Category Archives: Courts

They Still Just Don’t Get It: The Lessons of the #MeToo Movement Through the Lens of Supreme Court Nominations

Source: MaryAnn Grover, Richmond Public Interest Law Review, Date Written: April 23, 2019

From the abstract:
Many have hailed the #MeToo Movement as a turning point in the way this country discusses sexual assault and sexual harassment, but when looking at the #MeToo Movement through the lens of Supreme Court nominations, it is unclear whether the impact of the Movement will be as far reaching as some imagine. The hearing of Anita Hill, which came before the #MeToo Movement, and the hearing of Dr. Christine Blasey Ford, which came after the #MeToo Movement, perhaps demonstrate that the #MeToo Movement has reached its limit culturally and now institutional change must be the focus in order for the goals of the #MeToo Movement to be fully realized. Looking to the hearing of Professor Hill to analyze what we should have learned, the #MeToo Movement to assess what we thought we learned, and the hearing of Dr. Ford to recognize what we still have to learn about survivors of sexual assault, this Article begins to develop creative solutions to ensure that our institutions change as our society changes, with the ultimate goal of creating a society where no one else has to say #MeToo.

Intersectional Representation on State Supreme Courts

Source: Greg Goelzhauser, Judicial Politics Reader – Forthcoming, Last revised: August 25, 2019

From the abstract:
Women of color face unique hurdles gaining equal access to the legal profession. This chapter considers the representation of women of color on state supreme courts, emphasizing the importance of judicial selection institutions. It makes two empirical contributions. First, it highlights women of color serving on state supreme courts through 2016 — individuals who have received comparatively little recognition for their achievements. Second, using original data on state supreme court seatings from 1960 through 2016, I examine whether selection institutions are associated with intersectional differences in seating new justices. The results indicate that women of color are more likely to be seated under appointment systems. Compared to other gender-race combinations, the results are similar for men of color, while white men are more likely to be seated through elections. Selection system choice is not associated with differences in seating white women. The results have important implications for our understanding of intersectional political representation and the judicial selection debate.

How the First Forty Years of Circuit Precedent Got Title VII’s Sex Discrimination Provision Wrong

Source: Jessica A. Clarke, Vanderbilt Law Research Paper No. 19-32, Last revised: October 6, 2019

From the abstract:
The Supreme Court will soon decide whether, under Title VII of the Civil Rights Act of 1964, it is discrimination “because of sex” to fire an employee because of their sexual orientation or transgender identity. There’s a simple textual argument that it is: An employer cannot take action on the basis of an employee’s sexual orientation or transgender identity without considering the employee’s sex. But while this argument is simple, it was not one that federal courts adopted until recently. This has caused some judges to object that the simple argument must be inconsistent with the original meaning of Title VII. In the words of one Fifth Circuit judge, “If the first forty years of uniform circuit precedent nationwide somehow got the original understanding of Title VII wrong, no one has explained how.”

This Essay explains how the first forty years of circuit precedent got Title VII wrong. It demonstrates that, rather than relying on the statutory text, early appellate decisions relied on their era’s misunderstanding of LGBTQ identities as pathological, unnatural, and deviant. The errors of the early cases persisted as a result of stare decisis, until the old doctrine was rendered indefensible by changing social attitudes, the rise of textualism, and the Supreme Court’s recognition that Title VII forbids an employer from insisting that men or women conform to sex stereotypes. This account has important implications for the pending cases, as well as for social movements that seek to disable prejudice.

2019 Supreme Court Commentary: Employment Law

Source: Jonathan Harkavy, Patterson Harkavy LLP, Date Written: September 9, 2019

From the abstract:
This article summarizes in detail all decisions of the Supreme Court of the United States from its October 2018 Term (2018-2019) that affect employment law, labor relations, employment arbitration and the employment relationship generally. The article also provides commentary on each of the decisions and on the Supreme Court’s regulation of the employment relationship. The article also summarizes briefly the grants of certiorari in employment-related cases for the October 2019 Term and concludes with brief commentary on justice in the American workplace.

Race, Gender, and Equal Protection Jurisprudence

Source: Dan Ziebarth, George Washington University, Date Written: July 21, 2019

From the abstract:
This essay forwards the discussion of equal protection jurisprudence concerning considerations of fairness and equality in relation to race and gender through a four-section comparative assessment. Section I will describe the historical and jurisprudential background of issues and debates in racial discrimination. Section II will describe the historical and jurisprudential background of issues and debates in gender discrimination. Section III will analyze the distinct convergence and divergences that have appeared in constitutional interpretation of equal protection jurisprudence. Section IV will assess the underlying theoretical disparities between two major schools of thought in equal protection jurisprudence, referred to as colorblind constitutionalism and antisubordination constitutionalism. Finally, the conclusion will provide remarks on equal protection jurisprudence, discuss how this has affected the state of contemporary social affairs, and argue for the adoption of equal protection jurisprudence that focuses on just procedure, which targets the consistency in unbiased processes of judicial application, as opposed to the final decision, as principal in the determination of fair and equal treatment in the administration of justice.

