Congress must act to protect our most basic right

—F. Michael Higginbotham

The recent Supreme Court decision in Shelby County v. Holder, invalidating the “pre-clearance” formula of the Voting Rights Act (VRA), requiring states with a history of race discrimination in voting to secure federal approval prior to changing election practices, provides an opportunity for Congress to strengthen protection of minority voting rights. While discriminatory methods today are far from the lynch mobs and grandfather clauses that stopped blacks from voting during Jim Crow, the end result of voter suppression and dilution remains largely the same. Congress should act quickly and decisively on this core American principle in order to ensure minority participation in the democratic process.

Ernest Montgomery knows all too well the value of federal supervision in protecting minority voting rights. Prior to elections in 2008, the City of Calera, in Shelby County, Alabama, redrew jurisdictional boundaries. This process eliminated the City Council’s only majority-black district by adding several white subdivisions adjacent to Calera while refusing to incorporate a black area located nearby. The lone majority-black district was reduced from 70 to 30 percent black, resulting in the election loss of Montgomery, the only black city councilperson. The Justice Department would not approve the redistricting plan and, after extensive negotiations, Calera adopted a more inclusive at-large election system, one that prevented whites from controlling 100 percent of the six positions on the city council and that resulted in Montgomery receiving the most votes of all council candidates.

The Section 4 “pre-clearance” formula invalidated in the recent Shelby County decision is the same provision relied upon by the Justice Department to protect Councilman Montgomery from discriminatory treatment. Section 4 mandates that 15 states, including Alabama, or portions thereof, with a history of discriminatory voting laws get prior approval by the Department of Justice or a federal court for any changes to their election practices. In striking down Section 4, which had been overwhelmingly reauthorized by Congress for another 25 years in 2006, Chief Justice Roberts, writing for the majority, indicated that the formula must be “justified by current needs”.

Certainly much progress has been made since 1965 when the VRA was passed. Thousands of discriminatory proposed voting changes have been prevented since the law’s inception. Black registration rates equal that of whites in some states. Yet today, racially-polarized voting patterns, the practice of reducing minority participation for partisan advantage in many parts of the nation, with blatant racism in others, suggest a continued need for an updated pre-clearance formula.

In 2001, the white mayor and all white city council in Kilmichael, Mississippi cancelled elections shortly after blacks became a majority of registered voters. In 2011, the Justice Department stopped a Texas redistricting proposal determined by a federal court to purposefully discriminate against Latino voters. Last year, the Justice Department prevented a photo identification law in Texas from going into effect. At the time, some 600,000 Texans who had voted in previous elections, many of whom were black and Latino, would have become ineligible to vote without additional identification. In each instance, Section 4 was used to prohibit discrimination. Immediately after the Supreme Court invalidated the”pre-clearance” provision this summer, Texas, and several other states, reinstated the voter identification laws previously prevented under Section 4, and other local jurisdictions promised to revisit prior invalidated practices. Earlier this week, North Carolina restricted its early voting procedure utilized by 70% of blacks who voted in the state in 2012.

While the Shelby decision is problematic in that it weakens protection for minority voter participation, such inadequacy need not be permanent. The Supreme Court left open the possibility that Congress could fix the formula. Congress should update it expeditiously. In so doing, legislators must understand that racism did not end in 1965 and is not limited to the 15 states named in Section 4. Coverage based solely on geography would be outdated, as discriminatory acts occur throughout the country. Covered states should include those previously supervised, like Texas, where gerrymandered districts or choices by local officials to annex surrounding communities or implement at-large elections frequently reduce minority representation, but other states also need to be added. Those not previously supervised, like Pennsylvania and Ohio, where voter identification laws and limitations on early voting are the new poll taxes and literacy tests that frequently have a negative impact on minority participation, as they did during Jim Crow, need to be covered as well.

With evidence of such serious and widespread suppression and dilution, an expanded and refocused formula is clearly “justified by current needs”. Circumstances may have changed, but voter suppression, based on race, remains. Recent instances of discrimination, including faulty election machines, purges in voter rolls, and elimination of same-day registration prove that this “Ghost of Jim Crow” remains. Accordingly, coverage based on serious and widespread intentional racial discrimination, where ever it might occur, is sorely needed, still.

F. Michael Higginbotham is a professor of law at the University of Baltimore and the author of Ghosts of Jim Crow: Ending Racism in Post-Racial America (NYU Press, 2013).

[This article originally appeared in the Orlando Sentinel.]

Bradley Manning’s revelations saved lives

Was the Bradley Manning verdict fair? Over at US News & World Report’s Debate Club, NYUP author Marjorie Cohn weighs in. Read her piece below, and then vote for it here!

