Suchergebnisse

If the Supreme Court is willing to learn from past mistakes, the Court would find it particularly instructive to re-examine the now quite numerous civil rights decisions which have failed to survive congressional scrutiny. The United States Reports are today littered with the corpses of short-lived opinions purporting to interpret federal anti-discrimination statutes; most were dead on arrival in the bound volumes. October Term 1988 was a veritable Pickett's Charge of conservative misinterpretation. Patterson v. McLean Credit Union briefly displaced and destroyed much of section 1981; Public Employees Retirement System v. Betts temporarily overran parts of the Age Discrimination in Employment Act; Dellmuth v. Muthfor a time made substantial inroads into the Education of the Handicapped Act, while four other opinions attacked the viability of Title VII. All for naught. By the end of the next Congress, every one of these decisions had been felled by legislative action. The Civil Rights Act of 1991, wiping out in one blow eight different Supreme Court decisions, was an historically unique repudiation of judicial interpretation of the nation's statutes; not since the post-Civil War amendments obliterated Barron v. City Council of Baltimore and Dred Scott v. Sandford had Congress attacked the work of the Court with such ferocity. The legal carnage wrought by the 1991 Civil Rights Act was unprecedented, but not unforeseeable. Prior to the late 1970's, it was uncommon for Congress to denounce and overturn a Supreme Court decision on the ground that the Court had misinterpreted the law. But from 1978 to 1990 Congress had repeatedly been compelled to take that once extraordinary action, adopting a total of eight different statutes overturning Supreme Court decisions which Congress believed had misread the statutes involved. Even before the 1991 Civil Rights Act, Congress had made unmistakably clear that there were fatal flaws in the way in which Chief Justice Rehnquist and his conservative colleagues were interpreting ...

Both the majority and concurring opinions in McDonald v. Smith, 472 U.S. 479 (1985), concluded that there was no historical basis for McDonald's contention that the framers understood the right to petition to include an unqualified right to do so without being subject to suit for libel. This Article argues that the historical analysis in McDonaldis incorrect; indeed, this appears to be one instance in which the relevant historical materials are both voluminous and crystal clear. Part I evaluates the McDonald Court's discussion of the intent of the framers. Subsequent sections discuss the wide variety of materials that the Court failed to consider; Part II explains the origins of the petition clause in England's 1689 Bill of Rights, Part III summarizes the pre-1791 case law holding that a libel action could not be founded on the contents of a petition, and Part IV sets forth the discussion of the same issue in eighteenth century legal tracts. Part V discusses the specific right to petition within the broad context of the first amendment. The Article concludes that the degree of protection from libel suits now accorded to criticism of government conduct is seriously deficient and significantly weaker than existed in 1791.

This article argues that the Supreme Court's original view of the history and meaning of the fourth amendment was correct: seizures of papers were condemned in eighteenth-century England without respect to the validity of any underlying warrant, and the search and seizure clause thus embodies requirements independent of the warrant clause. Part I discusses the eighteenth-century English decisions, including Entick, and concludes that the case law of that era had two separate branches. One branch forbade general warrants and led to the adoption of the warrant clause; the other, exemplified by Entick, prohibited the seizure of certain papers and lies behind the search and seizure clause. Part II, relying on debates in Parliament and on a series of widely circulated pamphlets, describes the public controversy in the 1760's over the English government's search and seizure practices. It shows that the use of general warrants and the seizure of private papers were attacked on distinct grounds in the public arena as well as in the courts. Part III suggests several basic principles of fourth amendment jurisprudence that this history appears to require. First, the search and seizure clause forbids the inspection of innocent private papers in the course of a search for inculpatory documents that by themselves are unprotected by the fourth amendment. Second, an assessment under the search and seizure clause of the reasonableness of a seizure of private papers should take into account the problem of compulsory self-incrimination. Third, the fourth amendment strictly limits court-compelled production of documents by the defendant in a suit or prosecution for libel or other speech-related activity.

