Equality and Liberty

  • September 30, 2014

    by Caroline Cox

    Robert Barnes of The Washington Post discusses Erwin Chemerinsky’s new book and bold criticisms of the Supreme Court. Chemerinsky recently contributed to the ACSblog Book Talk to discuss his work.

    In The Atlantic, Dawinder Sidhu looks at the next religious freedom case facing the Supreme Court and how it will test how the justices apply Hobby Lobby to minority religions.

    Adam Liptak writes in The New York Times that an answer from the Supreme Court on same-sex marriage is likely to come next June.

    Bloomberg writer Greg Stohr reports that the Supreme Court has blocked an early voting period in Ohio and reinstated voting limits the state passed this year.

    John Nichols writes for The Nation on the Ohio early voting decision and what it says about the Supreme Court’s priorities. 

  • September 26, 2014

    by Caroline Cox

    Harry Enten of FiveThirtyEight challenges the assertion that someone like Justice Ruth Bader Ginsburg could not be confirmed to the Supreme Court today.

    In the New Republic, Yishai Schwartz looks at the possible cases the Supreme Court could hear on same-sex marriage and argues the Court should follow the lead of the U.S. Court for the Tenth Circuit.

    The current Supreme Court is primarily concerned with protecting majority rights argues Garrett Epps for The Atlantic.

    Geoffrey R. Stone writes for The Daily Beast on the mixed legacy, particularly on issues of civil liberties, of Eric Holder.

    In Slate, Jamelle Bouie presents a more positive message of Eric Holder’s record, and argues that the partisan environment was his major challenge. 

  • September 25, 2014
    BookTalk
    The Case Against the Supreme Court
    By: 
    Erwin Chemerinsky

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    How should we assess the Supreme Court’s performance over the course of American history? That is the central question of my new book, The Case Against the Supreme Court. My conclusion is that the Supreme Court often has failed at its most important tasks and at the most important times. Recognizing this is important in order to focus on how to improve the institution and make it much more likely to succeed in the future.

    Obviously the evaluation of any institution requires criteria by which it can be assessed.   In the introductory chapter, I posit that the Court exists, above all, to enforce the Constitution. The Constitution exists to limit what government and thus the democratic process can do. As Marbury v. Madison said long ago, the limits contained in the Constitution are meaningless unless enforced and that is the “province and duty” of the courts. The judiciary is particularly important in protecting the rights of minorities (of all sorts) who cannot rely on, and should not have to rely on, the democratic majority. Also, the courts need to play a special role in times of crisis to ensure that society’s short-term passions do not cause it to lose sight of its long-term values.

    I believe that all, liberal and conservative, can agree that these are fair criteria by which to assess the Supreme Court. I also think that liberals and conservatives can agree that the Court very often has failed. Part I of the book looks at the Court historically. Chapter one looks at the Court’s dismal record over the course of American history with regard to race. For the first 78 years of American history, from 1787 until 1865, the Court aggressively protected the rights of slave owners and upheld the institution of slavery.  For 58 years, from 1896 until 1954, the Court approved and enforced the doctrine of “separate but equal.” The Court’s failure with regard to race continues to this day, as evidenced by the decision in Shelby County, Alabama v. Holder, which declared unconstitutional a key provision of the Voting Rights Act of 1965. This is the first time since the 19th century that the Court has invalidated a federal civil rights law to protect racial minorities.

  • September 24, 2014
    Guest Post

    by Robin Maril, Senior Legislative Counsel, Human Rights Campaign. This post is part of our 2014 Constitution Day symposium.

    Following last summer’s Supreme Court decision in U.S. v. Windsor invalidating Section 3 of the Defense of Marriage Act (DOMA), the federal government began recognizing same-sex couples nationwide for the first time. The majority of federal benefits and programs recognize couples regardless of where they live – employing a “state of celebration” standard. This standard looks to the laws of the state where the couple was married to determine the validity of their marriage. In practice, this has provided expansive recognition for legally married same-sex couples nationwide — including for federal tax purposes.

    In response to the Windsor decision, the IRS published revenue ruling 58-66 implementing a state of celebration standard for federal tax purposes and applying the generally applicable statute of limitations for requesting a refund to same-sex couples who were legally married and would have been recognized under IRS policy but for DOMA. This standard statute of limitations provides all taxpayers with an option to amend a tax return up to three years after filing. This revenue ruling therefore retroactively recognizes same-sex married couples who were legally married but were required to file as individuals because of DOMA beginning in 2010.  

  • September 19, 2014
    Guest Post

    by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law, @atibaellis. This post is part of our 2014 Constitution Day symposium.

    On September 17, 1787, the framers signed the U.S. Constitution. The document they approved 227 years ago is a work of genius as it provided a democratic republic that has endured economic turmoil, mass insurrection, and disasters of various sorts -- forces that have toppled other democracies.  The U.S. Constitution, the oldest enduring written constitution in the world today, has endured and preserved democracy based upon rule of law.

    Although one might point to the advantages and disadvantages of federalism, the dynamics of enumerated powers, or the political compromises that undergird separation of powers as powerful tactics the Constitution deploys, it is not in any of these mechanisms where the genius of the Constitution lies. Its true genius is its mechanism to allow we the people to reinvent our democracy as our times and ethics demand. It is this power of reinvention that has allowed our constitution to endure and matter to the world. 

    This power of democratic transition is best illustrated in the way our Constitution has been reinvented, over time, from a document that enshrined inequality to one that strives for equality. The Constitution of 1787 reflected and implemented a social theory we would not recognize or sanction today. The Constitution endorsed states’ rights (though this name would not be invented until a century later to protect slavery) and left it to the states to structure the social relations of the nation. Thus, despite a Bill of Rights that protected the rights of citizens, the Constitution allowed the chattel slavery of Africans to endure in the United States when it was being abolished in other parts of the world. The Constitution allowed women to be treated as property. Despite our hymns to constitutional genius, the lived experience of the eighteenth and nineteenth centuries was rooted in inequality.

    To focus merely on the genius of the original document (and as a consequence, elevate those times and those founders) is to fixate on an originalism that suffered subordination and endorsed a hierarchy. And, as our experience with the Civil War illustrates, the country came within a hair’s breath of being dismantled by faction and racism due to an unwillingness to recreate the United States.

    Yet our Constitution endures because it has embedded within it mechanisms by which our evolving notions of equality and justice may receive constitutional protection from the tyranny of caste and status. Though volumes have been written on this topic, it is worth remembering in our celebration of the Constitution that the amendment process and the wisdom of legislators and judges who sought to make manifest the idea of equality helped to preserve the Union at its most imperiled points. One needs only recount the work of Reconstruction, the long march from segregation to Civil Rights, the movement towards women’s equality, and our modern day same-sex marriage cases to see how the long arc of equality has progressed. And all of these changes have been enabled through an American constitutionalism that, in the words of Harper v. Virginia, is not shackled to the political theory of a particular era.