ACSBlog: The Blog of the American Constitution Society

Stories

• A response to Attorney General Michael Mukasey’s objection to the recently approved State Secrets Protection Act and discussion of a recent Senate Judiciary Subcommittee hearing on secret law, by Justin Florence, Fellow at the Georgetown Center on National Security and the Law.
•  Analysis of a new report that shows how the Midwest has become America’s leading judicial elections battleground, by Bert Brandenburg, Executive Director, Justice At Stake.
• The latest blog post from Guantánamo Bay, which discusses the relevance of discovery at trial in relation to the case of 21-year-old Omar Khadr Sahr, by MuhammedAlly, Senior Associate with the Law and Security Program, Human Rights First.
• A discussion of the California Supreme Court same-sex marriage decision, by William N. Eskridge, Jr., professor of law, Yale Law School. Also, quotations from and reactions on the California marriage decision.
• A summary of a recent ACS Connecticut chapter event, at which former U.S. Senator and presidential candidate Gary Hart discussed a national security strategy for the next president.
• Coverage of Supreme Court recusals in the class action lawsuit against U.S. companies connected to the former apartheid government in South Africa.

Resources

• Video from a recent ACS conference on civil rights, civil liberties and social justice.
• Video from an ACS symposium on “Lawrence v. Texas: Five Years Out.”
• This week’s congressional activities.

In mid-April, ACS co-hosted a symposium on “Lawrence v. Texas: Five Years Out.” The symposium featured a keynote address by Chair of ACS Board of Directors Paul Smith, who argued on behalf of Lawrence before the U.S. Supreme Court.

There were also two panel discussions. The first panel looked back at Lawrence on decision day and over the past five years. The second panel examined where the law should go from here regarding sexual orientation and gender identity.

Video from the symposium is available here.

by William N. Eskridge, Jr., professor of law, Yale Law School, and author of Dishonorable Passions: Sodomy Laws in America, 1861-2003 and (with Darren Spedale) Gay Marriage, For Better or For Worse: What We’ve Learned from the Evidence

In its decision today in The Marriage Cases, the California Supreme Court struck down that state’s bar to same-sex marriage.  This ruling is significant for a number of reasons. The Court became only the second state high court (after Massachusetts in 2003) to require the state to issue marriage licenses to lesbian and gay couples.  Other state courts have either rejected lesbian and gay couples’ constitutional claims, as in New York and Washington, or have only required states to recognize civil unions but not marriage, as in Vermont and New Jersey.  Doctrinally, the Court’s opinion was potentially far-reaching, for the Justices ruled that sexual orientation was a “suspect” classification requiring strict scrutiny.  For the first time in American legal history, moreover, an appellate court ruled that the constitutional “right to marry” applied to same-sex couples.

Continue Reading

Quotations

Right to marry
"We conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities and entitled to the same respect and dignity according a union traditionally designated as marriage." (p. 6)

Sexual orientation does not constitution a legitimate basis upon which to withhold rights
Our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibility to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights. (p. 7)

Continue Reading

California’s Supreme Court ruled 4-3 today that the state may no longer exclude same-sex couples from civil marriage.  In In re Marriage Cases, a consolidation of the cases brought on behalf of 14 same-sex couples as well as the City of San Francisco under the California state constitution, the Court ruled that the marriage ban violates the state’s fundamental constitutional right to form a family relationship and the state constitution’s equal protection clause.

The court ordered the offending language barring same-sex marriage stricken from the statute, and directed county clerks and other local officials to perform their duty to enforce the marriage statutes accordingly. Quotes from key sections of the ruling are available here.

According to the controlling opinion:

Our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibility to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual’s sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights.

