Sundays at JASA Fall 2022
The Supreme Court: Law and Politics Collide
10:30am – 11:30am Instructor: Leora Harpaz
In recent years, the U.S. Supreme Court has involved itself in
numerous controversies that have had significant political
ramifications. Whether it is redistricting, voting rights,
abortion, guns, climate change, or immigration, just to name
some of the issues, the Court’s actions have involved it in
major political controversies. This course will examine the
Court’s recent actions in areas of political significance as
well as look ahead to other issues that may reach the Court.
Class 10 - Dec. 12, 2022
42 U.S. Code § 1985. Conspiracy to interfere with civil
rights:
(1) Preventing officer from performing duties
If two or more persons in any State or Territory conspire to
prevent, by force, intimidation, or threat, any person from
accepting or holding any office, trust, or place of confidence
under the United States, or from discharging any duties thereof;
or to induce by like means any officer of the United States to
leave any State, district, or place, where his duties as an
officer are required to be performed, or to injure him in his
person or property on account of his lawful discharge of the
duties of his office, or while engaged in the lawful discharge
thereof, or to injure his property so as to molest, interrupt,
hinder, or impede him in the discharge of his official duties.
Article I, Sec. 4:
“The Times, Places and Manner of holding Elections for . . .
Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law
make or alter such Regulations.”
Class 9 - Dec. 5, 2022
Supreme
Court Oral Argument: 303 Creative v. Elenis
Class 8 - Nov. 28, 2022
Colorado
Anti-Discrimination Act
Colorado Rev Stat § 24-34-601 (2016):
(1) As used in this part 6, "place of public accommodation"
means any place of business engaged in any sales to the public
and any place offering services, facilities, privileges,
advantages, or accommodations to the public, including but not
limited to any business offering wholesale or retail sales to
the public; any place to eat, drink, sleep, or rest, or any
combination thereof; any sporting or recreational area and
facility; any public transportation facility; a barber shop,
bathhouse, swimming pool, bath, steam or massage parlor,
gymnasium, or other establishment conducted to serve the
health, appearance, or physical condition of a person; a
campsite or trailer camp; a dispensary, clinic, hospital,
convalescent home, or other institution for the sick, ailing,
aged, or infirm; a mortuary, undertaking parlor, or cemetery;
an educational institution; or any public building, park,
arena, theater, hall, auditorium, museum, library, exhibit, or
public facility of any kind whether indoor or outdoor. "Place
of public accommodation" shall not include a church,
synagogue, mosque, or other place that is principally used for
religious purposes.
(2) (a) It is a discriminatory practice and unlawful for a
person, directly or indirectly, to refuse, withhold from, or
deny to an individual or a group, because of disability, race,
creed, color, sex, sexual orientation, marital status,
national origin, or ancestry, the full and equal enjoyment of
the goods, services, facilities, privileges, advantages, or
accommodations of a place of public accommodation or, directly
or indirectly, to publish, circulate, issue, display, post, or
mail any written, electronic, or printed communication,
notice, or advertisement that indicates that the full and
equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of a place of public
accommodation will be refused, withheld from, or denied an
individual or that an individual's patronage or presence at a
place of public accommodation is unwelcome, objectionable,
unacceptable, or undesirable because of disability, race,
creed, color, sex, sexual orientation, marital status,
national origin, or ancestry.
(b) A claim brought pursuant to paragraph (a) of this
subsection (2) that is based on disability is covered by the
provisions of section 24-34-802.
(2.5) It is a discriminatory practice and unlawful for any
person to discriminate against any individual or group because
such person or group has opposed any practice made a
discriminatory practice by this part 6 or because such person
or group has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing conducted pursuant to this part 6.
(3) Notwithstanding any other provisions of this section, it
is not a discriminatory practice for a person to restrict
admission to a place of public accommodation to individuals of
one sex if such restriction has a bona fide relationship to
the goods, services, facilities, privileges, advantages, or
accommodations of such place of public accommodation.
