News & Commentary

I was in the middle of reciting Ya Seen, the 36th chapter of the Quran, when the executioner signaled to me that was enough. It was time to kill Orlando Hall. Across a strip of tape dividing us, Orlando received a shot of lethal injection before I could finish the verse’s final, essential line. “So glory be to Him in whose hand is the dominion of everything, and to Him you will be returned.” Orlando lost consciousness while reciting the Shahada, as I, his spiritual advisor, had instructed him. The execution of Orlando Hall on Nov. 19 was the first I had ever witnessed. As a business professor at Indiana University, I never thought I’d ever be in that position, nor did I expect to become a spiritual advisor to a man on death row. What struck me in the execution chamber was how surreal it felt. It almost looked like a hospital. Orlando lay on the gurney as if awaiting surgery, with tubes attached to his arm like an IV. A blanket lay over him, concealing the straps that held him down. The facade seemed deliberate. But unlike doctors in an operating room, the executioners — standing just four feet away from me — wore no masks. The Bureau of Prisons had posted signs throughout the facility advising COVID-19 safety measures such as wearing masks, washing hands, and keeping six feet apart. They had also suspended visitation since March in an effort to curb the spread of the virus. But executions, despite being potential super-spreader events, continue.

Over the past four years, the Trump administration has gone out of its way to launch attacks on women — including in housing, the workplace, and schools. When President-elect Biden and Vice President-elect Harris take office, their administration and Congress must make it a top priority to not just undo the damage, but to push forward an agenda that will ensure everyone has the freedom to live, work, learn, and serve free from discrimination based on sex. Here are just a few of the many items that should top the Biden administration’s to-do list:  Assure safe and stable housing for women and families. The COVID-19 pandemic has put as many as 40 million people in this country at risk of eviction. This is both a racial justice and gender justice issue: Black women face eviction at

The Trump administration’s quest to force abortion patients to needlessly risk COVID-19 exposure as a condition of obtaining care has entered its sixth month, and is as violently out of touch with reality as ever.   Following an October order from the Supreme Court, the U.S. District Court for the District of Maryland is considering new evidence in our lawsuit challenging a Food and Drug Administration (FDA) policy requiring patients who need a medication used for early abortion care to travel in person to a clinical setting for the sole purpose of picking up a pill and signing a form. That policy has been blocked under a court order we won in July — but Trump’s Department of Health and Human Services (HHS) has continued to fight us every step of the way.   Their latest argument: COVID-19 is no longer a serious risk, so the federal government should be free to force us to risk exposure as a condition of obtaining essential reproductive health care.   This could not be farther from the truth. On Oct. 30, the day the Trump administration filed their latest brief in the district court, nearly 100,000 people in the United States were diagnosed with COVID-19 — then a new global record — and nearly 1,000 people died from it. The United States broke its own record days later, and then again and again; yesterday, a staggering 196,000 new cases and 2,760 new deaths were reported in a single day. The nation’s top infectious disease experts warn that the country “could not possibly be positioned more poorly” for this winter and that we are entering the “most concerning and most deadly phase of this pandemic.”   Despite the Trump administration’s own experts at the CDC acknowledging that being Black or Hispanic is associated with dramatically higher risks of hospitalization and death from COVID-19, Trump’s lawyers argue that it is no big deal to force medication abortion patients — a President-elect Joe Biden takes office in January, he should not only direct the FDA to agree not to enforce the in-person requirement during the public health emergency (precluding the need for further litigation), but also instruct the FDA to undertake a comprehensive review of the full set of restrictions on mifepristone. This will ensure that beyond the pandemic, patients’ access to this safe, effective medication is based on the latest science and medical evidence. Medication abortion — like all abortion services — is essential health care, and we hope to never again see FDA restrictions weaponized for a political, anti-abortion agenda.

