United States v. Shipp (1906, 1909) was the first and only criminal trial ever held before the Supreme Court. The crime was contempt of the Supreme Court. The story is detailed in Mark Curriden’s 1999 book, “Contempt of Court: The Turn-of-the-Century Lynching That Launched a Hundred Years of Federalism“, and an excellent 2009 article in the ABA Journal, but here’s a quick overview:

In February 1906, in Chattanooga, TN, Ed Johnson stood accused of raping Nevada Taylor. Taylor was a 21 year-old white woman, and Johnson was a 19 year-old black man. Taylor had not seen her assailant, but papers reported the crime had been perpetrated by a “Negro brute” and a reward was announced for anyone who could bring forward information. Hixon, a white man, claimed he had seen Johnson in the vicinity of the crime. Johnson did not have a criminal record, and “[d]espite three hours of interrogation, Johnson maintained his innocence… He provided the names of a dozen men who could vouch for his whereabouts [at the saloon where he worked].” Johnson’s trial exposed significant holes in the prosecution’s case. Under cross-examination, it became apparent that Hixon was not in the vicinity of the crime when it took place. Later, Taylor was asked if she could swear Johnson was the assaulting party. “I will not swear that he is the man,” Taylor re­sponded, “but I believe that he is the Negro who assaulted me.”

Despite these problems, the prosecution obtained a conviction, and Johnson was sentenced to death by hanging. After losing an appeal with the Tennessee Supreme Court, Johnson’s lawyers filed a federal petition for a writ of habeas corpus–at the time an uncommon and largely unexplored appeal. Among other claims, it alleged that blacks had been systematically excluded from the grand and petit juries, and the trial produced numerous irregularities, including an attempt assault of the defendant by a juror. The District Court granted a stay of execution, and permitted an appeal to the Supreme Court. Johnson’s lawyers petitioned Justice John Marshall Harlan, the lone but fiery Plessy dissenter, who was assigned to hear interlocutory appeals from the 6th Circuit. Harlan granted the appeal before the whole Court on March 17, and two days later an order was issued by the Supreme Court ”that all proceedings against the appellant be stayed, and the custody of said appellant be retained pending this appeal.”

Upon news of the Supreme Court’s decision to hear the appeal, a mob swarmed the county jail. Johnson was brought to a nearby bridge and hanged. Unsatisfied by the speed of the execution, the crowd fired pistols at Johnson and he was shot 50 times. A man later identified as a deputy sheriff shot John­son five more times at point-blank range. He pinned a note onto Johnson body that read, “To Justice Harlan. Come get your n—-r now.”

The U.S. Attorney General William Moody charged the sheriff, Shipp, his deputies, and other mob leaders with criminal contempt and conspiring to break Johnson out of jail for the purpose of lynching him. The justices unani­mously approved the AG’s petition and retained original jurisdiction.

After a lengthy trial lasting two years (more temporal justice than Johnson received for his murder trial) Chief Justice Melville Fuller announced the decision of the court in 1909: ”Where a riot and the lawless acts of those engaged therein are the direct result of opposition to the administration of the law by this Court, those who defy its mandate and participate in, or who knowingly fail to take the proper means within their official power and duty to prevent, acts of violence having for their object to, and which do, defeat the action of this Court are guilty of, and must be punished for, contempt.” Shipp and the convicted co-defendants were sentenced to 60-90 days in federal jail in D.C.

The sentence may seem light to contemporary eyes, and Shipp et al. (disappointingly) returned to Chattanooga as a hero. But United States v. Shipp should be remembered more than wrist-slap, or a piece of legal trivia. It saw the Supreme Court personally exercise power to punish a community that actively defied its orders, helped clarify and advance the constitutional rights of prisoners, and served as “the genesis of federal ha­be­as corpus actions in state criminal cases.”

Image from ABA Journal. 

The progressive opinion appears to be that the move was spurred by anti-abortion proponents within the Komen Foundation. Jeffrey Goldberg, in the Atlantic stated that some insiders speculated that the rule barring funding for organizations under “investigation” was simply a pretext for defunding Planned Parenthood, in particular. Leaving aside the question of whether a Planned Parenthood was under a proper or relevant investigation, I think the more relevant issue is how does a charity committed to women’s health sever ties to one of the leading organizations advocating for women’s health without an investigation of the investigation, so to speak? I think the answer lies in the political climate at the moment, where the lines are being drawn between parties and there is a refusal to work together or reach across the aisle. In this climate, it has become easy to ignore the substance of the issue and look instead to symbols. Planned Parenthood has become a symbol of the fight for a woman’s right to choose, and as such, those who are opposed to the legality of that right have targeted that organization for investigations and continue to focus to the point that it may amount to harassment. However long this attitude has continued, it is time for it to stop. This back and forth about key issues used to be an important part of the electoral process, but now it has become simply a shouting match across aisles and blog posts. I hope that if nothing else, the fall-out from this controversy will show that important women’s health issues, such as breast cancer screenings, should not be used for political expediencies or to gain cheap political points, but instead should be the focus of all organizations dedicated to women’s health, no matter where they stand on the issue of choice.

For many people, the problem with what Nixon stated can be reduced to one fear: If being gay is a choice, then people may be asked, or even worse forced, to choose not to be gay. Tailored to a model defined by contemporary American constitutional law, LGBT advocates have adopted the mantra that sexual orientation is something which is fixed, which cannot be changed, and therefore, that it is wrong to discriminate against people on this basis.

For me, Nixon’s comments raise an interesting point. At last year’s Harvard Lambda Symposium (the annual conference run by Harvard Law School’s LGBT affinity group), a member of the audience asked when the idea of choice had disappeared from LGBT culture. She recalled her activist work in the 1960s and 1970s, describing how empowering it felt – not just because she and her colleagues were helping to create a new movement, but also because, in doing so, she believed that she was making a positive choice: who to date, who to love and how to live her life.

Listening to the audience member, I thought of the many compromises, which sexual orientation advocates have had to make while pursuing greater rights. Bringing gay and lesbian identity into the framework of constitutional law is undoubtedly an effective way of extending legal protections for some, but it may also radically restrict the agency of other persons, especially those who, like the audience member, view their sexual orientation as an expression of choice.

Immutability also fails to address the root problem of this entire conversation: the notion that being homosexual is something, which should be avoided. If, in the near future, scientists discover that there is indeed a “gay gene” (and thus that being gay is not technically immutable), could we justify laws, which would require the removal of that gene? In other words, does immutability foster a legal culture that will only tolerate homosexuality as long as it has to?

Surely a progressive legal doctrine does not merely permit exceptions for a person because he or she is gay, but rather affirms that being gay is in no way a bad thing and celebrates the right of the person to express their sexual orientation as a matter of choice.

This is but an inevitable fallout of Twitter’s expansion into countries which have—as Twitter delicately puts it—”different ideas about the contours of freedom of expression”.  Nor is this true only for your garden-variety dictatorial and megalomaniacal regimes, but also in many democratic nations.  For instance, tweeting about Holocaust denial could get you in trouble in France and Germany, as might violating a super-injunction requiring the media to refrain from naming certain persons in Britain.

It is still too early to gauge how the policy will work in practice, how successful netizens will be in evading or manipulating such restrictions, and whether Twitter’s commitment to upholding free speech values will remain sufficiently robust.  Some consolation can perhaps be derived from the fact that Twitter already does censor tweets, with commentators pointing out that the new country-specific censoring may allow them to censor less.  Currently, when Twitter takes down content, it has to do so globally.  It will now take down the tweet for people with IP addresses that indicate that they are in that specific country, and leave it up everywhere else.

Nor is Twitter’s policy a complete outlier either—many online services do the same, including Google’s Orkut.  Apple has come under fire for blocking “offensive” Dalai Lama related apps from its store in China, and Facebook has previously disabled protest groups.

Of course, the fact that two countries with trenchant censorship regimes—Thailand and China (where Twitter is, ironically enough, blocked completely)—have lauded Twitter’s announcement presumably doesn’t make things easier for Twitter’s public relations team.

In spite of this error, the proposed amendment to Oklahoma’s constitution is still disconcerting. It would remove the Oklahoma Supreme Court’s jurisdiction “over the constitutionality of laws enacted in this state.” In its place, the bill proposes an “Ad Hoc Court of Constitutional Review.” This would make Oklahoma the only state where the Supreme Court, or equivalent (I’m looking at you, New York Court of Appeals!), is not also the constitutional court.

