June 2008 - Posts

• ACS Supreme Court Review Live on C-Span 2

  From 9:00 to 10:30 Tuesday morning, C-Span2 will be carrying ACS's Supreme Court Review live from the National Press Club. The link to the broadcast should be here, but just in case, here is C-Span's home page. Panelists include: Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center Thomas C. Goldstein, Partner, Akin Gump Strauss Hauer & Feld, LLP; Lecturer in Law, Supreme Court Litigation Clinic, Harvard Law School and Stanford Law School Alan B. Morrison, Special Counsel, Fair Elections Legal Network; Co-Founder and Former Director, Public Citizen Litigation Group John Payton, President and Director-Counsel, NAACP Legal Defense Fund Deborah Pearlstein, LAPA Visiting Scholar, Woodrow Wilson School of Public and International Affairs, Princeton University Andrew J. Pincus, Partner, Mayer Brown LLP; Visiting Lecturer in Law, Yale Law School Moderator, Kathleen M. Sullivan, Partner, Quinn Emanuel Urquhart Oliver & Hedges, LLP; Stanley Morrison Professor of Law and former Dean, Stanford Law School Posted Jun 30 2008, 10:14 PM by ACSBlog: The Blog of the American Constitution Society Filed under: News And Announcements

• Next President Should Stand Tall For Civil Liberties

  Geoffrey R. Stone, professor of law at the University of Chicago and member of the American Constitution Society Board of Directors, writes in a column for today’s New York Times op-ed page that the next occupant of the White House should address the erosion of civil liberties in America. Stone argues that the nation’s standing as a protector of civil liberties has been “tarnished” by a series of events, including, the suspension of habeas corpus and torture of detainees. One way Stone says the next president could reverse course:   Presidents have a wide range of official advisers. There is a secretary of defense, a secretary of labor, a national security adviser, to name just a few. The next president should create a new executive branch position: a civil liberties adviser. Within the highest councils of every administration there should be a respected public official whose charge it is to defend our civil liberties against all comers.   Posted Jun 30 2008, 10:01 AM by ACSBlog: The Blog of the American Constitution Society Filed under: Equality and Liberty

• ACS Week in Review: June 23 - June 27, 2008

  Stories An examination of the Supreme Court decision in the Second Amendment case D.C. v. Heller by Adam Winkler, professor of law, UCLA School of Law; a critique of the decision by Linda Singer, former Washington, D.C. Attorney General; and additional ACS resources on Heller. An analysis of the issues central to the recent Supreme Court punitive damages decision in Exxon Shipping Co. v. Baker by Alexandra B. Klass, associate professor at the University of Minnesota Law School and Member Scholar at the Center for Progressive Reform, and a criticism of the Supreme Court’s decision to reduce punitive damages by Doug Kendall, founder and president of the Constitutional Accountability Center. An overview of the main findings of a recent Center for American Progress study examining media bias in economic news coverage by David Madland, Director of the American Worker Project at the Center for American Progress. Reflections on the life and work of comedian George Carlin by Ronald Collins, a scholar at the First Amendment Center at the Newseum and co-author of The Trials of Lenny Bruce. Coverage of a government report showing that top officials at the Department of Justice passed over qualified attorneys and law students for its career honors and summer intern programs because of their affiliations with progressive legal organizations, including the American Constitution Society, and ACS’s reaction to the report. Resources A newly released ACS Issue Brief on material support laws that examines how federal laws aimed at curtailing terrorism have unintentionally hampered the nation’s efforts to provide humanitarian aid, by ACLU Attorney Ahilan T. Arulanantham. Coverage of four Supreme Court decisions handed down on Wednesday. A review of the ACS National Convention panel discussion entitled “A Bill of Rights for the 21st Century.” Posted Jun 27 2008, 04:20 PM by ACSBlog: The Blog of the American Constitution Society Filed under: News And Announcements

• Eighth Circuit Reinstates South Dakota's "Informed Consent" Abortion Law, Creates A New Standard of Review

