Senate Judiciary Committee Hearing for Five Nominees

The Senate Judiciary Committee held a confirmation hearing last Thursday for Andrew Hurwitz to the United States Circuit Court for the Ninth Circuit and for Kristine Baker, John Lee, John Tharp, Jr., and George Russell III to United States District Court seats in the Eastern District of Arkansas, the Northern District of Illinois, the Northern District of Illinois, and the District of Maryland, respectively.

Senator Durbin (D-IL) chaired the hearing and Senator Kyl (R-AZ) attended as well. The hearing was uneventful, with Senators Durbin and Kyl both congratulating the nominees on their nominations and wishing them well.

Four of the five seats which the nominees will fill if confirmed have been deemed judicial emergencies by the Administrative Office of the U.S. Courts.

For the most accurate, up-to-date information on the judicial selection process, visit the Alliance for Justice’s Judicial Selection page.

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The State of the Union

** UPDATE: THIS ALERT IS NO LONGER ACTIVE ** 

With America's judicial vacancy crisis growing worse by the day, President Obama highlighted the sorry state of the confirmation process during his State of the Union address.

Now you can join him in calling on the Senate to relieve the pressure on our courts caused by ballooning caseloads and judicial emergencies.

Tell your senators that delays are unacceptable. Ask them to vote on pending nominees without delay, without obstruction, and without partisan games.

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Supreme Court Extends 4th Amendment Protections in GPS Monitoring Case

On Monday, the Supreme Court delivered a limited victory (.pdf download) for privacy rights in United States v. Jones, holding that the police performed an unconstitutional search in this case. Although the majority opinion and two concurrences relied on different legal analyses, the decision signals the Court’s concern about the implications of new technologies for the Fourth Amendment’s protection of individual privacy.

District of Columbia police suspected Antoine Jones, a nightclub owner, of being involved in cocaine distribution. The warrant obtained by prosecutors allowed police to place a GPS tracking device on Jones's vehicle while it was in the District of Columbia and for ten days only. Instead, D.C. authorities placed the GPS device on Mr. Jones's car while it was located in Maryland and tracked Mr. Jones's car for a month. The device recorded Jones's vehicles movements continuously, 24 hours a day. Using the evidence gathered with the GPS device, authorities charged Mr. Jones with conspiracy to sell cocaine. 

At his trial, Jones moved to suppress the GPS evidence as an unreasonable search and invasion of his privacy in contravention of the Fourth Amendment. The trial court refused to suppress the evidence and he was convicted and sentenced to life in prison. On appeal, the U.S. Court of Appeals for the D.C. Circuit found that the police violated Jones’s reasonable expectation of privacy by putting the device on his car without a valid court order.

The Supreme Court unanimously affirmed the decision of the D.C. Circuit, however, the justices split 5-4 on their reasons for doing so. Justice Scalia, writing for the Court and joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, held that it is a “search” under the Fourth Amendment for law enforcement to place a GPS tracking device on a car and to use the device to monitor that car remotely. The majority revived a property-based approach to the Fourth Amendment for situations such as this one, in which a physical trespass has occurred, but left untouched the current “reasonable expectation of privacy” approach where no physical trespass is at issue.

Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, concurred in the judgment. However, Justice Alito would not have held that the installation of the GPS device was a search. Instead, he expressed his view that it was the long-term monitoring with the device that violated a reasonable expectation of privacy. He also criticized the majority for what he described as reliance on “18th Century tort law.” According to the concurrence, the majority’s property-based approach might not protect privacy as much as is required, particularly with the continuing advance of technology.

Justice Sotomayor, who joined the majority, also wrote a concurring opinion. In it, she signaled her openness to a potentially significant expansion of privacy rights. She stated that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

In sum, the majority’s holding in this case – and thus the law of the land – is that the installation and use of a GPS tracker on an automobile constitutes a “search.” Whether or not a warrant is required for such a search remains an open question, and one that will undoubtedly trouble privacy advocates. Nevertheless, the three opinions written in this case make it clear that the justices are concerned with what new technology means for personal privacy rights, a concern that will likely be fleshed out further in cases to come.

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President Obama's State of the Union Address Highlights the Sorry State of the Judicial Nominations Process

PRESS RELEASE

Washington, D.C., January 24, 2012—Alliance for Justice President Nan Aron issued the following statement about President Barack Obama’s call for action on judicial nominations during the State of the Union address:

With the nation’s federal courts in crisis, and with one in nine judgeships vacant, we applaud President Obama for using tonight’s State of the Union address to highlight the need for urgent Senate action on his judicial nominations. Relentless, unprecedented obstruction by Republicans threatens to create the almost unimaginable possibility that by the end of the President’s first term the overburdened federal courts may have more vacancies than when his presidency began. We believe the place for the Senate to start is with immediate votes for the 18 nominees currently awaiting final action, but then to work with the President to restore the federal court system to full strength by the end of this year. We urge the Senate to heed the President’s call for immediate action so that the state of the union can once again be characterized by an effective and fully staffed system of justice for all Americans.

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Corporate Court Rules for Industry in Slaughterhouse Case

Yesterday, the Supreme Court handed down its decision (.pdf download) in National Meat Association v. Harris, holding that a California state law requiring the humane handling of sick or disabled animals destined for slaughter was preempted by the federal law governing slaughterhouses.

In January 2008, the Humane Society released undercover video depicting sick and disabled cows (“downer” or “non-ambulatory” animals) being beaten, kicked, shocked, and dragged by forklifts and chains on their way to slaughter. In addition to raising concerns about animal welfare, the video inspired grave concerns about the safety of the food supply. Downer animals are much more susceptible to contracting and passing on the E. coli virus, mad cow disease, and salmonella, all of which pose severe health threats to humans. In fact, it later emerged that meat from those same animals had been part of the largest beef product recall in United States history.

The California State Legislature subsequently amended existing California laws governing slaughterhouses, to prohibit purchasing, selling, receiving, processing, or butchering of “nonambulatory” or “downer” pigs, sheep, goats or cattle, and requiring that such animals be immediately and humanely euthanized. The National Meat Association sued to enjoin the law, arguing that it was preempted by the Federal Meat Inspection Act (the “FMIA”).

The FMIA was first enacted in 1906, in the wake of Upton Sinclair’s exposé of the meat industry, The Jungle. FMIA is a comprehensive set of regulations governing the slaughtering process, designed to protect the health of consumers by ensuring that meat for human consumption is wholesome and not adulterated. The Court of Appeals for the Ninth Circuit ruled for California, holding that the state law did not conflict with the FMIA’s regulation of slaughterhouse activities, because its effect was to exclude certain types of animals from the slaughtering process all together.

The Supreme Court, in a unanimous opinion written by Justice Kagan, reversed the Ninth Circuit, finding the state law to be expressly preempted by the FMIA. The Court held that “[t]he FMIA regulates slaughterhouses’ handling and treatment of nonambulatory pigs from the moment of their delivery through the end of the meat production process,” and California’s law “endeavors to regulate the same thing, at the same time, in the same place—except by imposing different requirements.” Accordingly, the Court struck down the state law as preempted, thus undermining California’s efforts to ensure humane and safe handling of animals destined for slaughter.

As a result of the Court’s decision, it will be easier for potentially contaminated meat to get into California grocery stores, and more difficult for all states to protect the public health through the regulation of the food supply.

