Articles Posted in Constitutional Law

Justia columnist and Cardozo law professor Marci Hamilton comments on a little-remarked but important aspect of the recent Supreme Court decision in United States v. Windsor: the limits of the decision. For instance, she notes that gay people were not granted a constitutional right to be married in any state by the decision. Moreover, Hamilton points out that, despite the decision, there are only 14 jurisdictions, including the District of Columbia, where gay people will be able to marry, and where they also will be able to receive the identical federal benefits received by heterosexual couples. And, in the 37 states left to persuade, federal benefits for married couples can be limited to heterosexual couples. Thus, Hamilton notes that we are far from true equality for gay Americans.

Justia columnist and Hofstra law professor Joanna Grossman comments on the Supreme Court’s recent decision in United States v. Windsor, holding that the federal Defense of Marriage Act (DOMA)—passed in 1996 in haste to ward off same-sex marriage in the states—is unconstitutional. Grossman chronicles DOMA's history; discusses challenges to DOMA Section Three; and explains why Windsor was the perfect test case for DOMA. She also covers the standing issue, in addition to the merits questions discussed by the majority opinion and the dissent.

Justia columnist and Cornell law professor Sherry Colb comments on a Maine Supreme Court case regarding a child who was born male, but identified as a girl (“Susan Doe”). Susan’s school allowed her to use the girls’, rather than the boys’ bathroom, until a student’s grandfather complained, and Susan was required to use a separate, staff-only restroom that no other students used. Colb discusses the arguments—pro and con—for allowing Susan to use the girls’ bathroom at the school, just as other girls would.

Justia columnist and Cardozo law professor Marci Hamilton comments on the Supreme Court’s 5-4 decision in Shelby v. Holder, the Voting Rights Act case that the Court just resolved. Section 4(a) of the Act establishes a formula to be applied to identify jurisdictions that must obtain preclearance before they change their voting practices. Hamilton considers the majority and the dissent, and contends that coverage of the decision features a drastic overstatement of both the Court’s decision and its likely fallout.

Justia columnist and Hofstra law professor Joanna Grossman critiques the Supreme Court majority opinion in Vance v. Ball State University. There, Grossman explains, the Court majority held that a harasser does not qualify as a supervisor unless he or she has the power to “take tangible employment actions against the victim”—also known informally as having the power to hire and fire. This ruling matters in important ways, Grossman explains, because the employer’s liability under Title VII of the Civil Rights Act of 1964 for workplace harassment committed by supervisors is much stronger than it is for harassment inflicted by co-workers. Accordingly, the ruling leaves some workers with less protection from harassment than they would have had, if the Court's minority had had its way. Grossman also covers Justice Ginsburg's dissent, which she finds very persuasive.

Justia columnist and attorney Julie Hilden comments on a new Texas measure that will become law if Governor Rick Perry signs it. As Hilden explains, the bill at issue—a kind of retraction statute—would allow publishers to limit the damages that can be received by plaintiffs in libel lawsuits if the plaintiffs at issue did not request a correction to, or a retraction of, the offending material. Hilden praises the bill, but also asks whether, with so many and varied media, and the pervasive influence of Google searches in amassing facts and viewpoints on a particular topic, we still need retraction statutes at all.

Justia columnist and U.C., Davis law professor Vikram David Amar offers thoughts on what we may expect to see in the Supreme Court’s ultimate ruling on Proposition 8. Among other points, Amar cautions that we should not expect a definite resolution of the federal constitutional question of same-sex marriage. He also describes some of the narrower options for which the Court might opt instead, and in some instances, the likelihood of particular options being chosen.

Justia columnist and Cornell law professor Michael Dorf comments on Monday’s Supreme Court ruling, Arizona v. Inter Tribal Council of Arizona. There, as Dorf explains, a mostly united Supreme Court rejected Arizona’s efforts to require voters to provide documentary evidence of their U.S. citizenship in order to register to vote in federal elections. Dorf highlights three key features of the case: (1) the Court did not divide ideologically; (2) the majority opinion affirms a principle of broad federal preemption with respect to federal regulation of voting; and (3) the Court left open the possibility that states—including Arizona—could circumvent the Court's ruling.

Justia columnist and Cornell law professor Sherry Colb comments on the Supreme Court’s recent decision upholding a Maryland law authorizing the collection of DNA samples from people who are arrested for violent crimes, and Justice Scalia’s dissent to that decision, raising Fourth Amendment concerns. She covers the three main points of the majority’s decision, and the three main points that the dissent raised, examining the logic and persuasiveness of each.

Justia columnist and Hofstra law professor Joanna Grossman explains the specific provisions of, and the keen need for, the bill that Governor Cuomo of New York has recently proposed, which is entitled the Women's Equality Act (WEA). Pointing to two hypothetical babies, a boy and a girl, Cuomo notes that the girl's life will be marked with risks and forms of discrimination that the boy will never have to suffer. The bill, Cuomo contends, will help level the playing field for girls and women, via changes in the law in ten different areas, each of which Grossman comments upon.