  An en banc panel of the U.S. Court of Appeals for the Eighth Circuit voted 7-4 to overturn a preliminary injunction against South Dakota’s statute requiring “informed consent” prior to an abortion. Among other things, the statute requires physicians to provide a written statement to a patient declaring “the abortion will terminate the life of a whole, separate, unique, living human being.” Majority Opinion The majority opinion in Planned Parenthood Minnesota v. Rounds recognized a higher standard of review for preliminary injunctions that enjoin the enforcement of a state statute. The opinion by Judge Raymond Gruender, instead of using the “fair chance” standard, which requires plaintiffs to show they have a fair chance of prevailing on the merits, now requires district courts to find that “a party is likely to prevail on the merits.” In addition, instead of remanding the issue to the district court for consideration under the new standard, the court — applying an abuse of discretion standard — concluded that “Planned Parenthood’s evidence at the preliminary injunction stage does not demonstrate that it is likely to prevail,” and vacated the injunction. The majority limited its review to the question of compelled speech, noting that the district court may address other arguments in support of a preliminary injunction upon remand. Dissenting Opinion The dissent, written by Judge Diana Murphy, argued that the court “bypassed important principles of Constitutional law” as well as “depart[ed] from established practice by not remanding for the district court to have the opportunity to apply the new standard.” The Court characterized the “South Dakota provisions [as] strikingly different from those which have passed constitutional muster,” saying “the obvious objective of the Act . . . is to use the concept of informed consent to eliminate abortions.” Judge Murphy concluded the law “more than likely violates constitutionally recognized fundamental rights of women seeking an abortion and of attending physicians.” It “compel[s] doctors to communicate the state’s ideology,” and interferes “with the doctor patient relationship.” The dissenters criticized the new standard, writing that its “pitfalls” include giving the “legislature unwarranted deference,” thereby “avoiding [the court’s] responsibility for careful scrutiny required by established law.” Regardless of which standard is used, according to the opinion, Planned Parenthood “is more than likely to prevail on the merits.” Lower Court Rulings The District Court had concluded the law was likely unconstitutional and granted a preliminary injunction. Upon appeal, a three-judge panel ruled 2-1 to uphold the injunction. Posted Jun 27 2008, 03:59 PM by ACSBlog: The Blog of the American Constitution Society Filed under: Equality and Liberty

• Discussing "A Bill of Rights for the 21st Century"

  by Suzy Cohen, a Washington-DC based attorney A panel discussion on “A Bill of Rights for the 21st Century,” which took place at ACS’s National Convention, included a fascinating progressive policy discussion. Professor Nina Pillard of Georgetown University Law Center, who moderated the discussion, laid out the panel topic — which was inspired by Cass R. Sunstein’s book, The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever. In the book, Sunstein noted that President Roosevelt’s 1944 State of the Union Address asked Congress to adopt a “second Bill of Rights” to address issues of domestic economic security, including guarantees of work, healthcare, education, and adequate housing. Professor Pillard explained that our country is still working to address Roosevelt’s agenda, which seems as timely as ever with a current housing crisis, clamor for universal health care, perpetual education issues, and the need to help American workers compete in a global economy. A Right to Health Care Alan Jenkins, the Executive Director of the Opportunity Agenda, said that the time is ripe to achieve a right to adequate healthcare. Pointing to recent polling data, he explained that Americans are ambivalent about economic rights — believing that such rights exist, but shying away from excessive government involvement. That attitude and misunderstanding is best encapsulated by the phrase “keep government hands off my Medicare!” Jenkins posited that the public is ready for the notion of a right to health care that includes an acknowledgement of personal responsibility. He noted that many state constitutions include a right to adequate health care, which may provide an avenue for achieving meaningful opportunities to challenge the current system’s inequities. A Constitutional Amendment for Equal Access to Quality Education Lynn Walker Huntley, President of the Southern Education Foundation (and former ACS Board member), made an impassioned plea for education reform, proposing a constitutional amendment to ensure equal access to quality education. Huntley acknowledged that there are other education reforms that can and should be adopted in the near term. She argued, however, that the United States must eventually come to terms with the structural inequalities in the way that education is funded, and that by striving for the farthest goal, even if it is never actually attained, we will spur much greater reform. Second Bill of Rights Embodies the “Pathology of Modern Progressive Thought” Michael S. Greve, the John G. Searle Scholar at the American Enterprise Institute for Public Policy Research, offered a critique of Sunstein’s book, contending that the concept of a “second Bill of Rights” undermines security, entrenches special interests, and creates problems with transparency and accountability. He argued that FDR’s speech represented the “pathology of modern progressive thought” and led to “an addiction” to constituency politics. Greve noted that each of the elements in FDR’s speech was designed to appeal to a specific constituent group, including farmers, unions, and industrial workers, and that by creating a sense of rigid entitlements, the government lost the ability to be flexible and achieve real solutions. Ultimately, he said, the creation of “economic rights,” which may or may not be justiciable, will result in courts and special masters administering federal programs. Discussion of the Role of the Courts in Determining Economic Rights The panel had a vigorous exchange — or, what in Washington is sometimes termed a “full and frank discussion” — about the role of the courts in determining economic rights. Does the creation of an economic “bill of rights” inevitably lead to involvement by the courts? Would judicial review regarding the adequacy of a healthcare or education program necessarily mean that there is no transparency? Aren’t transparency and accountability provided at the political level? Greve argued that transparency and accountability are not provided at the political level — the courts will blame the legislature and executive branch, both of whom will blame the courts. Alan Jenkins countered that courts adjudicate constitutional issues often and frequently remand; why should economic rights be differently from other rights? Lynn Walker Huntley noted that intervention by the courts can be salutary, as was the case with the integration of education. Professor Pillard posed a final question to the audience and perhaps to Professor Sunstein, who was scheduled to be on the panel, but could not attend: What is gained by a “second Bill of Rights” beyond what can be achieved by the general engagement in politics supporting legislation that promotes progressive economic policies? It is fertile ground for further discussion. Posted Jun 27 2008, 11:38 AM by ACSBlog: The Blog of the American Constitution Society Filed under: Guest Bloggers, Constitutional Interpretation and Change

