Les anglonautes

About | Search | Vocapedia | Learning | Podcasts | Videos | History | Arts | Science | Translate

 Previous Home Up Next


History > 2013 > USA > Supreme Court (I)



Justices Reject Bid

to Block Texas Law on Abortions


November 19, 2013
The New York Times


WASHINGTON — The Supreme Court on Tuesday turned away an emergency application asking it to block a Texas law that requires doctors performing abortions to have admitting privileges at a nearby hospital.

The decision was effectively 5 to 4 and split along ideological lines.

The effect of the ruling, Justice Stephen G. Breyer wrote for the four dissenters, was to leave 24 counties in the Rio Grande Valley without abortion clinics. “It may,” he added, “substantially reduce access to safe abortions elsewhere in Texas.”

Justice Antonin Scalia, joined by Justices Clarence Thomas and Samuel A. Alito Jr., wrote that the challengers to the law had not met a heavy procedural burden in asking the Supreme Court to alter an appeals court’s provisional decision to let the law go into effect while it considers an appeal.

“Reasonable minds can perhaps disagree about whether the court of appeals should have granted a stay in this case,” Justice Scalia wrote. “But there is no doubt that the applicants have not carried their heavy burden of showing that doing so was a clear violation of accepted legal standards — which do not include a special ‘status quo’ standard for laws affecting abortion.”

Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy also presumably voted to reject the application and allow the law to go into effect but did not join Justice Scalia’s opinion.

Abortion rights groups and clinics said the law served no medical purpose and was forcing a third of the state’s 36 abortion clinics to stop performing the procedure, preventing some 20,000 women a year from access to safe abortions.

State officials told the court that the law, which requires that doctors have hospital admitting privileges within 30 miles of where they perform abortions, protects public health by “fostering a woman’s ability to seek consultation and treatment for complications directly from her physician.”

The officials added that the impact of the law was modest, saying that more than 90 percent of women seeking abortions in the state will still live within 100 miles of an abortion clinic.

The law had been temporarily stalled when Wendy Davis, a Democratic state senator, mounted an 11-hour filibuster in the Republican-controlled Legislature. Ms. Davis is now running for governor.

The case may yet reach the justices. The United States Court of Appeals for the Fifth Circuit, in New Orleans, provisionally allowed the law to go into effect last month. The appeals court will hear arguments in the case in January, and either side may appeal its decision to the Supreme Court.

Justice Breyer wrote that the validity of the Texas law “is a difficult question.” He added that he expected the Supreme Court to agree to hear an appeal regardless of how the appeals court rules.

The appeals court’s ruling stayed one from Judge Lee Yeakel, a federal district judge in Austin, who had blocked the law. Judge Yeakel said the law’s “admitting-privileges provision is without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Justice Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, said Judge Yeakel’s ruling should have been allowed to stand while the appeal was considered.

At bottom, the two sides in Tuesday’s ruling differed about what it means to maintain the status quo while a case proceeds through the courts. Justice Scalia said that the status quo is upheld and federalism principles are vindicated when validly enacted state laws are allowed to stand while their constitutionality is definitively resolved.

Justice Breyer focused on the practical consequences for women in Texas seeking abortions.

“I would maintain the status quo” of allowing clinics in Texas to provide abortions, he wrote, “while the lower courts consider this difficult, sensitive and controversial legal matter.”

“The longer a given facility remains closed,” Justice Breyer wrote, “the less likely it is ever to reopen even if the admitting privileges requirement is ultimately held unconstitutional.”

    Justices Reject Bid to Block Texas Law on Abortions, NYT, 19.11.2013,






When the Police Enter a Home


November 12, 2013
The New York Times


The home is “at the very core” of the Fourth Amendment’s protection against unreasonable government intrusion, as the Supreme Court has said repeatedly. It is where a person’s expectation of privacy is greatest.

The first line of defense of this privacy is the warrant requirement. If police officers want to search a home without a warrant, they are required to get a tenant’s consent. If one tenant consents and another does not, the objector’s wish prevails.

But what if the police lawfully arrest the objecting tenant and remove him from the home, may they enter then? That is the question the Supreme Court is considering on Wednesday in Fernandez v. California.

In 2009, Los Angeles police investigating what they believed to be a gang-related assault and robbery saw one of the suspects enter a nearby apartment. They knocked on the door, and a woman holding an infant answered. She had a fresh wound on her face and blood on her hand and shirt. When the police saw the suspect behind her, they asked him to step outside. He said, “You don’t have any right to come in here. I know my rights.”

The police arrested the man, Walter Fernandez, on charges of domestic violence, and he was taken to the police station. An hour later, the police returned to the home and asked the woman, Mr. Fernandez’s girlfriend, if they could enter. She consented, and the subsequent search turned up a shotgun, ammunition and a knife allegedly used in the robbery.

Mr. Fernandez received an enhanced sentence of 14 years for the gang-related assault and robbery. He appealed, arguing that the enhancement was based on evidence collected in an unlawful search of his home. The state court rejected his appeal, finding that the police’s warrantless entry was legal because he was no longer there to object. Once he was gone, the state claimed that his girlfriend’s consent rendered the search lawful.

But there is no reason to complicate existing law in such circumstances. A tenant’s right to object to a warrantless search should not depend on whether he can permanently stand guard at his front door. If the police have probable cause to make an arrest, they will almost surely have the basis for a warrant as well. Warrants can be issued in a matter of minutes, and, in the meantime, the police can secure the home if they are concerned that evidence may be destroyed.

The state contends that obtaining consent is “simpler, faster and less burdensome” than getting a warrant. But that is precisely the point. By forcing the government to get a judge’s approval before intruding into a private home, the warrant requirement ensures oversight of law enforcement and informs citizens that the search has been authorized by a neutral arbiter.

The home, as the court has said, has long enjoyed “special protection as the center of the private lives of our people.” The justices should reaffirm that principle and require police who wish to search a home to get a warrant, even if the only person standing in their way is in a holding cell.

    When the Police Enter a Home, NYT, 12.11.2013,






Justices Decline an Appeal on Abortion


November 4, 2013
The New York Times


WASHINGTON — The Supreme Court decided on Monday not to hear an appeal from a decision striking down an Oklahoma abortion law after all, dismissing as “improvidently granted” a case it had agreed to consider in June.

The move followed an Oklahoma Supreme Court ruling last week that the law, enacted in 2011, violated the Constitution by effectively banning all medicinal, nonsurgical abortions. The ruling came in response to questions from the United States Supreme Court seeking clarification of the scope of the law.

The Oklahoma Supreme Court’s broad answer apparently made the case, Cline v. Oklahoma Coalition for Reproductive Justice, No. 12-1094, less attractive to the justices who had voted to hear it and who probably wanted to consider only the narrower issue of whether states may require adherence to the protocol from the Food and Drug Administration for an abortion-inducing drug.

Other cases presenting versions of that narrower question, including one concerning a Texas law, may soon reach the court.

Also on Monday, several clinics that offer abortions filed an emergency application asking the court to block another part of the Texas law, this one requiring doctors who provide abortions to have admitting privileges at a nearby hospital. Allowing the law to stand, the clinics said, would require one-third of the 36 clinics providing abortions in the state to stop, forcing many women to travel several hours to obtain abortions.

“This forced cessation of services and reduction in capacity will prevent, each year, approximately 20,000 Texas women who would have otherwise had an abortion from accessing this constitutionally protected health care service,” the application filed Monday said.

The application was addressed to Justice Antonin Scalia, the member of the court assigned to handle emergency matters from federal courts in Texas. He instructed state officials to file a response by Nov. 12.

The Oklahoma case concerned a 2000 protocol from the F.D.A., which approved the use of mifepristone, sometimes called RU-486, in combination with a second drug, to induce abortions. The Oklahoma law at issue in the case dismissed on Monday restricted the use of abortion-inducing drugs to that protocol.

In December, the State Supreme Court struck down the law in a brief and cryptic decision.

Even as the United States Supreme Court agreed in June to hear the state’s appeal, it asked for clarification from the State Supreme Court about whether the law merely required adherence to the F.D.A.-approved protocol for mifepristone or did more.

The State Supreme Court on Tuesday gave the broader answer, saying the law “effectively bans all medication abortions.” It rested its decision in large part on language in the state law that it said applied not just to mifepristone but also to a second drug used in combination with it, misoprostol.

The court explained in an unsigned decision that new research since 2000 had refined the proper use of mifepristone, calling for a lower dose, fewer visits to clinics and use later in the pregnancy. “Ninety-six percent of medication abortions in the United States are now provided according to a regimen different from the one described in mifepristone’s F.D.A.-approved label,” the court said.

    Justices Decline an Appeal on Abortion, NYT, 4.11.2013,






The Supreme Court Returns


October 5, 2013
The New York Times


The Supreme Court begins a new term on Monday, even as the landmark rulings of last term continue to reverberate. The court has agreed to hear more than 50 cases so far on disputes both familiar and fresh: from affirmative action and freedom of speech, to campaign finance and the president’s power to make recess appointments.

No case yet promises the high-profile splash of rulings on national health care, voting rights or same-sex marriage, but in many of them, long-established Supreme Court precedents may be at risk.

AFFIRMATIVE ACTION A familiar issue, but this time the question is whether a state may amend its constitution to prohibit the consideration of race or sex in public university admissions decisions. Ten years ago, the court ruled that the University of Michigan Law School could use race as one factor in assessing applications. Michigan voters responded by passing a constitutional amendment banning the practice.

The court in Schuette v. Coalition to Defend Affirmative Action will now consider whether that amendment violates the equal protection clause. The court’s very narrow decision last term in Fisher v. University of Texas at Austin did not change the state of the law on the use of race to achieve diversity. This case risks doing so.

CAMPAIGN FINANCE In one of the most closely watched cases of the term, McCutcheon v. Federal Election Commission, the court will consider the constitutionality of overall limits on how much an individual donor may give directly to federal candidates, party committees and PACs in a two-year election cycle.

McCutcheon is the first major campaign finance case to reach the court since its controversial 2010 ruling in Citizens United v. Federal Election Commission, which struck down a ban on independent spending in campaigns by corporations and labor unions. In a 1976 case, Buckley v. Valeo, the court upheld limits on direct political contributions to prevent corruption. That precedent is being tested again in the McCutcheon case; the justices should reaffirm it.

FREEDOM OF SPEECH AND RELIGION In McCullen v. Coakley, anti-abortion protesters are challenging a Massachusetts law that sets a 35-foot “buffer zone” around health care clinics where abortions are performed. The Supreme Court upheld a similar buffer zone in 2000, but the protesters in this case say the law discriminates against them based on their point of view. That earlier ruling may not survive because four of the justices in the 2000 majority have left the court.

In Town of Greece v. Galloway, the court will decide whether the First Amendment permits a prayer before a town board meeting. A 30-year-old Supreme Court decision says that nonsectarian legislative prayers do not violate the Constitution, but in this case, all but a handful of the prayers were performed by Christian clergy. The question is whether this will make a difference to the justices.

ABORTION Cline v. Oklahoma Coalition for Reproductive Justice deals with the constitutionality of an Oklahoma law that requires doctors to use abortion-inducing drugs precisely as the Food and Drug Administration approved them 13 years ago. The law’s challengers point out that standard medical practice has changed and doctors routinely prescribe the drugs differently now (at much lower doses and two weeks later into a pregnancy), which is fully permitted by federal law.

Earlier Supreme Court rulings have struck down laws that pose an “undue burden” on abortion rights. The court should see Oklahoma’s tactics for what they are — part of an effort to undo the right to choose under the guise of protecting women’s health.

PRESIDENTIAL POWER National Labor Relations Board v. Noel Canning addresses issues as vast as the separation of powers and as small as the meaning of the word “the.” The case involves the president’s constitutional power to make appointments “during the recess of the Senate,” as President Obama arguably did in January 2012, when he appointed three members to the N.L.R.B. The board then ruled against a bottling company called Noel Canning in a labor dispute.

The company appealed, arguing, among other things, that the board members’ appointment was improper because the Constitution’s use of the phrase “the recess” refers only to the period when Congress is between sessions, and not to a break within a session. The Obama administration points out that presidents for more than a century have made appointments during breaks when Congress was out of town. Accepting the company’s extremely narrow reading of the Constitution would invalidate a practice that has resulted in hundreds of appointments over the years.

Beyond these cases, the new term could hold other surprises. Several of last year’s biggest cases were not accepted by the court until after the term began.

For instance, the justices have yet to decide whether to hear an appeal on the issue of the Affordable Care Act’s requirement that the health plans of private for-profit employers cover birth control. Several companies have challenged the rule on the grounds that it violates their religious freedom, and federal appeals courts have split on the issue, which makes it likely that the court will step in.

On many of these cases, the outcome may depend again on a single vote — and often, but not always, that means Justice Anthony Kennedy, whose vote decided more 5-4 cases than any other member of the court last year.

    The Supreme Court Returns, NYT, 5.10.2013,






It’s Not Citizens United


October 1, 2013
The New York Times


CAMBRIDGE, Mass. — ON Tuesday the Supreme Court is scheduled to hear arguments in McCutcheon v. Federal Election Commission, potentially the most significant federal campaign finance case since Citizens United in 2010.

But while the court in Citizens United struck down — correctly, in my opinion — limits on independent campaign spending by individuals or organizations, the McCutcheon case is an attack on limits that should not be struck down: those on contributions made directly or indirectly to political candidates.

The McCutcheon case was brought by the Republican National Committee and a contributor, Shaun McCutcheon. If they succeed, individuals will be able, in effect, to direct unlimited amounts of cash to the election campaigns of federal candidates — inviting corruption or the appearance of corruption, which the Supreme Court has consistently held justifies contribution limits. (I have filed an amicus brief in this case on behalf of Americans for Campaign Reform.)

Campaign-finance law currently limits an individual’s contribution to a federal candidate to a modest sum — around $2,500 — with a somewhat larger limit for donations to committees that contribute to the candidate. In addition, the law places an aggregate limit — around $120,000 — on an individual’s contributions, direct or indirect, to all federal candidates every two-year election cycle.

Mr. McCutcheon and the R.N.C. say they object to the aggregate limit on contributions, not to the per candidate limit.

Ever since the 1976 Supreme Court case Buckley v. Valeo, in which the court upheld limits on individual federal campaign contributions, every Supreme Court decision on this issue has been based on the distinction between money given to candidates — contributions — and money that individuals or organizations use for their own independent campaign-related expenditures.

The underlying idea is that while the First Amendment prohibits the government from limiting your political speech (and the more you speak, the more you may have to spend), a contribution is money spent to help someone else speak. The government may not limit your own expression (and since Citizens United that applies to corporations and unions, too), but for almost half a century Congress has limited contributions without being challenged by the Supreme Court.

All federal campaign finance laws since 1972 — not just the current Bipartisan Campaign Reform Act signed into law in 2002 — have also had aggregate limits, which have always been upheld by the court.

Mr. McCutcheon and the R.N.C. contend that the aggregate limits on contributions violate the First Amendment by constraining a contributor’s opportunity for political expression. This is unconvincing: Mr. McCutcheon is already permitted to spend as much money as he would like on his own independent campaign-related speech.

To get the full measure of how far-fetched Mr. McCutcheon’s claim is, consider his argument that aggregate contribution limits violate his right to political expression by preventing him from contributing the symbolic amount of $1,776 to each of 25 candidates (along with a total of $7,500 to three others) — though he could give $17.76 to every Republican Congressional candidate. It is as if the developers of One World Trade Center, which is 1,776 feet high, had argued that the First Amendment gave them the constitutional right to build to that height.

Though Mr. McCutcheon and the R.N.C. claim that they are not attacking all contribution limits, only aggregate limits, they know that in practice that is a distinction without a difference. If the court were to strike down aggregate limits, then a contributor could give money up to the maximum amount not only to every federal candidate but also to any political action committee that contributed to a candidate. And as a lower federal court in McCutcheon recognized, there is no limit on how many PACs might be created that are likely to contribute to a particular candidate.

If there were 10,000 PACs, all of which were likely to contribute to John Smith for Congress, then by Mr. McCutcheon’s and the R.N.C.’s reasoning you should be free to give up to the maximum of $5,000 to each PAC, for a total of $50 million. This would blow an enormous hole in the longstanding, court-approved scheme of campaign contribution limits.

