Guest Post

  • October 23, 2014
    Guest Post

    by Jason Steed, Associate at Bell Nunnally, and president of the Dallas-Ft. Worth Lawyer Chapter

    In part 1, I tried to briefly explain why the argument for term limits should be focused on the nonpartisan value of increased apolitical predictability in the Court’s appointment process. Justices shouldn’t be tempted to base their retirement decisions on partisan politics, and we shouldn’t be left to speculate wildly about when the next justice might retire—or about how many appointments the next president might get.

    But once we agree term limits are a good idea (and 70% of the public agrees on this), we must shift to the practical concerns that surround the actual implementation of term limits. Right off the bat, at least four questions (or problems) arise:

    1.  How long should the term limits be?

    2.  What about the filibuster and other attempts to deprive a president of an appointment?

    3.  What about the role of Chief Justice—how does that work in a fixed-term system?

    4.  How do we transition? That is, how do we impose fixed terms on nine sitting justices who everyone expected to have lifetime appointments?

    Now, I’m no scholar on these matters, and I assume others have addressed them already, in one way or another. But here are my thoughts:

  • October 22, 2014
    Guest Post

    by Jason Steed, Associate at Bell Nunnally, and president of the Dallas-Ft. Worth Lawyer Chapter

    *This is part one of a three part series.

    There’s been a lot of talk lately about term limits for Supreme Court justices. Norm Ornstein brought renewed attention to the issue in May. Erwin Chemerinsky has proposed term limits in his new book, The Case Against the Supreme Court. And a recent poll asked about it, and shows nearly 70% of the public thinks term limits are a good idea.

    I was invited to write a blog post on this topic because I have a short article forthcoming in the December issue of The Federal Lawyer, which also makes a case for term limits. But unlike Ornstein and Chemerinsky, my primary focus isn’t the politics or ideology of the Court. My focus is on the 1968 presidential election.

    In a nutshell, a confluence of circumstances turned the 1968 election into a watershed for the Supreme Court. The newly elected Nixon was suddenly able to appoint four new justices to the Court—in his first term—transforming the progressive Warren Court into the moderately conservative Burger Court, and setting a trajectory (through the appointment of William Rehnquist) for the much more conservative Court that we have today. (You’ll have to read the article when it comes out, to get my full take on the story.)

    Yes, this transformation of the Court—politically and ideologically—has been deeply troubling for progressives over the last 40 years. But it would be a mistake, when making an argument for term limits, to spend too much time complaining about the longevity of the Court’s rightward bent. Imposing term limits will require a constitutional amendment, which will require support from both sides. And you can’t get support from both sides if you’re complaining about something that one side really, really likes.

  • October 17, 2014
    Guest Post

    by Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law, Georgia State University College of Law

    Prior to the oral arguments in the 2013 same-sex marriage cases involving the federal Defense of Marriage Act (DOMA) and California’s Proposition 8, Supreme Court commentators committed to marriage equality debated just how fast the Court should act. On this blog, I urged the Court to strike down DOMA in the Windsor case but deny standing to the plaintiffs in the Prop 8 litigation in the hope that the logic of Windsor would lead lower federal courts to strike down state laws banning same-sex marriage. I advocated that approach fearful of the political backlash that would result from the Court creating a national rule imposing same-sex marriage on reluctant states in one bold strike.

    Those who wanted the Court to act quickly had two substantial objections. First, the Court’s job is to decide cases “under the law” not to make political predictions and calculations about the effects of those decisions. Second, gays and lesbians should not have been forced to wait one more day before achieving the marriage equality they deserve.

    Now that events have unfolded, it is important to address both of those objections (albeit with hindsight) because the arguments for and against the Court acting quickly on same-sex marriage shed important light on the appropriate role of the Supreme Court in our political system and how the Court should force important social change in the future.

  • October 9, 2014
    Guest Post

    by Paul Bland, Executive Director of Public Justice. 

    *This post originally appeared on the Public Justice blog. 

    The Alliance for Justice has just released an extremely powerful documentary, “Lost in the Fine Print,” which you can view here. Narrated by former Labor Secretary and genuine American hero Robert Reich, it provides both a big picture overview of what’s unfair with forced arbitration, and three examples of the human impact of its unfairness. Unfortunately, as incredibly unfair as each of the three examples is, they are not at all uncommon stories. (Full disclosure: I’m one of the people who speaks in the film, which I consider a great honor.)

    As the film explores, forced arbitration is slipped by the vast majority of Americans – whether as consumers, workers, or small-business people – in ways that almost none of them will notice or recognize. The system is designed by the stronger parties to disputes – generally huge corporations – to favor them in disputes. Forced arbitration’s rapid spread has been aided by a series of 5-4 U.S. Supreme Court decisions that would never have been anticipated by the framers of our Constitution. 

    The film describes an employment case in which a U.S. Army Reservist was illegally fired from her job because her employer didn’t like her taking two weeks away from work to fulfill her military obligation. But an arbitrator selected by a corporation selected by her employer rejected her case out of hand, ignoring the clear legal rules applicable to the case. This is a fairly familiar situation in America.

  • October 8, 2014
    Guest Post

    by Alex J. Luchenitser, Associate Legal Director, Americans United for Separation of Church and State

    The Supreme Court this week heard arguments in Holt v. Hobbs, a challenge to a prison’s refusal to let an inmate grow a half-inch beard to comply with his Islamic religious beliefs. Most church-state cases that reach the Court are deeply divisive. In Holt, on the other hand, there appears to be a broad consensus among religious-freedom advocacy groups, as well as the justices themselves, that the prisoner should prevail.

    Groups that are typically at odds in church-state cases, such as my organization Americans United for Separation of Church and State and the Becket Fund for Religious Liberty, supported the prisoner’s claims. And from the questions posed by the justices, it appears that the prisoner will win unanimously or nearly so.

    The prisoner, Gregory Holt (who now goes by the name Abdul Maalik Muhammad), brought his claim under the Religious Land Use and Institutionalized Persons Act, which is known by the difficult-to-pronounce acronym RLUIPA. RLUIPA prohibits a prison from substantially burdening an inmate’s religious exercise unless the prison is furthering a compelling governmental interest through the least restrictive means of doing so.       

    More than forty states, as well as the federal prison system, allow beards of the length that inmate Holt requested. Yet the defendant Arkansas prison system advanced two justifications for its denial of the beard: First, Arkansas argued, prisoners could hide contraband even in short beards.  Second, according to Arkansas, allowing prisoners to have facial hair could make it difficult to identify inmates within the prison.

    Justices who often hold diametrically opposing views on church-state and other hot-button issues were united in being deeply skeptical of these assertions.

    Justices Ruth Bader Ginsburg and Samuel A. Alito noted that it would be much easier to hide objects in a head of hair, pointing out that Arkansas prisons allow inmates to have voluminous locks. Justice Alito also pointed out that even if it were possible to hide contraband in a half-inch beard, prison guards could easily expose such contraband by simply making the inmates comb their beards so that anything hidden falls out.