• Supreme Court Should Have Deferred to D.C.'s Legislature

  by Linda Singer, former Washington, D.C. Attorney General and partner with Zuckerman Spaeder LLP There are few surprised by the Supreme Court’s decision to overturn the District's 30 year-old ban on handguns and its holding that the Second Amendment guarantees an individual’s right to bear arms. But we should be shocked by the majority’s willingness to distort the text and history of the Second Amendment to ignore the considered judgment of the District's local legislature.  Rarely have so few words engendered so much debate. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Was the opening clause meant, as we believe, to define the reason for, and context in which, the right to bear arms was to be preserved — that is, for use in a state militia? Justice Scalia, writing for the 5-4 majority, rejects the military tenor of the language in both clauses of the Amendment. But, as Justice Stevens points out for the dissent, history belies that view. State Firearm Regulations The Founding Fathers were not worried about grizzly bears, as Justice Kennedy suggested during oral argument; it was a far more dangerous beast they feared — the federal government. The Second Amendment was drafted to assuage states’ suspicions that the newly empowered federal government, with a newly authorized army, would disarm state militias and overrun states’ sovereignty. The Framers rejected language that would have explicitly guaranteed an individual right to bear arms for self-defense. Then, as now, the states continued to regulate the private possession and use of guns. While the majority spent much time on British and colonial history, they talked almost not at all of the real world, right now, life and death consequences to the Court’s ruling. I will never forget a holiday spent at the arraignment of a young woman who killed a friend during a game of keep-way. Child’s play turned deadly — one life ended and another forever upended — because there was a loaded gun in her home. The DC Council recognized these very serious stakes when it decided in the 1970s, in one of the first acts of this Home Rule government, to ban handguns. It reviewed evidence from law enforcement that handguns are uniquely dangerous weapons. They are more likely to be used in suicides, against law enforcement, and fired accidentally by children. And because handguns are easily concealed, they are criminal’s weapons of choice. The Self-Defense Case for Handguns The majority brushed this all aside in declaring that handguns are the most popular weapon for self-defense and therefore cannot be banned. Where are the citations for conclusion, which seems plucked from air? How does the Supreme Court substitute its judgment for the District’s legislature? As we wrote in the District’s petition for certiorari, referring to the DC Circuit’s decision:  “The view of the court is also particularly cold-hearted. It holds that despite the fact that District residents can defend themselves and their homes with rifles and shotguns, the District is powerless to fight murder, assault, and rape by banning the one weapon that is overwhelmingly used to commit them. No other provision of the Bill of Rights even arguably requires a government to tolerate serious physical harm on anything like the scale of the devastation worked by handguns.” In fact, there is little for the majority to fall back on in making a self-defense case for handguns. There are certainly those who feel safer with a handgun. Though undoubtedly genuine and passionate in their beliefs, they are still dangerously wrong. A handgun in the home does not make its residents more safe, but just the opposite. One news anchor asked me after an interview whether guns weren't like flight insurance — you may never need it, but you feel better having it. I asked him if he'd still buy flight insurance if he knew it increased the risk of a plane crash. A gun is far, far more likely to be fired accidentally or used against its owner than to repel a home invasion.  It is no small irony that the dissenters in the recent Guantanamo decision, who decried the lives the Court’s decision would cost, evidenced no similar concern for those who will undoubtedly fall victim to handgun violence. The opponents of the District’s ban on handguns were able to turn this into a case about self-defense. But gun control isn't about either armed militias or armed vigilantes; it's about public safety. It’s about the police officers, victims of domestic violence, and children and young adults who are the most frequent victims of gun violence. Gun right advocates focused for years on redefining courts’ perceptions of guns and gun rights — overcoming the very visible reminders that handguns are far more often used offensively in our schools and on our streets. It is vitally important that we are clear and persuasive in articulating a public safety/ law enforcement message on guns. The Path Forward Though a real loss for the District, the Supreme Court’s decision does leave a path forward, both constitutionally and politically. We can continue to pass laws that give police the tools reduce gun violence — gun control measures that are clearly rooted in a law enforcement agenda. This includes requiring background checks for all gun sales. The Brady background check has kept guns out of the hands of 1.5 million people with serious mental illness or felony convictions, but an estimated 40% of gun transactions involve unlicensed sellers whose buyers are not subject to background checks. A big step would be closing the gun show loophole, which exempts gun show sales from background checks. Governments should follow the lead of Mayor Bloomberg in New York City and take action against the handful of rogue gun dealers that supply the vast majority of crime guns. Almost 60% of crime guns come from 1% of licensed dealers. We should untie the hands of federal and local law enforcement by repealing the Tiahrt Amendment and other similar restrictions. The Tiahrt Amendment bars the federal government from sharing trace data on crime guns with local law enforcement that could help reduce gun trafficking. The vast majority of the public support the reform measures outlined above. Our job is to make sure that Congress, which over the last two decades has been overwhelmingly hostile to common sense gun laws, stands with the hundreds of mayors, police chiefs, and others who support these public safety measures. It was generally believed that the key question in Heller would be the standard of review. While consistent with Chief Justice’s Roberts desire to decide cases on the narrowest grounds, the Court’s decision unfortunately leaves cities, states, and the federal government open to a wave of litigation. The Court also failed to give guidance to legislatures that will be evaluating current laws and trying to follow the Court’s ruling while drafting legislation to keep their officers and residents safe. Even without the Court’s help, they must soldier on. Posted Jun 26 2008, 04:41 PM by ACSBlog: The Blog of the American Constitution Society Filed under: Guest Bloggers, Bill of Rights, Constitutional Interpretation and Change, Criminal Justice

