Vol. 127 No. 1 Midway through the oral argument in Maryland v. King, Justice Alito spontaneously interjected: “[B]y the way, I think this is perhaps the most important criminal procedure case that this Court has heard in decades.” The juxtaposition between the breeziness of his comment and the solemnity of its content befit the case, which is best characterized as a sleeper in a Term overshadowed by monumental rulings on gay marriage, voting rights, and affirmative action. What looked on its face like just another Fourth Amendment dispute – with civil libertarians on one side and law enforcement on the other – garnered no special attention. But King is no ordinary Fourth Amendment case.
Vol. 127 No. 1 In his second inaugural address in January 2013, President Barack Obama associated the struggle for gay equality with that for racial equality by conjoining, alliteratively, Stonewall with Selma (along with Seneca Falls). The President went on to proclaim that “[o]ur journey is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well.”
Vol. 127 No. 1 Retirement with dignity was denied to section 5 of the Voting Rights Act of 1965 (VRA). If ever a statute rose to iconic status, a superstatute amid a world of ordinary legislation, it was the VRA. In the course of not quite half a century, the Act was pivotal in bringing black Americans to the broad currents of political life – a transformation that shook the foundations of Jim Crow, triggered the realignment of partisan politics, and set the foundation for the election of an African American President.
Vol. 126 No. 1 Two very different visions of the national government underpin the ongoing battle over the Affordable Care Act (ACA). President Obama and supporters of the ACA believe in the power of government to protect individuals through regulation and collective action. By contrast, the ACA’s Republican and Tea Party opponents see expanded government as a fundamental threat to individual liberty and view the requirement that individuals purchase minimum health insurance (the so-called “individual mandate”) as the conscription of the healthy to subsidize the sick. This conflict over the federal government’s proper role is, of course, not new; it has played out repeatedly over our nation’s past. But rarely since the New Deal has it surfaced in such a distinctly constitutional guise with respect to economic legislation. Instead, after the Supreme Court sustained broad congressional power seventy-plus years ago, little doubt existed that the federal government generally had constitutional authority to regulate private activity if it chose to do so. The Rehnquist Court’s reassertion of limits on congressional power under the Commerce Clause indicated that some measures may go too far. Still, the fight over the federal government’s proper role in the economic sphere has been largely political, not constitutional.
Vol. 126 No. 1 The constitution of the United States is to receive a reasonable interpretation of its language, and its powers, keeping in view the objects and purposes, for which those powers were conferred. By a reasonable interpretation, we mean, that in case the words are susceptible of two different senses, the one strict, the other more enlarged, that should be adopted, which is most consonant with the apparent objects and intent of the constitution . . . .
– Joseph Story (1833) That the Court was sharply divided was not a surprise. The contrasting briefs – including a record 136 from amici – laid out the dispute. Over the extraordinary six hours of oral argument, the Justices actively interrupted the advocates, with Justices Ginsburg, Breyer, Sotomayor, and Kagan directing considerably more words to the challengers, and Chief Justice Roberts and Justices Scalia, Kennedy, and Alito the mirror image, directing far more of their words to the government. So it was not a surprise to find that the Justices produced two starkly warring opinions. One would strike down as unconstitutional the entire Patient Protection and Affordable Care Act, and another would entirely uphold the same law; the two opinions embodied distinctive approaches to the issues at hand, to constitutional interpretation, and indeed, to how to view the world.
Vol. 126 No. 1 For many years, plea bargaining has been a gray market. Courts are rarely involved, leaving prosecutors unconstrained by judges or juries. Prosecutor’s plea offers largely set sentences, checked only by defense lawyers. In this laissez-faire bargaining system, defense lawyers, not judges or juries, are the primary guarantors of fair bargains and equal treatment for their clients. But the quality of defense lawyering varies widely. Bargaining can be a shadowy process, influenced not only by the strength of the evidence and the seriousness of the crime but also by irrelevant factors such as counsel’s competence, compensation, and zeal. And because bargaining takes place off the record and is conveyed to clients in confidence, it is not easy to verify that defense counsel have represented their clients zealously and effectively.
Vol. 125 No. 1 Can eighteenth-century constitutional commitments that “courts shall be open” for private rights enforcement be coupled with twentieth-century aspirations that democratic orders provide “equal justice under law”? That question sits at the intersection of three cases, AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, decided in the 2010 Supreme Court Term. In each decision, Justices evaluated the fairness of particular procedures (class arbitrations, class actions, or civil contempt processes) when making choices about the meaning of governing legal regimes – the Federal Arbitration Act (FAA) and state unconscionability doctrine in AT&T; Rule 23 and Title VII in Wal-Mart; and the Due Process Clause and child support obligations in Turner.
AT&T and Wal-Mart presented related questions about how the form of dispute resolution (individual or aggregate) and the place of dispute resolution (public or private, state or federal) affect the level of public regulation of consumer and employment transactions predicated on boilerplate, rather than negotiated, terms. The issue in Turner was whether state-funded lawyers were required before a person could, at the behest of the child’s custodian, be incarcerated for contempt for failure to pay child support. The specific case involved two individuals, but their circumstances illustrated the challenges faced by millions of other lawyer-less litigants in state and federal courts.
Vol. 124 No. 1 In Two Concepts of Freedom of Speech, Professor Kathleen Sullivan observes that Citizens United tracks the philosophical divide between competing conceptions of free speech. The “free-speech-as-equality” camp reads the First Amendment to allow speech regulations that promote political equality, while the “free-speech-as-liberty” camp views the Amendment as a negative constraint on any speech regulation, regardless of its motivation. This dichotomy is important not only for analyzing the forces at play in Citizens United, but also for understanding the changing alliances of Justices in other First Amendment cases. Professor Sullivan argues that any political reforms that may arise from Citizens United would be well-served by accounting for and accommodating both conceptions of free speech.
Response to Corruption, Clients, and Political Machines
Vol. 124 No. 1 In On Political Corruption, Professor Samuel Issacharoff revisits the central paradigm of the country’s now-frayed campaign finance regulation regime by presenting two competing concepts of corruption. One concept is based on Buckley’s declaration that preventing the possibility or appearance of quid pro quo corruption constitutes a sufficient government interest to regulate political speech, and on Citizens United’s holding that the quid pro quo corruption interest is now the only interest that justifies imposition on the First Amendment in this area. The other concerns ensuring the integrity of the outputs of government policy. He argues that it is this possibility of subverting public goals to the whims of powerful special interests – rather than changing the outcomes of elections – that we should be most concerned about. Professor Issacharoff concludes with an appeal to rethink the incentive structures of our current system in order to formulate appropriate and coherent campaign finance reforms in the wake of Citizens United.