Customs and Border Protection (CBP) is at the heart of some of the greatest moral horrors of the last four years, personified in stories that we cannot forget: the children breathlessly crying for their parents after being separated at the border; the children sleeping in the dirt in open air cages and people trapped in cells so overcrowded that they pressed their palms against the windows in a desperate plea for help; and the little girl with her arm around her father’s neck, desperately holding on as they both drowned while attempting to cross the Rio Grande river. As President-elect Biden enters office, he faces a stark imperative: These abuses must never happen again. It will take bold action in a climate where border fear-mongering has too often excused cruelty and met abuse with impunity.  As President-elect Biden contemplates how to resource the Department of Homeland Security’s handling of the pandemic, it should focus on significantly cutting the budget of CBP. It is the largest federal law enforcement agency in the country and the largest law enforcement air force in the world, with a budget of more than $17.1 billion for both the Border Patrol and operations at ports of entry.Despite its already enormous size, in 2019 DHS claimed that 40 percent of CBP’s resources were being absorbed by an “unprecedented surge” in the number of families fleeing Central American countries, leaving the agency “[unable] to manage its other border security missions.” Simultaneously, it was illegally siphoning funds from other parts of the government to build Trump’s border wall. As the Trump administration’s fiscal ineptitude and cruelty has demonstrated, funding is not the issue when it comes to CBP. CBP simply must not have responsibilities that it’s proven incapable of handling.  CBP should have no role in detaining people beyond a brief period for processing — including asylum seeking parents and kids. In the past two years, at least seven children died in CBP custody or shortly after being released, many after receiving delayed medical care or being denied care altogether. At Border Patrol stations, kids have gone “days, sometimes weeks, in facilities without enough food or toothbrushes.” In Texas, Border Patrol agents reportedly “took away the children’s blankets and mats,” forcing them to sleep on the cement floor as “punishment.”  It’s not exclusively kids. Border Patrol stations don’t have bedding, showers, or staff trained to interact with or assist traumatized people. The ACLU and its partners have documented freezing temperatures and filthy cells where people are held virtually incommunicado for days. Border Patrol agents subject pregnant people to physical mistreatment, verbal abuse, and severe delays in medical care (if it is provided at all). In February 2020, a woman in Border Patrol custody was forced to give birth to her baby while standing up, holding on to the side of a trash can in a Border Patrol station near San Diego. Yet in 2019, CBP unlawfully spent emergency funds Congress allocated for the care of adults and children on dirt bikes and dog food — instead of medical care, food, and sanitary conditions. As the Biden transition team contemplates a new model for receiving asylum seekers, it should develop alternatives to detaining them. The incoming administration cannot forget what this recent history shows: CBP simply cannot be trusted with detention.    CBP should also be removed from the asylum process, where life or death is often at stake. CBP personnel confiscate crucial (often irreplaceable) personal documents from people seeking asylum and have lied on government forms. Implementing the Trump administration’s disastrous forced Return to Mexico policy, Border Patrol agents sent asylum seekers back to Mexico with fake future court dates, even writing “Facebook” in place of peoples’ actual addresses. The Trump administration replaced trained asylum officers with CBP agents to conduct credible fear interviews — a crucial step in the asylum process. That’s akin to having an arresting police officer also sit as the judge.   CBP should also never make decisions about how and when to separate families arriving at our border. Families belong together, and that presumption should never be challenged by a law enforcement agency that is notorious for human rights abuses.   We also need reforms that address CBP’s culture of impunity for abuse — including the death of people at the hands of CBP. Since January 2010, at least 117 people — including some U.S. citizens — have died following encounters with CBP. On May 23, 2018, 20-year-old Claudia Patricia Gómez González was shot in the head by a Border Patrol agent shortly after she crossed into the United States. CBP only admitted the facts of this killing after the release of a bystander video. Agents almost never face consequences for their actions and some deaths go unreported altogether. We need stronger standards to limit CBP’s use of deadly force. CBP officers should be required to keep their badges visible at all times and wear body cameras (with appropriate privacy protections in place). We need a complaint mechanism that’s accessible online, and a uniform process for review and investigation of abuses.  President-elect Biden has pledged to ensure that CBP personnel are held accountable for inhumane treatment. Accountability will require more than the appointment of new leadership. It will require a reckoning with and recalculation of CBP’s role. 

