LGBTQ v Religious Rights?: The 2015 Kurz Chair public event

As the Herbert Kurz Chair in Constitutional Rights at Brooklyn College, I have the opportunity to create public programming for the College community and general public about the possibilities and limits of using the U.S. Constitution to protect politically vulnerable minority groups.  In past years, I have taken on the topics of Stop and Frisk, school desegregation, and last year, immigration reform.  Consistent with past practice, I bring in an outside expert and also tap Brooklyn College's own talented faculty.  This year, I take on the issue of LGBTQ versus religious rights.

LGBTQ vs. Religious rights?

The media casts these rights as in opposition, but is this the only way these issues can be framed?

Having overcome anti-sodomy laws, overturned the military’s Don’t-Ask-Don’t-Tell policy, and achieved marriage equality, the LGBTQ movement is at a crossroads.  Despite the Supreme Court’s recent landmark ruling in Obergefell v Hodges (2015), the marriage equality case, sexual orientation as a category, unlike race, sex, and gender, has not been elevated to a protected class. The consequence is that LGBTQ citizens may still be open to discrimination in employment, housing, adoption, and other areas of public and private life.

At the same time, the United States has a long and proud history of respecting the free exercise of religion.  Are we as a nation prepared to force religious persons to act against their sincere and deeply held religious beliefs and conscience? How do we balance LGBTQ claims to equal treatment against those claiming religious freedom? Are these two sets of claims mutually exclusive?  Is there any way to reconcile them that would be fair or acceptable to both? 

WHO:  Helping us sort through these questions are one visitor and one of Brooklyn College's own.

Steve Sanders of the Indiana University's School of Law, a nationally recognized expert on constitutional law and the legal issues of same sex couples and their families, conflict of laws, federalism, and academic freedom.  He has also argued a case before the Supreme Court.

Paisley Currah, a political scientist and pioneer in the field ofsexuality and gender studies and founding co-editor of TSQ: Transgender Studies Quarterly.  His areas of expertise are in LGBT studies, queer legal theory, public policy, and political theory.  

WHEN:   Monday, October 26, 2015, from 11am -12:30PM  

WHERE:  Woody Tanger Auditorium, inside the Brooklyn College Library (Bldg #13 on the map)

McCullen v Coakley, When a qualified right trumped a fundamental right

Yesterday the Supreme Court issued its opinion in McCullen v Coakley, about a Massachusetts law that creates a 35 foot buffer zone around abortion clinics.  The Court unanimously struck down that law as an impermissible violation of one's speech rights.  Apparently in yesterday's decision, the Court left intact their finding in Hill v CO that Colorados's law that persons cannot "knowingly approach" a person without that person's consent within 100 feet of an abortion clinic to talk to the person, hand them a leaflet, display a sign, or engage in conversation or protest.  The issue seems to be the manner in which the MA law restricted speech.  The Court apparently believed that the persons whose free speech rights were being infringed upon were not "protesters" (who are allowed outside buffer zones) but, persons who are sidewalk "counselors" who  "seek to engage in personal, caring, consensual conversations with women about alternatives."  Egregiously the Court has privileged the zealots speech rights over one's fundamental right to privacy.

How is the Massachusetts law a restriction of speech?  It just restricts the place that speech can take place. There is no unqualified, unrestricted right to speech.  Through many cases, except this one, the Court has said that one's free speech rights is relational to the public welfare and public safety also.  Speech never was an absolute right.  The Court noted there was not enough evidence for the MA law. Huh?  Indeed, Massachusetts had passed the law to address not just the harassment and intimidation women face upon entering the clinics, but also outright violence as evidence by the shooting rampage at two clinics in 1994.  So the Massachusetts law restricts speech within a space roughly half the distance from a pitcher's mound and home plate, and only in that space.

This case is not about free speech being balanced against the autonomy of women.  What happened to a women's right to privacy, which the Court has said is a fundamental right?  I don't mean the privacy that underwrites the Roe v Wade case that grants a right to an abortion.  I mean more practical immediate privacy.  Planned Parenthood and other women's health clinics typically provide not just abortion services but mammograms and pap smears.  Does every women have to explain herself to the sidewalk "counselors" as she enters a clinic about what actual health services she is about to receive?  Or more likely, are the "counselors" simply going to assume that any and every woman walking into a clinic is going to get an abortion and therefore bestow their "counseling" on all entering women anyway.  What happened to the privacy rights of women granted in Griswold v CT of a woman to choose to discuss her health concerns only with her doctor and medical staff? Or to paraphrase former Justice Louis Brandeis, the right to be left the fuck alone?

The opinion really raises more questions than it answers.  When does "quiet conversation" cross the line into intimidation and harassment?  I don't have to raise my voice or swear to be intimidating.  Questioning/badgering/asking for moral justification of someone about their private life choices, even in the most "polite" way, can be intimidating and harassing.  Why does some religious zealot with no actual psychological or social work counseling get elevated to "counselor" who is entitled to offer their uninformed and unwanted ideological opinion to women?  And are such laws really neutral in application? How many "counselors" outside of these clinics are abortion supporters affirming the woman's right to choice?

So much for one's fundamental right to privacy.

Summary 2014 Kurz Panel: Are we More Equal? 60 years after Brown v Board

As part of my duties as Kurz Chair in Constitutional Law and Civil Liberties, I am charged with producing public programing relating to civil liberties and civil rights.  In commemoration of the 60th anniversary of the landmark Supreme Court desegregation decision, Brown v Board of Education, I brought together three experts in education policy and history for the 2014 Kurz Panel.  The panel discussion took place at Brooklyn College on April 7, 2014 and was attended by about 50 faculty members and students of the college.  I had asked the panelists to assess how far we as a nation had come since Brown v Board and how much further we need to go.

David Bloomfield of Brooklyn College started off the discussion.  Having served as a former General Counsel to the New York City Board of Education and adviser to Manhattan borough president, Bloomfield is an expert in educational policy and law generally, but also on the situation in NY in particular. He noted that while the Presidential order by President Carter was issued many decades ago, we are no closer to eliminating school desegregation.  Moreover, there are persistent problems beyond just physical and racial segregation of schools.  There is still an achievement gap between white and minority students.  He reported some of the findings of a recent UCLA study issued by Gary Orfield, the leading school segregation researcher, that noted NYC is home to the nation's most racially segregated school districts. Among some of the negative effects of this racial segregation:  schools that contain predominantly black and Latino students have less experienced teachers, less resources, and students of these groups face more suspensions out of proportion of their numbers in the school population.

