By Susan Finder (Peking University Transnational School of Law - Shenzhen)
The background for the SCV Guiding Opinion is that it is part of what is required by the Party Center to integrate socialist core values into the legal system and to promote their use in national governance. This has been a theme in writings of Xi Jinping about the law, the Party Plan on Building the Rule of Law in China (2020–2025), previous Party documents, and related SPC documents. Some of those background documents are listed in a later section of this blogpost.
Article 1 provides that the underlying principles of the SCV Guiding Opinion are:
a fusion of law and morality, which is linked to their fusion in traditional legal thought ( 法治与德治相结合);
people-oriented (以人民为中心), meaning that judgments should be clear to ordinary people and serve the purpose of educating them; and
the organic unity of legal, political, and social effectiveness (政治效果、法律效果和社会效果有机统一 ), because by strengthening the guiding role of socialist core values it will enhance the legal, social, and rational recognition of judicial judgment.
The summary below highlights some of the principal points for Chinese judges.
Article 4 specified the types of judgments in which the use of socialist core values should be increased:
Cases involving national interests, major public interest, and widespread public concern;
Cases involving epidemic prevention and control, emergency rescue and disaster relief, protection of heroes, brave actions for righteousness, legitimate defense, and other such cases may trigger social moral evaluation;
Cases involving the protection of vulnerable groups such as the elderly, women, children, and the disabled, as well as groups that have major disputes and may cause widespread concern in the society;
Cases involving public order and good customs, customs, equality of rights, ethnic religions, etc., where the parties to the litigation have major disputes and may cause widespread concern in the society;
Cases involving new situations and new issues that require in-depth interpretation of legal provisions, judicial policies, etc., to guide social trends and establish value orientation;
Other analogous cases.
What this means is that in cases where there is a great deal of public concern, judges should seek to use socialist core values. Some of these, especially with national interest, major public interest, types of cases that attract Party leadership attention, or wide public concern are likely to be those in which the higher levels of the courts, or local political-legal commissions provide their views.
One of Justice Antonin Scalia’s final acts was to strike down President Obama’s plan to stave off the climate crisis.
On February 9, 2016 — the last Tuesday of Scalia’s life — the Supreme Court handed down an unexpected order announcing a stay of the Environmental Protection Agency’s carbon emissions rules for manypower plants.The vote was 5-4, along party lines, with Scalia joining his fellow conservatives in the majority.
***
The problem for Democrats is that the legal defeat of the Clean Power Plan is likely not a one-off. This fight over the federal government’s power to address a slow-moving catastrophe is just one battle in a multi-front war over federal agencies’ power to regulate. As Stephen Bannon, then the White House’s chief strategist, told the Conservative Political Action Conference a month after Trump took office, one of the Trump administration’s primary goals would be “deconstruction of the administrative state.”
Enter the Roberts Court, fortified by Trump’s appointees.With six conservative justices, the Court has the votes it needs to make Bannon’s goal a reality — and at least five members of the Supreme Court have already endorsed a plan to erase much of the executive branch’s authority.
It wasn’t always this way. In the late 1980s, Justice Scalia was one of the Court’s staunchest defenders of a strong administrative state. Presidents Ronald Reagan and George H.W. Bush delivered three landslide victories in a row to Republicans, and the GOP was at the apex of its ability to gain power the old-fashioned way — by winning elections.
So conservatives benefited from court decisions that gavethe Reagan and Bush administrations broad leeway to set federal policy. Both administrations could use this leeway to deregulate.
The leading election lawyers at Perkins Coie, led by Marc Elias, filed suit yesterday in Atlanta against Georgia election officials. Their target in the federal action is the new Georgia voter-suppression law enacted by the Republican controlled state. - GWC
Despite nationwide scrutiny of Georgia’s elections, which only
confirmed the absence of any fraud, insecurity, or wrongdoing, Republican members
of the General Assembly voted to pass sweeping omnibus legislation that is clearly intended to and will have the effect of
making it harder for lawful Georgia voters to participate in the State’s elections. And
it will impose these unjustifiable burdens disproportionately on the State’s minority,
young, poor, and disabled citizens. Among its provisions, the Voter Suppression
Bill:
Imposes unnecessary and burdensome new identification requirements
for absentee voting;
Unduly restricts the use of absentee drop boxes;
Bans mobile polling places;
Prohibits the state from distributing unsolicited absentee ballot
applications;
Burdens voters with the risk of disenfranchisement due to meritless
challenges that require an immediate defense of their qualifications;
Invalidates ballots cast by lawful voters before 5:00 p.m. in a precinct
other than the one to which they were assigned, regardless of the
reason or their ability to travel to another location (or wait until after
5:00 p.m.) to cast their ballot;
Bans any non-poll worker from giving food or drink, including water,
to voters waiting in line;
Compresses the time period for voting in the runoff election.
