Adam Winkler

  • April 24, 2012
    Guest Post

    By Adam Winkler, a constitutional law professor at UCLA School of Law

    The age of judicial activism - err, I mean "judicial engagement" - is upon us. Having realized that they don't always win with voters, leading conservatives are abandoning their traditional emphasis on judicial restraint and respect for the decisions of democratically elected officials. After years of berating liberal judges for overturning laws in the name of controversial constitutional principles, conservatives are now embracing the notion of an active, "engaged" judiciary. Only they want one that aggressively protects those rights conservatives prefer: property rights, rights of religious expression, the liberty of contract, the right not to buy broccoli - regardless of decades of established case law.

    For evidence of this trend, one need not look further than startling concurring opinion by D.C. Circuit Judge Janice Rogers Brown in Hettinga v. United States. Brown, who is often mentioned as a potential Supreme Court nominee in a Republican administration, used her opinion to audition for a leadership role in this new movement. The time has come, she wrote, to end the pernicious practice of allowing legislatures to regulate the economy. "America's cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s." The proof? The "Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to adopt whatever economic policy may reasonably be deemed to promote the public welfare."

    Besides Brown’s Bizarro world premises in which things like consumer protection laws harm consumers, her ode to the Lochner era reminds us of the importance of judicial appointments. For decades, Republican presidents have used the lower federal courts as a farm team for the Supreme Court, smartly filling positions with potential stars to see how they perform. This is a smart strategy, though one Democrats haven’t followed. Instead, Democratic presidents have tended to name competent, diverse people who aren’t likely to be controversial. But in the current political climate, even these clear consensus nominees are held up in the Senate, leaving the federal courts with a critical number of vacancies and a troubling imbalance in our courts. To counter the newly “engaged” judicial conservatives like Brown, legal liberals need to be fighting for judges, particularly those judges with the intellectual fortitude to go toe-to-toe with the leading lights of conservative constitutionalism. Respect for our Constitution and settled precedent demands nothing less.

  • March 30, 2012

    by John Schachter

    Who would have thought a 220-year-old law would be relevant in the health care reform debate that dominated the Supreme Court this week? Yet there it is – the Militia Act of 1792 – standing firmly as an answer to an oft-asked question in this debate. Is there an example of anything that Congress has mandated that people buy?

    Let’s put aside for the moment that the requirement that we pay our taxes “mandates” that we all “buy” Social Security and Medicare, highways, medical and scientific research, tanks and weapons, and anything else the government pays for through its revenues. How about the narrower question of Congress specifically mandating that citizens actually purchase a good or service?

    When ACS President Caroline Fredrickson appeared on Fox News’ “The O’Reilly Factor” on March 27, the show’s eponymous host appeared genuinely miffed when Caroline mentioned the Militia Act. “What act was that?” he asked. O’Reilly had insisted on hearing an example of Congress requiring citizens to purchase something – or as he so politely put it, “[Name] one thing that the federal government compels you to buy, one thing. One thing.”

    And when given the oldest and most relevant answer, he balked. It’s pretty clear he didn’t expect there to be an answer. While it’s often difficult to divine what our Founders may have intended with various constitutional prerogatives, in this case we have actual hard evidence.

    The following day (presumably after firing the intern who failed to brief him properly), O’Reilly had to justify his erroneous skepticism. Easy for him – he changed the question.

  • September 1, 2011
    The Battle over the Right to Bear Arms in America
    Adam Winkler

    By Adam Winkler, a professor at UCLA School of Law.

    I’ll never forget the scene outside the Supreme Court building the day of oral argument in District of Columbia v. Heller. Scores of reporters and camera crews were there to cover the hundreds of protestors who turned First Street into a lively theatre of debate over the meaning of the Second Amendment. A man with a bullhorn boomed, “More guns!” In response, gun rights supporters in the crowd hollered, “Less crime!” “More guns!” “Less crime!” A group of gun control proponents whispered among themselves and the next time the man with the bullhorn chanted “More guns” they yelled, “More crime!” As in the gun debate more generally, however, the gun controllers were easily drowned out by the more numerous and vocal gun rights advocates. 