Bloomfield especially hammered home the point that in NYC, "geography is destiny" for your education opportunities in the sense that where you live dictates the quality of your schools if you cannot afford to attend private schools.  Much of the effect of racial segregation in NYC schools results from income inequality, housing patterns, and its overlap with race.  He notes the many school districts that are predominantly minority could not afford to run a gifted and talented programs because allegedly, too few students qualified for them.  On the flip side, the number of black and Latino students admitted to NYC's specialized high schools was abysmal.  He quoted the statistic that Stuyvesant High School admitted all of 7 African American students this year.

Chris Bonastia, a Sociologist from CUNY Lehman and the Grad Center, then presented some historical context for the struggle for desegregation.  Bonastia has written a book about Prince Edward County in Virginia which closed down its public school system from 1959-1963 in order to halt the integration demanded by Brown and repeated federal court orders.  Prince Edward County was in fact one of the counties included in the second Brown compliance case.  Bonastia noted the problems with court decrees that lacked specific enforcement and compliance mechanisms.  There was quite a bit of resistance not just from Prince Edward County, but among many counties in both the North and South, due to the lack of clarity about what actually constituted compliance with the Brown decision.  Nevertheless, compared to other counties and states, what made Prince Edward County stand out was the duration and concertedness of the resistance to integration.

Bonastia recounted what happened in Prince Edward County after the closure of the public school system in 1959.  Essentially private schools popped up to coincide with the closing of the public schools and most of the white students went to those private schools.  Meanwhile, 3/4 of the black students from that county missed 5 years of education.  In 1964, when the federal courts ordered the public schools to reopen, the county simply starved them for funding.  Bonastia further noted that the problem with segregated schools was mainly a resource issue; minority schools were simply not funded with comparable resources to white schools.

Karolyn Tyson, a Sociologist from UNC Chapel Hill gave the last presentation.  Tyson has authored a book calling attention not to the racial segregation across schools, but within schools.  She started by saying there is no question we as a nation have come a long way since Brown, but persistent racial inequality within schools continues to undermine the many gains made since Brown.  Her research is about the problems of racial inequality that persist within integrated schools within the tracking system.  White students dominate AP and Honors track classes while black and Latino students dominate lower track classes.  The problem with this tracking system that correlates with race is that lower track classes regularly suffer more disruptive classrooms, are less challenging, have fewer experienced teachers, and fewer resources than higher track classes.

She also conducted ethnographic research among high performing black high school students to see how they were making sense of the racial segregation within schools.  The results are devastating.  When these black students see in all their Honors and AP classes that they are among less than 3 black students in those classes, they start drawing negative conclusions.  One student said, "It [the pattern] looks like black people aren't that smart and black people can't cut it."  Or from another student, "Black people just don't take Honors/AP classes".  Tyson said these tortured comments result from the constant messages we all are sent that your educational quality and result are a result of merit alone, not the structural racism that she had documented.

The three presentations together painted a sobering picture of persistent racial segregation patterns 60 years after Brown.  Although de jure segregation has been eliminated, the effects of property values, income patterns, and their correlation with race conspire to ensure that de facto segregation persists in areas like NYC.  In addition, one cannot look just for segregation across schools when there are racial disparities within integrated schools.  Finally, as Bonastia cautioned, given the shameful legacy of how private schools were used in Prince Edward County to avoid integration, one must be vigilant against siren song of privatization of schools as the magic bullet that will solve problems.  Some charter schools, as Bloomfield noted, are contributing to the racial segregation problem in NYC.

At the conclusion of the presentations, the panelists took questions for about 20 minutes.  The audiences was very engaged and asked a variety of questions including, "Who is to be held responsible for the mess that is NYC public school?" and "Is culture a factor in different student groups' academic success.?" Some of my students who attended the panel told me the information they learned was "eye opening". 

McCutcheon: Speak Loudly by Carrying a Huge Wad of Cash

Judicial modesty is on life support.  Restrictions on campaign spending are starting to look positively quaint.  An activist Court has struck again.  The conservative turn taken by the federal courts in about 1980s was viewed as a reaction to the liberal Warren Court.  But as Tom Keck has argued in his outstanding book, The Most Activist Supreme Court in History, observers had expected a return to judicial restraint.  Instead, the Rehnquist Court and now the Roberts Court, while upholding most of the Warren Court rulings, also created their own brand of "conservative activism" by overturning long settled law in several areas including and not limited to campaign finance.  In so doing, one of the Roberts Court's distinction is unleashing an unprecedented flow of cash into campaigns and elections.

The opening salvo in dismantling limits on campaign contributions put in place for decades by Buckley v Valeo  (1976) began with Citizens United in 2008.  Buckley v Valeo had created dollar amount limits that an individual could contribute to a candidate, political party, and political action committee. The decision upheld laws passed in the aftermath of the Watergate scandal that had the intent to restrict cash flowing into the electoral system because of the unscrupulous practices that may result.  Moreover, in the per curiam decision the majority noted that Congress was right to guard against not just actual unscrupulous behavior, but even "the appearance of impropriety".  424 U.S. 1 @ 30.   (Buckley also  held that a wealthy individual could spend unlimited amounts of his/her own money in an effort to get themselves elected to public office).  

Citizens United did not address these individual limits but instead took up the question how much corporate entities and unions could spend in campaigns and elections and whether these entities had to disclose their spending which is now equated with "political speech".  These entities did so by challenging The Bipartisan Campaign Reform Act (BCRA).  In that case, the Roberts Court returned a sweeping decision which granted corporate entities the same status as individual persons saying that if individuals had protection for free speech, so did corporations and unions.  Further, this speech right of corporations cannot be limited to a dollar amount, although the spending of corporations cannot be done in active concert and affiliation with a party or candidate.  That decision has been roundly criticized, not the least by conservatives like Judge Richard Posner of the 7th circuit.  Posner writes:

The Supreme Court allows donations to political campaigns to be regulated (and limited) because of fear that donations unlimited in amount corrupt the political process, because the candidate recipient knows that a donor of a large amount of money expects something in return, usually favorable consideration of a policy that would benefit the donor, and hence a large donation is likely to be a tacit bribe. But the Court, rather naively as it seems to most observers, reasoned in the Citizens United case that the risk of corruption would be slight if the donor was not contributing to a candidate or a political party, but merely expressing his political preferences through an independent organization such as a super PAC—an organization neither controlled by nor even coordinating with a candidate or political party.

Posner's goes on to question the ability of anyone to police the "coordination", or collusion between corporations and campaigns/candidates and he absolutely rejects the idea that more cash poured into campaigns equals a more informed citizenry since most of the ads don't aim to smear the opponent instead of actually educating in a positive way.