• First Thoughts on Heller

  by Adam Winkler, Professor of Law, UCLA School of Law Today’s decision in D.C. v. Heller (opinion) clearly held that the Second Amendment protects an individual right to bear arms for private purposes, including self-defense. On this basis alone, the decision is worthy of landmark status: the Court has never previously invalidated any law on Second Amendment grounds. A long academic debate about the meaning of the Second Amendment has now been settled, at least for legal purposes. What Heller Decided – And What It Did Not The Court, however, left the most important question unanswered: what exactly does the Second Amendment prohibit? The majority refused to adopt a standard of review for judging future disputes. This is unfortunate, because lower federal courts and state courts should now see a tidal wave of litigation challenging gun control laws. All they can know for sure is that the government cannot ban the most popular weapon or adopt restrictions so onerous as to effectively nullify or destroy the right to self-defense in the home. Questions these lower courts will have to face include: How does Heller apply to discretionary permitting laws? Bans on guns in the workplace? Bans on sawed-off shotguns? Bans on concealed carry? The decision’s ambiguity punts the hard questions. Justice Scalia as a Proponent of “Living Constitutionalism” One of the most intriguing aspects of Justice Scalia’s Heller opinion was his use of living constitutionalism to justify the invalidation of D.C.’s handgun ban. The opinion appears to be an ode to originalism — page after page of why and how the framers drafted the Second Amendment — but don’t be fooled. When it comes to deciding why the handgun ban is unconstitutional, Scalia argued that handguns are the most popular weapons chosen by Americans for self-defense. Since when does an originalist look to today’s choices to determine the scope of a constitutional right? A true originalist approach that took the people’s choice seriously would look to the weapons preferred by the founding generation — most likely long guns. (Pistols were terribly inaccurate, explaining why so few people were killed in short-range duels). For Scalia, however, the scope of the Second Amendment is a function of what people today choose for self-defense. Despite vociferous protests, the Constitution is evolving to fit current circumstances after all. Parallels with Bush v. Gore There are some striking similarities between the Heller decision and Bush v. Gore. In both cases, the Court articulated a “new” right to be recognized by the courts: a right to bear arms in Heller and a right to have votes tabulated equally in Bush v. Gore. Yet in both decisions, the Court makes clear that this right will not likely invalidate many laws — or perhaps any laws except the ones before the Court that day. In Bush v. Gore, the Court warned that nothing in the opinion was meant to call into question the many difficult, technical issues of vote tabulation and regulations on counting votes. As a result, the opinion was severely criticized by many for being like a railroad ticket good for this train – and this case – only. According to an article by law professor Rick Hasen, the Court has not cited Bush v. Gore since it was promulgated. Lower courts have ignored the decision’s implications for vote tabulation laws. In Heller, the majority said that the decision is not meant “to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” The Court, once again, is trying to avoid the obvious implications of its broad statement of the right to bear arms. The Court did not provide an indication of what laws might be undermined by the newly recognized right. Don’t be surprised if lower courts refuse to invalidate many other gun laws, citing the court’s caveat regarding not doubting longstanding laws. If so, Heller would constitute the high-water mark for the individual right to bear arms — and we’ll be writing articles years from now about the birth and sudden death of a strong Second Amendment right to bear arms. Posted Jun 26 2008, 02:09 PM by ACSBlog: The Blog of the American Constitution Society Filed under: Guest Bloggers, Bill of Rights, Constitutional Interpretation and Change

