John Paul Stevens’ unique jurisprudence on the death penalty

When Justice John Paul Stevens retired in 2010 plenty of people had asserted the notion that he had changed. Undeniably Stevens had changed positions on the death penalty, but Stevens himself was always adamant that he didn’t change, the Court did. But unequivocally when Stevens was leaving the Court, he held the notion of several of his peers 35 years into the past.

In 1976, two cases changed the face of punishment in America. For four years, capital punishment, also known as the death penalty had been ruled unconstitutional under the Eighth Amendment to the United States Constitution, which strictly prohibits “cruel and unusual punishments.” Although its clear that these types of punishments were forbidden, what classified as cruel or unusual (or whether a punishment had to be both) has been subject to centuries-long discussion. Those two aforementioned cases were Gregg v. Georgia and Jurek v. Texas. Justices Stevens, Stewart and Powell wrote a plurality opinion overturning death penalty precedent, again allowing the punishment to be used.

Over the next 30-or-so years, Justice Stevens slowly but surely drifted from his original opinion. It was apparent he was becoming frustrated. When Stevens overruled precedent, he did so believing that the Court would uphold the rigorous framework the plurality designed for the death penalty.

In numerous cases, the Court tried again and again go against his views on the types of crimes and persons who could receive the death penalty, the ways it could be administered and the acceptable procedure for selection of the death penalty. There were successful attempts to apply the death penalty to the mentally ill (which was eventually overruled), allow judges to apply the death penalty over a jury explicitly rejecting it and the allowance of racial bias in the crimes considered for the death penalty.

Eventually, in a case called Baze v. Rees, Justice Stevens could no longer accept impermissibly loose standards for the death penalty. He ruled to keep capital punishment only to abide by precedent, but called into question the very constitutional foundations and purposes the death penalty serves.

Transgender rights case to be argued in March

The debate has become heated in America around transgender individuals’ right to use the bathroom that matches their gender identity. These feuds have made their way into the legal system, with debates over whether it violates Title IX or the Equal Protection clause of the 14th Amendment.

A case from Virginia and the Federal Court of Appeals for the Fourth Circuit, G.G. v. Gloucester County School Board, has been granted cert from the Supreme Court. Since the petitioner to the Fourth Circuit won their appeal, the case before the Supreme Court is called Gloucester County School Board v. G.G. The case comes before the Supreme Court for debate on March 28, with one catch.

In light of Trump administration’s rejection of previous transgender bathroom guidelines for public education, the Court, on Feb. 23, asked both sides how they would like the case to proceed. The Obama administration, according to SCOTUSblog, had interpreted a 1975 statute to mean schools should “treat transgender students consistent with their gender identity.”

It’s also important to note that the questions approved for cert did not address the Equal Protections clause and only sought to answer two questions: (1) “If Auer is retained, should deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?” and (2) “With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?”

In the cert petition, the filers noted that the precedent and doctrine from the 1997 case Auer required the Fourth Circuit give deference to the letter.

SCOTUSblog: A fantastic resource

Tom Goldstein and Amy Howe are the married couple who have run SCOTUSblog.com for 15 years. For those who don’t know, SCOTUS stands for Supreme Court of the United States, and interestingly enough the blog has more visitors than the government website for the Supreme Court.

What most people will notice about this informational site is the lack of advertisements. In a 2013 interview, Goldstein said “the original model of the blog was just a marketing tool, and so we would hype our own work.” However, noticing this method wasn’t working, Goldstein remade the website’s image as a “public-interest tool.” He said Howe spends most of her time on the blog, and the website contributes to a lot of the work he gets for his Supreme Court practice. Ostensibly, Goldstein and Howe make little if anything from SCOTUSblog directly.

SCOTUSblog does a tremendous job as a public-interest tool for anyone curious about the workings of the Supreme Court, especially when it comes to the “Statistics” and “Plain English” sections. Both offers something special to visitors who are not familiar with the Supreme Court I feel most coverage doesn’t. Often times, reporters well-versed in legalese will either gloss over terms and certain implications of cases, or omit them completely. However, SCOTUSblog takes these challenges head on and provides a glossary of legal terms, biographies of the justices and Supreme Court procedure, not to mention analyzing cases in basic English and interpreting their meaning. Further, if you wished to do reporting or project on specific justices, the “Statistics” tab breaks down current-term majority opinions, rates of cert grants and where grants are coming from (whether state supreme courts of appellate courts).

All in all, if someone is researching, writing about or simply wanting to understand the Supreme Court, SCOTUSblog is a fantastic tool that takes the daunting nature out of the Nation’s highest court.

A look back at Robert Bork

Robert Bork’s nomination to the Supreme Court changed the history of judicial nominations. Since then, nearly every nominee for the Supreme Court and many appeals court nominees have been highly politicized. It was no longer “was this person suited” but “are they inside the ideological mainstream?” It became liberal vs. conservative, red vs. blue, Republican vs. Democrat.

