ABA JOURNAL HOLIDAY WEEKLY
Most important legal stories in 2013
Posted Dec 26, 2013 1:15 PM CST
By Victor Li
The cleanup round begins at the 7th comment. ~Via
Perhaps the best way to understand the biggest legal events in 2013 is to hit ABAJournal.com. Events from the past played a heavy influence on some of the year’s biggest legal stories. Civil rights groups recoiled in horror when the U.S. Supreme Court all but obliterated a seminal law in American history that bans voting discrimination. However, those groups also had reason to cheer, as the court also gutted a more recent law that had restricted the rights of homosexuals. Meanwhile, other battles from years past continued to dominate the headlines in 2013, including a new front to last year’s biggest legal story (the Affordable Care Act). It just goes to show that wars can continue long after the winners and losers fade into history.
1. Edward Snowden blows the lid off the National Security Agency’s surveillance program.
When the Guardian and Washington Post published in June information leaked to them by 30-year-old tech consultant Edward Snowden about the United States government’s massive electronic surveillance program, they shined an unwelcome spotlight on perhaps the most secretive agency in the federal government. Nicknamed “no such agency,” the National Security Agency has been eavesdropping on Americans and foreigners for several years. Its clandestine surveillance has included mining metadata from phone calls and emails, hacking tech companies, listening in on phone calls made by world leaders, and analyzing an individual’s Web browsing history. The outrage over Snowden’s disclosures have led to proposed bills in the House and Senate to reform or rein in the NSA’s program. Meanwhile, Snowden has fled the United States and currently has temporary asylum in Russia.
2. Gay marriage gains acceptance.
2013 turned out to be a banner year for gay marriage. In June, the U.S. Supreme Court ruled in United States v. Windsor that section three of the Defense of Marriage Act, which defined marriage for federal purposes as a union between a man and woman, was unconstitutional. While the court punted on the case of Hollingsworth v. Perry, which challenged California’s ban on same-sex marriages (the case featured the odd-couple alliance between two super litigators: liberal David Boies of Boies, Schiller & Flexner and conservative Ted Olson of Gibson, Dunn & Crutcher), several states have passed laws approving or legalizing gay marriages. Last week, New Mexico became the 17th state (including the District of Columbia) to do so.
3. Affordable Care Act under fire—again.
Last year, the Affordable Care Act survived a constitutional challenge when the Supreme Court upheld the individual mandate that makes up the crux of the law. Despite that, critics of the Affordable Care Act continued to look for ways to weaken or even get rid of the law in 2013. In October, the attempt by the U.S. House of Representatives’ Republican majority to defund the Affordable Care Act was at the heart of the budget impasse that forced this year’s 16-day governmental shutdown. That attempt fizzled, and Republicans ultimately agreed to reopen the government with almost no concessions from the president. However, President Barack Obama then spent the rest of 2013 making those Republicans look good as the law’s rollout went about as smoothly as the Titanic’s maiden voyage. The website’s numerous bugs took months to fix, and Obama himself had to delay or change several aspects of the law, including putting off the employer mandate and giving hardship exemptions to people who lost their previous plans. Meanwhile, the lawsuits will continue in 2014 as groups have filed several new challenges to the law. Additionally, the Supreme Court will revisit the Affordable Care Act as the justices agreed to hear a challenge to the contraception mandate in the 2013-2014 term.
4. Supreme Court guts Voting Rights Act. One of the seminal laws in American history is on life support after the Supreme Court in June tossed out a section of the Voting Rights Act that requires most of the South to have the Justice Department approve any changes in voting practices or districts. The court, which struck the provision in a 5-4 vote, found that the DOJ could continue to preclear districts—however, the court ruled that the formula used to determine which districts needed oversight was antiquated and outmoded. Chief Justice John Roberts wrote that “things have changed dramatically” from the days when black Americans in the South were routinely denied the right to vote. The law continued to punish the South “based on decades-old data and eradicated practices,” Roberts wrote. Several states immediately jumped on the court’s decision and started making changes to their voting practices. The DOJ filed suit against Texas over its strict voter ID law, while civil rights groups took on a similar law in North Carolina.
5. Great year for gun rights. The gun rights lobby couldn’t have asked for a better 2013. After the Newtown school shooting in December 2012, some kind of legislation increasing regulation of firearms seemed like a certainty. At the very least, more extensive background checks looked like a lock, while there was even the possibility that the National Rifle Association’s nightmare scenario—the reinstitution of the federal assault weapons ban that expired in 2004—could come true. As 2013 closed, none of that happened. A modest bill to require background checks for all gun sales was killed by the U.S. Senate in April.
Meanwhile, George Zimmerman captured the nation’s attention when he was acquitted in July of murder in the shooting of Trayvon Martin. Zimmerman hasn’t been keeping a low profile since his acquittal. In November, he was arrested for threatening his girlfriend with a shotgun. Authorities ultimately decided not to press charges after his girlfriend recanted much of her story in December.