As Justice Antonin Scalia once wrote in another context, this argument is not a wolf in sheep’s clothing: “this wolf comes as a wolf.” The only reason the Supreme Court would be tempted to let this wolf in is if the court wants to see the destruction of all limits on an individual’s donations to a political candidate.


Charles Fried, a professor of law at Harvard,

was the solicitor general in the second Reagan administration.

    It’s Not Citizens United, NYT, 1.10.2013,






A Rare Plea to the Court


September 21, 2013
The New York Times


The Supreme Court’s next term is full of big-ticket issues — from campaign finance to affirmative action to the separation of powers — but a largely overlooked death-penalty appeal the court hasn’t agreed to hear yet could clarify how broadly it views its ultimate power to stop unjust executions.

In 1990 Warren Lee Hill beat a man to death with a nail-studded board, and the state of Georgia sentenced him to die.

Mr. Hill is intellectually disabled, according to all seven mental health experts who have examined him. The Supreme Court banned the execution of intellectually disabled people in 2002, but Mr. Hill remains on death row, trapped by a welter of state and federal laws that prevent him from proving his condition in court. He escaped execution in July only because a state court judge didn’t appreciate Georgia’s attempt to keep secret the drug protocol it planned to use to kill him.

One hurdle for Mr. Hill is that while four of the seven mental health experts originally found that he met the criteria for mild mental retardation, three did not. Georgia requires intellectual disability to be proved beyond a reasonable doubt — an arguably unconstitutional standard no other state uses. Presumably it is possible to meet this standard. Either way, Georgia courts said a four-three split was not enough. But last year the three experts against Mr. Hill recanted. Seven to zero sounds like a winner, but it didn’t matter, a federal appeals court said, since Mr. Hill was blocked by another law that strictly limits multiple appeals on the same claim.

So Mr. Hill filed a direct appeal to the Supreme Court — a rare request the court even more rarely grants — asking it to order the lower courts to weigh the new evidence. On Sept. 30, the court will consider whether to hear Mr. Hill’s petition. It has been reluctant in the past to exercise this power, but this case is exceptional. At stake is not only a man’s life, but the court’s own authority, which continues to be skirted by states like Georgia and Texas, where the 2002 ruling on intellectual disability is similarly subverted by an unscientific standard.

Mr. Hill’s case is as simple as it is unusual: there is compelling evidence that he is categorically ineligible to be executed, and he has nowhere else to turn.

    A Rare Plea to the Court, NYT, 21.9.2013,






Justices Rule

California Must Free Some Inmates


August 2, 2013
The New York Times


LOS ANGELES — The United States Supreme Court on Friday rejected California’s attempt to stop the release of nearly 10,000 inmates from state prisons to relieve overcrowding, dealing a blow to Gov. Jerry Brown’s efforts to fight federal court orders to reduce the prison population.

The decision is the latest in a long line of federal rulings demanding that the state drastically reduce its prison population. In 2011, the Supreme Court ruled that the overcrowding created conditions that amounted to cruel and unusual punishment, with inmates unable to receive proper health care, and some inmates dying while under the care of the state.

Mr. Brown has spent several months arguing that the prisons have greatly improved, and that the state should no longer be subjected to federal oversight. State officials were appealing to the Supreme Court for a full review of an order from a three judge-panel of the Court of Appeals for the Ninth Circuit.

The justices were split 6 to 3, and Justice Samuel A. Alito said that he would grant a stay of release. Justice Antonin G. Scalia wrote a bitter dissent — calling the lower court’s order a “terrible injunction” — that was signed by Justice Clarence Thomas.

“California must now release upon the public nearly 10,000 inmates convicted of serious crimes,” Justice Scalia wrote. He said the population reduction mandate goes “beyond the power of the courts.”

The court’s ruling on Friday appeared to leave the governor with no choice but to reduce the prison population to 110,000, 137.5 percent of design capacity, by the end of this year, as the court ruled in its 5-to-4 decision in 2011.

Lawyers for the plaintiffs in the case, which has gone on for more than two decades, hailed the ruling as extraordinary and said it would compel the state to act or Mr. Brown could be held in contempt of court, as a lower court panel has threatened.

“Their hope to be rescued in the process is gone,” Michael Bien, a lawyer for the plaintiffs — the prisoners and their advocates — said of Mr. Brown and state corrections officials. “This was a Hail Mary pass to the end zone and the ball was dropped. We fully expect them to comply with the courts, and we will make sure they do so.”

Along with three former governors, Mr. Brown argued to the Supreme Court that the early release of thousands of prisoners would endanger the public with offenders who have “a history of serious or violent offenses who are very likely to commit more serious crimes, impacting already stretched law enforcement, social service, mental health and substance use treatment resources of counties.”

Justice Scalia wrote that the state had shown evidence it had “made meaningful progress” in serious overcrowding in its 33 prisons, and that additional releases were not necessary.

While it has protested doing so, the State Corrections Department has already begun preparing to expand some parole programs, and release inmates it deems have the lowest risk of committing new crimes. In court filings, the state said it could identify only 1,205 inmates who had less than a year left on sentences for nonviolent crimes. The current state plan calls for the release of nearly 4,200 additional prisoners, but the state could also increase the time taken off sentences for completing rehabilitation programs in prison.

For nearly two years, the state began requiring that county jails take in low-level felons and parole violators, which has reduced the state prison population by about 25,000. Mr. Brown has repeatedly argued that the change, along with other shifts in the state system, has resulted in constitutional care and conditions for the remaining 132,000 inmates.

State officials said Friday they planned to continue to press for a hearing for a full appeal from the Supreme Court “so that the merits of the case can be considered without delay,” but would move forward with a plan to comply with the lower court order.

It is unclear precisely how many prisoners will be released. The state could also move to put more prisoners in private out-of-state facilities or contract with county jails that have open beds.

The ruling comes as hundreds of prisoners continue a hunger strike to protest solitary confinement policies. State officials said 477 inmates in six prisons were participating on Friday, down from more than 30,000 when the strike began last month.

    Justices Rule California Must Free Some Inmates, NYT, 2.8.2013,





Justice for Big Business


July 1, 2013
The New York Times


IRVINE, Calif. — THE Supreme Court’s momentous decisions last week on affirmative action, voting rights and same-sex marriage overshadowed a disturbing trend: in the final two weeks of its term, the court ruled in favor of big business and closed the courthouse doors to employees, consumers and small businesses seeking remedy for serious injuries.

A majority of the justices seem to believe that it is too easy to sue corporations, so they narrowly construed federal laws to limit such suits. These decisions lack the emotional resonance of the cases involving race and sexuality, but they could have a devastating effect on people who have been wronged by companies.

The three cases involved many different areas of law but shared much in common. The five most conservatives justices — Samuel A. Alito Jr., Anthony M. Kennedy, Antonin Scalia, Clarence Thomas and Chief Justice John G. Roberts Jr. — were in the majority in all cases. All strongly favored big business.

First, the court made it much harder for victims of discrimination to sue. The court had previously ruled that, generally, an employer is strictly liable for sexual harassment by a supervisor, but it can be held liable for sexual harassment by a co-worker only if the employer is negligent. On June 24, in, Vance v. Ball State, the court adopted a narrow definition of who is a “supervisor,” holding that it must be a person empowered to take tangible, adverse actions against the worker, like demoting or firing her, or cutting her pay.

This is just the most recent of several Roberts court decisions that have narrowed the scope of federal employment discrimination protections. The most infamous was Ledbetter v. Goodyear Tire and Rubber, in 2007, in which the court prevented a woman who had been the victim of years of pay discrimination from recovering back pay for most of the time she was employed there, because she did not learn of the disparity until near the end of her employment. Congress passed, and President Obama signed, a law overturning that decision.

Second, the court affirmed that it consistently favors manufacturers over consumers. Two years ago, in Pliva v. Mensing, it held that those injured by generic drugs couldn’t sue manufacturers for failing to adequately warn patients of side effects. This is crucial because nearly 80 percent of all prescriptions in the United States are filled with generic drugs (it would be 90 percent if it were not for drugs for which there is no generic equivalent).

On June 24, the Supreme Court went further. In Mutual Pharmaceutical Company v. Bartlett, it held that makers of generic drugs could not be sued for defects in product design. The case involved a woman who was disfigured after taking a generic pain medication. The court said that federal law pre-empted any recovery under state law for failure to warn of the defects.

Third, the court continued to sharply limit class-action suits against companies. Two years ago, in AT & T Mobility v. Concepcion, the court held that a clause in a consumer contract requiring arbitration of disputes precluded a class-action suit. Vincent and Liza Concepcion were upset when they were charged $30.22 in sales tax after getting “free” cellphones. They wanted to be part of a class action against AT & T for fraud.

The Concepcions, like so many of us, had signed an agreement when they got their phones, and it had a clause that said any dispute with AT & T had to be resolved in arbitration. The California Supreme Court had ruled that such arbitration clauses were not enforceable, because consumers had no realistic choice but to sign. But the United States Supreme Court held, 5 to 4, that the arbitration clause was to be enforced and that since it had to be individual arbitration, it could not be a classwide case. Justice Scalia’s majority opinion spoke of the terrorizing effects of class actions, which can force corporations to settle even frivolous suits. But the reality is that class actions are essential when a large number of people suffer damage, especially when the amounts are small: no one will sue, or even go to arbitration, for $30.22.

On June 20, the court again restricted class actions, in American Express v. Italian Colors Restaurant. The restaurant and other small businesses had brought a class-action suit accusing American Express of violating antitrust law in imposing excessive fees on merchants. The individual plaintiffs could have each recovered just $38,000 under the antitrust statute, but proving an antitrust violation would have cost exponentially more. Therefore, denying a class action meant that the suit could not realistically go forward. The result: a company can violate antitrust law yet immunize itself from liability through an arbitration clause.

These cases evince a disquieting theme about the conservative majority of the Roberts court. It obviously believes, and sometimes expressly says, that there is a need to protect big business from litigation. But in discrimination, product liability and arbitration, it has left injured employees, consumers and small businesses without recourse.

Congress could revise these statutes to allow the suits to go forward, and in the discrimination case, Justice Ruth Bader Ginsburg called on Congress to do just that. But deadlock in Washington does not leave much confidence that Congress will reopen the courthouse doors.


Erwin Chemerinsky is a professor

and the dean of the law school

at the University of California, Irvine.

    Justice for Big Business, NYT, 1.7.2013,






Joining Together in Justice


June 26, 2013
The New York Times


Proponents of equality have reason to both cheer and cry this week.

This week, in a series of rulings, the Supreme Court lay bare once more a continuing divide in this country about the role and limits of government in ensuring — or denying — equality.

In the University of Texas at Austin affirmative action case, the Voting Rights Act case and the same-sex marriage cases, the court drew a line between policies that explicitly articulate exclusion and those that implicitly and effectually remedy exclusion — both current and historical.

Proponents of racial diversity were on the losing end of those rulings, and same-sex marriage proponents were on the winning end.

The court set a higher bar for including race as one factor among many in university admissions and struck down a key provision of the Voting Rights Act. But it also voided the Defense of Marriage Act and declined to decide the Proposition 8 case, effectively allowing same-sex marriage in California.

One movement for equality had its spirits lifted and another had them crushed.

But the truth is that these movements are not wholly dissimilar. All combatants for justice are cousins. Jim Crow and Jim Queer are of a kind. So, given what happened on the racial civil rights front this week, the LGBT civil rights movement would be wise to take heed.

Overcoming blatantly unconstitutional laws is only a first step in the never-ending march toward justice. It is in the decades that follow that discriminatory policies can become more illusory. That’s when, even if the net effect of a law is that it is discriminatory, the law itself may not be seen as such. In this murky period intent can be deemed unknowable and effect can be deemed inadvertent.

This is when the courts — and the law — can essentially say that if you can throw a rock and hide your hand, you can in turn hide your guilt. This is when personal discrimination fades into the fog of a more ominous and amorphous structural discrimination. This is when legacy injustice, which can reverberate for generations through a population, is assigned term limits. Fatigue grows in the wake of fairness.

That’s the fight equality movements must mount when they grow up — shadowboxing.

I sincerely believe that in my lifetime, gay marriage will be legal in the whole of the country. But it is unlikely that the LGBT community will become more than a minority group. I also know that the changing of laws does not work in tandem with the changing of hearts, which means that minority groups are always vulnerable. When the laws change, some things simply become subterfuge. In striking down Section 4 of the Voting Rights Act, Chief Justice John G. Roberts Jr. wrote, “things have changed dramatically.” But I submit that so have certain tactics.

Just ask black civil rights leaders still fighting a huge prison industrial complex, police policies like stop-and-frisk and predatory lending practices. Ask women’s rights leaders still fighting for equal pay, defending a woman’s right to sovereign authority of her own body — including full access to a wide range of reproductive options. Ask pro-immigration groups fighting a wave of anti-immigrant sentiment.

To those celebrating the gay rights victory, this is your moment. Enjoy it. To racial diversity warriors, mourn. But not for long. In the morning we must all rise together and remember what Winston Churchill reportedly said: “Success is not final, failure is not fatal, it is the courage to continue that counts.”

Remember also what the Rev. Dr. Martin Luther King Jr. wrote from the Birmingham jail: “Injustice anywhere is a threat to justice everywhere.”

And remember that it is no coincidence that there is quite a bit of overlap among the states that were covered by the Voting Rights Act, those that have constitutional bans on same-sex marriage, those with some of the most restrictive abortion laws and those that have considered or passed some of the strictest anti-immigrant bills.

Racial hostility, homophobia and misogyny are braided together like strands of the same rope. When we fight one, we fight them all.

Engaging in combat as a coalition reinforces and expands everyone’s power, reach and influence. We must realize that if everyone can see the sameness in these struggles, rather than the differences, we will be able to see that America is already a majority minority country.

    Joining Together in Justice, NYT, 26.6.2013,






The Long Road to Marriage Equality


June 26, 2013
The New York Times


NEW HAVEN — THE Supreme Court’s soaring decision to strike down the core of the Defense of Marriage Act as unconstitutional is a civil rights landmark, but the history leading up to it is poorly understood. Marriage equality was neither inevitable nor, until recently, even conceivable. And the struggle for it was not, as is commonly believed, a natural consequence of the gay liberation movement that gained steam in the late 1960s.

It was not until the 1980s that securing legal recognition for same-sex relationships became an urgent concern of lesbians and gay men. Decades earlier, such recognition was almost unimaginable. In the 1950s, most states criminalized gay people’s sexual intimacy. Newspaper headlines blared the State Department’s purge of homosexual employees during the McCarthy-era “lavender scare.” Police cracked down on lesbian and gay bars and other alleged “breeding grounds” of homosexuality.

The lesbian and gay liberation movements of the early 1970s did not make marriage a priority — quite the opposite. Activists fought police raids, job discrimination and families’ rejection of their queer children. Most radical activists scorned the very idea of marriage. But a handful walked into clerks’ offices across the country to request marriage licenses. State officials suddenly realized that their laws failed to limit marriage to a man and a woman; no other arrangement had been imagined. By 1978, 15 states had written this limitation into law.

A “traditional family values” movement arose to oppose gay rights and feminism. Anita Bryant and other activists took aim at some of the earliest local anti-discrimination laws, and by 1979 they had persuaded voters in several cities to repeal them. Subsequently, in more than 100 state and local referendums, gay-rights activists had to defend hard-won protections. This, not marriage, consumed much of their energy.

It was the ’80s that changed things. The AIDS epidemic and what came to be known as the “lesbian baby boom” compelled even those couples whose friends and family fully embraced them to deal with powerful institutions — family and probate courts, hospitals, adoption agencies and funeral homes — that treated them as legal strangers.

Hospitals could deny the gay partner of someone with AIDS visitation privileges, not to mention consultation over treatment. He couldn’t use his health insurance to cover his partner. He risked losing his home after his partner died, if his name wasn’t on the lease or if he couldn’t pay inheritance taxes on his partner’s share (which would not have been required of a surviving spouse).

When two women shared parenting and the biological mother died, the courts often felt obliged to grant custody to her legal next of kin — even if the child wished to remain with the nonbiological mother. If the women separated, the biological mother could unilaterally deny her ex the right to see their children.