• Punitive Damages Run Aground Before the Supreme Court

  by Alexandra B. Klass, Associate Professor at the University of Minnesota Law School and Member Scholar at the Center for Progressive Reform. She is the author of Punitive Damages and Valuing Harm, which discusses awards of punitive damages in environmental cases. In its decision in Exxon Shipping Co. v. Baker, the Supreme Court finally put its mark on the 19-year litigation over the grounding of the Exxon Valdez oil tanker in Prince William Sound, Alaska, and the resulting oil spill. In reducing the punitive damages award against Exxon from $2.5 billion to $500 million, the Court created federal common law on punitive damages in maritime cases and undermined the punitive and deterrent purposes of these kinds of awards. The punitive award will exactly match the compensatory award of $15,000 per plaintiff. The case framed three specific issues for the Court. First, whether Exxon could be held liable in its corporate capacity for punitive damages based on the actions of its employee, ship’s captain Joseph Hazelwood. Second, whether federal fines imposed on Exxon under the Clean Water Act preempted individual tort claims for punitive damages. Third, whether the $2.5 billion punitive damages award imposed by the lower court was excessive. The Court split 4-4 on whether Exxon could be held liable in its corporate capacity for punitive damages for the actions of Hazelwood, who was known to Exxon to be a relapsed alcoholic and was drunk while captaining the ship. (Justice Samuel Alito recused himself). This split meant the lower court’s decision imposing liability stands.  The Court found that the federal Clean Water Act did not foreclose punitive damages under common law, thus reaffirming the important role that common law claims for damages — including punitive damages — can and should play in addressing water pollution and other environmental harms. The Court decided upon the $500 punitive award under the novel theory that a 1:1 ratio of compensatory to punitive damages was appropriate under federal maritime law. The decision, authored by Justice Souter, shows the Court struggling to create rational standards to govern the lower courts’ review of punitive damages awards. At the end of the opinion, one is left with the sense that the Court has created a bright-line rule that ignores the nuances of the case while providing little guidance for future courts. What is particularly striking is the Court’s continuing commitment to its questionable journey, begun only in 1996, to place firm federal judicial limits on punitive damages — whether under the due process clause of the 14th amendment or, in this case, federal maritime law. The Court recognized that empirical studies refute the unfounded claims that punitive damages have skyrocketed in recent years and that juries are abusing their authority. The Court also notes that many state legislatures have placed strict limits on punitive damages — such as blanket bans, maximum dollar caps, or maximum ratios between punitive damages and compensatory damages of 2:1, 3:1, etc. Three dissenting justices (Stevens, Ginsburg, Breyer) concluded from this evidence that state legislatures and state courts are doing their jobs in policing jury awards The majority, however, cited “outlier” multi-million and multi-billion dollar awards and concluded that punitive damages are unpredictable — and thus unfair to defendants. Adding more “predictability” to the punitive damage equation, particularly in the form of a 2:1 or a 1:1 ratio, may well be helpful to would-be malefactors contemplating whether a risk is worthwhile before doing wrong, but it undercuts the punitive and deterrent purposes of punitive damages. Moreover, it prevents juries and lower courts from fully considering the circumstances and nuances of each individual case with their own individual facts.  Ultimately, the Court adopted a straightjacket ratio approach, and settled on a 1:1 ratio of punitive damages to compensatory damages in this case because of the large compensatory damage award ($500 million) and the lack of intentional conduct by the defendant. The Court dismissed adding standards to guide juries and lower courts as insufficiently specific. It also rejected maximum penalty amounts because of the high variability of types of tort and contract injuries that can support punitive damages..  It is disappointing that the Court feels the need to continue to police punitive damage awards when all evidence shows that juries, lower courts, and state legislatures have already put strong measures in place to do just that. Moreover, punitive damages are intended to punish and deter misconduct and thus must be tied to the magnitude of the misconduct as well as the financial condition of the defendant.  The grounding of the Exxon Valdez resulted in the discharge of 11 millions gallons of oil into Prince William Sound, causing one of the largest and most damaging oil spills in history. Exxon officials knew Hazelwood was a relapsed alcoholic who was drinking at sea but let him pilot the Valdez nevertheless. Exxon is the biggest company in the world, with profits this year of $39 billion, the largest in U.S. history, and reportedly the largest in the history of the planet. At trial, Exxon testified that the original punitive damage award of $5 billion “would not have a material impact on the corporation or its credit quality.”  In refusing to allow juries and courts to engage in this important, fact-specific exercise, the Court’s decision results in a quasi-legislative, one-size-fits-all solution that does not do justice to our tort system, those who administer it, and those who rely on it for important forms of redress.  Posted Jun 26 2008, 02:08 PM by ACSBlog: The Blog of the American Constitution Society Filed under: Guest Bloggers, Economic, Workplace, and Environmental Regulation