I disagree with Posner that the Citizens United majority was naive.  The conservative majority knew full well what would result.  The Roberts Court in Citizens United and McCutcheon seem to be thinking one thing:  payback.  Now that the conservatives have the majority on the Court, they will unabashedly reshape society through laws into their preferred view.  The Warren Court had mollycoddled the poor, minorities, and criminal defendants enough--it's time now for the moneyed interests to get some love.  They have accomplished this task by creating the legal fiction of corporations having speech rights like persons and in equating spending to speech.

Thanks to Citizens United, corporate interests can now not only spend unlimited amounts on campaigns, but also hid behind bland labels like Restore Our Future and FreedomWorks for America.  How this move and those in McCutcheon avoid the appearance of impropriety is a mystery.

Now comes McCutcheon v FEC to follow up on easing limits on individual donors.  Although McCutcheon is a less sweeping decision than Citizens United, it does the following as described by Lyle Denniston at SCOTUSblog:

The per-donation limits now in effect that the Court did not disturb are $2,600 per election to a candidate (with primary and general elections treated separately), $32,400 per year to a national party committee, $10,000 per year to a state or local party committee, and $5,000 per year to a regular political action committee (but that cap does not apply to the new “Super PACs” that only spend independently and do not give money to candidates).

What the Court struck down were these two-year ceilings that would have been operating during 2013 and 2014: $48,600 to federal candidates, and $74,600 to political committees.  Of that $74,600, no more than $48,600 can be donated to state and local party committees and PACs.

The majority in McCutcheon believes that by leaving the individual spending limits to each candidate, party, and regular PACs in place, these restrictions will be enough to prevent corruption which in Citizens United they had defined as preventing "quid pro quo corruption". (pg. 3 of the District Court opinion).  Donors are now free to send unlimited amounts not on one candidate, but on many, say to fund 500 Republican candidates instead of spending it all on 5. 

Of my many objections to McCutcheon, I will point out one that many other analysts have already indicated, and that is the cramped definition of "corruption" as only of the quid pro quo variety.  When a donor, whether a corporation or an individual gives a candidate a large sum of money, few hand over the cash without expectations, even if those expectations are not explicitly stated.  The burden of the obligation felt by the candidate to the large donor may be unspoken but no less weighty on the recipient. 

Lawrence Lessig has objected to the overly-narrow and ahistorical conception of "corruption" being used in Citizens United and now McCutcheon.   He notes that the framers, whom Scalia and Thomas allegedly hold up as authorities, had a far more expansive definition of "corruption":

What was absolutely clear from that research was that by “corruption,” the Framers certainly did not mean quid pro quo corruption alone. That exclusive usage is completely modern. And while there were cases where by “corruption” the Framers plainly meant quid pro quo corruption, these cases were the exception. The much more common usage was “corruption” as in improper dependence. Parliament, for example, was “corrupt,” according to the Framers, because it had developed an improper dependence on the King. That impropriety had nothing to do with any quid pro quo. It had everything to do with the wrong incentives being allowed into the system because of that improper dependence.

When I read the miserly definition of "corruption" as only encompassing quid pro quo malfeasance, it brought to mind then Assistant Attorney General John Yoo's definition of torture as: “The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure or permanent damage resulting in a loss of significant body functions will likely result.”  By so narrowly defining "corruption" Citizens United and McCutcheon leave as possible many permutations of undue influence that would fall short of, but be no less damaging to our democracy than quid pro quo corruption.

The success of the NAACP to dismantle the wall of racial segregation took more than half a century.  Copying the tactics of the NAACP, conservatives will likely bring down attempts to hold back the undue influence of the rich on the electoral process much sooner by taking brick by brick out of the wall that guards against undue financial influence in elections.  As one of my former students who is a fundraiser for the DNC notes, the immediate effect of flooding the electoral system with money is that we get people running for public office who are not necessarily the best leaders or statespersons--just the best fundraisers.  The long term effect of these decisions remain to be seen.

2014 Kurz Chair panel: Are we More Equal? 60 years after Brown v Board

In my position as the Herbert Kurz Chair of Constitutional Law and Civil Liberties at CUNY Brooklyn College, I have the ability to create public programing about constitutional law and civil rights issues that are of concern to our Brooklyn College community and to citizens more broadly.  The first inaugural Kurz Chair panel last year was a vigorous discussion of NYPD's controversial Stop and Frisk policy.  I am equally excited about this year's event and invite all to attend.

WHAT:  2014 Kurz Chair panel

WHEN:  April 7 from 12:50 to 2:15 pm

WHERE:  CUNY Brooklyn College's student center at Campus Road and E. 27th Street, State Lounge, 5th Floor (Bdlg. 1 on linked campus map)

WHO:  All are invited.  This year's group of scholars are education integration experts and they will assess the legacy, progress, and challenges that remain after the Supreme Court's landmark Brown v Board decision.

The distinguished panelists include:

David Bloomfieldis a Professor of Education at Brooklyn College with a joint appointment at the Grad Center’s Urban Education Program. He is the founding chair at Brooklyn College Dept. of Childhood, Bilingual, and Special Education.  His areas of expertise include education law, legislation and policy; school and district management; parent and community outreach and NYC school governance.  He is a former elementary and secondary school teacher; general counsel, NYC Board of Education; general counsel and senior education adviser to the Manhattan borough president; Exec. Dir. for public education programs.  He is the author of American Public Education Law(Peter Lang, 2011) and many other articles and book chapters about education policy.

Chris Bonastiais a Sociologist at CUNY Lehman and the Grad Center who specializes race and politics in historical perspective. His second book, Southern Stalematewith University of Chicago Press examines Prince Edward County, Virginia, the only school district to close its schools for an extended period–1959 to 1964–rather than desegregate them. Bonastia describes the struggle over education during the civil rights era and the human suffering that came with it, as well as the inspiring determination of black residents to see justice served. Artfully exploring the lessons of the Prince Edward saga, Southern Stalemate unearths new insights about the evolution of modern conservatism and the politics of race in America.

Karolyn Tyson is a Sociologist from UNC Chapel Hill. Her expertise is in the sociology of education, equality of educational opportunity, and qualitative research methods. She is particularly interested in understanding the complex interactions between schooling processes and the achievement outcomes of black students. Tyson has published Integration Interrupted: Tracking, Black Students, and Acting White after Brown (Oxford, 2011). The book examines how and why black students have come to equate school success with whiteness. Based on more than ten years of research, Integration Interrupted shows how the practice of curriculum tracking in the aftermath of the Brown vs. Board of Education decision contributed to students casting academic achievement as a “white thing.”

I wish to thank all the cosponsoring units and departments listed below for their support of the event.

