When I was promoted to tenured full professor, the dean of my law school kindly had flowers sent to me at my home in Pacific Heights, an overpriced San Francisco neighborhood almost devoid of black residents. I opened the door to find a tall, young, African-American deliveryman who announced, “Delivery for Professor Magee.” I, a petite black woman, dressed for a simple Saturday spent in my own home, reached for the flowers saying, “I am Professor Magee.”
The deliveryman looked down at the order and back up at me. Apparently shaken from the hidden ground of his preconceptions, he looked at me again. Incredulous, he asked, “Are you sure?”
Let me be clear. I’ll never know what exactly it was that caused the deliveryman to conclude, on seeing me, that I must not actually be the person to whom the flowers were to be delivered. I am not privy to what was going on inside his head. But it seems inescapable that his confusion had something to do with features of my social identity that had, for him, been coded instantly, if not unconsciously, as inconsistent with the identity of “professor” and “resident” of a home in an upscale neighborhood.
Whatever Justice Kennedy decides on the question of whether states can ban same-sex marriage, the name Obergefell will mark this landmark moment in constitutional history. That’s fitting because the remarkable story of undying love between James Obergefell and his late husband, John Arthur, is truly what the battle for marriage equality is about.
The Obergefell story is about two men determined to marry before one of them succumbed to the ruthless disease that was taking his life. It’s a story about a medical plane transporting two men to a wedding on a tarmac in a state that would recognize their same-sex marriage. It’s a story about the pain of the indignity suffered when their home state refused to recognize their love and their marriage on that ultimate of legal documents, the death certificate. It’s a story about seeking “that same ennoblement” bestowed on heterosexual couples.
It’s also a story all-too-familiar within my own family. My sister Suzanne Nice and her partner, Maureen Martin, devoted themselves to the life they built together and sustained for over thirty years. Through the beauty of their quiet harmony, they provided an inspiring model of loving commitment to all of us in their circle of family and friends. Maureen died early in 2014, just months before Illinois began recognizing same-sex marriage.
People have known for years that the Bush administration chose the detention center at Guantanamo Bay, Cuba in 2001 because it was not on American territory. American officials believed, based on a WWII Supreme Court decision, that detainees held offshore would not have the constitutional right to challenge their detentions by filing habeas corpus petitions in federal court.
However, the process that led to the selection of Guantanamo Bay to house detainees has not been publicly known. The Witness to Guantanamo project recently learned of the process through its interview of Pierre Prosper, Ambassador at Large for War Crimes Issues. Prosper served during the early years of the Bush Administration.
Most Americans pay scant attention to Guantanamo. In fact, many Americans believe it is closed or only houses convicted terrorists. However, Guantanamo is still open, holding 122 men, 55 of whom have been cleared for release.
As little as Americans know about Guantanamo, they know even less about the lives of detainees after they have been transferred out of Guantanamo. The more fortunate detainees are resettled to their home country, where they can reunite with and be supported by their families.
However, a number of the detainees cannot return home because of the instability of their home country, their home country does not want them, or they may be tortured or executed on their return. These men must wait for other nations to accept them. Initially, nations wanted to help President Obama close Guantanamo and agreed to accept prisoners. However, as confidence in Obama’s initial pledge to close the detention center has waned, fewer nations are willing to reach out and receive former detainees.
January 11 is the 13th anniversary of the opening of the detention center at Guantanamo Bay, Cuba. Nearly six years have passed since President Obama announced on his second day in office that he would shutter the detention center within one year. 127 detainees still remain at Guantanamo, 59 have been cleared for release, many for years. Over these 13 years, Guantanamo has been a black stain on America, a stain that Obama himself has acknowledged. Because of Guantanamo, people around the world have come to question the United States’ position as world leader in human rights and the rule of law.
The eleventh day of the eleventh month has been, for over a century, a symbolic time to recognize the contributions to America made by the men and women of the Armed Forces, our veterans.
Within the School of Law, we have at least 17 current students who have already served in the military and are now devoting their future careers to law. While the role of lawyers as leaders will come naturally to them, we have an important responsibility to veterans, not just on Veterans Day, but throughout the year.
Our World Champions are not the only stars in town. This month, our School of Law has achieved many important victories and milestones. Through the excellence and efforts of our students, staff, faculty, and alumni, we are—in Bumgardnerian fashion—striking out injustice.
Here are ten of our Notable Achievements:
The Supreme Court faced the specific question in Riley v. California as a matter of first impression—can police search a cell phone’s contents under the “incident to arrest” exception to the warrant requirement? But several courts have recently established a privacy-protective trend when they addressed the broader question—when does new technology render pre-digital precedents inapposite? The Supreme Court’s decision fits the trend in two key ways. First, the Court refused to credit the government’s explanation of the technological challenges it faced, and, instead, relied on its own sophisticated understanding. Second, the Court recognized the need to evaluate how new technology presents new answers to the inquiries behind the precedents. Like recent federal appellate cases, and unlike the Court’s decision in United States v. Jones, however, the Riley decision announced a bright line warrant requirement for searches of cell phones that recognized that more nuanced rules would grant law enforcement agents excessive discretion.
In Utility Air Regulatory Group v. EPA, seven members of the Supreme Court upheld the most important feature of the EPA’s Prevention of Significant Deterioration (PSD) program: the ability to require the vast majority of new and modified sources to install the “Best Available Control Technology” for reducing greenhouse gases (GHGs). As a consequence, eighty-three percent of significant new and modified sources will continue to be subject to the BACT requirement for their GHG emissions. Although the Court reversed, by a five-to-four vote, EPA’s contention that greenhouse gas emissions alone could trigger the PSD program, that reversal will have little impact because it will eliminate PSD requirements for only about three percent of significant stationary GHG sources. Justice Scalia’s majority opinion had some choice words for EPA, but it remains to be seen whether those words spell trouble for newly emerging climate regulations.
Power plants are not only one of the nation’s largest sources of greenhouse gases, they are also a significant source of sulfur dioxide, nitrogen oxides, particulates, and mercury, all of which have direct public health and welfare consequences. EPA’s recently proposed Clean Power Plan, which applies Clean Air Act § 111(d) to reduce greenhouse gases (GHGs) from the nation’s fleet of fossil-fuel power plants, will have important implications for these ubiquitous co-pollutants. Although the primary goal of the Clean Power Plan is to reduce GHGs, ancillary co-pollutant benefits are an important consideration in evaluating alternative mechanisms for controlling GHGs.