“The Supreme Court announced..that it will not hear Mckesson v. Doe. The decision not to hear Mckesson leaves in place a lower court decision that effectively eliminated the right to organize a mass protest in the states of Louisiana, Mississippi, and Texas.
Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.
It is possible that this outcome will be temporary. The Court did not embrace the United States Court of Appeals for the Fifth Circuit’s decision attacking the First Amendment right to protest, but it did not reverse it either. That means that, at least for now, the Fifth Circuit’s decision is the law in much of the American South.
For the past several years, the Fifth Circuit has engaged in a crusade against DeRay Mckesson, a prominent figure within the Black Lives Matter movement who organized a protest near a Baton Rouge police station in 2016.
The facts of the Mckesson case are, unfortunately, quite tragic. Mckesson helped organize the Baton Rouge protest following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at a police officer, the plaintiff in the Mckesson case who is identified only as “Officer John Doe.” Sadly, the officer was struck in the face and, according to one court, suffered “injuries to his teeth, jaw, brain, and head.”
Everyone agrees that this rock was not thrown by Mckesson, however. And the Supreme Court held in NAACP v. Claiborne Hardware (1982) that protest leaders cannot be held liable for the violent actions of a protest participant, absent unusual circumstances that are not present in the Mckesson case — such as if Mckesson had “authorized, directed, or ratified” the decision to throw the rock.
Indeed, as Justice Sonia Sotomayor points out in a brief opinion accompanying the Court’s decision not to hear Mckesson, the Court recently reaffirmed the strong First Amendment protections enjoyed by people like Mckesson in Counterman v. Colorado (2023). That decision held that the First Amendment “precludes punishment” for inciting violent action “unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.””
https://www.vox.com/scotus/24080080/supreme-court-mckesson-doe-first-amendment-protest-black-lives-matter
“The Supreme Court ruled..that if a police officer fails to inform you of your right to remain silent and avoid self-incrimination when you’re suspected of a crime, you can’t sue under federal law as a violation of your civil rights.
To be clear, the Court isn’t overturning Miranda v. Arizona, the 1966 Supreme Court ruling that determined that it’s a violation of a suspect’s Fifth Amendment rights for police to interrogate him or her about a crime without informing them they have the right to remain silent and the right to request an attorney. But what the Court ruled today is that if and when this right is violated, people can’t turn to Section 1983 of the U.S. code and file a civil action lawsuit against the police officer or law enforcement agency and seek redress or damages.”
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“Essentially, Alito’s opinion says that the purpose of Miranda is to serve as a safeguard against compelled self-incrimination by police or prosecutors. It was not intended to establish that it was inherently a Fifth Amendment violation if somebody voluntarily confesses or self-incriminates himself or herself prior to or absent of a Miranda warning.”
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“Alito concludes that because a violation of Miranda is not automatically a violation of the Fifth Amendment, there is no justification to permit a civil rights lawsuit. The opinion reverses a judgment in Tekoh’s favor and remands it back to the lower courts to revisit.
The dissent is written by Justice Elena Kagan and joined by Justices Stephen Breyer and Sonia Sotomayor. Kagan observes the obvious in her dissent, that this ruling will make it harder for defendants to pursue legal remedies when their rights are violated”
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“the Supreme Court recognizes that these constitutional rights exist, but by shielding officers from liability for violating these rights, the Court undermines the necessary tools to make sure police take them seriously.”
“Justice Samuel Alito’s draft opinion overruling Roe v. Wade, which was leaked to Politico and revealed to the public Monday night, is more than just an attack on abortion. It is a manifesto laying out a comprehensive theory of which rights are protected by the Constitution and which rights should not be enforced by the courts.
And Alito’s opinion is also a warning that, after Roe falls, the Court’s Republican majority may come for landmark LGBTQ rights decisions next, such as the marriage equality decision in Obergefell v. Hodges (2015) or the sexual autonomy decision in Lawrence v. Texas (2003).
