This is the fifth in an ongoing series of posts on the process of civil rights litigation and the rights courts have been used to secure and protect. A complete list of posts in this series can always be found here. Disclaimer: I'm not a lawyer (yet), so don't take anything I say as legal advice. This is an educational guide so you can better understand how courts protect your rights.

 Alright, so this is my first spotlight post. I'm going to try to do these every once in a while, to give you a better sense of how the law is actually applied. Today I'm gonna talk about a case called Medellin v. Texas.

So... this actually starts with a treaty the U.S. is party to- the Vienna Convention on Consular Relations. One of the terms of the VCCR is that when a foreign national is accused of a crime, you have to inform him that he can contact his local consulate for legal assistance. In reality, this happens never because nobody bothers to tell local police departments that they're supposed to do this. But we're also a party to an optional protocol to the VCCR which says that if another nation has problems with how we're complying with the treaty, they can sue us in the International Court of Justice. Mexico brought a suit on behalf of fifty-one of its citizens sitting on American death rows, and in 2004 the ICJ ordered the U.S. To review these cases. President Bush, in one of his better moments, issued an executive order to the state courts to comply with the ICJ decision. Texas refused, and one of the Mexican nationals, Jose Ernesto Medellin, sued. (Technically, he filed a petition for habeas corpus, but to simplify things we'll say he sued.)

The case made it all the way up to the Supreme Court, where one of the issues was what legal effect the ICJ's decision had on U.S. Courts. Here's where we get into the Constitutional part. Article VI of the Constitution says, in part: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” This is what's called the supremacy clause. The part about treaties is the treaty clause. Sounds pretty simple, right? Treaties are law that must be followed the same as legislation passed by Congress. And Article 94 of the UN Charter, also a treaty, says that UN members must “undertake to comply” with ICJ decisions. So complying with ICJ decisions is the law, right?

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This is the fourth in an ongoing series of posts on the process of civil rights litigation and the rights courts have been used to secure and protect. A complete list of posts in this series can always be found here. Disclaimer: I'm not a lawyer (yet), so don't take anything I say as legal advice. This is an educational guide so you can better understand how courts protect your rights.

 So... almost a week ago now I promised a post analyzing how the Supreme Court does and doesn't respect precedent. This is a pretty complicated question and I want to make it clear that while what I've been talking about so far is objective information about how the law works, this is strictly opinion, and it's a field in which intelligent people have a lot of room to disagree. It's also a very brief summary of something I don't have the time to go into more detail on, at least not without explaining  a whole bunch of lawyerly stuff that won't ever be relevant again.

Talking about how the Court as a whole behaves is a difficult subject because to a much greater degree than at the lower levels, the personalities and philosophies of the individual justices matter. Which isn't to say that it doesn't matter at the lower levels, and circuit judges with a lot of personality have had great success in putting their stamp on the law. But there's a lot more of them, and many of the irregularities get smoothed out by the fact that all their decisions are reviewable. At the Supreme Court level, it matters much more how the individual justices approach the idea of judging. Some work hard to conform to the state of the law as it already is. Some are quite open about the fact that the put other concerns above precedent. Some claim to take precedent very seriously, but in fact don't at all.

As a whole, the Court tends to be shy about overturning major decisions, and with good reason. When the law flips back and forth quickly, it makes the Court looks less like a court and more like a political body. It also makes it harder for lower courts to produce consistent and reliable results. There are exceptions of course, but when the Court overturns major decisions, it tends to focus on how the factual basis for the original decision was wrong. Take probably the most famous Supreme Court reversal in our history- Brown v. Board of Education. Before overturning the standard of 'separate but equal' created by Plessy v. Ferguson, the Court first sent the case back down to determine as thoroughly as possible that 'separate but equal' was in fact not working in practice before coming to a final decision.