• U.S. Supreme Court Strikes Gun Ban

  The U.S. Supreme Court in a 5-4 ruling today invalidated the nation’s strictest gun law. In D.C. v. Heller (opinion), the high court said the District of Columbia’s 32-year-old ban on handguns violated the Second Amendment, which holds that “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Justice Antonin Scalia, writing for the majority, said the Second Amendment does not permit “the absolute prohibition of handguns held and used for self-defense in the home.” Justice John Paul Stevens wrote a dissent, which was joined by Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter. Stevens said the majority “would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons.” ACS Resources Panel discussion: The Smoking Gun: Interpreting the Second Amendment (June 2008) Blog debate: A Week of Second Amendment Arguments: Professors Winkler and Tushhnet Panel discussion: The Second Amendment in the Supreme Court (March 2008) Blogpost preview: Praying for a Second Shot on the Second Amendment (March 2008) Reactions The Brady Campaign to Prevent Gun Violence District of Columbia National Rifle Association Posted Jun 26 2008, 10:24 AM by ACSBlog: The Blog of the American Constitution Society Filed under: Constitutional Interpretation and Change, News And Announcements, Judiciary

• The Court Lets Exxon Off the Hook

  By Doug Kendall, founder and president of the Constitutional Accountability Center At a time when gas prices and oil company profits are at record highs, the U.S. Supreme Court has taken $2 billion from 32,000 Americans who lost their livelihood in the worst oil spill in U.S history… and given it back to Exxon. The Court’s reduction of punitive damages in Exxon Shipping Co. v. Baker is a nakedly activist decision that pulls its standard for limiting damages out of thin air, demonstrates hostility to the role of Congress, and continues a pattern of ignoring the Framers’ views on the importance of civil juries.  Progressives would do well to treat this decision with resounding scorn, and highlight it as a textbook example of why the Supreme Court matters. The case arose from the 1989 Exxon Valdez spill, wherein Exxon allowed Joseph Hazelwood, a relapsed alcoholic, drunk at the time, to the helm of a massive oil tanker navigating the treacherous waters of Alaska’s Prince William Sound at night.  The ship ran into a reef, ruptured and spilled 11 million gallons of crude oil, devastating the Sound’s fragile and pristine ecosystem.   Grant Baker is one of 32,000 commercial fishermen and Alaska Natives that sued Exxon for their economic losses and for punitive damages against Exxon.  More than 6,000 of these victims have died during the course of this litigation, which Exxon has tenaciously prolonged for 16 years with appeal after appeal.   In 2006, the Ninth Circuit Court of Appeals cut what was originally a $5 billion jury verdict down to $2.5 billion.  Today, the Court cut this again for Exxon to a maximum of $500 million. The Court’s majority opinion, joined by Chief Justice John Roberts, and Justices Antonin Scalia, Clarence Thomas, David Souter and Anthony Kennedy (Justice Samuel Alito was recused) reads like Goldilocks and the Three Bears.  The Court crafts a 1:1 ratio between compensatory and punitive damages based on its own calculation of what ought to be reasonable rather than any actual law or precedent.   This is judicial lawmaking at its worst, and it deprives maritime law trial judges and juries of their long-standing power and responsibility to determine the appropriate remedy for reckless corporate behavior.   As Justice John Paul Stevens notes in a pointed dissent, the Court cannot identify a single state court in the entire country that has adopted the Court’s 1:1 ratio.  Stevens also explains that the majority ignores the will of Congress, which deliberately chose not to restrict the availability of punitive damages in this context.   Like other recent cases such as Ledbetter v. Goodyear (equal pay for women), Exxon v. Baker illustrates that the conservative majority on the Supreme Court is willing to bend the law in favor of corporate interests that have improperly prevailed too often in recent years.   It is a reminder, if progressives need one, of just how important it is to fight for the future of the Supreme Court.  This article also appears at The Huffington Post. Posted Jun 26 2008, 08:49 AM by ACSBlog: The Blog of the American Constitution Society Filed under: Economic, Workplace, and Environmental Regulation

• Preventing Disastrous Consequences: Author Advocates Amending Material Support Laws To Permit Rendering Humanitarian Aid

  ACLU Attorney Ahilan T. Arulanantham asserts in an American Constitution Society Issue Brief published today that a myriad of federal laws aimed at curtailing terrorism have also unintentionally hampered the nation’s efforts at providing humanitarian aid. Arulanantham, an attorney with the ACLU of Southern California, writes in the Issue Brief, “A Hungry Child Knows No Politics,” that a “constellation of statutes” to enhance national security are so broad that “humanitarian organizations and volunteers operating throughout the world in conflict zones and natural disaster sites have scaled back and in some cases, simply abandoned their efforts to aid those in greatest need of help.” Arulanantham also lays out ways for Congress to amend the numerous laws to help bolster global humanitarian efforts without jeopardizing national security. Posted Jun 25 2008, 12:20 PM by ACSBlog: The Blog of the American Constitution Society Filed under: Separation Of Powers

• Preventing Disastrous Consequences: Author Asserts Amending Material Support Laws To Permit Rendering Humanitarian Aid

  ACLU Attorney Ahilan T. Arulanantham asserts in an American Constitution Society Issue Brief published today that a myriad of federal laws aimed at curtailing terrorism have also unintentionally hampered the nation’s efforts at providing humanitarian aid. Arulanantham, an attorney with the ACLU of Southern California, writes in the Issue Brief, “A Hungry Child Knows No Politics,” that a “constellation of statutes” to enhance national security are so broad that “humanitarian organizations and volunteers operating throughout the world in conflict zones and natural disaster sites have scaled back and in some cases, simply abandoned their efforts to aid those in greatest need of help.” Arulanantham also lays out ways for Congress to amend the numerous laws to help bolster global humanitarian efforts without jeopardizing national security. Posted Jun 25 2008, 12:20 PM by ACSBlog: The Blog of the American Constitution Society Filed under: Separation Of Powers

• Four More Decisions!

  The Supreme Court handed down four decisions today: Kennedy v. Louisiana, striking down the death penalty for child rape; Exxon Shipping Co. v. Baker, limiting punitive damages in maritime cases; Giles v. California, curtailing an exception to the Confrontation Clause; and Plains Commerce Bank v. Long Family Land & Cattle Co., restricting Tribal jurisdiction in reservation land-sales by nonmembers of the tribe. Kennedy v. Louisiana In Kennedy v. Louisiana, a split 5-4 decision, the Supreme Court held that, under the Eighth Amendment, the death penalty cannot apply to crimes against individuals that to not end with or intend the death of the victim. Specifically, the Court held the Constitution prohibits the death penalty for the crime of child rape where the crime did not, and was not intended to, end in the death of the child. After examining the practice of states and death penalty statistics and finding no support for pro-death penalty arguments, Justice Kennedy, writing for the Court, turned to precedent and the Court’s own judgment.   He reasoned that applying the death penalty would not balance the wrong done to the victim, noted the particular evidentiary problems with often-unreliable child testimony, and voiced the concern that applying the death penalty to non-murder crimes might cause the perpetrator to commit murder to hide the crime. The Court distinguished between crimes against the State (like treason) and crimes against individuals.  Justice Samuel Alito authored the dissent, joined by Chief Justice John Roberts, Justice Antonin Scalia, and Justice Clarence Thomas. AP coverage here.  Exxon Shipping Co. v. Baker In Exxon Shipping Co. v. Baker, the Court held that the $2.5 billion damages claim against Exxon for its 1989 oil spill in Alaska must be reduced. The Court split evenly 4-4 on whether maritime law allows punitive damages to be imposed against companies for the acts of their agents, but concurred unanimously that the punitive damages as upheld by the Ninth Circuit were excessive under maritime common law. The Court rejected an argument by Exxon that the Clean Water Act  preempted common law punitive damage claims. Justice David Souter authored the opinion, holding that punitive damages were to be limited to a 1:1 ratio with compensatory damages; in this case, $507.5 million. All Justices except Justice Alito concurred in the judgment; he took no part in the consideration or decision.  ACSBlog previewed the arguments. Wall Street Journal Blog has more. Giles v. California In Giles v. California, the Supreme Court held a criminal defendant does not forfeit his Sixth Amendment right to confront his accuser when his wrongful act kept a witness away from trial, unless the the defendant intended the act to have that effect. The Court struck down a California court’s broad interpretation of the forfeiture-by-wrongdoing exception to the Sixth Amendment confrontation clause. The California court had removed the intent element from the common law exception, holding that statements by witnesses unavailable at trial could be introduced if the judge determines that a wrongful act by the defendant has kept the witness away from trial, even if keeping the witness away from trial was not the purpose of the act.  Justice Scalia, writing in a 6-1-3 decision, stated that since the broader exception was not present at the Founding, and not established in American jurisprudence since, it is prohibited by the Sixth Amendment. The question of the defendant's intent is an open question to be determined on remand to the lower court. The case revolved around a domestic violence killing, and domestic violence is often perpetrated with the intent to keep a the victim from going to trial, so the statements may make it into the trial record regardless. Justices Stephen Breyer, John Paul Stevens, and Anthony Kennedy dissented. Plains Commerce Bank v. Long Family Land & Cattle Co. In Plains Commerce Bank v. Long Family Land & Cattle Co., the Court held 5-4 that Tribal Courts do not have jurisdiction to regulate the sale of reservation land owned in fee simple by nonmembers of the tribe.  Once the land has been sold in fee simple to a nonmember, that fee parcel ceases to be tribal land. The Tribe, under Montana v. United States, is only able to regulate conduct of nonmembers rising from relationships between members and nonmembers, like contracts and licensing, or when the conduct “threatens or has some direct effect on the political integrity, the economic security, or the health and wellness of the tribe.” The Supreme Court ruled that the harm was already done when the land was sold to the Bank fifty years ago, and further sale from nonmember to nonmember did no further damage within the Tribal Court’s jurisdiction. The Long’s claim of discrimination sprung from this second land sale, and was therefore outside the jurisdiction of the Tribal Court. Seeking the Tribal Court’s aid in serving process upon the Long family was not enough to subject the Bank to the Tribe’s jurisdiction. Justice Ruth Bader Ginsburg dissented, arguing that a damage award springing from the Long’s claim of discrimination should stand. Justices Stevens, Souter, and Breyer joined the dissenting opinion.  AP coverage here. Posted Jun 25 2008, 10:55 AM by ACSBlog: The Blog of the American Constitution Society Filed under: Criminal Justice, News And Announcements, Judiciary, Economic, Workplace, and Environmental Regulation