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Senate Confirms Gerrard to the District of Nebraska

The Senate last night confirmed Judge John Gerrard to be a United States District Court judge for the District of Nebraska. Judge Gerrard was confirmed by a bipartisan vote of 74-16. The Senate’s action leaves 18 other judicial nominees waiting on the floor for their confirmation votes, 17 of whom were reported out of committee either unanimously or with strong bipartisan support.

For the most accurate, up-to-date information on the judicial selection process, visit AFJ's Judicial Selection page.

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Citizens United, Two Years Later

Two years ago Saturday, the Supreme Court issued what may be its most pro-corporate decision yet, in the now-infamous case of Citizens United v. FEC (.pdf download).  The case has become emblematic of the Corporate Court.

There is no doubt that Citizens United is an important decision because of its effects on our electoral process. But it is also important because the decision is yet another brick in the wall of privilege that the Supreme Court has been building for the largest corporations. In the last year alone, the Supreme Court has:

• made it easier for corporations to escape liability in employment discrimination class action suits (Wal-Mart v. Dukes);
• made it more difficult for consumers who were ripped off to band together by forcing them into individual arbitration (AT&T v. Concepcion (.pdf download));
• made it more difficult for citizens hurt by global warming to sue to stop big polluters (American Electric Power Company v. Connecticut); and
• made it easier for pharmaceutical companies to get doctors’ prescription data for marketing purposes (Sorrell v. IMS Health). 

Under Chief Justice John Roberts, this Supreme Court has expanded corporate power in decision after decision.

Fortunately, many are fighting back. Last week, on the two-year anniversary of the decision a group of citizens gathered on the steps of the Supreme Court to protest the decision and corporate influence in the courts. The protest was part of a nationwide series of “Occupy the Courts” demonstrations.

Click here to learn more about the Corporate Court.

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The Court Chips Away at the Voting Rights Act

Guest post by Professor Bertrall Ross

The headline from the Texas redistricting cases is that the Texas Republican Party won.  But the true victors from the Supreme Court ruling in the consolidated cases are the jurisdictions covered under Section 5 of the Voting Rights Act – the jurisdictions required to obtain approval for districting changes.

The unanimous holding that the federal court in San Antonio had not given enough deference to the state legislative districting determinations was rather unremarkable and mostly expected.  The federal court had essentially constructed a new districting arrangement out of whole cloth based on considerations that the legislature is ordinarily deemed best suited to make.  It is also rather unremarkable that the Court imported a preliminary injunction standard that requires federal courts to consider the likelihood of success on the merits prior to making districting changes in response to alleged violations of Section 2 of the Voting Rights Act and the Constitution.  As with any attempt to enjoin preliminarily a government act, the burden should be on the parties to show that they will likely succeed on the claim before the court stops the government from acting.  Ultimately, on this matter, the victory of the Texas GOP may be rendered incomplete, as the San Antonio court will probably impose an interim plan that is less favorable to the Republican Party than the state’s plan would be, since the court has indicated that the latter likely contains violations of both Section 2 and the Constitution. 

What is remarkable about the consolidated cases is how the Supreme Court continues to transform, without invalidating, the Section 5 preclearance mechanism into one that is decreasingly burdensome on the states at the expense of minority voters.   The Court starts its discussion of the Section 5 issue presented in the cases by restating the long-standing rule that this provision prevents implementation of a state plan that has not been approved by the United States Attorney General or the District Court for the District of Columbia.  Ordinarily, a situation such as that presented by Texas is an open and shut case under Section 5.  Neither the Attorney General nor the District Court for the District of Columbia have approved the change to the electoral law, therefore the electoral law cannot be changed and the prior law must be kept in place for the upcoming election.  However, the Court acknowledged that redistricting changes present a unique problem.  Since the establishment of the one-person, one-vote requirement, states and local jurisdictions are constitutionally mandated to make changes to districting arrangements after every census to ensure equal population districts.  The usual option of no change to the electoral law is therefore no longer available.  Some districting plan has to be put in place before the first election after every census. 

For districting arrangements such as those in Texas, which have not yet been pre-cleared in the face of an impending election, the Court had essentially two options.  First, it could have allowed the un-precleared state plans to be adopted for this election cycle.  This approach would have severely undermined the pre-clearance mechanism, as covered states would be incentivized to engage in delay tactics when seeking pre-clearance, in hopes that a plan presumably harmful to minority voters be used during the first post-census elections.  The Court fortunately did not go this route. 

However, the Court had only one other option available to it under Section 5, an option only slightly more appealing from the perspective of minority voters.  Since only the District Court for the District of Columbia can adjudicate Section 5 preclearance questions under the Voting Rights Act, the Court instructed lower federal courts responsible for drawing up alternative plans to not “prejudge the merits of preclearance.”  Instead, they must accept the policy judgments reflected in the state plan unless particular aspects “stand a reasonable probability of failing to gain Section 5 preclearance.”  It is not exactly clear what a standard of “reasonable probability” means.  Depending on the court, the standard may result in a great deal of deference given to the state plan or very little to no deference at all.

But irrespective of how lower courts interpret the standard, the requirement that any new districting plan must be precleared before being employed has been loosened.  And ever so slightly, the incentives for covered jurisdictions to take the slowest route toward preclearance has increased based on the possibility, and in some cases the strong possibility, that an un-precleared plan could be employed in at least one election.  One election may not seem like such a big deal, but when one considers that the terms in the Texas state legislature can run up to four years in the election after the decennial reapportionment, the stakes grow.  The burden of delay when covered jurisdictions seek pre-clearance is now firmly on minority voters, as they face the possibility of having to endure an election under a plan that makes them worse off than they were under the prior plan.  The Texas redistricting decision therefore represents a subtle yet important win for the covered jurisdictions and a loss for minority voters.   

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Bertrall Ross teaches Legislation, Election Law, and Constitutional Law at Berkeley Law. In the area of legislation, his current research seeks to address how courts should reconcile legislative supremacy with the vexing problem of interpreting statutes in contexts not foreseen by the enacting legislature. In election law, he is examining the constitutional dimensions and the structural sources of the marginalization of the poor in the American political process.

Prior to joining the Berkeley faculty, Bertrall was a Kellis Parker Academic Fellow at Columbia Law School. He clerked for the Honorable Dorothy Nelson of the Ninth Circuit Court of Appeals and the Honorable Myron Thompson of the Middle District of Alabama. He received his J.D. from Yale Law School and has an M.Sc in the Politics of the World Economy from the London School of Economics, a Masters in Public Affairs from Princeton University Woodrow Wilson School of Public and International Affairs, and a B.A. in International Affairs and History from the University of Colorado, Boulder.

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Supreme Court Sides with Texas in Redistricting Dispute

Last week, the Supreme Court issued a unanimous unsigned opinion (.pdf download) in the cases consolidated as Perry v. Perez, rejecting the interim electoral maps drawn by a three-judge district court panel in San Antonio for failing to defer adequately to the legislature’s choices. The decision is seen as a win for the Texas GOP.

2010 Census data revealed that a population explosion and demographic change in Texas had left the state’s electoral maps in violation of the Constitution’s one-person, one-vote mandate and in need of being redrawn. Under Section 5 of the Voting Rights Act of 1965, Texas is one of a number of jurisdictions that are required to seek “preclearance” for any changes to their electoral system because of past voting discrimination on the basis of race. Accordingly, Texas submitted its redrawn maps to a three-judge district court panel in DC, which has not yet ruled on preclearance.

Advocates suggest that the Republican-dominated Texas legislature redrew the maps in a way that dilutes African-American and Latino voting strength. Thus, voters and advocacy groups filed suit in federal court in San Antonio, alleging that the changes violate Section 2 of the Voting Rights Act, which prohibits any state from adopting electoral procedures that undermine minority voting rights, as well as the Fourteenth Amendment. In view of the impending election season, the San Antonio court drew interim maps to be used until the preclearance issue could be resolved. Texas appealed to the Supreme Court, arguing that the district court had erred in drawing new maps and that the legislatively-drawn maps should be used as interim maps instead.

In its decision, the Supreme Court reiterated that a new electoral map cannot be used until it has been precleared, while also noting that the old electoral map in this case could not be used because it violated the one-person, one-vote constitutional mandate. As a result, the Supreme Court concluded that the district court in San Antonio was correct to create an interim electoral map for the 2012 election.

However, the Supreme Court found that the San Antonio court should have given greater deference to the legislature’s preferences rather than “substitut[ing] its own concept of ‘the collective public good’ for the Texas Legislature’s determination of which policies serve ‘the interests of the citizens of Texas.’” In essence, the district court should not have modified the legislature’s maps except where there are alleged legal problems with those maps that have a likelihood of success on the merits.

With regard to Section 5, the Supreme Court instructed the district court not to prejudge the preclearance proceedings on the merits, instead “taking guidance from a State’s policy judgment unless they reflect aspects of the state plan that stand a reasonable probability of failing to gain § 5 preclearance.”  It remains to be seen how district courts will apply this opaque formulation. In the meantime, it seems likely that the maps the San Antonio court must design on remand for use in 2012 will bear much greater resemblance to the legislature’s maps, vote dilution and all.

Those concerned with voting rights should take note that Justice Thomas penned a concurrence in which he reiterated his belief – previously noted in his dissent in Northwest Austin Municipal Util. Dist. No. One v. Holder (2009) – that Section 5 of the Voting Rights Act is unconstitutional.

By rejecting the court-drawn maps and ordering greater deference to the legislature’s maps, the Court’s ruling will likely have the effect of diluting minority voting rights in the 2012 elections.

Shortly after issuing its decision in this case, the Supreme Court issued a short order (.pdf download) staying the order of a three-judge district court panel in West Virginia pending appeal. The Charleston court had held that “zero variance” in population is required to satisfy the one-person, one-vote constitutional mandate. As a result of the Supreme Court’s stay, West Virginia can proceed with its elections using a legislatively-drawn map. 

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Wal-Mart Plaintiffs Continue Their Fight in Texas

Representing a class of 50,000 current and former female employees of Wal-Mart and Sam’s Club stores in Texas, plaintiffs have filed an amended complaint (.pdf download) in district court in the Northern District of Texas. The complaint alleges that Wal-Mart engages in widespread gender discrimination against its female employees throughout Texas in its pay and promotion policies and practices.

This is the second regional lawsuit that plaintiffs have filed against Wal-Mart, following the June 2011 decision in which the Supreme Court reversed a lower court’s certification of a class of 1.5 million current and former female Wal-Mart employees nationwide. In that 5-4 decision, Wal-Mart v. Dukes, the Supreme Court issued new guidelines for class actions and Title VII Civil Rights Act employment discrimination cases, and held that the Wal-Mart plaintiffs had failed to meet the requirement that the class have a question of law or fact in common.

According to the plaintiffs’ attorneys, “Evidence in the case shows that women who hold salaried and hourly positions in the Texas stores have been paid less than men in comparable positions, although on average the women have more seniority and higher performance ratings than men.” They note in addition that “[w]omen in Wal-Mart’s Texas stores also had a much lower chance of being promoted than men, and those who did get promoted waited significantly longer for job promotions.”

Plaintiffs’ attorneys plan to file many similar suits against the giant corporation, alleging long-standing, widespread discrimination against Wal-Mart’s female employees in pay and promotion.

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Senate Returns Next Week - Nominees on the Agenda

When the Senate returns from its recess next week, the Judiciary Committee will hold an Executive Business Meeting and a Nominations Hearing.

On Thursday morning, the committee will hold an Executive Business Meeting at which Republicans will most likely delay a vote on Paul Watford, who has been nominated to fill a judicial emergency vacancy on the Ninth Circuit Court of Appeals.

On Thursday afternoon, the committee will hold hearing on the nominations of Andrew David Hurwitz, also nominated to fill a seat on the Ninth Circuit, and of four district court nominees: Kristine Gerhard Baker, nominated to the Eastern District of Arkansas; John Z. Lee and John J. Tharp, both nominated to the Northern District of Illinois; and George Levi Russell III, nominated to the District of Maryland.

The seats Hurwitz, Lee, Tharp, and Russell would be filling have all been deemed emergency vacancies by the Administrative Office of the U.S. Courts.

With 103 current and future vacancies on the federal bench, the Senate needs to act quickly confirm all 37 pending nominees.

For the most accurate, up-to-date information on the judicial selection process, visit AFJ's Judicial Selection page.

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Supreme Court Rules for Consumer in Robocall Case

The Supreme Court yesterday issued its decision in the case of Mims v. Arrow Financial Services, holding that state and federal courts have concurrent jurisdiction to hear civil suits brought by consumers who have fallen victim to illegal and harassing robocalls.

Arrow Financial Services (“Arrow”) is an originator, servicer, and collector of private student loans. Marcus Mims claims that Arrow harassed him about student loan payments by repeatedly calling his cell phone with an automated dialing system and leaving prerecorded voicemails. Mims sued in federal district court and argued that Arrow’s activity violated the Telephone Consumer Protection Act (“the Act”), a statute passed by Congress to restrict the ability of companies to harass consumers over the phone. The district court dismissed the complaint and the Eleventh Circuit upheld (.pdf download) the dismissal, reasoning that Congress intended to limit jurisdiction over lawsuits under the Act to state courts.

The Supreme Court reversed this holding, allowing consumers to stand up for their rights under the Act in both state and federal court. The Court reasoned that the Act does not use the words “only” or “exclusively” in granting jurisdiction to state courts. Furthermore, the Court found that the Act created a federal right of action, and thus, federal courts retain concurrent jurisdiction over causes of action under the Act as an exercise of their general federal-question jurisdiction.

A brief (.pdf download) filed by the National Association of Consumer Advocates, an AFJ member organization, and the National Consumer Law Center states that, “[n]otwithstanding Congress’s clearly stated intentions, extensive non-compliance by national and international telemarketing and related industries under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA) is not at all uncommon.”  The organizations added that “this unfortunate state of affairs is the failure of the Act’s private right of action, § 227(b)(3), to provide the vigorous enforcement and effective deterrence mechanism that Congress envisioned when it adopted this law.”

By siding with Mims, the Supreme Court has provided consumers with the ability to hold companies accountable for unlawful telephone harassment in federal court, where they might receive greater relief than they would in the courts of states with weaker consumer protections.

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A Decade of Guantanamo: Where Do We Stand Today?

Ten years ago this week, the United States opened a detention facility at its naval base in Guantanamo Bay, Cuba.

Since that time, the name “Guantanamo” has come to be associated both in the United States and around the world with torture, lawlessness, indefinite detention, violations of civil rights, violations of international law, and abuse of power. The facility has been open for ten years now, but unfortunately, as Dahlia Lithwick noted this week in Slate, “It’s hard to say anything new about 10 full years of Guantanamo, beyond the fact that most of what we wrote two, four, and seven years ago still holds mostly true.”