The Fourth Amendment Implications of ‘U.S. Imitation Judges’

Source: Mary Holper, Boston College Law School Legal Studies Research Paper No. 507, 2019

From the abstract:
Scholars, immigration judges, attorneys, and congressional committees have been calling for a truly independent immigration adjudication system for decades, critiquing a system in which some judges describe themselves as “U.S. imitation judges.” This article examines the lack of truly independent immigration judges through the lens of the Fourth Amendment, which applies when a noncitizen is arrested for deportation. In 1975, the Supreme Court held in Gerstein v. Pugh that to continue detention after an initial arrest in the criminal context, the detached judgment of a neutral judge is necessary; a prosecutor’s finding of probable cause is insufficient to protect the important Fourth Amendment rights to be free from an unreasonable seizure. In contrast, in the immigration detention context, no such neutral judge has any role in the process. Every person who authorizes a noncitizen’s arrest and detention works for a law enforcement agency, causing one to wonder who exactly is exercising independent judgment over decisions concerning noncitizens’ physical freedom.

This article begins with an overview of the relevant Fourth Amendment law, which requires a neutral judge to review a law enforcement officer’s warrantless arrest in order to continue detention, and demonstrates why the Fourth Amendment applies to immigration arrests, although nominally “civil.” Thus, the lack of a truly neutral judge available to review DHS arrest decisions exposes the entire immigration detention system to a Fourth Amendment challenge. To resolve this issue, I propose that, in order to continue pretrial detention for deportation, federal magistrate judges, rather than immigration judges, must make a probable cause finding. This proposal resolves the Fourth Amendment violations that occur when the only supposedly “neutral” judge, who authorizes the jailing of a human being, is regularly critiqued as not so “neutral.” While others have effectively argued that the entire immigration adjudication system needs a judge who is untethered from a law enforcement agency, in this article I focus only on the initial decision to continue pretrial detention, as this is where, in the criminal pretrial context, the Fourth Amendment’s probable cause hearing requirement attaches.

Bias and Judging

Source: Allison P. Harris, Maya Sen, Annual Review of Political Science, Vol. 22, 2019
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From the abstract:
How do we know whether judges of different backgrounds are biased? We review the substantial political science literature on judicial decision making, paying close attention to how judges’ demographics and ideology can influence or structure their decision making. As the research demonstrates, characteristics such as race, ethnicity, and gender can sometimes predict judicial decision making in limited kinds of cases; however, the literature also suggests that these characteristics are far less important in shaping or predicting outcomes than is ideology (or partisanship), which in turn correlates closely with gender, race, and ethnicity. This leads us to conclude that assuming judges of different backgrounds are biased because they rule differently is questionable. Given that the application of the law rarely provides one objectively correct answer, it is no surprise that judges’ decisions vary according to their personal backgrounds and, more importantly, according to their ideology.

National Archives Releases Kavanaugh Emails on Surveillance Programs Identified in EPIC Suit

Source: Electronic Privacy Information Center, January 7, 2019

EPIC v. NARA Case No. 18-2150

Seeking disclosure of records concerning Brett M. Kavanaugh’s work at the White House between January 2001 and May 2006 related to surveillance programs.

The National Archives has released thousands of emails Justice Kavanaugh sent between January 2001 and July 2003 while working in the White House Counsel’s office. The release includes hundreds of emails concerning controversial White House surveillance programs the Archives previously identified in response to EPIC’s lawsuit. In October, the National Archives revealed that Kavanaugh sent 11 e-mails to John Yoo, the architect of warrantless wiretapping; 227 e-mails about “surveillance” programs and the “Patriot Act;” and 119 e-mails concerning “CAPPS II” (passenger profiling), “Fusion Centers” (government surveillance centers), and the Privacy Act. Subsequent searches revealed thousands more emails sent to Kavanaugh about mass surveillance programs.

Mixed Signals: What Can We Expect From the Supreme Court in This Post-ADA Amendments Act Era?

Source: Nicole B. Porter, Touro Law Review, Forthcoming, Date Written: January 29, 2019

From the abstract:
The ADA Amendments Act of 2008 was intended to breathe new life into the ADA after the courts, especially the Supreme Court, had drastically narrowed the ADA’s protected class. But since the ADA was amended in 2008, the Supreme Court has not decided any ADA cases. Thus, there are many ADA issues, especially in the employment context, that remain unresolved. This paper will attempt to determine whether we can expect a disability-friendly Supreme Court or whether the Court will once again narrowly construe individuals with disabilities’ rights under the ADA. In doing so, I have uncovered some mixed signals. On the one hand, the body of Tenth Circuit ADA cases decided by our newest jurist, Justice Gorsuch, suggests an anti-disability bent. On the other hand, one possible source of good news for individuals with disabilities are two recent IDEA Supreme Court cases decided in 2017: Fry v. Napoleon Community Schools and Endrew F. ex rel. Joseph F. v. Douglas County School Dist. RE-1. Both of these cases were very plaintiff-friendly and both were unanimous (the Fry case had a two-justice concurrence). But are these plaintiff-friendly cases signaling a disability-friendly Supreme Court? Or is the plaintiff-friendly outcome of these cases not because they involve individuals with disabilities but because they involve educating children? And if the latter is true, what can we expect from the Supreme Court if and when it decides the unresolved ADA employment issues? This paper will attempt to answer these questions.