To be clear, the leaked opinion is a draft. While Politico reports that five justices initially voted to overrule Roe, no justice’s vote is final until the Court officially hands down its decision. And even if Alito holds onto the five votes he needs to overrule Roe, one or more of his colleagues in the majority could insist that he make changes to the opinion.
Alito’s first draft, however, suggests that the archconservative justice feels emboldened. Not only does he take a maximalist approach to tearing down Roe, but much of Alito’s reasoning in the draft opinion tracks arguments he’s made in the past in dissenting opinions disparaging LGBTQ rights.
The Constitution is a frustrating document. Among other things, it contains multiple provisions stating that Americans enjoy certain civil rights that are not mentioned anywhere in the document itself. The Ninth Amendment, for example, provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Over time, the Supreme Court has devised multiple different standards to determine which of those unenumerated rights are nonetheless protected by our founding document. Some of these standards are very much at odds with each other.
The central thrust of Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, the case seeking to overrule Roe, is that only rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” are protected. This method of weighing unenumerated rights is often referred to as the “Glucksberg” test, after the Court’s decision in Washington v. Glucksberg (1997).
Though Alito’s Dobbs opinion largely focuses on why he believes that the right to abortion fails the Glucksberg test, there is no doubt that he also believes that other important rights, such as same-sex couples’ right to marry, also fail Glucksberg and are thus unprotected by the Constitution. Alito said as much in his Obergefell dissent, which said that “it is beyond dispute that the right to same-sex marriage is not among those rights” that are sufficiently rooted in American history and tradition.”
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“For many years, Justice Anthony Kennedy was the pivotal figure in the legal struggle for gay equality. Obergefell and United States v. Windsor (2013), which held that the federal government must recognize same-sex marriages, were both 5-4 decisions authored by Kennedy. Kennedy also penned the Lawrence opinion and the Court’s decision in Romer v. Evans (1996), the first Supreme Court decision establishing that the Constitution places limits on the government’s ability to target gay or bisexual individuals.
Given his longtime role as the Court’s voice on gay rights, it’s tempting to think of Kennedy as a staunch supporter of these rights (I use the word “gay” and not “LGBTQ” because Kennedy’s four opinions concerned discrimination on the basis of sexual orientation and not gender identity). But the reality is almost certainly more nuanced. Decisions like Obergefell and Windsor were the products of an uneasy alliance between the conservative Kennedy and his four liberal colleagues. And, in closely divided cases, majority opinions are often assigned to the justice who is most on the fence — on the theory that this justice is unlikely to flip their vote if they can tailor the majority opinion to their own idiosyncratic views.
The result is that Kennedy’s great gay rights decisions were poorly argued. They ignore longstanding doctrines that could have provided a firm foundation for a rule barring discrimination on the basis of sexual orientation. Instead, they often substitute needlessly purple prose for the meat-and-potatoes work of legal argumentation.”
“whether or not someone has actually invoked their right to counsel is, to some degree, subjective, though it can have far-reaching consequences in a defendant’s case.”
“on this issue of voting rights. Joe Manchin labored mightily to come up with a compromise bill so that he could entice 10 Republicans to make it bipartisan. He did not get a single one. As President Biden mentioned in his speech [on Tuesday], 16 Republicans currently in the Senate voted for the 2006 extension of the Voting Rights Act. Not one of them supports the John Lewis Act.”
“Brnovich upholds both Arizona laws — a provision that disenfranchises voters for casting a ballot in the wrong precinct, and another that prevents most third parties from delivering another voter’s absentee ballot to a polling place. But Alito’s opinion most likely preserves civil rights plaintiffs’ ability to challenge many of the most odious provisions of the voter suppression laws currently being pushed by Republican state lawmakers in other states.”
“the opinion is limited in scope. Brnovich does not apply to all Voting Rights Act cases, or even to all cases involving the law’s “results test” — the specific provision of the Voting Rights Act at issue in the case. Rather, the opinion limits its analysis to “cases involving neutral time, place, and manner rules” governing elections. Thus, while Brnovich does shrink the Voting Rights Act considerably, it primarily does so in this limited context.”
