Guest Post

  • March 23, 2017
    Guest Post

    by Imre S. Szalai, Judge John D. Wessel Distinguished Professor of Social Justice, Loyola University New Orleans College of Law

    During Judge Neil M. Gorsuch’s Senate confirmation hearings, Sen. Al Franken (D-MN) asked Judge Gorsuch about his reaction to the eye-opening New York Times series on forced arbitration. (The Times series – Beware the Fine Print, can be found here, here, and here.)  Judge Gorsuch replied, “[The series] made me think about a little bit of history.”  Unfortunately, Judge Gorsuch’s understanding of history is flawed. 

    Gorsuch described the main federal statute governing arbitration, the Federal Arbitration Act, as follows: “What it [the statute] did was to favor arbitration. Congress expressed a preference that people should arbitrate their disputes. It made a judgment, policy judgment, in favor of arbitration because it’s quicker, cheaper, and easier for people.”

    Judge Gorsuch’s statements demonstrate a lack of understanding of the history of arbitration law in America. When enacting the Federal Arbitration Act during the 1920s, Congress never expressed a preference in favor of arbitration. I challenge Judge Gorsuch to explain the basis for his perception of such a Congressional preference. He will not find such a Congressional preference in the history or text of the statute. Congress never expressed a preference for people to arbitrate their disputes instead of litigating their disputes in court; Congress never expressed a preference in favor of arbitration. Instead of expressing a preference in favor of arbitration, Congress simply recognized in the Federal Arbitration Act that if merchants willingly agreed to arbitrate, a court would recognize and enforce their mutual promise to arbitrate. In other words, the Federal Arbitration Act reflects a policy-neutral view regarding arbitration. If parties agree to arbitrate, they will arbitrate. But if parties choose to litigate, they will litigate.  In enacting the FAA, Congress made no value judgment in favor of arbitration over litigation, or that one system of dispute resolution is superior to another system. In enacting the Federal Arbitration Act, Congress was simply recognizing the right and freedom of parties to choose for themselves whatever system of dispute resolution they desired. 

  • March 22, 2017
    Guest Post

    by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States, IIT Chicago-Kent College of Law

    The two days of Q&A between senators and Judge Neil Gorsuch has been marked by his unwillingness to answer some of the most basic questions about his views of the law. Judge Gorsuch and Sen. Blumenthal (D-CT), for example, had a lengthy tug-of-war about whether Brown v. Board of Education was correctly decided. This should not be a hard question, but Gorsuch resisted giving a straight answer. Of course, Gorsuch does think that Brown was rightly decided, and he eventually got around to saying so, albeit circuitously. Gorsuch resisted answering this softball because once he gave a straight answer about Brown, it was harder not to answer about other, more controversial cases like Griswold (right to birth control) or Roe v. Wade.

    Admitting to a belief that a case was wrongly decided does not require committing to vote to overrule (and I do not think that any nominee should make promises about how they will vote) because there are significant stare decisis concerns, as Gorsuch repeatedly and correctly emphasized. But a more candid discussion even about Brown would allow for some insight into how Gorsuch thinks about how to interpret the Constitution’s protections for rights that may not have been recognized by, or relevant to, the Framers. Indeed, at least in the portions of the hearing that I heard, no senator pushed him to fully explain his claim that Brown was “consistent with the original meaning” of the 14th Amendment, which might have shed some light on his judicial philosophy and methodology. (Segregated schools were widespread and uncontroversial at the time the Amendment was enacted.)

  • March 22, 2017
    Guest Post

    *This piece originally appeared on Dorf On Law.

    by Alan K. Chen, William M. Beaney Memorial Research Chair and Professor, University of Denver Sturm College of Law

    In 2005, shortly before he was appointed to the federal bench, Supreme Court nominee Neil Gorsuch wrote a commentary for the National Review criticizing liberals’ reliance on litigation to accomplish social reform. This was not a surprising position for one of Federalist Society’s rising stars to take. Conservatives have long frowned upon public interest lawsuits as a means of pursuing social change. 

