Faculty Blog, Fourteenth Amendment, Friedman, New England Law Review, U.S. Supreme Court

Faculty Blog: Analyzing Race-Based Classifications After Fisher

By: Lawrence M. Friedman  In his dissenting opinion in Fisher v. University of Texas, Justice Alito argues that the Court indulged the university’s “plea for deference” in the application of strict scrutiny to its race-based affirmative action program. And he’s probably right, too: the scrutiny the majority applied in Fisher seems less strict than the scrutiny the Court historically has given race-based classifications. But this isn’t to say that the result Alito would have reached—striking down the university’s plan—is also right. For he fails to appreciate that, just as equal protection doctrine protects only individuals who are similarly situated, strict scrutiny applies in the same way only in similarly situated cases. In other words, context matters—and context explains why higher education affirmative action programs may survive judicial review where the governmental use of race in other contexts would not.

4th Amendment, 5th Amendment, 6th Amendment, Constitution, Criminal Procedure, Exclusionary Rule, Faculty Blog, Fifth Amendment, First Amendment, Fourteenth Amendment, Fourth Amendment, Hansen, New England Law Review, Sixth Amendment, U.S. Supreme Court

Faculty Blog: SCOTUS’s Use of Exclusionary Rule Becomes A Charade in Utah v. Strieff

By: Victor M. Hansen  The Court’s opinion in Utah v. Strieff is the latest in a series of recent opinions in which the Court has significantly undermined Fourth Amendment protections by limiting the application of the exclusionary rule. As my colleague, Professor Friedman, noted in his recent post, the Court’s Fourth Amendment jurisprudence effectively allows the government to pursue policy goals in ways that conflict with individual privacy protections. The Court has been able to justify this by viewing the exclusionary rule as solely a tool to deter police misconduct. In situations where, in the Court’s view, the exclusionary rule would not deter police misconduct, the rule comes at too high a cost, and a number of exceptions have been judicially created to limit its application. Of course, the exclusionary rule is a judicially created rule to begin with, since nothing in the language of the Fourth Amendment suggests a remedy for violations. And it can certainly be argued that, since the rule is judicially created, the courts and specifically the U.S. Supreme Court should be able to modify it as it sees fit. However, on closer examination, the Court’s rationale for not applying the exclusionary rule in Strieff and other recent cases only makes sense if you adopt a rather narrow view of deterrence.

4th Amendment, 5th Amendment, 6th Amendment, Constitution, criminal law, Criminal Procedure, Exclusionary Rule, Faculty Blog, Fifth Amendment, First Amendment, Fourteenth Amendment, Fourth Amendment, Friedman, New England Law Review, Privacy, U.S. Supreme Court

Faculty Blog: Utah v. Strieff: The Court Reminds Us That Constitutional Privacy is Essentially Meaningless

By: Lawrence M. Friedman  The U.S. Constitution prohibits the government from pursuing its policy goals in ways that conflict with individual rights protections—except, as the Supreme Court reminds us in its decision in Utah v. Strieff, where the protection of privacy under the Fourth Amendment is concerned. The remedy for a Fourth Amendment violation is exclusion of the evidence obtained as a result of an illegal search or seizure. Deterrence of governmental misconduct has been the animating principle of the exclusionary rule for decades (though it was originally just one of several rationales), and the nature of the Court’s cost-benefit deterrence analysis has led it, time and again, to conclude that the costs of suppression outweigh any potentially beneficial deterrent effect. As Justice Clarence Thomas explains in the opening paragraph of his opinion for the majority in Strieff, “even when there is a Fourth Amendment violation, [the] exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits.”

4th Amendment, 5th Amendment, 6th Amendment, criminal law, Criminal Procedure, Due Process, Faculty Blog, Fifth Amendment, First Amendment, Fourteenth Amendment, Hansen, New England Law Review, Sixth Amendment, U.S. Supreme Court

Faculty Blog: Williams v. Pennsylvania Raises Major Concerns About U.S. Justice System

Professor Eldred wrote that this latest decision is a missed opportunity by the Court that could undermine the long-term value of the decision, particularly when, as Professor Eldred notes, there was significant literature and research in this area available to the Court. Here, I want to address another issue raised by the facts of the case that should alarm anyone concerned about the fairness of our criminal justice system—namely, the role of the prosecutor. While I can’t say that this was another missed opportunity by the Court to address the question since it was not directly before the Court, the troubling story recounted by the facts of the case serves as an important backdrop and raises important questions about the quality of justice in death penalty and other cases. In its recounting of the facts of the case, the Court noted that the prosecutor assigned to the murder case against Williams sent a two-page memorandum to the district attorney requesting approval to seek the death penalty. The then-district attorney, later Chief Justice of the Pennsylvania Supreme Court, approved the request by writing: “Approved to proceed on the death penalty.” The case before the Court was about whether the district attorney who penned that approval could some 30 years later sit as one of the justices on the court called upon to vacate William’s stay of execution. The Supreme Court also noted a number of Brady violations that the prosecuting attorney allegedly committed in the case, as well as the fact that none of this information—the prosecution memo and approval by the district attorney or the possible Brady violations—came to light until the Philadelphia Court of Common Pleas ordered the district attorney’s office to produce previously undisclosed files, many years after Williams’ trial.

