Lectures

The legal community has long recognized that indigent citizens often lack access to the judicial system. Pro bono programs and legal aid organizations have attempted to address this issue. In the Nineteenth Annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, Wallace B. Jefferson, former Chief Justice of the Supreme Court of Texas, argues that there are barriers to justice not only for the indigent but also for middle-class Americans. He explores how our most valuable rights are often the least protected. Tenants subject to eviction rarely have counsel, veterans wait years to receive earned benefits, and juveniles cannot invoke the Sixth Amendment to challenge civil fines. Chief Justice Jefferson explores reforms and alternatives that are available when traditional paths to justice are blocked, and he highlights some of the obstacles faced in creating these alternatives.

Beginning with this nation’s founding and continuing today, courts and political leaders have grappled with difficult questions as to the proper treatment of aliens— those individuals either living here or interacting with the government, but not bearing the title of “U.S. citizen.” In the annual James Madison Lecture, Judge Karen Nelson Moore explores the protections afforded to aliens by our Constitution, tracing those protections and their limitations across the many disparate legal contexts in which questions regarding aliens’ constitutional rights arise. Although the extent to which aliens possess constitutional rights varies with the closeness of their ties to this country, she explains that this single variable cannot account for the many nuances and tensions in federal jurisprudence relating to aliens’ constitutional rights. Closeness, after all, can be measured across multiple dimensions: immigration status, physical proximity to the United States (or to its borders), lawfulness of presence, and allegiance to the country.

Judge Moore first tackles the complicated meaning of alienage, discussing its conceptual definition separately with respect to the text of the Constitution, immigration law, and national security. She then considers the extent to which the Equal Protection Clause of the Fourteenth Amendment limits the government’s ability to draw distinctions between different classes of aliens. Possible differential treatment among classes of aliens presents complex constitutional questions that remain unresolved, particularly as those questions relate to the treatment of aliens unlawfully present in this country. The rights of this group are the most in flux: These aliens’ unauthorized presence in the country, combined with their close ties to the political community, makes them difficult to fit into existing legal categories.

The criminal procedure rights of aliens under the Fourth, Fifth, and Sixth Amendments are also considered, followed by a discussion of aliens’ due process rights with respect to civil litigation, immigration proceedings, and alien-enemy detention. Judge Moore highlights those areas at the outer reaches of current doctrine—the extraterritorial application of constitutional protections and the extent of executive power to combat terrorism. She articulates themes present in constitutional jurisprudence as it relates to aliens, providing a broad-lens view of this vast and complicated area of law.

Brennan Lecture

The subject of my remarks this evening is how the judiciary, conceptually and in practice, should be and is in fact the leader of the access-to-justice revolution that is taking place in our state and in our country. It is no secret that our nation faces a crisis in access to justice. The distressing lack of civil legal aid for the poor is one of the most daunting challenges facing the justice system today, but all of the players—the providers, the academy, the profession as a whole, and in particular the judiciary—are increasingly and dramatically confronting this crisis and taking action to balance the scales of justice, to guarantee the rights and liberties of all, and to preserve the rule of law.

As I will discuss in detail tonight, New York’s judiciary has taken a leadership role in the access-to-justice reform—securing substantial funding in the judiciary budget for civil legal services; encouraging pro bono work by the bar; asking aspiring lawyers to provide legal assistance to those most in need; harnessing the legal talents of baby boomers and corporate counsel; and exploring novel methods of delivering legal services, including the use of nonlawyers to provide assistance inside and outside the courtroom. The judiciary’s leadership role is an analytical, multifaceted, incremental approach to closing the justice gap in our state, built around the leverage and credibility of the judiciary and its leadership. This approach utilizes all of the financial and programmatic resources available to the judicial branch, along with the great talent and energy of our partners in the legal profession, academia, and legal services communities.

Madison Lecture

This lecture is titled Our Broken Death Penalty. But the title is misleading, for it suggests that our death penalty might, at some earlier time, have been something other than broken. It has always been broken. And, as you will hear tonight, it cannot be repaired.

New Approaches to Ensure Meaningful Participation

This Lecture discusses innovative approaches that courts are employing and developing to ensure that all participants in court proceedings have meaningful access to justice. Approaches include making the most of technological advancements to provide electronic access to information and to promote an understanding of the legal process, working with the legal community to provide representation to self-represented parties, and examining the legal process in order to simplify procedures, better manage cases, control costs, and provide workable alternatives to traditional methods for resolving disputes.

Madison Lecture

This Lecture examines judicial independence, judicial accountability, and judicial governance. I discuss the role the current system of judicial self-governance plays in ensuring both accountability and independence—two sides of the same coin. Yet, two recent legislative proposals threaten not only decisional independence but also the institutional independence of the judicial branch itself. The first calls for an inspector general for the federal judiciary and the second proposes to regulate Supreme Court recusals. This Lecture discusses how the inspector general and Supreme Court recusal bills would lead to significant changes in the way the judiciary functions, and concludes these changes would nonetheless be insignificant compared to the threat they pose to the decisional independence of the federal judiciary.

Brennan Lecture

Madison Lecture

Brennan Lecture

An earlier version of this text was delivered as the James Madison Lecture at the New York University School of Law on October 13, 2016.