Posts tagged Supreme Court

Negative Action

9
1 week ago
by Monotreme in
Zero-Sum?

Zero-​​Sum?

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…)

Supreme Court Watch: Salinas v. Texas

59
3 weeks ago
by dcpetterson in

When do you have this right?

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.

(more…)

Supreme Court Watch: Maryland v. King

22
2 months ago
by dcpetterson in

mr_dnaIs 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…)

Supreme Court Watch: McQuiggin v. Perkins

7
2 months ago
by dcpetterson in

409px-L&H_Habeas_Corpus_1929These three guys leave a party…

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…)

Supreme Court Watch: Millbrook v. United States

12
2 months ago
by dcpetterson in

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…)

Supreme Court Watch: Fisher v. University of Texas

45
7 months ago
by dcpetterson in
English: Sonia Sotomayor, U.S. Supreme Court j...

Not Appear­ing in This Case

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…)

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