Bork was born in Pittsburgh, Pennsylvania in 1927. He graduated from the University of Chicago and went to the law school there after earning his bachelor’s. After private practice, he became a professor at Yale, and eventually was nominated to be a judge on the U.S. Court of Appeals for the D.C Circuit. In 1987, one year after Scalia was confirmed for the Supreme Court, Bork was nominated to take Justice Powell’s seat. What ensued broke Bork.

Reagan and the Republicans had lost the majority in the Senate, and senators Joseph Biden (D-Del.) and Edward Kennedy (D-Mass.) fought to show Bork was not fit for the Court, with his Originalist views extending far beyond the “mainstream.” Bork said Brown v. Board, the most famous and important Civil Rights cases in the history of the Supreme Court, was an act of judicial activism as contentious as Roe v. Wade. Although he stated that Brown v. Board was rightly decided, he believed it could only be done when expanding the intentions of the drafters of the Fourteenth Amendment. And although such criticism was mild, it broke an unspoken rule about Brown v. Board: that the ruling is beyond debate. On national television, Kennedy sunk the nomination with his speech about Bork’s America:

“In Robert Bork’s America, there is no room at the inn for blacks and no place in the Constitution for women. And, in our America, there should be no seat on the Supreme Court for Robert Bork.”

With this, Bork was voted down 58-42, and resigned from his judgeship on the D.C. circuit the next year. He went on to write books as well as being a visiting professor.

Discussion: Originalism moved the Court right

The term Originalism has become a common one around the Supreme Court and in the legal field. The concept, applied to the Constitution, means to interpret the text based on either the original intent of the Founding Fathers or what the text would have meant to people at the time of ratification. There have been several valid critiques of Originalism but it has captured a sizable audience. Scoffing at the Living Constitutionists’ amorphous interpretations, Justice Antonin Scalia brought the theory of Originalism into practice on the Court.

Failed Supreme Court Nominee Robert Bork would have been the second Originalist on the Court in a span of less than three years. However, it wouldn’t be until 1991 (Scalia was confirmed in 1986) when Clarence Thomas joined the Court did it have two full-fledged Originalists. Both powerfully conservative in their jurisprudence, Scalia and Thomas were frequent dissenters and managed to shift the argument to their battleground, on what the Constitution would have meant in 1791. This is no more on show in the famous gun rights case, District of Columbia v. Heller. In this case, Scalia argued, through textualism and Originalism, that the Second Amendment protected an individual’s right to bear arms. Previously, it had been understood that it only protected a more general, group-based right based on the operative “militia” clause. Scalia said the clause did not affect the base meaning of the text. Both Stevens and Breyer argued against this, saying that the militia clause only gave the right for States to have state-based militias with weaponry, not for an individual right to use guns for self-defense. Breyer went farther and used historical evidence to evince that the Founders never intended an individual right to weaponry for self-defense purpose, and historians who read the case generally agreed with Breyer. But that’s not the point. The point is they were fighting on Scalia’s turf. Doing this, albeit with several very conservative justices, Scalia moved the Court to the right.

One important distinction is between Scalia and Thomas’s views of Originalism. Scalia interpreted based on original meaning, what people at the time of ratification would have thought the text of the Constitution. The same follows for the people in 1868 with the Fourteenth Amendment. Scalia was willing to bend at times, conceding that he would have joined the majority in Brown v. Board even though Originalist views would not justify it. Thomas, however, took more of a hard-line approach to the Constitution, arguing for original intent. He’s always searching for what the Founders meant to say with their words in the Constitution, and is usually not willing to budge. Thomas will join majorities or dissents where he wants the same outcome, but will almost always write a concurrence or dissent with his own reasoning to arrive at that conclusion.

Interfaith Summit continues after snowy delay

Despite a keynote address being postponed due to a blizzard on Thursday, Feb. 9, the New England Interfaith Student Summit (NEISS) continued on. The address was moved to Friday, and students held dialogues about faith and empathy in the recent political climate.

NEISS, hosted in the Curry Student Center at Northeastern University, featured Valarie Kaur, filmmaker and civil rights activist, who talked to students and faculty. Her uncle Balbir Singh Sodhi, a Sikh man, was killed four days after 9/11 in a hate crime for wearing a turban. She also spoke to people at NEISS  about a video she made, where she and her other uncle Rana Sodhi, Balbir’s brother, called Balbir’s murderer. She spoke to the crowd about revolutionary love, a concept about which she is working on a book, and is the idea that love should be spread to where it is not. In Kaur’s case, this means to even her uncle’s murderer, who apologized to Kaur for Balbir’s death in the video.

 

 

Discussion: Merrick, The Would’ve Been

Merrick Garland will forever be remembered as the would’ve been Supreme Court justice. But obstructionism in the Senate halted and prevented the last nomination of President Obama. The historic obstruction lasted 293 days before Garland’s nomination expired.

Garland has been described as a centrist judge, as opposed to Obama’s other appointments of liberal justices, Kagan and Sotomayor.