• ACS Criticizes DOJ Hiring Practices

  ACS Criticizes DOJ Use of Politics in Hiring for Career Honors, Intern Programs Encouraged By Attorney General Mukasey’s Decision To Follow Report’s Recommendations Washington, D.C. – The executive director of the American Constitution Society today expressed concern over a government report showing that top officials at the Department of Justice passed over qualified attorneys and law students for its career honors and summer intern programs because of their affiliations with progressive legal associations, including the American Constitution Society. “I’m dismayed at the findings of the Inspector General’s report on hiring practices at the Department of Justice,” said ACS Executive Director Lisa Brown. “It was a grave mistake to turn over to political appointees non-political hiring decisions that historically have been left to career employees. It is entirely appropriate to take ideology and past political affiliations into account when hiring political appointees, but it corrupts the system when it occurs with career positions. The IG’s report speaks for itself regarding the consequences that flowed from this regrettable practice." Among the findings from the report by the Office of the Inspector General (OIG) and Office of Professional Responsibility (OPR) was that membership in ACS was detrimental to attorneys and law students seeking work in the Justice Department. The OIG/OPR report, for example, found that 12 of 13 applicants for the DOJ’s Summer Law Intern Program who were affiliated with ACS were “deselected” for job interviews, while none of the 12 applicants who were Federalist Society members received such treatment and all did receive interviews. The report’s data similarly showed that all seven candidates for the Honors Program who indicated that they were ACS members “were deselected by the Screening Committee for interviews, while 2 of 29 applicants who indicated that they were members of the Federalist Society were deselected.” The OIG/OPR report described the Justice Department’s Honors Program as “the exclusive means by which the Department hires recent law school graduates and judicial law clerks who do not have prior legal experience.” The Summer Law Intern Program, according to the report, is “the Department’s hiring program for paid summer interns.” The report further explained that “both DOJ policy and civil service law prohibit discrimination in hiring for DOJ career positions on the basis of political affiliations.” In a statement released today regarding the offices’ report, Attorney General Michael B. Mukasey said he would “continue to make clear, that the consideration of political affiliations in the hiring of career Department employees is impermissible and unacceptable. The joint report issued today contains additional recommendations aimed at ensuring that political and ideological affiliations are not inappropriately used to evaluate candidates for these programs; I accept, and have directed the implementation, of all those recommendations.” “I applaud Attorney General Mukasey’s commitment to comply with the report’s recommendations,” Brown said. Posted Jun 24 2008, 07:42 PM by ACSBlog: The Blog of the American Constitution Society Filed under: News And Announcements

• Johnny's In the Basement

  The Text & History blog reviewed yesterday's Sprint Communications decision, asserting that the Court's "liberals are increasingly finding that constitutional history supports progressive outcomes such as broad access to court, while the Court’s conservatives are more than willing to discount historical arguments when they find them inconvenient." Posted Jun 24 2008, 04:05 PM by ACSBlog: The Blog of the American Constitution Society Filed under: News And Announcements