The federal government is secretly purchasing and using our cell phone location information to locate and track people in the United States, including for immigration enforcement. We’re suing to bring some much-needed transparency to these disturbing practices.   The GPS chips in modern smartphones provide us with many conveniences, allowing apps on our phones to quickly map our location, provide weather updates, and more. But many of those apps don’t keep our location information to themselves. Without users realizing it, apps regularly sell users’ location information to other companies who use it for marketing and other purposes.   In February, The Wall Street Journal reported that this sensitive location data isn’t just for sale to commercial entities, but is also being purchased by U.S. government agencies, including by U.S. Immigrations and Customs Enforcement to locate and arrest immigrants. The Journal identified one company, Venntel, that was selling access to a massive database to the U.S. Department of Homeland Security, U.S. Customs and Border Protection, and ICE. Subsequent reporting has identified other companies selling access to similar databases to DHS and other agencies, including the U.S. military.   These practices raise serious concerns that federal immigration authorities are evading Fourth Amendment protections for cell phone location information by paying for access instead of obtaining a warrant. There’s even more reason for alarm when those agencies evade requests for information — including from U.S. senators — about such practices. That’s why today we asked a federal court to intervene and order DHS, CBP, and ICE to release information about their purchase and use of precise cell phone location information. Transparency is the first step to accountability. We’re asking the agencies to turn over all records related to their purchase and use of cell phone location data, including contracts, policies and procedures for use, communications with companies, legal analyses, and more.   Among the questions we seek answers to is how the government can justify obtaining sensitive cell phone location data without getting a search warrant. In Carpenter v. United States, a case argued by the ACLU, the Supreme Court ruled that law enforcement agencies cannot request personal location information from a cellphone company without first obtaining a search warrant from a judge. As Chief Justice Roberts wrote, these records deserve protection because mapping a cellphone’s location “provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’”   If law enforcement agencies can buy their way around the Fourth Amendment’s warrant requirement, the landmark protection announced by the Supreme Court in Carpenter will be in peril. Despite federal agencies spending hundreds of thousands of dollars on access to cell phone location databases, those agencies have not publicly explained their legal justifications or internal limitations on access to this invasive information. More than nine months after we submitted a request for information under the Freedom of Information Act, DHS, CBP, and ICE have yet to provide us with a single responsive record. DHS has even refused to provide its legal memorandum about these practices to U.S. senators who have requested it.   The public deserves to know how the agencies are accessing bulk databases of Americans’ location data and why. Today’s lawsuit aims to find out.

Affirmative action recently survived yet another legal attack: Last month, the First Circuit Court of Appeals ruled in Harvard’s favor in a long-running case challenging affirmative action. The court rightly upheld a lower court finding that Harvard’s use of race as a factor in its admissions process is constitutional. The decision is a welcome affirmation that using race-conscious decision-making is both lawful and necessary in higher education. Consideration of all aspects of a student’s background for admission—including race—is not only constitutional; it’s critical to becoming a more equitable society. That’s why the ACLU filed a friend of the court brief (also known as an amicus brief) supporting Harvard’s ability to consider race when deciding which of its 35,000 applicants will fill the 1,600 seats in its incoming class each year. But the fight for affirmative action and other race-conscious policies—policies that explicitly address systemic racial barriers—is not over. The Harvard affirmative action case is the latest legal challenge engineered by conservative legal strategist Edward Blum, who has been suing to bring an end to race-conscious policies, including affirmative action, for more than 25 years. Opponents of race-conscious decision-making, like Blum, misleadingly characterize such policies as discriminatory simply because they acknowledge the reality of race. But in fact, race-conscious policies aim to address racial discrimination by recognizing and responding to the structural barriers that have long denied full social, political and economic participation to people of color in the U.S. Blum opposes race-conscious policies in part because he believes that these barriers no longer exist. “In 1964 and 1965,” Blum has stated, “America was held hostage by the legacies of slavery and the chokehold of Jim Crow. Fast forward to [today] … the chokehold has gone away.” This view is misguided at best. Affirmative action opponents often favor so-called race-neutral admissions policies, which do not explicitly consider race. But in the face of persistent structural inequality, such policies are anything but “neutral.” Research shows that schools that rely on race-neutral policies are less diverse and less accessible to historically underrepresented students of color. Campuses that have implemented race-neutral admissions policies in recent years have seen dramatic declines in enrollment numbers among underrepresented groups. For example, in the first year UC Berkeley eliminated race as a factor in its admissions, the admissions rate for Black students dropped from 50 percent to 20 percent and from 45 percent to 21 percent for Latinx students. For its part, although the Supreme Court has consistently ruled it is legal to use race as a factor in a holistic application process, it has long viewed race-conscious policies with suspicion. Since its 1978 decision in Regents of the University of California v. Bakke, the court has failed to meaningfully distinguish race-based policies, which seek to dismantle racial hierarchy, from those that aim to perpetuate it. While the court continues to permit affirmative action policies in higher education, it has done so with increasing hesitance and an ever-growing preference for race-neutral alternatives. And importantly, the court is not the only place where skepticism of race-conscious policies exists: Voters in California recently rejected a ballot measure that would have restored the state’s affirmative action policy, suggesting broad public unease with race-conscious decision-making. But the view of race consciousness as racial discrimination is deeply flawed. As the late Justice John Paul Stevens once asserted: “There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination.” This latest case against Harvard demonstrates that color-blindness cannot uproot this country’s legacy of racism. We must face race head-on to meaningfully address the racial inequality that persists in our society. Note: This story originally appeared on MsMagazine.com.