Panel Poster Draft9 middle text-1
Panel Poster Draft9 middle text-1

The filibuster fight over the mini-Supreme Court

Brad Plummer at Wonkblog yesterday attributed the recent execution of the nuclear option that altered the filibuster in the Senate to the happenings of the DC Circuit.  Aside from the fact that the DC Circuit  is regarded by Court watchers as a stepping stone to the high Court, Plummer points out another interesting feature of the DC Circuit, namely it's particular caseload that is heavy with administrative cases.  The DC Circuit that is among the U.S. Courts of Appeals, described by some as the least known federal courts, may well be the mini-Supreme Court given this caseload and not just because of its record of sending the most nominees to the Supreme Court.

Plummer notes the following about the DC Circuit:

The D.C. Circuit is surprisingly powerful — not least because it rules on decisions made by federal administrative agencies. If people want to challenge various federal regulations in court, the cases often end up here. It's "a court with special responsibility to review legal challenges to the conduct of the national government," explained Supreme Court Chief Justice John G. Roberts, who served on the D.C. Circuit court until 2005.

Plummer adds that the DC Circuit is likely to oversee many cases on environmental policy and final regulation in the years to come.

The fact that the U.S. Courts of Appeals, including the DC Circuit, must adjudicate all cases appealed to it, while only the Supreme Court has the luxury of picking and choosing its cases has meant that the Courts of Appeals have become significant policy makers in their own right. While it is true that any decision the Supreme Court renders binds the entire nation, the high Court's caseload of about 100 cases per term means effectively that large numbers of Courts of Appeals decision making on huge swaths of law (thousands of cases per circuit) are left un-commented upon by the Supreme Court.

Add to that situation the development of a more and more elaborate and sprawling bureaucracies and you have the DC Circuit now playing a very important role in governance indeed. This situation is due to the messiness of the legislative process and sometimes the need for compromise means legislation is written in a vague manner. That vague language leaves implementation and interpretation up to sprawling bureaucracies and their staff, who are themselves not directly elected by the people. Increasingly, in many areas of administrative law, one sees government agencies themselves are driving policy changes from within and without going through the tough vetting system of the formal legislative process. What these administrative agencies from the Social Security Administration to the Veterans Administration and the Department of Homeland Security call bureaucratic rule changes end up having the force of legislation as citizens experience these changes in policy.

Additionally, the Executive branch is also turning to policymaking via rule changes.  In the present situation of party polarization and administrative gridlock, it is even more likely that a President will seek to make rules administratively instead of trying to run the gauntlet of the formal legislative process. As AP News reported a few days ago, "Obama is relying more often on making relatively minor administrative changes to America’s complicated immigration system, as the likelihood dims that Congress will overhaul the law." And as this trend continues, the DC Circuit will be at the center, providing the Third Branch check on these bureaucratic rule changes that have the effect of law. The DC Circuit's significance then is far greater than as a stepping stone to the Supreme Court.

Oral argument for Citizens United II is this Tues.: "Leave no millionaire behind!"

The first Monday of every October marks the beginning of a new Supreme Court term.  This term, the Supreme Court has accepted about 50 cases, touching upon the most pressing political issues of the day including affirmative action, abortion, freedom of speech as it pertains to religion, presidential powers, and campaign finance, again.  Campaign finance watchdog groups have dubbed the case, McCutcheon v Federal Election Commission, "Citizens United II".  The questions are, "Will the legal result be the same as in Citizens United I and what would that mean for our political process"?

Recall that in Citizens United I decided in 2009, the Supreme Court, voting along party lines 5-4, opined that the First Amendment protection of the freedom of speech extended to corporations and unions who could now spend unlimited funds on political speech.  While these entities cannot contribute directly to a campaign or candidate, they may run ads or persuade the public or use other measures.

In his swan song, Justice Stevens read his partial dissent from the bench, a rare practice that signals vehement disagreement with the majority.  Since leaving the bench, he remains critical of that case, speaking out against it frequently like he did at a talk at a recent talk at the University of Arkansas where he stated:

"[T]he Court must then explain its abandonment of, or at least qualify its reliance upon, proposition that the identity of the speaker is an impermissible basis for regulating campaign speech...It will be necessary to explain why the First Amendment provides greater protection to the campaign speech of some non-voters than to that of other non-voters." 

He may get his wish soon.  Stevens of course was referring to the Court majority's novel interpretation that corporations and unions are "persons" and possess the same First Amendment rights to free speech as real persons. Critics like Dahlia Lithwick have called this construction outright legal fiction, an assumption used by the Court to apply "facts" that are not necessarily true in a manner that is not intended for the purpose, purely out of desire to resolve a legal dispute.

What did Citizens United I begat? Today we are in the midst of a government shutdown that is enabled in part by Citizens United I. As Sheryl Gay Stolberg and Mike McIntire write today in The New York Times the seeds for the current shutdown were planted months ago via a "well-financed, broad-based assault on the health law" that has been waged by "a galaxy of conservative groups with more money, organized tactics, and interconnections than is commonly known." Stolberg and McIntire detail for example the Koch Brothers expenditure of nearly 200 million dollars to fight the Affordable Care Act. As well, other conservative groups have kept and published "scorecards" to pressured vulnerable Republicans Members of Congress on their healthcare votes.

Indeed there is now so much cash flowing that the two NYT reporters had trouble keeping track of the complex organizational structures which filtered and funneled this stream into the process. They wrote, "A review of tax records, campaign finance reports and corporate filings shows that hundreds of millions of dollars have been raised and spent since 2012 by organizations, many of them loosely connected, leading opposition to the measure." The article does not mention Citizens United I by name, but all this infusion of conservative cash (whose provenance is unclear) to super-PACS and nonprofits, has been enabled by that decision.

Now comes McCutcheon v FEC aka Citizens United II, which is not about placing limits on the political spending of entities like corporations and unions, but on individuals. At issue in this case is the aggregate maximum amount an individual may donate to a candidate or political party in a two year election cycle. Sean McCutcheon, an Alabama businessman and GOP supporter, argues that the limits (currently $123,200 per person) act to constrain his free speech and ability to advocate for certain candidates and causes.

Given that Citizens United I has already allowed donors to hide from the public while they dump torrents of money into the political process, what difference would Citizens United II make? The issue seems to be one of direct versus indirect influence on political parties and candidates. Citizens United I enabled the creation of super-PACS and non-profits that were not beholden to the parties or the candidates and outside of the formal political institutions. Citizens United II would allow the parties and candidates to partake in that stream of money currently going to outside groups that are not directly within the political process. In the end, all this to the average voter may be hairsplitting and semantics.   If Citizens United II overturns the existing individual limits, party leaders and candidates will be able to seek out a few fat cats to write checks and ignore average voters who don't have those means. Citizens United I was bad enough, but now we are faced with a possibility of Citizens United II to cover the few horses who didn't flee the barn the first time around. "Leave no millionaire behind!"