As David Cole recognized in the New York Times:

'The existence of Guantanamo likely created more terrorists around the world than it ever detained.’ So said President Barack Obama in 2009, defending his promise to close the prison camp there. He is hardly the only one to hold the view that Guantánamo undermines our security and should be shuttered. Former President George W. Bush, former Secretary of Defense Robert Gates, former secretaries of state Colin Powell and Condoleezza Rice, and Senator John McCain, all agreed that the United States would be better off without Guantánamo. Few images do more to serve Al Qaeda’s interests.

There were hopes that the United States could remove this stain on its national character.  Unfortunately, Congress has imposed restrictions on detainee transfers that have made it much more difficult to turn the page on this sad chapter in American history.

The United States was founded on a set of principles, and those principles are challenged every day by the continued operation of Guantanamo Bay and by everything Guantanamo Bay has come to represent.  Serious accusations have been made that torture was commonplace at Guantanamo, and Alliance for Justice has long advocated for greater accountability for those who legitimized torture at such facilities. We have called on Attorney General Eric Holder to conduct a full investigation of those who authorized torture.

This facility has been allowed to remain open for an entire decade.  It must not remain open any more.

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Supreme Court Rules Unanimously In Offshore Workers’ Comp Case

This morning the Supreme Court issued its decision in Pacific Operators Offshore, LLP v. Valladolid (.pdf download), affirming the Ninth Circuit’s holding that workers in the offshore extractive industry who are injured while working onshore may receive workers compensation under the Outer Continental Shelf Lands Act (OCSLA). In this unanimous opinion, written by Justice Thomas, the Court applied standard methods of statutory interpretation in a straightforward manner to resolve a split among the circuit courts in interpreting the OCSLA.

Juan Valladolid was killed when a forklift crushed him while he was working for Pacific Operations Offshore, an oil extraction company.  Valladolid spent 98% of his working hours on an oil platform on the Outer Continental Shelf (OCS) three miles from the California coast but died while working onshore to clean up scrap metal taken from operations on the OCS.  Valladolid’s widow, Luisa, argued that she was entitled to benefits under the Outer Continental Shelf Lands Act (the Act), which requires employers or their insurance providers to pay benefits to individuals or surviving relatives when employees suffer “any injury occurring as the result of operations conducted on the [OCS] for the purpose of exploring for, developing, removing, or transporting by pipeline the natural resources…of the [OCS].” An administrative law judge denied Luisa Valladolid’s claim for benefits because her husband’s death did not occur “on the subsoil and seabed of the [OCS], or the artificial islands and structures erected thereon.”

The Ninth Circuit Court of Appeals reversed this decision and held that the plain language of the Act shows that a death or injury does not have to occur on the OCS for an injured employee or surviving relative to receive benefits as long as there is “a substantial nexus between the injury and extractive operations on the shelf.” The Ninth Circuit’s test conflicted with those devised by two other circuits. The Third Circuit had adopted an expansive reading of the statute as covering all injuries that would not have occurred “but for” the operations on the OCS – including, for example, a worker “killed in a car accident on the way to the helicopter that was to fly him to the rig” that he worked on. The Fifth Circuit, on the other hand, had adopted a much narrower interpretation, holding that the statute covered only injuries actually suffered “on an OCS platform or the waters above the OCS.”

Surprisingly, given the Supreme Court’s penchant for reversing the Ninth Circuit’s decisions, the Court in this case affirmed the Ninth Circuit’s ruling and its “substantial nexus” test, through a common sense reading of the statute in question. As a result, workers in the offshore extractive industries who are injured or killed while working onshore may still receive benefits under the OCSLA if they can show a “substantial nexus” between their injury and operations on the Outer Continental Shelf.

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Corporate Court Okays Religious School’s Discriminatory Firing of Teacher

This morning the Supreme Court issued its decision in Hosanna Tabor Evangelical Lutheran Church and School v. EEOC (.pdf download), holding that the First Amendment prohibits a “called” teacher who has been fired from a religious school from suing for employment discrimination.

Cheryl Perich was a teacher of primarily secular subject matter at Hosanna-Tabor Lutheran School.  Perich became ill in July 2004 and took medical leave. When Perich recovered and adapted to her treatment, she told the school she wanted to return to teaching, but the school expressed concerns about her disability and asked her to resign. Perich told school officials she would file a disability discrimination suit if they could not come to an amicable solution. Soon thereafter, Perich was fired.

The EEOC filed charges against Hosanna-Tabor for illegally retaliating against Perich and firing her for discriminatory reasons. Hosanna-Tabor claimed that its actions were protected by the Establishment Clause and the Free Exercise Clause of the First Amendment. The school cited the “ministerial exception” to employment discrimination laws, which the lower courts of appeal have created and applied for some time, but which has never been acknowledged or approved by the Supreme Court. Under this exception, religious institutions are immune from discrimination suits if a fired employee had primarily religious duties.

Reversing the Sixth Circuit, the Supreme Court held today for the first time that there is a “ministerial exception” to federal employment discrimination laws, including Title VII and the ADA. The Court then proceeded to apply a totality of the circumstances test to conclude that Perich was a “minister” and that therefore the ministerial exception applies and her suit is barred. Focusing on Perich’s religious training, title, and the religious duties that she performed, the Court downplayed the fact that the vast majority of her duties were secular and that most of her religious duties were also performed by lay teachers.

By siding with Hosanna-Tabor, the Supreme Court has rendered religious schools immune from suit for discriminating or retaliating against employees for reasons unrelated to religious doctrine. This makes it difficult for teachers to speak out against misdeeds within religious schools and institutions for fear of retaliation, and allows religious institutions to discriminate with impunity.

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Corporate Court Finds No Federal Remedy for Constitutional Violations by Private Prison Contractors

The Supreme Court issued its decision today in Minneci v. Pollard (.pdf download), holding that employees of a private corporation operating a federal prison may not be held liable under federal law for committing constitutional violations. In so doing, the Court has left the 16% of the federal prison population that resides in privately-run facilities without a federal remedy when their jailers violate their constitutional rights.

Richard Lee Pollard was incarcerated in a federal prison in Taft, California. The prison was operated under contract by a private company, Wackenhut Corrections Corp. (now part of the Geo Group). In April 2007, Pollard tripped over a cart that had been left in the hallway, fell, and broke both of his elbows. Prison employees forced him to use his broken arms in painful ways, refused to provide the splints recommended by his doctors, and made him engage in prison tasks before his injuries had healed.

Pollard sued both the corporate entity and individual employees for damages under Bivens v. Six Unknown Federal Narcotics Agents, claiming that his Eighth Amendment right not to be cruelly punished had been violated. Bivens was a 1971 case in which the Supreme Court created a damages remedy against federal officers for constitutional violations, where there was no other remedy available.

In today’s decision, the Court reversed the Ninth Circuit’s holding that a Bivens action is available where the only alternative remedy is under state law. The Court followed its 2001 decision in Correctional Services Corp. v. Malesko, in which it held that the prisoner plaintiff could not state a Bivens claim against the private corporate entity running the federal prison in which he was incarcerated. In Malesko, the Court reasoned that a suit against a corporation would not deter individual misconduct, and that the plaintiff could sue under state tort law instead. Although in this case Pollard sued individual Wackenhut employees, the Court nonetheless concluded today that there is no reason to imply a Bivens remedy because, as in Malesko, Pollard can pursue his claims under state tort law.