These provisions lack any justification for their burdensome and
discriminatory effects on voting. Instead, they represent a hodgepodge of
unnecessary restrictions that target almost every aspect of the voting process but
serve no legitimate purpose or compelling state interest other than to make absentee,
early, and election-day voting more difficult—especially for minority voters...
How do authoritarian states define and communicate notions of appropriate work conduct and professional excellence? This article examines three channels of communication used by the Chinese state to signal professional expectations to the bar: the bar exam, the administrative rules governing lawyers, and the state-sanctioned National Outstanding Lawyer Award. We find that China’s state narrative about “the good lawyer” celebrates lawyers willing to work closely with the authorities and asks more stringent critics to separate private beliefs from public behavior. In contrast to assumptions often made in research on authoritarian law, this article highlights how lawyers can participate in politics without opposing the regime and how much work goes into curating an appealing state strand of legal professionalism rather than relying on coercion alone. We end with a call for future work on “varieties of legal professionalism” to better understand which state signals are most visible and persuasive to different segments of the Chinese bar, as well as the conditions under which alternate ideas about professionalism gain traction.
The NCAA claims that “amateur” athletes are an essential part of its product
The core insight of Board of Regents is that antitrust law may not prevent competitors from colluding with one another — even if such collusion involves activity like horizontal price fixing that is typically illegal — if such collusion allows those competitors to offer a product to consumers that otherwise could not exist.
But what exactly is the “product” offered by the NCAA and the various schools that belong to it?
The NCAA argues in its brief that “the ‘product’ of college sports” is “different from professional sports because the participants are not only students but also amateurs, i.e., not paid to play.” Competition among “amateurs,” which in this context appears to mean players who can receive scholarships and small stipends but not salaries, the NCAA claims, is a fundamentally different product than competition among athletes who are paid whatever they can earn in the free market.
One problem with this argument is that if it can be applied to other industries, it could eviscerate antitrust protections for workers.
The majority of an 11-judge en banc Ninth Circuit panel concluded that the Second Amendment does not guarantee the right to carry firearms outside the home.
In this Oct. 2, 2018, file photo, semi-automatic rifles fill a wall at a gun shop in Lynnwood, Wash. (AP Photo/Elaine Thompson)
SAN FRANCISCO (CN) — Americans have no right to carry guns in public, a divided en banc Ninth Circuit panel ruled Wednesday, reversing a prior Ninth Circuit decision that struck down a Hawaii firearm restriction as unconstitutional.
“There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment,” U.S. Circuit Judge Jay Bybee, a George W. Bush appointee, wrote for the majority of an 11-judge panel in a 127-page opinion.
Looking back on 700 years of legal history dating back to 14th century England, seven judges in the majority found “overwhelming evidence” that the law has never given people “an unfettered right to carry weapons in public spaces.”
The seven-judge majority traced legal texts and laws back to 1348 when the English parliament enacted the statute of Northampton, which banned carrying weapons in fairs or markets or before the King’s justices. It also cited multiple laws from colonial and pre-Civil War America in which states and colonies restricted the possession of weapons in public places.
“The Second Amendment did not contradict the fundamental principle that the government assumes primary responsibility for defending persons who enter our public spaces,” Bybee wrote. “The states do not violate the Second Amendment by asserting their longstanding English and American rights to prohibit certain weapons from entering those public spaces as means of providing ‘domestic tranquility’ and forestalling ‘domestic violence.’”
Writing for the dissent, Senior U.S. Circuit Judge Diarmuid O’Scannlain, a Ronald Reagan appointee, said the majority failed to properly interpret the U.S. Supreme Court’s 2008 decision in District of Columba v. Heller, which overturned Washington D.C.’s total ban on handguns and a requirement that rifles and shotguns be kept unloaded and disassembled or bound by a trigger-lock device.
