We Dissent

We Dissent: Talking Back to the Rehnquist Court, Eight Cases That Subverted Civil Liberties and Civil Rights

Edited by Michael Avery
Copyright Date: 2009
Published by: NYU Press
Pages: 245
https://www.jstor.org/stable/j.ctt9qg2hx
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  • Book Info
    We Dissent
    Book Description:

    The lawyers and legal commentators who contribute to We Dissent unanimously agree that during Chief Justice William Rehnquist's nineteen-year tenure, the Supreme Court failed to adequately protect civil liberties and civil rights. This is evident in majority opinions written for numerous cases heard by the Rehnquist Court, and eight of those cases are re-examined here, with contributors offering dissents to the Court's decisions. The Supreme Court opinions criticized in We Dissent suggest that the Rehnquist Court placed the interests of government above the people, and as the dissents in this book demonstrate, the Court strayed far from our constitutional ideals when it abandoned its commitment to the protection of the individual rights of Americans.Each chapter focuses on a different case - ranging from torture to search and seizure, and from racial profiling to the freedom of political expression - with contributors summarizing the case and the decision, and then offering their own dissent to the majority opinion. For some cases featured in the book, the Court's majority decisions were unanimous, so readers can see here for the first time what a dissent might have looked like. In other cases, contributors offer alternative dissents to the minority opinion, thereby widening the scope of opposition to key civil liberties decision made by the Rehnquist Court.Taken together, the dissents in this unique book address the pressing issue of Constitutional protection of individual freedom, and present a vision of constitutional law in the United States that differs considerably from the recent jurisprudence of the United States Supreme Court.Contributors: Michael Avery, Erwin Chemerinsky,Marjorie Cohn, Tracey Maclin, Eva Paterson, Jamin Raskin, David Rudovsky, Susan Kiyomi Serrano, and Abbe Smith.

    eISBN: 978-0-8147-0778-4
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Introduction
    (pp. 1-12)
    Michael Avery

    WE DISSENTPRESENTS a vision of constitutional law in the United States that differs considerably from the recent jurisprudence of the United States Supreme Court. It is a vision that takes seriously a commitment to democratic values, social justice, and racial equality and that insists upon governmental accountability to our citizens and others protected by the Constitution.We Dissentwas provoked by the distance the Supreme Court traveled from these ideals during the tenure of Chief Justice William H. Rehnquist.

    The book contains critical essays regarding eight decisions that concern constitutional rights and civil liberties rendered by the Supreme Court...

  4. 1 Alden v. Maine: Sovereign Immunity—A Vestige of Monarchy Inconsistent with Democratic Values
    (pp. 13-31)
    Erwin Chemerinsky

    InAlden v. Mainein 1999,¹ the Supreme Court held that state governments possess sovereign immunity and cannot be sued in state court, even on federal claims, without their consent. Justice Anthony Kennedy wrote for the majority in a 5-4 decision, and his opinion was joined by Chief Justice Rehnquist and by Justices O’Connor, Scalia, and Thomas. Justice Souter wrote a dissent, which was joined by Justices Stevens, Ginsburg, and Breyer.

    The case involved probation officers in the State of Maine who claimed that they were owed overtime pay by the state under the federal Fair Labor Standards Act.² The...

  5. 2 Arkansas Educational Television Commission v. Forbes: Betraying Freedom of Political Expression and Undermining Democracy
    (pp. 32-53)
    Jamin Raskin

    InArkansas Educational Television Commission v. Forbes(1998),¹ the Supreme Court upheld the exclusion of an Independent congressional candidate from a televised debate organized by Arkansas’s taxpayer-funded public television network. By a vote of six to three, the majority reversed the Eighth Circuit Court of Appeals and affirmed the state’s power to sponsor the general election debate closed to all but the Democratic and Republican candidates. The Supreme Court rejected First Amendment arguments brought by the forsaken Independent, Ralph Forbes, a maverick conservative running for Congress in 1992 in the Third District.

    To resolve the case, the Court grappled with...