However, as Justice Ginsburg points out in her lone dissent, Pollard would clearly have had a Bivens remedy if he were incarcerated in a prison run by the government, under the Court’s decision in Carlson v. Green. It is only happenstance that he was placed in a prison run by a private contractor, so he should have the same federal legal remedies available to him as if he were held in a government-run prison.

Justice Ginsburg argues that finding a federal cause of action here would serve the Bivens Court’s interests in the application of uniform federal law to such claims, and in creating a means to deter individuals from violating constitutional rights.

The federal Bureau of Prisons relies increasingly on outsourcing the incarceration of federal prisoners. In addition to the 16% of the federal prison population in privately-run facilities, nearly half of federal immigration detainees are held in privately-run detention facilities. Because private prison contractors have incentives to cut costs in order to maximize their profits, they pay corrections officers less, provide less training, and maintain fewer officers per inmate, as compared to federally-run prisons. As a result, inmates held in privately-held facilities face greater dangers to their health and safety than do other prisoners, and federal oversight of such facilities has been insufficient to correct such shortcomings. Yet today the Court has shut the federal courthouse doors to inmates who suffer as a result of these dangers.

Because the Supreme Court has ruled in favor of the corporate employees, inmates who are held in privately-run federal prisons are unable to sue under federal law when their constitutional rights are violated by their jailers.

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Corporate Court Rules Once Again That Big Business May Force Arbitration

Today the Supreme Court issued its decision in CompuCredit v. Greenwood (.pdf download), ruling once again that corporations may force individual consumers to arbitrate their claims, thereby restricting consumers’ access to the courts.

In an 8-1 opinion written by Justice Scalia, the Court held that the Credit Repair Organizations Act (CROA) is silent on whether or not claims under the Act may be arbitrated, therefore the Federal Arbitration Act (FAA) requires that the arbitration agreement be enforced.

Plaintiff consumers filed a class action lawsuit against CompuCredit and other credit providers after signing up for a credit card that was advertised to consumers with low or weak credit scores as helping to “rebuild your credit, “rebuild poor credit,” and “improve your credit rating.”  Although the credit providers’ promotional materials stated that consumers would immediately receive $300 in available credit, consumers were charged $257 in fees in the first year, plus the interest that would accrue if the fees were not immediately paid.  The consumers sued the companies for their deceitful tactics under the Credit Repair Organization Act (“CROA”) and California’s Unfair Competition Law.  CompuCredit moved to dissolve the class action and force each plaintiff to settle his or her own complaint in binding arbitration.

The Court held today that the arbitration clause in CompuCredit’s take-it-or-leave-it contracts with consumers are enforceable, thereby preventing consumers from filing a class action lawsuit in court.

This conclusion is shocking, considering that Congress specifically required companies like CompuCredit to inform their customers: “You have a right to sue a credit repair organization that violates the Credit Repair Organization Act.”  Nonetheless, the Court found that this provision of the CROA only creates the right to receive the statement, not an underlying right to sue. Instead, the Court found that so long as parties could enforce the law in some way – such as arbitration – the CROA is not violated. The Court maintained that the “right to sue” language is “a colloquial method of communicating to consumers that they have the legal right, enforceable in court, to recover damages from credit repair organizations that violate the CROA,” and that “most consumers would understand it this way, without regard to whether the suit in court has to be preceded by an arbitration proceeding.”

In dissent, Justice Ginsburg argued that the majority’s interpretation of the CROA’s “right to sue”  “may be comprehensible to one trained to ‘think like a lawyer.’” However, she points out, Congress enacted the CROA to protect vulnerable consumers of “limited economic means,” who are “likely to read the words ‘right to sue’ to mean the right to litigate in court, not the obligation to submit disputes to binding arbitration.” Particularly in a statute designed to prevent credit repair organizations from unfair and deceptive practices, Justice Ginsburg finds that Congress certainly did not intend to allow those organizations to deceive consumers by telling them they had a right that they do not in fact have – i.e., the right to sue.

By ruling for CompuCredit, the Supreme Court has found yet another way to close the courthouse doors to ordinary Americans. This decision follows on last year’s decision in AT&T v. Concepcion, in which the Court granted companies the right to draft contracts forcing consumers to arbitrate disputes one-by-one, without recourse to banding together in class actions.  By preventing plaintiffs from being able to band together to sue CompuCredit and other credit providers for their deceitful practices, either in court or in arbitration, the Court has ensured that corporate defendants are unlikely to be held accountable for defrauding consumers.

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Corporate Court Hears Argument in Union Fee Case

Today, the Supreme Court will hear argument in the case of Knox v. SEIU, in which unions’ ability to engage in political advocacy on behalf of workers is at stake.

Service Employees International Union (SEIU) represents 1.8 million people in health care and public service. Non-member public employees are required by California state law to pay SEIU a “fair share fee” to defray the costs of union representation on their behalf. To that end, each year SEIU sends its non-members a notice, as required by the Supreme Court, which informs non-members of their fair share fee and of their right to object to paying non-chargeable expenditures including money spent for political advocacy. Those fees are calculated based upon expenses during the previous year and do not take into account unforeseen expenses.

In 2005, SEIU issued a valid annual notice informing non-members of the percentage of their dues which would be allocated to union representation and gave them 30 days to opt out of paying amounts associated with non-representation functions. The notice stated that dues were subject to change based on actual costs. A month later, SEIU imposed an emergency temporary assessment fee to defend against attacks on union plans and charged non-members who objected to the increase the percentage set forth in the initial notice as the amount associated with union representation. A group of nonmember state employees in California challenged this practice in a class action suit against SEIU.

Employees claim that SEIU’s failure to send out a supplemental notice when the union imposed a special assessment violated employees’ First and Fourteenth Amendments rights by forcing non-union employees to subsidize union political activities. SEIU counters that its notice was constitutionally and legally sufficient because the Supreme Court has recognized that the notice did not require an exact determination of the yearly expenditures, but merely a good prediction based upon the previous year’s audits. The Court previously recognized the impossibility of anticipating expenditures at the outset of the fee year and that once the union sent the original notice it need not send a second notice speculating how a fee increase might be spent. The district court found for the employees, but the U.S. Court of Appeals for the Ninth Circuit reversed, finding that a temporary fee increase did not require an additional notice.   

If the Supreme Court rules against the SEIU, it will erode the power of unions to fight back against new political attacks by making it harder to raise additional funds to respond.

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Asking the Supreme Court to Do the Right Thing

The Alliance for Justice and ten other reform-minded organizations have sent a letter to the justices of the Supreme Court calling upon them to formally and voluntarily bind themselves to the Code of Conduct for United States Judges.

The Code of Conduct applies to all other members of the federal judiciary; only the nine justices of the Supreme Court are exempt. The members of the Court state that they look to the Code for guidance and act as if bound by it; however, behavior by some of the justices, including attending and speaking at overtly political gatherings and participating in fundraisers, belies this claim.

We call on the justices of the Supreme Court to take affirmative action to assure the public of their commitment to the highest standards of ethics by formally adopting and binding themselves to the Code of Conduct, action they can, and should, take on their own.

Add your voice! Sign our petition to Chief Justice Roberts and ask that the Supreme Court voluntarily adopt the Code of Conduct.

