US Supreme Court: replacement of swing voter Kennedy shifts balance for a generation
MICHAEL GOLDHABER, IBA US CORRESPONDENT
Justice Anthony Kennedy, who served on the United States Supreme Court for 30 years and was recognised as the centrist swing voter, retired in July. His replacement, Brett Kavanaugh, is expected to tip the balance of the Court for decades assuming he’s confirmed.
Both of President Donald Trump’s appointees to the Supreme Court to date – Kavanaugh and Neil Gorsuch – are conservative former Kennedy clerks.
Justice Kennedy stood down in June 2018
President Barack Obama selected the moderate liberal Merrick Garland to replace Antonin Scalia on the Supreme Court following his death in 2016. However, Gorsuch now sits in that seat, as the Senate did not follow traditional norms of confirmation.
The new majority will consist of the two justices appointed by President Trump; two, John Roberts and Samuel Alito, appointed by President George W Bush; and a fifth, Clarence Thomas, appointed by George H W Bush, whose approach is to uphold the original meaning of the US Constitution and who is generally viewed as the Court’s most conservative member. This backdrop is raising concerns about the future of the Court, particularly its balance.
For many years, Justice Kennedy formed the fragile fifth vote, ensuring a progressive outcome in numerous iconic cases. For example, he joined in preserving the right to abortion for women in Planned Parenthood v Casey (1992). He recognised gay and lesbian rights to marriage in Obergefell v Hodges (2015). He preserved some possibility of race-based affirmative action in Fisher v University of Texas (2016). In Massachusetts v Environmental Protection Agency (2007), he joined in reading the Clean Air Act to regulate greenhouse gases.
Justice Kennedy also joined the four conservative justices in some equally iconic rulings, which progressives blame for some of the major problems now facing America. For instance, in Citizens United v Federal Election Commission (2010), Justice Kennedy construed the First Amendment to lift any limits on corporate political influence. In District of Columbia v Heller (2008), he joined in reading the Second Amendment to enshrine a right to carry guns in the home. In June 2018, Justice Kennedy joined the four conservatives in opening the door wider to racial gerrymanders (Abbott v Perez).
One of the key concerns is that the Supreme Court will now overrule or roll back some of the more progressive rulings. Paul Smith, Vice President, Litigation and Strategy at the Campaign Legal Center in Washington, DC, has argued 21 cases before the Court and helped to pioneer its gay jurisprudence. He remains relatively optimistic. ‘The Supreme Court doesn’t move nearly as fast as some would like and others would fear,’ he says, citing Justice Elena Kagan.
On issues like abortion or gay rights, the Court is more likely to chip away incrementally at the edges. Smith predicts, for example, that the Court will not overturn the right to gay marriage.
Smith cites the late Justice William Brennan Jr, who when the Court’s liberal milestones were first threatened in the 1980s, encouraged plaintiffs to seek refuge in state courts and state law. Even if the Court repeals the federal constitutional right to an abortion embodied in Roe v Wade (1973), advocates will be able to fall back on a pitched battle state by state. Similarly with political gerrymandering, if federal litigation comes up short, activists can always focus their energies on the creation of redistricting commissions through state ballot measures.
It’s possible, too, that the Court will seek to avoid the appearance of partisanship in important cases. Chief Justice Roberts, who’s the closest thing the new Court will have to a swing vote, takes his role in protecting the Supreme Court’s reputation particularly seriously. Notably, he joined the Court’s four liberal justices to save Obamacare.
A commitment to institutional values might also incline the Court to take a stand limiting President Trump’s executive power in the appropriate situation. ‘The Chief Justice,’ says Smith, ‘is a person who knows the difference between the rule of law and the absence thereof.’
Both Kavanaugh and Gorsuch, however, tend to have a narrow vision of regulatory power, which could be highly relevant on issues like climate change.