This is a historic verdict. Judge Denise Lind correctly found Bradley Manning not guilty of aiding the enemy because the evidence failed to establish that Manning knew information he provided to WikiLeaks would reach al-Qaida. A conviction of aiding the enemy would have sent a chilling message to the news media that if they publish leaked classified information, their officers could face life in prison. That would deprive the public of crucial information.

The verdict finding Manning guilty of Espionage Act offenses, however, sends an ominous warning that could deter future whistle-blowers from exposing government wrongdoing. It’s important to keep in mind that Manning provided information indicating the U.S. had committed war crimes. Traditionally the Espionage Act has been used only against spies and traitors, not whistle-blowers. Yet President Obama has used the Espionage Act to prosecute more whistle-blowers than all prior administrations combined.

Manning’s revelations actually saved lives. After WikiLeaks published his documentation of Iraqi torture centers established by the United States, the Iraqi government refused Obama’s request to extend immunity to U.S. soldiers who commit criminal and civil offenses there. As a result, Obama had to withdraw U.S. troops from Iraq.

[See a collection of editorial cartoons on the NSA.]

The American public needed to know the information Manning provided. He revealed evidence of war crimes in the “Collateral Murder” video, which depicts a U.S. Apache attack helicopter crew killing 12 unarmed civilians and wounding two children in Baghdad in 2007. The crew then killed people attempting to rescue the wounded. A U.S. tank drove over one of the bodies, cutting it in half. Those actions constitute war crimes under the Geneva Conventions.

The Bush administration waged an illegal war in Iraq in which thousands of people were killed. It also established an interrogation program that led to the torture and abuse of people in Iraq, Afghanistan, Guantanamo and the CIA black sites. Yet it is Bradley Manning, not the Bush officials, who is being prosecuted.

Judge Lind has already reduced any sentence Manning may receive by 112 days because of his mistreatment during the first 11 months of his custody, when he was kept in solitary confinement and humiliated by being forced to stand naked for inspection. Hopefully the judge will take into account how Manning’s revelations benefit our society when she passes sentence. Manning is still facing 136 years in prison for his convictions on 19 of the 21 counts with which he was charged.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and former president of the National Lawyer’s Guild. Her books include The United States and Torture: Interrogation, Incarceration, and Abuse (NYU Press, 2011), Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, and Cameras in the Courtroom: Television and the Pursuit of Justice.

Bridging the racial divide after the Zimmerman verdict

—F. Michael Higginbotham

The recent acquittal of George Zimmerman for shooting and killing 17-year-old Trayvon Martin has provoked outrage and widespread (yet mostly peaceful) protests from racially mixed, but predominantly black, crowds. At the same time, conservative commentators, on local and national media, most of whom are white, have expressed support for the verdict along with the belief that Zimmerman acted in self-defense. The protests and commentary reflect a huge racial divide where 86% of blacks, but only 30% of whites, are dissatisfied with the trial’s outcome.

While some supporters of Zimmerman’s self-defense claim have expressed genuine remorse over the tragic death of an unarmed black teenager, many justify Martin’s death by insisting that he must have done something threatening. Others seem to dismiss the tragic loss of life by accusing blacks of exploiting the case to continue old habits of complaining about contrived racism.

Protesters view the verdict as another in a long line of cases where white perpetrators of violence against blacks go unpunished, reminiscent of the horrendous 1955 murder of black teenager Emmett Till, who was brutally beaten and killed for allegedly whistling at a white woman. Even President Obama, who rarely comments on race, weighed in on the tragedy by explaining that most black males in America, including himself, have experienced racial profiling, followed around department stores while innocently shopping, heard car doors locked in fear as they casually crossed the street, and been subjected to other forms of race-based fear. Obama’s sentiment reflects the basis for the fury of many blacks who believe black males in America are presumed guilty until proven innocent. They feel certain that Martin’s color, rather than his behavior, prompted Zimmerman’s suspicion and actions.

As one who has spent a career studying and teaching law while simultaneously writing texts on race, I view this tragedy as an opening to bridge the racial divide. It is not easy to discuss race across racial lines. Yet, no dialogue on race is possible unless all sides are similarly willing to listen and learn. Blacks need to acknowledge that America today is a far more just society than it was in the days of Emmett Till. We have ended Jim Crow segregation. We have instituted anti-discrimination laws in public accommodations, voting, and housing, and implemented affirmative action programs in education and employment. Even so, whites need to recognize that serious racial inequities still exist. Wealth accumulation for blacks is one twentieth of what it is for whites. Black unemployment, poverty, and homelessness are twice that of whites. Although white Americans use marijuana at the same rate as blacks, African-Americans are four times more likely to be arrested on charges of marijuana possession. Among those attempting to utilize Florida’s “stand your ground law”, which provides additional protections in claims of self-defense, 59% of defendants have been exonerated when their victims were white, while 73% of defendants have gone free when their victims were black. Nationally, white defendants in “stand your ground states” are over four times more likely to be acquitted when the victim is black than when the victim is white.

