performed in hospitals.

Part III will examine recent legal challenges to laws that place undue restrictions on abortion providers, defund Planned Parenthood, and deny health insurance coverage for reproductive services. Finally, recent lawsuits involving access to Plan B will be discussed.

Workplace injustice at Walmart

- by Torryn Taylor

On August 7, the National Organization for Women, the National Workers Rights Board, and Jobs with Justice hosted “Organizing as a Civil Right: the struggle for dignity and respect at Walmart”. The briefing featured the testimonies of current and former Walmart associates and guest workers in the Walmart supply chain.

One former Walmart associate from Gulf Breeze, Florida, revealed a shocking inconsistency between Walmart’s self-proclaimed fair practices and labor policies and associates’ actual experiences of unfair treatment. A mother of three, Angela Williamson had been guaranteed a minimum of 30 hours of work per week when she was hired, which she needed to support herself and her family. However, two weeks into the job, Ms. Williamson quickly became aware that she would have no control over her scheduling or the number hours she was given. She soon found herself working merely eight to twelve pay hours a week. When she complained, her management offered to cut her hours even further so that she could qualify for government benefits.

Other workers at the briefing cited abuses such as having their hours cut, only to be told they would later be needed to work overtime hours without overtime pay. Ernestine Bassett, an associate at a Walmart store in Laurel, Maryland, recalled even being instructed when and for how long she would be allowed to use the restroom.

When it became apparent that these problems were happening not just attheir individual stores but at Walmart stores across the nation, Ms. Bassett and Ms. Williamson decided to join the newly formed Organization United for Respect at Walmart (OUR Walmart), where they now play active and leading roles in the fight for justice.

OUR Walmart is a cohort of current and former Walmart associates and employees who work to spread the message of Walmart’s unfair labor practices and who fight to change the way the nation’s largest private employer treats its employees. The organization provides support to Walmart associates when they speak out against unfair working conditions, low pay, limited work hours, and abusive management practices. Ms. Williamson, who was fired by Walmart, believes that the reason was her affiliation with OUR Walmart. Ms. Bassett continues to work at Walmart, but is uncertain about the future of her employment, since there has been a rash of firings of Walmart associates who have spoken up for themselves and their co-workers.

Author and activist Bill Fletcher noted the “systematic nature of barbarism” under which Walmart operates: the hiring and firing of vulnerable workers who, all too often, have no recourse to fight back or stand up for their basic workplace rights. The National Organization for Women has declared Walmart a National Merchant of Shame.

As America’s largest company and the largest retailer in the world, Walmart wields incredible influence in the retail and logistics industries. And with more than 4,000 stores and 1.4 million employees, Walmart’s sphere of influence extends to the entire economy. The Walton family's wealth alone equals the bottom 42% of American families' wealth combined, and Walmart's 2010 revenue was $408.2 billion. Yet Walmart associates are forced to rely on the public safety net to supplement the basic services they and their families need to survive. The basic injustices that these employees face on a daily basis, in the end, affect us all.

Democracy Matters: A Conversation on Voter Suppression and Citizens United

Today, AFJ's Isaiah Castilla will moderate a conversation around voter suppression and Citizens United, the landmark Supreme Court case that granted corporations the same first amendment rights as citizens, with Diana Sen (Associate Counsel, LatinoJustice PRLDEF) and Mimi Marziani (Counsel in Democracy Program of the Brennan Center), as a part of the "Democracy Matters" week at Culture Project's IMPACT Festival in New York City. Comedian and author, Lee Camp, will open the conversation with a stand-up solo performance.

Click here for more information and tickets.

We’re Ready for our Close-up: AFJ Has a Cameo on “The Newsroom”

A star is born. On Sunday night’s episode of Aaron Sorkin’s new HBO show, “The Newsroom,” a member of the newsroom’s staff referenced a (real!) Alliance for Justice report as justification for doing a story on the unprecedented obstruction of judicial nominations in the Senate.

AFJ makes its cameo appearance in a scene early in the episode, when Mac McHale, the show-within-a-show’s executive producer (played by Emily Mortimer), informs the newsroom staff that, in the interest of keeping up ratings, they will have to cut several stories to make room for a story on Casey Anthony. Tragically, one of those cut turns out to be a story idea centered on AFJ’s “State of the Judiciary” report.

Season 1, Episode 8 of “The Newsroom”

Those of you with an HBO subscription can catch up on the episode here; for those without, read on for a quick transcript of the scene.

Mac: "I think you already know that starting tonight we're leading with Casey Anthony. Does anyone have a problem with that?"
(Most of the staff raises their hands)
Mac: "Alright, well we lost almost half a million viewers to Nancy Grace last week. Does anyone still have a problem with it?"
(Staff raises their hands again)
Mac: "We're gonna clear out some of these stories to make room. (Reading from a whiteboard) ‘Senate Obstruction Becomes Worst in U.S. History’."
Gary: "That's a report by the Alliance for Justice. The Senate's confirmed a smaller percentage of Obama's judicial appointees than any other Senate and any other President."
Mac: "No reason to care about that" (Crosses off list)

* * *

AFJ to “The Newsroom”: Ouch! That hurts! (But thanks for the plug.)

Swimming upstream: the execution of Marvin Wilson

Guest post by Professor Lee Kovarsky

Marvin Wilson in 2006.
Photo: Texas Department Of
Criminal Justice / AP
This past Tuesday, Texas executed my client of 6.5 years, Marvin Wilson. Marvin had mental retardation (“MR”).  When I talked to Marvin three hours before Texas administered a lethal dose of pentobarbital, I tried to keep the conversation light. Inmates facing execution get a last meal; I asked Marvin what he was going to eat. He said, “Mr. Lee” (Marvin has never been able to pronounce or spell my last name), “I got me some good food but I told ‘em not to make it too nice ‘cause the Supreme Court might give me that stay you been askin’ for.”

That response broke my heart. I knew that Marvin’s request for an eleventh-hour stay would almost certainly fail. The issue was not that Marvin lacked a good case for a stay; it was that the Supreme Court almost never intervenes to stop Texas from executing inmates in Marvin’s situation. In capital crisis litigation, inmates swim against a punishing upstream current. That current is strongest where Texas imposes a death penalty, the United States Court of Appeals for the Fifth Circuit reviews it, and the currently-composed Supreme Court makes a last minute decision about whether to halt the state machinery of death.

The problem starts with Texas, and ends with federal abstention that many people find incomprehensible. Marvin’s case was, in all respects, a textbook example of how a dreadful Texas execution concludes with the ritualized drama and media coverage anticipating Supreme Court intervention that almost never materializes. I want to try to explain why.

Atkins and the Eighth Amendment exemption

The victim, a police informant, was murdered in 1992. In 1998, Texas convicted Marvin of murdering the victim because the victim had provided the police with information leading to Marvin’s narcotics arrest. Marvin and his co-defendant bumped into the victim at a convenience store, an altercation ensued, the two defendants forced the victim into a car, and the victim’s body was found the next day. The only evidence that Marvin was the shooter was the testimony of the co-defendant’s wife, stating that Marvin confessed his role to her, telling her not to “be mad” at her husband. Her husband got a life sentence; Marvin was sentenced to die.

In 2002, the Supreme Court decided Atkins v. Virginia, which announced a categorical Eighth Amendment exemption from capital punishment for offenders with MR. Atkins used a definition of MR from the leading standard-setting bodies, but delegated to the states the particulars of enforcing the Court’s categorical mandate. Atkins stated that the exemption not only reflected a national consensus that offenders with MR were less culpable, but also the concern that, because of their cognitive limitations, they were particularly vulnerable to wrongfully-imposed capital sentences. Offenders with MR don’t communicate well with their lawyers, they reject plea bargains that they should accept, they disproportionately take the fall for more-sophisticated accomplices, they don’t learn from their mistakes, they make terrible witnesses, and they are usually unable to express remorse in the terms necessary to avoid a capital sentence.

Swimming against the current

In the years following Atkins, almost every state legislature passed a statute defining MR. Not Texas. In 2004, the Texas Court of Criminal Appeals (“TCCA”—basically, the state criminal supreme court) stepped into the breach. In judicially defining MR for Texas Atkins litigation, it gestured at the accepted clinical definitions, but questioned the wisdom of using scientific definitions with which a majority of Texans might express disagreement. To address the gap between MR-as-defined-by-science and MR-as-defined-by-Texans, the TCCA devised seven “Briseño factors,” named after the TCCA case announcing them.