1st Amendment, Affordable Care Act, Constitution, Faculty Blog, Fourteenth Amendment, New England Law Review, U.S. Supreme Court, Uncategorized

Faculty Blog: Zubik v. Burwell: The Supreme Court Punts on Religious Nonprofits’ Challenge to the Affordable Care Act Contraceptive Coverage Opt-Out

Last month, the U.S. Supreme Court declined to weigh in on the merits of religious nonprofit organizations’ challenge to the Patient Protection and Affordable Care Act’s contraceptive coverage religious opt-out regulations. The regulations allow religious nonprofits to avoid the legal responsibility of covering contraceptives in their health insurance plans by providing notice that they object to doing so on religious grounds. The petitioners in the cases consolidated in Zubik v. Burwell claimed that furnishing this notice imposed a substantial burden on their religious exercise. In a per curiam opinion, the Court noted that supplemental briefing that addressed whether contraceptive coverage could be provided to the petitioners’ employees without the required notice had revealed the feasibility of such an option. The Court remanded the cases for investigation of this option, without making a decision on the plaintiffs’ Religious Freedom Restoration Act (RFRA) claim.

Equal Protection, Faculty Blog, Federal Courts, Fourteenth Amendment, Friedman, Judicial Review, U.S. Supreme Court, Uncategorized

Faculty Blog: Obergefell and the Future of Plural Marriage

In an opinion piece for the New York Times, Professor William Baude suggested that, following the Supreme Court’s decision in Obergefell v. Hodges striking down prohibitions on same-sex marriage, the door may well be open to the argument that bans on plural marriage should fall as well. Baude takes as his cue the suggestion in the dissent of Chief Justice John Roberts that “[o]ne immediate question invited by the [Obergefell] majority’s position is whether States may retain the definition of marriage as a union of two people.” The answer is, of course, “yes.” Explaining why, though, may take some doing. As my colleague, Jordan Singer, has noted, the decision in Obergefell was, at a minimum, “befuddling.” One reason is because its author, Justice Anthony Kennedy, eschewed a traditional equal protection analysis for the kind of soaring rhetoric that has become a hallmark of his opinions in the area of individual rights. Though the respect he accords the subject matter is notable, at the end of the day, lower courts, state government officials and lawyers need a good deal more to be able to understand the limits of our constitutional commitment to equality.

Due Process, Equal Protection, Faculty Blog, Federal Courts, Fourteenth Amendment, Greenberg, Marriage

Faculty Blog: Recent Supreme Court Term: Obergefell v. Hodges: Equality and Constitutional Interpretation

On June 26 the U.S. Supreme Court decided the “same-sex marriage” case Obergefell v. Hodges. The Court held unconstitutional, by a 5-4 vote, state laws that limit marriage to heterosexual couples. According to the Court, these limits violate both the Due Process and Equal Protection clauses of the 14th Amendment. Justice Kennedy’s opinion for the Court focuses on the crucial role that marriage, as a component of the liberty protected by the Due Process clause, plays both in individuals’ lives and in structuring society. Denying same sex-couples the opportunity to marry not only affects what type of society we live in, but also impoverishes the lives of a particular group of people in society. According to the Court, individuals define themselves through marriage. In addition, through marriage they access other “freedoms, such as expression, intimacy, and spirituality.” (p. 13) Marriage is also a means for individuals to achieve the “highest ideals of love, fidelity, devotion, sacrifice, and family.” (p. 28) Furthermore, children in same-sex families are injured by having to endure the stigma of familial inferiority as a result of the non-recognition of their parents’ marriages. (p. 15)

4th Amendment, Criminal Procedure, Due Process, Editor Blog, Fourteenth Amendment, Fourth Amendment, Mass. Crim. Dig., Surveillance

Mass. Crim. Dig.: Commonwealth v. Guzman

Contributing Editor: Wendy Hansen

Commonwealth v. Guzman, 469 Mass. 492 (2014)

I. Issues

There are three main issues in this case:
  1. Whether the imposition of the Global Positioning System (“GPS”) is mandatory under chapter 265, section 47 of the Massachusetts General Laws;
  2. Whether the statutory mandate violates substantive and procedural due process under the Fourteenth Amendment of the U.S. Constitution and Articles 1, 10, 11, and 12 of the Massachusetts Declaration of Rights; and
  3. Whether the statutory mandate constitutes unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution and Article Fourteen under the Massachusetts Declaration of Rights.

4th Amendment, criminal law, Editor Blog, Fourteenth Amendment, Fourth Amendment, Mass. Crim. Dig.

Mass. Crim. Dig.: Commonwealth v. Thomas

Contributing Editor: Eric Gillespie

Commonwealth v. Thomas, 469 Mass. 531 (2014)

I. Facts

In the early morning of July 6, 2006, a three-story Brockton house erupted in flames. The first-floor occupants were unharmed; however, second-floor residents and guests threw the children out the window to a passerby and then jumped themselves. Those on the third floor could not escape on their own. While firefighters saved three people, including the one-month-old baby, the baby’s mother was trapped in the bathroom and later died of smoke inhalation at the hospital. Michelle Johnson rented the first-floor apartment. The defendant, Chiteara M. Thomas, and her boyfriend, Cornelius Brown, stayed in the first-floor apartment with Johnson. Prior to the fire, Johnson demanded that Thomas move out. The defendant, angry at being tossed out, repeatedly threatened “to kill Johnson and burn the house down.”