These disparities have been persistent, but they need not be permanent. Americans should be grateful to all those who have spoken out in a constructive manner on the controversial issues of race in America. With stark divisions rampant after the Zimmerman verdict, this is an opportunity to rid the country of the Ghosts of Jim Crow once and for all, an opening to bridge the divide that should not be overlooked.

F. Michael Higginbotham is the author of Race Law: Cases, Commentary, and Questions and Ghosts of Jim Crow: Ending Racism in Post-Racial America (NYU Press, 2013). Race Law is a textbook used in law schools worldwide, and Ghosts of Jim Crow offers solutions to America’s race problem.

Learning disability and the DSM-5

—Ruth Colker

Raised in a Spanish-speaking household, Peter learned to speak English at age two while recuperating from a car accident that left him paralyzed from the waist down. Despite an amazing work ethic and informal assistance from others, he struggled in school with painfully slow reading and writing. After reading a paper that he wrote for one of my law school classes, I discretely asked him if he had ever been tested for a learning disability. His paper had great content but some awkward phrases. Four weeks later, after I helped him find inexpensive diagnostic services, he learned at the age of 25 that there was a name for his academic struggles: dyslexia (the most common type of learning disability). As a low-income student with a visible disability, Peter had no idea he should be evaluated for dyslexia.

This diagnosis served as a pivotal moment for Peter; his self-confidence improved as he realized he was not struggling due to low cognitive aptitude. He graduated from law school with some accommodations, received extra time on the bar exam, and became a successful lawyer.

Disappointingly, the American Psychiatric Association has barely recognized the existence of “dyslexia” in its recently published fifth edition to the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”). And its fleeting recognition of dyslexia is likely to be confusing.  Despite comments from leading practitioners in the field to make “dyslexia” its own category, the APA stubbornly maintains the amorphous category of “Specific Learning Disorder” and then breaks that category down into impairments in reading, written expression or mathematics. Under “impairment in reading,” there is a brief notation that “Dyslexia is an alternate term used to refer to a pattern of learning difficulties characterized by problems with accurate or fluent word recognition, poor decoding, and poor spelling abilities.” Although the long-awaited Fifth Edition was supposed to reflect the most recent state of knowledge about disability, it adds confusion by failing to recognize dyslexia as its own category.

According to the United States Department of Education, 2,476,000 children between the ages of 3 and 21 were classified as having a learning disability in 2008-2009.  Additionally, millions of adults are classified as having a learning disability and receive accommodations in college, on professional testing and at the workplace in order to be productive members of society.  The most common form of learning disability is dyslexia yet the DSM-5 does not even provide an independent definition of dyslexia.

The proposed DSM-5 reflects a misconception of dyslexia. The amorphous category of “Specific Learning Disorder” presumes that individuals with a learning disability will be low-achieving and need continual testing to demonstrate the existence of this impairment based on the stereotype that they might outgrow it.

It also presumes that adults with learning disabilities will have been typically diagnosed during their primary or secondary education, ignoring the large number of young people in our society who do not have access to the clinical services necessary for such a diagnosis.

One of the most alarming aspects of the DSM-5 is that it buys into what is called the “Response to Intervention” (“RTI”) process for diagnosing a learning disability. RTI is a creature of No Child Left Behind –  it requires that school districts provide low-achieving students with intervention to help them attain grade-level success.  RTI has nothing to do with disability; it is a mechanism to help students, especially poor students, attain grade-level expectations. The DSM-5 requires an RTI process for at least six months before a student can be classified as learning disabled and receive special education and related services. In a January 2011 letter, the United States Department of Education has criticized the way the RTI process often delays a referral for special education classification of students with learning disabilities. By requiring RTI, the proposed DSM-5 could worsen an already-existing problem.

In recent years, we have made enormous progress in providing appropriate assistance to millions of Americans with learning disabilities while maintaining high expectations for their achievement at school and at work. At the same time, science has opened up our ability to understand dyslexia by imaging how the brain works when a person is reading. The DSM-5 ignores legal and scientific developments, downplays the category of “dyslexia,” and turns back the clock with disastrous consequences for children and adults with learning disabilities, like Peter, who are tremendously bright but need modest accommodations in order to become productive, tax-paying members of society.

Ruth Colker is Distinguished University Professor and Heck-Faust Memorial Chair in Constitutional Law, Moritz College of Law, The Ohio State University. Professor Colker is the author of Disabled Education (New York University Press, 2013).