Is life tenure for Supreme Court justices wise policy in a world of rapidly developing technology and science?

The New York Times reported yesterday that some of the Supreme Court justices are not very tech savvy.  Speaking in Providence, RI, Justice Kagan, the youngest justice stated, "The justices are not necessarily the most technologically sophisticatedpeople."  She said that while the law clerks email each other, "The court hasn't really 'gotten to' email." As far as the method of communication on the Court, apparently it has stood still in time.  As the Times article noted:

Kagan, at age 53 the youngest and most recently appointed justice, said communication among the justices is the same as when she clerked for the late Thurgood Marshall in 1987.

Justice write memos printed out on paper that looks like it came from the 19th century, she said. The memos are then walked around the building by someone called a "chambers aide."

People, we're talking about email here that some of the justices have not mastered. This would be funny except that the Supreme Court in the last few years has had to decide a number of cases involving technology and many are Fourth Amendment cases about privacy and surveillance. For example, in 2010, the Supreme Court decided a case about an LAPD officer who was using his department issued pager to send and receive sexting messages. How do you explain sexting to justices who don't even know how to use email? In that the case was Court set new parameters of the level of privacy one is expected to have in personal communications in the workplace.

Similarly, in 2012, the Supreme Court issued a ruling of the ability of law enforcement to place a GPS device on the bottom of a suspect's car to track them for weeks without a warrant.

At the Rhode Island event Justice Kagan was speaking at, naturally the moderator asked Kagan whether the justices were equipped to hear the many more privacy and government surveillance cases involving technology that would inevitably be coming their way. Kagan said, "I think we're going to have to be doing a lot of thinking about that," she said. She added that the Justices often turn to their much younger law clerks to explain technology to them.

But will their younger clerks be able to explain the complex and sophisticated technologies we now know thanks to Snoweden's disclosures that the government uses to watch us?  Devices that attach to telecommunications companies central servers that collect metadata, algorithims that determine with "51 percent  confienence" someone's "foreigness", technology that allows one to use your powered off cell phone to listen to your nearby conversations., Toto, we're not on Kansas anymore.  We're way beyond email.  Are the Supreme Court justices, or FISA Court judges for that matter equipped to decide these types of cases?

One might be tempted to conclude that this is a problem that arises from the life tenure of the justices, a practice that many have argued has outlived its usefulness, especially if you consider the life expectancy of men at the time the Constitution was written and ratified. 45? 50?

I contend that this is less of an issue of life tenure and age and more about the limited and very narrow training of persons selected for the Supreme Court. Law school has not one course in statistics or economics, much less science and technology, yet the 9 men and women of the Court are charged with deciding complex patent cases, technology cases like those cited, and essentially be experts in fields of all kinds--fields that they have had no training in but where they make policy that binds the entire nation.  It is certainly possible that an engineering or math major went on to get a law degree, but I see none of them on the Supreme Court.

Retired Justice Stevens rips Shelby County v Holder decision

Retired Justice John Paul Stevens is 93 years old and still his mind is as sharp as a tack.  In a book review of Gary May's Bending Toward Justice, he uses the opportunity to criticize the Supreme Court's decision in Shelby County v Holder, the Voting Rights Act case that was just decided this term in which the central plank of the VRA is eviscerated.

Stevens uses the review essay to highlight the permutations that voter suppression efforts can take and to tweak the Shelby majority's contention that things have changed dramatically:

In the prologue to his book, May identifies two important consequences of the VRA: it ended a half-century of practices that prevented African-Americans from exercising their right to vote, “and it transformed American politics by turning a once-solid Democratic South into a Republican stronghold.” With respect to the first consequence, he expresses concern that even though the circumstances that gave birth to the act may not have an exact parallel today, their echoes can be found in more subtle and insidious efforts to prevent blacks from voting. He describes his concerns at length in the final chapter of his book where he criticizes photo ID laws and notes that an analysis of Obama’s election demonstrates that race remains a divisive issue—pointing to the fact that in Alabama in 2008 Obama received only 10 percent of the white vote.

Stevens makes clear he thinks the Shelby majority has erred on multiple levels, and one of the biggest sins is that the Court was acting in an anti-democratic fashion.  He writes:

The opinion fails, however, to explain why such a decision should be made by the members of the Supreme Court. The members of Congress, representing the millions of voters who elected them, are far more likely to evaluate correctly the risk that the interest in maintaining the supremacy of the white race still plays a significant role in the politics of those states. After all, that interest was responsible for creating the slave bonus when the Constitution was framed, and in motivating the violent behavior that denied blacks access to the polls in those states for decades prior to the enactment of the VRA.

Finally, Stevens raps up his complimentary review of May's book by pivoting and using Justice Scalia's dissent in U.S. v Windsor to hoist the Shelby majority on its own petard. This is the passage Stevens cites from Scalia's dissent in U.S. v Windsor to underscore point that the majority in Shelby overreached and should have left the issue to the electoral process:

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

Stevens concludes by saying, "The 'diseased root' that Justice Scalia described in the introductory paragraph of his DOMA dissent may well have infected the majority opinion that he joined in the voting rights case."  Exactly which ideological wing of the Court is being activist now?

As a member of the Supreme Court, Stevens was known for his ability to put his finger on the essential points without getting bogged down with obfuscating legalese and irrelevant minutiae. His no nonsense and elegant style are on display in this review essay.  Reviewing a book while skewering the Shelby majority, in the process using Scalia's own words against him--not a bad day at the office for a 93 year old.

What kind of background would be best for a Supreme Court Justice?

Does the background of a Supreme Court justice influence the way she decides a case?  Linda Greenhouse's column today in the New York Times details Chief Justice Roberts ruminating on the current situation in which after Alito took O'Connor's place on the Court, there was a period of only former Courts of Appeals Judges on the Supreme Court.  That changed when Elena Kagan arrived.  Kagan, a former Harvard Law School Dean and Solicitor General, had never served on the federal bench before.   Greenhouse was at an event with the Chief Justice in which he was asked what difference, if any, the background of a justice made  on the Supreme Court.  The Chief Justice responded as follows:

“If you view it more in terms of playing a political role – not in a partisan politics sense, but as part of the political process, maybe the way a constitutional court in the European countries does – well, then maybe it makes sense to have people who’ve been active in the political realms, either in the executive branch or in the legislative branch. It has to be saying something about the role of the court in terms of what the makeup is.


“If you’ve been a president, if you’ve been a governor, if you’ve been a senator, you have a particular way of looking at issues and matters of public policy. If you’ve been a judge on a court of appeals, it seems to me you have a very different way of looking at it.