6. Law school enrollment decreases. According to figures released by the ABA Section of Legal Education and Admissions to the Bar in December, law school enrollment is down 11 percent compared to 2012 and 24 percent from 2010. In terms of raw numbers, in 2013 there was a drop of 4,806 students from the fall of 2012, when 44,481 students enrolled at ABA-accredited law schools and an even larger decrease of 12,813 students from 2010. 2013 marked the lowest total enrollment at ABA-accredited schools since 1975. Kyle McEntee, executive director of Law School Transparency, said there was good news and bad news in the massive decline in enrollments. On the plus side, McEntee says the figures suggest that enrollments are coming closer to matching the Bureau of Labor Statistics job projections for the legal sector. Unfortunately, he also says that enrollment figures are still 20 to 25 percent higher than they should be.
7. Democrats get rid of filibuster for judicial nominees.
Harry Reid finally got fed up with constant Republican filibusters of President Obama’s judicial nominees. So he and Senate Democrats decided to do something about it. Democrats pushed through a rare mid-session rule change that eliminated filibusters for judicial appointments in order to force up-and-down votes for three of the president’s stalled nominees to the U.S. Court of Appeals for the District of Columbia Circuit. The move could have wide-ranging repercussions in 2014. Control of the Senate is at stake in the midterm elections, and Justice Ruth Bader Ginsburg has come under pressure to retire while Obama is still president.
8. Fiftieth anniversary of Gideon v. Wainwright prompts re-evaluation of public defender offices.
Gideon v. Wainwright, the Supreme Court case that guaranteed that all defendants had the right to counsel, celebrated its 50th anniversary in 2013. Despite that guarantee, many defendants continue to lack effective counsel because public defender offices are overworked and underfunded. Several courts have weighed in, allowing public defender offices to decline cases, including the Florida Supreme Court in May. Meanwhile, a federal district judge in Washington state found that two cities systematically violated the rights of indigent individuals by slashing the budgets of their public defenders’ offices.
Constitutional Law, Criminal Justice, Public Defenders, Election Law, Family Law, Health Law, Judiciary, Law Schools, Legal History, Legislation & Lobbying, Privacy Law
Dec 26, 2013 2:24 PM CST
Although I won’t quibble with the list of the “Most important legal stories in 2013” could easily be retitled the “Most important POLITICAL stories in 2013.”
For some of these stories, the ‘legal’ component is inconsequential (bordering on nonexistent) when compared with the ‘political’ component. (Items 5 and 7 jump out at me in that regard.)
Dec 27, 2013 8:31 AM CST
I agree with Yankee. Particularly 7 exhibits a political bias by a professional organization which has no business doing so. Some decades ago, the ABA took a position on abortion developed by some small committee. I dont recall the position (probably in favor) but I thought it was inappropriate and quit the ABA. This 7 comment comes periously close to the same result.
Dec 27, 2013 9:42 AM CST
I agree, these are stories of political, not legal, significance.
This list would be most improved by the addition of the Google copyright decision.
Dec 27, 2013 1:46 PM CST
@1 and 2- is your conservative persecution complex really so severe that you think number 7 is a political opinion? The story is vitally important to our profession, as I live in a district that could easily use 4 or 5 more federal judges to deal with the backlog, and many other districts are short at least one judge. But more importantly, what was an opinion there?
Also, you do realize that most bar associations have a lobbying wing, correct?
Dec 27, 2013 2:48 PM CST
@4 Let me come at this from another direction.
Except for Items 6 and 8, the stories listed above are fodder for your typical radio and television opinion show, where the political/social component, overshadows the legal dimension of the story.
As I mentioned @1, Items 5 and 7, are primarily legislative issues, working their way through the rough-and-tumble of the legislative process, with opposing positions taken by conservatives and leftists.
Regarding Item 5, although the public was no doubt fascinated with the travails of the tragic George Zimmerman and the equally tragic Trayvon Martin, no significant new legal development arose from that case. What played out in public was a morality play, with the principal themes being the existence (or not) of so-called ‘white privilege’ and the menace posed by fatherless youth.
Other items, although having a legal component, are described using the language of politics or popular culture. For example, although the Supreme Court’s holding in the DOMA is surely significant, the issue at Item 2 is described using the language of sociology: “Gay marriage gains acceptance.” I recall that the holding in U.S. v. Windsor was purportedly based upon 14th Amendment considerations, and not whether or not the population was more accepting of two guys who wanted to marry.
Although Item 1 – – – “Edward Snowden blows the lid off the National Security Agency’s surveillance program” – – – is clearly the top legal story of the year, not once in the 129 word story is either the Fourth Amendment of the United States Constitution mentioned. Instead, the story focuses on the Snowden’s personal situation and activities underway in Congress. A review of the activities of the NSA no doubt will be working their way through the court system in the coming year, although you would not know that from the description above.
Dec 27, 2013 6:59 PM CST
Everyone, what you YOU choose as the most important legal story of the year (whether covered by the ABA or not)?
Dec 28, 2013 12:28 AM CST
It is disturbing in the extreme that people who are presumably trained in critical thinking claim that things they disagree with are political, but things that they agree with are not political. Every single thing that we do or say has political implications.