Class 7 - Nov. 21, 2022
State Constitutional Amendments:
Michigan:
Art. 1, Sec. 28 Right to Reproductive Freedom
(1) Every individual has a fundamental right to reproductive
freedom, which entails the right to make and effectuate
decisions about all matters relating to pregnancy, including but
not limited to prenatal care, childbirth, postpartum care,
contraception, sterilization, abortion care, miscarriage
management, and infertility care.
An individual's right to reproductive freedom shall not be
denied, burdened, nor infringed upon unless justified by a
compelling state interest achieved by the least restrictive
means.
Notwithstanding the above, the state may regulate the provision
of abortion care after fetal viability, provided that in no
circumstance shall the state prohibit an abortion that, in the
professional judgment of an attending health care professional,
is medically indicated to protect the life or physical or mental
health of the pregnant individual.
(2) The state shall not discriminate in the protection or
enforcement of this fundamental right.
(3) The state shall not penalize, prosecute, or otherwise take
adverse action against an individual based on their actual,
potential, perceived, or alleged pregnancy outcomes, including
but not limited to miscarriage, stillbirth, or abortion. Nor
shall the state penalize, prosecute, or otherwise take adverse
action against someone for aiding or assisting a pregnant
individual in exercising their right to reproductive freedom
with their voluntary consent.
(4) For the purposes of this section:
A state interest is "compelling" only if it is for the limited
purpose of protecting the health of an individual seeking care,
consistent with accepted clinical standards of practice and
evidence-based medicine, and does not infringe on that
individual's autonomous decision-making. "Fetal viability"
means: the point in pregnancy when, in the professional judgment
of an attending health care professional and based on the
particular facts of the case, there is a significant likelihood
of the fetus's sustained survival outside the uterus without the
application of extraordinary medical measures.
(5) This section shall be self-executing. Any provision of this
section held invalid shall be severable from the remaining
portions of this section.
Vermont:
Article 22. [Personal reproductive liberty] That an individual’s
right to personal reproductive autonomy is central to the
liberty and dignity to determine one’s own life course and shall
not be denied or infringed unless justified by a compelling
State interest achieved by the least restrictive means.
California:
ART. I, SEC. 1.1. The state shall not deny or interfere with an
individual’s reproductive freedom in their most intimate
decisions, which includes their fundamental right to choose to
have an abortion and their fundamental right to choose or refuse
contraceptives. This section is intended to further the
constitutional right to privacy guaranteed by Section 1, and the
constitutional right to not be denied equal protection
guaranteed by Section 7. Nothing herein narrows or limits the
right to privacy or equal protection.
Current New York State Constitution Equal Protection Clause
No person shall be denied the equal protection of the laws of
this state or any subdivision thereof. No person shall, because
of race, color, creed or religion, be subjected to any
discrimination in his or her civil rights by any other person or
by any firm, corporation, or institution, or by the state or any
agency or subdivision of the state.
New York Equality Amendment (passed by the state legislature as
the first of 3 steps in amending the state constitution)
No person shall be denied the equal protection of the laws of
this state or any subdivision thereof. No person shall, because
of race, color, ethnicity, national origin, disability, creed,
religion, or sex including sexual orientation, gender identity,
gender expression, pregnancy, pregnancy outcomes, reproductive
healthcare and reproductive autonomy, be subjected to any
discrimination in their civil rights by any other person
or by any firm, corporation, or institution, or by the state or
any agency or subdivision of
the state, pursuant to law.
Class 6 - Nov. 14, 2022
United States Constitution, Art. I, Sec. 8:
The Congress shall have Power ...To promote the Progress of
Science and useful Arts, by securing for limited Tımes to
Authors and Inventors the exclusive Right to their respective
Writings and Discoveries.
§107 · Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the
fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other means
specified by that section, for purposes such as criticism,
comment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research, is not an infringement
of copyright. In determining whether the use made of a work in
any particular case is a fair use the factors to be considered
shall include—
(1) the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational
purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value
of the copyrighted work.
The fact that a work is unpublished shall not itself bar a
finding of fair use if
such finding is made upon consideration of all the above
factors.