Last year I met with a woman while she was jailed in an immigration detention site near Miami, Florida. She told me about her 5-month-old baby, whom she hadn’t seen in three months. She said that her husband, a U.S. citizen, had been driving her to Walmart when local police questioned them during a random traffic stop. She was not accused of a crime, and she was in the process of petitioning for residency based on her marriage to a citizen. Despite this, police took her to a local jail and detained her for Immigration and Customs Enforcement (ICE) — even though it was unlawful to do so.  When local police act as ICE’s force multipliers, an ordinary police encounter like the one above can ruin a person’s life and tear a family apart. That is why millions of people across the country live in fear of encountering police or other law enforcement as they go about their daily lives. Immigrants, their family members, and their friends are all less likely to come forward as witnesses, provide crime tips, or seek police protection for fear of immigration enforcement. That means everyone is less safe. The Biden administration must dismantle the federal programs that are to blame. By doing so, the Biden administration will signal to cities and counties across the country that they are right to redirect local resources to pressing needs — like the pandemic — and away from local police taking on federal immigrant enforcement.  One such federal program utilizes 287(g) agreements, which delegate federal immigration enforcement authority to state and local police. Being in the routine business of immigration enforcement incentivizes local police to make pretextual arrests — with the actual goal of identifying immigrants to detain for ICE. It emboldens racist and xenophobic law enforcement officers across the country to use immigration enforcement as a means of threatening and harassing people in immigrant communities. These abuses are one reason why communities — including in Georgia and South Carolina — have elected sheriffs who pledged to end their localities’ 287(g) agreements. The Trump administration drastically increased the number of

Immigrations and Customs Enforcement (ICE — pronounced “ice,” like a cube) detention is civil detention. It is not intended to be punishment for a criminal conviction, though conditions are often as bad or worse than those you’d find in prison. It may be shocking to learn that the U.S. government detains tens of thousands of people each day in immigrant detention.   ICE detention exists to ensure people who are currently going through immigration proceedings in the U.S. attend their court dates. An immigration judge can also determine a person’s release presents a “danger to the community” (a subjective determination that isn’t necessarily accurate or fair). ICE detention also serves to effectuate deportation orders for people who are out of legal options to stay in this country. Generally, people in ICE detention are in limbo, waiting to learn whether they can legally remain in the country, or whether they will be deported. Why should we be concerned about immigration det

This piece originally ran in The New York Review of Books. President Trump is on his way out the door, even if he goes kicking and screaming. The Biden-Harris administration will have its hands full picking up the pieces. Trump has left the federal government a kind of environmental disaster area, desperately in need of a massive cleanup. No president in US history has done more to degrade the presidency, constitutional norms, or American politics. The good news is that Trump did most of his damage unilaterally, through executive action, and therefore Biden can unilaterally reverse those actions.  On one matter, however, changing course will be far more challenging. With the support of Senate Majority Leader Mitch McConnell and the Federalist Society, Trump has appointed more than three hundred new federal judges. He has named fully 30 percent of federal court of appeals judges, and three Supreme Court justices: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. They all serve for life. And unless Democrats win both runoff Senate races in Georgia, Biden will require the assent of a Republican-controlled Senate to appoint any new judges or justices. What does this landscape mean for the future of the federal courts, and the Supreme Court in particular?  To find a Supreme Court as conservative as today’s, you have to go back to the Progressive Era and the early days of the New Deal, when practically the only constitutional rights the Supreme Court recognized were the rights of big business owners to be free of regulation designed to protect consumers and workers. Today’s court has six Republican appointees and only three Democratic ones, and the Republican appointees all came with burnished conservative credentials. Trump’s last-minute appointment of Justice Barrett saw a civil rights hero, Ruth Bader Ginsburg, replaced by a deeply Catholic abortion opponent and acolyte of the late Justice Antonin Scalia. Justice Kavanaugh has thus far shown himself to be more conservative than Anthony Kennedy, whose seat he has assumed. And Justice Gorsuch, while less predictable, has many very conservative views, including a fundamental distrust of the administrative state.  