The Mirror of Racial Tyranny in The Civil Rights Cases

Posted on Categories Civil Rights, Constitutional Interpretation, Constitutional Law, Legal History, Public, Race & Law, U.S. Supreme CourtLeave a comment» on The Mirror of Racial Tyranny in The Civil Rights Cases
Political cartoon from the nineteenth century showing an African American holding a copy of the Civil Rights Act of 1875 while standing at the Gates of Heaven
This 19th Century Thomas Nast cartoon shows an African American at the Gates of Heaven, telling Saint Peter that the Civil Rights Act of 1875 opens all gates for him.  Nast’s caption calls on white churches to desegregate.

On the 135th Anniversary of the Supreme Court’s opinion in The Civil Rights Cases, it is worth reflecting on how that opinion — which came after Reconstruction but before Jim Crow—reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the power of the history of slavery and the salience of race, contributes to enduring white supremacy.
This week marks the 135th anniversary of the U.S. Supreme Court’s opinion in The Civil Rights Cases, 109 U.S. 3 (1883). While to some this is a mere historical footnote, the decision is worth remembering because it reflects the tensions at play today concerning how constitutional law can, through unrelenting formalism and a preference towards denying the salience of race, contributes to enduring structural oppression. The reasoning in The Civil Rights Cases is an object study in how to maintain white supremacy—and a mirror to our society today.

The opinion overturned the Civil Rights Act of 1875. It sought to protect recently freed African-American slaves from discrimination in the use of “inns, public conveyances on land or water, theaters, and other places of public amusement.” In striking down this nineteenth-century public accommodations law, thus allowing private businesses to deny services to African Americans because of their race, Justice Joseph P. Bradley, speaking for the 8-1 Supreme Court majority, made three arguments. Continue reading “The Mirror of Racial Tyranny in The Civil Rights Cases”

New Marquette Lawyer Magazine Examines War Powers, State Supreme Court Elections, Legal Scholarship Ethics, and More

Posted on Categories Legal Scholarship, Marquette Law School, President & Executive Branch, Public, Speakers at Marquette, Wisconsin Supreme CourtLeave a comment» on New Marquette Lawyer Magazine Examines War Powers, State Supreme Court Elections, Legal Scholarship Ethics, and More

The bald eagle symbolizes the strength of the United States, not least when the country uses its military power. The eagle on the cover of the Marquette Lawyer magazine, Fall 2018 issue, shows the determination, even the fierceness, of the eagle during times of war.

But the process involved in deciding where and how that eagle flies is more complex than many people may realize. In the cover story in the new Marquette Law School magazine, David J. Barron, judge of the U.S. Court of Appeals for the First Circuit and formerly a Harvard Law School professor, insightfully examines three chapters in American history when a president and leaders of Congress had differing positions on use of power. Barron focuses on three of the nation’s most revered presidents: George Washington, Abraham Lincoln, and Franklin D. Roosevelt. The article is an edited and expanded version of the E. Harold Hallows Lecture that Barron delivered at the Law School in April 2018. To read the article, click here.

Interspersed throughout the article are reactions by three individuals with different perspectives on the relationship between Congress and the commander-in-chief: Russ Feingold, former three-term U.S. senator from Wisconsin and currently distinguished visiting lecturer in international studies at the University of Wisconsin–Madison; Julia R. Azari, associate professor of political science at Marquette University and a scholar of the American presidency; and Benjamin Wittes, editor in chief of Lawfare and senior fellow in governance studies at the Brookings Institution.

Barron’s article, together with the reactions, is only one of the thoughtful and thought-provoking pieces in the new Marquette Lawyer. Elsewhere in the magazine: Continue reading “New Marquette Lawyer Magazine Examines War Powers, State Supreme Court Elections, Legal Scholarship Ethics, and More”

New Book on Sentencing and Corrections

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Legal Scholarship, Marquette Law School, Prisoner Rights, Public, Race & LawLeave a comment» on New Book on Sentencing and Corrections

I am pleased to report that my latest book, Prisons and Punishment in America: Examining the Facts, is now in print. Structured as a series of questions and answers, the book synthesizes the law and social science on sentencing, corrections, and prisoner reentry. Individual chapters cover:

  • Sentencing law and practice
  • Alternatives to incarceration
  • Experience and consequences of incarceration
  • Release and life after prison
  • Women, juveniles, and other special offender populations
  • Causes and significance of mass incarceration in the U.S.
  • Race, ethnicity, and punishment
  • Public opinion, politics, and reform

The book is intended to be accessible to readers who do not have training in law or social science, but I also hope that there are some aspects of the book that will be of interest even to those who are already quite familiar with the workings of the criminal justice system.