“The Second Amendment’s text, history, and structure, and the Supreme Court’s reasoning in Heller, all point squarely to the same conclusion: Armed self-defense in public is at the very core of the Second Amendment right,” O’Scannlain wrote.
Plaintiff George Young sued Hawaii in 2012 for denying his applications for permits to carry a concealed or openly visible handgun. A Hawaii state law requires a license to carry a gun in public.
Under a Hawaii County regulation, the police chief may only grant such licenses to those who need a gun for their job or who show “reason to fear injury” to their “person or property.” No one other than a security guard has ever obtained an open-carry license in Hawaii, lawyers for the county acknowledged during a Ninth Circuit hearing in 2018.
In July 2018, a divided three-judge Ninth Circuit panel ruled that carrying a gun in public is a constitutional right and that Hawaii cannot deny permits to all non-security guard civilians who wish to exercise that right.
On Wednesday, the en banc panel majority reversed that decision, finding the Supreme Court’s 2008 Heller decision is not inconsistent with state laws that restrict the right to carry arms in public.
Iowa Republican State Senator Jason Schultz, sponsor of the bill repealing permit requirements for concealed carry:
“The amount of relief that is felt after about 11 years we’ve been dealing with this, all of that is behind us now,” he said. “Through all those 11 years, we knew that Iowans as free citizens should be trusted to exercise their right without a permission slip, without waiting.”
John Paul Stevens, who died on Tuesday, served on the Supreme Court for 35 years. His tenure, the second-longest in the court’s history, placed him in the middle of the great legal controversies of the late twentieth and early twenty-first centuries: on abortion and gay rights, Bush v. Gore and campaign finance, federalism and the death penalty. To Stevens, however, one of the court’s rulings stood out beyond all others.
“District of Columbia v. Heller, which recognized an individual right to possess a firearm under the Constitution, is unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench,” he wrote in The Atlantic in May. In 2008, Stevens wrote the principal dissent in the 5–4 decision, strongly arguing that the Second Amendment only protected a collective right to bear arms as part of militia service. The majority, led by Justice Antonin Scalia, concluded otherwise.
Rule 1.1 addresses a lawyer’s duty of competence. The new Comment to rule 1.1 provides that a lawyer’s duty of competence encompasses a duty to keep abreast of the changes in the law and law practice, including the benefits and risks associated with relevant technology.
Rule 5.4 addresses financial and similar arrangements with nonlawyers. The amendments to rule 5.4 adds a new provision which expands the existing exception for fee sharing arrangements with a nonprofit organization by adding an exception which provides where the legal fee is not court awarded, but arises from settlement or other resolution of the claim or matter, the lawyer may share or pay the legal fee to the nonprofit organization, provided that the nonprofit organization qualifies under section 501(c)(3) of the Internal Revenue Code and the lawyer complies with requirements to protect the client.
There are many laudatory words and phrases we might use to describe the Pope Francis the world has come to know over these past eight years. Genuine. Pastoral. Open-minded. Concerned for the poor, humanity, the environment. Friend of the marginalized.
But the pope's decision to approve the March 15 decree from the Vatican's Congregation for the Doctrine of the Faith instructing Catholic priests not to offer blessings for same-sex couples brings to mind a word that is much more bitter in the throat. Hypocrite.
Although gay unions can have "positive elements," the Vatican determined, they are "not ordered to the Creator's plan." God, said the doctrinal office, "does not and cannot bless sin."
Forgive us if we have whiplash. Pope Francis approved this? The same man who, when asked in 2013 about a gay priest in Vatican service, famously replied: "If a person is gay and is seeking the Lord and has good will, who am I to judge?"
The same man who has met with LGBT couples throughout his papacy, including during his visit to the U.S. in 2015? The same one who told Chilean abuse survivor Juan Carlos Cruz in 2018 that "it doesn't matter that you are gay" and "God made you that way and he loves you the way you are"?
The same one who personally intervened for one Italian gay couple to make sure their three children were able to be raised Catholic?
We recognize, of course, that the earlier papal quips and meetings did not ultimately change the church's teaching on human sexuality. That will take many years and will likely require the kind of open-ended, "no topic off the table" synodal process Francis has spoken so elegantly of throughout his papacy.