Couples used wills, powers of attorney and innovative new legal arrangements like domestic partnerships and second-parent adoption to try to get around these injustices, an astounding achievement given the reigning conservatism of the ’80s and early ’90s. But for all their virtues, none of these arrangements could provide the Social Security, tax, immigration and other benefits that only marriage could bestow.

The marriage movement emerged out of this maelstrom, but it was always about more than legal benefits. Historically, denial of marriage rights has been a powerful symbol of people’s exclusion from full citizenship. Enslaved people in America did not have the right to marry before the Civil War; Jews did not have the right to marry non-Jews in Nazi Germany. In 1948, the United Nations enshrined the freedom to marry as a fundamental human right. That same year California’s highest court became the first in the nation to overturn a state law banning interracial marriage.

As attitudes toward homosexuality changed in the 1990s, before accelerating ever more rapidly over the last decade, antigay activists — who had already fought gay teachers in schools, gay-student groups, gay characters on TV, domestic partnerships and anti-discrimination laws — redoubled their fight against marriage equality. In 1996, when it appeared that Hawaii’s courts might let same-sex couples wed, Congress passed DOMA, which declared that no state needed to give “full faith and credit” to another state’s same-sex marriages. It also denied federal recognition and benefits to such marriages — the provision struck down on Wednesday. As Justice Anthony M. Kennedy wrote for the majority: “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.”

When Massachusetts became the first state to let gay couples marry, in 2004, it unleashed opposition as well as euphoria. That year, 13 states amended their constitutions to ban such marriages (12 had already done so legislatively). Ultimately, California and 40 other states acted to limit marriage to one man and one woman by constitutional amendment, legislation or both; in 30 states, the amendments are on the books. As a result of another Supreme Court ruling on Wednesday, California will soon join 12 states (and the District of Columbia) in permitting same-sex marriage, but the state-by-state battle will grind on elsewhere.

The intensity of the backlash against marriage equality eventually produced its own backlash. Many heterosexuals sought to distance themselves from the antigay animus it expressed. Young people, who grew up in a cultural universe different from their parents’, began to wonder why marriage was an issue at all. Political figures as different as Barack Obama and Rob Portman described how their children had affected their thinking.

Federal benefits will dramatically improve the lives of countless people, from the lesbian widow who needs her wife’s Social Security benefits to hold onto her home to the gay New Yorker whose foreign husband will now be able to live with him in America. Couples will no longer suffer the indignity of having the government treat their marriages as inferior.

Urgent problems still confront lesbian, gay, bisexual and transgender people, including the endemic bullying of queer students, discrimination in housing and employment and the surge in new H.I.V. infections among young gay and bisexual men. Marriage equality has singular legal, cultural and practical significance. Nonetheless, it was not the first issue to animate the struggle for equality and dignity — nor will it be the last.


George Chauncey, a professor of history

and American studies at Yale, was an expert witness

in both of the same-sex marriage cases decided Wednesday.

    The Long Road to Marriage Equality, NYT, 26.6.2013,






Victory for Equal Rights


June 26, 2013
The New York Times


Today’s two Supreme Court rulings involving same-sex marriage were a huge and gratifying victory in the long struggle to end government-sanctioned discrimination against gay and lesbian Americans. It is sad, this deep into the national conversation about equal rights, that five justices were not willing to recognize a constitutional right for all couples to marry, regardless of the state where they live or their genders. But the momentum for marriage equality seems unstoppable, and such a breakthrough will eventually come.

The first ruling struck down the central provisions of the Defense of Marriage Act, the odious 1996 federal law that denied federal benefits to same-sex couples married in jurisdictions that permit such unions. The second decision will nullify Proposition 8, California’s voter-approved ban on same-sex marriage. Both decisions are huge victories for the gay rights movement that propels the nation toward greater fairness and full equality.

However, as many observers predicted, the Roberts court failed to deliver the larger verdict that the Constitution calls for in its equal protection clause: a broad ruling establishing a nationwide right of same-sex couples to wed. The court missed a historic chance to correct a longstanding injustice and left gay people in much of the country relegated to an inferior status that a growing majority of Americans knows is wrong.

The court may have believed that the country is not ready for such a sweeping approach. If so, it has overestimated the issue’s divisiveness and underestimated the human costs of further delay.

In the first case, United States v. Windsor, a 5-to-4 majority overturned a portion of the Defense of Marriage Act that defined marriage as a union only between a man and a woman for the purposes of more than 1,000 federal laws and programs. The plaintiff in the case, a New York octogenarian named Edith Windsor, brought her challenge after she was required to pay some $360,000 in federal estate taxes from which opposite-sex spouses are exempt. The Defense of Marriage Act did not allow the Internal Revenue Service to treat Ms. Windsor as a surviving spouse following the death of Thea Clara Spyer, the woman with whom she lived for more than 40 years and married in Canada in 2007.

The Defense of Marriage Act was “unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment,” Justice Anthony Kennedy wrote in the majority opinion that was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

By seeking to injure the class New York had sought to protect by allowing same-sex marriages, the act “violates basic due process and equal protection principles applicable to the federal government.” The law’s insidious provisions were the last in federal law to require discrimination against gay people. The majority was right not to seize upon the odd procedural posture of the case — the Obama administration sought Supreme Court review although it had stopped defending the Defense of Marriage Act and won a lower federal court ruling finding it unconstitutional — in order to avoid reaching the merits, as the court’s other four justices favored.

In the Proposition 8 case, Hollingsworth v. Perry, a differently composed 5-to-4 majority led by Chief Justice John Roberts Jr. avoided ruling on the merits of the constitutional challenge to the discriminatory ballot measure by finding that its proponents lacked standing to appeal. Nevertheless, on a hugely positive note, the court’s feint clears the way for same-sex marriages in California.

The dismissal of the Proposition 8 challenge leaves intact the sound 2010 ruling by a now-retired federal trial judge in San Francisco, Vaughn Walker. Following a much-publicized three-week trial, he found that same-sex marriage caused no harm whatsoever to the state or society but substantial harm to same-sex couples by depriving them of their rights to equal protection and due process. With California joining a dozen other states and the District of Columbia already in the marriage equality column, roughly 30 percent of Americans live in places where same-sex marriage is allowed.

Americans’ acceptance of same-sex marriage, and the legal and political support for it, have come very far, very fast in the four years since two prominent lawyers on opposite sides of the 2000 Bush v. Gore case, Theodore Olson and David Boies, filed the challenge to Proposition 8 that culminated on Wednesday.

But there are miles yet to travel on this civil rights journey. The new marriage rulings leave behind an unsupportable state-by-state patchwork that threatens valid marriages when state lines are crossed. Cases already in the pipeline could give the Supreme Court another chance to fully confront the harm to real people’s lives and establish marriage equality nationwide. Soon, we hope.

    Victory for Equal Rights, NYT, 26.6.2013,






The Chief Justice’s Long Game


June 25, 2013
The New York Times


IN an opinion brimming with a self-confidence that he hides behind a cloak of judicial minimalism, Chief Justice John G. Roberts Jr., writing for a conservative Supreme Court majority in Shelby County v. Holder, cripples Section 5 of the Voting Rights Act.

The court pretends it is not striking down the act but merely sending the law back to Congress for tweaking; it imagines that Congress forced its hand; and it fantasizes that voting discrimination in the South is a thing of the past. None of this is true.

In the Shelby decision, we see a somewhat more open version of a pattern that is characteristic of the Roberts court, in which the conservative justices tee up major constitutional issues for dramatic reversal. First the court wrecked campaign finance law in Citizens United. On Tuesday it took away a crown jewel of the civil rights movement. And as we saw in Monday’s Fisher case, affirmative action is next in line, even if the court wants to wait another year or two to pull the trigger. Imagine striking down affirmative action and the Voting Rights Act in the same week!

Section 5 of the Voting Rights Act requires certain states and parts of states (mainly in the South) to get permission from the federal government before changing voting rules. The law puts the burden on jurisdictions with a history of racial discrimination to demonstrate that any voting change — from a voter-ID law to moving a polling place — won’t make the minority voters the law protects worse off. In Section 4, Congress provided a formula for determining the jurisdictions to which Section 5 applies — but the data used to construct the formula is from the 1960s or 1970s. Congress renewed the act, most recently in 2006, without touching the old formula.

In Tuesday’s opinion, the court held that the formula was unconstitutionally outdated. The chief justice couches his opinion in modesty, stating that the court is striking only the Section 4 coverage formula and not Section 5. But don’t be fooled: Congress didn’t touch the formula in 2006 because doing so would have doomed renewal. Congress avoided the political issue then, and there’s no way today’s more polarized Congress will agree upon a new list of discriminatory states.

The tone of the opinion is one of dutiful resignation: gravely, the court must strike down an act of Congress. Chief Justice Roberts reminds us that the court could have struck down the act in a 2009 case, but it gave Congress another chance.

Justice Ruth Bader Ginsburg’s dissent mocks this posturing: “Hubris is a fit word for today’s demolition of the V.R.A.” The court could have acted more narrowly, for example, by saying that Alabama’s continued problems with minority voting rights justified the law’s application to Shelby County even if not elsewhere. As it did in Citizens United, the court took the broad path when the narrow path would have limited the court’s damage.

That Chief Justice Roberts did not take the narrow path is no surprise. Back in the 1980s, he was President Ronald Reagan’s point person seeking to block Congress’s strengthening of another key provision of the act. (He failed.) As chief justice, Mr. Roberts has famously written that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Colorblindness is fast becoming his signature issue.

The chief justice is a patient man playing a long game. He was content to wait four years to strike down a key provision of the Voting Rights Act. Apparently he likes to say I told you so.

Today’s decision has real consequences. Chief Justice Roberts writes that ”regardless” of how we look at the record, “no one can fairly say it shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination” in the past. If that’s true, it’s because the Voting Rights Act works.

Here’s what’s going to happen now. Texas has already announced that it will put its voter-ID law into effect, a law that was on hold under Section 5 awaiting Supreme Court review. Texas’ law, one of the toughest in the nation, requires voters lacking acceptable ID (like a concealed-weapons permit) to travel up to 250 miles at their own expense to get one.

Texas’ law will be challenged on other grounds, but winning voter-ID cases has proved to be tough business. Now Texas can also re-redistrict, freed of the constraints of Section 5, splitting Latino and black voters into different districts or shoving them all in fewer districts to make it harder for them to have effective representation in the State Legislature and in Congress. The biggest danger of what the court has done is in local jurisdictions, where discrimination is more common and legal resources to fight back are thin.

The ball is now in Congress’s court. If House Republicans don’t want to alienate minority voters further, they will look to pass a new Voting Rights Act in response to the court’s decision. It’s hard to believe, but just last week the court in a case from Arizona confirmed that Congress had broad power under the Elections Clause of the Constitution to set the “manner” of conducting federal elections.

It is too much to hope that this divided Congress would use its power to stop discriminatory voter-ID laws or to require nonpartisan redistricting, particularly when some of its members believe these laws help them get elected. But if Congress fails to do anything in response to the case, it will be a second victory for the court’s conservatives, a victory on which they may have been counting.


Richard L. Hasen, a professor of law and political science

at the University of California, Irvine,

is the author of “The Voting Wars:

From Florida 2000 to the Next Election Meltdown.”

    The Chief Justice’s Long Game, NYT, 25.6.2013,






On Voting Case,

Reaction From ‘Deeply Disappointed’

to ‘It’s About Time’


June 25, 2013
The New York Times


WASHINGTON — President Obama on Tuesday said he was “deeply disappointed” with the Supreme Court’s 5-to-4 decision ruling a central piece of the 1965 Voting Rights Act unconstitutional, and he called on Congress to pass legislation protecting access to voting.

The president registered his critique in a written statement issued by the White House that noted the law’s bipartisan legacy and the Supreme Court’s acknowledgment, in the ruling, that discrimination persists.

“For nearly 50 years, the Voting Rights Act — enacted and repeatedly renewed by wide bipartisan majorities in Congress — has helped secure the right to vote for millions of Americans,” the statement read. “Today’s decision invalidating one of its core provisions upsets decades of well-established practices that help make sure voting is fair, especially in places where voting discrimination has been historically prevalent.”

Mr. Obama’s attorney general, Eric H. Holder Jr., who is named as the defendant in the case, Shelby County v. Holder, used similar language to criticize the court’s decision.

“The Department of Justice will continue to carefully monitor jurisdictions around the country for voting changes that may hamper voting rights,” Mr. Holder said. “Let me be very clear: We will not hesitate to take swift enforcement action using every legal tool that remains available to us against any jurisdiction that seeks to take advantage of the Supreme Court’s ruling by hindering eligible citizens full and free exercise of the franchise.”

Mr. Holder also emphasized the law’s long history of bipartisan support in Congress and under successive presidential administrations.

In his decision, Chief Justice John G. Roberts Jr. said that Congress remained free to try to impose federal oversight on states where voting rights were at risk, but it was clear that the likelihood that a divided Congress could agree on a remedy was small.

Members of the N.A.A.C.P. and civil rights lawyers said they would ask Congress to draw up a new coverage formula, laid out in Section 4 of the act.

“We are confident that members of both houses of Congress that helped lead the effort in 2006, many of whom are still there, will help to restore the power of Section 4,” Wade Henderson, the president of the Leadership Conference on Civil and Human Rights, said outside the Supreme Court on Tuesday.

Democratic leaders in the Senate were quick to criticize the decision and indicated that they would move to address voting rights, though it was not clear what options were immediately available.

Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Judiciary Committee, said he would “take immediate action to ensure that we will have a strong and reconstituted Voting Rights Act that protects against racial discrimination in voting.”

“As we approach the 50th anniversary of Martin Luther King Jr.'s speech at the March on Washington, it is especially compelling to remember that his dream has not yet been achieved,” Mr. Leahy said in a statement. “We have made great progress since that time and part of the Congress’s reauthorization of Section 5 a few years ago was based on the need to preserve that progress. Yet, I fear today’s decision will make it more difficult for racial minorities to have their right to vote fully protected.”

Senator Richard J. Durbin of Illinois, the Senate’s No. 2 Democrat, who leads the committee’s Subcommittee on the Constitution, Civil Rights and Human Rights, also said he would hold hearings and push for legislative action.

But Senator Charles E. Grassley of Iowa, the ranking Republican on the Judiciary Committee, said that the court’s decision reflected the positive impact of the civil rights legislation and that the legislation was no longer needed.

“What it tells me is after 45 years, the Voting Rights Act worked,” Mr. Grassley said, “and that’s the best I can say. It just proves that it worked.”

Representative Melvin Watt, a North Carolina Democrat who favors the preclearance requirements that the Voting Rights Act established, called the court’s decision outrageous. But any remedy from Congress, he added, would be difficult to piece together.

“I don’t think that we would be able to come up with a remedy that would satisfy this Supreme Court,” Mr. Watt said, noting that before Congress reauthorized the act in 2006, it gathered 15,000 pages of evidence demonstrating that racial discrimination was still prevalent enough to justify the law. “Fifteen thousand pages. If that’s not enough, what would be?”

There was also swift reaction from the South, particularly in the states that were subject to federal oversight.

Kenneth Dukes, 45, a black minister in Montevallo, Ala., who was one of the Shelby County residents represented by the N.A.A.C.P. in the case, said he was disappointed with the decision and worried that it would open the door to voter discrimination.

Mr. Dukes said that he did not think the South had made enough progress for the law to be dropped.

“Have we made progress? Yes, we’ve made tremendous progress. The South has made a lot of progress,” he said. “You don’t have the public Klan meetings. You don’t have the blatant discrimination. But you still have intimidation. You still have racism. As long as the potential for discrimination is still there, the act is still needed.”

Without federal oversight of local elections, he said, minorities will encounter challenges to voting.

Ray Haygood of the NAACP Legal Defense and Educational Fund said his organization would set up a hot line for people to call and report “jurisdictions that will try to take advantage of this interim period.”

Within hours of the decision, state officials in Texas said they would move quickly to put in place laws that had been rejected under the provisions of the Voting Rights Act addressed in the court’s ruling.

Greg Abbott, the Texas attorney general, announced in a statement that a voter identification law that was blocked last year by the Justice Department would go into effect immediately and that “redistricting maps passed by the Legislature may also take effect without approval from the federal government.”

