Archive for the ‘Rights’ Category

A Bittersweet Victory for Voters

Written by Rebecca Zietlow on October 23rd, 2008

Every four years, Ohioans experience a new surge of interest in election law.  This year’s litigation has taken an ironic turn.  The Republican Party has run into a roadblock – the barriers to civil rights litigation erected by Republican nominees on the United States Supreme Court.

Two weeks ago, the Ohio Republican Party filed a lawsuit against Jennifer Brunner, the Democratic Ohio Secretary of State.  The suit asked a United States District Court to find that the Help America Vote Act (HAVA) requires the Secretary to compare the list of 600,000 newly registered voters against other government databases, and to investigate the voters whose names and addresses did not precisely match other government records.  If they had prevailed, the right to vote of an estimated 200,000 Ohio voters could have been challenged, and there would have been a real risk of chaos on election day.

The District Court ruled against the Secretary despite the fact that the Republican Party failed to show any evidence of voter fraud, and despite the fact that another federal statute, the National Voter Registration Act (also known as the “Motor Voter” Act), prohibits the removal of voters based on computer matching.  A 6th Circuit panel overturned the District Court, but in a highly unusual procedural move, a divided 6th Circuit issued an en banc opinion upholding the District Court’s order.  Written by Bush “43” appointee, Judge Jeffrey Sutton, the panel opinion was, to be kind, surprising.

Prior to his appointment to the federal bench, Sutton established his legal reputation as an advocate for restricting Congress’ power to enact civil rights legislation and make civil rights enforceable against state officials.  One of Sutton’s most important victories was in the case of Alexander v. Sandoval, a case in which the Court gutted the ability of private individuals to enforce their federal rights by imposing a highly restrictive test for determining whether a federal statute creates a private right of action, thereby making the requirements set forth in the statute enforceable by private citizens against the government.  Combined with the subsequent case of Gonzaga v. Doe, the Court’s Sandoval ruling has had a devastating impact on civil rights and other public interest litigation.

Sandoval and Gonzaga pose an insurmountable barrier for any private individual, including the Ohio Republican Party, wishing to enforce the provisions of a statute like HAVA, which governs the Secretary of State’s implementation of a variety of voter registration requirements.  Yet, in his opinion, Sutton inconceivably glossed over the private right of action issue, stating “perhaps when a statute effectively benefits everyone but no one in particular, a right of action still may exist.”  Perhaps that would have been the case had Sutton not prevailed in his role as counsel for the State of Alabama in Sandoval . . . perhaps someday in the future when we have another Supreme Court . . . perhaps when a snowball no longer melts in hell! Perhaps, indeed.

Millions of recipients of public benefits, those concerned about the environment, victims of civil rights violations and others who have suffered from states’ violations of federal law would be better off if Judge Sutton had been right.  But, thanks in large part to Sutton’s efforts as a private attorney, his Sixth Circuit en banc opinion was clearly wrong.  Secretary Brunner appealed to the United States Supreme Court, which issued a 2-page per curiam opinion vacating the 6th Circuit en banc ruling on the ground that – surprise – there was no likelihood that the plaintiffs would prevail since the holdings of Sandoval and Gonzaga precluded them from having a private right of action to enforce the requirements of HAVA.  Thus, the party that appointed the judges that closed the doors of the federal courts to civil rights litigants had those same doors slammed in their face — truly a bittersweet victory for Ohio voters.

The Judicial Activism of the Roberts Court

Written by Rebecca Zietlow on October 9th, 2008

It is the first week of the United States Supreme Court’s 2008-2009 term.  What should we expect this year from the Roberts Court?  More judicial activism.

If the central meaning of “judicial activism” is the willingness of courts to second guess political bodies, then the Roberts Court is an “activist” Court.  In just the last three weeks of the Court’s last term, the Court issued opinions striking down acts of Congress, the President, state courts and local governments.

What is the focus of this Court’s activism?  Not protecting the equality rights of minorities.  Last year, in Parents Involved v. Seattle, the Court held that the Equal Protection Clause prevents local school districts from using race as a factor in school assignments in an attempt to integrate schools.  In Enquist v. Oregon Department of Agriculture, the Roberts Court created a new limit on Equal Protection claims of public employees.  The Court held that the Clause did not prevent public employees from being treated unfairly.  The ruling is not surprising given the “emlpoyment at will” doctrine.  Engquist would not have even had a claim except for the Court’s earlier ruling in Village of Willow Brook v. Olech that an individual can bring a “class of one” claim under the Equal Protection Clause to challenge discriminatory government action.  The plaintiff in Olech was a property owner who was required to give a larger easement on her property than all other applicants in order to receive a permit.

As Olech illustrates, in recent years the Court has been “activist” in protecting liberty and property rights.  In the case that marked the past term, DC v. Heller, the Court interpreted the Second Amendment to estabilish an individual right to bear arms and struck down a DC regulation of handguns as violating that amendment.  In Exxon v. Baker, the Court held that the Due Process Clause limits the amount of punitive damages that a jury can impose on a multi-national corporation. In Davis v. FEC, the Court held that the First Amendment prevents Congress from limiting the amount of one’s own money that a wealthy candidate for office can spend on his own campaign.   Boumediene v. Bush, in which the Court held that Congress could not prohibit prisoners held in Guantanamo Bay from exercising the fundamental right to habeas corpus, stands out as a ruling where the Court protected the liberty rights of “discrete and insular minorities.”

So, what should we expect from the Roberts Court this year?  We should expect more activism in the protection of property rights, with little sympathy to those who lack property.

Going Back to Reconstruction

Written by Rebecca Zietlow on September 26th, 2008

At a constitutional law conference that I recently attended, a friend of mine commented, “We always seem to go back to Reconstruction.”  I agreed.  For many of us, Reconstruction was the Second Founding, when the People repaired the pro-slavery constitution and replaced it with one that commits the federal government to protecting individual rights.

The Reconstruction era is central to my research about congressional protection of rights of belonging, those rights that promote an inclusive vision of who belongs to the national community of the United States and facilitate equal membership in that community.  That era marked the beginning of Congress’ commitment to protecting rights of belonging, and the Reconstruction Amendments (13th, 14th and 15th) assigned that role to the federal government in general and to Congress in particular.  When I read the Reconstruction era congressional debates, I am always struck at how relevant those debates over individual rights and the extent of the government’s responsibility to protect those rights still seem today.

Until recently, the positions of constitutional scholars on the meaning of Reconstruction tended to correlate fairly predictably with our political leanings.  Those who believe in a broad reading of the Reconstruction Amendments tend to be more liberal, while conservatibe scholars tended to support a more narrow reading of those Amendments and the Civil Rights statutes enacted during that era.  Indeed, as Professor Pamela Brandwein has described in her excellent book, Reconstructing Reconstruction, since the Reconstruction Era, debates over its meaning have closely tracked the politics of the times in which those debates occurred.

This year, however, we are faced with a change in the political dynamics of the debate over Reconstruction.  the Supreme Court’s ruling in D.C. v. Heller that the Second Amendment protects an individual right to bear arms has triggered a revival of the classic debate over whether the 14th Amendment incorporated the entire Bill of Rights against state governments.   Conservative scholars who in the past have been wary of a broad federal role in protecting individual rights now advocate the position of full incorporationConservative lawyers are now calling for courts  to overturn such post-Reconstruction relics as U.S. v. Cruikshank, in which the Court espoused a limited view of incorporation when it rejected the argument that the victims of the Colfax Massacre were deprived of their federal rigths, including their right to bear arms, when they were murdered by an angry racist mob; and The Slaughterhouse Cases, in the which the Court seemed to reject the doctrine of incorporation.

For those of us who have long believed in full incorporation, this is good news.  Will the Second Amendment end up being the vehicle for overturning the Court’s erroneous anti-incorporation rulings of the past?  It’s certainly possible.  Justice Scalia’s majority opinion in Heller practically begged a challenge to the Court’s previous holding against the incorporation of teh Second Amendment.  Now that conservatives, too, are seeing the light and going back to Reconstruction, full incorporation could be on the way.

Second Circuit Ressurrects Arar’s Rendition Case

Written by Robert Justin Lipkin on August 18th, 2008

More on the terrible treatment of Maher Arar by the Bush White House. ” Canadian torture victim Maher Arar has been given an unexpected – and very rare – opportunity to take another crack at winning redress from the Bush administration in a New York court.  . . .  The Second Circuit Court of Appeals announced yesterday it would convene at least 13 judges in December for another hearing for Arar, the Ottawa engineer, Ararwho was tortured and jailed in a Syrian prison after being whisked out of JFK Airport in September 2002, under a U.S. practice known as ‘extraordinary rendition.’  . . . A three-judge panel dismissed Arar’s lawsuit in June, but the dissenting judge said the ruling gave the U.S. government licence ‘to violate constitutional rights with virtual impunity.”  . . .  Yesterday’s decision keeps alive the possibility that Arar could still become the first rendition victim to force the Bush administration to admit its role and compensate a victim in a case it maintains was an immigration matter.  . . .  The court made its decision before it even received a petition from Arar’s lawyers to examine the suit again, a decision legal observers said was extremely rare.  . . . Even when petitioned, the Second Circuit convenes the entire bench less than once a year, based on recent records. ‘this is good news,’ said Maria LaHood, of the New York-based Center for Constitutional Rights lawyer who represents Arar.” For more click here.  The Second Circuit has provided hope that Mr. Bush can be held accountable for something.

Does the U.S. Constitution Protect the Devil’s Rights?

Written by Robert Justin Lipkin on June 13th, 2008

eca10.jpgIt is virtually axiomatic that when people are terrorized by an enemy, self-defense is justified. No reasonable person doubts the force of this axiom. The problem, of course, is whether leaders of the terrorized are the best judges of fashioning proportional responses. Are they entitled, that is, to up the stakes and terrorize the terrorists? Fair play you say? Not under a constitutional democracy committed to human rights. The Bush-Cheney administration has sought, as other dictatorial regimes have done, to institute policies like water-boarding, not so much to obtain information, although that is always the stated purpose of dictators, but rather to terrorize those suspected of being terrorists. One additional feature of such reactive terrorism is to ignore the rights of detainees by, for example, denying the writ of habeas. This writ is the basis of any civilized society; it is certainly the basis of any civilized society paying even lip service to libertarianism. Yet, Bush-Cheney has no interest in civilization. Rather, they want to prevail no matter what the consequences. Yesterday, however, Bush-Cheney did not prevail. The court said no to current administration’s draconian practices of detention.

Intead, “[i]n a stinging rebuke to President Bush’s anti-terror policies, a deeply divided Supreme Court ruled Thursday that foreign detainees held for years at Guantanamo Bay in Cuba have the right to appeal to U.S. civilian courts to challenge their indefinite imprisonment without charges. . . . Bush said he strongly disagreed with the decision – the third time the court has repudiated him on the detainees – and suggested he might seek yet another law to keep terror suspects locked up at the prison camp, even as his presidency winds down. . . . Justice Anthony Kennedy, writing for the 5-4 high court majority, acknowledged the terrorism threat the U.S. faces – the administration’s justification for the detentions – but he declared, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” . . . In a blistering dissent, Justice Antonin Scalia said the decision “will make the war harder on us. It will almost certainly cause more eca111.jpgAmericans to be killed.” . . . Bush has argued the detentions are needed to protect the nation in a time of unprecedented threats from al-Qaida and other foreign terrorist groups. The president, in Rome, said Thursday, “It was a deeply divided court, and I strongly agree with those who dissented.” He said he would consider whether to seek new laws in light of the ruling “so we can safely say to the American people, ‘We’re doing everything we can to protect you.'” . . . Kennedy said federal judges could ultimately order some detainees to be released, but he also said such orders would depend on security concerns and other circumstances. The ruling itself won’t result in any immediate releases. . . . The decision also cast doubt on the future of the military war crimes trials that 19 detainees, including Khalid Sheikh Mohammed and four other alleged Sept. 11 plotters, are facing so far. The Pentagon has said it plans to try as many as 80 men held at Guantanamo. . . . Lawyers for detainees differed over whether the ruling, unlike the first two, would lead to prompt hearings for those who have not been charged. Roughly 270 men remain at the prison at the U.S. naval base in Cuba. Most are classed as enemy combatants and held on suspicion of terrorism or links to al-Qaida and the Taliban.” To read further click here.

This does not mean Gitmo detainees will be freed. It simply means that have a preliminary day in court. If you believe that even Hitler or the Devil should be treated fairly, you will rejoice at this decision, not because you believe in the possibility of Hitler or the Devil’s innocence, but rather because you are committed to the noble ideas of American constitutionalism.

Looking to Congress to Protect Our Rights

Written by Robert Justin Lipkin on July 6th, 2007

The Supreme Court term ended dramatically last week, with many constitutional law professors and civil rights advocates lamenting the Court’s turn to the right. On the very last day, in Parents Involved v. Seattle, the Court struck down the race-based programs adopted by the Seattle and Louisville school boards to integrate their school systems, and stopped just short of outlawing any such race-based measures. A couple of weeks before, in Ledbetter v. Goodyear, the Court eviscerated Title VII equal pay cases, holding that such cases must be brought within 180 days of the employee’s hiring at the lower pay.

These cases are convincing evidence that the Roberts Court is not a protector of “discrete and insular minorities,” the role that, we were taught in constitutional law classes, best justifies the exercise of judicial review. But what made sense in theory was rarely supported by fact. With the advent of the Roberts Court, it’s time to wake up and recognize the fact that throughout our history, with the marked exception of the Warren Court, the Court has rarely protected those rights and that instead, the primary protector of those rights has been the comparatively majoritarian United States Congress. (I discuss this in my recent book, Enforcing Equality: Congress, the Constitution, and the Protection of Individual Rights.)

Those of us who care about what I call “rights of belonging,” those rights that promote an inclusive vision of who belongs to the national community and that facilitate equal membership in that community, need to stop expecting the federal courts to be the primary arena for protecting those rights, and pay more attention to Congress, the body that is most likely to protect them. There are a number of measures currently pending before Congress that would expand rights of belonging. Such measures include the Hate Crimes Act of 2007, which would create enhanced penalties for violent crimes motivated by hatred based on race, gender, religion or sexual orientation; the Employee Free Choice Act, which would make it easier for unions to organize employees, and the Employee Non-Discrimination Act, which would make it illegal to discriminate in employment on the basis of sexual orientation. All of these measures deserve the same attention from constitutional law scholars and advocates for rights of belonging as the Supreme Court decisions. These measures are compelling examples of “popular constitutionalism” because they represent attempts by members of Congress, the elected representatives of the people, to vindicate the constitutional values of equal protection and equal participation.

The Court’s ruling in Ledbetter provides Congress with another chance to step up to the plate and protect our rights of belonging by amending Title VII to set a realistic  filing date for equal pay cases. Indeed, such a law has already been proposed in Congress. There is ample precedent for this bill: Congress has expanded the statute’s protections twice before to overturn adverse Supreme Court rulings with the Pregnancy Discrimination Act in 1978 and the Civil Rights Restoration Act in 1991. Rather than focusing only on the Court, constitutional law scholars should note that a House Committee approved the Ledbetter Bill on June 27, less than a week after it was introduced. Congress can’t do anything about the Court’s interpretation of the Equal Protection Clause, but it can act to remedy some of the mistakes it has the power to undo. We should expect it to.

Clashing Normative Environments and Same-Sex Marriage: New Jersey Speaks!

Written by admin on October 26th, 2006

NJS Image Yesterday, New Jersey’s highest court made it crystal clear that straights and gays have the same right to publicly recognized intimacy. Does that mean same-sex marriage for all? Not really. The Court left the choice to the legislature of whether same-sex intimacy interests should be codified in marriage or something less in name but equal in rights, thus, following our very own judicial Solomonic practice of splitting the difference. Why judges seem to operate just like legislators. (Surprise! Surprise!)

Why all the fuss over same-sex marriage? There are many potentially intractable reasons for this controversy. Indeed, the same sex marriage debate is a place-holder for much broader and deeper controversies in American culture such as one’s tolerance for change, exclusionary versus inclusionary values, whether courts or legislatures should have the primary responsibility for deciding controversial social and cultural conflicts, and a host of others. For now I want to mention just one often neglected issue implicated by the same-sex marriage controversy: the problem of clashing normative environments in a democracy.

One’s normative environment consists of those fundamental values, attitudes, customs, and habits through which one experiences the world. Our sense of self, morality, and perception of other people, and the world generally is experienced through a normative environment. For good or ill, everyone seeks to retain one’s normative environment and feels threatened when, as is inevitable in a democracy, one’s normative environment clashes with the hostile or perceived to be hostile normative environment of others. Normative environments are all both inclusionary and exclusionary. The question is to what degree and how inclusion and exclusion are balanced or accommodated in one’s normative environment. A problem arises however when the dominant normative environment of the majority is significantly exclusionary. In those circumstances, minority normative environments are in peril. However, because the dominant normative environment is exclusionary it sees itself threatened by opposing normative environments, especially in this case, one embracing same-sex marriage. The same-sex marriage controversy pits the exclusionary normative environment of the opponents of same-sex marriage against the normative environment of a minority.

How should this conflict be resolved in a democracy? The obvious answer is through the legislature. The problem is that in a constitutional democracy embracing judicial supremacy, such as ours, the courts have been assigned the role of guardian of minority rights and interests. Many of the majority-minority conflicts are over the basic features of human flourishing. These issues which define the self and the society occupied by the self, include the most attractive design of democracy; how majority and minority normative environments should interact with one another, how much change in a practice is required for us to say that it has been threatened or eliminated, what sorts of resolutions should be adopted when conflicts arise between those embracing fundamentally opposed normative environments, and the mother of all controversies, should public democratic societies err on the side of including or excluding minority normative environments.

For now, let’s make one point: In a democracy championing judicial supremacy, the legislature and the courts both share the responsibility for deciding this issue. The decision is one link in a chain that one day will lead inevitably to the recognition of gays and lesbians as completely equal citizens with the same rights, privileges, and responsibilities of every other American citizen. How should opponents react to this inevitability? Probably, in the same manner each of us must react to normative environments we disdain. We voice our displeasure, perhaps engage in political action to reverse the trend, and when that fails, we recognize that our democratic institutions–both the legislature and the courts–have spoken. And that should end the matter at least for the immediate future. Any good democratic citizen must recognize that losing in such conflicts is the price democrats must pay for democracy. And once an extraordinary effort to suppress a minority environment has taken its course, closure or provisional closure is necessary and desirable for our culture to reconstitute itself.