Justia columnist and attorney Julie Hilden comments on the new Connecticut law, banning the release of crime-scene photos and videos from the tragic massacre that occurred at Sandy Hook Elementary School, in Newtown, Connecticut. Hilden covers the key Supreme Court decision related to the new law, and questions whether future generations—acclimated to Facebook and to broad disclosure of personal material—may change the default rules in this area of law, and if so, how.

Justia columnist Vikram Amar and Justia guest columnist Alan Brownstein, both U.C. Davis law professors, comment on last week’s Supreme Court grant in Galloway v. Town of Greece, a case which raised the question whether it is constitutional for a Town board meeting to begin with a prayer that—while the Town claims that anyone can deliver the invocation—has in practice nearly only been delivered by Christian clergy. Amar and Brownstein agree with Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit that the Town’s practice constitutes an unconstitutional establishment of religion, and thus violates principles of religious equality. But they also contend that there is another important constitutional issue here, regarding religious liberty, as well, and they focus their column on that issue. They also contrast the roles of Town Boards and of State Legislatures in this context, and note why analogies to public schools are inapposite here.

Justia columnist and Cornell law professor Michael Dorf explains the complex situation regarding the New Jersey Senate seat that was held by Frank Lautenberg, who just recently passed away. Lautenberg was a devoted Democrat, but now a Republican will name his immediate successor, who will then have the advantage of incumbency in the next election. Dorf explains how and why this somewhat odd-seeming sequence of events occurred, and explains the role that the U.S. Constitution’s Seventeenth Amendment, in conjunction with New Jersey law, played here. Dorf also contends that there are far better ways than this to fill Senate vacancies, and describes one such system.

Justia columnist and former counsel to the president John Dean comments on how certain presidents—specifically, Nixon, Bush, and Obama—have respectively chosen to deal with national security leaks. Most strikingly, Dean notes that President Obama still fully embraces an only slightly modified Bush/Cheney viewpoint on dealing with leaks of national security information. And that Obama position, Dean points out, is quite notable, since such thinking can be traced directly to Richard Nixon’s infamous “Plumbers.” In the column, Dean also tells the story of the original “Plumbers,” to illuminate the parallel. Dean will continue his series on this topic with Part Two on June 14, here on Justia’s Verdict.

Justia columnist and Cardozo law professor Marci Hamilton discusses a church/state case that the Supreme Court has recently taken up, which concerns the question whether a town board may constitutionally open its meetings with prayer. Hamilton predicts that this case will be a landmark Establishment Clause battle, and a key development in America’s ongoing culture war over control of government programs and spaces, and of American culture itself. In addition to analyzing prior Establishment Clause precedents that are relevant here, Hamilton suggests where each of the Justices is likely to fall on the possible spectrum of views, and votes, regarding the Town of Greece case.

Justia columnist and U.C., Davis law professor Vikram David Amar comments on a very recent Supreme Court administrative law opinion, Arlington v. FCC. First, Amar explains the key doctrine of Chevron deference, which was established in an earlier Court precedent, and was central here. He also comments on the Court’s rejection of an interpretation of the doctrine that would have significantly narrowed it. Finally, Amar also discusses the contrasting views of the concurring and dissenting opinions in the case.

Justia columnist and Cornell law professor Michael Dorf comments on Monday’s unanimous Supreme Court ruling in Metrish v. Lancaster, as well as on the more general significance of unanimous rulings. Lancaster, as Dorf explains, involved the writ of habeas corpus, which the Justices declined to invoke, despite evidence indicating that the convict at issue did not receive due process at the state court level. Dorf also notes that this is only one instance in a larger pattern of the weakening and narrowing of habeas corpus at the High Court.

Justia columnist and Cornell law professor Sherry Colb considers the merits of the Supreme Court’s approach to cases where drunk driving is suspected, as set forth in Missouri v. McNeely. There, the Court held that police must conduct a “totality of the circumstances” exigency analysis to determine whether seeking a warrant prior to performing a blood test would significantly undermine the efficacy of the search in an individual case. Colb considers whether the Court’s ruling makes sense, in light of what generally happens in DWI cases, and discusses an alternative approach that was proposed by the Chief Justice, as well as the approach described in Justice Thomas’s dissent and its witty hypothetical.

Justia columnist and attorney Julie Hilden comments on a Tennessee controversy over a proposed ag-gag law that would require anyone who intentionally records images of animal abuse to submit their unedited footage or photos to law enforcement within 48 hours. Hilden argues that, as Tennessee Attorney General Bob Cooper—who called the proposed law “constitutionally suspect”—has argued, it has numerous serious flaws.

Justia columnist and U.C., Davis law professor Vikram David Amar comments on a decision from the Kentucky Supreme Court concerning the ministerial exception to employment discrimination law, which leaves some inquiries to ecclesiastical, rather than secular resolutions. In this area of law, Amar notes that last year’s U.S. Supreme Court case on the ministerial exception, Hosanna-Tabor, left a number of questions still to be answered by the courts, both state and federal—including the U.S. Supreme Court, meaning, Amar says, that future High Court clarification is likely.