Across the South, reaction to the decision appeared to be split, largely along racial and partisan lines. Luther Strange, the Republican attorney general of Alabama, called it “a victory for Alabama” and added that he did not believe that the state should be included in any formula Congress may adopt.

Tate Reeves, the Republican lieutenant governor of Mississippi, said he was pleased by the decision but said that preclearance “unfairly applied to certain states should be eliminated in recognition of the progress Mississippi has made over the past 48 years.”

On one point, most people agreed: that Congress was not likely to come up with a remedy to Section 4 of the Voting Rights Act any time soon, leaving the South without the oversight provided by Section 5.

“I don’t like it,” said David Jordan, a black state senator from the Mississippi Delta. “There may be some states that are ready to come from under it. But I don’t know of any adjacent to me. Mississippi’s certainly not. Louisiana’s not ready. Alabama’s not ready.”

Tommy Coleman, a white lawyer in Albany, Ga., who helps cities and counties comply with the Voting Rights Act, said he suspected that black political success over the decades would forestall a broad rollback of minority gains in the South. “It’s not politically reasonable to think that the white majority will come in to re-establish a poll tax or anything like that,” he said.

Echoing the views of many on both sides of the debate, Mr. Coleman said that with voter ID laws in places like Ohio and Pennsylvania, and with problems with Hispanic access to the polls, maybe the South was not the center of the fight anymore. “I’m not so sure that there aren’t other jurisdictions in the country that are equally, if not more, in need of this than the South,” he said.

Jerry Wilson, a lawyer in central Georgia who has worked in Voting Rights Act litigation for 25 years, was not so sure.

“I think we’re in big trouble,” he said, reeling off a list of counties in the region that have up to now been hemmed in by the Voting Rights Act from making what he says were discriminatory voting changes. With the burden shifting from the jurisdictions to the affected voters to prove discrimination, he was contemplating the work ahead.

“The community groups that I worked with through the years,” he said, “they cannot handle this one on their own.”



Jackie Calmes reported from Washington,

Robbie Brown from Atlanta and Campbell Robertson

from New Orleans.

Jeremy W. Peters and Ashley Parker

contributed reporting from Washington.

    On Voting Case, Reaction From ‘Deeply Disappointed’ to ‘It’s About Time’,
    NYT, 25.6.2013,






An Assault on the Voting Rights Act


June 25, 2013
The New York Times


The conservative majority on the Roberts Court issued another damaging and intellectually dishonest ruling on Tuesday. It eviscerated enforcement of the Voting Rights Act, in which Congress kept the promise of a vote for every citizen. But it did not rule on the constitutional validity of the idea that some places have such strong records of discrimination that they must seek federal approval before they may change their voting rules. Instead, the 5-to-4 ruling usurped Congress’s power and struck down the formula that it has repeatedly reauthorized to determine which states fall into that category.

The Supreme Court invited Congress to rewrite the formula, which has a disingenuous ring. The justices know full well that lawmakers, who failed to expand the coverage formula in 2006, are extremely unlikely to do it now. And so the preclearance rule lies dormant.

The Justice Department is still free to sue jurisdictions over their voting policies after the fact, and should, as often as necessary, because such lawsuits will become an even more important tool to ensure justice. But that is not a long-term substitute for the preclearance rule. As Justice Ruth Bader Ginsburg noted in her impassioned dissent, such suits have proved to be a less effective tool against politicians determined to find ways block access to the polls. The jurisdictions covered by the preclearance rule are, for the most part, firmly in that category.

Chief Justice John Roberts Jr., writing for the majority, was right when he said that the formula used to determine the jurisdictions that are covered was written long ago, but, if anything, it is too narrow. Chief Justice Roberts was entirely wrong when he wrote that the states can no longer “be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics.”

In 2006, when Congress reauthorized the voting law after extensive hearings, Representative F. James Sensenbrenner Jr., a conservative Republican from Wisconsin, said the formula is not outdated and “states covered are not unfairly punished under the coverage formula.”

Currently, Justice Ginsburg wrote in dissent that Congress, “with overwhelming support in both houses,” had concluded that the preclearance rule should “continue in force, unabated,” because that would “facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding.” She said that that decision was “well within Congress’s province to make and should elicit this court’s unstinting approbation.”

Speaking of racially motivated barriers to voting, Justice Ginsburg said: “Early attempts to cope with this vile infection resembled battling the Hydra. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place.” She added: “When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress’s power to act is at its height.”

The real problem with the invalidated formula, in our view, is that it does not cover all the jurisdictions that have imposed or tried to impose techniques like racially discriminatory voter-identification laws.

Invidious and pervasive voting discrimination has not come to an end, as Chief Justice Roberts suggested with his complaint that “Congress did not use the record it compiled to shape a coverage formula grounded in current conditions.” Congress has compiled a huge record showing that gerrymandering, use of at-large voting in cities with a sizable black minority to eliminate the power of minority votes and other barriers to equality in voting justifies the clearance formula the court struck down as failing to meet “current needs.”

The future of the Voting Rights Act of 1965 now lies in the hands of President Obama and Congress. If we had a federal government that was not paralyzed by partisanship, this ruling would serve as an inspiration to take action. Congressional Democrats would quickly prepare a more expansive formula, and the Republicans who voted for the old formula just seven years ago would support the new one.

President Obama quickly said he was “deeply disappointed” at the ruling and called on Congress to enact a new formula. Tragically, we cannot count on either legislative action or strong follow-through from the White House.

    An Assault on the Voting Rights Act, NYT, 25.6.2013,






Supreme Court Invalidates

Key Part of Voting Rights Act


June 25, 2013
The New York Times


WASHINGTON — The Supreme Court on Tuesday effectively struck down the heart of the Voting Rights Act of 1965 by a 5-to-4 vote, freeing nine states, mostly in the South, to change their election laws without advance federal approval.

The court divided along ideological lines, and the two sides drew sharply different lessons from the history of the civil rights movement and the nation’s progress in rooting out racial discrimination in voting. At the core of the disagreement was whether racial minorities continued to face barriers to voting in states with a history of discrimination.

“Our country has changed,” Chief Justice John G. Roberts Jr. wrote for the majority. “While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

The decision will have immediate practical consequences. Texas announced shortly after the decision that a voter identification law that had been blocked would go into effect immediately, and that redistricting maps there would no longer need federal approval. Changes in voting procedures in the places that had been covered by the law, including ones concerning restrictions on early voting, will now be subject only to after-the-fact litigation.

President Obama, whose election as the nation’s first black president was cited by critics of the law as evidence that it was no longer needed, said he was “deeply disappointed” by the ruling.

Justice Ruth Bader Ginsburg summarized her dissent from the bench, an unusual move and a sign of deep disagreement. She cited the words of the Rev. Dr. Martin Luther King Jr. and said his legacy and the nation’s commitment to justice had been “disserved by today’s decision.”

She said the focus of the Voting Rights Act had properly changed from “first-generation barriers to ballot access” to “second-generation barriers” like racial gerrymandering and laws requiring at-large voting in places with a sizable black minority. She said the law had been effective in thwarting such efforts.

The law had applied to nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and to scores of counties and municipalities in other states, including Brooklyn, Manhattan and the Bronx.

Chief Justice Roberts wrote that Congress remained free to try to impose federal oversight on states where voting rights were at risk, but must do so based on contemporary data. But the chances that the current Congress could reach agreement on where federal oversight is required are small, most analysts say.

Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined the majority opinion. Justice Ginsburg was joined in dissent by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

The majority held that the coverage formula in Section 4 of the Voting Rights Act, originally passed in 1965 and most recently updated by Congress in 1975, was unconstitutional. The section determined which states must receive clearance from the Justice Department or a federal court in Washington before they made minor changes to voting procedures, like moving a polling place, or major ones, like redrawing electoral districts.

Section 5, which sets out the preclearance requirement, was originally scheduled to expire in five years. Congress repeatedly extended it: for five years in 1970, seven years in 1975, and 25 years in 1982. Congress renewed the act in 2006 after holding extensive hearings on the persistence of racial discrimination at the polls, again extending the preclearance requirement for 25 years. But it relied on data from the 1975 reauthorization to decide which states and localities were covered.

The current coverage system, Chief Justice Roberts wrote, is “based on 40-year-old facts having no logical relationship to the present day.”

“Congress — if it is to divide the states — must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions,” he wrote. “It cannot simply rely on the past.”

The decision did not strike down Section 5, but without Section 4, the later section is without significance — unless Congress passes a new bill for determining which states would be covered.

It was hardly clear, at any rate, that the court’s conservative majority would uphold Section 5 if the question returned to the court in the unlikely event that Congress enacted a new coverage formula. In a concurrence, Justice Thomas called for striking down Section 5 immediately, saying that the majority opinion had provided the reasons and had merely left “the inevitable conclusion unstated.”

The Supreme Court had repeatedly upheld the law in earlier decisions, saying that the preclearance requirement was an effective tool to combat the legacy of lawless conduct by Southern officials bent on denying voting rights to blacks.

Critics of Section 5 say it is a unique federal intrusion on state sovereignty and a badge of shame for the affected jurisdictions that is no longer justified.

The Voting Rights Act of 1965 was one of the towering legislative achievements of the civil rights movement, and Chief Justice Roberts said its “strong medicine” was the right response to “entrenched racial discrimination.” When it was first enacted, he said, black voter registration stood at 6.4 percent in Mississippi, and the gap between black and white registration rates was more than 60 percentage points.

In the 2004 election, the last before the law was reauthorized, the black registration rate in Mississippi was 76 percent, almost four percentage points higher than the white rate. In the 2012 election, Chief Justice Roberts wrote, “African-American voter turnout exceeded white voter turnout in five of the six states originally covered by Section 5.”

The chief justice recalled the Freedom Summer of 1964, when the civil rights workers James Chaney, Andrew Goodman and Michael Schwerner were murdered near Philadelphia, Miss., while seeking to register black voters. He mentioned Bloody Sunday in 1965, when police officers beat marchers in Selma, Ala.

“Today,” Chief Justice Roberts wrote, “both of those towns are governed by African-American mayors. Problems remain in these states and others, but there is no denying that, due to the Voting Rights Act, our nation has made great strides.”

Justice Ginsburg, in her dissent from the bench, drew a different lesson from those events, drawing on the words of Dr. King.

“The great man who led the march from Selma to Montgomery and there called for the passage of the Voting Rights Act foresaw progress, even in Alabama,” she said. “ ‘The arc of the moral universe is long,’ he said, but ‘it bends toward justice,’ if there is a steadfast commitment to see the task through to completion.”

In her written dissent, Justice Ginsburg said that Congress was the right body to decide whether the law was still needed and where. Congress reauthorized the law in 2006 by large majorities; the vote was 390 to 33 in the House and unanimous in the Senate. President George W. Bush, a Republican, signed the bill into law, saying it was “an example of our continued commitment to a united America where every person is valued and treated with dignity and respect.”

The Supreme Court considered the constitutionality of the 2006 extension of the law in a 2009 decision, Northwest Austin Municipal Utility District Number One v. Holder. But it avoided answering the central question, and it seemed to give Congress an opportunity to make adjustments. Congress, Chief Justice Roberts noted on Tuesday, did not respond.

Justice Ginsburg suggested in her dissent that an era had drawn to a close with the court’s decision on the Voting Rights Act, in Shelby County v. Holder, No. 12-96.

“Beyond question, the V.R.A. is no ordinary legislation,” she wrote. “It is extraordinary because Congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment,” the Reconstruction-era amendment that barred racial discrimination in voting and authorized Congress to enforce it.

“For a half century,” she wrote, “a concerted effort has been made to end racial discrimination in voting. Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made.”

“The court errs egregiously,” she concluded, “by overriding Congress’s decision.”



This article has been revised to reflect the following correction:

Correction: June 25, 2013

An earlier version of this article misstated

the name of a civil rights worker murdered in 1964.

He was Michael Schwerner, not Schwermer.

    Supreme Court Invalidates Key Part of Voting Rights Act, NYT, 25.6.2013,






A Long, Slow Drift From Racial Justice


June 24, 2013
The New York Times


THE Supreme Court has again upheld the principles behind race-conscious affirmative action, no small feat for the cause of diversity in higher education. But in framing the issue very technically, it has, wittingly or not, continued its drift away from the ideals it advanced in the civil rights era, beginning with Brown v. Board of Education.

In its decision on Monday, in Fisher v. University of Texas, the court ordered a federal appellate court to take a fresh look — under the demanding standard of “strict scrutiny” — at whether Texas’ public universities were properly using race as one factor (among many) in admitting a diverse student body. The appellate court will have to examine “how the process works in practice,” Justice Anthony M. Kennedy wrote in the decision for the majority.

As a law professor, and as the named defendant in the last two major affirmative action cases decided by the Supreme Court (in my capacity as president of the University of Michigan at the time), in 2003, I breathed a slight sigh of relief on Monday. But I worry that the new ruling will empower lower courts and, no doubt, litigants to challenge benign considerations of race — those that seek to advance legitimate goals of diversity in education — more easily than ever.

The court is as much an educator, a moral instructor, as an interpreter of the fundamental law of the land. In construing the constitutional issues so narrowly, the decision can be read as taking a reluctant, even begrudging, stance toward affirmative action.

Part of this hesitance is, no doubt, a product of judicial compromise. But for ordinary Americans, the linkage between race-conscious college admissions and the larger project of social justice is at risk of being lost amid the minutiae.

In Regents of the University of California v. Bakke, the landmark 1978 case on affirmative action, Justice Lewis F. Powell Jr. ruled that quotas were unconstitutional in any context but permitted colleges to consider race as one factor in admissions — provided that they embraced the policies for educational benefits and not as a remedy for past societal discrimination. While his distinction was understandable, it contributed to an unfortunate uncoupling of affirmative action from its social context. There is a moral and constitutional difference between policies that take into account the realities of America’s troubled racial history, and pernicious forms of discrimination, like the Jim Crow laws.

The enduring effects of nearly four centuries of racial subjugation and subordination — much of it state-sanctioned — have not vanished even though the United States has a black president. We may hope that Justice Sandra Day O’Connor’s prediction in 2003 that affirmative action would not be necessary in 25 years is true, but the time frame may sadly be too brief, given our fraught history.

In many school districts, racial segregation is as bad as it was before Brown. About 40 percent of black and Hispanic children attend K-12 schools where 10 percent or fewer of their classmates are white. Residential racial segregation remains deeply entrenched. Proposition 209, a voter-sanctioned ban on affirmative action at California’s public universities, led to a sharp decrease in representation of black students at the Berkeley and Los Angeles campuses. While 43 percent of whites have a college degree, 27 and 19 percent of blacks and Hispanics, respectively, hold one.

Despite those disparities, Fisher can be read as setting a high bar for consideration of race in admissions: universities must demonstrate that race or ethnicity has not been the defining feature in an admissions decision; that the use of race is necessary to achieve the educational benefits of diversity; and that there is no “available, workable” race-neutral alternative to achieve such benefits. It will not be impossible for universities, public and private, to meet these requirements, but it may well prove difficult, time-consuming and costly. Lower courts will have to see whether the University of Texas meets the test. The flagship Austin campus admits three-quarters of its students under a program that guarantees admission to the top students in every high school in the state. The rest are admitted under “holistic” criteria — of which race is but one.

The greatest moments of jurisprudence have never been merely dry legal analysis, but have been linked to broader principles — and historical and social realities — from which they derive. One cost of Monday’s ruling may be the failure to renew a conversation about racial justice as the civil-rights era recedes further and further into the past. Strikingly, it was Justice Clarence Thomas who most engaged the vital historical context, writing that “arguments advanced by the University in defense of discrimination are the same as those advanced by the segregationists.” I disagree profoundly with his logic, though I admire his candor.

While a strong majority has affirmed the status quo on affirmative action, for now, advocates of racial justice have much work ahead of us before the next time this issue reaches the high court.


Lee C. Bollinger is the president of Columbia University

and a former president, and dean of the law school,

at the University of Michigan, Ann Arbor.

    A Long, Slow Drift From Racial Justice, NYT, 24.6.2013,






A Reprieve for Affirmative Action


June 24, 2013
The New York Times


By a vote of 7 to 1 on Monday, the Supreme Court issued a narrow ruling about a public university’s use of race as a factor in admissions. The good news is that the court affirmed major precedents going back 35 years. It asserted that a more diverse student body — and an admission policy that helps produce one — serves a compelling interest of government by achieving educational and social benefits. Diversity, in turn, helps realize what the court has called “the dream of one nation, indivisible.”

