Wednesday September 22, 2021

Say it Louder The young, progressive lawyers picking a fight with the Supreme Court

The morning after the Supreme Court issued its late-night ruling on Whole Woman’s Health v. Jackson, allowing S.B. 8, a restrictive Texas abortion law, to take effect, an attorney named Rhiannon woke up, in Austin, to a slew of frantic messages. A reproductive-rights organization with which she works had already launched into crisis-management mode, producing a long chain of e-mails about legal strategy. There were also notifications in her group chat with two New York-based lawyers, Peter and Michael, with whom she hosts a popular weekly legal podcast called “5-4.” (The name is a reference to Supreme Court decisions that end in a 5–4 split, or a slim majority, which tend to be the Court’s most controversial.) “UGH, court just ruled,” Peter had texted around midnight, linking to the judgment—a 5–4 ruling—minutes after it dropped. Michael’s tone, in a reply sent an hour and a half later, was more resigned: “Well, there it is.” Rhiannon was the first to voice what all three were thinking, and what their social-media followers had already begun to express: that the situation called for an emergency episode.

On its Web site, “5-4” is described as a podcast about “how much the Supreme Court sucks.” The show, which is executive-produced by Leon Neyfakh, the creator of “Slow Burn” and “Fiasco,” began in February, 2020, as a reassessment of past Court decisions, tracing the social and political forces that shaped each ruling and its subsequent impact. (One early episode discussed the 1968 case Terry v. Ohio, which laid the legal groundwork for modern-day stop-and-frisk policing; another focussed on Shelby County v. Holder, the 2013 decision that functionally gutted the Voting Rights Act.) But, as time went on, the show expanded in scope, taking in new legal decisions—and crises—as they occurred. The hosts addressed the flurry of lawsuits challenging the outcome of the 2020 election, as well as opinions handed down during Amy Coney Barrett’s first term on the Court, and the creeping politicization of the so-called shadow docket, which has become a means for the Justices to address hot-button concerns, sometimes late at night, without hearing oral arguments. Although it went largely unacknowledged in mainstream analysts’ end-of-term assessments, the shadow docket has been used to sanction executions, strike down covid-safety protocols, and restrict voting rights. Most recently, it was the vehicle for the decision on S.B. 8.

Many legal podcasts, much like the field itself, trade on the credentials of their hosts: “Strict Scrutiny” is hosted by three law professors who clerked for Supreme Court Justices; “Amicus” is hosted by Dahlia Lithwick, a Stanford Law alumna and award-winning legal journalist. In contrast, the hosts of “5-4” have carefully avoided sharing their C.V.s. Listeners know their first names and a handful of biographical details—Rhiannon is a public defender, Peter has worked at a white-shoe firm, and Michael is a self-described “reformed corporate lawyer”—but that’s pretty much it. Their semi-anonymity has allowed them to be brutally honest, and occasionally profane, without fear of professional repercussions.

​“Our vision of the podcast, at least in part, is to talk about the law the way that we talk about the law at a bar with our friends,” Michael explained to me, the other day. “And that means we curse more. That means sometimes we crack a joke about something dark.”

Read the story on New Yorker

More of This A public defender became a judge to chip away at mass incarceration

When I was campaigning, I was surprised by how many people didn’t realize that they could vote for a judge. I live in New Orleans, Louisiana, the incarceration capital of the nation and the world, yet there was a population of people who did not know they had a say in who served on their courts. In conversations during my campaign, I asked folks how mass incarceration has helped our communities grow — whether it made our community safer, whether it made our communities healthier. The focus of my campaign was the community, because those are the people that I’m serving. And that is what my campaign focused on. I was out canvassing and talking with community members — talking with people who are directly impacted by what I will be doing on the bench. I campaigned in neighborhoods where I was told, “No one has ever come here to campaign in our community.” I talked to people at hair salons, car washes, grocery stores, bus stops, city buses — I was determined to talk to as many people as possible.

Having those candid conversations with individuals, and letting them know I worked in criminal defense, was how I was able to really convey, I know what it’s like to be in a courtroom. I know what people experience when they go in front of judges. And I knew what I didn’t like. I knew that my courtroom was going to be very different, and that I was going to treat people with dignity and respect. That I wasn’t going to demean or diminish anyone just because I had a file with their name on it. Or because they couldn’t afford to hire an attorney. That was one of the tenets of my campaign. Campaigning on that wasn’t aspirational because those are values I personally embody.