So, what is a civil libertarian to do? When preelection opinion polls appeared to promise that Democrats could win not only the presidency but also the Senate, some talked of “court reform.” The reformers argued that the Republicans had effectively “packed” the Supreme Court through a series of technically legal but unprecedented maneuvers, from the refusal to give Merrick Garland a hearing almost a year out from one general election to the ramming through of Justice Barrett’s confirmation just days before another. But absent Democratic control of the Senate, court reform is illusory. And even if reform had been possible, it risks further politicizing the court, and that, in turn, would carry its own substantial costs. Constitutional rights and civil liberties, by definition, protect those who cannot protect themselves through the political process: members of minority groups, dissidents, the vulnerable and powerless. Their protection requires an institution that does not answer directly to the democratic polity. Indeed, that’s the best argument for life tenure, as a guarantee of independence. If the court becomes just another political arena, constitutional rights will cease to function as a check on majority power.  We are stuck, therefore, with the hand that has been dealt us. What then? When one considers how many important cases have been decided in the last couple decades by 5–4 votes, with Justice Ginsburg in the majority, it is easy to despair. The right to marriage equality, and recent decisions upholding the right to abortion, were decided by a single vote. Privacy rights to cell phone location data, Guantánamo detainees’ access to court, and juveniles’ right not to be executed similarly were all decided by a single vote. So, too, was the court’s recent protection of Deferred Action for Childhood Arrivals (DACA) recipients, and its invalidation of Trump’s attempt to skew the 2020 census by asking about citizenship. The Affordable Care Act survived its first and most significant challenge by a single vote as well. (As ACLU National Legal Director, I was counsel in the census and cellphone privacy cases, and filed an amicus brief in the DACA case.) If the liberal side in these cases had had to attract not just one conservative vote, but two, we might have lost them all. But there is reason not to give up hope. A conservative-dominated Supreme Court is actually nothing new. The bench has been comprised of a majority of conservative and Republican appointees ever since 1971. Yet, in that time span, the court has ruled that discrimination on the basis of sex violates equal protection, recognized the right to abortion, and rebuffed a concerted effort by the Reagan administration to overturn that right. It invalidated laws making same-sex sexual relations a crime and recognized marriage equality. It expanded the jury trial rights of criminal defendants and the First Amendment rights of anonymous pamphleteers, flag-burners, proponents of unpopular and even hateful views, and Internet users. It limited the application of the death penalty, upheld affirmative action, and ruled that ostensibly neutral housing practices that have a disparate effect on racial minorities violate federal law. And most recently, the court ruled that laws that prohibit discrimination “because of sex” also prohibit discrimination on the basis of transgender status or sexual orientation (I was counsel in this last case as well).  Last term alone, the court reached “liberal” results in virtually all of its most controversial cases — including abortion, LGBT rights, DACA, and Trump’s claim that he could not be required to turn over private financial records to a grand jury or congressional committees. Whatever else one might say, the court has not been the unremittingly conservative body that some predicted and many feared.    Why would a conservative court have reached all of these liberal decisions? One reason is that constitutional cases are decided by the application of precedent, so justices are not free to vote their party line, as are members of Congress. The law is not, of course, divorced from politics, but it is different from politics in this sense. Precedents do not dictate results, but they provide more direction and constraint than cynics are generally inclined to acknowledge. One reason the conservative court has reached liberal results is because that was actually the best reading of the law. Second, the court’s legitimacy rests on its remaining open to argument. If the court decided every controversial issue on partisan ideological lines, it would lose its ability to resolve disputes in a way that people by and large accept. Consider, for example, Trump’s current attack on the results of the presidential election. The federal courts are hearing — and rejecting — those claims, and are virtually certain to reject Trump’s effort to reverse the election’s outcome. Once that happens, at least some people will be more likely to accept the results of the election than if we did not have an institution removed from politics to decide the dispute. But the courts’ ability to play that part requires that they are perceived as open to both sides, and guided by law, not pure politics.  