Supreme Court advocate John Elwood of Vinson & Elkins served as Deputy Assistant Attorney General under President George W Bush. He believes Kavanaugh’s strict views on standing – those who can legitimately bring a case before the court – could make it harder for challengers to President Trump’s deregulatory policies to get a hearing.
Brett Kavanaugh, Kennedy's replacement
But, says Elwood, it may also prove difficult for the Trump administration to repeal President Obama’s rules unless the President’s agencies are careful to dot their ‘i’s’. ‘I think they’ll play it straight,’ Elwood says of the new justices, ‘and may even welcome the opportunity to play it straight.’
IBAHRI and International Legal Assistance Consortium assist Syrian legal community on human rights accountability
A project to enable the Syrian legal community to improve accountability for atrocity crimes and human rights violations has been developed by the IBA’s Human Rights Institute and the International Legal Assistance Consortium.
Two trainings for a group of Syrian lawyers took place in Sarajevo on 2–12 July on the application of United Nations human rights mechanisms and domestic justice avenues for international crimes and strategic litigation. It included discussions on how the country’s legal community can better coordinate its efforts related to accountability of atrocity crimes and human rights offences.
The project, funded by the Swedish International Development Cooperation Agency, was the first meeting involving Syrian lawyers working on the collection of evidence and accountability.
Following the training, the group developed two separate strategic plans for reporting human rights violations to the UN and to bring individuals responsible for atrocity crimes committed in the Syrian Arab Republic before European courts.
A follow-up meeting is scheduled to take place during the 39th Session of the Human Rights Council in Geneva.
Roundup of ICC Moot Court Competition 2018
Student lawyers from almost 50 countries took part in this year’s International Criminal Court (ICC) Moot Court Competition, simulating the ICC’s proceedings and learning about some of its procedures and legal issues.
The week-long event in May – organised by the ICC in partnership with the IBA and Leiden University – attracted 65 student teams.
Countries represented for the first time at the event included The Gambia, Jamaica, Japan and Tanzania. Outstanding law students from The Gambia and Tanzania were the first recipients of IBA scholarships enabling them to participate.
Mina Karabit, of the University of Ottawa in Canada, was the recipient of this year’s IBA Award for Best Oralist during the preliminary rounds of the event.
The Hague premiere of the documentary, Prosecuting Evil: The Extraordinary World of Ben Ferencz – the sole surviving prosecutor at the Nuremberg trials – was shown at the opening ceremony of the competition.
For more details on the Best Oralist Award winner, go to tinyurl.com/best-oralist-2018. A short documentary film charting the inspirational experiences of The Gambia team can be viewed at tinyurl.com/moot-2018-gambia
Persecution of lawyers and judiciary in Turkey and Poland highlighted at UN Human Rights Council Session
The IBAHRI addressed the challenges facing lawyers and judges in Turkey and Poland in a joint oral statement at the 38th Session of the United Nations Human Rights Council.
Delivered on behalf of five organisations on 25 June, the statement focused on the widespread human rights violations against legal practitioners in Turkey since the attempted coup in July 2016, with more than 1,500 lawyers arrested and 130 sentenced.
It also highlighted the State-led campaign of intimidation and harassment against the judiciary in Poland, led by the ruling Law and Justice party, where up to 40 per cent of judges are facing forced retirement.
The statement called on the governments of both countries to end the oppression.
Held alongside the UN Session, a side-event organised by the IBAHRI, the Law Society of England and Wales and the Bar Human Rights Committee further considered the situation in Turkey. A panel of speakers discussed their experiences and some of the obstacles faced by lawyers, as well as the response to Turkey’s derogations from its international and regional human rights obligations.
The IBAHRI also issued a separate call for authorities in Poland to put an end to the continued assault on the rule of law and respect democratic norms.
Call for Iran’s Supreme Leader to ensure lawyer independence
In an open letter to the Supreme Leader of Iran, the IBAHRI has called for the immediate release of prominent human rights lawyer Nasrin Sotoudeh, who was arrested in absentia and charged with ‘propoganda against the state’.
