Wednesday March 16, 2022

More of This Judge Jackson and the progressive vision for American law

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Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley School of Law.

President Biden’s pick of Ketanji Brown Jackson should be evaluated not for what it will mean for the Supreme Court in 2022, but for what it might mean in 2040 or 2050 when her vote could be decisive in finally moving constitutional law in a more progressive direction. Judge Jackson is 51 years old. If she remains on the Court until she’s 90, the age at which Justice John Paul Stevens retired, she will be a justice until the year 2061.

The reality, of course, is that Judge Jackson’s replacing Justice Stephen Breyer does not change the current ideological composition of the Court. It will continue to have six very conservative justices and three liberal justices. This pick for the Court does not cure its ideological imbalance or end the need for progressives to consider increasing the size of the Supreme Court. Between 1960 and 2020, there were 32 years with Republican presidents and 28 years with Democratic presidents, but Republican presidents picked 15 Supreme Court justices and Democratic presidents selected only eight. Or put another way, President Donald Trump nominated three Supreme Court justices while in office for four years, while Presidents Jimmy Carter, Bill Clinton, and Barack Obama chose only four justices in a combined 20 years in office.

That is why every pick for the Supreme Court is crucial and cannot be squandered. Jackson likely will hold this seat for decades. But this is not to lessen the importance of what she brings to the Court now and how it could have an influence in many cases to be decided in the years ahead.

She will be the only one of the justices to have served as a public defender, and perhaps the first ever to join the Court after serving in this role. This brings an essential and missing perspective to the Court that decides major issues in policing and the criminal justice system.

Read the story on American Prospect

Listen to This What can bring SCOTUS back from the brink?

This week, Anita Hill appeared on Slate’s Amicus podcast to discuss next week’s history-making confirmation hearings for Judge Ketanji Brown Jackson—a watershed moment for American jurisprudence as the president seeks to confirm the first Black women to the US Supreme Court. Hill talked about the possibility for these hearings to restore the declining legitimacy of the high court and how ideas about judicial objectivity and neutrality are still mired in racist and sexist ideas about the ways judges think. Our conversation has been edited and condensed for clarity.

Listen to the Podcast on Slate

Less of This The battle for the lives of transgender kids

Chase Strangio was tired.

For more than two weeks, the American Civil Liberties Union lawyer had been working with staff almost around the clock to challenge an order from the governor of Texas directing state agencies to investigate parents or doctors who provide gender-affirming care for minors. After more than 6 hours of arguments, a state judge late Friday issued her ruling: an injunction that blocks any such probes while the lawsuit proceeds.

It was a major, if temporary, win at a time in which transgender issues are increasingly becoming a lightning rod for conservative politics. According to one group tracking the measures, 25 bills have been introduced in state legislatures this year to prohibit or limit gender-affirming health care for children. In some states, the fight is over the participation of transgender kids in school sports.

Strangio, 39, is fighting as many of these efforts in court as he can. “A record numbers of bills are being introduced and passing, and the breadth of the cruelty keeps increasing,” he said in a phone call from the New York apartment where he’s been working from home and co-parenting his 9-year-old child.

Proponents of such measures say gender-affirming treatments are medically unnecessary and may cause irreparable harm to a child who is below the age of consent. They argue that allowing trans women in sports would give them an unfair advantage. Opponents say officials are using fear and misinformation to drum up support for policies that target youth who are already prone to abuse and suicide.

Strangio has led the legal response to anti-trans laws across multiple states for the ACLU. The work is of national prominence, but it’s also intensely personal: Strangio came out as transgender in law school.

Read the Story on Bloomberg

Speaking Of… The catastrophe of trying kids as adults

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In 2010, 16-year-old Kalief Browder was jailed on New York’s notorious Rikers Island, accused of stealing a backpack, a charge he consistently denied. Bail was set at $3,000, a sum his family could not afford. He spent the next three years there awaiting his day in court, including two years in solitary confinement. He suffered abuse by correction officers and inmates, and he attempted suicide. In 2013, the charges were dropped. Two years after his release, he committed suicide in his parents’ apartment in the Bronx.

Since his death and partly in his memory, efforts were finally successful in 2017 in reforming New York State’s draconian practice of trying all 16- and 17-year-olds as adults and jailing them with adults. Lawmakers raised the age at which young people are treated as adults in the criminal justice system to 18 and, for most of them, also allowed their records to be sealed after 10 years free of crime.

But that reform may be in jeopardy following a recent spate of shootings in New York City, including the killing of two New York City police officers by a 47-year-old man.

Mayor Eric Adams recently proposed that 16- and 17-year-olds caught in possession of a gun be charged as adults if they don’t disclose who supplied them with the weapon.

Read the story on NY Times

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