Third, the court’s standing with the public also depends on its not diverging too far from where the country is on matters of constitutional principle. Political scientists who have studied the court over time have found that, while it may not literally “follow the election returns,” its decisions generally reflect contemporary public values. A conservative-majority court reached all the liberal outcomes listed above in part because public opinion, over time, increasingly recognized the equality claims of women and LGBT persons, questioned the death penalty, supported affirmative action, and the like.   A caveat is important here. The forces outlined above tend to operate in those cases in which the court knows that it is being watched. But every year, the Supreme Court decides many significant cases that draw relatively little attention — and in those cases, the conservative justices tend to vote much more consistently along conservative lines. Thus, in important cases pitting employees’ or consumers’ rights against businesses, the court has rarely ruled against business. Because the results in these cases are often below the radar, the conservatives may feel less incentive to restrain their ideological biases. Republicans have long lamented the tendency of their appointees to move to the center once appointed to the court. This was arguably true of Justices Harry Blackmun, David Souter, John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy, and appears to be true of John Roberts. But if I am right that the court’s reputation turns on its being perceived as fair — as deciding cases based on principle rather than political ideology, as open to argument, and as in tune with the nation’s evolving fundamental values — there will be incentives on any conservative-majority court for one or more justices on the right side of the court to move left, at least in some significant cases. On a liberal-majority court, by the same token, the incentive would be for one or more of the liberals to move right. (Because the Supreme Court has so rarely been dominated by liberals, we don’t have as much evidence for that transformation, but there are certainly examples of Democratic appointees who voted more conservatively than expected once appointed, including Felix Frankfurter and Byron White.) All of this suggests that it is too early for civil libertarians to give up on the Supreme Court. But it also underscores that the battle for civil liberties must be waged not only, or even mostly, before the court. The Supreme Court did not deliver us equal protection for women or marriage equality. The feminist and LGBT movements did that, through painstaking political and legal work in a variety of forums, including corporate boardrooms, university faculties, city councils, state courts and legislatures, governors’ and mayors’ offices, dinner-table conversations, Congress, and the executive branch. The court then recognized the advances that had been won outside its four walls.  There are some areas of legal dispute in which one simply has no choice but to sue in federal court, so one cannot give up on the judiciary even when it is dominated by conservatives. When a red state passes a law banning abortion, the very politics that made the state law possible are likely to infect the state’s courts — in particular, as most state court judges have to run for election. When the Department of Homeland Security targets immigrants for enforcement actions that deny due process, the only recourse is federal, and neither the president nor Congress have shown much sympathy for immigrants. Criminal defendants often lose through every phase of the state criminal process, only to prevail when, after completing the state appeals process, they are allowed to seek relief from a federal court through a claim of habeas corpus. One of the surest ways for a state judge to lose his seat is to vindicate a criminal defendant’s constitutional rights; federal courts, with their judges’ life tenure, have proved more receptive.  So the work of civil libertarians will continue apace, inside and outside the federal courts. We may increasingly turn to more sympathetic forums to make initial inroads, as advocates for marriage equality so effectively did. But in the end, if the country supports civil liberties and civil rights, the Supreme Court is unlikely to get in the way. This means all of us can and must do our part to defend liberty. As one of the United States’ greatest judges, Learned Hand, said: