Tag Archives: Supreme Court

Protesting Homosexuality at Funerals

By Marc Seltzer; originally published at care2.com on October 18, 2010
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Last week the U.S. Supreme Court heard oral argument in the case of a Baptist Minister who claimed that his first amendment right to free speech entitled him to protest at the funerals of U.S. military service men and women. The case follows roughly in line with those that have accorded the greatest possible freedom to Americans who make public political statements — in this case, “God Hates You,” and “Thank God for Dead Soldiers” — however offensive.

However, unlike past cases that evidence a strong bias towards free expression in the public forum — for example, Neo Nazi marchers in Chicago, demonstrating in the streets, or the pornography of Larry Flint, published in print — the anti-homosexuality protests of the Westboro Baptist congregation disrupt private sacred rituals.

Not just in the United States, but in cultures far and wide, reaching back as far as archaeological evidence exits to document, burial rites have been among the most profound of human traditions.

Would barring protests at funerals really undermine our First Amendment freedom?

Is there a slippery slope worry? Stop someone from protesting at a funeral today, and tomorrow they will be blocked from picketing in front of a factory or speaking on the steps of city hall?

I can think of nothing so precious — save maybe the moment of birth of a child — as the solemn ritual of family and friends gathering at graveside or place of worship, to eulogize, show support, to weep and to say goodbye to loved ones. To disturb people in either of these situations — and to use the Constitution to do so, is unacceptable.

It is not the type of speech which stands out here, it is the inappropriate context. Grief is not a public forum but a private rite. To undertake the necessary process of grieving requires not just the support of community but the immersion in the experience of loss. The funeral, however constituted by cultural tradition, leads us through both a conscious and unconscious transformation.

This sacred space must be preserved.

(For more on this story, including notes on the questions asked by new Justice Elena Kagan, check out my October 9, 2010, podcast review of the legal case Snyder v. Phelps at SupremePodcast.com)

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January 12, 2011 UPDATE:  Following the Arizona shootings of January 9, 2011, the Arizona legislature unanimously passed a law barring protests in the immediate vicinity of funerals.

SupremePodcast.com — May 29, 2010


A weekly podcast review of U.S. Supreme Court decisions, grants of certiorari (cases accepted for review) and biographies of justices and nominees to the high Court.

May 29, 2010, Podcast

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Transcript of my May 29, 2010, SupremePodcast.com segment, Lewis v. Chicago:

Lewis v. City of Chicago, Ill.  Issued by the Supreme Court May 24, 2010

In a week when the 46 year old Civil Rights Act of 1964 was in the news –Tennessee Senate primary victor Rand Paul having questioned some of the Act’s provisions in articulating his philosophy of government overreach — the U.S. Supreme Court issued a unanimous opinion with respect to application of the Civil Rights Act to the City of Chicago and its fire department hiring practices.

The facts of the case are straightforward:  Chicago offered a test to 26,000 prospective firemen.  Those who achieved a score of 89 and above were marked “well qualified.”  Those who scored between 65 and 88 were deemed “qualified.”  Those below 65 were not qualified.  The city adopted this policy in 1995.  It further decided that only “well qualified” candidates would be hired first as needed.  It kept the files of “qualified” candidates in case all “well qualified” candidates were considered and additional positions were still available.

The city of Chicago continued to apply the same standard drawing from the original pool of “well qualified” candidates for six years, causing a number of potential “qualified” firemen not to be hired although it did select some qualified applicants in the end.

6000 African American candidates who had been rated qualified, but had not been hired, sued the city.

In the course of the litigation, the city stipulated, or accepted, the fact, that African Americans had been severely impacted in a way that was different than other racial groups by the 89-point cutoff.  This is called a severe disparate impact and is recognized by statute as a basis for challenging government hiring policies.  The Court of appeals referred to disparate-impact liability as “primarily intended to lighten plaintiff’s heavy burden of proving intentional discrimination after employers learned to cover their tracks.”

At trial the African American group of qualified candidates won their discrimination case.  The court ordered 132 of them to be hired by random selection from the class of 6000.   Back pay for what the 132 would have earned was awarded and was to be split among the other remaining candidates who were not hired.

The city appealed the trial court decision on the grounds that the applicants had not filed Equal Employment Opportunity Commission (EEOC) claims within 300 days of the test date.  The city argued that the statue required claims under Title 7 of the Civil Rights Act to be filed with the EEOC within 300 days of the violation of the law.  The city considered the discriminatory act to be when the test results were given, placing applicants into the “qualified” group, back in 1995. If the firemen failed to file a charge with the EEOC within 300 days, the city was entitled to consider the act lawful.  But the applicants argued that the policy was applied continuously over six years excluding them from advancing in the process and that the 300 day limit should be counted from each time the test results were used to determine which candidates would be called up for further consideration for open positions.