The Briseño factors involve questions such as whether an offender can “lie in his own self interest” and whether a person “is coherent and rational.” I don’t want to belabor a point that this week’s coverage has exhausted, but the Briseño factors have the imprimatur of no doctor or scientist, anywhere. They are self-evidently premised on stereotypes about people with the most profound variants of MR—the decision invokes John Steinbeck’s Lennie—but they continue to metastasize, and they now dominate the Texas MR inquiry. Their elasticity allows judges to narrow the Atkins exemption so that it protects only the most severely-incapacitated offenders.

The Briseño factors allowed Texas to execute Marvin, because he had MR under any clinical standard. He got a 61 on the clinically-accepted tool for intellectual assessment, his Wechsler full-scale IQ (“FSIQ”) test. When Marvin was examined by a board-certified neuropsychologist who had evaluated thousands of patients with MR, Marvin was diagnosed, based on years and years of corroborative data, as having mild MR. Marvin failed his special ed classes for years; he read and wrote at a second-grade level; he was still sucking his thumb when he became a father; he cinched his belt so tightly that it impaired his circulation. In short, Marvin’s intellectual and adaptive functioning was not close to borderline.

I’ve read the argument that intellectual functioning was a closer issue because there were other, MR-inconsistent FSIQ tests. That’s incorrect. There was an MR-consistent FSIQ score of a 73 on a test Marvin took when he was 13; the rest of “scores” in the briefing and circulating on the Internet are scores on tests that are not FSIQ assessment instruments. Moreover, those scores corroborated MR insofar as they confirmed Marvin’s effort on the nonverbal portions of his FSIQ testing.

What did Marvin in was the Briseño test. Marvin could “lie in his own interest” because he denied his guilt, the state court said. He was “coherent and rational” because the neuropsychological evaluators said that Marvin understood that he was being asked questions and tried to answer them. He was convicted of murdering the victim after a chance encounter at a convenience store, which the state court described as a crime exhibiting “complex execution of purpose.” Marvin did not have adaptive deficits, the Texas court reasoned, because he had a wife and a child. Apparently most Texans do not believe that people with MR can have families and love people.

The federal courts, especially the Supreme Court, would avoid this result, right? No. The Antiterrorism and Effective Death Penalty Act (“AEDPA”) is the federal “habeas corpus” statute passed in the wake of the Oklahoma City bombing. AEDPA restricts the authority of federal courts to vacate state capital sentences. AEDPA reads like a straightjacket in need of a spell check; federal courts can’t intervene to stop executions that they consider to be “merely” erroneous. Under AEDPA, the capital sentence must be “unreasonable” before a federal court can even consider vacating the penalty.

The currently-composed Supreme Court will issue a stay to halt the execution in only a small subset of those cases—cases involving a recurring legal issue that the Court wants to address. The days where one or more Justices have an appetite for mounting a sustained campaign against the death penalty seem to have passed us by. Some Justices used to dissent from orders denying Supreme Court review of capital cases on the ground that capital punishment was in all cases unconstitutional. Naturally, Justices expressing such views in mine-run cases were also Justices promoting more energetic intervention in particularly problematic executions. Like Marvin’s. There are none of those Justices left on the Court.

The phone call

Our ritualized executions end with a needle, but the legal fight usually concludes with a phone call from a dutiful clerk to a lead attorney (me), explaining that “the Court” has denied review and a stay. I sometimes make the mistake of referring to the Court as an “it” when I talk to families—rather than as a collection of “hes” and “shes.” The families find this impossible to understand; they want to know “who” is killing their son, father, uncle, or brother. But my answers can only give them “what.”

I try to explain that the state has imposed the sentence, and that a series of institutions subsequently decides whether to exercise a veto. One court is bound by statute to defer to another one, and that the Texas court had discretion to make up its own definition of MR, that the Justices don’t do “mere error correction,” and so on and so forth.

I hate this part of it; these explanations don’t make sense to normal people. The Supreme Court is a “they,” not an “it.” The Justices that comprise it are men and women who, like every other judge and jury member involved in the imposition of a capital sentence, base their decisions about what MR “is” on varied cultural, political, and personal experience.

After I told Marvin he was going to die, I told him it would not be in vain. I told him that he might not have changed the minds of “courts”, but that his story would eventually change the minds of living, breathing people—that his story would help highlight a particularly impoverished state of discourse about how we punish people like him.

Lee Kovarsky is Assistant Professor of Law at the University of Maryland Carey School of Law. Professor Kovarsky regularly represents capital prisoners during federal appellate and Supreme Court review of their sentences.