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The Preclearance Flaw

Guest post by Professor Bertrall Ross

The consolidated cases of Perry v. Perez, Perry v. Perez, and Perry v. Davis (the Texas redistricting cases) highlight for the first time an important flaw in the preclearance mechanism under Section 5 of the Voting Rights Act that is central to the case.  This flaw arose because Congress in 1965 did not foresee preclearance being applied to the mandatory change of decennial reapportionment. In fact, congressional focus at the time of enactment in 1965 was on deterring jurisdictions with a history of voting discrimination (covered jurisdictions) from making discretionary changes to their voting laws that had the purpose or would have the effect of denying the vote on account of race.  Congressional concerns about vote dilution would only arise later. 

The covered jurisdictions under the preclearance mechanism as applied to discretionary voting changes had the option of maintaining the status quo with respect to their voting laws or seeking preclearance for any electoral changes that they chose to make.  And as originally conceived, when the covered jurisdiction decided to make an electoral change and proceed down the preclearance route, any costs associated with the delay of obtaining preclearance would be borne by the covered jurisdiction because it would have to retain the prior law until the new law was approved.

Faced with this burden of delay, the covered jurisdiction could decide whether to proceed down any of the three routes designated in the law to obtain preclearance. First, it could seek preclearance from the Department of Justice, which proceeds in a more expedited fashion.  Alternatively, it could seek preclearance from the Department of Justice concurrently with a declaratory judgment action in the District Court for the District of Columbia. This would also provide expedited review while the declaratory action wound its way through the more deliberate judicial channels.  Finally, the covered jurisdiction could proceed down the slow route and seek preclearance exclusively through a declaratory judgment action in the District Court for the District of Columbia.  When the voting change was discretionary, minority voters generally did not suffer any consequences from the delay since it could not go into effect until it was approved.

The flaw in the Section 5 pre-clearance mechanism arises from situations, such as reapportionment, where covered jurisdictions are required to make voting changes. The constitutional requirement of one-person, one-vote mandates that states reapportion to create electoral districts of equal population at least every ten years. In addition to the mandatory nature of the change, there are important time constraints associated with it. Covered jurisdictions ordinarily have to reapportion between the time it receives the census numbers and the next election. In the case of Texas, this meant that it had about a year to reapportion and obtain preclearance for the change.

Now, there is a dispute about whether Texas intentionally delayed the process of reapportionment; however, the arguments of the appellees in the case that the state should be penalized for the manner in which it sought preclearance — through the slow route of the declaratory judgment action in the District Court of the District of Columbia — seems a little misguided from a legal perspective. Sure, the State could have gone through the more expedited channels of the Department of Justice — and given the Texas’s history of violations of the Voting Rights Act, it is probable that the decision not to do so is driven in part by its minimal regard for the rights of minority voters — but there is nothing in the statute itself suggesting that it has to. And once it decided to proceed down the path of a judicial declaratory judgment action, it also seems wrong to suggest that they were legally required to forego pre-trial adjudication procedures such as summary judgment, even again recognizing the potentially nefarious motives for this decision that slowed the process.

What this case points to is the fact that the preclearance mechanism did not account for cases, like reapportionment cases, in which the burden of delay does not necessarily fall on the covered jurisdiction.  In these cases, the change has to made –  a new reapportionment plan has to be adopted for the 2012 elections to accord with the constitutional requirement of one person, one vote.  And the fact remains that judicial process takes time and such process often will not be able accommodate the time constraints presented in cases like this one.

If Congress had anticipated the conundrum presented by the need to obtain preclearance for reapportionment in 1965, it would have likely forced covered jurisdictions to proceed down the more expedited path in such cases. And the fault of subsequent Congresses responsible for the re-authorization of the statute in 1970, 1975, 1982, and 2006 was that they simply assumed that covered jurisdictions would continue to proceed, as they had with respect to most other voting changes, through the more expedited channels of DOJ preclearance, even though the covered jurisdictions were not required to do so.

Assuming that the court rejects the court plan and adopts the state plan as the interim plan until preclearance is obtained, as I expect it will, this suggests the need for a congressional fix to the pre-clearance mechanism since the burden of delay will now fall on minority voters who face potential deprivations of their rights. Such a fix would force covered jurisdictions to obtain preclearance for changes necessitated by reapportionment through the more expedited preclearance channel involving the Department of Justice. I don’t see this fix as particularly politically feasible in the current context, but perhaps it could be made prior to the next decennial reapportionment assuming Section 5 is still around.

A version of this entry also appears on SCOTUSblog.
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Bertrall Ross teaches Legislation, Election Law, and Constitutional Law at Berkeley Law. In the area of legislation, his current research seeks to address how courts should reconcile legislative supremacy with the vexing problem of interpreting statutes in contexts not foreseen by the enacting legislature. In election law, he is examining the constitutional dimensions and the structural sources of the marginalization of the poor in the American political process.

Prior to joining the Berkeley faculty, Bertrall was a Kellis Parker Academic Fellow at Columbia Law School. He clerked for the Honorable Dorothy Nelson of the Ninth Circuit Court of Appeals and the Honorable Myron Thompson of the Middle District of Alabama. He received his J.D. from Yale Law School and has an M.Sc in the Politics of the World Economy from the London School of Economics, a Masters in Public Affairs from Princeton University Woodrow Wilson School of Public and International Affairs, and a B.A. in International Affairs and History from the University of Colorado, Boulder.

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Corporate Court To Hear Argument in Clean Water Act Case

On Monday, the Supreme Court will hear argument in the case of Sackett v. EPA, in which the ability of the EPA to compel compliance with environmental laws is at stake.

The Sacketts bought a half-acre of land in a wetland area and, without seeking any environmental permits, filled it with dirt and rock in preparation for building a home. The EPA issued an order against the Sacketts to restore the property to its prior condition on the grounds that the land was wetlands protected by the Clean Water Act. The Sacketts went to court to seek court review of the EPA order before the EPA had an opportunity to bring an action in court to enforce the order.

The U.S. District Court for the District of Idaho dismissed the case on the grounds that judicial review of the order was improper. The Ninth Circuit affirmed the lower court’s dismissal. The Sacketts claim that denying them court review of the EPA’s order against them violates their due process rights under the Constitution. The EPA counters that there is no due process violation because the Sacketts can get court review once the agency seeks to enforce the order against them.

It is important to note that the Supreme Court recently denied the certiorari petition of General Electric in General Electric v. Jackson, a case very similar to this one challenging the constitutionality of administrative orders under Superfund. If the Supreme Court allows pre-enforcement review of orders under the Clean Water Act, it would likely follow that Superfund order authority would also be subject to such review.

If the Supreme Court allows the Sacketts to get court review of the order, it will hamper the ability of the EPA to enforce timely compliance with the Clean Water Act. Further, such a ruling could lead to future challenges of other important environmental regulations, such as the Clean Air Act and Superfund.  

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Supreme Court to Hear Texas Voting-Rights Case

On Monday, the Supreme Court will hear argument in the consolidated cases of Perry v. Perez, Perry v. Perez, and Perry v. Davis, in which the voting rights of the African-American and Latino citizens of Texas are at stake.

The state of Texas has experienced tremendous population growth and demographic change in recent years. The 2010 Census revealed that the state population had grown by more than one fifth – or 4.2 million – over the previous decade. A majority of that growth came from the Latino population, which increased by 2.8 million. As a result, the state electoral maps required a major overhaul, both to bring the state legislative districts in line with the U.S. Constitution’s one-person, one-vote provision, and to apportion fairly the electoral districts for the U.S. House of Representatives, in which Texas gained 4 seats as a result of the population increase.

