Posts tagged Supreme Court
Affirmative action, intended to promote wound healing, has instead deepened already-existing racial wounds in all the countries where it has been tried.
The United States’s discontent with affirmative action was catalyzed 35 years ago. To me, the Burger Court decisions made sense at the time, but history has shown that most of the actions of the Burger Court (Warren Burger served as Chief Justice from 1969–1986) made our problems worse, rather than settling them. Whether this is because of the nature of the decisions (including abortion, Presidential/executive authority, and affirmative action) or because the Court got ahead of public opinion is left as an exercise to the reader.
In 1978, the Supreme Court “decided” Regents of the University of California v. Bakke, ordering the University of California at Davis Medical School to admit Allan Bakke. It was a complicated case, leading to a deeply divided decision: one four-member group felt that the university’s affirmative action policy was indefensible under the Civil Rights Act of 1964, while another four-member group supported the use of race in admissions. Justice Lewis F. Powell Jr. thought that race was permissible as one of several criteria, but that it could not be the sole criterion. While agreeing with the minority that partially race-based admissions were permissible, Powell made the majority by splitting the baby, saying that the UC-Davis policies which relied solely on race were in violation of the Civil Rights Act, but that race might be used as a criterion in the presence of many others. Therefore, Powell wrote for the “majority”, officially 5–4 in favor of overturning the UC-Davis criteria.
In a number of subsequent cases, the swamp continues to fill with murky, smelly water and no one is happy with the outcome. Maybe the problem is the underpinnings of affirmative action. Maybe a fresh approach is called for.
Is affirmative action a noble but failed experiment?
Is it time to scrap affirmative action?
A “leader” (Op-Ed piece) in this week’s Economist argues that it is.
I highly recommend the article. Go ahead and read it now. I’ll wait. (more…)
The Supreme Court will today heart oral arguments in Salinas v. Texas. This case will address an enormous outstanding question on Fifth Amendment rights. We all know that someone accused of a crime in American is allowed to remain silent both during questioning after being arrested, and at trial. The question is, do the same rights against self-incrimination apply before an arrest and an accusation is made? As was asked in a 1980 decision, the Court has not yet ruled on “whether or under what circumstances pre-arrest silence” while being questioned by law enforcement is entitled to protection.
The question before the Court is pretty straightforward:
Whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.
Is the Constitution a living document, or a dead one? The courts must constantly consider whether the “original intent” of the Constitution’s authors limits interpretation to the exact words on the page, or whether that “intent” can reasonably be extended to changes in technology and science, even culture and economics.
Sometimes, a consideration of “intent” with a change in technology stands at the heart of a case that reaches the Supreme Court. As examples, arguments about First Amendment rights and intellectual property are complicated by the invention of the Internet and by the creation of digital media. How far does copyright law reach into works that can be copied with the simple click of a mouse — or works made available on the Internet that can only be accessed by copying them from a web server to a user’s home computer? The Founders never thought about the Internet.
A quantum leap in technology can open new questions about individual rights. The drafters of the Constitution never envisioned DNA analysis being used in criminal proceedings. DNA is routinely used today, and DNA samples are now taken by many states as a matter of course, stored in databases, and used, sometimes years later, as evidence in unrelated cases. Does taking DNA samples without permission violate the rights of the individuals from which they are taken? When does a consideration of public safety override the rights of an individual? (more…)
It sounds like the start of a joke. It led to a murder, and is ending with a case before the U.S. Supreme Court.
The constitutional question before the Court deals with the Great Writ of Habeas Corpus, “which right the American Founders considered most basic, that is, indispensable to securing all the others.” The most important and fundamental right we have as Americans is not the right to bear arms, nor the right to assemble, nor freedom of the press or of religion or even of speech. It is “the Great Writ, which in 1969 the Supreme Court called ‘the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action’.”
Rights of habeas corpus have been recognized at least as far back as the fourteenth century. Habeas corpus is a Latin term which, freely translated, means, “Who has the body?” In this case, the “body” in question is not, as one might suppose, the body of a victim of a crime. No, the “body” here is the accused person.
The Great Writ of Habeus Corpus is a legal doctrine which says, in essence, that the government is not allowed to keep someone in custody without being able to show just cause. In other words, a person cannot simply be held without charges, without due process, or in violation of reasonable rights. If you’re held by a law-enforcement agency, they have to prove they have good reason to hold you.
The issue before the Supreme Court today deals with this most basic of human rights. Can the government hold an innocent man — or even prevent someone from being able to present his argument for innocence — simply because he waited too long to ask permission to prove he’s innocent? Would holding a person under such conditions violate the right of habeas corpus?
The Court will decide in the case of McQuiggin v. Perkins whether a convicted murderer may be denied the right to challenge that conviction because he didn’t mount his challenge within a predefined time frame, even when he claims to be able to show his actual innocence. (more…)
Imagine a prison guard at a federal prison rapes an inmate. Can the United States be held responsible for that guard’s actions?
That is the question before the Supreme Court today. There are situation in which the government can be sued when a prison guard, acting within the scope of his or her employment, commits an “intentional tort” — that is, knowingly and purposely violates the civil rights of an American citizen. When not on duty, a prison guard can be sued like anyone else for harming another person (for instance, by raping someone), and the government is not liable then. Is the government ever liable when an employee is on duty and doing an assigned job, but somehow abuses the power entrusted to that employee?
The answer is: usually not. The government normally can’t be sued due to the actions of a government employee who is doing his or her job, even if that person does something which would normally be illegal. This is called “sovereign immunity”.
But when on duty, and when exercising the authority granted by being a prison guard, the government sometimes, in certain circumstances, is considered liable for the actions of that guard. This is called “a waiver of sovereign immunity.”
The question here is whether the government can be held liable for sexual assault when the guard is not specifically exercising authority to “execute searches, to seize evidence, or to make arrests for violations of Federal law.” (more…)
One of the most important cases of this year’s docket is up for argument before the Supreme Court today. At issue is whether the Equal Protection clause of the Fourteenth Amendment permits consideration of an applicant’s race a one of many elements in accepting or rejecting college admission applications. This case could decide the fate of affirmative action laws, not only in college admissions, but in the fields of hiring and federal contracting as well.
Section 1 of the Fourteenth Amendment is below, with the Due Process and Equal Protection clauses highlighted:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Equal Protection clause thus requires each state to provide equal protection under the law to everyone within that state. The Supreme Court used this requirement in Brown v. Board of Education (1954) to order the desegregation of American schools. Fisher v. University of Texas will determine if this requirement still stands. (more…)