Which isn't to say that the Supreme Court won't drastically change the law with a single decision, just that it doesn't like to appear to. Often it will do so by offering a hair-splitting distinction between this case and previous one. Other times it will claim to 'clarify' the rule it set in a previous case which is essentially a new and totally different standard. The current Court has been especially adept at this. When Chief Justice Roberts took his position, he promised a new, less divisive Court that would produced fewer 5-4 decisions and focus on minimalism, shaping the law only a little bit at a time. This has not been the case, but the Chief Justice has done a fantastic job of making it appear so, a routine often picked up on by people who follow the Courts but ignored by the general public. In my next post I want to focus on a particular case that exemplifies this trend, one I've personally done research and which is critical to how our justice system treats non-citizens.

I'm still working on my post on the Supreme Court and precedent, because it's a difficult subject and I want to make sure I say what I mean to, but in the meantime, I thought I might say a little about the Department of Justice's new position on the Defense of Marriage Act because, last Friday, Justice filed their first brief in support of that position.

Contrary to the way a lot of news organizations have spun the decision, the Obama administration did not say they were going to stop enforcing DOMA. What they said is that they couldn't make a good faith argument in court that DOMA section 3, which prohibits the federal government from recognizing legally performed same-sex marriages, was constitutional. So what does that mean? When the government passes a law it has to treat “similarly-situated people similarly"- in this case similarly situated same-sex and opposite-sex couples. But the government doesn't have to give equal weight to all classifications. There's a four part test that basically rests on historical and continued discrimination against a group. The four factors are: whether there is a history of discrimination, whether there is some characteristic of members of the group that they can't change, whether the group is politically powerless, and whether the characteristics of the group relate to legitimate government goals. Race, for example, is at the high end of the scale. Mental and physical disabilities and gender* fall somewhere in the middle. Sexual orientation has traditionally fallen at the low end.

Where classifications fall determines the test a law has to pass to be constitutional. Classifications at the low end have to pass “rational review,” which means the ends pursued are legitimate (and remember the end isn't to establish the classification, it's whatever the stated purpose of the law is) and the legislature could have believed that the means employed are rationally related to achieving that goal. At the other end, classifications get strict scrutiny. The government's objective has to be compelling, and the means used “narrowly tailored,” which means they effect as little as possible outside the stated objective. Then there's a whole bunch of tests that fall somewhere in the middle that I won't go into here.

Like I said, classifications based on sexual orientation have traditionally gotten rational basis review. Rational basis review is a pretty easy standard to pass. For instance, a court could say something like, “Congress wanted to promote procreation and the continuing of the American people and could have believed that showing a preference for heterosexual marriage advances that goal.” But a couple of decisions have suggested that the Supreme Court is moving towards one of the stricter tests. In Romer v. Evans, it struck down an amendment to Colorado's constitution prohibiting laws against discrimination on the basis of sexual orientation, and, in Lawrence v. Texas, it struck down state laws against sodomy. In neither case did the Court say it was moving to a higher standard, but both have language that suggests it's thinking about it.

Now a federal employee married in California is suing because section 3 of DOMA prevents her partner from receiving her federal health benefits. California is in the Ninth Circuit, which last considered the question of what test to apply to sexual orientation in a 1990 case called High Tech Gays v. Defense Industrial Security Clearing Office. (Sometimes called High Tech Gays v. DISCO, for obvious reasons.) The court chose rational review. But High Tech Gays was based on an older case called Bowers v. Hardwick. Bowers upheld a Georgia law against sodomy and was overruled by Lawrence. The Justice Department is arguing that now that Bowers is no longer law, the precedent established by High Tech Gays no longer holds, and that in truth classifications on the basis of sexual orientation should receive strict scrutiny.

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This is the third in an ongoing series of posts on the process of civil rights litigation and the rights courts have been used to secure and protect. A complete list of posts in this series can always be found here. Disclaimer: I'm not a lawyer (yet), so don't take anything I say as legal advice. This is an educational guide so you can better understand how courts protect your rights. 

So what is it that gives judge made opinions the force of law, the same as bills passed by legislators? To understand the reasons, we have to go back to the founding of America, and then all the way back to medieval England. When America became separate from Great Britain, we could have invented a completed new legal system, the same way we invented a new structure of government. Instead we mostly adopted the way English law works- a system called "common law." 

As governments began to emerge from the wreckage of the Roman Empire, most mainland European countries developed legal systems based on the old Roman laws, which eventually led them to adopt the Roman method of a written legal code, what's called a civil law system. England, always less Romanized than the continent, went a different way, returning a tradition in which judges decided disputes based on local custom, and accused lawbreakers were tried by a jury of their peers. In the 12th century, Henry the II wanted a single legal system to unite his kingdom, but rather than write down a code, he sent judges from his court out to oversee the various local courts. They would report back on how cases were decided and discuss how to fit all of these local customs together. The result was the “common law” of England, a system of laws based on judges interpreting how earlier judges had decided things. The common law was the system we adopted when we formed our own country.

The central feature of common law is stare decisis, Latin for “to stand by decisions.” Stare decisis means looking to precedent- earlier cases that addressed the same question, to ensure that the law remained consistent, continuous, and predictable. Today, our laws are written down in the U.S. Code and the various state codes (some states have a single, comprehensive code, some prefer to make several codes covering different subjects), but the ideas that these laws are interpreted by judges and that the interpretations bind later judges are still central to our system. The basic laws of this country are essentially modifications of the old common law definitions. For instance, many states still define murder using the old-fashioned sounding phrase, “the unlawful killing of a human being with malice aforethought.”

Judges apply the law by comparing the facts of a case to the facts of similar cases, and deciding either that the facts are similar enough that the law should be applied in the same way, or that something distinguishes the cases, and the law should produce a different result. Courts are bound by precedent from previous cases in their courts and by precedent from higher courts. Lawyers can also present similar cases from other courts to aid the judge in deciding their cases. This is called persuasive authority.

In most cases, judges know that if they get precedent wrong, a higher court will correct them. But what about the Supreme Court? If they go against precedent, there's nobody higher to stop them, and it's almost impossible to get a Supreme Court Justice fired- they have to be impeached and tried before the Senate, just like the President, and unlike the President, Justices get to keep their jobs until they retire or die. So does the Supreme Court obey precedent? It's a complicated subject that creates a lot of debate among Constitutional scholars, and the best answer is: maybe, sort of. In my next post I'll try to give a basic gloss on the Supreme Court and precedent, but remember, it's an extremely messy subject that people much more experienced than me have made careers out of debating.

This is the second in an ongoing series of posts on the process of civil rights litigation and the rights courts have been used to secure and protect. A complete list of posts in this series can always be found here. Disclaimer: I'm not a lawyer (yet), so don't take anything I say as legal advice. This is an educational guide so you can better understand how courts protect your rights.

Just like there are state legislatures in addition to the U.S. Congress, there are separate state courts in addition to the federal courts. Each state maintains its own court system with its own rules. For the most part, I'm going to be focusing on the federal courts because, with fifty different courts systems, only one of which I'm familiar with (my home state of Georgia), it's just too complicated to go into.

State courts are the only ones who can interpret their state's laws. (Well, federal courts aren't supposed to, but the U.S. Supreme Court will if it really wants to. The most infamous example is probably Bush v. Gore, where the U.S. Supreme Court told Florida that its own elections laws meant that had to stop recounting votes.) State courts can interpret federal law too. Federal courts on the other hand, can decide claims based on state law, but they're not supposed to interpret it for themselves. When a state law question comes up, they have to look at what state courts have said that law means and do their best to conform to state court rulings. If a question is new and particularly complicated, they may send it over to the relevant state courts to answer the question. (There's a huge messy field called abstention which deals with when federal courts should hold off let state courts examine an issue first. We'll get to that.)