Under the Voting Rights Act of 1965, Texas is one of a number of jurisdictions that are required to seek “preclearance” for any changes to their electoral system because of their history of voting discrimination on the basis of race. Under the act a jurisdiction may seek preclearance from the Attorney General, or from a three-judge panel of the District Court for the District of DC. In this case, Texas chose to submit its newly drawn electoral maps to the DC District Court for approval, even though the path through the Attorney General is generally more expeditious.

While Texas’ preclearance application was pending before the federal court in DC, voters and advocacy groups filed a series of suits in federal court, alleging that the changes violate the Fourteenth Amendment, as well as a section of the Voting Rights Act which prohibits any state from adopting electoral procedures that undermine minority voting rights. The federal court found that it was not free to determine the legality of the legislature’s maps, as that issue was pending in the preclearance action before another court. However, the court also found that the legislatively-drawn maps could not go into effect without being precleared by the DC District Court. Accordingly, in view of the impending 2012 election season, the Texas court designed interim maps to be used until the preclearance issue is resolved.

The question before the Supreme Court is whether the federal court erred by creating such interim maps, and whether the court was required to adopt the legislature’s maps as the interim maps, despite the fact that they have not yet received the required preclearance. Additionally, in its reply brief, Texas has raised questions about the constitutionality of a section of the Voting Rights Act for the first time in this litigation.

If the Supreme Court sides with Texas, the voting rights of minority citizens will be significantly impaired. At best, if the Court approves the use of the legislatively-drawn maps while preclearance is pending, the Court will be allowing Texas to dilute minority voting rights during the 2012 elections. Even more devastating to minority rights, the Court could render a final decision that the legislatively-drawn maps are legitimate and do not violate the Voting Rights Act or the Constitution.

However, it is conceivable that the Court could go even further, and invalidate Section 5 of the Voting Rights Act altogether, even though that possibility was never suggested in this litigation until Texas submitted its reply brief. These harms are a matter of degree, but in any of the above scenarios, the voting rights of African-American and Latino citizens will suffer greatly if the Court sides with Texas.

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Too Many Victims

This Sunday is the anniversary of the tragic shootings in Tucson that left six dead and thirteen injured, including U.S. Congresswoman Gabrielle Giffords.



Please join the Brady Center to Prevent Gun Violence in honoring the victims and survivors of gun violence by attending or hosting a candlelight vigil on Sunday, January 8. "Too Many Victims" is a nationwide movement to remember those who lost their lives in Tucson. Family, friends, and strangers are invited to not only join the vigils, but to post tributes to the victims online at toomanyvictims.org.

Click here to find a vigil in your area, and to learn more about the Brady Center's work on behalf of victims, survivors, and their families.

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Neoliberal Lochnerism: Can Government Balance Out Private Economic Power?

Guest post by Professor Jedediah Purdy

A batch of recent Supreme Court decisions have increased constitutional protection for private economic power. They suggest a trend that, if it comes to fruition, will be to our economy what the infamous Lochner jurisprudence was to newly industrialized America a hundred years ago. The pattern is a new eagerness to strike down economic and political regulations in favor of the freedom to buy, sell, and spend. The most infamous example is Citizens United, which invalidated limits on corporate campaign spending under the First Amendment. In other cases, the Court has struck down state laws that try to limit the effect of wealth on elections. It has also held – this is more obscure, but important – that Vermont cannot restrict drug companies’ access to prescription records that they use to target their sales pitches

These decisions potentially go to the heart of whether government can act to balance out private economic power. They also mesh with two of today’s most influential right-wing ideas: first, the fierce mistrust of government, and, second, the economics-minded belief that most of life works best as a “free market,” and deregulation will make us all freer. Of course there’s plenty of reason for distrust, even disgust, with the government we have. But the further we go down the anti-government, pro-market line, the harder it becomes to strengthen democracy and build a politics that can address inequality.

The doctrinal key to the new libertarianism is free speech. The principle that Congress “shall make no law…abridging the freedom of speech” is a liberal touchstone. Recently, though, it has also become an anti-regulatory hammer. Constitutional protection of speech increasingly means protection of spending, advertising, and even markets in the data that advertisers use to craft their messages. In the 2010 opinion Citizens United v. Federal Election Commission, Justice Kennedy struck down a federal ban on certain corporate spending in elections. Limits on spending are limits on speech, he wrote, so the power to write a million-dollar check for a wave of last-minute advertising has about the same constitutional status as the right to post a blog entry making the case for your candidate. The principle that spending equals speech was not new, only amplified: It dated back to a 1976 case, Buckley v. Valeo, which overturned limits on individual spending as unconstitutional speech restrictions. The new part of Citizens United was the principle that corporations’ political speech (read: spending) enjoys the same constitutional protection as individuals’ speech. Taken together, these principles implied that Congress could not limit corporate spending to offset the enormous economic power of big companies; doing so was just as unconstitutional as banning a flesh-and-blood person from arguing for or against health-care reform. Kennedy’s language was dire: “The censorship we now confront is vast in its reach.” He warned that the government “has muffle[d] the voices that best represent the most significant segments of the economy.” The decision’s effect on campaigns was immediate and dramatic: The advocacy group Public Citizen reports that in the 2010 elections, spending by newly constitutionally empowered outside groups rose by more than 400 percent over the 2006 midterms.

A year later, Kennedy wrote the Court’s opinion in Sorrell v. IMS Health, the Vermont pharmaceutical decision. The backdrop of the case was the enormous amount that drug companies spend marketing their products to doctors and consumers—estimated at more than $30 billion annually in a 2008 study, which put marketing ahead of research and development as a share of industry spending. Pharmacies and data-miners serve drug marketers by selling them doctors’ prescription records, which the marketers use to target their sales efforts. Vermont had barred the sale (or giveaway) of prescription information and its use in marketing, except where physicians gave permission for their records to be used. The policy was meant to protect doctors’ and patients’ privacy, and also to offset some of the market power of the big drug companies, in the hope that more doctors would prescribe less-expensive generic medicines instead. Kennedy wrote that the law was unconstitutional because it burdened speech—i.e., marketing—based on the identity of the speaker (patent-holding pharmaceutical companies) and the content of their message (advertising of drugs). Kennedy described the issue as follows: “The State may not burden the speech of others in order to tilt public debate in a preferred direction. ‘The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish.’” There is, of course, something otherworldly about describing as “public debate” companies’ targeted pitches to physicians.

As Justice Breyer pointed out in dissent, regulators control the form and content of information transfer all the time—for instance, in guidelines for public and shareholders’ communications by energy and financial companies, restrictions on the uses pharmaceutical companies may recommend for their drugs, and various controls on disclosure of patient information by doctors and hospitals. Many of these regulations are specific to the content of the speech and identity of the speaker, which was the constitutional problem with the Vermont law. It would be simplistic to say that those regulations are on the chopping block, but the reasoning of Sorrell puts their constitutionality in doubt. If nothing else, that reasoning creates a powerful and flexible tool for limiting the regulation of information markets, and further amplifies the Court’s solicitude for marketing as a core constitutional concern. For instance, post-2008 financial regulations requiring disclosure of standard-form information for certain financial products and services, or limiting the kinds of claims hedge funds or mortgage providers can make to clients, could be subject to constitutional attack.

The Supreme Court went down a similar road in the Gilded Age and afterward, defending laissez-faire economic principles against minimum wages, maximum hours, and other Progressive and New Deal regulation. The new cases have different doctrinal logic, and the economy has changed vastly, but the bottom lines are eerily alike: giving constitutional protection to unequal economic power in the name of personal liberty.

As the rise of industrial capitalism and a vast population of wage laborers made freedom of contract pervasively relevant at the turn of the last century, today an economy built on consumption and information makes the First Amendment a natural vehicle to constitutionalize transactions at the core of the market. Much of what happens in the American economy is, after all, some hybrid of marketing and information transfer. Products, images, information, ideas, and advertising are increasingly aspects of a single economic process.

For all these reasons, the First Amendment has helped the Supreme Court do for the consumer capitalism of the Information Age what freedom of contract did for the Industrial Age: constitutionally protect certain transactions that lie at the core of the economy. This makes unequal economic power harder for democratic lawmaking to reach, because there are only a few ways to reduce the effects of economic inequality: redistribute wealth, guarantee certain goods (such as education or health care) regardless of wealth, and limit what the wealthy can do with their money. Constitutional protection of marketing and spending takes the last option off the table at a time when the other two are politically embattled. Whether in elections or in marketing and the vast data economy behind it, the market itself, with all its inequality, is ever more thoroughly constitutionalized as a realm of freedom.

This development is a milestone in the Court’s march away from a principle that it accepted with the New Deal: Buying and selling enjoy no special constitutional status, and legislatures can regulate markets and businesses to make life more equitable, safe, or healthful. When these policy decisions are opened to constitutional attack, the wealthy interests burdened by legislation can appeal from the political process to the Supreme Court. If they win, they send lawmakers back to square one, and, win or lose, they delay regulation and raise its costs. Moreover, these cases give wealthy interests a rhetorical leg up: They can denounce regulation as “censorship” with the Supreme Court and the Constitution behind them.

On the one hand, the anti-regulatory cases celebrate individual freedom. On the other hand, by “protecting” individual freedom from government interference, they help to guarantee that the inequality of the private marketplace will persist. Ironically, this often means that the individual freedom at stake—consumer choice, campaign spending, liberty of contract—is less worth having. Up close, the individual choice—buy, sell, hold—is unburdened by regulation; but pull back the camera, and you realize that the free choice is among a set of options that regulation helps to define—or does not, if the Constitution prevents it. Like the old Lochner-ism, today’s new anti-regulatory doctrines are rooted in ideas: that personal freedom has an economic dimension that the Constitution protects, and that government efforts to equalize or otherwise direct economic power are pernicious and constitutionally suspect. Like the old cases, the new ones end up protecting economic power as a form of freedom, which ties the hands of government and leaves lots of people less free.

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Jedediah Purdy teaches in environmental, property, and constitutional law at Duke Law. He writes about how law interacts with and embodies ideas about freedom, social order, and the human relationship with the natural world, and how these ideas arise and change.

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Ten Years Too Many

Wednesday, January 11th marks the 10th anniversary of the arrival of the first prisoners at Guantanamo Bay. It will also be three years since President Obama pledged to close the detention facility.

Next Wednesday, the National Religious Campaign Against Torture (NRCAT) and broad a coalition of religious and human rights organizations will join together in Washington, DC to raise a voice of faith and conscience to mark this anniversary and send a message to the president and Congress that this is “10 Years Too Many."

You can learn more and register to participate in the rally here.

Noon - Rally at Lafayette Square (across from the White House)
1:00pm - Public Witness: a human chain of more than 2000 people, stretching from the White House to the Capitol
2:00pm - Interfaith Reception at NY Ave Presbyterian Church will follow the public witness
3:00pm - Interfaith Prayer Service at NY Ave Presbyterian Church led by Rev. J. Herbert Nelson (Director of the Washington Office of the Presbyterian Church USA), Rabbi Rachel Kahn-Troster (Rabbis for Human Rights-North America), and other religious leaders.

Ahead of this tragic anniversary, a new report by Human Rights USA and the International Human Rights Law Clinic at American University Washington College of Law was released detailing the Bush administration's torture policies. The report presents detailed evidence that high-ranking Bush administration officials planned and authorized the illegal interrogation techniques which were used against detainee terror suspects. You can read more about the report here.

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Report Outlines Bush Administration Torture Policy, Calls for Investigations and Prosecutions

Human Rights USA, a non-profit human rights organization, released a report today entitled “Indefensible: A Reference for Prosecuting Torture and Other Felonies Committee by U.S. Officials Following September 11th.” The report presents detailed evidence that torture was the official policy of the Bush administration and that high-ranking Bush administration officials planned and authorized the illegal interrogation techniques which were used against detainee terror suspects in the aftermath of September 11th. The report calls for repudiation of torture by the U.S. government and accountability for government officials who authorized the torture. It also serves as a how-to guide for prosecutions of these officials should be conducted going forward.

From 2002 to 2007, the United States Department of Justice sanctioned acts of torture committed by members of the U.S. Central Intelligence Agency against detained suspected terrorists.  These acts of torture were outlined and authorized in a series of secret "torture memos" drafted by John Yoo, Jay Bybee, and Steven Bradbury, senior lawyers in the DOJ's Office of Legal Counsel. In the decade since the beginning of the Bush administration’s illegal anti-terrorism policies, not one torture survivor has been able to bring to justice the government officials who authorized the acts of torture. The Human Rights USA report lays the groundwork for litigation against government officials responsible for approving and using illegal interrogation techniques that were the official policy of the Bush administration.

Alliance for Justice documented the radical justifications for torture in our short film Tortured Law,  and advocates for full accountability for those officials in the U.S. government who legitimized torture. AFJ applauds and supports the Human Rights USA’s efforts to bring further light to the torture policies and achieve accountability for torture.

The new report is a collaborative effort between Human Rights USA and the International Human Rights Law Clinic at American University Washington College of Law. The report is available online.

To learn more about accountability for torture, visit our webpage.

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Chief Justice Roberts Notes Ethics Controversies

Today in the Huffington Post, AFJ President Nan Aron took a look at Chief Justice John Roberts' annual report on the federal judiciary. In his most recent report, Chief Justice Roberts devoted a fair amount of time to the ethics concerns AFJ and others have been raising in recent months. Unfortunately, as Nan documents, the chief justice's defense of his colleagues' behavior misses the mark.

Unfortunately, in spite of substantial evidence to the contrary, the message from Roberts is that he sees no ethics problem at the Court and that no reforms are needed or desirable. Besides, he inferred, no one can make rules for us anyway.

Over 140 law professors, newspaper editorial boards, and groups like Alliance for Justice, Common Cause, and others, have called for increased accountability and transparency from a Court that is steadily and alarmingly losing the trust of the public. The Chief Justice's casual dismissal of the ethics issues as the consequence of "misconceptions" will further erode the Court's credibility.

Calls for reform have been precipitated by a series of actions by some justices that call into question their judgment about ethical matters. For example, Justices Antonin Scalia and Clarence Thomas famously--or infamously--attended events at overtly political strategy conferences hosted by the Koch Brothers, and Justices Scalia, Thomas, and Samuel Alito have headlined and lent their name and prestige of their office to fundraising events for conservative organizations. These activities are expressly prohibited by the Code of Conduct that governs all federal jurists. The Code contains both general and specific ethical rules for all federal judges--except the nine members of the Supreme Court.

The Chief Justice maintains that in spite of their exemption, "All members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations." But the record shows that while some of them may consult it, they apparently don't feel compelled to actually follow it. That's' why reformers are calling on the Court to agree to be formally bound by its provisions.

Read the rest of Nan's analysis on the Huffington Post.

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