Everything is political. That begins with the most basic unit, the family unit, and spreads out from there.
Dec 28, 2013 7:30 AM CST
I have always found it odd that there are presumably educated people who believe that their is no space whatsoever between what is ‘personal’ and what is ‘political’, and for purposes of this board, what is ‘political’ and what is ‘legal.’
The feminist philosophy – – – ‘The personal is the political’ – – – always struck me as a profoundly sad and tragic way to organize one’s life.
Dec 28, 2013 3:00 PM CST
Yes, Yankee, it is sad when you are not at the top of the food chain. You must be at the top or you could see it too.
Dec 29, 2013 2:08 PM CST
I disagree with the “most important” judgment. Someday, when histories of the 21st century are compiled, a couple of these (most likely, 2 and 5) may be mentioned as historically significant, but the others will likely not even get a footnote.
Dec 30, 2013 9:51 AM CST
Yep. Unfortunately, the ABA has become the arm of the liberal left. Not that there is anything wrong with its liberal positions, in an absolute sense; everyone is entited to his, her, or its own opinion. However, when I initially joined the ABA, I wanted an organization that would work for the betterment of the profession, not advance an ideologically political agenda.
I, too, have cancelled my membership.
Dec 30, 2013 1:46 PM CST
#5 is a top legal story for the years in which DC v. Heller and especially McDonald v. Chicago were decided; 2013, not so much. We are simply dealing with the effects of the past.
@6 William Able – The expansion of gay marriage at an ever increasing rate is to me the most important (and interesting, though increasingly less so as its continued expansion appears to be inevitable under current Equal Protection and Due Process jurisprudence) legal story of the year.
The NSA story is probably tied, or a near second. It highlights in a very accessible manner the erosion of the Fourth Amendment, and will hopefully galvanize society to reclaim it. Not too optimistic on that last point.
What is your top story/stories?
Dec 30, 2013 2:53 PM CST
@Brian. Do you actually believe that your opinions are not political and that mine are? That’s truly mind-boggling. The ABA is so not the “liberal left.” If you want to know about a legal organization that is “left,” check out the National Lawyers Guild www.nlg.org. The ABA is actually center-right or right. Just because they do not support discrimination based on immutable characteristics does not mean that they are left or liberal. I am sure that you will take this opportunity to learn about the political spectrum. Go to www.politicalcompass.org and take the fun little quiz.
Dec 30, 2013 8:21 PM CST
@13 The ABA should not be anywhere on the political spectrum. Not Left. Not Right. Not Center-Right. Not Center Left.
That’s the problem . . .
Dec 30, 2013 10:48 PM CST
You CANNOT not be anywhere on the spectrum. It’s impossible. It’s not even a spectrum. It’s a grid.
To see what I mean go to http://www.politicalcompass.org and take the fun little quiz.
Dec 31, 2013 12:16 AM CST
@Brian. As a matter of fact, the NLG was formed as a reaction to the ABA’s policy of not admitting anyone to their organization unless they were white males, almost always Protestant. The ABA is a centrist organization based on the merit system now more than anything else, and it is NOT forward-looking except as how to induct people from other cultures into our legal community so that all parts of society feel underrepresented.
The College Republicans/Federalist Societies are a tool of the Reagan/Rove dirty-tricks wing of the Republican Party and are despicable. I used to be a Republican. The ABA used to rate judicial picks. I was OK with that. When Bush came in (who cares which one) they would not use ABA picks because they weren’t wing-nutty enough for them.
Speaking of which I think I would rather have Bush I instead of Obama right now.
I just want to howl with laughter when I hear right-wing religious people talk about how they are persecuted. Look around any town in the USA. Valuable prime properties for religious institutions are automatically set aside as part of the town plan. Because these are prime properties that need parking capacity, on corners or hillsides or suchlike, the foregone property taxes are substantial.
Dec 31, 2013 3:11 AM CST
@11, I agree the ABA is political rather than focused on the law or profession. The choice of stories and the slant given reveal this. But so does the lazy way they don’t bother to accurately explain legal issues in the stories and often confuse legalities and legally operative facts with abandon. The law is secondary to their purpose.
Dec 31, 2013 6:54 AM CST
@15 You opine: “You CANNOT not be anywhere on the spectrum.”
Yet, other trade associations manage to stay politically neutral, staking out political positions only when it supports the specific purpose for which the trade associations was created.
Dec 31, 2013 10:36 AM CST
Hello ;happy new year to all of you.
Dec 31, 2013 2:15 PM CST
@Yankee, You don’t really think that, do you? Trade associations exist in order to influence legislation in their favor. They hire very expensive lobbyists to effectuate this. There are 250 or so lobbyists for every congressman and senator. Those lobbyists are influencing political positions. Corporate political support to politicians creates political positions. Yes I know what you are going to say: unions have lobbyists and money too. They have about 1/10 or less of the money and power that corporations have. That percentage goes more in favor of business every day. Why? Because business makes money by quashing unions, so its all a happy circle for the businessmen.