Two Supreme Court Experts Warn About Impact of Partisan Nomination Fights

Posted on Categories Political Processes & Rhetoric, Public, Speakers at Marquette, U.S. Supreme CourtLeave a comment» on Two Supreme Court Experts Warn About Impact of Partisan Nomination Fights

Two experts on the United States Supreme Court expressed concerns Thursday during an “On the Issues with Mike Gousha” program at Marquette Law School that the level of partisanship in confirmation processes for justices is causing damage to the court itself.

David A. Strauss, the Gerald Ratner Distinguished Service Professor of Law at the University of Chicago, said, “Things have become a lot more partisan in a way that I think is really damaging for the court as an institution.”

Strauss said, that, even though partisanship has long been a part of confirming court nominees, among senators overall, “there was a consensus that we really have to kind of make sure that we take care of the court.” That meant approving well-qualified candidates who would be respected and do their jobs well, with less attention paid to their partisanship. That has eroded, he said.

“I think it has taken a turn for the much more partisan,” Strauss said. ”What’s really troubling about it . . . Once that happens, it is very hard to dig yourself out of it.” Continue reading “Two Supreme Court Experts Warn About Impact of Partisan Nomination Fights”

Is it Time for More Than Just “Thoughts and Prayers”?

Posted on Categories Congress & Congressional Power, Federal Law & Legal System, Human Rights, Marquette Law School, President & Executive Branch, Public1 Comment on Is it Time for More Than Just “Thoughts and Prayers”?

This semester in Professor Lisa Mazzie’s Advanced Legal Writing: Writing for Law Practice seminar, students are required to write one blog post on a law- or law school-related topic of their choice. Writing blog posts as a lawyer is a great way to practice writing skills, and to do so in a way that allows the writer a little more freedom to showcase his or her own voice, and—eventually for these students—a great way to maintain visibility as a legal professional. Here is the first of those blog posts, this one written by 2L Michael Van Kleunen.

Since the high school shooting in Parkside, Florida, we have seen an arguably unprecedented response from citizens and politicians speaking out on the topic of gun control and the extent to which a policy should be implemented. However, the National Rifle Association (NRA) and other gun rights groups have maintained a strong stance against policies that limit the proliferation of guns in the United States, basing their argument on the Second Amendment.

These groups have profoundly affected political rhetoric and the subsequent legislative landscape for decades. Recent polls have shown a majority of Americans would like to see Congress pass some kind of gun control legislation. But why has it taken so long for such policies to move forward? One key reason is the amount of campaign contributions issued to politicians who occupy vital positions that, inherent in their position, facilitate the creation and passing of legislation. Continue reading “Is it Time for More Than Just “Thoughts and Prayers”?”

Supreme Court Navigates Two Water Disputes, With More On The Way

Posted on Categories Environmental Law, Public, U.S. Supreme Court, Water LawLeave a comment» on Supreme Court Navigates Two Water Disputes, With More On The Way

On Monday the Supreme Court heard arguments in two interstate water allocation disputes, Florida v. Georgia and Texas v. New Mexico and Colorado. The Court has also accepted a third such case, Mississippi v. Tennessee, and assigned it to a special master. The cases will force the Court to examine the The Rio Grande River near the USA-Mexico borderbalance between economic development and environmental protection, the federal role in state water disputes, and whether groundwater and surface water allocation should be governed by the same decisional rules.

The trio of pending cases belies the Court’s expressed preference for such disputes to be resolved by interstate compacts entered into pursuant to the Compact Clause (Article I, Section 10, Clause 3). It has previously commented that it approaches interstate water disputes with caution given the “complicated and delicate questions” involved, and has advised “expert administration [via a compact] rather than judicial imposition of a hard and fast rule.”[1] Nevertheless, in these cases at least, an old adage often attributed to Mark Twain trumped the Court’s advice: “whiskey is for drinking, and water is for fighting over.”

Continue reading “Supreme Court Navigates Two Water Disputes, With More On The Way”

Marquette Law Review Article Featured in Prescription Painkiller Exposé

Posted on Categories Congress & Congressional Power, Health Care, Marquette Law School, President & Executive Branch, Public2 Comments on Marquette Law Review Article Featured in Prescription Painkiller Exposé

In cooperation with 60 Minutes, the Washington Post has published a fascinating new story about the behind-the-scenes efforts of actors in the pharmaceuticals business to soften regulatory enforcement at the just the time that the nation’s opioid problems were reaching epidemic proportions. The story would be an engaging read for anyone, but Marquette folks may note a particular point of interest: the Post prominently quotes a forthcoming article in the Marquette Law Review.