    Although the language of the Second Amendment has confused generations of lawyers, the protestors in front of the famous marble steps of the Supreme Court knew exactly what it meant. To gun rights supporters, the amendment clearly guaranteed individuals the right to own guns and placed strict limits on gun control. To proponents of gun control, the amendment merely provided for state militias and had little relevance for ordinary gun laws. Although the two sides reached very different conclusions, they shared a common view of the right to bear arms. Both sides believed an individual right to have guns was fundamentally incompatible with gun control. We must choose one or the other.

    Gunfight: The Battle over the Right to Bear Arms in America shows that, contrary to the extremists on both sides, we’ve always had both a right to bear arms and gun control. The founding fathers who wrote the Second Amendment had gun laws that the modern gun lobby would never accept. Not only did they prohibit free blacks and slaves from owning guns to promote public safety, they also restricted the gun rights of political dissenters. They required ordinary citizens to buy military style firearms — an early version of an “individual mandate”—and ordered them to appear for mandatory “musters” where their guns would be inspected and registered on public rolls. To them, the Second Amendment was not a libertarian license. We the people were the militia, but that militia was required to be “well regulated.”

  • August 15, 2011

    by Nicole Flatow

    Justice Antonin Scalia may be the Supreme Court’s “ultimate originalist,” but when it comes to the Second Amendment, he has recently embraced a living Constitution, UCLA law professor Adam Winkler suggests in a column for The Atlantic adopted from his forthcoming book, Gunfight: The Battle Over the Right to Bear Arms in America.

    In his article, Winkler traces the surprising and contradictory history of the U.S. right to bear arms, starting with the Founding Fathers’ own version of an “individual mandate” that required many citizens to purchase guns, while forbidding gun ownership for slaves, free blacks, and “law-abiding white men who refused to swear loyalty to the Revolution.”

    The National Rifle Association, founded as an organization to improve American soldiers’ marksmanship, was “at the forefront of legislative efforts to enact gun control” in the 1920s and 1930s, and only shifted to become a “lobbying powerhouse committed to a more aggressive view of what the Second Amendment promises to citizens” in 1977, Winkler explains.

  • May 19, 2011
    Guest Post

    By Adam Winkler, Professor of Law, UCLA School of Law

    Does Goodwin Liu’s stalled nomination to the federal bench signal the end of judicial nominations for academics? Law professors have never been the darlings of the Senate Judiciary Committee – or even of presidents considering appointments to the federal courts. What’s happening with Goodwin Liu may yet further reduce the likelihood of law professors receiving nominations in the future.

    Law professors aren’t natural choices for federal judgeships to begin with. Nominations for the lower federal courts often come from the senators in the state in which the vacancy arises, and law professors don’t tend to be politically connected players close with elected officials. As a general matter, we don’t make much money, contribute much to campaigns, or raise much for candidates. So when senators recommend nominees to the president, they are more likely to be partners at big firms than professors from big schools. (The Supreme Court is an obvious exception; over the past century, the Court was filled with law professors, from Frankfurter and Douglas to Scalia and Kagan.)

    Even if a law professor scores a nomination, today’s highly polarized confirmation process, coupled with new technologies, make confirmation very difficult. Any law professor that writes on a politically contentious issue like abortion, affirmative action, or same-sex marriage will have those writings used against him. This isn’t unique to law professors; any writings of any nominee will be scrutinized. A sitting judge, however, can explain away controversial opinions by saying they don’t reflect her personal views but were required by precedent. Law professors don’t have that easy out – as Liu’s case shows. Republicans have refused to allow Liu to win confirmation because of his writings in favor of affirmative action and against torture.

    Of course, not all law professors will face the same difficulty. Elena Kagan was confirmed despite being a former law professor. Kagan, however, had written only a handful of scholarly articles and most of them argued for broad free speech rights – a position that both Republicans and Democrats could accept. When staffers went out to search her articles for statements they could use against her, the only “gotcha” they found was her criticism of judicial nominees who refuse to discuss their views. 

    It’s no longer just the nominee’s writings that matter. Before Kagan was named, ACS Board member Pamela Karlan, of Stanford Law School, was one name bandied about as a potential nominee. But it was easy to go on YouTube and find videos of Karlan, who speaks at numerous events, making sarcastic, biting remarks on nearly every hot-button issue of the day. Though those who see her in person know that her most outrageous statements are meant to be humorous -- Karlan gets more laughs than any other law professor I know -- they are easy fodder for opponents.

    The message for law professors from these examples is clear: if you want to become a judge one day, don’t write too much, write on non-controversial topics, and watch what you say at speaking events. The world is watching.