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The Year in Opinion
The National Law Journal
During the past year, practitioners, academics and former state chief justices have weighed in on a range of legal issues in these pages. The U.S. Supreme Court's ruling on the Affordable Care Act figured prominently, as did other hot-button issues now before the court, such as same-sex marriage, affirmative action and the Voting Rights Act. Other topics tackled included the election and the state of the profession. Here are some highlights.
SUPREME COURT VOTING RIGHTS ACT
The U.S. Supreme Court was surely correct last month when it unanimously overturned the Texas electoral maps a San Antonio federal district court drew because that court did not use the "appropriate standards" in drawing them.…Fair enough, but this reasonable-sounding decision belies larger issues: The Voting Rights Act has served its purpose but is now outmoded and unworkable and is thus itself now unconstitutional.…
Section 5 was a valuable tool in the fight against systemic disenfranchisement, but it now facilitates the very discrimination it was designed to prevent.…The law, most recently renewed in 2006 for another 25 years, is based on deeply flawed assumptions and outdated statistical triggers, and it flies in the face of the 15th Amendment's requirement that all voters be treated equally.
Justice Anthony Kennedy faces a simple choice with profound consequences: When the U.S. Supreme Court considers the issue of marriage equality for gays and lesbians does he want to write the next Plessy v. Ferguson or the next Brown v. Board of Education?…[E]veryone expects that Kennedy will be the deciding vote.…
In light of this, Kennedy has to know that a Supreme Court opinion rejecting marriage equality will be regarded in hindsight as misguided as its infamous ruling in Bowers v. Hardwick, which held that states could criminally prohibit private adult consensual homosexual activity. Kennedy wrote the opinion in Lawrence v. Texas, overruling Bowers. In fact, there have been only two Supreme Court decisions in history advancing rights for gays and lesbians Romer v. Evans in 1996 was the other and Anthony Kennedy authored the majority opinions in both.
AFFORDABLE CARE ACT
It would have been ironic indeed if the Supreme Court had struck down the individual mandate to purchase health care. Opponents of the mandate objected to what they saw as an unjustified effort by Congress to expand the power of the federal government. But in fact, the Affordable Care Act's mandate represents a weaker assertion of federal power than occurred when Congress enacted Medicare in 1965. …
In the end, Chief Justice John Roberts Jr. was true to his understanding of the Supreme Court's role at his confirmation hearings. With his decisive vote, the court rejected the invitation to roll back 70 years of constitutional precedent. Instead, the opinion reflects the more modest role for the court that Roberts described upon his nomination in 2005.
This is a shocking decision, one that should concern all Americans. Prior to today, it was absolutely clear that there were structural limits upon the federal government's power to regulate private conduct. As the dissent points out, today's decision makes "mere breathing in and out" the basis for federal regulation and thus grants the federal government the power to regulate virtually all spheres of human activity. This is a sad day for America and for our constitutional republic.
SUPREME COURT LEAKS
TODD C. PEPPERS
In the weeks after the U.S. Supreme Court announced its ruling in the "Obamacare" case, as much attention was paid to the leaks surrounding the decision as to the decision itself. In a report that stunned official Washington, CBS reporter Jan Crawford revealed confidential information about the internal deliberations of the justices regarding the pending case information that detailed not only Chief Justice John Roberts Jr.'s last-minute decision to join his liberal colleagues in upholding the constitutionality of the legislation, but also the lobbying efforts by the conservative justices to win back the chief justice's vote.…
If law clerks were the source of the leaked information (and there is some speculation that clerks may have leaked information about the case prior to the decision), then they have clearly violated the code of conduct. But what if the leaks were made at the behest of a justice? This does not exonerate the clerks, since the code provides that their duty of confidentiality applies to both their individual justices and the court as an institution.
ALAN B. MORRISON
On October 10, the U.S. Supreme Court heard oral arguments in Fisher v. University of Texas, the latest in a series of cases in which the court has struggled to decide whether universities that are attempting to increase the numbers of African-Americans and Hispanics in their student bodies have gone too far and thus violated the equal protection clause of the Constitution.…
The presence of the large number of amicus briefs, presenting a wide range of views on all sides, might suggest to the court that it has enough information to be able to craft a sensible solution. To the contrary, an examination of even a few of those briefs demonstrates that there are stark policy choices to be made, based on which arguments one finds most persuasive and which studies are most reliable. Those are exactly the kinds of choices that are much more appropriately made by an open process conducted by the other branches of government, in this case the Texas Legislature, working in conjunction with the governor, the board of regents of the university, and those in charge of undergraduate admissions.…The Texas holistic approach is a modest and reasonable means to supplement the top 10 percent law for undergraduates at the University of Texas. If the Supreme Court concludes otherwise and does not end all racial preferences, it should write as narrow an opinion as possible, leaving open other avenues to achieve diversity.