Continue Reading

by Justin Florence, Fellow at the Georgetown Center on National Security and the Law

The Senate Judiciary Committee recently approved the bipartisan Kennedy-Specter-Leahy State Secrets Protection Act (S. 2533). The Act would provide federal courts with a set of tools to resolve civil cases in which the Government invokes the state secrets privilege. Under current practice, courts often do not have the opportunity to review key evidence before dismissing these cases, allowing the Government to avoid scrutiny of its actions. The Senate Bill, and a similar bipartisan bill in the House, would prevent Executive Branch abuse of the privilege, allow courts to provide justice to litigants, and protect national security secrets from improper disclosure. (As examples of the latter, the Judiciary Committee voted to require courts to give “substantial weight” to the national security concerns of Executive Branch officials, and to limit certain proceedings to attorneys with security clearances.)

I and many others have made the case elsewhere for why Congress should pass legislation along these lines. Unfortunately, Attorney General Mukasey has invoked the Administration’s constitutional theory of unfettered executive power as a reason for why President Bush will veto bipartisan congressional state secrets privilege reform. Rather than restate the affirmative case for the State Secrets Protection Act, I’ll use this post to respond to the Attorney General’s position, and to connect the state secrets privilege to another issue recently before the Senate Judiciary Committee.

Continue Reading

Several U.S. Supreme Court justices recused themselves this week from deciding to hear an expansive class action lawsuit against U.S. companies charged with furthering the life of the former apartheid government in South Africa. The recusals let stand a federal appeals court ruling that concluded the lawsuit could proceed.

The New York Times reported that four of the justices – Chief Justice John Roberts, Justices Samuel Alito, Anthony Kennedy and Stephen Breyer – recused themselves because of financial and personal ties to the companies.  A quorum of six justices is needed to decide whether to hear an appeal. The case, American Isuzu Motors v. Ntsebeza, involves plaintiffs who have accused an array of American businesses of “aiding and abetting” the former apartheid regime. The plaintiffs argue that the corporations have subverted one of the nation’s oldest laws, the Alien Tort Claims Act.

The Washington Post reported that while the number of recusals in the Ntsebeza case is unusual, recusals by the “justices are becoming more common as the court’s docket includes an increasing number of business cases.” The newspaper notes that Roberts’ holdings in the drug company, Pfizer, caused him to recuse himself from a case involving Rezulin, the diabetes drug that was yanked from the market in 2000 because of liver toxicity. Additionally Justices Breyer and Alito have recused themselves from other cases this term.    

Here is this week's congressional hearings schedule, with links to the daily calendars for the House and Senate, the weekly House whip information (majority/minority), and the Senate floor schedule.

Of note: On Wednesday, the House Committee on the Judiciary will hold a hearing on “Allegations of Selective Prosecution Part II: The Erosion of Public Confidence in Our Federal Justice System.” On Thursday, the Senate Committee on the Judiciary will examine a judicial nomination to the Fourth Circuit.

Continue Reading

On Friday, former U.S. Senator and presidential candidate Gary Hart discussed a national security strategy for the next president at an event co-sponsored by ACS’ Connecticut Lawyer Chapter and the Council for a Livable World. Blogger Aldon Hynes described the event at Orient Lodge, and NPR interviewed the former senator. He wrote a new book entitled “Under the Eagle’s Wing.”

Senator Hart has spoken at numerous ACS events, including co-chairing “Building Freedom, Building Security: America’s Challenge for the Next Five Years” with former Governor Thomas Kean, participating a conversation on warrantless domestic surveillance, and examining the topic “Separation of Powers: Restoring the Balance Among the Branches.”

by Bert Brandenburg, Executive Director, Justice At Stake

A new report from Justice at Stake, The New Politics of Judicial Elections in the Great Lake States, 2000-2008, shows how the Midwest has become America’s leading judicial elections battleground.  Illinois, Michigan, Minnesota, Ohio and Wisconsin are seeing a growing arms race between corporate interests, trial lawyers, ideological groups and political partisans who are committed to bending state judges to their will.