Do female candidates still face a “double-bind”? The answer is yes

—Margaret S. Williams

The recent New York Times article discussing the branding of mayoral candidate Christine Quinn highlights the double-bind female candidates often face in American elections. Female candidates need to seem tough, but not too tough (see “Ms. Quinn is known to unleash anger easily” but also cared for her dying mother). Female candidates need to appear to represent women, but not too much (see the housing candidate who was slow to support paid sick leave). And, above all, the female candidate needs to be well-dressed (see references to her shoes, dress, and hairstyle).

The image female candidates promote is so delicate that revealing an eating disorder, or time in a rehab facility, could put the candidate’s front-runner status in jeopardy– more so than ties to the current establishment or a very public vote switch. Contrast this to Quinn’s chief rival for the Democratic nomination, Anthony Weiner…yes, that Anthony Weiner, of Twitter fame.

The differential treatment of women and men in politics could not clearly be more spelled out. She needs to make herself more relatable, so people will like her more.  She may have gone too far by divulging she had an eating disorder and a problem with alcohol before she was a public official. He does not appear to care what people think of him (I think that is a safe assumption, given his past tweeting behavior), nor do his past scandals while in office appear to affect his political future. And we don’t even know if his suit was Prada or Dolce & Gabbana.

It would be nice to pin all of this differential treatment on the media, but social science studies demonstrate voters judge female candidates more harshly than male candidates for the same behavior. What does all this mean for women with political ambitions? How can they overcome biases against women, both in the media and in the public’s perception of them?

Outside the United States, female candidates do not receive the same treatment—perhaps the results of elections that are more party-centered and less candidate centered. (Margaret Thatcher may be the best example of some backlash against strong female leaders.)  Different styles of election undoubtedly play a role, as they do in the electoral prospects of female candidates as well.  In our book, Contagious Representation, Frank Thames and I show how proportional representation (as opposed to single-member districts seen in the U.S.) fosters women’s participation.  But it is also possible that gender quotas, also found outside the United States, play a role here as well. Would we really focus so much on a single woman acting to represent women, or on what she was wearing, or how relatable she is if there were more than one woman in the race?

Margaret S. Williams is the co-author (with Frank C. Thames) of Contagious Representation: Women’s Political Representation in Democracies around the World (NYU Press, 2013).

A Death at Crooked Creek: Free chapter and giveaway

Attention, lovers of mystery, history, and true crime dramas! 

There’s still time to enter our Goodreads book giveaway for A Death at Crooked Creek: The Case of the Cowboy, the Cigarmaker, and the Love Letterand we’re giving away 3 *free* copies!  Enter now for a chance to win; the giveaway ends on May 29, 2013.

Today, we have an excerpt from the first chapter of A Death at Crooked Creek: “A Winter Journey Leads to an Inquest: 1879.” 


Chapter 1: A Winter Journey Leads to an Inquest: 1879 by NYU Press

Why restrict jury duty to citizens?

—Andrew Guthrie Ferguson

[This article originally appeared in The Atlantic online. Read it here.]

A few weeks ago, the California Assembly passed legislation that for the first time would make non-citizens eligible for jury service. If passed by the State Senate, California would be the only state to decouple citizenship and jury duty.

A chorus of criticism has been raised over the proposed bill without thinking about the fundamental question it presents. Why do we limit jury service to citizens?

The answer does not lie in history. At the time of the framing of the United States Constitution, jury service was limited to property-owning white men–as, for that matter, were voting rights in most states. Recent immigrants who owned property could sit on juries, but other citizens (women and others without property) could not. Thus, as originally understood, citizenship did not define who could sit on a jury.

Nor is the answer that citizens possess some special civic knowledge. There are no educational requirements for jury service. No special “citizen training” classes. Qualification for federal jury service simply requires that the potential juror “be adequately proficient in English to satisfactorily complete the juror qualification form.” In an era where studies show that most Americans fail basic civic literacy tests (including the official government citizenship test), we can honestly wonder about this collective lack of civic knowledge. Thus, assuming that many non-citizens are equally knowledgeable (or ignorant) about American civics and law, knowledge cannot be the reason for preferring citizens.

Nor, is it about community representation. Juries, of course, have always acted as a community conscience. Community morals and judgments provide both the legitimacy for a jury verdict and a check on government power. The right to a criminal jury trial is a right to a local jury. Yet, including non-citizens on juries would not necessarily change that community dynamic. In fact, including non-citizen members of our community might provide a closer approximation of the actual community sentiment. After all, a lawful permanent resident of California (who has lived in the state for twenty years) might be much more representative of the community than a recent citizen moving from Alabama or New Hampshire.

So why has jury service been limited to citizens? Here are three good reasons.

Citizenship symbolizes and preserves self-government. In a democracy, citizens are the sovereigns and sovereigns have to govern themselves through institutions like the jury. This is a structural power – a reservation of political control to citizens. One cannot outsource the responsibility of self-government, including jury duty. Those who have been entrusted with the responsibility to govern must do the hard work of self-government.