At NCR, we have been calling for such adialogue on sexualethics for years, urging a continuation of the development of the doctrine of sexuality that began in Vatican II. "This work has largely been stalled by the hierarchy's unwillingness to loosen its rigid interpretation of millennia-old ideas about natural law and the procreation norm," we editorialized in 2017.
It will also require a fundamental reorienting of the role of the doctrinal congregation. Nearly 60 years since the closing of the Second Vatican Council, it still remains unclear how such an office accords with the council's vision of a church of dialogue and shared pilgrimage.
But we come to the point of absurdity — and hypocrisy — when a pope says he wants to welcome LGBT people into the church but then simply cannot countenance that they might want to pursue loving relationships, just like the rest of humanity.
Perhaps Francis could learn from himself. About six years ago, he was asked by journalists traveling with him to three African countries whether the church should change its stance on artificial contraception, given the continuing spread of HIV/AIDS across the continent.
The pontiff paused before saying: "The question seems too small to me."
A priest blesses a couple during their wedding ceremony in this undated photo. (CNS/Reuters/Juan Carlos Ulate)
The pope said the query reminded him of how Jesus was questioned for performing healing miracles on the Sabbath. Identifying a host of urgent problems facing the world, such as malnutrition, human trafficking and lack of safe drinking water, Francis said: "I do not like to descend into reflections that are so casuistic when people are dying."
"I would say to not think if it is licit or not licit to heal on the Sabbath," the pope said then. "I say to humanity: Make justice, and when all are healed, when there is not injustice in this world, we can speak of the Sabbath."
Where has that Pope Francis gone? Surely, as the world stumbles to emerge from the greatest health and economic crisis in a century, there are more urgent issues for the Vatican to focus on rather than how God does or doesn't view gay unions.
For Catholic LGBT couples and their families, the timing is especially unfortunate. The forced distancing imposed by the pandemic has cut many off from their usual support structures, including their parishes. And now the pope of "building bridges and not walls" has erected another barrier.
On Thursday, the Columbia Law Review published one of the most important and topical scholarly articles in recent memory, “Delegation at the Founding.” Its authors, Julian Davis Mortenson and Nicholas Bagley, put forth a sweeping argument: They assert that an ascendant legal theory championed by conservative originalists has no actual basis in history. That theory, called the nondelegation doctrine, holds that the Constitution puts strict limits on Congress’ ability to let the executive branch set rules and regulations. Congress, for instance, could not direct the Environmental Protection Agency to set air quality standards that “protect public health,” and let the agency decide what limits on pollution are necessary to meet that goal.
Nondelegation doctrine has enormous consequences for the federal government’s ability to function, since Congress typically sets broad goals and directs agencies to figure out how to achieve them. The theory is supported by a majority of the current Supreme Court; in 2019, Justice Neil Gorsuch signaled his eagerness to apply the doctrine, and at least four other conservative justices have joined his crusade.
Gorsuch and his allies in academia insist that the men who wrote the Constitution believed in the nondelegation doctrine, giving the theory an originalist pedigree. Yet Mortenson and Bagley, both law professors at the University of Michigan and former Supreme Court clerks, have painstakingly debunked originalists’ claims of historical support for the doctrine. The publication of their article presents a grave challenge to conservative originalists like Gorsuch who purport to follow the evidence even when it leads to an outcome that clashes with their political preferences. As Mortenson and Bagley put it: “You can be an originalist or you can be committed to the nondelegation doctrine. But you can’t be both.”
On Thursday, I spoke with the authors about their paper and the response it has already provoked among academics with near-dogmatic faith in the doctrine they debunk. Our conversation has been edited for length and clarity.
Mark Joseph Stern: What is the nondelegation doctrine?
Senator Raphael Warnock gave his first speech on the Senate floor on Wednesday. The subject? Voting rights.
“We are witnessing right now a massive and unabashed assault on voting rights unlike anything we have seen since the Jim Crow era,” Warnock said, pointing to a wave of bills that limit voting in Republican-controlled states like Arizona and his own Georgia. “This is Jim Crow in new clothes.”
He went on:
Politicians in my home state and all across America, in their craven lust for power, have launched a full-fledged assault on voting rights. They are focused on winning at any cost, even the cost of the democracy itself. I submit that it is the job of each citizen to stand up for the voting rights of every citizen. And it is the job of this body to do all that it can to defend the viability of our democracy.
