Pamela S. Karlan

Policy statement on voting by persons with dementia residing in long-term care facilities

1. Preamble The purpose of this policy statement, which was approved by the Public Policy Committee of the Alzheimer’s Association national Board of Directors, is to identify steps that should be taken by federal agencies, state legislatures, election officials, staff of long-term care facilities, and longterm care residents and their families to assure that residents’ voting rights are respected while preventing fraud in elections.

Where to Draw the Line?: Judicial Review of Political Gerrymanders

A striking feature of the post-2000 redistricting is not only the continued - indeed, ever-increasing - vigor of partisan line drawing, but the array of doctrinal tools litigators and courts have invoked in attempts to rein it in: Article I; the First Amendment; the equal protection clause of the Fourteenth Amendment in a wide range of flavors; the Voting Rights Act of 1965; and a variety of state-law principles.We offer a preliminary reaction to the Courts decisions in Vieth v. Jubelirer, 124 S.Ct. 1769 (2004), and Cox v. Larios, 124 S.Ct. 2806 (2004), that places those decisions in the broader context of the Courts failure to confront ends-oriented redistricting practices. In Vieth, four justices declared claims of excessive partisanship nonjusticiable. And yet, three of those justices were soon part of an eight-Justice majority that agreed in Larios to summarily affirm a lower court decision striking down a plan on the grounds that relatively small population deviations were constitutionally impermissible because they reflected blatantly partisan protection of Democratic incumbents while undermining Republican-held seats.Our central claims are two-fold. First, no matter how difficult judicial review of political gerrymandering claims may be, it is impossible actually to render such claims nonjusticiable. The availability of a range of unavoidable doctrinal claims means that a significant number of the partisan gerrymanders that courts find constitutionally offensive - whatever that term means, and whether it even has any agreed-upon meaning - will come before courts, and lack of candor about what courts are doing may carry its own costs.Second, the treatment of political gerrymander cases as a species of antidiscrimination claim obscures a central issue of democratic theory. The Supreme Courts initial refusal to enter the political thicket rested on its view that malapportionment suits challenge not a private wrong, but a wrong suffered by [the state] as a polity. The Warren Court Reapportionment Cases responded by declaring that malapportionment claims are individual and personal in nature. Ironically, both courts were half right. Claims of malapportionment are really not individual rights claims; they are claims about governmental structure. And yet, these claims are especially appropriate for judicial review. Forty years of doctrinal development has failed to take into account this central point. Partisan gerrymandering claims are treated as an assertion that a political party has been unfairly denied some number of seats. But given the near-universal practices of single-member legislative districts and incumbent protection, partisan gerrymandering cases seek essentially a reallocation of safe seats. The Courts recent opinions ignore almost entirely the question whether judicial intervention should be directed at entrenchment itself, rather than the question of who gets to be entrenched. If the Courts intervention is prompted by these latter sorts of claims, it may simply exacerbate the pathologies of our current redistricting process.

Race, Rights, and Remedies in Criminal Adjudication

Courts face strikingly different equal protection claims in the civil and criminal arenas. Although the Supreme Courts initial forays into constitutional criminal procedure were motivated in large part by concern with racial injustice, the Court developed a series of formally race-neutral rules for constraining police, prosecutors, and the courts. And even when the Court addressed racial questions directly, it deployed a set of analytic and regulatory techniques that were distinctive to criminal justice. But in recent years, the Supreme Court has returned to the question of how the equal protection clause regulates criminal justice. The four conventional remedies for violations of criminal procedure protections have been exclusion of evidence; reversal of convictions (which normally permits retrial); dismissal of indictments in egregious cases; and separate civil damages actions. The Courts decisions in Whren v. United States and United States v. Armstrong raise the possibility that the first and third of these remedies, exclusion and dismissal, will be unavailable. And the second, reversal, is often incomplete, especially for claims of racial discrimination in the selection of suspects or defendants, where the constitutional violation is independent of trial outcome. Moreover, experience over the last decade with Batson litigation -- where reversal and retrial has been the standard remedy -- suggests that here, too, traditional criminal procedure remedies do not translate easily into the equal protection context. Finally, the fourth remedy, damages, while theoretically available, is often foreclosed as a practical matter, particularly in selective investigation and prosecution cases.

The Transformation of Judicial Self-Restraint

In his Jorde Symposium Essay, Judge Richard Posner identifies three forms of judicial restraint. He then argues that the third type, Thayerian judicial restraint characterized by a strong reluctance to declare legislative or executive action unconstitutional unless the unconstitutionality is so clear that it is not open to rational question, has disappeared because constitutional theory renders judges both certain that constitutional questions have right answers and confident that they are able to discern them. In this Essay, I respond by suggesting that Thayerian restraint has not disappeared. Rather, it has been transformed from a type of individualized self-restraint in which a lone jurist, reasoning from first principles, decides to forbear into a more systemic rule of constitutional adjudication that permeates the two most prevalent forms of contemporary constitutional litigation: habeas corpus petitions and damages actions. In habeas cases, federal courts will forbear from overturning state court convictions simply because constitutional errors occurred; they will intervene only when the state courts were unreasonably wrong. In a similar vein, in § 1983 and Bivens actions, qualified immunity doctrine means that federal courts will conclude that an official violated the Constitution, but will then grant judgment to the official anyway because, at the time of the underlying events, unconstitutionality was open to debate.

Let's Call the Whole Thing Off: Can States Abolish the Institution of Marriage

At several points in her characteristically acute discussion of the debate swirling around same-sex marriage, 1 Professor Nussbaum suggests that perhaps the best solution to the current controversy is for the state to abandon the business of conferring marital status: ―Might a good solution,‖ she asks, ―be for the state to back out of the expressive domain altogether, offering civil unions for both same-sex and opposite-sex couples?‖ 2 The state would replace marriage with a new nomenclature for officially recognizing family relationships, one that would not carry the baggage of tradition that marriage trails behind it like a car with tin cans tied to its bumper after a wedding. Professor Nussbaum‘s tentative proposal raises a number of intriguing issues. First, is it actually possible for a state to ―back out of the expressive domain altogether‖? Second, does the Constitution impose any constraints on a state‘s elimination of civil marriage? I have some skepticism that, as a practical matter, a state can actually avoid the expressive domain. To be sure, official adoption of terms like ―civil union‖ or ―domestic partnership‖ might contribute to the emergence of familial arrangements that depart in material ways from one or more aspects of ―traditional‖ marriage. 3 Calling a relationship a ―civil‖ union, for example, can

The Gay and the Angry: The Supreme Court and the Battles Surrounding Same-Sex Marriage

Marriage is in the air at One First Street, N.E., and thoughts about it pop up in the oddest places. Like discussions over whether the Constitution confers a right to postconviction DNA testing. Faced with that issue, a majority of the Court found no “freestanding, substantive due process right.” But in the course of his dissent, Justice David Souter, who was to leave the Court a fortnight later, included the following extraordinary passage about “the right moment for a court to decide whether substantive due process requires recognition of an individual right unsanctioned by tradition (or the invalidation of traditional law)”: