Category Archives: Civil Rights

What Now?

As it all sinks in….at the polls yesterday, I heard from Democrats who were voting for Trump for a variety of reasons. I have looked at the preliminary exit poll data and the turnout numbers and think I have an idea of how this happened. The final cross tabs might change things but bottom line — people who NEVER vote came out in droves. And what they voted against was the same thing that gave Britain Brexit — their hatred of modernity.  So what do we do? While we organize (and re-read James Madison’s Federalist Paper #10) we wait somewhat quietly to see if in his first hundred days he DOES:

  • deport massive numbers of undocumented human beings,
  • ban Muslims,
  • repeal the Affordable Care Act,
  • add a Supreme who will vote to keep Citizen’s United, repeal gay marriage, ban all abortions even to save the life of the mother
  • cut taxes for only the weathly
  • leave NAFTA
  • et, al.

Because if he does, THEN we know the plan.

Also posted in Disaster, Donald Trump, Economy, Elections | Comments Off on What Now?

Supreme Court and Politics

no_more_hate (2)In setting up the federal judiciary, the Framers wanted to separate the judiciary from politics to a certain degree.  By giving judges and justices an unlimited term, judges would be free from having to decide cases on what is currently popular.  Not that the courts would be absolutely immune from politics, but the influence of politics on the courts would be that elections to the “political” branches would be in the choice of new judges and justices to fill vacancies.  The courts would be “conservative” in the sense of reflecting the values of the time at which judges or justices were appointed with a gradual change reflecting changes in those values over time through the appointment of new judges and justices.  (On the Supreme Court, nine of seventeen Chief Justices served more than a decade, and thirteen of seventeen served more than six years.  Of the Associate Justices sixty-eight of one hundred have served more than ten years, and another thirteen have served more than six years.)

The fact that federal judges do not have to stand for election does not mean that judges are not political or aware of politics.  To ask that judges not view close legal issues through a certain political philosophy and that judges not be aware of the potential impact of decisions on elections is asking too much.  However, the Supreme Court wants the public to perceive that they are above politics and would prefer that the Supreme Court rank somewhat low on the list of important issues in any election.  This desire to “lay low” has been reflected in pushing off the arguments on the most controversial cases until after the election (or even later for cases that might currently reflect a 4-4 split).  Even in terms of which cases are being granted for review later this year, the Supreme Court was avoiding cases that were likely to generate headlines.  That changed yesterday when the Supreme Court issued its order reflecting which cases it had just accepted for full review.  While none of the cases on the list are surprises in terms of the Supreme Court granting review, two of the cases are highly controversial — one dealing with transgender rights and the other with sex offenders and the First Amendment — and most expected the Supreme Court to push a decision on reviewing those two cases until after the election, particularly with the election controlling who gets to fill the current vacancy on the Supreme Court.

Continue Reading...

Also posted in Elections, Judicial, LGBT, Politics | Tagged , , , , | Comments Off on Supreme Court and Politics

A “Rigged” Election

animated flag glitterFor several weeks, Donald Trump has been spouting a lot about how, if he loses, it will because the election was “rigged.”  As discussed further below, in the sense of fraud and phony votes, it is almost impossible to rig an election.  However, as in the Republican primary, to the extent that the election is rigged in the sense of the rules favoring a certain candidate, the rules are almost certainly rigged in favor of Donald Trump.

The first and biggest way that the rules are rigged in favor of Donald Trump is the  electoral college.  As folks may remember from high school history or government class, a vote for a candidate for president is actually a vote for a slate of electors supporting the candidate.  Those electors then vote in December for the candidate on whose slate they ran.  A candidate needs to win 270 of the 538 electors to win.  Each state has a number of electors equivalent to the state’s representation in Congress — it’s House seats plus its Senate seats.  Because every state has two Senate seats,  the electoral college is weighted in favor of small states.  (If you have two House seats, you have twice as many electoral votes as House seats.  If you have fifty House seats, you only have four percent more electoral votes than House seats.)  Of the twenty-one smallest states (those with four or fewer House seats), Republicans have won twelve of the twenty-one states in the past four elections.  Of the nine states that have gone Democratic in one or more of the last four elections, four are considered swing states.

Continue Reading...

Also posted in Donald Trump, Elections | Tagged , , | Comments Off on A “Rigged” Election

Photo ID and the Courts

Vote!In recent years, the Supreme Court has had its version of an “election rule.”  The essence of this rule is that the Supreme Court does not like last second changes to the election process.  Regardless of whether the change comes from state election authorities changing the state’s procedure or a court decision resolving a challenge to those procedures, the Supreme Court prefers to “freeze” the status quo far enough in advance of the election so that voters know the rules and can take steps to comply with those rules.  Perhaps in response to this implied vague deadline (a little less implied in the case of Texas where the Supreme Court indicated that they would consider intervening in there was not a court decision by the end of July), the last several weeks of have seen court decisions in multiple cases involving multiple states seeking to impose a requirement that voters present photographic ID to vote in-person.

Also posted in Judicial | Tagged , , , , , | Comments Off on Photo ID and the Courts

Affirmative Action Survives — Barely

On Thursday, in a rather surprising turn of events, the Supreme Court upheld the admission policy of the University of Texas at Austin against a complaint that it unconstitutionally favored African-Americans.  This decision is surprising both because of the outcome, but also because of who wrote the opinion.

The basics of admission at UT is that the first cut of admissions comes from the “top 10%” program.  If you go to high school in Texas and finish in the top 10% of your school and want to go to UT, you are automatically accepted (actually due to the cap on the number of admissions under this program, it is now closer to a top 7% program).  This part of the admissions process fills about 75% of the slots.  If you are home schooled, or out-of-state, or finish outside the top ten percent (whether that is 4th out of a graduation class of 30 or 150th out of a graduating class of 160), you have to compete based on a combination of your academic index (your GPA plus SAT score) and your “personal achievement index” (a score based on the admission essay, extracurricular activities, demonstrated leadership, and other factors with race being one of the other factors).    Because race can impact the personal achievement factor, a white student who did not qualify under the top 10% program challenged her failure to make it under this second admissions process, claiming that it violated the equal protection clause of the fourteenth amendment.

Continue Reading...

Also posted in Judicial | Tagged , , | Comments Off on Affirmative Action Survives — Barely

Orlando

no_more_hate (2)This morning on the radio, they were asking for people to tweet whether the problem related to Orlando was whether there were too many guns, or not enough oversight on the mentally ill. How very, VERY, wrong a question.

The tragedy at Pulse has so many root causes, and so much blame to go around. I am struck by all the lives affected: the dead, the injured, their families, friends and co-workers, plus everyone who is LGBTQI. And I have questions. Many questions.

First, I have LGBTQI friends. I don’t think of them as L or G or B or T or Q or I — they are my friends. The people I share a meal with, dance with, go shopping with….just plain friends. I used to have a lot more gay male friends, sadly lost to what was then called GRID, before it was AIDS. I’ve watched the struggles over the years: the hiding before Stonewall, the discrimination, the beatings for having been born. The evangelicals say that we are all created in G-d’s image: how do they integrate their supposed love of G-d with their obvious hatred of those created in her image? Rumor has it that the shooter was “incensed” by seeing two men kissing. I don’t get it. Continue Reading...

Also posted in Notes from Your Doctor, The Politics of Hate | Comments Off on Orlando

Gender Identity, Bathrooms and the Courts

In recent weeks, the issue of gender identity as it applies to bathrooms in public schools has been in the news.  In particular, as the U.S. government has taken a position on this issue, certain (Republican-controlled) states have objected to the government’s position.  This objection (at least in the media) has not been on the merits — should students who identify as a different gender than their biological gender use the bathroom of their preferred gender identity or their biological gender — but rather attacking the federal government even taking a position.  This attack is both historically flawed and misrepresents what is taking place.

The history part of this discussion requires going back to 1865.  The United States government had just won the Civil War.  As part of the executive plan for reconstruction, the southern states had to abolish slavery, but otherwise were generally allowed to re-form their government with few restrictions.  These newly re-formed governments promptly enacted new legislation to greatly restrict the freedom of the former slaves.  In response, Congress passed a series of statutes and then proposed a new constitutional amendment (which became the Fourteenth Amendment) guaranteeing equal protection of the laws to all residents and authorizing Congress to pass legislation to enforce that guarantee.

Continue Reading...

Tagged , , , | Comments Off on Gender Identity, Bathrooms and the Courts

Supreme Court — Pending Opinions 2015-16

Now that arguments have ended for the term, the next seven weeks (starting on May 16) will focus primarily on  issuing opinions in the cases heard over the past seven months.  (There is also the small matter of deciding what cases to hear in the fall.  In the three months of argument since Justice Scalia died, the Supreme Court accepted a grand total of seven cases for the fall — the average over the past decade is 17-18.  With only twelve cases currently on the docket for the fall, there are approximately fifteen to twenty available argument slots.  Given the delicate balance on the court, the Justices may be stingy with grants over the next two months.)  There are currently, thirty-three cases still awaiting opinions.

It is still too early in the term to guess at who will have the significant opinions that still remain.  While there are decision in most of the cases from October-January, the death of Justice Scalia scrambles the number of cases that we would expect each Justice to have from these months.   (Justice Scalia would have been assigned at least one opinion in both months, but died before any of his December or January opinions were issued.  Those opinions would have been re-assigned.  Additionally, his death caused one of the January cases — the union dues case — to be affirmed on a 4-4- vote.  We do not know if Justice Scalia had that opinion or if Justice Alito had that opinion.    If Justice Alito had that opinion, he might not have been in the majority on the last case remaining from January.)  As I have discussed in the past, not every case that the Supreme Court hears is politically sensitive or a close call.  There are several potentially significant cases that will be a close call, and the absence of Justice Scalia may influence the results in these cases.

Continue Reading...

Also posted in Judicial | Comments Off on Supreme Court — Pending Opinions 2015-16

Supreme Court: First Amendment and Politics

The Supreme Court ended the argument portion of its term this week.  After taking its last two week recess, the remainder of this term will be about attempting to issue opinions in the argued cases.  The question remains how many of these cases will end up in 4-4 split or be rescheduled for reargument in 2017.   Both this week’s one opinion and the last argument of the term had a strong First Amendment component.

Also posted in Elections, Judicial, Money in Politics | Tagged , , | Comments Off on Supreme Court: First Amendment and Politics

Supreme Court — Immigration and Redistricting

This past week was the first week of the April argument session — the third since the death of Justice Scalia and the last of this term.  Next week will be the last three argument days of the term (with the last argument concerning the conviction of Former Governor Bob McDonnell of Virginia — with the primary issue being which type of  “favors” by a government official will support a conviction under the statutes involved).  After Wednesday, the remainder of the term will be issuing opinions and accepting cases for next term.  This week was bookended by two cases of interest to the issues covered by this site.  On Monday, the Supreme Court heard arguments on President Obama’s decision to defer deportation of certain unauthorized immigrants.  On Wednesday, the Supreme Court issued its opinion on the Arizona redistricting plan.

The issues in the case challenging the President’s immigration policy falls into three categories:  1) do the States have “standing” (the right to bring the case); 2) was the policy guidance the type of the decision that had to go through the formal notice and comment procedures of the Administrative Procedure Act (the rules governing the issuance of formal regulations); and 3) are some elements of the policy so contrary to immigration law as to constitute a violation of those laws rather than the operation of executive discretion in the enforcement of the law).  As shown by the transcript of the argument, the majority of the argument focused on the issue of standing.

Standing is a key concept in the law tied to the constitutional requirement that courts only decide “cases and controversies.”  The basic principle is that a person can only file a law suit if they are in some way “injured” by the action that they are challenging.  Thus, while you might not like the microbrewery in your town selling out to a big conglomerate, you do not have standing to challenge that merger unless you own stock in one of the two or can somehow demonstrate how that sale effects a legally-recognized interest that you have.  Traditionally, states have a right to sue on things that adversely impact their governmental interests, but do not have the right to sue because the voters of their state disagree with a decision.  When multiple parties join together in a case, the case can continue as long as one of them has standing.  In recent years, the conservative majority on the Supreme Court have taken a narrow view of standing — one of the many doctrines that conservatives have used to keep cases out of court. Continue Reading...

Also posted in Judicial | Tagged , , | Comments Off on Supreme Court — Immigration and Redistricting