“So you have to decide what types of questions you think the court should be deciding, and if they call for people who have one way of looking at public policy as opposed to people – you said ‘technocrats,’ not the right word – a more focused way of drilling in on the law. And maybe you think there’s a mismatch between the kind of question the court’s being asked to decide and the type of personnel that have to decide it.

“And you can obviously resolve that tension one way or another. But I do think it’s not simply a coincidence or a happenstance that you have a court that looks so different than what it looked like in the past.”

Ms. Greenhouse spends the rest of her column assessing Roberts' comments and whether the meant that there is a mismatch between what the people want the Supreme Court to do (provide profound answers to complex questions of the day) versus what they are equipped to do with their Courts of Appeals background (provide small bore answers rather than broad explications and visions of public policy).

The idea that one's background (in this instance, one's career) but including one's racial, ethnic, religious, sexual background influences in profound ways one's worldview is nothing new to social scientists.  It is gratifying to know that the Chief Justice is aware of this, even as many of his colleagues on the federal bench will insist, at least publicly, that they "just apply the law". 

These recent comments are a bit of a revelation from John Roberts who in his confirmation hearings used the age old analogy that he saw his job as like an umpire, just calling balls and strikes and not swinging case outcomes one way or another.  Roberts is explicitly saying here that the way you do your job as umpire is influenced by what job you used to do before.  So it's not just as simply as calling balls and strikes?

What do Dred Scott v Sanford (1856), McClesky v Kemp (1987), FL v Zimmerman (2013) have in common?

Reaction to last night's verdict of not guilty for George Zimmerman was swift.  The group of Martin supporters were subdued and looked like they were in shock.  The New York Times this morning reported demonstrations in 4 California cities.  While detailing the demonstrators' every action, the article did not go into why, 5000 miles away, anyone would demonstrate over this verdict. This verdict is now a part of a long an insidious history of unequal justice for African Americans.  As many asked, does anyone actually believe that if it was Martin who shot Zimmerman and told the same story, that Martin would be acquitted of all charges as well?  That's the problem:  the fact that justice is not blind.

As much as the defense elided it and the prosecution was uncomfortable making the argument, the Trayvon Martin case was about race.  The facts involve a young black teenager, unarmed, walking down the street, who was confronted by Zimmerman, got shot in the altercation, and never made it home.  The case though is really a test of the fairness and consistency of the criminal justice system.  Can you follow and fatally shoot an unarmed black person and face no repercussions at all to your actions?  The answer to that question apparently in this case is, "yes".

The larger problem, and the reason there were demonstrations and will be more outrage by civil rights leaders, is that the verdict of "not guilty" for murdering a black man is a verdict minority communities have had to hear too many times.  While African American men (and increasingly Latinos as well) are over-represented in their contacts with the criminal justice system, and are disproportionately convicted of crimes, the inverse is also true.  The history of the American jury system is riddled with cases in the South and the North of justice for only one race--justice has not been remotely consistent.  Just as innocent blacks were convicted of crimes they did not commit, guilty whites were freed by all white juries. 

For over a century, American juries did not represent a "cross section of the community" and persons could be deselected without explanation from a jury pool based purely on race and sex alone.  Even when the Supreme Court has applied that requirement, socio-economic barriers work to over-include middle class white jurors while under-representing poor and minority jurors.  Factors as mundane as transportation, childcare, and whether you are an hourly wage or salaried worker informally, but systematically, deselect certain types of jurors. 


Judicial reforms have concentrated on scrutinizing the methods for selecting jurors but have had a limited effect in closing the racial gap in the criminal justice system.  One reason for this sorry state of affairs is that judges, even Supreme Court justices, do not understand statistical arguments.  In McClesky v Kemp (1986), a Supreme Court case about the racial disparities in the application of the death penalty, McClesky's lawyers made a statistical argument to show that after controlling for a host of variables (including 39 non racial variables), the race of the victim as well as the accused determined the likelihood of whether one would get the death penalty in Georgia. 

David Baldus, the law professor who conducted the statistical study, was able to show that if a black defendant kills a white victim, they are 4.3 percent more likely to get the death penalty than if the race of the victim and defendant were switched.  In a 5-4 split along ideological lines, the Supreme Court determined that the system, with its arbitrary dispensation of the death penalty, did not constitute cruel and unusual punishment.  The judicial system has turned a blind eye to racial disparities even when presented with hard data that something is askew.

But appearances do matter, and not just to the families seeking justice.  When the perception is that the verdict was rendered not by a cross-section of the community, or that the jury that was stacked with predominantly one group, then legitimate questions arise as to the fairness of the process and the legitimacy of the verdict. When these instances keep happening, it dampens the faith of the citizenry in the criminal justice and judicial systems, backbones of our democracy.

But possibly more damaging is the collective symbolic messages of this case, others like it, and the many other permutations of it (including the fact that missing black children get far less media attention than missing white children) send the following message:  black lives are not worth as much as white ones. At Gawker, Cord Jefferson made the following observations about the camps of reaction to the Zimmerman verdict:  

Tonight a Florida man’s acquittal for hunting and killing a black teenager who was armed with only a bag of candy serves as a Rorschach test for the American public. For conservatives, it’s a triumph of permissive gun laws and a victory over the liberal media, which had been unfairly rooting for the dead kid all along. For liberals, it's a tragic and glaring example of the gaps that plague our criminal justice system. For people of color, it’s a vivid reminder that we must always be deferential to white people, or face the very real chance of getting killed.

In the infamous case Dred Scott v Sanford (1856), the highest court in the land put its imprimatur on the belief that African Americans (whether free or slave) were not citizens and had no rights that whites need respect.  Not to suggest that no substantial gains in the cause for racial equality have been made, but every time there is a not guilty verdict rendered by an almost all white jury when a black man is killed, it takes minority communities and their supporters right back to Dred Scott.

Ding dong, DOMA's dead! Great, so what does that mean?

On it's final day of handing down decisions, the Supreme Court of the United States handed down two gay rights decisions:  Windsor v U.S. about the federal Defense of Marriage Act (DOMA) and Hollingsworth v Perry about Prop 8 in California (the anti-gay marriage proposition).  Read individually, in Windsor v U.S., the Defense of Marriage Act section on federally defined marriage was struck down.  In practical terms, this means that the federal government will recognize same-sex marriages performed by states that have it.  This move is important because more than 1,300+ legal benefits are tied to the legal definition of marriage.  Social Security, tax benefits, veteran's survivor benefits will all now be available to same sex partners.  This is HUGE for gay couples who have been denied these benefits.