The 7th circuit reversed the trial court, finding the applicants’ claims were time barred.

The applicants petitioned the Supreme Court for review and in a decision written by justice Antonin Scalia the court unanimously reversed the 7th circuit.

The Court decided that in applying the same standard year after year to candidates who had originally “qualified” the city continued the violation such that the claims were filed in time.

The application of the policy had served to deny the firefighters’ opportunity.  The city could not hide behind the claim that their initial decision was all that counted for the purposes of starting the clock on timeliness.

The case was thus not in the Supreme Court on the merits of the discrimination claim and makes no substantive changes in the law on discrimination.  Those issues were decided in the trial court in favor of the fireman.  And the district or trial court decision, being a lower court, has little strength as precedent.  In fact, the Supreme Court sent the case back to the 7th circuit court of appeals on remand to make certain other determinations before final result would be known.

The case may be more significant for its dicta, which is the language and positions of the court not so central to its decision to become precedent but meaningful in expressing the court’s reasoning.  Justice Antonin Scalia used the case to forcefully articulate principles of judicial restraint.

“It is not for us to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended.

Our charge is to give effect to the law Congress enacted.  Congress allowed claims to be brought against an employer who uses a practice that causes disparate impact, whatever the employer’s motives and whether or not he has employed the same practice in the past.  If that effect was unintended, it is a problem for Congress, not one that the federal courts can fix.”

While not surprising, the unanimity behind such a clear statement of judicial restraint illustrates the ascendance of such principles.

What We Wont Learn from the Sotomayor Confirmation Hearings

By Marc Seltzer; originally published on July 9, 2009, at politicsunlocked.com.

(Linda Greenhouse’s New York Times piece about the confirmation hearings for Elena Kagan raised the issue of whether a justice can be forthcoming in their testimony to congress.  Interestingly, Kagan has articulated her belief that the executive brach has largely unfettered authority in the areas of national security, the point that I wrote about in reference to the Sotomayor hearings.  Still, I do not see any reason for Kagan to speak openly in the upcoming confirmation hearings in light of the intense politicization of the process.  My early post is reposted below.)

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If there is one legal question that is profound and topical, the discussion of which would be deeply thought provoking and educational in the Supreme Court nomination hearings of Judge Sonia Sotomayor, it is the constitutional division of power between the different branches of government.

The power struggle between the branches is most notably implicated in the national debate over the Bush administration’s conduct of foreign policy and war.  President Bush and Vice-President Cheney asserted generally exclusive executive branch authority in the conduct of intelligence, detention of prisoners and avoidance of oversight in national security operations after 9/11.

Now that Bush and Cheney are out of power and more information is coming out about their conduct, opponents of such policies are on the attack, calling for investigation.  Only the most recent issue is whether Vice-President Cheney directed that the CIA withhold information from Congress that Congress has by law, demanded that the executive branch provide.  Other red-hot manifestations are whether the use of torture by the administration can be subject to explicit laws banning such activity, and whether the President was in fact required to brief congress regularly on its conduct of foreign policy and military action, as Congress has demanded.

Underlying this and other such conflicts is the question of constitutional authority in the different branches of government.  The President is the Commander-in-Chief.  Does this grant the President sole authority for decisions relating to national security, or is it an authority shared by the peoples’ representatives in Congress?

In the same vein, what are the limits of such Presidential authority?  Can the President authorize torture if he believes it is necessary for national defense?  If Congress requests that the President provide information on on-going military operations, can the President ignore the request if he believes that to follow it will harm the operations?

The ultimate answers to these questions cannot be known until the U.S. Supreme Court decides each issue in the context of specific facts presented in a lawsuit.  But a Supreme Court nominee could give us her reflections and a certain education.  This would be far more meaningful then the competing assertions of power by the administration and congress.  Of no more use are the pundits and professors who weigh in.  Almost universally, commentators take political positions based on desired outcomes, but give no real insight into what the Supreme Court would be likely to do.  The Supreme Court is deeply aware of its profound power and cautious about its legitimacy in asserting its authority over other branches of government – being the unelected branch.   Pundits have none of this real world caution.

Consequently, the Supreme Court tends to go to great lengths to avoid constitutional questions, instead deciding cases on smaller technical matters whenever possible.   There is nothing wrong with this judicial approach, except that it leaves many of us wondering where the bounds of legislative or executive power really are.

I, for one, have no doubt that they are not where the President and Congress say they are.

Redefining America: Constitution and Leadership 2010 – Nominee Elena Kagan

Marc Seltzer and Jessica Pieklo discuss:

The merits of a Kagan nomination to the Supreme Court (click to listen — loads in a few seconds)

Judge Sotomayor — Target of Newfound McCarthyism?

By Marc Seltzer; originally published on June 9, 2009, at care2.com

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Is it all right that Newt Gingrich called a sitting federal judge with a stellar record a “racist”?