According to the Post story, the federal Drug Enforcement Administration has long had authority to block suspiciously large shipments of prescription painkillers that pose an imminent danger to the community. In the late years of the Bush Administration and early years of the Obama Administration, the DEA became increasingly aggressive in using this authority to target businesses that were involved in questionable ways with the distribution of opioids. The Post reports that these businesses pushed back, initially finding some success through lobbying the Department of Justice. However, they seemingly had their greatest success when Congress passed, and President Obama signed into law, changes to the DEA’s enforcement standards and procedures.

This legislation is the subject of the Marquette Law Review piece, authored by John Mulrooney and Katherine Legel. Mulrooney is an administrative law judge with the DEA. Legel, a graduate of Marquette Law School, was a judicial law clerk with the DEA. Of the 2016 law, they write, “If it had been the intent of Congress to completely eliminate the DEA’s ability to ever impose an immediate suspension on distributors or manufacturers, it would be difficult to conceive of a more effective vehicle for achieving that goal.” This and other aspects of the law review article are noted in the Post’s reporting. Student-editors who have been working on the article should feel gratified to see the piece playing such a prominent role in the ongoing efforts of journalists, policymakers, and academics to better understand the multitude of factors that may be contributing to the current opioid crisis.

New Cases on the Constitutionality of Long Sentences for Juveniles: The Graham Saga Continues

Posted on Categories Constitutional Interpretation, Constitutional Law, Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing, Federalism, Public, U.S. Supreme CourtLeave a comment» on New Cases on the Constitutionality of Long Sentences for Juveniles: The Graham Saga Continues

In Graham v. Florida, 560 U.S. 48 (2010), the U.S. Supreme Court barred the sentence of life without the possibility of parole (LWOP) for crimes committed by anyone under eighteen years of age. Grounded in the Cruel and Unusual Punishments Clause of the Eighth Amendment, the Court’s holding recognized only one exception: juvenile LWOP might be permissible in cases involving homicide.

Despite its seemingly straightforward character, the Graham holding has spawned considerable litigation in the lower courts over its scope and application. Two interesting appellate decisions from last month highlight some of the difficulties.

In the first, U.S. v. Mathurin, the Eleventh Circuit had to consider whether a 685-month prison term should be treated as the functional equivalent of an LWOP sentence for Eighth Amendment purposes.   Continue reading “New Cases on the Constitutionality of Long Sentences for Juveniles: The Graham Saga Continues”

Should the Senate Give Advice and Consent on Special Envoys?

Posted on Categories Congress & Congressional Power, Constitutional Interpretation, Constitutional Law, International Law & Diplomacy, President & Executive Branch, PublicLeave a comment» on Should the Senate Give Advice and Consent on Special Envoys?

Potograph of an antique globe of the world showing the continents and nations circa the 1800s.Last month the Senate Foreign Relations Committee passed the Department of State Authorities Act, Fiscal Year 2018, part of which would effect a major change in the law of foreign affairs appointments. With Congress’s summer recess now coming to an end, it’s worth considering the constitutionality of the proposed change and contemplating the Trump Administration’s potential response.

The key provision concerns ad hoc diplomats. Section 301 would require the Senate’s advice and consent for the appointment of “any Special Envoy, Special Representative, Special Coordinator, Special Negotiator, Representative, Coordinator, or Special Advisor.” On my reading, accompanying language suggests that this requirement would apply regardless of whether the positions in question already exist, regardless of whether Congress has authorized them by statute, and regardless of whether appointments have already occurred. As an enforcement mechanism, Section 301 would bar the obligation or expenditure of funds for any covered position to which an appointment is made without advice and consent. The only exception is for positions that extend for short periods of no more than six months and are certified by the Secretary of State as “not expected to demand the exercise of significant authority pursuant to the laws of the United States.”

This strikes me as a pretty big deal. Anytime the President seeks to designate an envoy to address a pressing issue, he would have to obtain the Senate’s approval. The Senate would thus be statutorily positioned to vet a whole new class of nominees, scrutinize and publicly debate the policies these individuals will implement, and, in extreme cases, block appointments that appear problematic. An optimistic take is that such an arrangement would promote meritocracy and encourage greater deliberation in the use and selection of ad hoc diplomats. The more pessimistic view is that Senate involvement would interfere with the conduct of foreign relations by introducing an additional source of delay and partisanship.