Goldsmith
Photo of Prince
Goldsmith
Photo and Warhol Images
Goldsmith Photo and Warhol Orange Image
Class 5 - Nov. 7, 2022
Class 4 - Oct. 31, 2022
Live
Supreme Court Oral Arguments
Class 3 - Oct. 24, 2022
New York State Rifle & Pistol Ass'n v. Bruen:
On the one hand, courts should not “uphold every modern law that
remotely resembles a historical analogue,” because doing so
“risk[s] endorsing outliers that our ancestors would never have
accepted.” On the other hand, analogical reasoning requires only
that the government identify a well-established and
representative historical analogue, not a historical twin. So
even if a modern-day regulation is not a dead ringer for
historical precursors, it still may be analogous enough to pass
constitutional muster.
[W]hether modern and historical regulations impose a comparable
burden on the right of armed self-defense and whether that
burden is comparably justified are “ ‘central’ ” considerations
when engaging in an analogical inquiry.
While the historical analogies here and in Heller are relatively
simple to draw, other cases implicating unprecedented societal
concerns or dramatic technological changes may require a more
nuanced approach. The regulatory challenges posed by firearms
today are not always the same as those that preoccupied the
Founders in 1791 or the Reconstruction generation in 1868. . . .
the Constitution can, and must, apply to circumstances beyond
those the Founders specifically anticipated.
Antonyuk v. Hochul:
In essence, New York State has replaced its requirement
that an applicant show a special need for
self-protection with its requirement that the applicant
rebut the presumption that he or she is a danger to
himself or herself, while retaining (and even expanding)
the open-ended discretion afforded to its licensing
officers.
Simply stated, instead of moving toward becoming a
shall-issue jurisdiction, New York State has further
entrenched itself as a shall-not-issue jurisdiction.
And, by doing so, it has further reduced a first-class
constitutional right to bear arms in public for
self-defense . . . into a mere request (which is
burdened with a presumption of dangerousness and the
need to show "good moral character").
Concealed Carry
Improvement Act: Of Good Moral Character:
“No license shall be issued or renewed
except for an applicant . . . of good moral
character which . . . shall mean having the
essential character, temperament and good
judgment necessary to use [the weapon
entrusted to the applicant] only in a manner
that does not endanger oneself or others.”
As Amended and Enforced by Judge Suddaby:
“A license shall be issued or renewed except for an
applicant . . . who has been found, by a preponderance
of the evidence based on his or her conduct, to not be
of good moral character, which . . . shall mean having
the essential character, temperament and judgment
necessary . . . to use [the weapon entrusted to the
applicant] only in a manner that does not endanger
oneself or others, other than in self-defense.”
Complete List of Sensitive Places in the New York
Concealed Carry Improvement Act
(✖ stands for places
on the list that were found to
be unconstitutional and ✔
for places that were found to
be constitutional)
2. For the purposes of this section, a
sensitive location shall mean:
✔(A) Any place
owned or under the control of federal, state or local
government, for the purpose of government
administration, including courts;
✖(B) Any location
providing health, behavioral health, or chemical
dependance care or services;
✔(C)
Any place of worship or religious observation;
✖(D)
Libraries, public playgrounds, public parks, and zoos;
✖(E)
The location of any program licensed, regulated,
certified, funded, or approved by the office
of children and family
services that provides services
to children, youth, or young adults, any legally
exempt childcare provider; a childcare program for which
a permit to operate such program has been issued
by the Department of Health and Mental Hygiene pursuant
to the Health Code of the City of New York;
(F) ✔Nursery
schools, ✔preschools,
and ✖summer
camps;
✖(G)
The location of any program licensed, regulated,
certified, operated, or funded by the Office for People
With Developmental Disabilities;
✖(H)
The location of any program licensed, regulated,
certified, operated, or funded by Office of Addiction
Services and Supports;
✖(I)
The location of any program licensed, regulated,
certified, operated, or funded by the Office of Mental
Health;
✖(J)
The location of any program licensed, regulated,
certified, operated, or funded by the Office of
Temporary and Disability Assistance;
✖(K)
Homeless shelters, runaway homeless youth shelters,
family shelters, shelters for adults, domestic violence
shelters, and emergency shelters, and residential
programs for victims of domestic violence;
✖(L)
Residential settings licensed, certified, regulated,
funded, or operated by the Department of Health;
✔(M)