How about Rush Limbaugh rallying the conservative base by demonizing Judge Sonia Sotomayor’s opinions as racially biased?

Isn’t this more like 50s’ McCarthyism, bullying your political enemies with politically loaded names — even when they don’t fit?

There should be no concern about Judge Sotomayor’s prospects for confirmation by the Senate. Senate Republican Jeff Sessions, top republican on the Judiciary Committee, which will conduct hearings, is a former federal prosecutor and can tell the difference between political mudslinging and a real issue about a biased judge.  Her opinions, which I will go into in my next post, are highly regarded by lawyers and judges.  Conservatives should be applauding Judge Sotomayor because she is tough, judicially restrained, and respectful of legal authority.  You will see many Republican Senators honor her extensive resume of public service, her judicial philosophy and her meticulous opinions during the hearings and confirmation process to come.

But in the lead up, before she has the opportunity to testify before the Senate, is it fair game to call her names, whether justified or not?  “Racist” is one of the ugliest terms to label an American citizen.  The spirit of the country is that “all men are created equal,” and while it is obviously an evolving picture, the ideas of equality are core beliefs in what it means to be American.

McCarthy called people “un-American.”  And some of his targets indeed held loyalties to our enemy’s political beliefs or systems.  Others did not, but were tarred just the same until, in the most famous of McCarthy’s eventual dressing downs, counselor Welch for the U.S. Army interrupted McCarthy during televised hearings: “I think I never gauged your cruelty or recklessness….Have you no sense of decency, sir, at long last? Have you left no sense of decency?.”

Gingrich’s and Limbaugh’s conservative political philosophy includes fundamental truths as did McCarthy’s, buy they suffer from the same problem as McCarthy as well:  Power corrupts.  They have such power over their followers that they can at times cross the line into injustice, indignity, and mistruth without paying for it.  This is no slight against Libertarian or Conservative political beliefs.  There are many nuggets of truth in a philosophy seeking control over government, strict constitutional interpretation, and fiscal responsibility.

But Limbaugh and Gingrich are attacking now while there is no accounting.  When the hearings come and real analysis is laid on the table, their early words will look foolish, although they will have been disavowed or revised by then.  They would not want to risk a real head to head match up of ideas on this one.

At the end of six weeks of hearings in June of 1954, Senator Stuart Symington said to McCarthy, “The American people have had a look at you for six weeks. You are not fooling anyone.”  America won the Cold War against Communism, but we didn’t do it by attacking each other for political advantage.  It was won by better ideas facilitated by honest government and real democracy.

Taking this lesson forward:  America would benefit from an education about judicial philosophy, but personal attacks, on esteemed public servants without credible justification and outside of a hearing process, lower both the level of public discourse and respect for our democratic institutions.

Firefighters in the U.S. Supreme Court

Originally published at care2.com on July 1, 2009

The U.S. Supreme Court decision regarding Connecticut firefighters is interesting for two principle reasons: it overturns a decision in which current Supreme Court Nominee Judge Sonia Sotomayor participated, and it provides Supreme Court authority in the sensitive and controversial legal area of race-conscious decision-making by government authorities.  The heart of the issue is whether there was sufficient justification for the city of New Haven, in charge of promoting officers in its fire department, to reject results of a test that saw no black candidates reach promotion, despite many applicants.

The High Court was called upon to make a difficult decision, and the 5-4 breakdown of the court shows it was a close call.  The majority opinion and dissent, penned by Justices Anthony Kennedy and Ruth Bader Ginsberg, respectively, provide details of the city government’s and the high court’s analysis of the fairness of treatment of minority firefighters and the legal standards that govern one aspect of how race should be dealt with in the workplace.

Falling into the trap of football politics and simplistic analysis, early reports call the decision “a blow to diversity in the American workplace” and a win for the conservative approach to discrimination law (more responses). However, this case is not Plessy v. Ferguson (perpetuated race-based discriminiation) or Brown v. Board of Education, (rejected “separate but equal” treatment of minorities).  The distinctions in this case, if given honest, unbiased consideration, are so subtle and intertwined with legal policies that they require in-dept analysis and some speculation to figure out what they could mean and achieve in the workplace.

Justice Anthony Kennedy’s opinion rejected arguments that past discrimination at the fire department (where there has been only one African American of 21 fire captains), perceived unfairness in the exam (some concerns were voiced at a public forum when the results were announced while experts interviewed had mixed responses), and state agency concern over being sued for discrimination would justify the city’s throwing out the results — which promoted only white and Hispanic firefighters.

The facts before the Court showed that the city authorities made significant and costly efforts to create a fair, consciously race-neutral test.  Evidence from scholars and testing experts showed that the tests and results were in line with those for good tests given elsewhere and did not make a clear case of evidence of a bad test.