At the same time, the court sent the case at hand — Fisher v. University of Texas at Austin — back for review by the United States Court of Appeals for the Fifth Circuit, which had upheld the university’s use of race in its admissions policy. The court did not say that race could not be used to achieve diversity. It did say, however, that the appeals court must closely reconsider the university’s admissions process to determine whether a race-neutral approach could achieve the level of diversity it seeks.

Writing for the majority, Justice Anthony Kennedy said, “Strict scrutiny must not be strict in theory but feeble in fact.” By this, he meant the court must do a better job of determining that the university needs to rely on race in admissions to achieve greater diversity, including why it wants to admit more minorities in the first place.

In its brief, the university explained that it was not able to admit “an adequate representation of minority students to assure educational benefits deriving from diversity” despite many years “of good-faith efforts to achieve racial diversity through facially race-neutral means.” That included, most prominently, the state’s Top Ten Percent program, which uses geography as a proxy for race by assuring every Texas student who graduates in the top tenth of a high school class admission to a state university.

That program has resulted in increased minority admissions, but not enough to satisfy the University of Texas at Austin. It would be in the university’s interest for the appeals court to send the case back to the federal trial court to gather more evidence showing that race-neutral alternatives left the university with too few minorities to assure those benefits.

This is undeniably a tricky issue. Since Justice Lewis Powell wrote the controlling opinion for the Supreme Court in 1978 saying race-conscious admissions were constitutional but racial quotas were not, it has been necessary for any university justifying race as a factor in admissions not to do so on grounds that it would help the institution achieve a specific measure of diversity.

But as Justice Ruth Bader Ginsburg’s dissent in this case said, the University of Texas considers race only as a “factor of a factor of a factor of a factor.” Based on the careful balance the court has long insisted on, the justice made clear, race is not a thumb on the scale in admissions. It is a soft touch, one of many factors considered in a holistic review.

Justice Kennedy’s majority opinion also said that the strict scrutiny called for in this case must not be “strict in theory, but fatal in fact.” The University of Texas at Austin, and any college or university whose admissions policy is challenged in court, must be permitted to prove what the Supreme Court has just required — that, without the policy, it would not have enough diversity to assure the profound benefits that flow from it.

    A Reprieve for Affirmative Action, NYT, 24.6.2013,






Why the Court Was Right

to Allow Cheek Swabs


June 3, 2013
The New York Times


SOMETHING astonishing happened Monday: Antonin Scalia, the Supreme Court’s longest-serving member and one of its most conservative justices, joined three liberal justices in a sharply worded dissent arguing for the rights of criminal suspects.

The court decided, 5 to 4, that the Constitution permits the police to swab the cheeks of those arrested of serious crimes, and then do DNA tests on the saliva samples to see if the suspects are associated with other crimes. Justice Scalia joined three liberal justices — Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — in dissenting.

DNA is already revolutionizing law enforcement. The ability for police to use cheek swabs of arrestees rests on a threadbare majority. The closeness of the vote, and the unusual coalitions on either side, suggest that the matter is far from settled. Justice Samuel A. Alito Jr., who was part of the majority, rightly called the case, Maryland v. King, “perhaps the most important criminal procedure case that this Court has heard in decades.”

As prosecutors, police agencies and civil libertarians consider the ruling’s implications, Justice Scalia’s stark dissent — and the fact that President Obama’s two appointees to the court so far agreed with it — makes it worthy of scrutiny, even if he was on the losing side. His argument is deeply flawed, because he did not get his history quite right.

Justice Scalia summarized his scathing dissent from the bench — a rare act that signals sharp disagreement. His opinion opened with these lines: “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.”

But the Fourth Amendment’s text is not nearly so simple as he makes it out to be. It merely requires that all searches and seizures be not “unreasonable.” Its words do not distinguish between intrusions seeking “evidence of crime” and other sorts of intrusions — say, to collect revenue, or preserve public safety.

Justice Scalia failed to identify even one source from the founders articulating the ultraprecise rule that he claims is the central meaning of the Fourth Amendment. And his version of the Fourth Amendment would lead to absurd results.

The government, for example, permits searches at the border to prevent contaminated livestock and plants from entering the country — is such authority permitted only because these searches are not seeking “evidence of crime?” If so, if what happens if the government at some point criminalizes the intentional introduction of diseased animals and vegetables? Why should these searches magically now become unconstitutional?

To take another example: the government requires people to pass through airport metal detectors, both to find evidence of crimes or the tools to commit them, like guns and bombs, and to save lives. These searches occur even when there is no basis for suspicion. (Consider the controversies about searches of small children and wheelchair-using elderly people.)

Justice Scalia properly notes that the Constitution’s framers loathed “general warrants,” but these colonial-era warrants had odious features that cheek swabs lack. These general warrants were issued by judges ex parte — that is, in secret, without the affected citizen present — and blocked the citizen from later taking his complaint to a civil jury and seeking damages against the oppressive official. The Fourth Amendment’s words do indeed prohibit general warrants — warrants lacking “probable cause” — but this language regulating warrants simply does not apply where no warrants are involved. For example, the police may stop and frisk without warrants, even where they lack probable cause. Certain kinds of warrantless searches — at the border, in airports, in stop-and-frisk searches and elsewhere — may exist even though a warrant to authorize these very same actions would indeed be unconstitutional.

In other words, general warrants, which were essentially “get-out-of-jail-free cards” for the police, to insulate them from civil liability, raised special problems at the time of the nation’s founding, when the framers were concerned about the arbitrary exercise of imperial authority from London.

Warrants were not always the framers’ solution; sometimes warrants themselves were the problem. And here, unlike the secret ex parte generalized warrant, the DNA in the Maryland case was collected pursuant to a law enacted by the Legislature. In approving the law, Maryland’s lawmakers knew they would run the risk of being swept up in the DNA database themselves — and balanced that risk against the potential benefits. That is nothing like a secret warrant that could be aimed at a single unpopular individual. To be sure, the framers disliked certain kinds of warrants, but when no warrant has been issued — as in the cheek swab situation — the framers simply required that the search or seizure must be reasonable.

This is precisely the question that Justice Anthony M. Kennedy, writing for the five-justice majority, squarely confronted in this landmark case: Is a policy of swabbing and DNA testing only certain arrestees — who have not been convicted and may never be convicted — truly reasonable?

On one hand, the swabbing itself is not particularly intrusive — no more so than a fingerprint or a lineup. Proper DNA testing can simultaneously exonerate innocent people who have been wrongly accused and find the bad guys — a true win-win situation — and in the process, this amazing new technology can powerfully deter crime. On the other hand, DNA testing without strict safeguards can reveal lots more personal information than a mere fingerprint. (For example, who is the suspect’s actual biological father or child?) If members of racial minorities are more likely to be wrongly arrested, they and their relatives will loom disproportionately large in the government’s DNA database.

Reasonable minds can differ on this. And therein lies the real genius of the Fourth Amendment. Contrary to Justice Scalia’s view, the framers did not answer the DNA question in 1791. Rather, the framers posed the question for us, their posterity. The distinction between criminal evidence-gathering and all sorts of other government programs and purposes is not an all-purpose touchstone or talisman. Rather, we must ponder how intrusive a given search policy is, how discriminatory it might be in application, how well justified and well administered it is, how democratically accountable it is, how it might bear upon human dignity, and so on.

The words of the Fourth Amendment mean exactly what they say. Warrantless searches are unconstitutional only if they are “unreasonable.” That rule, and no other, is the true “heart of the Fourth Amendment.”


Akhil Reed Amar is a professor of law

and political science at Yale.

Neal K. Katyal is a former acting solicitor general

of the United States,

a professor of national security law at Georgetown

and a partner at the law firm Hogan Lovells.

    Why the Court Was Right to Allow Cheek Swabs, NYT, 3.6.2013,






Justices Allow DNA Collection

After an Arrest


June 3, 2013
The New York Times


WASHINGTON — The police may take DNA samples from people arrested in connection with serious crimes, the Supreme Court ruled on Monday in a 5-to-4 decision.

The federal government and 28 states authorize the practice, and law enforcement officials say it is a valuable tool for investigating unsolved crimes. But the court said the testing was justified by a different reason: to identify the suspect in custody.

“When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody,” Justice Anthony M. Kennedy wrote for the majority, “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

Justice Antonin Scalia summarized his dissent from the bench, a rare move signaling deep disagreement. He accused the majority of an unsuccessful sleight of hand, one that “taxes the credulity of the credulous.” The point of DNA testing as it is actually practiced, he said, is to solve cold cases, not to identify the suspect in custody.

But the Fourth Amendment forbids searches without reasonable suspicion to gather evidence about an unrelated crime, he said, a point the majority did not dispute. “Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Justice Scalia said from the bench.

The case featured an alignment of justices that scrambled the usual ideological alliances. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Stephen G. Breyer and Samuel A. Alito Jr. joined the majority opinion, while Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Justice Scalia’s dissent.

Justice Scalia has been a strong voice for Fourth Amendment rights this term. In recent months, he joined his three liberal allies from Monday’s decision, along with other justices, to form majorities that limited the use of drug-sniffing dogs outside homes and the drawing of blood in drunken-driving investigations.

Justice Breyer, who generally votes with the court’s liberal wing, was on the other side from his usual allies in all three of the recent Fourth Amendment decisions.

Monday’s ruling, Maryland v. King, No. 12-207, arose from the collection of DNA in 2009 from Alonzo Jay King Jr. after his arrest on assault charges in Wicomico County, Md. His DNA profile, obtained by swabbing his cheek, matched evidence from a 2003 rape case, and he was convicted of that crime.

The Maryland Court of Appeals ruled that a state law authorizing DNA collection from people who had been arrested but not yet convicted violated the Fourth Amendment’s prohibition of unreasonable searches.

Justice Kennedy wrote in the majority opinion that the “quick and painless” swabbing procedure was a search under the Fourth Amendment, meaning it had to be justified as reasonable under the circumstances. It was, he said, given “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.”

Such identification, he said, “is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang members to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene.”

The information retrieved through DNA testing as performed by law enforcement officials is limited, Justice Kennedy wrote, and whether “the testing at issue in this case reveals any private medical information at all is open to dispute.”

In dissent, Justice Scalia wrote that identification was not the point of the testing. Mr. King’s identity was established before the DNA testing, Justice Scalia said, as officials had his full name, race, sex, height, weight, date of birth and address.

Nor was there a serious dispute about the purpose of the Maryland law under review, he wrote. The law said one purpose of the testing was “as part of an official investigation into a crime.”

Chief Justice Roberts, in staying the state court decision while the Supreme Court considered the case, acknowledged that the law “provides a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population.”

The law authorized testing for purposes of identification, Justice Scalia wrote, but only for missing people and human remains. It said nothing about identifying arrestees. “Solving crimes is a noble objective,” he concluded, “but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law enforcement searches. The Fourth Amendment must prevail.”

All 50 states require the collection of DNA from people convicted of felonies. After Mr. King was convicted of assault, there would have been no Fourth Amendment violation had his DNA been collected and tested, Justice Scalia wrote.

“So the ironic result of the court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crimes of arrest.”

From the bench, Justice Scalia repeatedly invoked the generation that fought the Revolutionary War and framed the Constitution. “The proud men who wrote the charter of our liberties,” he said, “would not have been so eager to open their mouths for royal inspection.”

    Justices Allow DNA Collection After an Arrest, NYT, 3.6.2013,






A Giant Setback for Human Rights


April 17, 2013
The New York Times


The Supreme Court’s conservatives dealt a major blow Wednesday to the ability of American federal courts to hold violators of international human rights accountable. The court declared that a 1789 law called the Alien Tort Statute does not allow foreigners to sue in American courts to seek redress “for violations of the law of nations occurring outside the United States.”

In the case at issue, Kiobel v. Royal Dutch Petroleum, Nigerian citizens alleged that, from 1992 to 1995, multinational oil companies working in Nigeria aided the military dictatorship that tortured and killed protesters who fought the environmental damage caused by the oil operations. These companies did business in the United States. But Chief Justice John Roberts Jr., writing for the majority, said that even where claims of atrocities “touch and concern the territory of the United States, they must do so with sufficient force” to overcome a presumption that the statute does not apply to actions outside this country.

That presumption radically revises and undermines the way the statute has been applied for a generation. It has been limited by the types of human rights abuses it covers — but not by where they take place. The effect is to greatly narrow the statute’s reach.

The court’s four moderate liberals, in an opinion by Justice Stephen Breyer, agreed with the majority that the Kiobel case should not go forward in an American court. The conduct in this case happened abroad, Justice Breyer wrote, and “based solely upon the defendants’ minimal and indirect American presence,” it would be “far-fetched to believe” the case “helps to vindicate a distinct American interest.”

But he persuasively argued against the majority’s evisceration of the Alien Tort Statute. Under the court’s reasoning, it is likely that the 1980 federal appeals court ruling that first used the statute in a significant human rights case would have been thrown out of court. It is likely that many other cases brought by foreign nationals against foreign individuals, and against corporations since 1997, would have been thrown out, too.

In 2004, the Supreme Court ruled that the law allowed suits in federal courts by foreigners against the most abhorrent foreign violators of universally accepted rights, like torturers and perpetrators of genocide, even when the abuses took place in other countries, as long as the defendants had sufficient contact with the United States.

Congress has not tried to limit that interpretation of the statute.

Justice Breyer said suits under the law should be allowed when “the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”

The conservative majority regrettably made it much more difficult to vindicate that interest.

    A Giant Setback for Human Rights, NYT, 17.4.2013,






Justices Consider

Whether Patents on Genes Are Valid


April 14, 2013
The New York Times


The Supreme Court is poised to take up the highly charged question of whether human genes can be patented. But another question could trump it: Has the field of genetics moved so far so fast that whatever the court decides, it has come too late to the issue?

The case, which will come before the court on Monday, involves patents held by Myriad Genetics on two human genes, which, when mutated, give a woman a high risk of getting breast or ovarian cancer. The patents give Myriad a monopoly on testing for these mutations, a highly lucrative business.

The hearing comes as rapid scientific advances are producing an explosion of new information about human genes, as well as those of animals, plants and microbes, yielding new approaches to detecting and combating diseases.

Opponents of gene patents say no company should have rights to what is essentially part of the human body. They contend that Myriad’s monopoly has impeded medical progress and access to testing — in some cases denying patients their own genetic information.

Myriad and its allies in the biotechnology industry counter that a ruling that invalidates gene patents would upend three decades of patenting practice and undermine billions of dollars of investments to develop not only genetic tests but also biotech drugs, DNA-based vaccines and genetically modified crops.

“It would chill a wide range of important activities that benefit society,” the Biotechnology Industry Organization said in a friend of the court brief, one of about 50 such briefs filed in a sign of the case’s potentially far-reaching consequences.

But while the debate continues, some experts say patents on human genes are actually fading in importance.

“Events on the ground have overtaken the law,” said Dr. James P. Evans, a professor of genetics and medicine at the University of North Carolina. He said the impact of the Supreme Court’s decision “will be much more ideological than it will be practical.”

For one thing, the Myriad patents at issue are due to expire over the next two years. And experts say a relatively small number of other diagnostic tests or drugs are protected by patents on single genes.

“I don’t think this affects many patents that really matter to companies,” said Robert Cook-Deegan, a professor at Duke University’s Institute for Genome Sciences and Policy.

It is often said that one-fifth of the roughly 20,000 human genes are patented. But in a study, Christopher Holman, a professor of law at the University of Missouri, Kansas City, found that many of those patents merely mentioned genes but would not block genetic testing, and many patents had been allowed to lapse.

Moreover, it will soon be possible to sequence a person’s entire genome for less than the $4,000 that Myriad charges to analyze just two genes, which are called BRCA1 and BRCA2. And whole genome sequencing might not infringe patents on isolated genes.

The case before the Supreme Court was filed in 2009 by the American Civil Liberties Union and the Public Patent Foundation on behalf of some medical societies, researchers and patients.

The question before the court is whether isolated human genes are products of nature, and therefore ineligible for patents, or are sufficiently different from the genes found inside the body’s cells.