Particularly troubling, though, is that Oklahoma’s constitutional authority would be an ad hoc body, something that Alexander Hamilton rejected out of hand in The Federalist. Of whom would this court be composed? Judges? Lawyers? Legislators? Lobbyists? Who would appoint these people? For how long would this court sit? Who knows?! The bill remains mum on these important points. Sen. Ralph Shortey, the author of the bill, is not just a Republican, but a far-right Republican who has supported, among other things, a bill to require presidential candidates to provide proof of birth citizenship and drafting state immigration legislation like Arizona’s.

Sen. Shortey introduced the bill around the same time that Newt Gingrich declared that he would ignore the U.S. Supreme Court if he felt it made “a fundamentally wrong decision.” Disdain for the judiciary has been a plank in conservative Republicans’ platforms, from Gingrich to Herman Cain, Michele Bachmann, and Rick Perry. The perception that dictatorial judges are out of control serves only to help this amendment at least get on the ballot.

The conflict between states and the federal government is the strongest it has been since the 1830s, when some southern states declared their ability to “nullify” acts of Congress with which they disagreed. Nullification today takes the form of states refusing to enforce the Patient Protection and Affordable Care Act and states like Arizona passing immigration laws that go beyond what Congress has authorized. Attempting to rein in what they perceive to be an “activist” judiciary is conservative Republicans’ latest way of attempting to defeat a rising tide of liberalism. Sen. Shortey’s bill, though, is the most innovative way I’ve yet seen of tamping down on judicial review. The bill’s remarkable lack of clarity opens the door for uneven enforcement of the state’s constitution and packing the ad hoc constitutional court with whomever the most powerful faction wants, effecting control over what the constitution means.

Should this pernicious amendment succeed, expect it to be picked up by other states where the minority political party would love nothing more than to gain control of the state’s constitution.

Despite complaints about burgeoning big government, the number of federal employees has remained constant over the last 30 years, a period that starts with the supposedly small government Reagan presidency.  The United States population and federal spending have both grown substantially over that period, and federal spending as a percentage of GDP has remained constant, at least before the 2008 bailouts.  State and local government employment has increased by over 50% in the same period.  So what explains the stagnant employment numbers in the federal sphere?

One answer is that almost all of the increases in government spending, at least relative to GDP, have come in the form of entitlements, interest spending and the military.  Although at first blush, these seem like three places where increases in federal spending may not be reflected in higher employment, only interest payments actually work this way.  Entitlements might look basically passive, but as anyone who’s ever dealt with an insurance company knows, there are lots of people involved in providing these kinds of services and administering hundreds of billions of dollars requires oversight.  Employment at SSA and HHS totals 6% of federal civilian employment.  Although soldiers are excluded from this survey, the Departments of Defense, Veterans Affairs and Homeland Security constitute about 57% of all federal civilian employment.

This suggests that increased employment in these departments has been offset by job cuts in other executive branch agencies.  The elimination of AFDC and the increased use of categorical and block grants to states probably has a lot to do with the pattern of federal and state employment: much of the increase in federal government spending is likely administered through the states, such as via Medicaid.

Another thing that might be worth considering is the adoption of computers and other information technology during this time period.  This created huge productivity gains across the private sector and it would be silly to think the federal government didn’t capture some of those gains as well, which could have eliminated quite a few jobs.  Much like the technology driving jobless recoveries, the federal government has learned to make do with fewer employees.  Those complaining about overpaid government workers should realize that the government behaves like a private firm in many ways, while those trumpeting the virtues of public sector unions should worry when even they can’t protect jobs.

The Supreme Court’s decision involved a “ministerial” teacher at a religious school who was fired after taking leave for an illness and then threatening to sue under the Americans with Disabilities Act. The teacher worked at a Lutheran school and was an ordained minister, which meant she had some duties that “lay” teachers lacked. The Court unanimously held that the First Amendment gives rise to a “ministerial” exception to federal anti-discrimination laws.  “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.” The Court declined to decide whether the exception applies to non-minister employees.

Some have suggested that this case does not bode well for the Affordable Care Act’s requirement that employer-provided insurance cover certain preventive treatments, including contraception. Catholics oppose this requirement, and two institutions have sued the federal government. This case, however, does not tell us much about how the Court would decide such a case. The Court’s holding merely recognized that the government cannot tell churches whom to employ as ministers.
The Sixth Circuit case involved a counseling student enrolled in a clinical practicum at a state university. The student was expelled after she requested that a homosexual client be referred to another student, due to her religious objections to homosexuality.  The court reversed a grant of summary judgment for the university, ruling that there was an issue of fact as to whether the student’s request actually violated the school’s anti-discrimination policy. The court noted that the school’s policy seemed to permit “values-based” referrals, though the university claimed otherwise.  The Sixth Circuit accused the university of discriminating against the student for her Christian beliefs.  “Tolerance is a two-way street. Otherwise, the [school's policy] mandates orthodoxy, not anti-discrimination.”