The city rejected the test results out of concern that they turned out to discriminate against African Americans and that they would result in lawsuits from African American firefighters.  It is possible, but not certain, that other tests would achieve more race-neutral results.

Crucially, the majority decision found that there was not enough evidence under the legal standard, which the city was expected to use, to throw out the test results and deny promotion to white and Hispanic firefighters with higher scores.

Local government officials in Connecticut worked hard to try not to descriminate unfairly.  This is commendable.  The Court said that they erred when they took the further step in throwing out the results of a test designed carefully to be fair, without more evidence that it was, in fact, unfair.

The dissent disagreed.  Four members of the Court felt that past discrimination, test results (black candates passed, but didn’t score high enough for promotion), and local government concern over being sued by black candidates was enough to throw out the test and start again with a new process in hopes of better eliminating unfair descrimination.

This situation may still indicate that unfair racial descrimination exists in testing procedures used by government agencies.  However, it also shows that significant efforts were made by officials acting in good faith to avoid prejudice and unfair assessment.  The majority’s decision says that under these circumstances, it is not fair to winning candidates to throw out the results of their exams.

The city government and both sides in this Supreme Court decision tried to remove unfairness from the process of promotion of fire officials.  That is what we pay them for.  If respect were accorded to effort and not results, we would recognize in the workings of our government and the behavior of its leadership nobility of purpose and integrity of character.  Next time, the results may be different, but let us hope that the effort by public authorities can rise to the level of that evidenced here.

Governmental authorities may also consider the New Haven testing program a failure and may go on to make even greater efforts to root out testing problems if and where they exist.  The Court makes no determination of what other efforts governmental agencies should make in order to achieve fairness for its citizens.

Nor does it stop African-Americans from filing suit where they believe that they were discriminated against by tests and processes.  They may have a case where outcomes differ by racial groupings.  The issue would be different than in the current case (Constitutional or Civil Rights Act claims of unfair or unequal treatment) and the outcome could be different.

I think I can say all this and still have deep compassion and concern for African-Americans that have not yet found a level playing field for competition in the American workplace.  The discussion and investigation of problems must continue aggressively.

We need to do the best we can because our nation has embraced merit and rejected prejudice as a defining principle.  Let’s continue on that path.  But anyone that labels the various decision-makers he

Judicial Nominee Sparks Debate on Racism, Discrimination

By Marc Seltzer; originally published on July 13, 2009 at politicsunlocked.com

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As the hearing on Judge Sonia Sotomayor’s nomination to the Supreme Court commences, there is a great focus on whether Judge Sotomayor is biased. This reflects more the nations’ prejudices than it does any real question about the judge. She has been on the bench for sixteen years, and there is little informed concern about the impartiality of her decisions.

The Ricci decision, in which she rejected claims by Hispanic and white firefighters in favor of the city of New Haven’s effort to aid African American firefighters, clearly does not show a bias towards her Hispanic cultural identity. Her decision followed federal law, which allowed cities such as New Haven to take remedial efforts where discrimination was argued or perceived. In concert with other federal judges, she deferred to Congress in its lawmaking and the city in its application of the law. While a five-member majority of the U.S. Supreme Court reversed her decision last week and provided a new authority for lower courts, this hardly paints her as either biased or activist.

Her comment, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” has also inspired a strong reaction and many questions regarding her perspectives on race and gender.

News reports about her judicial temperament showed her to be no-nonsense, tough, smart, detail-oriented, and fair. Even those on the losing side held her in high regard. Some critics have harped on her toughness on lawyers appearing before her as a negative aspect, which reminds me of a very tough senior federal judge I have often appeared before. He sometimes berated lawyers and their arguments and had no tolerance for the unprepared. In my experience, I went out of my way to make sure I was ready for every hearing, and I was nervous in my uncertainty about how each hearing would go. But I did not question his capacity for the job because he was particularly demanding.

Judge Sotomayor’s comments off the bench do raise questions about the role of personal characteristics such as gender, race, religion and culture in judging, but do not create real issues about her capability or about the nature of her judicial philosophy. Justice Sanual Alito said essentially the same things that Judge Sotomayor has said – noting the impact of his Italian heritage and experience as an Italian American on his judicial outlook – without raising an eyebrow. When this kind of sentiment is expressed by a white male, it sounds “cultural,” like a tribute to our shared melting-pot cultural identity. But when the same ideas are expressed by a minority voice, it raises the concern in some of reverse discrimination as if minorities given a voice must necessarily use it in a power grab.

After a period of being attacked, without the opportunity to respond, the hearings will be Judge Sotomayor’s forum to speak. Republicans have noted that while they cannot seriously expect to thwart Sotomayor’s confirmation, they can use the hearings as a platform to argue judicial philosophy. As their criticism so far has been off the mark, it is likely that it is they who will receive a schooling in the Senate.