Fair and Just Courts

On the 7th Circuit, It's Time for Ron Johnson to Get Out of the Way

It is long past time to fill the nation's oldest appellate court vacancy, which has been open more than five years.
PFAW

Cornyn and Cruz Haven't Helped Their Own Judicial Nominee

Nearly three months after unanimous committee approval, a Texas nominee still has not gotten a confirmation vote.
PFAW

Harry Reid Calls Out Pat Toomey on GOP Blocking of Restrepo

Senator Toomey seems all too willing to sacrifice Pennsylvanians' interests to his party’s political goals.
PFAW

Judicial Elections and Government Integrity at the Supreme Court

It isn’t just judges who risk the appearance of corruption when they engage with funders.
PFAW Foundation

Diversity vs. Scalia at Marriage Oral Arguments

Bringing her own experience to the bench, Justice Kagan helps Justice Scalia with a point that should have been obvious to him.
PFAW Foundation

Are Conservative Justices Suggesting that Oppression Justifies More Oppression?

Historical discrimination against gays and lesbians warrants heightened scrutiny under Equal Protection, not continued discrimination.
PFAW Foundation

In Marriage Arguments, Scalia Overlooks the People's Role in Adopting Equal Protection

Scalia says judicial interpretations of Equal Protection bypass the people, but it was the people who chose to constrain themselves with Equal Protection.
PFAW Foundation

Justice Ginsburg Tackles Idea that Marriage Definition Has Existed for Millennia

Marriage as it existed for much of our nation's history violates the 14th Amendment, as does today's exclusion of same-sex couples from the institution.
PFAW Foundation

How Big Money In Politics Is Making It Harder For Criminal Defendants To Get A Fair Trial

When the Supreme Court struck down limits on outside spending in elections in the 2010 Citizens United case, critics pointed to a potentially huge public policy impact in issues ranging from environmental protection to tax policy to health care to voting rights.

But one impact of Citizens United has gone without as much public discussion as it deserves: It’s making it harder for criminal defendants to get a fair trial.

Last fall, the American Constitution Society released a report by two Emory University law professors illustrating that the big spending that Citizens United let loose in state judicial elections created a climate in which elected judges were more reluctant to side with defendants in criminal cases.

Joanna Shepherd and Michael S. Kang found that outside groups seeking to influence judicial elections — usually for reasons unrelated to criminal justice policy — often relied on “Willie Horton” style attack ads implying that targeted judges were “soft on crime.” The proliferation of outside spending and the attack ads that the spending bought, they found, correlated with a decrease in the frequency with which elected state appellate judges ruled in favor of defendants in criminal cases.

“Unlimited independent spending is associated with, on average, a seven percent decrease in justices’ voting in favor of criminal defendants,” they wrote. “That is, the results predict that, after Citizens United, justices would vote differently and against criminal defendants in 7 out of 100 cases.”

Shepherd discussed her findings yesterday at a panel convened by ACS, along with retired Montana Supreme Court Justice James Nelson, the National Association of Criminal Defense Lawyers’ Norman Reimer and Tanya Clay House of the Lawyers’ Committee for Civil Rights Under Law.

Nelson, who was on the Montana Supreme Court when it famously ruled that Citizens United didn't apply to that state's unique history of corruption (Nelson dissented, saying the high court’s ruling applied to Montana, but took the opportunity to demolish the decision while he was at it), said he had lived first-hand the impact of big money in judicial races.

“The fact of the matter is that is when justices running for political office are attacked during their campaigns, it forces them to look over their shoulder constantly,” he said. “And I can tell you that from personal experience. You have to fight to make yourself vote the way the law requires you to vote. And most judges do. But it’s in these marginal cases where there’s a close call and perhaps the case should go to a defendant, it doesn’t go to the defendant.”

The groups spending money on judicial attack ads, he said, “really don’t give a damn about defendants’ rights. They really don’t care. What they want to do is to get somebody onto a court who marches in lockstep with their philosophy, or get somebody off the court that does not march in lockstep with their philosophy.”

Reimer sounded a similar note: “The fight is really about commercial interests. It’s usually about the plaintiffs’ bar versus the corporate interests, the unions, the conservatives. It’s about nothing to do with criminal justice. But because of the fear factor, that’s where you go after somebody.”

“I think we all need to understand and appreciate what’s really at risk here,” Nelson said. “And what’s really at risk is the fair, independent and impartial judicial system that most citizens in this country, and I think most lawyers in this country, simply take for granted. And if the dark money flows from Super PACS and the Koch brothers and RSLC and groups like them get control of the judiciary … That’s what this is all about: getting control of the third branch of government. If they get control of that third branch by spending their way to the top, then we’re going to lose that fair, impartial and independent judiciary that we’ve all come to expect and rely upon. Certainly criminal defendants are going to suffer immeasurably.”

Clay House pointed out that there is already “a different perception of the criminal justice system and judiciary among communities of color.” Pew found in 2013 that 68 percent of black Americans said they were “treated less fairly than whites” in the courts, while the majority of whites were oblivious to racial disparities in the criminal justice system.

Unchecked spending in judicial elections, the evidence shows, may be making that perception, and the reality, even worse.

PFAW

Clinton Recognizes the Key Role of Supreme Court Nominations in Protecting Our Democracy

The Clinton campaign talks about how her Supreme Court nominees would affect the right to vote and money in politics.
PFAW

Thanks, Mitch: Confirmed Judges to Skyrocket From One to Two

McConnell schedules a vote on one - and only one - judicial nominee.
PFAW

More of the Same, As Grassley Delays More Judicial Nominees

Grassley needlessly delays a committee vote on judicial nominees, just as Republicans have done for almost every one of Obama's judicial nominees.
PFAW

Where is Pat Toomey on Phil Restrepo's Nomination?

Five months into Pennsylvanian Phil Restrepo's nomination, Chuck Grassley has not scheduled a hearing. What is Pat Toomey doing to help?
PFAW

Mitch McConnell: Doing the Least He Can Possibly Do

Lest anyone think that Mitch McConnell hasn’t been paying attention to the judicial vacancy crisis or the Americans who pay the price when their cases are delayed or relocated, today everything changed: today Senator McConnell allowed a vote on … one judicial nominee!
PFAW

The GOP Finally Allows a Judicial Confirmation Vote

Later today, the Senate is scheduled to vote to confirm Alfred Bennett to the Southern District of Texas. But if McConnell is expecting congratulations, he should expect to wait a long time … just as he forces judicial nominees to wait for a confirmation vote.
PFAW

The Courts Have to Matter to LGBTQ Americans

The following is a guest post by Erik Lampmann, a 2011 Young People For (YP4) Fellow. It is cross-posted on the Alliance for Justice blog and the YP4 blog.

Federal courts routinely hand down judgments that affect everyday Americans at an immediate, painful, and personal level – for good or ill.

Consider the case of Seamus Johnston, a transgender student expelled by the University of Pittsburgh at Johnstown (UPJ) for his use of male restrooms and gym facilities on campus. When he sought redress for his experiences at the hands of UPJ, U.S. District Judge Kim Gibson, a George W. Bush appointee, ruled he had no room to claim discrimination since he was being treated in accordance with his sex as assigned at birth and had not had sex reassignment surgery.

In some ways, Johnson was warranted in thinking he was free to live openly as a transgender man since UPJ offers gender identity and expression protections under its student nondiscrimination statement. Indeed, Johnson had lived openly and without significant difficulty as a man since 2009 — even having taken advantage of men-only exercise courses. Only in 2011 was Johnson first confronted for using a men’s locker room. After issuing Johnson citations, barring him from certain facilities, and eventually arresting him, the university expelled him for his attempt to use the bathroom in which he felt most at peace and which he believed he was permitted to use by university policy. In his appeal for justice, Johnson didn’t ask for much — simply that a university that purports to protect students based on “gender identity and expression” allow him a modicum of relief as a transgender person rather than criminalizing his attempts to live authentically.