Garland graduated from Harvard University and then Harvard Law School. He clerked for Judge Henry Friendly and Justice William Brennan. He served as Deputy Assistant Attorney General and, in 1995, was appointed to the Federal Court of Appeals for the D.C. Circuit by President William Clinton. During his confirmation, he said judges do not have “roving commissions to solve societal problems,” signaling his repudiation of judicial activism. Republicans halted his nomination but we finally appointed in 1997 after another nomination by Clinton. He was considered on the short list alongside Elena Kagan and Sonya Sotomayor for Justice John Paul Stevens seat on the Court.

He was then nominated in 2016 to fill the seat of the late Antonin Scalia, which, as we know, did not go his way. In a Washington Post article, some lawyers suggested that although the Supreme Court found intersession recess appointments to be unconstitutional, Garland could have been appointed in the intrasession recess of 2016. Yet, other lawyers noted that in the same opinion, Noel Canning v. NLRB, Justice Breyer’s opinion precluded both.

As far as rulings go, Garland agreed with the other two judges on the D.C. Circuit stating the courts lacked habeas corpus jurisdiction over Guantanamo. However, Garland ruled to uphold environmental regulations of the Clean Air Act, subsequently overturned by the Supreme Court. In many cases, such as Heller v. D.C., Garland showed much restraint and moderation as a federal judge.

Regardless of his record, Garland will, rather haplessly, be remembered as the Supreme Court would-have-been.

 

Trump Nominates Neil Gorsuch, 10th Circuit Judge

Tenth Circuit Court of Appeals Judge Neil Gorsuch was nominated by President Donald Trump to fill the vacancy on the Supreme Court. On Tuesday, Jan. 31, at the White House, Trump announced his pick to media and administration staff.

Gorsuch, 49, is young for a justice and boldly conservative. He shares much of, and admires, the philosophy of the late Antonin Scalia, a theory of Constitutional interpretation called “originalism.” Gorsuch attended Columbia University, was a Marshall Scholar at Oxford, and graduated from Harvard Law School. Gorsuch was nominated to the 10th Circuit in 2006 by George W. Bush.

According to ScotusBlog, Gorsuch has many similarities to Scalia in his judicial philosophy on numerous issues. This includes criminal proceedings, religion, the death penalty and the commerce clause, all hot-button issues for conservatives. However, an “area that seems to demonstrate some real distance between Scalia and Gorsuch” is in Administrative Law.  In their view, Scalia often deferred from interfering with administrative agency implementations of their own policies, whereas Gorsuch seems to believe it is the courts’ role to interpret the policies of agencies using a textualist-style approach.

CNN noted that conservatives like his viewpoints on religion. In  Hobby Lobby Stores v. Sebelius, Gorsuch endorsed the ability of companies to refuse the contraceptive mandate of the Affordable Care Act on the basis of their religious beliefs.

Some Democrats have already suggested halting his nomination in the Senate, because they believe the seat was wrongfully stolen from President Obama. President Trump has not taken kindly to such notions.

“If we end up with that gridlock, I would say ‘Mitch, go nuclear,'” Trump said, referring to Senate Majority Leader Mitch McConnell. The nuclear option means McConnell would change Senate procedures and remove the ability for filibustering a nominee to the Supreme Court, essentially requiring an up-or-down vote on Gorsuch.

 

Twitter Coverage – What It’s Like to Report Exclusively on Social Media

The event I covered using Twitter was the Chinatown Speakout on Saturday, Jan. 28. I took several pictures and followed protesters from their march at the Chinatown Gates to the Statehouse past Boston Common. The organizers spoke out against President Donald Trump’s immigration and refugee policies, and many members voiced their opposition to what they saw as racist, sexist and xenophobic policy initiatives undertaken in his first week in office.

I was hoping to give people a real-time look at what was happening and what the sentiments were at the march. I wanted to give people plenty of visuals to see what kind of signs were there, what things were being said and where they were. Additionally, I captured a few people who were onlookers to the rally and I didn’t think of it beforehand but it was also an important aspect to cover. Onlookers seem fascinated.

Twitter news coverage was a new experience to me, and it wasn’t as bad as I thought it was going to be. I can definitely see pros and cons to using Twitter as a coverage tool, but I’ll be honest and say that it doesn’t work well as the only tool. I think the AP does a great job by curating its content and pushing the most important information as soon as possible. So the negatives are obvious, there’s very little chance room for fact checking, if you are using Twitter as your main coverage tool and trying to push out constantly. Twitter almost lends itself to constant uploading immediately and isn’t very conducive to patient, journalistic work, though it can be achieved. On the positive side, however, its very easy to cover breaking news and keep your audiences informed with push notifications on their phones. There’s no need to “head back to the office,” or begin writing in a word document. But this often doesn’t let the writer see what kind of structure is most useful for his/her story and can lead to a lack of organization.

The optimal use for Twitter, in my view, is part of a reporter’s tool-belt.