I was a public defender. I have spent my career working towards justice and grappling with our system of mass incarceration. And now I am trying to do that from the bench. I know that we can’t get to the root causes of mass incarceration if we don’t have conversations and view everyone as individuals — not using a one-size-fits-all approach, but recognizing that there may be some underlying issues that folks are dealing with when they come into court.

If you’re a public defender aspiring for judicial office, be ready for an uphill battle in navigating the politics. I never tell anyone that this was easy. I’ve always said that I didn’t want to be a politician. Politics was not my thing. But in Louisiana, to serve as a judge in criminal district court, you have to be elected. When I made the decision to run, I knew that there would be aspects of the campaign that I just would not be a part of, because that’s not who I am. When you’re talking about politics — those who are in power, those who have influence — I made a conscious decision to say, “I’m not going to work with particular people. It’s just not going to happen, even if that group or those people can get me money.” I didn’t care, because I know what my morals and my values are.

Read the story on Inquest

Speaking Of… The public defender suing the entire court system

San Francisco Public Defender Mano Raju is suing San Francisco Superior Court, alleging that hundreds of people are illegally being denied speedy trials and are languishing in jail for months under the pretext of COVID restrictions.

A lawsuit was filed in San Francisco Superior Court on behalf of family members of people who have endured lengthy trial delays, naming the court, its presiding judge and its CEO as defendants. The suit contends that the court has violated the rights of nearly 400 people by failing to hold jury trails within 60 days as required by law — even as COVID restrictions have eased, public events have resumed and restaurants and gyms have reopened.

Raju announced the suit at a noon rally Tuesday on the steps of the Hall of Justice. He said the failure to expedite criminal jury trials, which began during the COVID lockdown, has created a huge backlog that keeps growing as the courts fail to reopen closed courtrooms.

“At the rate at which the court is currently assigning cases to trial, the backlog of San Franciscans waiting for their trials in custody will never be cleared and will only increase,” the lawsuit says.

“The San Francisco Superior Court continues to give criminal trials the highest priority,” said court spokesperson Ken Garcia. “We will respond to the complaint in court.”

The U.S. and California constitutions guarantee people accused of a crime the right to a speedy trial, which state law defines as starting within 60 days after arraignment. But since COVID shutdowns hit San Francisco in March 2020, delayed trials have become the norm, the lawsuit says, with just 34 trials reaching a verdict in the ensuing 18 months.

Read the story on SF Chronicle

More of This As Black attorneys general, we will lead the voting rights fight

Karl A. Racine is the attorney general for the District of Columbia. Letitia James is the attorney general for New York.

The release of a compromise voting-rights bill by eight Senate Democrats, coupled with the recent passage of the John Lewis Voting Rights Advancement Act in the House, is a small but promising step in the fight for voting rights. As congressional negotiations play out, we must keep our eyes on the prize and continue to stand up for the right to vote. And as Black attorneys general, we’re continuing to fight these racist, age-old voter-suppression bills whether or not federal legislation succeeds.

According to a July 2021 report from the Brennan Center for Justice, state lawmakers introduced more than 400 bills in more than 49 states with restrictive voting provisions during the 2021 legislative sessions. More dangerously, at least 18 states like Arizona, Arkansas, and Montana have passed and enacted restrictive voting laws that make mail-in voting and early voting more difficult.

Georgia’s recently passed legislation, S.B. 202, is a particularly egregious law because it targets widely used forms of voting among Black Georgians. That is why we recently led an amicus brief with 22 other state attorneys general in support of the U.S. Department of Justice’s lawsuit challenging Georgia’s statute.

We can all agree that states must promote free and fair elections, and that states have flexibility to administer elections in ways that ensure voter confidence. What states cannot do, though, is use a seemingly innocuous explanation—like “election integrity”—as a smokescreen for discrimination. And you don’t need to be a lawyer to see Georgia’s law for what it is—a contrived effort to limit the voices of Black voters.

How do we know? A few ways.

Read the story on Crooked Media

​October 14 at 12 Noon PST. Register here >

Demystifying Federal Judicial Appointments 

Virtual panel featuring: Judge André Birotte Jr., Judge Jacqueline Nguyen, and Lane Dilg.

Moderated by ChangeLawyers Board Member Kalpana Srinivasan

To attend, please RSVP to Jessica Bughman at Susman Godfrey (JBughman@susmangodfrey.com)

Fellowship Opportunity: Disaster resilience fellow wanted

NLSLA’s Equal Justice Works Disaster Resilience Fellow will join a national cohort of 14 attorneys who have been deployed at partner organizations to provide direct legal services to disaster survivors.

More information >