This article contends that the legislative history of the fourteenth amendment is not only relevant to but dispositive of the legal dispute over the constitutional standards applicable to race-conscious affirmative action plans. From the closing days of the Civil War until the end of civilian Reconstruction some five years later, Congress adopted a series of social welfare programs whose benefits were expressly limited to blacks. These programs were generally open to all blacks, not only to recently freed slaves, and were adopted over repeatedly expressed objections that such racially exclusive measures were unfair to whites. The race-conscious Reconstruction programs were enacted concurrently with the fourteenth amendment and were supported by the same legislators who favored the constitutional guarantee of equal protection. This history strongly suggests that the framers of the amendment could not have intended it generally to prohibit affirmative action for blacks or other disadvantaged groups. Part I of this article details the legislative history of eight Reconstruction measures establishing programs limited, in varying degrees, to blacks. The most important of these measures is the 1866 Freedmen's Bureau Act, which provoked the most detailed arguments for and against race-conscious programs, and which Congress considered and approved at the same time as the fourteenth amendment. Part II discusses the debates in Congress on the fourteenth amendment, and the relationship of those debates to the race-conscious programs of the Reconstruction era. Part III examines the constitutionality of present-day affirmative action in light of this legislative history.

This Article suggests that the Court's current confusion derives in part from its failure to distinguish between two categories of discriminatory intent, which may be termed goal discrimination and means discrimination. Goal discrimination involves the invidious consideration of race in the selection of the objective which a government policy seeks to achieve. Means discrimination occurs when there is an invidious consideration of race in selecting or weighing the method to be used in achieving that objective. Both forms of discrimination fall within the equal protection clause's prohibition against discriminatory government action, but they involve different circumstances and thus must be proved in somewhat different ways. Recognition of the distinction between the two categories leads to a more objective method of analyzing evidence of intentional discrimination and contributes to a greater understanding of the meaning of the equal protection clause.

This Article identifies the most important issues which must be dealt with after Monell v, Department of Social Services, 436 U.S. 658 (1978), and attempts to resolve them. Section I considers what rules and practices are "official acts, policies and customs" subjecting a government to suit under Monell. The second section analyzes the possible defenses available to a city; it concludes that the good faith immunity afforded to executive officials should not be extended to government entities, but that such entities should be afforded a somewhat narrower defense. Section III discusses the scope of injunctive relief available in section 1983 actions against state officials. Finally, section IV urges that after Monell state law claims against cities can and should be tried in federal court when joined with section 1983 actions.

QUESTION PRESENTED Does the Age Discrimination in Employment Act, which forbids age-based discrimination against state and local government employees, preclude those employees from bringing a section 1983 action to redress age discrimination that violates the Equal Protection Clause?

Respondent submits this supplemental brief pursuant to Rule 25.5 of this Court. Under the unique circumstances of this case, the brief for the United States constitutes "intervening matter that was not available in time to be included in a brief." A majority of the government's argument consists of an attack on the literal reading of section 704(a) advanced respondent. If this Court were to adopt the government's narrow reading of section 704(a), it is far from certain that respondent would prevail. The original panel of the Sixth Circuit that heard this case applied a version of the "materially adverse" formulation now advanced by the United States and concluded that the retaliation that occurred in this case was lawful under section 704(a). (Pet. App. 93a-103a). The interpretation of section 704(a) proposed by the Solicitor General is different from that of petitioner, and constitutes a candid repudiation of the position heretofore taken by the EEOC. (U.S. Br. 15-16 n.4). The new matters raised by the government's brief could not have been addressed in the brief for respondent; the two briefs were filed on the same day.

QUESTION PRESENTED Pickering v. Board of Education of Township High School District held that a government employee may be protected by the First Amendment when he or she speaks as a citizen about a matter of public importance. Garcetti v. Ceballos explained that a government worker does not speak as a citizen if his or her speech is pursuant to his or her duties. The interrelated questions presented are: (1) Is a worker's speech pursuant to his or her duties, and thus outside the protection of the First Amendment: (a) whenever the speech has the purpose or effect of furthering those responsibilities (the rule in the Sixth, Tenth, Eleventh and District of Columbia Circuits), or (b) only when the speech was something the employer expected the worker to engage in (the rule in the Second, Seventh, Eighth, and Ninth Circuits)? (2) When an employee's speech involves several topics, only some of which are matters of public concern, does Pickering apply: (a) only when the "main thrust" or primary purpose of the speech as a whole was a matter of public concern (the rule in the Fifth, Eighth, Tenth and Eleventh Circuits), or *ii (b) when any portion of the speech was a matter of public concern (the rule in the First, Second, Third, Fourth and Sixth Circuits)? (3) Does the question of whether an employee's speech was about a matter of public concern generally turn on: (a) whether the employee spoke with the purpose of addressing a matter of public concern, rather than furthering his or her own interests (the rule in the Seventh, Eighth and Eleventh Circuits), or (b) whether the content of the speech was a matter of public concern (the rule in the First, Second, Third, Sixth and Ninth Circuits)?

