Wednesday February 9, 2022

Say Her Name The first Black woman to argue before the Supreme Court

As President Joe Biden reaffirms his commitment to nominate the first Black woman to the US Supreme Court, it makes sense to revisit the life and work of another Black woman who profoundly shaped the law: Constance Baker Motley.

Motley was a "desegregation architect" who over the course of decades inspired numerous women lawyers and judges -- including some on the short list of potential nominees. Yet she's often missing from the pantheon of great Americans. Many are familiar with Thurgood Marshall, but few outside judiciary circles talk about Motley's vital role in dismantling racial segregation and gender discrimination.

As a lawyer with the NAACP Legal Defense and Educational Fund Inc., Motley wrote the original complaint in Brown v. Board of Education, the landmark 1954 case in which the Court unanimously held that "separate educational facilities are inherently unequal" and violate the 14th Amendment's Equal Protections Clause.

Further, Motley handled a number of cases that enforced the Brown decision at elementary and secondary schools across the South. She also litigated cases that broke down racial barriers at institutions of higher education in the region, including at the University of Mississippi, where James Meredith famously gained admission in 1962.

Later, during her time in political office and on the federal bench beginning in the mid-'60s, Motley continued to champion the rights of the most marginalized Americans, and became a beloved figure in the early prisoners' rights movement.

Read the story on CNN

Less of This This is what the right wing legal movement wants to do to America

On December 1st, the Supreme Court had its day of oral argument in a landmark abortion case, Dobbs v. Jackson Women’s Health Organization, brought by the State of Mississippi. It was the first case that the Court had taken in thirty years in which the petitioners were explicitly asking the Justices to overturn Roe v. Wade, the 1973 decision legalizing abortion, and its successor, Planned Parenthood v. Casey, which affirmed that decision in 1992. If anyone needed a reminder that, whatever the Justices decide in Dobbs, it will not reconcile the American divide over abortion, the chaotic scene outside the Court made it clear. At the base of the marble steps, reproductive-rights supporters held a large rally in which they characterized abortion as a human right—and an act of health care. Pramila Jayapal, a Democratic U.S. representative from Washington State, described herself as “one of the one in four women in America who have had an abortion,” adding, “Terminating my pregnancy was not an easy choice, but it was my choice.” Jayapal could barely be heard, though, over the anti-abortion protesters who had also gathered, in even greater numbers. The day was sunny and mild, and though some of these demonstrators offered the usual angry admonishments—“God is going to punish you, murderer!” a man with a megaphone declaimed—most members of the anti-abortion contingent seemed buoyant. Busloads of students from Liberty University, an evangelical college in Lynchburg, Virginia, snapped selfies in their matching red-white-and-blue jackets. Penny Nance, the head of the conservative group Concerned Women for America, exclaimed, “This is our moment! This is why we’ve marched all these years!”

A major reason for Nance’s optimism was the presence on the bench of Amy Coney Barrett, the former Notre Dame law professor and federal-court judge whom President Donald Trump had picked to replace Ruth Bader Ginsburg, who died on September 18, 2020. With the help of Mitch McConnell, the Senate Majority Leader, Trump had accelerated Barrett’s nomination process, and the Senate confirmed her just a week before the 2020 Presidential election. As a candidate in the 2016 election, Trump had vowed to appoint Justices who would overturn Roe, and as President he had made it a priority to stock the judiciary with conservative judges—especially younger ones. According to an analysis by the law professors David Fontana, of the George Washington University, and Micah Schwartzman, of the University of Virginia, Trump’s nominees to the federal courts of appeals—bodies that, like the Supreme Court, confer lifetime tenure—were the youngest of any President’s “since at least the beginning of the 20th century.” Trump made three Supreme Court appointments, and Neil Gorsuch (forty-nine when confirmed) and Brett Kavanaugh (fifty-three) were the youngest of the nine Justices until Barrett was sworn in, at the age of forty-eight. Her arrival gave the conservative wing of the Court a 6–3 supermajority—an imbalance that won’t be altered by the recent news that one of the three liberal Justices, Stephen Breyer, is retiring.

Barrett has a hard-to-rattle temperament. A fitness enthusiast seemingly blessed with superhuman energy, she is rearing seven children with her husband, Jesse Barrett, a former prosecutor now in private practice. At her confirmation hearings, she dressed with self-assurance—a fitted magenta dress; a ladylike skirted suit in unexpected shades of purple—and projected an air of decorous, almost serene diligence. Despite her pro-forma circumspection, her answers on issues from guns to climate change left little doubt that she would feel at home on a Court that is more conservative than it’s been in decades. Yet she also represented a major shift. Daniel Bennett, a professor at John Brown University, a Christian college in Arkansas, who studies the intersection of faith and politics, told me that Barrett is “more embedded in the conservative Christian legal movement than any Justice we’ve ever had.” Outside the Court, Nance emphasized this kinship, referring to Barrett as “Sister Amy, on the inside.”

Read the story on The New Yorker

Speaking Of… The Supreme Court allows racial gerrymandering 

You know the Rubicon has been crossed when the Supreme Court issues a conservative voting rights order so at odds with settled precedent and without any sense of the moment that Chief Justice John Roberts feels constrained to dissent.

This is the same John Roberts who in 1982, as a young lawyer in the administration of President Ronald Reagan, fought a crucial amendment to the Voting Rights Act of 1965; whose majority opinion in 2013 gutted one-half of the Voting Rights Act and who joined an ahistoric opinion last summer that took aim at the other half; and who famously complained in dissent from a 2006 decision in favor of Latino voters in South Texas that “it is a sordid business, this divvying us up by race.”

Yes, that Chief Justice Roberts. What the 5-to-4 majority did was that far out of line.

The unsigned order that drew the chief justice’s dissent Monday night blocked the decision by a special three-judge Federal District Court ordering the Alabama Legislature to draw a second congressional district in which Black residents constitute a majority. Alabama’s population is 27 percent Black. The state has seven congressional districts. The lower court held that by packing some Black voters into one district and spreading others out over three other districts, the state diluted the Black vote in violation of the Voting Rights Act.

Read the story on NYT

Listen to This Affirmative action comes to the Supreme Court

The Supreme Court has agreed to hear two cases, one involving Harvard and the other the University of North Carolina, that could reshape college admissions. Both schools are being accused of race-based discrimination in their admission practices. In the coming year, the court will examine whether it’s lawful for college admissions offices to consider a student’s race.

Listen to the Podcast on NY Times

February 10 at 12 Noon PST

For those of us already on the margins--Black, Non Black POC, queer, and non binary folks--how can we build professional connections while still staying true to our identities?

Virtual event on February 10. Register here >

February 23 at 12 Noon PST

This workshop will focus on building humanity and recognizing privilege within yourself and your organization so Black and non-Black stakeholders of color can thrive.

Virtual event on February 23. Register here >

Job Opportunity for Labor and Employment Law Attorney
Hayes, Ortega & Sanchez  is seeking applications from attorneys with 0-3 years of experience to work out of our San Diego office.  Our firm represents private and public sector unions and their members.  Our practice includes arbitration, labor contract negotiations, litigation, research and advising clients on labor law issues.  

To be considered, you must send a cover letter, resume, writing sample and salary requirements to Dennis J. Hayes by email at djh@sdlaborlaw.com.