The letter to Ayatollah Ali Hosseini Khamenei also urges Iran to adhere to the international legal provisions guaranteeing the independence of the legal profession to which it is a party.
Sotoudeh has acted as a lawyer in several human rights cases, including unjust imprisonments. She has also represented several women arrested for peacefully protesting the compulsory hijab law, which requires all women to wear a head covering in public.
In her most recent advocacy, Sotoudeh spoke publicly against the Iranian judiciary for placing its own candidates on the board of the Iran Bar Association. She criticised the judiciary-approved list of lawyers, which excludes most lawyers from politically charged cases.
Reports indicate that Sotoudeh was arrested in absentia, with no information provided to her relating to the alleged offence or official charges. However, during interrogation, she was charged with the offences of ‘propaganda against the state’ and ‘assembly and collusion’.
Recent amendments to Article 48 of Iran’s Code of Criminal Procedure 2015 mandate that Sotoudeh select her defence lawyer from a shortlist of lawyers approved by the head of the judiciary.
The IBAHRI has urged that Sotoudeh be afforded the full protection of her due process rights, and for the legal profession to be able to work without fear of intimidation, harassment or interference.
IBAHRI extends anti-torture advocacy in Brazil
The IBA’s Human Rights Institute (IBAHRI) and the Anti-Torture Initiative (ATI) have reached a milestone in their anti-torture advocacy work in Brazil, completing training programmes in all five regions of the country.
Tailored courses and workshops over the past 18 months have focused on how practitioners can conduct effective legal and medical investigations into torture allegations, in line with the practical guidelines that make up the Istanbul Protocol. The reporting of torture findings to the judiciary and other investigative bodies was also covered.
According to the IBAHRI and ATI, the project – aimed at supporting Brazil’s commitment to eradicate torture – has increased the capacity of professionals in 23 of Brazil’s 27 states.
It’s received support from Juan Méndez, former United Nations Rapporteur on Torture, and Brazilian stakeholders including the National Preventative Mechanism – the independent body established to monitor conditions where people are deprived of their liberty.
The IBAHRI is also participating in an expert group to develop guidelines on non-coercive interviewing and procedural safeguards.
Most recently, in support of the International Day in Support of Victims of Torture on 26 June, the IBAHRI participated in two events in the northeastern city of Fortaleza, giving the opening lecture at the ‘1st Seminar on Preventing and Combating Torture’, held at the Ceará State Legislature, and speaking to legal professionals and judges on improving accountability processes.
The work in Brazil is part of a wider push by the IBAHRI and ATI in Latin America to uphold prompt and impartial investigations of torture, advocate for the independence of forensic services from law enforcement, and promote understanding and implementation of the Istanbul Protocol.
For more information, go to tinyurl.com/ibahri-brazil-2018
Bermuda government urged to back Supreme Court ruling on LGBTI rights
The government of Bermuda should back a ruling by the territory’s Supreme Court in favour of same-sex marriage and set an example to states across the Caribbean, says the IBAHRI.
In an open letter to the Premier of Bermuda, the IBAHRI welcomed the positive development made by the Bermuda Supreme Court with respect to the human rights of LGBTI citizens.
The Court ruled in May that legislation discriminating against sexual minorities over marriage was unlawfully discriminatory and unconstitutional. But, following the ruling, the legislature moved to reverse the Supreme Court’s decision, by exempting same-sex marriage from the Human Rights Act.
The IBAHRI has urged the Bermudan government to implement the ruling and remove similar discrimination from criminal and civil laws. This, it says, would ‘give leadership to countries of the Caribbean, which continue to discriminate against their citizens, contrary to universal human rights on the basis of sexual orientation and gender identity’.
It’s the latest push by the IBAHRI to support LGBTI rights. In April, the Institute welcomed the landmark ruling by a Trinidad and Tobago High Court judge that a law banning same-sex relationships was unconstitutional.
The IBAHRI has called on all Commonwealth states to work together to repeal colonial-era laws that ban same-sex relationships in 37 out of 53 Commonwealth countries.