Continue Reading

Stories

• Geoffrey R. Stone, University of Chicago law professor and ACS Board of Directors treasurer, examined the Framers’ views on the role of the courts.
• David Madland, director of the American Worker Project at the Center for American Progress and co-author of The Progressive Generation: How Young Adults Think About the Economy, discussed the progressive views of young adults and how those views are likely to influence labor and health care law.
• Sahr MuhammedAlly, Senior Associate with the Law and Security Program, Human Rights First reported on the Guantánamo military commission hearing for 21-year-old Omar Khadr and analyzed the hearing for Ali Hamza Ahmed Sulayman al Bahlul.
• A humorous examination of the connection between immigration and America’s air travel, by Robert Weiner, a Washington, D.C. attorney.
• About 12 Indiana nuns were turned away Tuesday from a polling place because they didn't have state or federal identification bearing a photograph. ACS has assembled resources related to the recent Supreme Court decision in the Crawford cases.

Resources

• Video from a recent ACS discussion and book signing with David Stewart, Washington, D.C. attorney and author of The Summer of 1787: The Men Who Invented the Constitution.
• ACS materials related to the State Secrets Privilege Act, which was passed by the Senate Judiciary Committee on Thursday.
• Video from a conference co-hosted by ACS on civil rights, civil liberties and social justice.
• A report from Justice at Stake on “The New Politics of Judicial Elections in the Great Lake States, 2000-2008.”
• This week’s congressional activities.

ACS and the ABA Section on Individual Rights and Responsibilities co-hosted a day-long conference on civil rights, civil liberties and social justice. Video from the morning plenary session on the impact of the upcoming election on individual rights issues and from the afternoon plenary session on judicial elections and judicial independence is now available.

An online library, the Internet Archive, successfully fought off an FBI request to obtain information about one of its patrons, Wired reported. The FBI had issued a National Security Letter — a subpoena demanding information related to a terrorism investigation, which is never approved by a judge and prohibits the recipient from disclosing the order – to the library.

The Archive challenged the letter in court, and on April 21 the FBI agreed to withdraw the letter and unseal the court case. The settlement precludes the Internet Archive from disclosing the target of the investigation, although many of the court documents are available online.

by Sahr MuhammedAlly, Senior Associate with the Law and Security Program, Human Rights First

Guantánamo Bay, May 8, 2008: Today’s military commission hearing in the case of 21-year-old Omar Khadr was all about discovery—what documents the government will turn over so that Khadr can effectively mount a defense. One thing was clear: the government is in possession of documents it does not want to disclose to the defense.

Continue Reading

Justice at Stake released a new report on “The New Politics of Judicial Elections in the Great Lake States, 2000-2008.” From the introduction:

Attorneys, business interests, ideological groups and political partisans have locked themselves into an escalating arms race. Judges and justices routinely raise millions of dollars from contributors whose cases they decide. Campaign ads are designed to destroy confidence in the integrity of the candidates. Above all, special interests are working to convert judicial elections into a tool of political intimidation rather than public accountability.

This report details how these recent trends are turning the “Great Lakes” states into leading battlefields in the growing national struggle for the courts.

(H/T GavelGrab)

On Thursday, the Senate Judiciary Committee passed the State Secrets Privilege Act, which provides for judicial review when the executive asserts the privilege and quashes lawsuits. ACS hosted a panel discussion on the privilege, which discussed whether the privilege is being properly invoked and the appropriate balance of national security concerns with meaningful access to justice. Follows the links to watch video from the discussion or read a transcript.

by Sahr MuhammedAlly, Senior Associate with the Law and Security Program, Human Rights First

Guantánamo Bay, May 7, 2008: Today’s hearings were in stark contrast to each other—one involved Ali Hamza Ahmed Sulayman al Bahlul, who rejected the military commission system and renewed his support for Osama bin Laden, and the other involved Mohammed Jawad, a distraught 23-year-old defendant who has agreed to participate in the proceedings for now, but who has mentally suffered from years of isolation in Guantánamo. Both proceedings had one thing in common, which has been the case for nearly every military commission hearing: how to deal with issues not addressed in the Military Commissions Act of 2006 (MCA) or the military commission rules.

Today the questions were about how to share evidence, including classified evidence, with a defendant who has chosen to represent himself; whether a judge has the authority to rule on allegations of mistreatment; and whether a judge can order a change in conditions of confinement.

Continue Reading

by David Madland, Director of the American Worker Project at the Center for American Progress and co-author of “The Progressive Generation: How Young Adults Think About the Economy”

According to the results of a first-of-a-kind analysis about Millennials’ views on the economy, a majority of 18- to 29-year-olds (our definition of this generation) believe that labor unions and the government can be a force for good in the economy, and that increased investments in healthcare, education, and other areas are necessary to ensure strong and sustainable economic growth. Millennials’ views are more progressive on economic issues than those of other age groups today, and are more progressive than previous generations when they were younger.

Continue Reading

This week’s Economist discovers India as the final frontier for global corporate law firms. An Indian court is considering whether the 1961 Indian Advocates Act, which prevents foreign firms from practicing in India, should be liberally interpreted in the context of a dispute between local lawyers and three international law firms that had opened offices in India in the 1990s.

Indian firms are unique, according to the article. They cannot have more than 20 partners, may not advertise on the web, and attorneys are not permitted to provide a business card unless it has been requested.  In addition, the firms play a unique role within the society, being viewed as the “guardians of democracy” and associated with independence from Britain. The question of whether and how to integrate foreign practitioners, particularly in light of an increasing number of international deals, may be on its way to being answered.

Michigan’s Supreme Court held 5-2 that Michigan’s constitutional ban on same sex marriages precludes local government and state universities from providing health insurance to the partners of gay employees, affirming a local court decision, the Associated Press reported.

Late last year, University of Chicago law professor Geoffrey R. Stone examined how the Supreme Court decides hard cases, what it means to be a conservative or liberal judge and what he views as the proper mode of constitutional analysis in his six part blog series on “constitutionalism.”

In a recent article, Professor Stone explained the Framers’ understanding of the role of the courts. He started with a discussion of the greatest danger to liberty:

A fundamental challenge facing the Framers of our Constitution was how to restrain intolerant, self-interested, and prejudiced majorities in order to ensure that they would not run roughshod over the rights and liberties of minorities. As James Madison observed, "the greatest danger" to liberty was to be found "in the body of the people, operating by the majority against the minority."

Continue Reading

"About 12 Indiana nuns were turned away Tuesday from a polling place by a fellow bride of Christ because they didn't have state or federal identification bearing a photograph," the Associated Press reported. It added:

They weren't given provisional ballots because it would be impossible to get them to a motor vehicle branch and back in the 10-day time frame allotted by the law, Sister McGuire said. "You have to remember that some of these ladies don't walk well. They're in wheelchairs or on walkers or electric carts."

Continue Reading

On April 28, 2008, the American Constitution Society and its Washington, D.C. Lawyers Chapter hosted a discussion of The Summer of 1787: The Men Who Invented the Constitution. The event included a conversation between the author, David O. Stewart, and Paul M. Smith, ACS Board of Directors Chair and partner at Jenner & Block LLP. Stewart and Smith delved into the personalities behind the creation of the nation's founding document. Stewart touched upon his interests in writing a book about the Philadelphia Convention of 1787 and how his research helped form his views of some of the U.S. Constituion's framers. Full video of the event is available here.

David O. Stewart discusses the framers that he believed have been wrongfully ignored by history.

Continue Reading

The following post is by Robert Weiner, a Washington, D.C. attorney

Recently the CNN commentator Lou Dobbs decried “the way airline passengers are being treated in this country,” having to “line up like cattle” to get through security and enduring conditions that are “disgusting.” CNN, which is in the business of anointing, has anointed Dobbs the scourge of illegal immigration. Without him, nothing would keep U.S. elected officials from ranking  the interests of their constituents, who can vote, below those of foreigners, who cannot.  

Continue Reading

According to Citizens for Responsibility and Ethics in Washington (CREW), the White House admitted it failed to preserve any backup tapes for emails from March 1, 2003 to May 22, 2003. The administration previously admitted it did not keep backup tapes for September 30, 2003 to October 6, 2003. CREW notes that the earlier period coincided with the US invasion of Iraq, which took place from March 20 to May 1, and the latter period coincided with a Justice Department investigation into the disclosure of Valerie Plame Wilson’s covert identity

The White House’s declaration is available here.