Fidelity to the Constitution

  • January 13, 2014

    by Nicholas Alexiou

    The Supreme Court heard an atypically long oral argument this morning in National Labor Relations Board v. Noel Canning et al. The 90-minute argument (as opposed to the standard 60 minutes) focused on the Constitution’s Recess Appointments Clause which states that “[t]he President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

    Presidents have been making recess appointments since the founding; in fact President George Washington employed a recess appointment to name John Rutledge the Second Chief Justice of the United States, though his nomination was eventually defeated by the Senate. There has long been a political understanding which has governed recess appointments. In a recent ACS conference call, David Strauss, Gerald Ratner Distinguished Service Professor of Law and ACS National Board of Directors member, noted that, for example, since the administration of President James Monroe, it has been understood that a vacancy need not arise during a congressional recess in order for it to be filled via a recess appointment. However, this political consensus may soon collapse as the Court fully examines the clause for the first time.  

    The case before the Court deals with the validity of a 2012 National Labor Relations Board (NLRB) decision rendered by a panel made up of three members of the five-member Board.  President Obama had appointed two of the three members to the Board via a recess appointment. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit agreed with Noel Canning (a division of the Noel Corporation) that the recess appointments to the NLRB were unconstitutional. During the recent ACS call, American Enterprise Institute Resident Scholar Norman J. Ornstein called the D.C. Circuit’s decision a “breathtaking exercise of judicial activism.” On appeal, three questions are before the Court: whether a president’s recess appointment power is limited to inter-session recesses, or if it extends to intra-session recesses; whether a recess appointment can fill any vacancy, or if it is limited to those vacancies, which arose during the recess; and whether recess appointments can take place when the Senate is meeting every three days in pro-forma sessions, a practice that has become increasingly frequent in recent years as partisan rancor has escalated.

  • September 27, 2013
    Guest Post
     
    This post originally appeared on SCOTUSblog.
     
    One of the unanticipated challenges I encountered along the path to my recent biography on Supreme Court Justice Tom Clark and his son, Attorney General Ramsey Clark, was the shadow cast on the elder Clark as the result of an unverified and probably inaccurate, but still highly influential historical reference.  It is an impact exacerbated by our Google-based world, where even erroneous references can create a lasting marker, repeated so often that both casual observers and scholars assume its accuracy.  As Nora Ephron once quipped, “You can’t retrieve your life, unless you’re on Wikipedia, in which case you can retrieve an inaccurate version of it.”
     
    The burden of biographical inaccuracies existed long before Google or Wikipedia, of course – think George Washington chopping down a cherry tree. But when these references undermine a subject’s character – and cannot be disproven – that can mean trouble for a biographer.
     
    For instance, the biographer of Al Shanker, the famous teachers union president and education innovator, never could disprove the frequently cited (though never documented) quote purportedly made by his subject: “When schoolchildren start paying union dues, that’s when I’ll start representing the interests of school children.” A similar question was faced bybiographers of Justice William Brennan, who could neither completely confirm or refute an oft-cited comment said to have been made by President Eisenhower, to the effect that his appointment of Brennan and Chief Justice Earl Warren were the two worst decisions of his presidency.
     
    All of which brings us to the story behind the purported disparagement of Justice Tom Clark by President Harry Truman, the man who appointed Clark as attorney general and later as Supreme Court Justice. The alleged controversial remarks, as well as a number of other provocative statements from the former president about other prominent subjects, derived from a series of conversations between Truman and writer Merle Miller as part of a television series that never aired and which subsequently were compiled by Miller for his 1974 best-selling book, Plain Speaking. According to Miller, Truman called Clark was “my biggest mistake,” adding, ”He was no damn good as Attorney General, and on the Supreme Court . . . it doesn’t seem possible, but he’s been even worse.” Asked by Miller to explain the comment, Truman stated further: “The main thing is . . . well, it isn’t so much that he’s a bad man. It’s just that he’s such a dumb son of a bitch. He’s about the dumbest man I think I’ve ever run across.” This is juicy stuff that, not surprisingly, has been included in various forms in nearly every subsequent biographical reference about the former Justice.
     
  • June 28, 2013
    Humor

    by John Schachter

    Article III of the U.S. Constitution plainly states that members of the Supreme Court “shall hold their Offices during good Behaviour.” For so-called textualists or strict constructionists who believe in using the actual words of the Constitution to interpret its meaning the time has come to kick Justice Samuel Alito off the bench.

    I have a nearly 14-year-old son – also named Samuel, by the way. Ever since he was toddler, we have told him to show respect for his peers, teammates, friends and teachers, for young and old alike. (Even for his parents, hard as that message is to sell.) When he scoffs at others’ opinions, interrupts those sharing their thoughts or – most annoying of all – rolls his eyes when someone is speaking, we reprimand him for his “bad behavior.”

    Justice Alito apparently never learned this lesson. As a result his behavior on the Court (and sometimes outside it) is anything but exemplary. It seems that it’s not just his opinions and votes that are offensive, but that his treatment of colleagues and other esteemed leaders is equally odious.

    The Washington Post’s Dana Milbank chronicled Alito’s rude treatment of Justice Ruth Bader Ginsburg during the Court’s closing sessions, as he “visibly mocked” her during her reading of a dissent to one of his right-wing opinions. His eye-rolling also caught the attention of The Atlantic’s Garrett Epps, who called the behavior a “mini-tantrum” that “brought gasps from more than one person in the audience.”