Second, citizenship has come to define our political identity. For much of early American history, we denied full political rights to women and people of color. As a result, the battles for political equality have been framed in terms of citizenship. The Women’s Suffrage Movement explicitly linked jury service and voting in its push for political equality, knowing that just gaining the right to vote would not be enough for women to be considered full constitutional citizens. The Civil Rights Movement in the South began with a series of jury discrimination cases recognizing that jury participation symbolized a measure of constitutional equality. Those victories established that to be a full participant in the constitutional system, one had to identify as a citizen juror.

Finally, citizenship involves a legal and social relationship with the government – a granting of constitutional rights and an acceptance of civic responsibilities. American citizenship is a legal commitment to certain participatory values, including participation in juries. The badge of citizenship marks individuals as belonging to a national community that guarantees certain liberties and opportunity in exchange for democratic participation. As the Supreme Court stated in Powers v. Ohio, jury duty “affords ordinary citizens a valuable opportunity to participate in a process of government, an experience fostering, one hopes, a respect for law. Indeed, with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process.”

A shift to non-citizen jurors would alter this balance of sovereignty, identity, and the relationship between citizen and government. Of course, many non-citizens would make excellent jurors, just as many actual citizens make poor jurors, but the underlying legal relationships would be significantly affected. This change to non-citizens juries may come, as the history of the jury has always evolved with social norms, but such a change would restructure the current balance of rights and responsibilities in a way that Californians and others should weigh very carefully.

Most importantly, the debate over non-citizen jurors has resulted in new awareness that jury service matters. However the California legislature ultimately decides the issue, the controversy has highlighted a deep-felt sense that jury service goes to the heart of what it means to be an American citizen: It is not patriotism alone, but commitment to the participatory values of democracy. Next time you are asked to serve, wear your juror badge proudly.

Andrew Guthrie Ferguson is an assistant professor of law at the UDC David A. Clarke School of Law, and author of Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action (NYU Press, 2013).

Misunderstanding Miranda: A Miranda warning would not endanger the Boston prosecution

—David A. Harris

[This article originally appeared in the Pittsburgh Post Gazette. Read it here.]

Just hours after the second Boston bomber was taken alive, the government announced that it would not give the man Miranda warnings before questioning him. Instead, the Department of Justice said, the attacker would be questioned without warnings under the public safety exception.

The Obama administration’s interpretation of the public safety exception is suspect; its announcement that no Miranda rights would be given was transparently political, aimed at avoiding criticism from conservative quarters. Worst of all, the administration seemed to be telling the public that Miranda warnings are just petty rules—another instance of hyper-technical laws that get in the way of real justice. This is dead wrong, and it shows grave disrespect for the rule of law and the Constitution—the very things that make our country great.

Let’s start with a clear understanding of the Miranda warnings. Failing to give Miranda warnings does not interfere with the power of the police to make an arrest. Not giving the warnings does not affect the ability of the prosecution to try a suspect. In fact, not reading a suspect his Miranda warnings does not even violate the person’s rights.

The Supreme Court ruling in the Miranda case is actually quite specific: Warnings are required only if the police question a suspect while he is in custody and the district attorney wants to use the answers to prove guilt. That’s all.

If the Boston bombing suspect gets Miranda warnings and decides he wants to remain silent, won’t that destroy the case?

The simple answer is no—he will be prosecuted anyway and will very likely be found guilty, statements or not. Think of 1) the countless photos and videos, many of which show him with his brother and some of which reportedly show him leaving his backpack at the site of the second explosion moments before it occurred; 2) his statement of guilt made to a civilian during a carjacking, 3) the many officers who could testify they saw him at the shootout from which he escaped; and 4) any evidence police have seized from his home. In short, the evidence will be overwhelming; prosecutors won’t need a confession to convict him.

The idea that giving suspects Miranda warnings stops investigations cold and allows guilty criminals to go free is a myth, and it vastly underestimates the abilities of modern police officers to work successfully under the Miranda rules.

When police officers administer Miranda warnings, 85 percent of suspects talk to them anyway. For suspects with no criminal record, like the Boston bombing suspect, the number is 90 percent. Given what the warnings tell suspects—”anything you say will be used against you”—many people are shocked by this outcome. But it is human nature to talk, to explain, to avoid blame, and good police interrogators know how to take advantage of this. Miranda does not prevent them from getting the evidence they need.

In fact, the evidence in the Boston case is so great and the bomber’s guilt so certain that the suspect may wish to make statements—whether he gets Miranda warnings or not—for the purpose of avoiding the death penalty. The Miranda warnings won’t affect this.

What would happen if the suspect is questioned in custody without Miranda warnings and he makes statements of guilt?