In or upon any building or grounds, owned or leased, of
any educational institutions, colleges and universities,
licensed private career schools, school districts,
public schools, private schools licensed under
article one hundred one of the education law, charter
schools, non-public schools, board of cooperative
educational services, special act schools, preschool
special education programs, private residential or
non-residential schools for the education of students
with disabilities, and any state-operated or
state-supported schools;
✖(N)
Any place, conveyance, or vehicle used for public
transportation or public transit, subway cars, train
cars, buses, ferries, railroad, omnibus, marine or
aviation transportation; or any facility used for or in
connection with service in the transportation of
passengers, airports, train stations, subway and rail
stations, and bus terminals;
✖(O)
Any establishment issued a license for on-premise
consumption pursuant to article four, four-a, five, or
six of the alcoholic beverage control law where alcohol
is consumed and any establishment licensed under article
four of the cannabis law for on-premise consumption;
✖(P)
Any place used for the performance, art entertainment,
gaming, or sporting events such as theaters, stadiums,
racetracks, museums, amusement parks, performance
venues, concerts, exhibits, conference centers, banquet
halls, and gaming facilities and video lottery terminal
facilities as licensed by the gaming commission;
✔(Q)
Any location being used as a polling place;
✔(R)
Any public sidewalk or other public area restricted from
general public access for a limited time or special
event that has been issued a permit for such time or
event by a governmental entity, or subject to specific,
heightened law enforcement protection, or has
otherwise had such access restricted by a governmental
entity, provided such location is identified as
such by clear and conspicuous signage;
✔(S)
Any gathering of individuals to collectively express
their constitutional rights to protest or assemble;
✖(T)
The area commonly known as Times Square, as
such area is determined and identified by the City of
New York; provided such area shall be
clearly and conspicuously identified with signage.
Class 2 - Oct. 17, 2022
Presidential Records Act:
Definitions
§2201. Definitions
As used in this chapter—
(1) The term "documentary material" means all books,
correspondence, memoranda, documents, papers, pamphlets,
works of art, models, pictures, photographs, plats, maps,
films, and motion pictures, including, but not limited to,
audio and visual records, or other electronic or mechanical
recordations, whether in analog, digital, or any other form.
(2) The term "Presidential records" means documentary
materials, or any reasonably segregable portion thereof,
created or received by the President, the President's
immediate staff, or a unit or individual of the Executive
Office of the President whose function is to advise or
assist the President, in the course of conducting activities
which relate to or have an effect upon the carrying out of
the constitutional, statutory, or other official or
ceremonial duties of the President. Such term—
(A) includes any documentary materials relating to the
political activities of the President or members of the
President's staff, but only if such activities relate to or
have a direct effect upon the carrying out of
constitutional, statutory, or other official or ceremonial
duties of the President; but
(B) does not include any documentary materials that are (i)
official records of an agency (as defined in section 552(e)
of title 5, United States Code); (ii) personal records;
(iii) stocks of publications and stationery; or (iv) extra
copies of documents produced only for convenience of
reference, when such copies are clearly so identified.
(3) The term "personal records" means all documentary
materials, or any reasonably segregable portion therof, of a
purely private or nonpublic character which do not relate to
or have an effect upon the carrying out of the
constitutional, statutory, or other official or ceremonial
duties of the President. Such term includes—
(A) diaries, journals, or other personal notes serving as
the functional equivalent of a diary or journal which are
not prepared or utilized for, or circulated or communicated
in the course of, transacting Government business;
(B) materials relating to private political associations,
and having no relation to or direct effect upon the carrying
out of constitutional, statutory, or other official or
ceremonial duties of the President; and
(C) materials relating exclusively to the President's own
election to the office of the Presidency; and materials
directly relating to the election of a particular individual
or individuals to Federal, State, or local office, which
have no relation to or direct effect upon the carrying out
of constitutional, statutory, or other official or
ceremonial duties of the President.