    Milbank reported that Alito’s insolence extends beyond his ocular offenses aimed at Ginsburg. Days before as both Justices Elena Kagan and Sonia Sotomayor read from opinions in other cases Alito “demonstrated his disdain” for his colleagues by glowering, shaking his head and (it must be his signature move) rolling his eyes.

    Of course, all of this bad behavior comes on the heels of Alito silently yet snippily scolding President Obama during the 2010 State of the Union address when the president had the audacity to criticize the Court’s decision in Citizens United.

    When it comes to bad behavior, it doesn’t take an experienced jurist or constitutional scholar to “know it when [we] see it.” (It’s a lot easier to define than pornography.) So for those who believe in the words and text of the Constitution, let’s hear your call for Alito’s removal – or let’s hear your contorted reasoning why not.

    But you better not simply roll your eyes.

  • May 29, 2013

    by Jeremy Leaming

    The Senate’s obstructionists, meaning the Republican caucus, are urging the U.S. Supreme Court to review and uphold a federal appeals court decision that greatly narrowed or rewrote the president’s power to make recess appointments.

    And that’s not terribly surprising. The case involves vacant seats on the National Labor Relations Board, an agency that Senate Republicans have fought to keep business friendly or inoperative. Republicans have convinced themselves that the NLRB, which was created to protect both rights of workers and employers, is all about making life tough on corporate America. The Senate Republicans are of course deluded, but consistent in their support of the powerful. (The Supreme Court could decide this summer to take the case for review.)

    In January, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in Noel Canning v. NLRB held that President Obama ran afoul the Constitution when he appointed Sharon Block and Richard Griffin to vacant seats on the five-member agency during a 20-day recess of Congress. Obama made the appointments after Republicans continued to stall on considering the nominations. Article II, Section 2 of the Constitution grants the president authority to make recess appointments. The D.C. Circuit’s opinion was crafted by three-Republican appointees and was widely panned by legal scholars, noting that presidents have for a century used recess appointments to fill executive and judicial vacancies to help keep the government functioning. Also, as Ohio State University law school professor Peter Shane has pointed out, three other federal courts of appeals have ruled the other way, upholding the presidents’ recess appointment powers. (Another federal appeals court, however, has followed the wobbly D.C. Circuit’s opinion, so there is a split among the circuits, which heightens the chance the U.S. Supreme Court will jump into the mix and take Canning for review.)

    In a brief urging the high court to take Canning, 45 Republican senators argued that the D.C. Circuit’s opinion should be upheld. Such appointments, the brief states “have become a means to sidestep Senate confirmation.” They added, “In any case, the President himself has made clear that he will resort to recess appointments, and indeed has done so, precisely to circumvent perceived Senate opposition.” See Sahil Kapur’s reporting on the GOP brief.

    But there is nothing perceived about the opposition Republicans have mounted to hamstring the NLRB and for that matter greatly slow the efforts of the president to fill vacancies on the federal bench, which has resulted in a crisis on the bench with vacancies hovering around 80.

    Today, the Constitutional Accountability Center weighed in on the side of the Obama administration, which has asked the high court to take the case and reverse the D.C. Circuit.

  • January 29, 2013

    by Jeremy Leaming

    Out shilling yet another book, the right-wing Supreme Court Justice Antonin Scalia took yet another opportunity to repeat a line that is beyond tiresome. The U.S. Constitution is dead, Scalia said. Actually he said it was “dead, dead, dead.”

    Scalia has long taken umbrage with folks who refer to the nation’s governing document as a living one. In his talk at Southern Methodist University, Scalia expressed exasperation with schoolchildren who visit the high court and refer to a living Constitution. “It’s not a living document,” Scalia said. “It’s dead, dead, dead.”

    The justice has repeated this refrain too many times to count. (In fall 2011, he told a Senate committee that he hoped the “living constitution would die.”) So we understand that Scalia does not believe the Constitution provides liberty for women to make certain health care decisions, such as whether to have an abortion, or for marriage equality.

    Scalia argues that if you interpret the Constitution as an originalist you cannot come to the conclusion that liberty is that broad. Proponents of originalism argue that the Constitution’s text must be interpreted in a way the text was understood by the people who created the document’s language.

    Many others, however, have noted,  with increasing frequency that Scalia is an originalist only when it suits his ideology. Last year, UCLA law school professor Adam Winkler said “Scalia’s orginalism is a charade.”

    There are other ways to talk about the Constitution’s genius, however, that do not readily play into Scalia’s narrative. For instance in Keeping Faith with the Constitution, Goodwin Liu, Pamela S. Karlan and Christopher H. Schroeder explain why constitutional interpretation should be “faithful to what the Constitution is: not a legal code, not a lawyer’s contract, but a basic charter of government whose practical meaning arises from the continual adaptation of its enduring text and principles to the conditions and challenges facing each generation.”

    The authors continue:

    Preserving the document’s meaning and its democratic legitimacy requires us to interpret it in light of the conditions and challenges faced by succeeding generations. We use the term constitutional fidelity to describe this approach. To be faithful to the Constitution is to interpret its words and to apply its principles in ways that sustain their vitality over time. Fidelity to the Constitution requires judges to ask not how its general principles would have applied in 1789 or 1868, but rather how those principles should be applied today in order to preserve their power and meaning in light of concerns, conditions, and evolving norms of society. As Jack Balkin has put it, ‘if each generation is to be faithful to the Constitution and adopt the Constitution’s text and principles as its own, it must take responsibility for interpreting the implementing the Constitution in its own era.’

    The entire book is available here. It’s an accessible and short read and offers a strong counter to a tired refrain about a “dead” Constitution that is somehow relevant today.