Whatever one makes of the practical merits of Section 301, there’s a sensible constitutional objection: Article II confers on the President the power to conduct foreign relations, the executive branch has invoked this power to justify a common practice of unilateral diplomatic appointments, and Congress has largely acquiesced. Indeed, ever since the Foreign Service Act of 1980, Congress has expressly accepted that the President may appoint envoys without advice and consent for special missions of up to six months in duration, as long as the President notifies the Senate Foreign Relations Committee in advance. In purporting to end this practice, Section 301 arguably violates the separation of powers. Continue reading “Should the Senate Give Advice and Consent on Special Envoys?”

Right to Counsel: One Step Forward, Two Steps Back

Posted on Categories Constitutional Law, Criminal Law & Process, Federalism, Public, U.S. Supreme CourtLeave a comment» on Right to Counsel: One Step Forward, Two Steps Back

A photo of the Supreme CourtAs part of its end-of-term flurry, the U.S. Supreme Court issued three notable decisions in the past week on the criminal defendant’s right to effective assistance of counsel. The results were a mixed bag.

First, the step forward: in Lee v. United States, the Court strengthened the defendant’s right to accurate legal advice in relation to plea bargaining. Lee, a South Korean who resided lawfully in the U.S. for more than three decades, faced a federal charge of possession with intent to distribute ecstasy. His attorney advised him that he would likely get a lighter sentence if he pleaded guilty, but Lee was concerned that he would be deported if convicted; deportation, not prison, seems to have been his primary concern. Lee’s lawyer assured him that he would not be deported, so Lee agreed to the guilty plea. However, the lawyer was wrong — Lee faced mandatory deportation as a result of his conviction. When Lee found out, he sought to withdraw his guilty plea on the basis of ineffective assistance of counsel.

The lower courts rejected his motion. For Lee to show a violation of his constitutional right to effective assistance of counsel, he was required to demonstrate both deficient performance by this attorney and prejudice. The lower courts seemed to accept that Lee’s lawyer performed poorly, but held that Lee could show no prejudice since he had no viable defense if the case had gone to trial. In other words, even with better information, Lee would have been convicted and deported anyway.

The Supreme Court reversed, holding that prejudice can be established in some cases based on the lost opportunity to have a trial, without regard to the likely outcome of that trial. 

Continue reading “Right to Counsel: One Step Forward, Two Steps Back”

Supreme Court Dodges Long-Running Dispute Over Defendant’s Right to Psychiatric Expert

Posted on Categories Criminal Law & Process, Poverty & Law, Public, U.S. Supreme CourtLeave a comment» on Supreme Court Dodges Long-Running Dispute Over Defendant’s Right to Psychiatric Expert

A photo of the Supreme CourtThree decades ago, in Ake v. Oklahoma, the Supreme Court held that indigent criminal defendants have a constitutional right of access to a psychiatric expert in some cases. More specifically, the Court stated, “[W]hen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.” 470 U.S. 68, 83 (1985).

This seemingly straightforward holding has spawned a number of long-running disputes in the lower courts. Among the more important lingering questions is this: May a state satisfy its obligation under Ake by supplying the defendant with access to a neutral expert who is equally available to both sides, or must the state engage an expert who will truly serve as a member of the defense team? Of course, a wealthy defendant would almost always be well-advised to hire his own expert, rather than merely relying on a neutral, but Ake does not necessarily guarantee that poor defendants will have all of the advantages of their rich counterparts.

With the lower courts split on this question, the Supreme Court finally seemed poised to provide a definitive answer this term in McWilliams v. DunnHowever, when the Court issued its McWilliams decision earlier this week, the justices actually ruled in the defendant’s favor on quite narrow, case-specific grounds, leaving the big question about the acceptability of a neutral expert unanswered.

Whenever the Court gets around to answering the question — and, given the way that matters were resolved this week, McWilliams itself could well provide the vehicle on a return trip to the Court — the justices will confront a difficult issue that touches more generally on the role of experts in an adversarial system of justice, and even on the very nature of scientific knowledge.

Our ideal for science is objective knowledge. We hope that scientists will develop analytical methods that will invariably yield the same conclusion as to the same subject, regardless of who is doing the analysis.

If tests for mental illness are “scientific” in this sense, then there seems little unfairness in limiting the defendant to a neutral psychiatrist. The only way in which having an expert on the defense team might change the outcome would be if the defendant’s “hired gun” were dishonest or incompetent — and there surely cannot be a constitutional right to mislead the jury with bad science.