(4) The term "Archivist" means the Archivist of the United
States.
(5) The term "former President", when used with respect to
Presidential records, means the former President during
whose term or terms of office such Presidential records were
created.
Full Text of Presidential Records Act
Class 1 - Oct. 10, 2022
Excerpts From Oral Argument in Merrill v. Milligan:
Justice Kagan:
“I
think what Section 2 is trying to get at is it's trying to
ensure equal political opportunities so let me just use that as
a segue to my last question, which is that this is an important
statute. It's one of the great achievements of American
democracy to achieve equal political opportunities regardless of
race, to ensure that African Americans could have as much
political power as white Americans could. That's a pretty big
deal. And it was strengthened in 1982 when this Court
interpreted it too narrowly for Congress's taste, and Congress
said no, we didn't mean that at all and made this into a results
test.
Now, in recent years, this statute has fared not well in this
Court. Shelby County looks at Section 5 and it says no, Section
5, we don't need that anymore, and one of the things it says is
we have Section 2. And then Brnovich comes along, and that's a
Section 2 case, and the Court says, you know what, Section 2,
they're really dilution claims. You know, this is a denial
claim, and so we can construe that very narrowly. But, of
course, there's just all these cases that are dilution claims.
That's really what Section 2 is about. And now here we are, the
classic Section 2 dilution claim. And you're asking us
essentially to cut back substantially on our 40 years of
precedent and to make this too extremely difficult to prevail
on. So what's left?”
Justice Jackson:
“I'm glad that you clarified that your core point is that the
Gingles test has to have a race-neutral baseline or that the
first step has to be race-neutral. And what I guess I'm a little
confused about in light of that argument is why, given our
normal assessment of the Constitution, why is it that you think
that there's a Fourteenth Amendment problem? And let me just
clarify what I mean by that. I don't think we can assume that
just because race is taken into account that that necessarily
creates an equal protection problem, because I understood that
we looked at the history and traditions of the Constitution, at
what the framers and the founders thought about and when I
drilled down to that level of analysis, it became clear to me
that the framers themselves adopted the equal protection clause,
the Fourteenth Amendment, the Fifteenth Amendment, in a race
conscious way. That they were, in fact, trying to ensure that
people who had been discriminated against, the freedmen during
the reconstruction period, were actually brought equal to
everyone else in the society. So I looked at the report that was
submitted by the Joint Committee on Reconstruction, which
drafted the Fourteenth Amendment, and that report says that the
entire point of the amendment was to secure rights of the freed
former slaves. The legislator who introduced that amendment said
that 'unless the Constitution should restrain them, those states
will all, I fear, keep up this discrimination and crush to death
the hated freedmen.' That's not a race-neutral or race-blind
idea in terms of the remedy. And even more than that, I don't
think that the historical record establishes that the founders
believed that race neutrality or race blindness was required,
right? They drafted the Civil Rights Act of 1866, which
specifically stated that citizens would have the same civil
rights as enjoyed by white citizens. That's the point of that
Act, to make sure that the other citizens, the black citizens,
would have the same [rights] as the white citizens. So they
recognized that there was unequal treatment, that people, based
on their race, were being treated unequally. And, importantly,
when there was a concern that the Civil Rights Act wouldn't have
a constitutional foundation, that's when the Fourteenth
Amendment came into play. It was drafted to give a
constitutional foundation for a piece of legislation that was
designed to make people who had less opportunity and less
rights, equal to white citizens. So with that as the framing and
the background, I'm trying to understand your position that
Section 2, which by its plain text is doing that same thing, is
saying you need to identify people in this community who have
less opportunity and less ability to participate and ensure that
that's remedied, right? It's a race-conscious effort, as you
have indicated. I'm trying to understand why that violates the
Fourteenth Amendment, given the history and background of the
Fourteenth Amendment?”