In Hollingsworth v Perry, the result was ambiguous.  The case was dismissed for lack of standing, a technicality to say the the Court will not hear the appeal. Practically, it means that the ruling of the district court stands and that ruling says Prop 8 may not be enforced.  The Perry case does not make it so gay marriage will now resume in CA and more legal challenges will likely follow to force that move if state level clerks again refuse to hand out marriage licenses to gay couples.

Read together, Windsor and Perry are a mixed bag but a definite positive step forward for gay rights.  As big a victory Windsor is, it does NOT extend gay marriage to all the land.  It says that defining marriage has been traditionally left to the states and that will continue.  So if a state chooses to ban gay marriage, they can.  BUT, if a state chooses to legalize gay marriage, then the feds will also recognize that marriage as valid for the dispensation of federal legal benefits and privileges.

For the 24,000 binational gay couples, the immigration implications of the Windsor v U.S. case are significant.  Among the 1,300+ legal benefits deriving from marriage under federal law is the ability to file an immigration family petition to give one's spouse a Green Card to reside in the U.S.  But in order to qualify to petition for same-sex spouses, the couple would need to be legally married by a state that allows gay marriage.  It is not clear whether these two decisions together would mean the federal government will also recognize for immigration purposes same-sex marriages performed by foreign countries.

Overall, today's development's set the country on the right path toward full legal equality for LGBT citizens.  But there is a lot of work to be done at the state level to make sure that gay marriage is extended to all states.

Supreme Court deals blow to Voting Rights Act

By a 5-4 vote today, the Supreme Court majority voted in Shelby County v Holder to invalidate Section 4 of the Voting Rights Act which requires certain counties and states with a recent history of voting rights violations to "pre-clear" before a federal judge any changes they wish to make to voting rules and regulations.  This move is a step backward, not forward, for our nation's strides toward racial equality because discrimination has not been eradicated, it ha simply taken subterranean forms.

Adam Liptak of the New York Times called section 4 the "heart" of the VRA. The effect of this ruling is to make it more difficult for litigants to challenge discriminatory voting laws.  Whereas any changes had to be OK'd by the feds when Section 4 was valid, now that the provision is struck down, complainants now only have after-the-fact litigation as a recourse.  But litigation is costly and requires the person who is wronged to know their rights, and then seek out and possibly pay legal counsel for redress.  It is a high bar to clear for poor people who may lack the education to know their rights have been violated and to have the knowedge of how to to find legal counsel.

Justice Ginsburg summarized her dissent from the bench, a move that shows deep disagreement with the majority.  Invoking Martin Luther King Jr, she said:

“The great man who led the march from Selma to Montgomery and there called for the passage of the Voting Rights Act foresaw progress, even in Alabama,” she said. “'The arc of the moral universe is long,’ he said, but ‘it bends toward justice,’ if there is a steadfast commitment to see the task through to completion.”

“That commitment,” she said, “has been disserved by today’s decision.”

"The court errs egregiously by overriding Congress’s decision.”, she concluded.

Today the Court majority is too optimistic of our racial progress in its turning a blind eye to the multitude of forms that discrimination can take.  Justice Ginsburg also noted the focus of the Voting Rights Act had properly changed from “first-generation barriers to ballot access” to “second-generation barriers” like racial gerrymandering and laws requiring at-large voting in places with a sizable black minority, but that discrimination had not been erradicated.

The limits of the two gay rights decisions pending before the Supreme Court

Sometimes there is a lag time between law and changes in society.  As people wait with baited breath about U.S. v Windsor and Hollingswoth v Perry, members of the LGBT community and their supporters note that even if LGBT claimants prevail in both cases, there is still much work to be done because of the scope of rights those two cases address.  As Tara Siegel Bernard reported in the NYT yesterday, gay workers still lack protection from being fired at will and not being hired in many states.

It could be argued that both gay rights cases under consideration before the Court are putting the cart before the horse.  U.S. v Windsor is about the constitutionality of DOMA and the question of whether federal law can treat same sex couples the differently than heterosexual couples when in comes to the distribution of benefits.  The gay rights community has pushed on all fronts in terms of equal treatment under the law and it is easy to see why the main cases have concentrated on marriage equality.  The reason is that a legally recognized marriage comes with it a plethora of other legal rights, over 1,300+ by one count in federal law alone. 

Hollingsworth v Perry could be framed by the Court in an even more narrow fashion, which is to rule on the question of whether the state of California can give marriage rights to residents and then take it away later.  While victories on one or both cases would be undeniable progress, neither of these cases directly addressed the question of whether an employer can refuse to hire or fire you based on your sexual orientation alone.

The vignettes presented by Ms. Bernard in the NYT article show that it is all too possible for this very scenario to happen and that LGBT workers have little recourse under the law. Furthermore, as Bernard notes:

That means even if the Supreme Court were to declare that the law that denies same-sex married couples federal benefits was unconstitutional — it is expected to weigh in on the issue this month — such a decision could have a perverse effect: workers who may be permitted to add a same-sex spouse to a pension or a health plan, for instance, would be forced to expose their sexuality in a potentially hostile workplace to receive those benefits.

Law is inherently conservative and the Supreme Court and the federal courts cannot rule on whatever subject they please; they have to wait for a case to percolate up to them.  Law is also not a great vehicle for addressing complex social problems like homophobia.  But for minority groups searching for equality, the federal courts are often only avenue to go. 

Hopefully on this front, the states will create more progressive laws first as over 12 states have than the federal courts, but that too is a toss up given the wide geographical,  political cultural, and ideological variation among the states.

What Obama should do about the slow pace in filling political appointee positions

In today's Wonkbook, Ezra Klein and Evan Soltas report on the slow pace the Obama White House is filling many politically appointed positions in the federal bureacracy.  Although our nation passed a  civil service reform law in 1833 that required government employees to be selected by merit rather than patronage, usually via their performance on a civil service exam, at the highest levels in government bureaucracy, there remains a patronage system. Klein and Soltas's article notes that while high profile cabinet level positions are being filled, many second tier appointee positions in multiple agencies are still vacant:

"[A]bout a quarter of the top jobs at the State Department are empty. The Department of Homeland Security is missing its top cybersecurity appointees. The IRS hasn’t had a director since November. The Commerce Department doesn’t have a chief economist. “’I don’t think it’s ever been this bad,’ said Representative Frank R. Wolf, Republican of Virginia, who recently wrote a letter urging Mr. Obama to act swiftly to fill top vacancies.”