  6. 3 Cuyahoga Falls v. Buckeye: The Supreme Court’s “Intent Doctrine”—Undermining Viable Discrimination Claims and Remedies for People of Color
    (pp. 54-89)
    EVA PATERSON and SUSAN KIYOMI SERRANO

    In the United States, the law has been used both as a cudgel and as a shield for African Americans and other people of color. The Fourteenth Amendment was passed after the Civil War to help the descendants of kidnapped Africans whose humanity was finally recognized by the U.S. legal system. Lawyers and activists thought they had a real tool for eradicating barriers to full social and political equality. But that idealism was rewarded with backward rulings from the United States Supreme Court. One of the most egregious decisions wasPlessy v. Ferguson,²which enshrined the doctrine of “separate but...

  7. 4 United States v. Whren: The Fourth Amendment Problem with Pretextual Traffic Stops
    (pp. 90-130)
    Michael Avery

    As late as the mid-1970s, police had unfettered discretion to stop a motorist who was obeying all the traffic laws to determine whether the motorist had a valid driver’s license and vehicle registration. This practice was known as a “spot check” or random stop. Not surprisingly, such stops were often motivated by an officer’s suspicion or hunch that the driver or an occupant of the vehicle was involved with unrelated criminal conduct.² Indeed, some police departments instructed officers that “‘[s]pot checks’ shall generally be made in connection with some minor violationsor other suspicious circumstance.”³

    As a matter of and...

  8. 5 County of Sacramento v. Lewis: Protecting Life and Liberty Under the Constitution—Reckless Indifference to Life Does Not Shock the Conscience of the Supreme Court
    (pp. 131-151)
    Michael Avery

    InCounty of Sacramento v. Lewis,¹ the Supreme Court decided that an improper high-speed chase by police officers might violate the constitutional rights of a person injured during the chase. But, at the same time, the Court set the standard of proof in such cases so high that as a practical matter it could almost never be met. As a result, a roadblock was erected that precludes civil rights claims based on reckless high-speed chases.

    On May 22, 1990, 16-year-old Philip Lewis was killed when the motorcycle on which he was riding tipped over and the police car that had...

  9. 6 Chavez v. Martinez: The Court Fails to Hold That Police Interrogation by Means of Torture Is Unconstitutional
    (pp. 152-171)
    Marjorie Cohn

    InChavez v. Martinez,¹ the United States Supreme Court was confronted with the question of whether the coercive interrogation by a police sergeant of a critically wounded man, in a hospital emergency room, violated the Constitution.² Oliverio Martinez claimed that such questioning by Sergeant Ben Chavez violated his right to remain silent and to avoid selfincrimination under the Fifth Amendment and his right to due process of law under the Fourteenth Amendment. Despite the fact that Martinez was not given hisMiranda³ warnings before or during the questioning, and although he was screaming in pain while lapsing in and out...

  10. 7 Saucier v. Katz: Qualified Immunity as a Doctrine of Dilution of Constitutional Rights.
    (pp. 172-187)
    David Rudovsky

    Most Americans would likely agree with the basic constitutional principle, set forth by the first Chief Justice of the Supreme Court, John Marshall, that “The very essence of civil liberty certainly consists of in the right of every individual to claim the protection of the laws . . . [and] it is a general and indisputable rule that where there is a legal right, there is also a legal remedy.”¹ Yet, in many circumstances, there is no effective legal remedy for violations of basic constitutional rights by government officials. Over the past 50 years, we have seen a substantial expansion...

  11. 8 Strickland v. Washington: Gutting Gideon and Providing Cover for Incompetent Counsel
    (pp. 188-226)
    Abbe Smith

    The Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” Although the right to counsel in federal proceedings was well established early in the country’s history, there was no corresponding right in state courts until well into the twentieth century. Instead, most states relied on volunteer lawyers to represent criminal defendants who could not afford counsel.¹

    The right to counsel has been called “the most precious”² and “fundamental”³ of constitutional rights. This is because lawyers are often crucial to...

  12. Note to the Reader Regarding Legal Citations
    (pp. 227-228)
  13. About the Contributors
    (pp. 229-232)
  14. Index
    (pp. 233-237)