What's changed since 2000 about election-related litigation? To start with, there's much, much more of it. When I first started teaching Election Law in the 1990s, the off-season for election disputes was all the time except for the fall in even-numbered years. These days, it is hard to keep up with all the litigation filed every year (though it peaks in presidential election years). I track the court action on the Election Law Blog, and I've posted more than 30,000 items since 2003.
In the period just before Bush v. Gore, courts in the U.S. collectively decided on average fewer than 100 election-related cases per year. Since 2000, that figure has more than doubled, to over 230 such cases nationally per year. Candidates are litigating early and often.
RUTH V. MCGREGOR AND RANDALL T. SHEPARD
For more than a decade, special interests have engaged in increasingly partisan efforts to tilt the scales of justice, spending tens of millions of dollars to elect judges whom they believe fit their political beliefs. Now these assaults on America's courts are expanding in troubling new ways and in dimensions we have never witnessed.
In states as dissimilar as Florida and Iowa, interest groups are seeking to oust judges because they disagree with a few rulings in controversial cases. By focusing on retention elections a historically low-key vote focusing on judges' professional qualifications these groups have threatened to puncture a protective shield that keeps politics outside the courthouse.…
We were initially appointed by Repub-lican governors to our respective supreme courts. Voters granted us retention multiple times. We have no political agenda in speaking out. Rather, we fear that our courts are under fire for doing their job and that political attacks today threaten to interfere with judges fairly and impartially following the rule of law tomorrow.
Transforming judicial elections into referenda on a few rulings in controversial cases threatens this impartiality. It creates a profound risk that Americans seeking a fair day in court will instead get caught up in the nation's political wars.
DEBORAH L. RHODE
Finally, the dust has settled over Anne-Marie Slaughter's controversial article in The Atlantic on why women can't have it all. So the moment has come to stand back, get a grip and ask why such a firestorm occurred, and what it implies for the struggle for gender equity.
The situation begs for explanation, because neither the problems Slaughter described nor the solutions she proposed are in any way new. The facts are, in fact, frustratingly familiar. Her personal difficulties in reconciling a high-pressure position in the State Department with a family life in Princeton, N.J., are one more variation on a well-worn theme. An accomplished lawyer who recognizes that she can't do everything well gives up the job. So, too, the correctives for work-family conflicts that Slaughter advocates have been on the feminist agenda for decades: quality day care, flexible schedules, less insistence on face time, more coordination between school and workplace schedules and more accommodation of interrupted career trajectories.
So why did the article set off such a feeding frenzy?…For some women, it resonated with their experience and validated their choices. For others, it set their teeth on edge, and reaffirmed traditional gender stereotypes. And for a third group, myself included, it evoked mainly frustration. Once again, so many women seemed willing to substitute venting about the problem for organizing to address it.
At the Pro Bono Institute, we are committed to a data- and evidence-based approach to expanding and improving pro bono service, and so…the following are the most common myths we've heard recently about law firm and corporate pro bono.
Myth No. 1: Law firms only want "sexy" pro bono matters. This is perhaps the most frequently repeated piece of misinformation about the pro bono services undertaken by large law firms.…
There are two problems with this myth. First, the data indicate that just the opposite is true. Annual statistical reports from the many large law firms that are signatories to the Pro Bono Institute's Law Firm Pro Bono Challenge indicate that at most large firms a substantial percentage of the pro bono work undertaken by the firm's lawyers is, in fact, composed of individual legal aid-type matters in the areas of landlord/tenant, consumer, family law, public benefits, wills and the like.…The second problem with the myth…is the idea that complex, time-consuming and often controversial pro bono matters and only those types of matters are inherently sexy.…What makes pro bono matters attractive to firms or individual lawyers is education and passion. Making the case for the need for representation, and finding, for every lawyer, the type of matters that capture the imagination and address the passion for justice can be done for all kinds of pro bono legal work. Every area of pro bono work is potentially "sexy" for someone.