Thus, the claim that the defendant should have his own expert seems implicitly grounded in a belief — accurate, I should think — that psychiatric diagnosis does not always fit that ideal of wholly objective and indisputable conclusions. In the American legal tradition, of course, we look to adversarial process to determine the truth when there are two conflicting, but both still plausible, versions of reality available. Thus, if reasonable psychiatrists could differ over a defendant’s diagnosis, it seems natural to fall back on adversarial process and give each side an opportunity to make the best case possible for its version of reality, including with its own expert witness. We are accustomed to think that the truth will emerge from such an adversarial clash.

And, yet, there is something disquieting about this picture. When we ask a jury to choose between two competing stories about what a defendant did, we count on the jury to use its common sense and life experience to decide which version of reality is more plausible. But, when the question instead relates to what was going on in the defendant’s head, it is not so clear that common sense and life experience are up to the challenge. After all, the essence of the defendant’s claim is that his brain was not working in a way that is familiar to most lay people in their day-to-day lives. The very reason we bring experts to bear to try to deal with the issue makes lay jurors seem unqualified to pick between the two different versions of reality being presented.

There does seem a dilemma here. If we use only a single, nominally neutral expert, then the jury may be left with a sense in some cases that the science is more certain and one-sided than it really is. On the other hand, if we arm each side with its own expert, then we implicitly ask the jury to perform a task for which it is ill-equipped — adjudicating the scientific quality of competing expert opinions. There may be ways of alleviating the concerns — e.g., through use of a neutral panel of experts — but such approaches tend to raise cost and other practical difficulties.

Perhaps the conundrum helps to explain why the Court has not seemed anxious to resolve the big question that was posed by McWilliams.

Woman Interrupted: The Pernicious Problem That’s Not Just in Our Heads

Posted on Categories Federal Law & Legal System, Feminism, Judges & Judicial Process, Legal Profession, Political Processes & Rhetoric, Public2 Comments on Woman Interrupted: The Pernicious Problem That’s Not Just in Our Heads

On Tuesday, the Senate Intelligence Committee questioned Attorney General Jeff Sessions about his contacts with Russian officials in Washington D.C. and his conversations with the President about the Russia investigation or about former F.B.I. Director James B. Comey.

The hearing has been called “at times fiery” and Sessions’ testimony “highly contentious.” Indeed, several Democratic senators engaged in some testy back-and-forth with Sessions, with Oregon Senator Ron Wyden saying that Sessions’ answers did not “pass the smell test” and New Mexico Senator Martin Heinrich declaring that Sessions “[is] obstructing.”

But the grilling of Sessions that has probably received the most attention is that of California Senator Kamala Harris, a junior senator and former California attorney general. Senator Harris was questioning Sessions about his many non-answer answers at the hearing. Sessions claimed he was not answering due to long-standing Justice Department policy. Senator Harris pushed Sessions on this policy.

The New York Times described Senator Harris’ questioning style as “a rapid-fire . . . pace more commonly seen in courtrooms—a style that at times has her interrupting witnesses.” During her questioning, she was interrupted by both Arizona Senator John McCain and by North Carolina Senator Richard M. Burr, the chairperson of the Senate Intelligence Committee. Both men suggested that Sessions be allowed to answer. This was the second time in two weeks that Senator Harris has been interrupted by Senators Burr and McCain. Last week, she was interrupted by them while questioning Deputy Attorney General Rod Rosenstein. (Following the Sessions testimony, Jason Miller, a panelist on CNN, referred to Senator Harris as “hysterical,” most certainly a gendered analysis. CNN political analyst Kirsten Powers called out Miller’s gendered statement and pointed out how Miller believed neither Senators Harris (a woman of color) nor Wyden (a man) were “trying to get to the bottom of answers,” yet Miller called only Senator Harris “hysterical.”)

Earlier this year, during a Senate debate about Sessions’ confirmation as Attorney General, Massachusetts Senator Elizabeth Warren was interrupted and then formally rebuked by Senator Majority Leader Mitch McConnell for reading a 1986 letter from Coretta Scott King about then-U.S. attorney Jeff Sessions, who had been nominated at that time for a federal judgeship. The letter had criticized Sessions for using “the awesome power of his office to chill the free exercise of the vote by black citizens in the district he now seeks to serve as a federal judge.” (The Senate rejected Sessions’ nomination for that federal judgeship.) Later, three male senators read the same letter on the Senate floor, and none were rebuked.

Maybe Harris’ and Warren’s treatment is all about rules of decorum in the Senate. Decorum may be part of it; more than that, though, it appears to be the ages-old pernicious pattern of men interrupting women. It happens to most women, much of the time, in both personal and professional settings.

Continue reading “Woman Interrupted: The Pernicious Problem That’s Not Just in Our Heads”