The term for what cases a court is authorized to hear is called its jurisdiction. Your state court almost always has jurisdiction (assuming the thing you're going to court over happened in your state), but federal courts only have jurisdiction in three situations. The first, obviously, is if you've been accused of a federal crime and are present a defense. The second is if you're bringing a claim based on (“arising under” is the technical term) federal law. If you have any related claims based on state law, the federal court can usually hear those too- that's called pendant jurisdiction, because the state claims hang off the federal claim. The other situation is if you have diversity, which means you and all the other people you're suing with are all from different states from the people you're suing. You don't have to all be from different states, and they don't have to all be from different states, but nobody on opposite sides can be from the same state. For diversity jurisdiction you also have to satisfy the “amount in controversy” requirement, which means you're claiming at least a certain amount of money in damages, currently $75,000. Diversity sounds messy and it is messy, but again, we're mostly focusing on claims that come from federal law or the U.S. Constitution, so it's not really an issue here. This is probably the last time I'll mention it, except maybe when I talk about the Eleventh Amendment.

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Amanda Marcotte wrote a post last week debunking three arguments she hears from people who don't believe Roe v. Wade is in danger. Although I agree with much of what she says and with her ultimate conclusion, I think she confuses the issue by framing it in terms of whether or not Roe will be overturned, when the more immediate concern is how much damage the Court's anti-choice bloc can do while leaving Roe's guarantee of fundamental right to choose.

I take issue in particular with two things she says. First, in response to the claim that if the Roberts Court wanted to overturn Roe, they would have done so by now, she points out that the Court hasn't directly addressed Roe's validity since Justice O'Connor retired and Justice Kennedy became the swing vote. She concludes that given the opportunity to do so, Kennedy  would vote to overturn Roe. Her argument:

[T]he only possibility that Roe will be upheld depends on [Kennedy] not being a completely sexist pig. So, where does Justice Kennedy fall on the "sexist pig" continuum? Well, just this week he voted with the conservatives in Wal-Mart v. Dukes. The argument of the majority was that the only possible way that something could be called "gender discrimination" is if there's an overt policy in a company stating that women are inferior to men. Even in the "Mad Men" era, this wasn't how sexists rolled, so basically the court is saying there is no such thing as gender discrimination. And Kennedy agreed with this. Moreover, Kennedy wrote the last decision the court passed on some kind of abortion legislation, when the court upheld a ban. In his decision, he characterized women as walking wombs who are too stupid and fickle to know that their only purpose in life is giving birth, and so they must be forced to do so by a male-dominated government. That doesn't really sound like the opinion of someone who can be counted on to uphold abortion rights. In fact, when given the chance to do so, he dismantled them.

But voting to roll back abortion rights isn't the same as overturning Roe. As Marcotte points out, Planned Parenthood v. Casey did a great deal of harm to abortion rights while upholding the right to choose. And Kennedy not only was part of the majority in Casey, he joined the part of Justice O'Connor's opinion arguing that the weight of precedent counseled against reversing Roe. Nothing since has suggested he now wishes to overturn Casey. He doesn't have to. He's turned the state interest in protecting potential life O'Connor articulated in Casey and turned it into a license to ban any aspect of abortion he finds personally icky.

Does  Kennedy have really awful, backwards views about women? Definitely. But whether it's because he believes in some fundamental protection for abortion, even when he personally disagrees with the procedure, or because he's nervous about upsetting precedent, I don't see him overturning Roe as long as it can be avoided.

Second, in response to the argument that Roe is too valuable for getting the base riled up, she points to the recent wave of legislation aimed at rolling back abortion rights and to the blind passion of anti-choice activists and concludes that the ulitimate goal must be total victory. Again, I agree that the end game is abolishing the right to choose. But in the short and medium term, I think she's wrong. Comparing legislatures and activists to courts is comparing apples to oranges. Being a bomb-thrower can be valuable and rewarding for the first two groups. Clever judges know that they're better off being somewhere else when the bomb goes off. Chief Justice Roberts is a master of this skill. His talent for drastically altering established law while appearing to change very little famously earned him the derision of Justice Scalia.