To that end, Warnock argued, the Senate should pass the For the People Act, which would establish automatic voter registration nationally, provide for at least two weeks of early voting and preserve mail-in balloting, as well as the John Lewis Voting Rights Advancement Act, which would restore pre-clearance to the Voting Rights Act, forcing covered jurisdictions to submit new voting plans for federal approval.
March 15, 2021 — In a landmark undertaking in the pursuit of racial healing and justice, Descendants of ancestors enslaved and sold by the Jesuits and the Jesuits of the United States have announced a partnership to create the Descendants Truth & Reconciliation Foundation.
Earl Williams Sr., Cheryllyn Branche, Father General Arturo Sosa, SJ, Joseph Stewart and Fr. Timothy Kesicki, SJ
The Foundation — formed by the GU272 Descendants Association and the Jesuits — is a first-of-its-kind partnership among the Descendants of the enslaved and the descendants of the enslavers. JPMorgan Chase is a supporter of this historic partnership.
Contrary to several other states, the New Jersey Supreme Court's Advisory Committee on Professional Ethics holds that a lawyer who "cc's" a client impliedly consents to his/her client receiving any replies directly. - GWC
..."While under RPC 4.2 it would
be improper for another lawyer to initiate communication directly with a client without consent, by
email or otherwise, nevertheless when the client’s own lawyer affirmatively includes the client in an
email thread by inserting the client’s email address in the “to” or “cc” field, we think the natural
assumption by others is that the lawyer intends and consents to the client receiving subsequent
communications in that thread. If the lawyer merely wants the client to see a copy of the
correspondence but does not want the client to receive subsequent emails from other lawyers, then
use of the “bcc” field would accomplish that goal.3"
The Committee is aware that other jurisdictions have rejected the concept of implied consent
to communications to represented parties in group emails and have decided that such conduct is a
violation of Rule of Professional Conduct 4.2. (fn4) Many of these opinions caution the sending lawyer
that it is inadvisable to include the client on the email, acknowledging that the sending lawyer
may be “setting up” opposing counsel for an ethics violation. The Committee finds that these
opinions from other jurisdictions do not fully appreciate the informal nature of group email or
recognize the unfairness of exposing responding lawyers to ethical sanctions for this conduct.
Accordingly, the Committee finds that lawyers who include their clients in the “to” or “cc”
line of a group email are deemed to have provided informed consent to a “reply all” response from
opposing counsel that will be received by the client. If the sending lawyer does not want opposing
counsel to reply to all, then the sending lawyer has the burden to take the extra step of separately
forwarding the communication to the client or blind-copying the client on the communication so a
reply does not directly reach the client.
4 See, e.g., Illinois State Bar Association Opinion No. 19-05 (October 2019); Alaska Bar
Association Ethics Opinion No. 2018-1 (January 18, 2018); South Carolina Bar Ethics Advisory
Opinion 18-04 (2018); Kentucky Bar Association Ethics Opinion KBA E-442 (November 17,
2017); North Carolina 2012 Formal Ethics Opinion 7 (October 25, 2013).
I think that John Stoehr hits the nail on the head. Biden's plain statement is the obverse of Reagan's notorious "eight most feared words in the English language": `I'm from the government I'm here to help." - gwc
Of the many sources of “political polarization” we experience today, I’d say this one, the unequal separation between the government and the citizenry, is its main source.
But what is the source of that? The answer, I think, can be found in the reaction to Harry Truman’s civil rights platform at the 1948 Democratic National Convention, during which Jim Crow states walked out and later rallied around the presidential “Dixiecrat” candidacy of South Carolina Governor Strom Thurmond, who said:
This is another effort on the part of this president to dominate the country by force and put into effect these uncalled for and these damnable proposals he has recommended under the guise of so-called civil rights, and I tell you the American people from one side to the other had better wake up and oppose such a program and if they don’t the next thing will be a totalitarian state in these United States.
Thurmond is a footnote to political history, but he articulated a key feature to periods in our history of white-power backlash against the slow liberalization of the republic, a feature that was never discussed while conservatives dominated political discourse. That feature was this: white supremacy demands what monarchy demands, the right to hereditary rule. The legitimacy of that demand depended to a great degree on the willingness of the American people—and the opposing party—to see the government as separate from the citizenry, a predicate reaching its zenith in the era of Donald Trump. Polarization wasn’t a byproduct of Trump’s partisanship. It was the point.