The plaintiffs won the first round when Judge Robert W. Sweet of Federal District Court in Manhattan said that isolated DNA was the same as DNA in the body in what really mattered — the genetic information it carries.

But Myriad prevailed at the United States Court of Appeals for the Federal Circuit, twice, by 2-to-1 decisions. One of the majority opinions said that DNA was a chemical, not an information medium, and that disconnecting DNA from the chromosome changed it enough structurally to qualify for patenting.

The plaintiffs, appealing to the Supreme Court, are challenging this. “Under this rationale, a kidney ‘isolated’ from the body would be patentable, gold ‘isolated’ from a stream would be patentable and leaves ‘isolated’ from trees would be patentable,” they say in their brief.

Myriad and allies argue that patents can and have been granted on products derived from nature — like the immune-suppressing drug rapamycin, which comes from a bacterium — as long as sufficient inventiveness is involved.

Briefs in support of the plaintiffs were submitted by the American Medical Association, AARP, and various consumer and patient advocacy groups. Supporters of Myriad include drug companies, biotech seed companies and venture capitalists. Diagnostic companies appear split.

The Obama administration, breaking with longstanding policy of the Patent and Trademark Office, says isolated genes should not be patentable. They are medically useful, it says in its brief, “precisely because isolated DNA operates in exactly the same way in a laboratory as it does in its natural environment.”

If the Supreme Court, which has shown a recent tendency to rein in patenting, were to say genes cannot be patented, the impact could depend on how the opinion was worded. Drugs, vaccines or crops might still be protectable even without patents on genes because other steps are involved in their creation.

An advisory committee to the Health and Human Services Department said in a 2010 report that gene patents were not necessary to spur development of genetic tests. There are about 50 tests offered for mutations that cause cystic fibrosis, for instance, despite the lack of the exclusivity that patents provide.

The committee did find instances in which patents inhibited patients’ access to testing.

Ellen T. Matloff, director of cancer genetic counseling at the Yale Cancer Center and a plaintiff in the case, described a woman with a history of breast and ovarian cancer who tested negative for BRCA mutations on Myriad’s test in early 2006. Ms. Matloff said Myriad refused to let Yale researchers look for mutations, in this patient or others, that they suspected the test missed.

Myriad later introduced a supplemental test to detect genetic changes missed by its main test, but the woman’s insurer would not pay for it until last October. By then, the woman’s daughter had developed breast cancer that might have been detected at a more treatable stage had the women known about the mutation.

Ms. Matloff did not identify the woman and her daughter to protect their privacy.

Mark C. Capone, the president of Myriad Genetic Laboratories, said the company had no knowledge of any discussion with Yale.

He said Myriad had invested $500 million to make a success of BRCA testing. He said 18,000 researchers had published 10,000 papers on those genes, a sign that research was not being hindered.

Myriad made $405.5 million from BRCA testing in its last fiscal year, accounting for more than 80 percent of its revenue.

One concern going forward is that a thicket of patents on individual genes will impede development of newer tests that look at multiple genes or of whole genome sequencing.

InVitae, a start-up developing a single test for all rare inherited diseases, filed a brief arguing against gene patents for this reason. Ambry Genetics already offers a test for 14 genes that raise the risk of breast cancer, but it leaves out the two most important genes because they are patented by Myriad.

But Dr. Evans said that in general, whole genome sequencing is taking off, apparently unimpeded by patents. And cancer centers are already sequencing many genes from patients’ tumors to help determine the best drugs to use.

Dr. Cook-Deegan of Duke, along with Timothy Caulfield of the University of Alberta and some other researchers, argued in a recent essay that the Myriad case “stands as an example of the power of an anecdote or outlier case rather than definitive proof of systemic problems” with gene patents.

“In total,” they wrote in the journal Genome Medicine, “the available evidence tells us that the alleged harms (and, for that matter, the suggested benefits) of human gene patenting have been overstated and oversimplified.”

    Justices Consider Whether Patents on Genes Are Valid, NYT, 14.4.2014,






Drug-Sniffing Dogs

and the Fourth Amendment


March 28, 2013
The New York Times


The Supreme Court correctly ruled this week that using a drug-sniffing police dog on a suspect’s property without a warrant violates the Fourth Amendment’s protection against unreasonable searches. The ruling was not surprising; the split among the justices was.

The majority included conservative Justices Antonin Scalia and Clarence Thomas and three of the court’s more liberal members (Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan). The four dissenting justices were: Samuel Alito Jr., Anthony Kennedy and Chief Justice John Roberts Jr., all on the conservative side; and Stephen Breyer, a moderate liberal.

Even though the drug-sniffing dog in his case got no further than the suspect’s front porch, Justice Scalia, writing for the majority, said that Fourth Amendment protection extends not only to a house but to its surroundings.

In a concurring opinion, Justice Kagan agreed that this dog-sniffing was an unconstitutional search, but because of the right to privacy as well as trespass. A person’s home, she said, is not only his castle but “his most intimate and familiar space.”

In 2001, the Supreme Court held that a person has a “minimal expectation of privacy” in his home that the police had violated when they conducted a search for marijuana using a thermal imaging device from outside the home. The Kagan concurrence points the way for a future court to emphasize this important principle again: In an era of sophisticated technology, the Constitution must keep police from using it to invade privacy — whether it is lawful for them to be on private property or not.

    Drug-Sniffing Dogs and the Fourth Amendment, NYT, 28.3.2013,






The Indefensible Marriage Act


March 27, 2013
The New York Times


The discrimination embedded in the Defense of Marriage Act is precise yet sweeping. The 1996 statute defines marriage as the union of a man and a woman, and applies that definition to about 1,100 federal laws and programs. One of its many discriminatory results is that same-sex couples are prohibited from collecting many federal benefits available to other couples.

That now includes people legally married in nine states and the District of Columbia, plus 18,000 couples who were legally married in California before 2008 when Proposition 8 banned same-sex marriage there.

Solicitor General Donald Verrilli Jr., who is known for his reserve, was unhesitating before the Supreme Court on Wednesday when it heard the Defense of Marriage Act case: “I think it’s time for the court to recognize that this discrimination, excluding lawfully married gay and lesbian couples from federal benefits, cannot be reconciled with our fundamental commitment to equal treatment under law.” It appeared that a majority of the justices, including the likely swing vote, Justice Anthony Kennedy, had serious doubts as to whether the law served any legitimate purpose.

Justice Kennedy, however, seemed primarily interested in questioning the law for the wrong reasons, concerned that the Defense of Marriage Act interferes in the primary right of states to regulate marriage and its benefits. Only the four more liberal justices appeared to focus on the reality that what is at stake here is not federalism but fairness. States can regulate marriage but they cannot discriminate while doing so, and leaving gay and lesbian couples out of the equation violates the Constitution’s guarantee of equal protection just as much as banning interracial marriage.

Paul Clement, who was defending the act on behalf of the House of Representatives, said its only purpose was to ensure uniformity in distributing federal marriage benefits. But Justice Elena Kagan dismissed that notion, suggesting that Congress’s judgment in passing the act was “infected by dislike, by fear, by animus.” Quoting from the House’s legislative history, she said, “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.”

That clear animus on the part of lawmakers explains why the court must strike down the law on equal-protection grounds, as a federal appeals court did last fall. The government needs to have an “exceptionally good” reason to justify treating gay men and lesbians differently, that court ruled, and Justice Ruth Bader Ginsburg made a similar point today, saying that the law created “two kinds of marriage: the full marriage and then this sort of skim-milk marriage.”

Still, no matter what grounds the court eventually uses to strike down the Defense of Marriage Act, getting rid of it would be a huge step forward in the national movement toward marriage equality. Once it is clear that the only thing standing between same-sex couples and federal benefits is an ideological state legislature, the pressure will accelerate on states to do the right thing, particularly in states like Virginia with large numbers of federal employees.

The Supreme Court now has an opportunity to end the federal role in this discrimination — and to do so with a ringing affirmation of the importance of basic fairness.

    The Indefensible Marriage Act, NYT, 27.3.2013,






Anthony Lewis,

Supreme Court Reporter

Who Brought Law to Life,

Dies at 85


March 25, 2013

Anthony Lewis, a former New York Times reporter and columnist whose work won two Pulitzer Prizes and transformed American legal journalism, died on Monday at his home in Cambridge, Mass. He was 85.

The cause was complications of renal and heart failure, said his wife, Margaret H. Marshall, a retired chief justice of the Massachusetts Supreme Judicial Court.

Mr. Lewis brought passionate engagement to his two great themes: justice and the role of the press in a democracy. His column, called “At Home Abroad” or “Abroad at Home” depending on where he was writing from, appeared on the Op-Ed page of The Times for more than 30 years, until 2001. His voice was liberal, learned, conversational and direct.

As a reporter, Mr. Lewis brought an entirely new approach to coverage of the Supreme Court, for which he won his second Pulitzer, in 1963.

“He brought context to the law,” said Ronald K. L. Collins, a scholar at the University of Washington who compiled a bibliography of Mr. Lewis’s work. “He had an incredible talent in making the law not only intelligible but also in making it compelling.”

Before Mr. Lewis started covering the Supreme Court, press reports on its decisions were apt to be pedestrian recitations by journalists without legal training, rarely examining the court’s reasoning or grappling with the context and consequences of particular rulings. Mr. Lewis’s thorough knowledge of the court’s work changed that. His articles were virtual tutorials about currents in legal thinking, written with ease and sweep and an ability to render complex matters accessible.

“There’s a kind of lucidity and directness to his prose,” said Joseph Lelyveld, a former executive editor of The Times. “You learned an awful lot of law just from reading Tony Lewis’s accounts of opinions.”

Mr. Lewis wrote several books, two of them classic accounts of landmark decisions of the Warren court, which he revered. Chief Justice Earl Warren led the Supreme Court from 1953 to 1969, corresponding almost precisely with Mr. Lewis’s years in Washington.

One of those books, “Gideon’s Trumpet,” concerned Gideon v. Wainwright, the 1963 decision that guaranteed lawyers to poor defendants charged with serious crimes. It has never been out of print since it was published in 1964.

“There must have been tens of thousands of college students who got it as a graduation gift before going off to law school,” said Yale Kamisar, an authority on criminal procedure who has taught at the University of Michigan and the University of San Diego.

In 1991, Mr. Lewis published “Make No Law,” an account of New York Times v. Sullivan, the 1964 Supreme Court decision that revolutionized American libel law. The Sullivan case, applying First Amendment principles to state libel law for the first time, ruled that public officials suing critics of their official conduct had to prove that the contested statements were made with “actual malice,” meaning with knowledge of their falsity or with serious subjective doubts about their truth.

Robert D. Sack, now a federal appeals court judge, said in a Times review that the book offered “a tour de force primer on the history of the First Amendment.”

Yet for all Mr. Lewis’s engagement with that Constitutional pillar, he parted company with many journalists on how far it should be used to protect them. He did not believe, for instance, that the First Amendment allows journalists to resist subpoenas for their confidential sources. Nor did he think that the amendment’s free-press clause entitles the institutional press to a special legal status.

Mr. Lewis’s coverage of the Warren court helped expand as well as explain its impact, Mr. Collins said.

“You cannot talk about the legacy of the Warren court and not talk about Tony Lewis,” he said. “He was just part and parcel of it. He was part of ushering in that constitutional revolution in civil rights and civil liberties from Brown v. Board of Education to Miranda v. Arizona.”

A New York Native

Joseph Anthony Lewis was born in Manhattan on March 27, 1927. He attended the Horace Mann School in the Bronx and graduated from Harvard College in 1948. He joined The Times as an editor in what was then the paper’s Sunday department, but he left after four years to work on Adlai Stevenson’s 1952 presidential campaign. After that he was hired by The Washington Daily News, a lively afternoon tabloid, and won his first Pulitzer there, in 1955, when he was 28.

The prize was for a series of articles on Abraham Chasanow, a Navy employee unjustly accused of being a security risk. The Navy eventually cleared and reinstated Mr. Chasanow, who credited Mr. Lewis’s work for his vindication.

Mr. Lewis returned to The Times that year, hired by James B. Reston, the Washington bureau chief, to cover the Justice Department and the Supreme Court. Mr. Reston soon sent him off to Harvard Law School on a Nieman Fellowship in 1956 and 1957 to study law “with special reference to the Supreme Court,” The Times reported.

Mr. Lewis’s coverage of the court impressed Justice Felix Frankfurter, who called Mr. Reston. “I can’t believe what this young man achieved,” Justice Frankfurter said, as Mr. Reston recalled in his memoir, “Deadline.” “There are not two justices of this court who have such a grasp of these cases.”

The 1963 Pulitzer citation singled out Mr. Lewis’s coverage of Baker v. Carr, in which the Supreme Court opened legislative districting to oversight by the federal courts. Mr. Lewis did more than cover the decision; an article on legislative apportionment that he had written for The Harvard Law Review was cited in the decision at Footnote 27.

Bringing independent intellectual scrutiny to news coverage was an innovation often associated with Mr. Reston, who was known as Scotty. And Mr. Reston was protective of his protégés.

“Scotty ran interference” for Mr. Lewis’s “analytical reporting, moving away from sterile news agency ‘objectivity,’ ” said Max Frankel, a former executive editor of The Times.

Mr. Lewis cut a striking figure in Washington. He was “cool, lean, well-scrubbed looking, intense and brilliant,” Gay Talese wrote in “The Kingdom and the Power,” his 1969 history of The Times. “Lewis seemed tightly contained at all times, incredibly controlled, his orderly mind concentrating on only those things that were relevant now, at this second.”

“Only those who knew him well,” Mr. Talese added, “or with whom he was sufficiently impressed and thus responsive, sensed the interesting man beneath — the connoisseur of opera, the serious man married to a tall, blithe student of modern dance, the superb mimic of W. C. Fields, the charming dinner guest.”

Mr. Lewis moved easily among the powerful. “Tony Lewis, besides brilliantly covering the Supreme Court, became too conspicuously a member of Robert Kennedy’s social circle,” Mr. Frankel wrote in his memoir, “The Times of My Life and My Life With The Times.” “It was tough to keep your balance when you were expected simultaneously to get the inside scoop and to remain a disinterested witness of events.”

Mr. Lewis wrote “Gideon’s Trumpet” in large part during a four-month newspaper strike. The book told the story of Clarence Earl Gideon, a Florida drifter accused of breaking into a poolroom who was tried and convicted without a lawyer, and it sought to place the decision his case gave rise to in a larger context.

Mr. Lewis wrote: “Just as the Gideon case was part of the movement of the law on the right to counsel, and that in turn was but one aspect of the fundamental change taking place in the constitutional doctrine of fair criminal procedure, so the criminal law trend was part of a larger picture. In many other areas the Supreme Court in the last generation has enlarged the dimensions of individual liberty.”

Paul Freund, a law professor at Harvard, reviewed the book for The Times. “The surpassing merit of Anthony Lewis’s book, sensitive but unsentimental, scholarly but not pedantic, is that we are made to see the general in the particular, to feel that, in the redemption of a forlorn outcast, the legal process is redeeming itself,” Professor Freund wrote.

Chief Justice Warren loomed large in Mr. Lewis’s thinking. In a 1967 review of two biographies of the chief justice, Mr. Lewis praised him for using “his power in behalf of life’s outcasts — the Communist, the suspected criminal, the Negro.”

Mr. Lewis published a second book in 1964, “Portrait of a Decade: The Second American Revolution,” about the civil rights movement.

Off to London

That year, he moved to London as the paper’s bureau chief.

“He had a real love affair with London, and he had quite a life there,” Mr. Lelyveld said. “He really cut a figure. He’s not a fancy dresser in the Savile Row sense, but he wore Liberty ties and a flower in his lapel.”

Mr. Lewis was at ease in areas far removed from politics and the law, and his work abroad was “a glittering and protean success,” recalled Allan M. Siegal, a former Times senior editor. Mr. Lewis reported on “ballet, music, Glyndebourne la-di-da London society, diplomacy, the British character, you name it,” Mr. Siegal said.

In 1969, Mr. Reston, after a brief stint as The Times’s executive editor, called Mr. Lewis in London to offer him the No. 2 spot at the paper under Mr. Reston’s eventual successor, A. M. Rosenthal. But the job was not Mr. Reston’s to offer, as Mr. Lewis learned when he arrived soon after in New York.