If gay rights advocates are alarmed at this case, they can take solace in a recent 11th Circuit decision. That court ruled that a university did not violate a counseling student’s freedom of religion when it expelled her for her intent to practice “conversion therapy” on homosexual clients. The counseling industry’s ethics rules require counselors to avoid imposing their own values on clients. So while the Sixth Circuit plaintiff merely sought to avoid counseling gay clients, this plaintiff sought to “cure” her gay clients by imposing her beliefs on them.

As Tom Goldstein from SCOTUSBlog has noted, the common reading that the majority would require a warrant to be issued for a GPS tracker is not precisely correct. The majority holds only that it is a “search”, and in fact the government can conduct many searches without warrants, e.g. a Terry stop. Nor did the Court expressly allow the use of GPS tracking devices without warrants. The majority expressly did not pass judgment on the government’s argument that even if the installation was a search, the officers had “reasonable suspicion,” finding that  the argument had not been sufficiently raised in the lower courts.

Despite arriving at what many consider to be a laudable result, the Court has been criticized for not going far enough in protecting the public from invasions of privacy using modern technology. Specifically, Scalia’s majority opinion relied on an ancient “trespass” theory, and found troubling the government’s physical occupation of private property when it installed the device on the underside of Jones’ car. This, of course, leaves open the question of what the Court would rule when there is not a physical trespass. An editorial in the New York Times complained: “The view of a five-justice majority is that the ancient legal concept of trespass is sufficient to prohibit the intrusion in this case. But a persuasive concurring opinion for four justices makes plain why that concept is unsuitable for addressing 21st-century technology.” And the Washington Post groused: “We agree that the government impermissibly trespassed on Mr. Jones’s property, but by stopping its analysis there, the majority dodged the more important questions regarding what limits should exist when police organizations rely on this powerful and potentially intrusive technology.”

Justice Alito’s dissent, joined by three other justices, argued “it is almost impossible to think of late-18th-century situations that are analogous to what took place in this case.” The dissent explained how the majority’s holding would not protect long-term vehicle tracking of other means: an airplane (or UAV?) following the vehicle, the car manufacturer installing GPS trackers in every car, or the government acquisition of cell-phone GPS data.

Yet whether the Court applied the majority’s 18th-century view of property rights, or a the minority’s 21st-century understanding of GPS technology, the likelihood remains that no present rule of the Court could likely be used to satisfactorily protect our privacy even for the next twenty years, much less into the 22nd-century. The rate of technological innovation outpaces legal control because judge-made law is reactionary, even more so than legislation. And who can foresee what tracking methods the future might bring? In their dizzying novelty, they exceed the imagination of today’s Court to envision, and the ability of today’s Court to preempt. The courts must at times rely on legislatures to adapt to changing realities, rather than contort old theories to fit new technologies, or announce new ones to cover every new invention. As the dissent pointed out, the solution to the wiretapping conundrum was not a well-articulated Supreme Court ruling, but comprehensive Congressional enactment.

Commenting on the Supreme Court’s Bilski v. Kappos (2010) decision rejecting the patentability of a method for hedging in investments, famed IP litigator Morgan Chu noted that the Court had been criticized for “punting” and not creating a new bright-line rule for patentability. An alternative reading, Chu suggested, was that Bilski was an exercise in judicial modesty, and an awareness that the Court’s rule would affect industries it had never considered, and in fact industries that had yet to be created. Viewed in the same lens, Jones‘ narrow ruling may be a recognition that the Court is not competent to predict the next tracking technology. Instead of creating theories to explain GPS tracking, as it did with wiretapping and beeper surveillance before, saddling future litigants with analogies to obsolete devices, the Jones court may be conservatively leaving a vacuum for Congress to fill. As Jeffrey Rosen points out in The New Republic, Congress can and should act to regulate GPS tracking technology, and some Senators have already proposed doing just that.

As in Bilski, the Jones court may have foregone bold trailblazing for judicial modesty. We can now hope that Congress is up to the task of quickly responding to challenges posed by new technology, with recent legislative debacles serving as the exception and not the rule.