So far a progressive counterpart to the conservative legal movement has failed to develop, but overturning Roe v. Wade would be a powerful catalysts. I suspect Roberts know that, and as long as it's feasible, he'll hand these opinions off to Kennedy and let the abortion rights die by a thousand tiny cuts.

The is the first in an ongoing series of posts on the process of civil rights litigation and the rights courts have been used to secure and protect. A complete list of posts in this series can always be found here. Disclaimer: I'm not a lawyer (yet), so don't take anything I say as legal advice. This is an educational guide so you can better understand how courts protect your rights.

There are a couple of different ways civil rights can end up getting argued in front of a judge. The first is that somebody has been accused of a crime, and he's arguing in his defense that the law he's charged with breaking is allowed by the U.S. Constitution or by his state's constitution. Lawrence v. Texas is a good example. John Geddes Lawrence and Tyrone Garner were caught having anal sex, which was then a crime in Texas, after Garner's partner made a a phony report about a man going wild with a gun in Lawrence's apartment. When the went to trial they argued that Texas wasn't constitutionally allowed to make consensual sex a crime. Six members of the U.S. Supreme Court agreed.

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Hi everyone. My name is Eric, I'm a law student from Georgia, and I'm interning at Advocates for Youth this summer. My passion is, for lack of a better word, “de-mistifying” the law: helping non-lawyers understand how the law works and what it means for them. I'm going to be doing a series of posts over the summer explaining the nuts and bolts of using the courts to protect your rights and the obstacles in the way. Disclaimer: I'm not a lawyer (yet), so don't take anything I say as legal advice. This is an educational guide so you can better understand how courts protect your rights.

You've probably heard about a couple of the big decisions like Roe v. Wade or Lawrence v. Texas, and I promise towards the end of this series I'll explain what those decisions actually mean (“stand for” in lawyer talk). But what you might not have thought about is the all the things that have to happen in and out of the courtroom to make something like Roe happen. This is going to be a mix of technical details about how the courts work and a spotlight on the obstacles in the way of challenging unjust laws and policies. In the past 30 years, our courts have become increasingly conservative, and these conservative judges have been very successful at blocking law suits aimed at making sure your rights are protected. Because they've used rules even most lawyers find boring or confusing, this attack on your rights has gone largely unnoticed by the general public. But the first step to turning the tide is arming yourself with and understanding of what's going on behind courthouse doors.

Once I've gone through all that, I'm going to start explaining what some of those famous decisions mean for you. I'm definitely going to discuss Roe and a couple of related cases; Griswold v. Connecticut, which established the right to contraception and set the stage for Roe; Lawrence, which eliminated laws against sodomy across America; and Lemon v. Kurtzman, which created the test for determining when schools have crossed the line by including religious messages in their curriculum. I also want to talk about Title IX. Title IX says that any educational program that gets federal money can't discriminate or deny opportunities on the basis of sex, and it's a wonderful tool for making sure your schools are giving you the education you deserve. I'm sure there will be others, but if there's anything particular case you want to know more about, let me know and I'll try to include it.

American law students learn using what's called the “casebook method” which means we learn the law by reading cases that are either huge moments in the law or are just great examples of a particular part of the law in action. I'm going to try to replicate that here. Any case I mention, I'll link to; so, if you're interested, and especially if you think you might want to be a lawyer one day, try reading at least a little bit for yourself. Along the way I'm going to stop and spotlight interesting cases that discuss what I'm trying to explain and that directly affect young people.

My first post should follow shortly after this one, the different ways a civil rights issue can end up getting argued in court.

Table of Contents:
I: Defenses and Claims
II: Courts
III: Precedent
IV: The Supreme Court & Precedent
V: Spotlight on Medellin v. Texas