The prosecution could not use those statements to prove his guilt, but it could still proceed with all the other evidence. And prosecutors could use answers given without Miranda warnings for purposes other than proving guilt. For example, they could still be used for intelligence purposes—to find other bombs or other people involved in the Boston plot or others. The statements also could still be used to prove the guilt of others involved under a conspiracy charge.

The government’s assertion of the public-safety exception to the Miranda rule bends that exception almost to the breaking point. The Supreme Court has said that Miranda doesn’t apply to police questioning that takes place in order to alleviate immediate, ongoing danger. But the authorities have already made clear that the Boston bad guys have been caught or killed and the danger is over. Perhaps the government might question the suspect about the existence of other explosives or plans, or whether he and his brother had other co-conspirators. But beyond those issues, the public-safety exception does not apply.

When our political leaders say that constitutional rights won’t be applied in pursuit of some greater good, they make our founding document sound like a collection of legal loopholes. They put us on the path that Ben Franklin warned us against when he wrote, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

At times like this, we need to stand strong with Boston—and with our own values. Anything less dishonors who we are.

David A. Harris is Distinguished Faculty Scholar and Professor of Law at the University of Pittsburgh School of Law. He is the author of Failed Evidence: Why Law Enforcement Resists Science (NYU Press, 2012).

Marriage equality and the law, 1967 and 2013

—Howard Ball

In 1967, when a good cigar only cost five cents, a very different U.S. Supreme Court, led by a very different Chief Justice (Earl Warren), faced a choice between a states rights and an equal protection of the laws argument. The same choices face the Justices this term, but I am fearful that the outcome will be very different in 2013.

In 1967, the case Loving v. Virginia came to the Court because Virginia (and 15 other states) enforced its anti-miscegenation statute prohibiting marriage between Caucasians and blacks. At this time, the jurists formed an exceedingly diverse group, much more so than the sitting Court. For one thing, the majority of them had political careers prior to joining. Thus, this intimate contact with politics gave them a much greater sense of the real world than the cloistered world of arcane legalism would have.

Also of note was that the Court was mostly composed of either moderate or liberal jurists; there were no arch conservative “originalists” such as Antonin Scalia, Clarence Thomas, and Samuel Alito sitting as we see in the current Court. And the Loving decision was but one example of the Court’s rock solid commitment to civil rights and civil liberties in the mid-20th century (1953-1969).

Virginia’s lawyers argued that in a federal system, the state has the power in the 10th Amendment to establish rights and limits regarding marriage. The lower federal courts accepted this argument, yet without a dissent, Chief Justice Warren categorically rejected it. He wrote that “the 14th Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.” The Court’s commitment to racial marriage equality in Loving came even though 72% of the American public opposed inter-racial marriage that year. (In 2011, 97% of persons under 30 years approved of inter-racial marriage. Clearly, values evolved towards equality.)

In 2013, two cases are in the Supreme Court. One, U.S. v. Windsor, the plaintiff, an octogenarian lesbian whose wife of more than four decades died and who had to pay over $300,000 to the IRS because the 1996 Defense of Marriage Act (DOMA) denied federal benefits to same-sex married couples, argued that the law was an unconstitutional violation of the right of gay and lesbian couples to marry. In the second case, Hollingsworth v. Perry, lawyers challenged the constitutionality of Proposition 8, passed in 2008 by the voters in California. It invalidated an earlier California Supreme Court decision that allowed same sex marriage. The arguments by the lawyers for the gay and lesbian petitioners are based on the concept of equality in the Constitution and are reminiscent of the Loving decision.

In contrast to the expectations of petitioners in 1967, however, the outcome in 2013 is uncertain. First of all, only one sitting Justice, Elena Kagan, has any prior experience outside of the judiciary (she was the U.S. Solicitor General in the first Obama Administration). Two had prior work on the Senate judiciary committee (Stephen Breyer) and as counsel for the ACLU (Ruth B. Ginsburg). All the other members came to the Court from lower federal appellate courts, having no real political world experiences to draw upon. Furthermore, unlike the Warren Court, there is a hard and fast ideological split on the Court: five very conservative jurists and four moderates. And there has been, for more than a decade, an “appreciation” by the conservative majority of the primacy of states’ rights vis-á-vis federal power, a general wariness about the Court moving too hastily when deciding controversial social issues, and an originalist commitment to the historic values and traditions of the American society.

There are only a few options available to the Court in deciding the same-sex cases:

  1. Dismiss the cases as improvidently granted, which would leave DOMA in place and have the 9CA overturn of Proposition 8 restored,
  2. (a) Overturn DOMA, ending a federal imposition and enabling, in the 9 states and the D.C. that allow same sex marriage, all married couples to receive federal benefits, and (b) validate California’s Proposition 8, enhancing, in both cases, the principle of states’ rights in the face of federal laws.
  3. Overturn Proposition 8 and DOMA on individual rights, privacy and “equal protection” grounds, using Loving as precedent.