Thanks to tuchodi for the image. 

Ahlquist and the ACLU eventually filed suit demanding that the City of Cranston, Rhode Island, and its School Committee “remove or alter” the Prayer Mural.  The Establishment Clause of the First Amendment to the U.S. Constitution, as incorporated against the States by the Fourteenth Amendment, prohibits any law respecting the “establishment” of religion.

In January 2012,  U.S. District Judge Ronald Lagueux ruled in Ahlquist’s favor in a 40-page “slam dunk opinion”.  The Defendants had disputed Ahlquist’s standing to bring the suit, claiming that she must demonstrate a real and actual injury-in-fact in order to establish proper standing; a mere philosophical or political disagreement would thus be insufficient.  Judge Lagueux rejected the claim, pointing out that under current Supreme Court precedent, Ahlquist’s status as a student enrolled at Cranston West would suffice to confer standing in a dispute pertaining to a prayer displayed in the school.  Ahlquist formed part of a “captive audience” routinely subjected to the mural’s religious message.

Regarding the substantive aspect of whether the display infringed the restrictions inherent in the Establishment Clause, Judge Lagueux applied the test enunciated by the Supreme Court in  Lemon v. Kurtzman, 403 U.S. 602 (1971).  In order to survive an Establishment Clause challenge,  a governmental practice, or legislative act,  must: “(1) reflect a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) it must avoid excessive government entanglement with religion.”  A review of the 50-year history of the display established that it had a purely religious purpose. As Judge Laguex put it, “no amount of debate can make the School Prayer anything other than a prayer, and a Christian one at that.”  As regards the second prong in the Lemon test,  the Prayer Mural indubitably espoused important moral values, yet it did so “in the context of religious supplication”.  Finally, the Mural had resulted in impermissible entanglement between the School Committee and religion, in the sense that a significantly lopsided majority of the Committee’s members had spoken repeatedly and passionately, in religious terms, in favor of retaining the Prayer Mural.  Judge Lagueux also found that the display was an unconstitutional “endorsement” of religion and also amounted to coercive pressure, however subtle, given the context and impressionable age of high-school students.

More worrisome than even the actual violation has perhaps been the vitriolic and distasteful allegations leveled at the teenager ever since she began her quest to enforce her constitutional rights to be free from such governmental endorsement of religion.  State Representative Peter Polombo recently called Ahlquist “an evil little thing,” a “clapping seal” and a “pawn star” on a talk radio show.  She has also reportedly received threats of physical harm, and has been the subject of deplorable vitriolic outbursts in the blogosphere and on social networking sites.

Coalition for Equity and Excellence is a Title VI and Equal Protection lawsuit alleging that “separate and unequal” persists in Maryland’s higher education system – and specifically that the state has failed to sufficiently fund and support Maryland’s historically black institutions (HCBU’s) to offer educational experiences equivalent to the state’s traditionally white institutions. The plaintiffs are asking the court to order changes in funding guidelines, reallocation of resources, and sufficient support to ensure parity in educational opportunities.

The Maryland state college system includes four HBCU’s – Morgan State, Coppin State, Bowie State, and University of Maryland Eastern Shore. The Maryland HBCU’s were established when the state university system was segregated. Today, their student bodies are still majority African-American.  Morgan State, located in Baltimore, is experiencing serious physical plant issues.  And Coppin State, also located in Baltimore, has the lowest graduation rate in the Maryland higher education system – recently increased from 13% to 15%.

The foundational civil rights cases in higher education (Sweatt v. Painter, McLaurin v. Oklahoma) date back even before Brown. But the issues surrounding the Maryland HBCU trial are very contemporary. For example, the case comes at a time when recent college graduates face a high unemployment rate and fierce competition for jobs – but also a time when state governments, including Maryland, are strapped for cash. Plus, the connection between funding levels and quality of public secondary schools serving minority students continues to be a key issue in education. Financing for state higher education is closely related – colleges with a large proportion of students who graduate from low performing public schools must devote more resources to support and remediation. And, the case goes to trial during a presidential administration which, by many accounts, has strengthened federal enforcement of civil rights (That is significant because a key issue of contention in the Maryland HBCU case is the parties’ disagreement as to whether Maryland complied with a 2000 agreement with the Office of Civil Rights of the U.S. Department of Education.).

I’ll report back later on trial developments and the eventual outcome of the case (I think settlement before the verdict could still happen.).