The press corps continues to define “bipartisanship” according to the old assumptions. The president, meanwhile, appears to feel the ground shifting. Three-fourths of Americans favor the passing of the American Rescue Act, even though it literally turns the government into a clearinghouse for pushing wealth downward to the bottom half of society. Additionally, 44 percent of GOP voters approve of Biden’s handling of the pandemic, as do a sizable number of Republican governors and mayors. In the past, bipartisanship meant the Democrats working with the Republicans. Now, it means the Republicans working with the Democrats, only the Republicans in the United States Congress are choosing not to, as if they believe the old assumptions are still in play.
More than half a million Americans are dead from the covid, more than all the men and women who died fighting in all foreign wars combined. That’s not just a tragedy. That’s a preventable tragedy that was impossible to prevent as a result of the prevailing belief over 40 years that the government and the citizenry are two separate and unequal things. Biden is not only mounting a public-health campaign. He’s mounting an ideological campaign to crush the old conservative assumptions that came close to crowning a king. In order to get everyone working together, he must bridge the divide between the government and the citizenry. He must convince us they are not separate and unequal but one and the same. He must remind us that the people are the republic.
National unity isn’t just how politicians vote in Washington. What the loudest voices say on cable or online. Unity is what we do together as fellow Americans.
The United States Supreme Court accepted and decided 74 cases last year. They also did a lot of damage by granting or denying stays. Through their `shadow docket', as Stephen Vladeck details in The Atlantic they restricted the ability of states to control the pandemic, blocked asylum applicants and other immigrants, and greenlighted a Trump surge in federal executions. A larger court - say 17 meeting in panels of 9 with occasional en banc review - serving fifteen year terms with a mandatory retirement of 70 or 75 - could triple the Court's docket. And the newly enlarged court could restore an ideological array more representative than the current right wing Catholic majority. - GWC
Aaron Belkin is director of Take Back the Court and the Palm Center, as well as a professor of political science at San Francisco State University.
When I founded Take Back the Court in 2018, the fight for Supreme Court expansion was a lonely one. In the two years since, dozens of organizations, elected officials and opinion leaders have come on board. But some of the stiffest resistance has come from the legal community.
That skepticism makes sense. For good reasons, lawyers and legal professionals are socialized in the idea that courts must be as above the fray, nonpartisan and legitimate as possible. Unfortunately, today’s Supreme Court hardly lives up to the paradigm.
In 2016, when Sen. Mitch McConnell and the Republican Senate refused to consider the nomination of Judge Merrick Garland to the high court, they didn’t just steal a seat — they robbed the court itself of some of its remaining legitimacy. Last year, when they broke their own cynically contrived rule against confirming justices in an election year to confirm Justice Amy Coney Barrett, they obliterated any facade that the court is above the partisan fray.
But the assault on the court’s independence is not only coming from outside the building. As many readers of SCOTUSblog likely know, Sen. Sheldon Whitehouse examined all 73 split-decision civil cases between 2005 and 2018 in which Republican Party donors had a clear interest. The conservative majority sided with conservative donors all 73 times. In approximately half of those cases, the majority ignored, overturned, or sidestepped conservative judicial doctrine to reach a decision favored by their co-partisans. That’s not calling balls and strikes, and it’s not just conservative jurisprudence. It’s a court functioning, for all intents and purposes, as an extension of the Republican Party.
Democracy on the brink
The court’s partisanship has especially alarming implications for American democracy. Whenever I make the case for expansion, I start with the reality that our democracy is in peril. Inevitably someone asks whether that’s hyperbole. It’s not.
The only way we can restore the court — and democracy itself — is to add seats, and the only window to act is now. That’s why I welcome this opportunity to dive into concerns I hear from well-meaning skeptics.
1. Even if Republicans broke the norms first, wouldn’t it be better for democracy if Democrats respect them?
It is wrong and dangerous to consider reversing a broken norm as an act of norm-breaking itself. Doing so would incentivize and entrench ongoing normative violations. (In game theory, this is called playing the sucker, though the point here isn’t to score points for the Democratic Party, but rather for democracy.)
As Professor Thomas Keck underscores, there’s a critical difference between constitutional hardball designed to tank democracy and hardball designed to strengthen it. Adding seats is the way we can ensure the John Lewis Voting Rights Act, D.C. statehood, and so many other reforms focused on strengthening democracy can survive.