QUESTION PRESENTED Pickering v. Board of Education of Township High School District held that a government employee may be protected by the First Amendment when he or she speaks as a citizen about a matter of public importance. Garcetti v. Ceballos explained that a government worker does not speak as a citizen if his or her speech is pursuant to his or her duties. The interrelated questions presented are: (1) Is a worker's speech pursuant to his or her duties, and thus outside the protection of the First Amendment: (a) whenever the speech has the purpose or effect of furthering those responsibilities (the rule in the Sixth, Tenth, Eleventh and District of Columbia Circuits), or (b) only when the speech was something the employer expected the worker to engage in (the rule in the Second, Seventh, Eighth, and Ninth Circuits)? (2) When an employee's speech involves several topics, only some of which are matters of public concern, does Pickering apply: (a) only when the "main thrust" or primary purpose of the speech as a whole was a matter of public concern (the rule in the Fifth, Eighth, Tenth and Eleventh Circuits), or *ii (b) when any portion of the speech was a matter of public concern (the rule in the First, Second, Third, Fourth and Sixth Circuits)? (3) Does the question of whether an employee's speech was about a matter of public concern generally turn on: (a) whether the employee spoke with the purpose of addressing a matter of public concern, rather than furthering his or her own interests (the rule in the Seventh, Eighth and Eleventh Circuits), or (b) whether the content of the speech was a matter of public concern (the rule in the First, Second, Third, Sixth and Ninth Circuits)?

QUESTION PRESENTED Whether Alabama's legislative redistricting plans unconstitutionally classify black voters by race by intentionally packing them in districts designed to maintain supermajority percentages produced when 2010 census data are applied to the 2001 majority-black districts.

QUESTIONS PRESENTED (1) When disputes of fact arise regarding whether speech by a public employee is protected by the First Amendment, should those factual issues be resolved by a trier of fact (the rule in the Second, Third, Sixth, Eighth and Tenth Circuits), or by the court as a matter of constitutional law (the rule in the Fourth Circuit)? (2) When a government employee engages in speech on a subject of public concern, and a court applying Pickering balances the First Amendment interest against any contrary interests of the employer, should the extent of that First Amendment interest be "lessened" -as the Fourth Circuit holds - if the speaker directed his or her statements to one person rather than the "larger public," was motivated by some " personal concern" in speaking about that subject, or was "not providing a particularly informed opinion"? (3) Can a defendant establish qualified immunity under Garcetti v. Ceballos, by showing that he or she could reasonably have believed that the action of the plaintiff was in his "capacity" as an employee (the rule in the Fourth Circuit), or only by showing he or she could reasonably have believed that the plaintiff spoke "pursuant to his professional responsibilities" (the rule in the First, Fifth and Ninth Circuits)?

QUESTIONS PRESENTED (1) When disputes of fact arise regarding whether speech by a public employee is protected by the First Amendment, should those factual issues be resolved by a trier of fact (the rule in the Second, Third, Sixth, Eighth and Tenth Circuits), or by the court as a matter of constitutional law (the rule in the Fourth Circuit)? (2) When a government employee engages in speech on a subject of public concern, and a court applying Pickering balances the First Amendment interest against any contrary interests of the employer, should the extent of that First Amendment interest be "lessened" -as the Fourth Circuit holds - if the speaker directed his or her statements to one person rather than the "larger public," was motivated by some " personal concern" in speaking about that subject, or was "not providing a particularly informed opinion"? (3) Can a defendant establish qualified immunity under Garcetti v. Ceballos, by showing that he or she could reasonably have believed that the action of the plaintiff was in his "capacity" as an employee (the rule in the Fourth Circuit), or only by showing he or she could reasonably have believed that the plaintiff spoke "pursuant to his professional responsibilities" (the rule in the First, Fifth and Ninth Circuits)?

QUESTION PRESENTED Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") prohibits state and local governments from imposing "a substantial burden on the religious exercise of a person residing in or confined to an institution . . . unless the government demonstrates that imposition of the burden on that person": (1) "is in furtherance of a compelling governmental interest," and (2) "is the least restrictive means of furthering that compelling governmental interest."42 U.S.C. § 2000cc-l(a). The Question Presented is: Whether RLUIPA requires that prison officials actually consider and demonstrate a sufficient basis for rejecting widely accepted accommodations to traditional religious practices as part of their burden of proving that they have chosen the "least restrictive means" of furthering their asserted governmental interests.