I am not holding my breath that the last option will be the majority’s choice. It will be one of the first two possibilities; either one will sadden but not surprise me and most Court observers. Paradoxically, unlike public opposition to racial intermarriage in 1967 rejected by a unanimous Court, in 2013, although 58% of Americans support same-sex marriage, it may be rejected by a five person majority. Oh, for the return of a good five cent cigar and the Warren Court!

Howard Ball is Emeritus Professor of Political Science and University Scholar at the University of Vermont and Adjunct Professor of Law at Vermont Law School. He is the author of At Liberty to Die: The Battle for Death with Dignity in America (NYU Press, 2012) and The Supreme Court in the Intimate Lives of Americans (NYU Press, 2002).

Two covers for Two Presidents?

NYU Press takes a different path to publishing a book on the political gridlock in Washington DC

When NYU Press decided to publish a provocative new book, Two Presidents Are Better Than One: The Case for a Bipartisan Executive Branch, by David Orentlicher, arguing in favor of two Presidents, rather than one, it had a number of major challenges, according to Steve Maikowski, Director of NYU Press. “First, we had to ensure that the final manuscript made a very convincing and well-grounded case for such a controversial idea, and the author, a Professor of Law at Indiana University, did indeed ground his argument forcefully in both law and American history. Otherwise, we feared the book would be dismissed out of hand as implausible by pundits and the review media.”

The Press saw the book, which advances this idea of a bipartisan executive branch, as a way to break the political gridlock between the Republicans and Democrats—and especially timely and worthy of serious review attention, given the endless budget impasses and the ongoing fiscal cliff negotiations in Washington.

A far-fetched argument? Not according to the author, or to the early reviewers of the book, including Sanford Levinson, an acknowledged expert on constitutional law and professor of government at the University of Texas School of Law. Levinson wrote, “Can Orentlicher be serious in calling for a plural executive? The answer is yes, and he presents thoughtful and challenging arguments responding to likely criticisms. Any readers who are other than completely complacent about the current state of American politics will have to admire Orentlicher’s distinctive audacity and to respond themselves to his well-argued points.”

The Press was further encouraged by the very favorable pre-publication buzz the book (or rather, the idea behind the book) received from the Washington Post and Boston Globe. What seemed to be an implausible argument of a plural executive branch was called by the Globe, “a fresh lens on a problem we all complain about—and may offer useful guidance for how we should go about trying to reform our government.” Orentlichter went on to appear on ‘Fox and Friends,’ where he was met with just a twinge of cynicism, but also a whole lot of encouragement.

The book also received several excellent pre-publication reviews, including the following praise from Publishers Weekly: “As unlikely as the thought may sound, Orentlicher makes a surprisingly persuasive case for this radical change. Orentlicher delivers a compelling explanation of how such a system would better align with the framers’ original conception of the executive branch… the author has an incisive eye for the problems of contemporary government.”

With the very positive buzz circulating the book, the next challenge was how best to package and market the book to draw attention to the author’s controversial proposal. The NYU Press design and marketing team met the challenge head on, and immediately found a way to encapsulate the author’s argument in an innovative and exciting design.

In a launch meeting for the book, the discussion turned to how best to evoke visually such a two-headed being. Adam Bohannon, a designer at the Press, and Mary Beth Jarrad, marketing and sales director, decided to publish the book with two different covers—one to appeal to Democrats, and another to appeal to fans of the GOP. The Press then commissioned an illustration that would show the pairing of the Democratic donkey and Republican elephant. The result: two covers that look very much the same, but each features one of the iconic partisan images, the donkey or the elephant.

The book was released to the trade in February, with an equal number of copies of each edition in each carton shipped to wholesalers and retailers. The Press decided it would be too burdensome to track sale of each book, which would have required separate ISBNs and increased management of two titles rather than one. “We’ll probably never know which of the two editions sells the best, and as long as we sell them all, we probably will not care to know,” said Jarrad. “The next big question is, when we publish the paperback in 2014, which of the two covers should we use then.”

In memoriam: Hugo Chávez

—Michael D. Yates

The death of Hugo Chávez saddens those struggling for a better world. He was a great champion of the impoverished workers and peasants of both Venezuela and the world, and a steadfast and bold critic of the rapacious and murderous imperialism of the United States.

Monthly Review Press is proud of the books we have published on Venezuela, books which describe, analyze, and show solidarity with the Venezuelan road to democratic socialism. A key element in building a revolutionary, new society is to ensure the health of the people. This has been one of Chávez’s singular achievements; millions of poor Venezuelans have received (free) medical care for the first time. In cooperation with Cuba, Venezuela has begun to construct a system of patient-centered, decentralized, and preventive health care, a process examined in Steve Brouwer’s Revolutionary Doctors: How Venezuela and Cuba Are Changing the World’s Conception of Health Care. Remarkably, peasants and workers are themselves trained to be doctors, in a work and study program pioneered by Cuba.