Essentially, Judge Gibson acknowledged Johnson’s self-identification as a transgender man, but she didn’t think it really mattered in the context of the Equal Protection Clause or Title IX.  Flatly ignoring guidance from the Department of Education encouraging institutions of higher education to recognize transgender and gender non-conforming students’ right to protections under Title IX, Judge Gibson left Johnston, and other transgender students, without protection from sex discrimination. She wrote:

While Plaintiff might identify his gender as male, his birth sex is female … It is this fact … that is fatal to Plaintiff’s sex discrimination claim. Regardless of how gender and gender identity are defined, the law recognizes certain distinctions between male and female on the basis of birth sex. Thus, even though Plaintiff is a transgender male, his sex is female.

In sum, this decision reflects a sobering reality for LGBTQ people, particularly transgender and gender non-conforming individuals: The government — more specifically, a judge — holds the power to determine if the law protects how you define yourself.

This example dramatizes just one way that our courts fail to live up to the promise of the motto “equal justice under law” by protecting the vulnerable among us from exclusion and discrimination. I’ll admit that several years ago the result in this case might have led me to give up on the courts as an avenue for change.

Recent decisions from the Supreme Court and other federal courts have prompted some progressives to view the courts as a once-relevant institution home only to disconnected jurists. When we as progressives write off the courts and treat them as spaces where our communities were never meant to triumph, we concede the power to speak from our lived experience as those affected by the law and to shift the balance of power within the judiciary.

In reality, the legal knowledge of our communities paired with our deeply personal understanding of how the courts’ decisions impact real people gives us a tremendous power to affect the composition of the courts and to create legal precedents that respect rather than ignore our communities’ needs.

Seamus Johnston’s experiences with the justice system are then instructive for progressives building long-term judicial strategies. His loss in the Western District of Pennsylvania is but one battle in a much longer struggle for social justice.

The courts have to matter for LGBTQ Americans and so many others who find themselves on the losing end of cases like Johnston’s. They have to matter because we cannot afford to write off institutions, elected officials, or organizations as permanent friends or enemies. Rather, if we truly believe another world is possible, we have to build it brick by brick, precedent by precedent, judge by judge.

PFAW Foundation

Supreme Court Sends Alabama Racial Gerrymandering Case Back to Lower Court

The Supreme Court rules in favor of those challenging Alabama's redistricting as racially gerrymandered and harmful to African Americans.
PFAW Foundation

PFAW Member Telebriefing: Preview of Upcoming PFAW Foundation Report, The Supreme Court in the Citizens United Era

Yesterday, PFAW Foundation Senior Fellow Jamie Raskin previewed his upcoming report, The Supreme Court in the Citizens United Era, during a member telebriefing. Executive Vice President Marge Baker and Senior Legislative Counsel Paul Gordon also joined the call to answer questions from members and discuss PFAW efforts to promote fair and just courts. Drew Courtney, Director of Communications for PFAW, moderated.

To kick off the call, Raskin reviewed another period during which the Court granted unprecedented constitutional rights to corporations. Lochner v. NY, Raskin explained, began an era in which government at every level was prevented from interfering with corporate contracts—and thereby prevented from passing sensible health and safety regulations.

Today, said Raskin, we’re in an analogous period, with the Supreme Court now using the First Amendment as an excuse for expanding or inventing the political and religious rights of corporations. This time, it’s beyond what we’ve ever seen before; the Citizens United and the Hobby Lobby cases both demonstrate how the Court is putting the interests of corporations over the rights of people and making it more difficult to hold corporations accountable for their actions. Other cases allow corporations to insulate themselves through a host of legal immunities while at the same time, they’re able to spend unlimited amounts of money  influencing who gets elected to office.

In responding to a question from a PFAW member, Baker outlined the two key ways to fight the Court’s trend of empowering corporations over people: Elect Presidents who will nominate, and Senators who will confirm, Justices who share the ideology that corporations shouldn’t be favored in their legal rights over people; and amend the Constitution, which PFAW and other groups are working on now. She also directed PFAW members to www.united4thepeople.org and www.getmoneyoutaction.org to get more involved in these issues.

You can listen to the full telebriefing here:

PFAW Foundation