2. Won’t Republicans just retaliate and add more seats when they are in power?
"Nominal damages are not a consolation prize," Justice Clarence Thomas wrote for the court majority. "Despite being small, nominal damages are certainly concrete. ... a person who is awarded nominal damages receives 'relief on the merits of his claim.' "
In his dissent, Roberts noted that there "are just a few problems" with the students' desire to continue their lawsuit.
"The challenged restrictions no longer exist," he said. "And [the students] have not alleged actual damages."
The case, he added, is therefore moot because there is no live pending legal question.
by Garrett Epps (professor of law emeritus at the University of Baltimore.)
On June 6, 1960, Bibb County Superior Judge Oscar L. Long greeted a new grand jury in his courtroom in Macon, Georgia. The judge had also invited local reporters, who received a printed copy of the instruction he was about to give to the jurors. Judge Long—and the two other judges of the Macon Circuit—had something important to say, and wanted it heard far and wide.
Black people in Bibb County were voting. Not in proportion to their numbers, mind you—that would have been unthinkable in 1960. Bibb County’s population was about one-third Black, while the Black vote accounted for only about 15 percent of the county’s total. But there were enough Black voters to sway a close election. (In Bibb County, “Negro” and white voters used separate ballot boxes and their votes were totaled in separate columns.)
The three judges had jointly decided that the new grand jury (Georgia grand juries, selected by clerks as “upright and intelligent” citizens, were always overwhelmingly white), was to investigate the “inane and inexplicable pattern of Negro bloc voting.” Like political figures all over the segregated South, Long found it inexplicable that Black voters would band together into political organizations and vote together for candidates they chose.
The investigation, Long explained, was sparked by “persistent rumors and accusations concerning the methods used in the solicitation of the Negro vote and the alleged bartering of the bloc vote.” He asked the jurors to investigate this suspicious activity: “Was the Negro vote delivered in bloc to any candidate or candidates . . .What money was involved, if any?…What promises did the candidate make, if any, in order to obtain the bloc vote?” And Long added that the grand jurors’ job went beyond mere criminal charges; whether they indicted anyone or not, they should, Long said, also “bring to light those practices which, while not technically in violation of any law, are yet so immoral or corrupt as to be destructive of the purposes of our system of elections.”
Even though the Civil Rights Act and the Voting Rights Act still lay in the future, Long was right to be nervous; there were rumblings of change in Bibb County. The state’s venerable “county unit” system (akin to the national electoral college) was under challenge. County voters would, a few years later, elect their first Republican legislators. Sheriff James I. Wood, like Judge Long, was an elected official. The details of Bibb County politics are hazy, but he seems to have come from a different political faction, and indeed may have benefited from the Black vote; at any rate, he felt less unfriendly toward Black voting than the Superior Court judges did. The day after Long delivered his instructions, Wood issued an open letter to the grand jury protesting the instruction. “This is the type of political-legal action which brings down ridicule and demands for civil right legislation against the South,” he warned. “Negro people will find little difference in principle between attempted intimidation of their people by judicial summons and inquiry and attempted intimidation by physical demonstration such as used by the K.K.K.” He added that if the judges wanted an investigation of “bloc voting,” they should investigate “that gigantic ‘bloc vote’ which is controlled by a handful of men known as the Bibb County Democratic Executive Committee.”
The Superior Court (which had issued the instruction) promptly slapped Wood with three counts of contempt and interference with a grand jury, each carrying a sentence of 20 days in jail and a $600 fine. The U.S. Supreme Court overturned the contempt convictions. In his majority opinion, Chief Justice Earl Warren wrote that Sheriff Wood was simply engaging in “the types of activity envisioned by the Founders in presenting the First Amendment for ratification.”
Wood v. Georgia is a very minor First Amendment precedent; but Judge Long’s instruction to the grand jury is worth careful study. It elegantly states a persistent racist Southern belief: When Black people vote, there is probably vote fraud; when Black-supported candidates win, there is definitely corruption. If not an exchange of money, then “influence” on Black voters, who (unlike whites) don’t really think for themselves. Are the “rumors and accusations” true? Maybe and maybe not, but at any rate white people don’t … well, gosh darn it, they just don’t feel good about it. And when white people don’t feel good, that’s a crisis.