“Alito lays out five factors that govern future “time, place and manner” lawsuits (more on this five-factor test below). One of the practical upshots of these five new factors is that states will largely be free to enact voting rules that were common in 1982, when a key amendment to the Voting Rights Act became law. But novel restrictions on the right to vote are less likely to survive judicial scrutiny.”
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“The Voting Rights Act of 1965 is the seminal law that broke the back of Jim Crow, along with the previous year’s Civil Rights Act of 1964. It is arguably the most successful civil rights law in American history, and it was this nation’s first serious legislative attempt since Reconstruction to build a pluralistic democracy rooted in the principle of racial equality.”
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“Under a 1982 amendment to the law, the Voting Rights Act has three prongs, but the Supreme Court has either deactivated or severely weakened two of these prongs. The first is “preclearance,” which required states with a history of racist voting practices to “preclear” any new voting practices with officials in Washington, DC — in order to ensure that those practices did not discriminate on the basis of race.
The Supreme Court gutted preclearance in Shelby County v. Holder (2013).
The second prong of the Voting Rights Act is known as the “intent test,” and it prohibits state voting practices enacted with racist intent. But, in Abbott v. Perez (2018), the Supreme Court held that lawmakers enjoy such a high presumption of racial innocence that it is nearly impossible to prove invidious intent, except in the most egregious cases.
That leaves the third prong of the law, known as the “results test,” which derives from the Voting Rights Act’s language forbidding a state election practice that “results in a denial or abridgement of the right … to vote on account of race or color.””
“Alito’s opinion is vague, and it leaves as many questions open as it answers. When courts are faced with “time, place, and manner” cases under the Voting Rights Act, he writes, “any circumstance that has a logical bearing on whether voting is ‘equally open’ and affords equal ‘opportunity’ may be considered.” Nevertheless, he also provides a non-exhaustive list of five factors that “should be mentioned.””
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“One impact of this decision, in other words, is that many laws that have a disparate impact on voters of color will be upheld — though it is not yet clear just how severe a law’s impact on minority voters must be before the courts will intervene.”
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“The upshot of Brnovich, in other words, is that it gives states tremendous power to roll back expansions of voting rights such as early voting and expanded access to absentee ballots, although that power may be limited if such restrictions are imposed in ways that clearly target voters of color.”
“Manchin did something unexpected: He released a long list of voting reforms that he does support, potentially scrambling the congressional debate over voting rights as the Senate prepares to vote on Democratic leaders’ proposal.
Manchin’s list includes many reforms drawn from the For the People Act as well as from a companion voting rights bill known as the John Lewis Voting Rights Act. Significantly, Manchin endorsed banning partisan gerrymandering — a high priority for both small-d democrats and large-D Democrats, who want to prevent the GOP from seizing control of the House of Representatives with rigged congressional maps.
Not everything on Manchin’s list will delight his fellow Democrats. He proposes a nationwide voter ID law, for example, although not an especially strict one. And he wants states to be able to engage in “maintenance of voter rolls”— purging names from the state’s list of registered voters — using state and federal documents to identify which voters should be purged.
Manchin would also water down the John Lewis Act, a bill that seeks to restore voting rights protections that the Supreme Court gutted in 2013 — though Manchin’s weaker version of the John Lewis Act would still be much more protective of voting rights than current law.
The West Virginia senator’s proposal, in other words, falls short of the dreams of Democratic leaders and voting rights advocates who rallied behind the For the People Act, which passed the House in March. And it is still almost certainly doomed unless Manchin agrees to eliminate the GOP minority’s ability to filibuster voting rights bills — a move Manchin has thus far rejected — or somehow miraculously musters support from 10 Republicans (in addition to all 50 Democrats).”
https://www.vox.com/2020/3/11/21166621/coronavirus-quarantines-legal-constitution-new-rochelle