Saudi Arabia: lifting of women’s driving ban raises hopes of more rights
EMAD MEKAY, IBA MIDDLE EAST CORRESPONDENT
On 24 June, Saudi Arabia lifted its long-standing driving ban for women, rekindling hopes of additional steps towards greater freedoms – particularly for women – in a country notorious for its radical interpretation of Islamic law and its alliance with orthodox forces.
The move is the latest in a series of measures by the country’s 32-year-old Crown Prince and de facto ruler, Mohammed bin Salman, to set economic and social changes in motion. In recent weeks, Saudi Arabia has opened cinemas and held music concerts and fashion shows. But it’s the lifting of the driving ban that appears to have energised the Saudi population.
Immediately, thousands of women applied for the driving licence, with many brandishing their new permits in front of cameras. Several Saudi women told local press they were elated to be able to run basic errands, such as driving their children to school. Male drivers received female drivers well, many honking in support during the first day.
Saudi commentators noted the considerable economic benefits: lifting the ban could add as much as $90bn to the Kingdom’s economic output by 2030.
International rights advocates also struck a positive note. ‘Although it’s the economic benefit that seems to have forced this decision, this can be termed as the first step towards liberation,’ says Charandeep Kaur, Co-Chair of the IBA Women Lawyers’ Interest Group. ‘It opens a door of hope for millions of women who’ve thus far been denied the basic right to live freely with dignity.
‘The ban on driving was one of the most significant barriers to women’s employment. This is being seen as the most visible social change that will have a positive impression on women’s participation in the workforce, which at present is at 22 per cent of the Saudi workforce.’
Philip Berkowitz, Co-Chair of the IBA Diversity and Equality Law Committee, says the decision could introduce more opportunities for women both in business and government.
Lifting the ban has raised hopes among the Saudi population of more rights to come
‘The country has made progress in recent years in recognising the right of women to vote and criminalising domestic violence against women. It’s in the Kingdom’s best interests to highlight its relative modernity and progressive culture,’ Berkowitz explains.
Previously, under an alliance of the ruling Saudi family with the ultra-conservative Wahhabi school of thought, Saudi women were banned from public driving. Followers of this interpretation of Islam maintain that Saudi women must keep a low profile in society.
Adherents of the Wahhabi doctrine have governed this part of the Islamic world for dozens of years. They still require women to always be accompanied by a man, so as soon as the news broke that the ban on women driving had been lifted, many Saudi female activists took to social media to call for the removal of male guardianship of women.
‘This must now be followed by reforms to end a whole range of discriminatory laws and practices,’ says Kaur, a partner at Delhi firm Trilegal. She points to neighbouring Dubai, with its liberal climate, as a Muslim model for Riyadh: ‘The biggest issue at the moment is the guardianship system. Saudi Arabia should look to follow the Dubai model – moving to being socially liberal, religiously tolerant, open to the world, friendly to business, efficiently run and governed by a predictable system of laws.’
The argument for better reforms rests in part on Saudi’s repeated public commitments to international laws and treaties. Riyadh has promised to take action to end discrimination against women but has been slow to follow through.
Kaur says the ‘international human rights community should do its part to encourage Saudi Arabia to meet these goals as soon as possible’. Berkowitz adds that ‘the positive impacts of the increasing role of women in international law and business should also be emphasised’.
Saudi activists have campaigned for this moment for years, but as the ban was being lifted, many of those who had publicly advocated for women's rights were arrested. At least 12 women are understood to be behind bars, accused of serious crimes. Saudi State-run media described some of those arrested as ‘traitors’. Their arrests signify that the next battle towards more rights for Saudi women is likely to be lengthy.
Berkowitz says the arrests could undermine Saudi’s recent moves towards liberalisation: ‘Repressing advocates of more progressive policies and laws sends exactly the wrong message, and will only hinder the Kingdom’s ability to build its potential as a positive contributor politically and economically.’