Klein and Soltas were talking about political appointees in the bureaucracy, but another huge class of presidential appointees that remain vacant are within the federal judiciary.  David Savage of the LA Times wrote that, "When the 112th Congress adjourned last week [December 2012], the Senate had approved 175 of Obama's judges. By comparison, Bush had 206 judges approved in his first term, and President Clinton had 204 judges confirmed during his first four years." With regard to Obama's first term record on judicial appointments,, Jeffery Toobin has said, "Judicial appointments represent one of the great missed opportunities of the Obama Presidency." 

What's going on?  I agree with Klein and and Soltas that Obama and Republicans share the blame for this sorry state. Some of the blame is structural.  With presidential nominees that require Senate confirmation, the Republicans have made it so that nominees must pass a 60 vote threshold, not a simple majority of 51. 

But Klein, Soltas and Toobin also blame the Administration, which has been slow to put forth names of nominees because of their own long, grueling vetting process that Klein and Soltas note, “People who have gone through the vetting in Mr. Obama’s White House describe a grueling process, lasting weeks or months, in which lawyers and political operatives search for anything that might hint at scandal.” Toobin says the following about the vacant judicial posts,  "In his first term, especially in the first two years, Obama himself bore much of the blame for this. When Democrats controlled sixty Senate seats, Obama was slow to nominate lower-court judges, and his moment of greatest leverage passed."  But he adds, "But, since the 2010 midterm elections, Republicans have been at fault, almost entirely."

The Republicans are wrong to foot drag and block any candidate they don't like.  But their behavior is surely payback for many years of the same treatment by Democrats.  The Obama Administration though is being a little ridiculous by scrutinizing for months every nominee's life for anything that could cause scandal.  At the age of his appointees, presumably seasoned veterans of their fields, virtually everyone has some baggage, you just want to avoid the man or woman with the full Samsonite set.  Why not flood the process with a bunch of qualified appointees for every vacant spot, and let the Republicans sort through them?  For example, instead of nominating one person to the DC circuit at a time, send four nominees at once since there are four vacancies on that circuit. Some are bound to get through instead of Obama's insistence on picking and choosing only the "perfect" candidates, which allows the Republicans to concentrate their fire on one at a time.

Soundtrack while waiting for SCOTUS gay rights decisions

Many are eagerly awaiting the SCOTUS decisions in Hollingsworth v Perry and U.S. v Windsor, the two gay rights cases.  While we wait, we might sing along with a group of law students from Columbia University who created a music video for Above the Law's "Law Revue contest."  The students entry incorporates elements of the U.S. v Windsor case.  The tune is quite catchy.



O'Connor expresses regret at Bush v Gore decision--or is it retirement remorse?

Retired Justice Sandra Day O'Connor last week gave an interview to the Chicago Tribune in which she said for the first time that she doubted the wisdom of the Court granting certiorari to hear the Bush v Gore (2000) case.  (I have blogged before about the Supreme Court's luxury of controlling its docket or the ability for it to pick and choose which cases it wishes to hear.)  O'Connor said the following about Bush v Gore:

"It took the case and decided it at a time when it was still a big election issue," O'Connor said during a talk Friday with the Tribune editorial board. "Maybe the court should have said, 'We're not going to take it, goodbye.'"

The case, she said, "stirred up the public" and "gave the court a less-than-perfect reputation."

One wonders whether this is a case of hindsight being 20/20, or a case of retirement remorse. Justice O'Connor, who was known as the highly influential swing justice for over a decade on the Court, was replaced by the much more conservative Justice Alito.  The Onion has mocked O'Connor's regret.

What's significant about NBA player Jason Collins coming out

In a Sports Illustrated article, Jason Collins, a 34 year-old NBA veteran came out and became the first openly gay player in major American sport (which includes the NBA, MLB, NHL and NFL).  At a time when LGBT Americans have enjoyed acceptance, and as our highest Court debates marriage equality, one might wonder what's the big deal with Jason Collins.  The big deal is the venue in which Collins works.  He is the first openly gay pro-athlete in a major sport.  He is also male in a sport that is dominated by macho men. Bill Cowherd of the Baltimore Sun put it this way:

Sure, anyone with common sense knows Collins isn't the only gay man playing in the NBA or the NFL or Major League Baseball — or any other team sport, for that matter.

But he was the first one who took a deep breath and came out while he still had a career to protect. (He's a free agent who last played for the Washington Wizards this season and wants to keep playing.)

That's why this is so momentous.

Collins states though in his first person narrative in Sports Illustrated that he was not trying to be a trailblazer or even an activist, but the Boston Marathon bombings gave him a new perspective about just wanting to live his life as who he is.  He said, "The recent Boston Marathon bombing reinforced the notion that I shouldn't wait for the circumstances of my coming out to be perfect. Things can change in an instant, so why not live truthfully?"

Reactions to Collins' announcement around the NBA, sports world, and world has been largely positive

Who are the U.S. Courts of Appeals?

Lately, there has been a number of stories about unsuccessful Obama attempts to appoint his choice of judges to the U.S. Courts of Appeals. Charlie Savage has criticized Obama (and I agree) that Obama has simply not made judicial appointments a priority.  First, in 2011, Goodwin Liu, a UC Berkeley law professor withdrew his nomination to the Ninth Circuit after Republicans in the Senate successfully filibustered him, the only filibuster since George W. Bush's first term.  The objection was Liu was too liberal and that some future Democratic president might put him on the Supreme Court later.

The second casualty of Senate gridlock was Caitlan Halligan, a lawyer from New York who was to be appointed to the DC Circuit, whom the Republicans in the Senate successfully filibustered not once, but twice.  We shall see what happens to Sri Srinavasan.  The use of the filibuster to block judicial nominations is a new tactic, trotted out really since George W. Bush's administration.  One would be naive to think the Democrats will also resort to this tactic when they are in the minority.  But the deployment of the filibuster has meant that neither Liu nor Halligan ever got an up or down vote in the Senate. 

None of these battles are over Supreme Court nominations. But what are these courts that virtually no one except court insiders have heard of? Here they are.  The U.S. Courts of Appeals are the level of the federal courts right below the Supreme Court.  As you can see from the map, their jurisdiction conforms to state boundaries.  Unlike the Supreme Court, they do not have the luxury of certiorari, meaning they cannot pick and choose what cases to hear like the Supreme Court; they must adjudicate all cases properly appealed to them.  Their rulings are only valid in their jurisdictions, not the whole country like the Supreme Court's rulings. 

Take a good look--effectively these are the courts of last resort for most people since the Supreme Court only adjudicates 80 or so cases each year among the 7,000+ appealed to it. If the Supreme Court does not grant your case certiorari or agree to hear the case, the decision of the last court stands; often that is one of the U.S. Courts of Appeals.

There are 11 circuits plus the Federal Circuit and the DC Circuit.  These represent the battlegrounds now for judicial nominations.