The paper’s publisher, Arthur Ochs Sulzberger, apologized to Mr. Lewis and offered him a consolation prize.

“Out of the ashes of the Reston-Rosenthal wars arose a columnist who occupied a part of the Op-Ed page for more than three decades,” Mr. Reston’s biographer, John F. Stacks, wrote in 2003.

Mr. Frankel, who oversaw the editorial page from 1977 to 1986, said Mr. Lewis’s column “was particularly notable for his commentaries on legal issues, his advocacy of compromise between Israel and the Palestinians and his assaults on the apartheid regime in South Africa.”

Mr. Lewis’s first marriage, to Linda J. Rannells, ended in divorce. The couple had three children, Eliza, David and Mia, who survive him, along with seven grandchildren.

Chief Justice Marshall, whom Mr. Lewis married in 1984, wrote the Massachusetts court’s landmark decision in 2003 recognizing a right to same-sex marriage. She retired in 2010 to care for her husband — “so that Tony and I may enjoy our final seasons together,” she said.

Out on His Own

Mr. Lewis often parted ways with his colleagues in the press and the lawyers who represented them in his understanding of the scope of the First Amendment.

He was skeptical, as he wrote in The Hofstra Law Review in 1979, that the First Amendment’s press clause (“Congress shall make no law ... abridging the freedom of speech, or of the press”) gave the institutional press special protection, as Justice Potter Stewart had contended in an influential speech at Yale Law School in 1974.

Rather, Mr. Lewis said in a public interview at Harvard in 2006, the amendment’s reference to “the press” was merely to the products of printing presses — printed words as opposed to spoken ones.

“It’s a great mistake for the press to give itself a preferred position,” he said.

It followed, Mr. Lewis said, that reporters do not have an absolute First Amendment right to protect their sources. Reporters should keep their promises, but as a matter of honor, he said, and not because they are exempt from ordinary legal requirements.

As Mr. Lewis wrote in The New York Review of Books in 2005, the First Amendment is fundamentally a prohibition on government censorship. Asking more of it, he wrote, “does not fit easily within the main use of the amendment.”

Mr. Lewis said judges were in a better position to balance the interests involved, and he spoke approvingly of a concurring opinion by Judge David S. Tatel of the United States Court of Appeals for the District of Columbia Circuit in the decision that sent a Times reporter, Judith Miller, to jail for 85 days in 2005. Judge Tatel said a special prosecutor’s need for information outweighed the public interest in allowing Ms. Miller to protect her source.

Mr. Lewis was similarly skeptical about what he considered unwarranted press intrusions into privacy. In a 2002 article in The Nova Law Review, Mr. Lewis criticized The Times and other news organizations for filing briefs supporting reporting that he considered tawdry.

In his final book, “Freedom for the Thought That We Hate: A Biography of the First Amendment,” published in 2008, Mr. Lewis wrote that he was inclined to relax some of the most stringent First Amendment protections “in an age when words have inspired acts of mass murder and terrorism.” In particular, he said he might reconsider the conventional view that there was only one justification for making incitement a crime: the likelihood of imminent violence.

Mr. Lewis wrote that there was “genuinely dangerous” speech that did not meet the imminence requirement. “I think we should be able to punish speech that urges terrorist violence to an audience, some of whose members are ready to act on the urging,” Mr. Lewis wrote. “That is imminence enough.”

Much as he loved and admired the press, Mr. Lewis considered the courts to be the bedrock institution of American freedom.

“His lifelong faith in judges dominates his legal thinking,” Mr. Frankel said. “No matter how mistaken or craven” a court might be, he added, Mr. Lewis saw the judiciary “as the ultimate safeguard of our democracy.”



This article has been revised to reflect the following correction:

Correction: March 25, 2013

An earlier version of this obituary misstated the year

that Anthony Lewis’s column first appeared

on the Op-Ed page of The New York Times.

It was 1970, not 1969.

    Anthony Lewis, Supreme Court Reporter Who Brought Law to Life, Dies at 85,
    NYT, 25.3.2013,






A 50-State Ruling


March 25, 2013
The New York Times


California’s Proposition 8 rewrote the state’s Constitution so that “only marriage between a man and a woman is valid or recognized in California.” The 1996 Defense of Marriage Act, for purposes of any federal law, defined the word marriage to mean “only a legal union between one man and one woman.”

The Supreme Court will hear arguments on challenges to Proposition 8 on Tuesday and Defense of Marriage on Wednesday. In both cases, the court should rule that the Constitution prohibits the federal government and every state from defining the fundamental right of marriage so narrowly and fully protects the liberty of same-sex couples.

When Proposition 8 was on the California ballot in 2008, the official pamphlet explaining the initiative said that it did not “take away any rights or benefits of gay or lesbian domestic partnerships,” which have the “ ‘same rights, protections, and benefits’ as married spouses.”

As the California Supreme Court said about legal attacks on same-sex marriage, the point of denying gay marriages was to say officially that these relationships were not of “comparable stature or equal dignity” to opposite-sex marriages. The intent was to stigmatize them, enshrine discrimination in law and encourage discrimination against gay men, lesbians and same-sex couples. The federal Defense of Marriage Act does the same, with the same effects. And in depriving same-sex couples and their children of federal recognition and benefits, it fails to meet any test under the Constitution.

In the Proposition 8 case, it is widely agreed that the Supreme Court has four options, if it does not, unconscionably, uphold the initiative. It could allow same-sex marriage only in California or it could dismiss the case on grounds that the initiative’s sponsors had no standing to bring the appeal (by not ruling on the merits, the result would very likely be to allow same-sex couples to marry in California).

The court could also decide that California and the seven other states that allow civil unions equivalent to marriage cannot deny same-sex couples the status of marriage. But accepting the “eight state solution” would be a half-step and would have to be revisited in the near future.

The soundest approach is to recognize same-sex marriage broadly as a matter of equality under the Constitution — and therefore compel all states as well as the federal government to recognize this right. In the 2003 case Lawrence v. Texas, which struck down a Texas sodomy law as violating constitutionally protected liberty, Justice Anthony Kennedy, writing for the court, said, “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Gay, lesbian, bisexual and transgender people have been seeking the freedom to live openly, to be treated equally and to marry as they choose. They have helped bring about a major shift in public opinion in the past decade in favor of same-sex marriage; they are now joined by leading Republicans and many of America’s most important companies in making the powerful case for marriage equality before the court.

Support now for same-sex marriage — more than half in favor, about one-third against — is roughly the public divide on the question of public school desegregation in 1954 when the Supreme Court outlawed segregated schools in Brown v. Board of Education. But the court’s call then for states to end racial discrimination in public schools “with all deliberate speed” was a big error. It gave states far too much latitude to move slowly and gave them an excuse for resistance, which delayed desegregation in many school districts for many years.

The court should avoid that kind of error in the same-sex-marriage cases. It should broadly declare that under the Constitution the right to marry applies equally to all couples, period, and that this principle applies to the federal government and every state.


Meet The New York Times’s Editorial Board.

    A 50-State Ruling, NYT, 25.3.2013,






Arizona’s Barrier to the Right to Vote


March 18, 2013
The New York Times


Arizona’s Proposition 200, passed in 2004, prohibits local officials from registering any would-be voter who does not provide “satisfactory evidence of United States citizenship.” That requirement conflicts with the National Voter Registration Act of 1993, also known as the Motor Voter Act, which set up a national registration system for federal elections.

On Monday, the Supreme Court heard arguments about whether states have the power under the federal law to add restrictions to voter registration. They clearly do not. The justices should reject Arizona’s law as invalid and avoid recreating the problem that the federal law was intended to fix.

Congress sought to remedy the “complicated maze of laws and procedures” passed by state and local governments that kept 40 percent of eligible voters from registering. The 1993 law allows voters to sign up to vote in federal elections when they apply for a driver’s license or by mailing in a federal form on which they swear they are citizens under penalty of perjury. The law also says that a state must “accept and use the mail voter registration application form prescribed.” Arizona’s statute directly conflicts with the federal law by imposing the additional requirement of proof of citizenship.

The U.S. Court of Appeals for the Ninth Circuit struck down the statute as being pre-empted by the federal law. Proposition 200’s purpose is to combat undocumented immigration, but the state produced no evidence of undocumented immigrants registering or voting in Arizona. As a brief from a group of state and local elections officials from around the country said, “Efforts by noncitizens to register and vote are exceedingly rare” and do not justify making it harder for voters to register. Arizona produced evidence that in 2005 and 2007, only 19 noncitizens registered to vote — out of 2,734,108 registered state voters.

In the same period, Arizona rejected the registrations of 31,550 people. Most of them — 87 percent of the Hispanics, 93 percent of the others — listed the United States as their birthplace. The recorder’s office in Arizona’s largest county said that most of those it rejected were citizens who lacked required identification.

The Constitution’s elections clause says that states shall prescribe “the times, places and manner of holding elections for senators and representatives,” but that “Congress may at any time by law make or alter” those regulations. As long as Congress has acted within “the ample limits of the election clause’s grant of authority,” the Supreme Court has said, what Congress does in the realm of voting is paramount because “the framers envisioned a uniform national system.”

Congress’s explicit purpose was to strengthen this voting system by streamlining the process for registering to vote. The Supreme Court should strike down the unwarranted and conflicting Arizona law, which eviscerates the federal effort to extend the Constitution’s fundamental right to every eligible voter.

    Arizona’s Barrier to the Right to Vote, NYT, 18.3.2013,






U.S. Asks That Justices Reject

California Gay Marriage Ban


February 28, 2013
The New York Times


The Obama administration threw its support behind a broad claim for marriage equality on Thursday, and urged the Supreme Court to rule that voters in California were not entitled to ban same-sex marriage there.

In a forceful argument, the administration claimed that denying gay couples the right to marry violates the Constitution’s equal protection clause. It said that Proposition 8, the state’s ban on same-sex marriage, should be subjected to “heightened scrutiny” — a tough test for any law — and stated flatly that “Proposition 8 fails heightened scrutiny.”

That argument is similar to the one made in the administration’s brief in a second case before the Supreme Court concerning the Defense of Marriage Act of 1996, which the administration has also asked the court to declare unconstitutional.

The latest brief, filed late Thursday, does not, however, ask the court to declare such bans unconstitutional nationwide; instead, it focused on Proposition 8, which was approved by voters in 2008 and is before the court in this case. That law was passed by a voter initiative just months after the state’s Supreme Court ruled that same-sex couples could marry. The brief notes that opponents of same-sex marriage in the California case have argued that the state offers, through the equivalent of domestic partnerships, a marital state in all but the name.

The government also points out that seven other states — Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island — have a similar all-but-marriage frameworks, and says that “the designation of marriage, however, confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.”

While the brief does not call explicitly for the court to strike down the laws in the seven other states, the implication of its argument is clear. Attorney General Eric H. Holder Jr. issued a statement that tied the government’s argument into the fundamental struggle against discrimination and for civil rights, saying that the brief “seeks to vindicate the defining constitutional ideal of equal treatment under the law.” He said that the court’s decisions concerning the two same-sex marriage cases “are not just important to the tens of thousands of Americans who are being denied equal benefits and rights under our laws, but to our nation as a whole.”

The government’s brief concludes with a ringing denunciation of the California ban on same-sex marriage, which it said is based in “impermissible prejudice.”

It then cited a concurrence in a 2001 Supreme Court case that said prejudice might not rise “from malice or hostile animus,” and might well be the result of “insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.”

No matter, the brief said. “Prejudice may not, however, be the basis for differential treatment under the law.”

The author of that concurrence is Justice Anthony M. Kennedy, who is expected to be a crucial voice within the court in both of the current cases.

Andrew P. Pugno, the general counsel for supporters of Proposition 8, called the administration’s brief very disappointing. “By arguing that Proposition 8 is rooted only in irrational prejudice, the president has impugned the motives of millions of Californians, turned his back on society’s longstanding interest in both mothers and fathers raising the next generation, and disregarded the rights of each state to decide for itself whether to redefine marriage,” he said.

The federal government is not a party to the California case, Hollingsworth v. Perry, No. 12-144, and was not required to take a position in it. But the lawyers who filed the challenge to Proposition 8, Theodore B. Olson and David Boies, along with gay rights groups, lobbied for the brief, saying the administration could not stay silent on the issue.

The broad outlines of the administration’s position in the California case are similar to those it filed in a brief last week in a same-sex marriage case in which it is a party, United States v. Windsor, No. 12-307. But that case presents only the narrower question of the constitutionality of part of the federal Defense of Marriage Act, which defines marriage as the union of a man and a woman for the purposes of more than 1,000 federal laws and regulations.

The Supreme Court’s ruling in the Defense of Marriage Act case will at most decide whether the federal government can discriminate against same-sex couples even if they married in states that allow such unions. Nine states and the District of Columbia allow same-sex marriage.

The case from California presents the broader question of whether there is a constitutional right to same-sex marriage in the states that do not allow it, which is why the brief is significant. It is uncertain, however, that the Supreme Court will end up deciding that broad question. The court may well avoid the issue on technical grounds or rule in a way that applies only to California.

Until not long ago, the administration was thought likely to stay out of the California case, partly as a matter of historical practice and partly to be true to President Obama’s public position on same-sex marriage. The federal government took no position in 1967 in Loving v. Virginia, the case in which the Supreme Court struck down bans on interracial marriage, or in 2003 in the last major gay rights case, Lawrence v. Texas, which struck down state laws making gay sex a crime.

Moreover, when Mr. Obama announced his support for same-sex marriage, he said the matter was for the states to decide.

On the other hand, Mr. Obama has long opposed Proposition 8.

“I am not in favor of gay marriage,” Mr. Obama told MTV News in 2008. “But when you start playing around with constitutions, just to prohibit somebody who cares about another person, it just seems to me that’s not what America’s about. Usually, our constitutions expand liberties, they don’t contract them.”

But Mr. Obama has since embraced a more sweeping view of marriage equality. “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law,” he said in his Inaugural Address, “for if we are truly created equal, then surely the love we commit to one another must be equal, as well.”

Supporters of marriage rights for same-sex couples applauded the brief. Chad Griffin, who founded the organization that filed the legal challenge to Proposition 8 and now heads the Human Rights Campaign, an advocacy group in Washington, called it “another historic step forward consistent with the great civil rights battles of our nation’s history.” He said President Obama had “turned the inspirational words of his second Inaugural Address into concrete action.”

Both briefs argue that courts should subject laws making distinctions between straight and gay people to “heightened scrutiny,” requiring a showing that such laws are “substantially related to an important government objective.”

The administration argues that the factors, including a history of discrimination, that led courts to require heightened scrutiny for laws on gender and illegitimacy should also require it for those addressing sexual orientation.

The California case is scheduled to be argued March 26 and the one concerning the federal law March 27. Solicitor General Donald B. Verrilli Jr. will probably present the federal government’s position in both cases, and he is likely to be questioned closely about changes and possible inconsistencies in the administration’s position.


Michael D. Shear contributed reporting.

    U.S. Asks That Justices Reject California Gay Marriage Ban, NYT, 28.2.2013,






Justices Turn Back Challenge

to Broader U.S. Eavesdropping


February 26, 2013
The New York Times


WASHINGTON — The Supreme Court on Tuesday turned back a challenge to a federal law that broadened the government’s power to eavesdrop on international phone calls and e-mails.

The decision, by a 5-to-4 vote that divided along ideological lines, probably means the Supreme Court will never rule on the constitutionality of that 2008 law.

More broadly, the ruling illustrated how hard it is to mount court challenges to a wide array of antiterrorism measures, including renditions of terrorism suspects to foreign countries and targeted killings using drones, in light of the combination of government secrecy and judicial doctrines limiting access to the courts.

“Absent a radical sea change from the courts, or more likely intervention from the Congress, the coffin is slamming shut on the ability of private citizens and civil liberties groups to challenge government counterterrorism policies, with the possible exception of Guantánamo,” said Stephen I. Vladeck, a law professor at American University.

Writing for the majority, Justice Samuel A. Alito Jr. said that the journalists, lawyers and human rights advocates who challenged the constitutionality of the law could not show they had been harmed by it and so lacked standing to sue. The plaintiffs’ fear that they would be subject to surveillance in the future was too speculative to establish standing, he wrote.