    But (now Judge) Gorsuch’s position was more nuanced than the standard conservative refrain. He argued that liberals could be more successful in achieving social change by pursuing reform through the democratic process. To be sure, there is no shortage of critics on the left (including one cited by Gorsuch) who have made the same claim about the limitations of public interest litigation, including former President Obama. They also have suggested that progressive reform through community organizing and other forms of democratic participation is not only more effective than reform lawsuits, but also more sustainable.

    Debates over the efficacy and legitimacy of reform litigation have thrived since the movement to abolish slavery, when lawyers and other advocates disputed whether abolition could be more effectively achieved through lawsuits or legislative repeals. As it turns out, it took a war -- a real one, not a cultural one -- to resolve that divide.

  • March 22, 2017
    Guest Post

    by Neil Siegel, David W. Ichel Professor of Law and Professor of Political Science, Co-Director of the Program in Public Law, and Director of the DC Summer Institute on Law and Policy, Duke University School of Law

    In the summer of 2011, Justice Scalia taught a separation of powers course in Duke Law School’s summer program in Geneva. I was honored to serve as his assistant, which meant that I answered his questions in class and—more importantly from his perspective—wrote and graded his exam.

    On the last day of class, Justice Scalia gave what Court watchers have come to regard as his originalism “stump speech,” in which he essentially argued that one is either an originalist on matters of constitutional interpretation or else one is making it up. When he was done, he asked for critical responses from anyone in the class, including law professors. (He was exemplary about hearing other points of view and generous in many other ways.) Because he was looking right at me when he asked for pushback, I raised my hand.

    I had a feeling that he was expecting me to criticize originalism as descriptively inaccurate and/or normatively unattractive. I declined the opportunity. Instead, I decided to (gently) criticize him in the form of a compliment. I told him and the class that he was way too sensible to be just an originalist. Rather, I suggested (using plentiful examples) that he was indeed an originalist some of the time, but that he was also a traditionalist, and a structuralist, and a doctrinalist, and—because he had to decide when to be what—a prudentialist. In short, I implied that he was a living constitutionalist.

    When I was done speaking, Justice Scalia paused, thought for a moment, and responded that maybe he needed a new word for what he was. I replied, “How about a judge?”  (I dared not say “living constitutionalist.”) He laughed, paused again, and returned to his stump speech.

  • March 21, 2017
    Guest Post
    by Adam Winkler, Professor of Law, UCLA School of Law
     
    Tuesday’s confirmation hearing on the nomination of Judge Neil Gorsuch to the Supreme Court went exactly according to script. Against a background of Republican praise and Democratic skepticism, Gorsuch showed himself to be smart and articulate without saying much of substance on any of the major issues of the day. The nominee parried nearly every question by invoking the law’s first principles: A judge should apply the law, not make it. No man, not even the President, is above the law. Justice requires adherence to precedent, open-minded judges, and equal treatment of rich and poor alike. Anyone seeking insight on how Gorsuch would rule in particular controversies could only come away disappointed from the latest instance of the confirmation process’s “kabuki theatre.” 

    Gorsuch is nothing if not polished. Handsome, charming and easy with a smile, Gorsuch joked with committee members on both sides of the aisle. He showed the calm intelligence and detailed knowledge of doctrine for which he is known. He came prepared, and when asked about his tendency to rule for big business and against the “little guy,” he offered a list of cases in which he ruled in favor of the latter. Gorsuch even threw in some one-liners, insisting in response to a question about his independence that a judge wields “a gavel, not a rubber stamp.” But, by the end of the day, the picture of what Gorsuch would be like as a justice had not come into any sharper focus.

    Yet maybe that is about all we should expect from Supreme Court confirmation hearings. Most of the senators asked questions that seemed poorly designed to draw out a thoughtful and revealing response from the nominee. The day began with Sen. Grassley asking Gorsuch if he could rule against Trump, prompting the nominee to call it a “softball.” For a skilled lawyer like Gorsuch, they were just about all softballs. Even when senators had some difficult questions, they often seemed more interested in expressing their disagreement with Gorsuch’s rulings than soliciting further explanation from him. Others were content to refer to the nominee’s strong bladder and his favorite fishing stream. Meanwhile, the nominee only revealed what he wanted and claimed over and over again his adherence, over all, to those first principles of the law.