“Offended Observers” and Public Religious Displays: the Question of Standing

A guest post by Lawrence Friedman

That a majority of the U.S. Supreme Court found the Bladensburg Peace Cross not to offend the Establishment Clause in American Legion v. American Humanist Association should not be surprising. The court has for years treated religious symbols on public property with a relatively light touch, relying upon the history and context of the particular display to determine whether it was intended to favor one religious sect over another, or to promote religion over non-religion.

Though he agreed with the majority’s conclusion, Associate Justice Neil Gorsuch would have gone farther and denied the plaintiffs standing to challenge the cross. He argues in his concurring opinion that the plaintiffs, who claimed to be “offended observers,” failed to satisfy the most basic requisites of modern standing. As articulated by Associate Justice Antonin Scalia in Lujan v. Defenders of Wildlife, a plaintiff must show (1) injury-in-fact, (2) causation, and (3) redressability. The first element requires an injury to be both (a) concrete and particularized and (b) actual or imminent.

Gorsuch maintains in American Legion that offense alone cannot qualify as a “concrete and particularized” injury “sufficient to confer standing.” And he is surely correct that, if “offense” is defined as “disagreement,” it should not count as the kind of injury necessary to trigger standing. The court has long held that standing requires some personal connection to government action, which is why individuals generally have no standing unless they can point to an injury they have suffered that is quantifiable and not contingent.

But maybe Establishment Clause challenges are different—or at least one kind of Establishment Clause challenge. Continue reading ““Offended Observers” and Public Religious Displays: the Question of Standing”

Another major conflict of interest in Brooklyn’s judicial elections

The chicanery surrounding judicial elections in New York City, and especially Brooklyn, will come as no surprise to longtime readers of this blog. But here we go again:

Brooklyn lawyers who decide who can get the crucial Democratic ballot line to run for prized judicial seats are getting jobs as legal guardians and referees from the very judges they’re charged with reviewing — and their law firms are appearing before those same judges in active cases.

Of the 25 attorneys listed as serving on the Brooklyn Democratic Party’s judicial screening panel in 2019, at least five have been given jobs as court-appointed lawyers by the judges they’re tasked with reviewing, the Daily News has learned.

Previous coverage of the Brooklyn’s high quality approach to selecting judges here, here, here, here, here, and here.

Minnesota broadcasts criminal sentencings … and the world doesn’t end

One of the main concerns expressed by lawyers and judges about courtroom cameras is that they will lead to grandstanding and obnoxious courtroom behavior. But the experience in Minnesota state courts suggests that these concerns are overblown. Using a bit of a loophole in the law — sentencing proceedings do not require assent from the parties — more media are gaining camera access to high-profile sentencings. The results have been mostly positive.

There are ample reasons to want to protect the privacy of victims, jurors, and witnesses during trial. But there are also ample reasons to make the open forum of the courtroom truly open to everyone. Video access of court proceedings is assuredly compatible with safety, due process, and substantial justice.

Is the Supreme Court rethinking the federal courts’ mission?

My latest piece for the New England Law Professors blog takes a look at the Supreme Court’s recent decision in Home Depot, Inc. v. Jackson, and asks whether the Court is quietly reevaluating the mission of the federal court system.

Give it a read, and while you’re there, check out the wonderful posts by my colleagues in areas as widespread as criminal law, immigration law, and constitutional law.

Why did France just outlaw legal analytics?

Palais de Justice AngersThere has been quite a bit of shock this week over new French legislation that bans anyone from publicly revealing the pattern of judges’ behavior in court decisions. Article 33 of the Justice Reform Act would impose a prison sentence of up to five years for anyone who uses the identity of judges or magistrates “with the purpose or effect of evaluating, analyzing, comparing or predicting their actual or alleged professional practices.”

The law seems targeted to a growing number of legal analytics firms in France and elsewhere, which use technology to look for patterns in judicial decisions in order to predict future outcomes. But the law is written broadly, and could also apply to lawyers, legal academics, good government groups, and others who study the courts and judicial decisionmaking.

The new law is wildly disproportionate and draconian — five years in prison for simply analyzing publicly available documents? But the motivation behind it is more understandable than you might think. More after the jump.
Continue reading “Why did France just outlaw legal analytics?”

A fabulous look inside a “traveling court”

The Wall Street Journal has a terrific piece on the day-to-day workings of New York City’s Office of Administrative Trials and Hearings, a court that deals with nearly 1 million cases a year but remains virtually unknown. The court is charged mostly with adjudicating minor criminal offenses and regulatory violations, like errant recyclables and excessive noise. But the job is important: many people who do not address a summons promptly can later find themselves in civil court with much larger fines.

The court has taken an aggressively friendly approach to encourage the accused to show up and contest their case, advertising its existence at swimming pools and community events, and even offering tote bags. And it’s worth it to show up — almost 50% of those who do win their cases.

“We have one goal,” said Deputy Commissioner John Castelli. “To ensure people get due process.”

I absolutely love this. A taste of due process at this level ensures justice and vastly increases public appreciation for the courts and the legal system.

(Access to the story may require subscription.)

 

Louisiana raises judicial salaries

Louisiana legislators voted overwhelmingly last week to raise the salaries of state judges by 2.5% in the coming year. If funds permit, judges would continue to receive equivalent pay raises for each of the four years after that as well.

The source of the funding struck me as noteworthy:

The Louisiana Supreme Court agreed to cover the first year of pay raises for judges — at an estimated cost of $1.8 million — from its substantial cash reserves. It’s unclear whether judges will continue to tap reserves or turn to state taxpayers to cover future raises, which could cost as much as $9.5 million per year if all five annual pay hikes are awarded.

I thought that judicial salaries typically came from funds controlled by the legislature. It’s quite interesting that salaries are to be paid (at last initially) out of the state supreme court’s “substantial” independent funds.