Under Chávez, Venezuela has striven to secure its political and economic independence from the United States, which has had a sordid history of intervention in the country and in all of Latin America. Not only did he help to engineer a strong economy not dependent on the United States, he never hesitated to challenge with words and deeds its imperialist practices. Given the implacable hostility of the United States to Venezuela, examined with great care by Eva Golinger in Bush versus Chávez: Washington’s War on Venezuela, it is remarkable that Chávez remained in power, winning democratic elections and surviving a Bush-engineered coup. This is a testament to the depth of his revolution and the growing power of Latin American governments to steer a course independent of the United States, a power inspired by Venezuela.

Following the failed coup in April 2002, when massive popular protest propelled him back to the presidency, Chávez sat down with Marta Harnecker and provided insights into his own political trajectory and the nature of what he called “socialism for the twenty-first century.” His words were later published in Understanding the Venezuelan Revolution (Monthly Review Press, 2005).

While Monthly Review Press must sell books to remain in operation, our main purpose has always been to promote radical thought and action in the world. We have published books in which authors have expressed the deepest admiration for Hugo Chávez, but praise for a radical leader is never our goal; it is the empowerment of the masses of workers and peasants we want to help achieve. And yet, it must be said that our love for Chávez has been amply repaid.

In April 2009, at the Summit of the Americas meeting in Trinidad, Chávez arose from his seat, walked over to Barack Obama and handed him a copy of Eduardo Galeano’s classic work of the centuries-long exploitation of Latin America by the great imperialist nations (including, of course, the United States): Open Veins of Latin America. He inscribed the book, “For Obama, with affection.” As word of this spread around the world, the English edition of the book reached #2 on Amazon’s sales charts. This was a great boon to Monthly Review Press and to our distributor, NYU Press. We were inundated with emails and phone calls, and I remember having to quickly re-read the book (which I had used in my classes when I was a teacher), so that I could write and deliver, within one day, a review to an Australian magazine.

Let us hope that as the Venezuelan revolution continues and as the imperial power of the United States someday diminishes in response to popular revolt here, it won’t be necessary for the president of one country to give such a book to the leader of another. Because Hugo Chávez’s dream and that of every revolutionary person will have been realized… That there be no rich and poor, that there be no exploiter and exploited, that there be only one healthy and happy humanity.

Michael D. Yates is a writer, editor, and labor educator. He is Associate Editor of Monthly Review and Editorial Director of Monthly Review Press.

The Future of Women’s History

–Margaret S. Williams 

As we begin another Women’s History Month, I have to wonder how the dearth of women in public life will affect the celebration of this month in the future.  Whether we are talking about Presidential Cabinets or Fortune 500 companies, too few women are participating in public life.  The absence of women is a problem whether viewed as a loss of talent or a loss of opportunity to represent women’s interests.  But what can be done?  Some think that women need to assert themselves more, to “lean in” as it were, creating a greater presence in the workforce to gain more than what they currently have.  Others argue that change needs to come from the institutions themselves by recruiting women to higher ranking or more prestigious positions.  When talking about overcoming centuries of socialization into particular roles and fewer opportunities, it seems to me that both efforts need to be pursued.

Teaching women how to be more assertive alone will not help women achieve their goals overnight.  In fact, there is a substantive body of political science literature that says it could backfire, with women being perceived more harshly than their assertive male colleagues.  Moreover, the idea that women need to think bigger about their goals or paths to success misses the point that women are as ambitious as men—they want higher ranking office and bigger salaries.  Who doesn’t? The problem is, women see more barriers to achieving it, or they think more about the effect on their family life than men do.  Women face institutional barriers that thwart their ambitions, so institutional change needs to be a part of the conversation.

Institutional actors need to reach out to these ambitious women to help them achieve their goals.  Quotas laws (used in some countries to ensure greater participation by women), recruitment, and mentoring also need to be a part of the process for increasing women’s participation.  Even a broader discussion of how to balance work and family by those who are attempting to do so can be helpful.  But women who seek more need to make their ambitions known.  Women need to seek out mentors to help them achieve their goals, and they need to take opportunities when they are available instead of seeing all the reasons why they shouldn’t.  If there are no women willing to take the risk and aim for more power and prestige, we lose not only examples for future generations, but we may also lose any reason to celebrate this month.

Margaret S. Williams is the co-author (with Frank C. Thames) of Contagious Representation: Women’s Political Representation in Democracies around the World (NYU Press, 2013).