Justice Alito also rejected arguments based on the steps the plaintiffs had taken to escape surveillance, including traveling to meet sources and clients in person rather than talking to them over the phone or sending e-mails. “They cannot manufacture standing by incurring costs in anticipation of nonimminent harms,” he wrote of the plaintiffs.

It is of no moment, Justice Alito wrote, that only the government knows for sure whether the plaintiffs’ communications have been intercepted. It is the plaintiffs’ burden, he wrote, to prove they have standing “by pointing to specific facts, not the government’s burden to disprove standing by revealing details of its surveillance priorities.”

In dissent, Justice Stephen G. Breyer wrote that the harm claimed by the plaintiffs was not speculative. “Indeed,” he wrote, “it is as likely to take place as are most future events that common-sense inference and ordinary knowledge of human nature tell us will happen.”

Under the system of warrantless surveillance that was put in place by the Bush administration shortly after the terrorist attacks of Sept. 11, 2001, aspects of which remain secret, the National Security Agency was authorized to monitor Americans’ international phone calls and e-mails without a warrant.

After The New York Times disclosed the program in 2005 and questions were raised about its constitutionality, Congress in 2008 amended the Foreign Intelligence Surveillance Act, granting broad power to the executive branch to conduct surveillance aimed at persons overseas without an individual warrant.

The Obama administration defended the law in court, and a Justice Department spokesman said the government was “obviously pleased with the ruling.”

The decision, Clapper v. Amnesty International, No. 11-1025, arose from a challenge to the 2008 law by Amnesty International, the American Civil Liberties Union and other groups and individuals, including journalists and lawyers who represent prisoners held at Guantánamo Bay, Cuba. The plaintiffs said the law violated their rights under the Fourth Amendment, which bars unreasonable searches, by allowing the government to intercept their international telephone calls and e-mails.

Justice Alito said the program was subject to significant safeguards, including supervision by the Foreign Intelligence Surveillance Court, which meets in secret, and restrictions on what may be done with “nonpublic information about unconsenting U.S. persons.” Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas joined the majority opinion, and Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the dissent.

Jameel Jaffer, a lawyer with the A.C.L.U., said the decision “insulates the statute from meaningful judicial review and leaves Americans’ privacy rights to the mercy of the political branches.”

Justice Alito wrote that the prospect that no court may ever review the surveillance program was irrelevant to analyzing whether the plaintiffs had standing. But he added that the secret court does supervise the surveillance program.

It is also at least theoretically possible, he added, that the government will try to use information gathered from the program in an ordinary criminal prosecution and thus perhaps allow an argument “for a claim of standing on the part of the attorney” for the defendant.

Mr. Jaffer said the situations were far-fetched.

“Justice Alito’s opinion for the court seems to be based on the theory that the secret court may one day, in some as-yet unimagined case, subject the law to constitutional review, but that day may never come,” Mr. Jaffer said. In many national security cases, he added, the government has prevailed at the outset by citing lack of standing, the state secrets doctrine or officials’ immunity from suit.

“More than a decade after 9/11,” he said, “we still have no judicial ruling on the lawfulness of torture, of extraordinary rendition, of targeted killings or of the warrantless wiretapping program. These programs were all contested in the public sphere, but they have not been contested in the courts.”


James Risen and Charlie Savage contributed reporting.

    Justices Turn Back Challenge to Broader U.S. Eavesdropping, NYT, 26.2.2013,






Supreme Court Takes Case

on Overall Limit to Political Gifts


February 19, 2013
The New York Times


WASHINGTON — The Supreme Court on Tuesday agreed to hear a challenge to federal campaign contribution limits, setting the stage for what may turn out to be the most important federal campaign finance case since the court’s 2010 decision in Citizens United, which struck down limits on independent campaign spending by corporations and unions.

The latest case is an attack on the other main pillar of federal campaign finance regulation: limits on contributions made directly to political candidates and some political committees.

“In Citizens United, the court resisted tinkering with the rules for contribution limits,” said Richard L. Hasen, an expert on election law at the University of California, Irvine. “This could be the start of chipping away at contribution limits.”

The central question is in one way modest and in another ambitious. It challenges only aggregate limits — overall caps on contributions to several candidates or committees — and does not directly attack the more familiar basic limits on contributions to individual candidates or committees. Should the court agree that those overall limits are unconstitutional, however, its decision could represent a fundamental reassessment of a basic distinction established in Buckley v. Valeo in 1976, which said contributions may be regulated more strictly than expenditures because of their potential for corruption.

The case was brought by Shaun McCutcheon, an Alabama man, and the Republican National Committee. Mr. McCutcheon said he was prepared to abide by contribution limits to individual candidates and groups, which are currently $2,500 per election to federal candidates, $30,800 per year to national party committees, $10,000 per year to state party committees and $5,000 per year to other political committees. But he said he objected to separate overall two-year limits, currently $46,200 for contributions to candidates and $70,800 for contributions to groups, arguing that they were unjustified and too low.

He said he had made contributions to 16 federal candidates in recent elections and had wanted to give money to 12 more. He said he had also wanted to give $25,000 to each of three political committees established by the Republican Party. Each set of contributions would have put him over the overall limits.

In September, a special three-judge federal court in Washington upheld the overall limits, saying they were justified by the need to prevent the circumvention of the basic limits.

“Although we acknowledge the constitutional line between political speech and political contributions grows increasingly difficult to discern,” Judge Janice Rogers Brown wrote for the court, “we decline plaintiffs’ invitation to anticipate the Supreme Court’s agenda.”

In June, in a brief, unsigned 5-to-4 decision, the Supreme Court affirmed the Citizens United ruling, summarily reversing a decision of the Montana Supreme Court that had upheld a state law limiting independent political spending by corporations.

“The question presented in this case is whether the holding of Citizens United applies to the Montana state law,” the opinion said. “There can be no serious doubt that it does.” Montana’s arguments, the opinion continued, “either were already rejected in Citizens United, or fail to meaningfully distinguish that case.”

In 2006, in Randall v. Sorell, the Supreme Court struck down Vermont’s contribution limits, the lowest in the nation, as unconstitutional. Individuals and political parties were not allowed to contribute more than $400 to a candidate for statewide office over a two-year election cycle, including primaries. In a brief concurrence, Justice Samuel A. Alito Jr. said there was no reason to address the continuing validity of Buckley v. Valeo in that case, suggesting that a later case might present the question directly.

The latest case, McCutcheon v. Federal Election Commission, No. 12-536, may be that case.

The court also issued a pair of Fourth Amendment decisions on Tuesday.

In one of them, the court ruled, 6 to 3, that the police may not stop and detain people without probable cause in connection with a search warrant once they had left the premises being searched.

The case, Bailey v. United States, No. 11-770, concerned Chunon Bailey, a New York man who left an apartment in 2005 as it was about to be searched. The police had a warrant to look for a gun, which they ultimately found. They also followed Mr. Bailey’s car for about a mile before stopping, handcuffing and searching him.

Mr. Bailey was later convicted of gun and drug charges. He asked lower courts to suppress evidence from the stop — statements he made and a key linking him to the apartment — but they refused, relying on Michigan v. Summers, a 1981 Supreme Court decision allowing the detention of people in the immediate vicinity of the place to be searched.

Justice Anthony M. Kennedy, writing for the majority, said none of the interests justifying the detention of people at the scene had allowed Mr. Bailey to be detained. People far from the scene cannot endanger officers conducting the search or disrupt it, he said. Nor could the interest in “preventing flight” be stretched, he wrote, to “justify, for instance, detaining a suspect who is 10 miles away, ready to board a plane.”

Justice Kennedy added that a detention in public gave rise to a different sort of indignity than one inside a home.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the majority opinion.

In a second, unanimous ruling, the court decided the first of two cases concerning dog sniffs on its docket this term, Florida v. Harris, No. 11-817.

The case concerned a man, Clayton Harris, who was pulled over in 2006 near Bristol, Fla., for driving with an expired license plate. A police dog named Aldo alerted his human partner to contraband in Mr. Harris’s pickup truck.

Based on the alert, the officer searched the truck and found ingredients for making methamphetamine.

The Florida Supreme Court suppressed the evidence, saying that prosecutors had not adequately established the reliability of Aldo’s nose through comprehensive documentation of his performance in earlier searches. Justice Kagan said the dog’s substantial training and certification sufficed.

“A sniff is up to snuff when it meets that test,” she wrote.

The case was argued in October on the same day as Florida v. Jardines, No. 11-564, concerning dog sniffs outside a home, and there was reason to think the two cases would be decided together. But the justices apparently found the question in the second case harder.

    Supreme Court Takes Case on Overall Limit to Political Gifts, NYT, 19.2.2013,






Voting Rights Act Is Challenged

as Cure the South Has Outgrown


February 17, 2013
The New York Times


EVERGREEN, Ala. — Jerome Gray, a 74-year-old black man, has voted in every election since 1974 in this verdant little outpost of some 4,000 people halfway between Mobile and Montgomery. Casting a ballot, he said, is a way to honor the legacy of the Voting Rights Act of 1965, a civil rights landmark born from a bloody confrontation 70 miles north of here, in Selma.

The franchise remains fragile in Evergreen, Mr. Gray said. Last summer, he was kicked off the voting rolls by a clerk who had improperly culled the list based on utility records.

A three-judge federal court in Mobile barred the city from using the new voting list, invoking Section 5 of the Voting Rights Act, which requires many state and local governments, mostly in the South, to obtain permission from the Justice Department or from a federal court in Washington before making changes that affect voting.

That provision is also at the heart of one of the marquee cases of the Supreme Court’s term, Shelby County v. Holder, No. 12-96, which will be argued on Feb. 27. It was brought by Shelby County, near Birmingham, and it contends that the provision has outlived its purpose of protecting minority voters in an era when a black man has been re-elected to the presidency.

The Voting Rights Act was a triumph of the civil rights movement. It was a response, the Supreme Court said in upholding it in 1966, to “an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.”

Congress was entitled, the court went on, “to limit its attention to the geographic areas where immediate action seemed necessary.” Lawmakers chose the areas to be covered based on a formula that considered whether they had used devices to discourage voting, like literacy tests, and data from the 1964 election.

The court in Mobile this month said the case before it, concerning Evergreen, was simple: because the city had not obtained preclearance from federal authorities, it could not revise its voting list using utility records. Nor could it use a municipal redistricting plan enacted by the City Council that had concentrated black voters, who are in the majority, into just two of the five districts, limiting black voting power.

It is not clear when the municipal election, originally scheduled for last August, will be held.

A lawyer for Evergreen, James H. Anderson, said the ruling was justified. “The way the voter list was recomposed was improper,” he said. He added that the redistricting plan “could possibly be adopted by the Justice Department, but we need to tweak it a little bit.” In a court filing on Feb. 11, the city announced that it would create a third majority-black district “to have a total black population in the vicinity of 65 percent.”

Critics of the Section 5 preclearance requirement call it an unwarranted and discriminatory federal intrusion on state sovereignty and a badge of shame for the affected jurisdictions that is no longer justified.

But Mr. Anderson said he welcomed the process, to a point. “I think it plays a very valuable role, and I think we need it,” he said. “Personally, I think we need it nationwide.”

The problem, he said, is that the provision applies in only some parts of the country. “I think it’s discriminatory because it picks on us Southerners,” he said.

Congress has repeatedly renewed the law, and for a while it used fresher data with each renewal. But when Congress renewed the law for 25 years in 2006, it made no changes to the list of jurisdictions covered by Section 5 and used data from the 1972 election as a baseline.

The law applies to nine states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia — and to scores of counties and municipalities in other states.

Should the Supreme Court rule that Congress was not entitled to rely on old data to decide which jurisdictions should be covered, lawmakers could in theory re-enact the law using more current information. In practice, a decision striking down the coverage formula would probably amount to the end of the preclearance requirement.

In the rest of the country, objections to changes in how elections are run take the usual course, with after-the-fact lawsuits under another part of the law. “In many places,” said Debo P. Adegbile, a lawyer with the NAACP Legal Defense and Educational Fund, “the case-by-case method of vindicating voting rights for minority citizens was not up to task.”

Section 5, he said, “shines daylight on the dark rooms where these political redistricting decisions are happening” and “it makes sure you’re dealing the cards off the top of the deck.”

Mr. Gray is a slender, intense man with wiry gray hair and a slight goatee. He served for almost 30 years as state field director of the Alabama Democratic Conference, and he has seen his share of history.

He lives across the street from the high school he graduated from in 1955, when it was reserved for blacks. The movie theater was segregated, too. “You had to go down an alley and up the stairs” to a balcony reserved for blacks, he said. “We called it the buzzards’ nest.”

“We had no black elected officials anywhere,” he said. To vote, he said, “blacks had to get a written statement from a white businessman to say they were ‘a good Negro.’ ” Whether the statement was thought adequate was up to the whim of a white sheriff.

Things are better now, of course, but Mr. Gray says intimidation can take many forms. “As recently as the 2008 municipal runoff election between a white candidate and a black candidate for mayor,” Mr. Gray said in a recent court filing, “I witnessed white men standing in the beds of pickup trucks systematically photographing black voters as they approached the polls at each voting location in Evergreen.”

The challenge in the Supreme Court was brought by Shelby County. It is 90 percent white and as prosperous as Evergreen is poor.

In its brief in the case, the county acknowledged that “the Voting Rights Act of 1965 changed the course of history in the covered jurisdictions” but said the disputed parts of the law “have accomplished their missions.”

In a supporting brief, Alabama said it had “more than earned its spot on Section 5’s original coverage list in 1965” through “violence and willful defiance of federal law.”

“But that was a long time ago,” Alabama’s brief said. Black voter registration and turnout are high, it said, and the racial mix in the Legislature reflects the state’s population.

In 2009, when the Supreme Court last considered the issue in Northwest Austin Municipal Utility District Number One v. Holder, Chief Justice John G. Roberts Jr. made similar points. But that 8-to-1 decision did not end up ruling on the larger questions in the case.

Instead, the court ruled on a narrow statutory ground, saying the utility district in Austin, Tex., that had challenged the constitutionality of the law might be eligible to “bail out” from being covered by it. Still, Chief Justice Roberts seemed skeptical about the continued need for Section 5.

“Things have changed in the South,” he said.

“The statute’s coverage formula is based on data that is now more than 35 years old,” he added, “and there is considerable evidence that it fails to account for current political conditions.”

In the last presidential election, courts relied on Section 5 to block voter identification requirements and cutbacks on early voting in covered jurisdictions.

Mr. Gray, for his part, said recent events in Evergreen proved that there was still a vital role for the Voting Rights Act’s central innovation.

“Section 5 allowed us to stop an election that would have been a disaster,” he said. “We need Section 5 because there are still bad actors, and Evergreen is one. They had removed almost 800 people from the voting rolls, including Jerome Gray.”

    Voting Rights Act Is Challenged as Cure the South Has Outgrown, NYT, 17.2.2013,






Is the Driver Drunk?


January 5, 2013
The New York Times


The Fourth Amendment prohibits the police from searching individuals without a warrant, but the Supreme Court allows exceptions to that rule for “exigent circumstances” — when the police believe that the delay involved in getting a warrant would lead to destruction of evidence.

In Missouri v. McNeely, scheduled for argument at the court on Wednesday, the police forced a driver to take a blood test at a hospital without a warrant, after he refused to take a breath test with a portable machine when he was stopped for erratic driving. The blood test showed that his blood alcohol content was 0.154 percent, or almost twice the state’s legal limit.

The Missouri Supreme Court wisely ruled that the warrantless blood test was an unreasonable search because there was no emergency that prevented the police from getting a search warrant in a timely manner before the alcohol in the driver’s blood dissipated.

Missouri is now asking the United States Supreme Court to overturn the state court ruling and to radically revise Fourth Amendment law so that police — without a warrant — can draw blood from every person arrested on suspicion of drunken driving, regardless of the circumstances. The United States government, siding with Missouri, argues that warrantless blood draws are needed “to prevent the imminent destruction of evidence.”

But in 21 states, including Missouri, the police have successfully obtained thousands of warrants to get blood alcohol evidence.

If the Supreme Court applies the blanket rule Missouri seeks, it will diminish constitutional rights without increasing public safety in any meaningful way.

    Is the Driver Drunk?, NYT, 5.1.2013,




home Up