Guest Post

  • February 23, 2016
    Guest Post

    by Chris Edelson, assistant professor of government, American University School of Public Affairs

    In the days following Justice Scalia’s death, the Senate and President have been gearing up for a high-stakes battle. Nominating a new justice to the Supreme Court is always an important event, but congressional dysfunction raises the stakes to new levels.

    Just hours after Scalia’s death was announced (in some cases, within only a few minutes), Republicans rejected the notion that President Obama could name any new justice to the Court, insisting the vacancy should remain open until the next president is elected. If the Republicans stand by this initial decision, their strategy could backfire as their party could be seen as obstructionist (recall the response to the government shut down). Democrats might exploit an opportunity to rally their base to the polls in November. It will be interesting to watch this unfold. But it’s also worth taking a step back and considering why stakes surrounding Justice Scalia’s successor—whenever he or she ultimately joins the Court—seem so high.

    There is a perception that the Supreme Court has the last word on important and controversial issues that divide the public, including civil rights, immigration, gun rights and regulations, and reproductive rights. When the Court speaks, that is the end of debate—or so conventional wisdom has it. As Justice Robert H. Jackson put it, “[w]e are not final because we are infallible, but we are infallible only because we are final.” But this is not correct.  As a historical matter, the Supreme Court has rarely been able to put divisive issues to rest—and as a constitutional matter, there are almost always ways for the other branches of government, or the public, to make new policy even after the Court speaks.

    Consider Brown v. Board and Roe v. Wade—perhaps the two most significant cases the Court decided in the 20th century. Brown hardly resolved the debate over racial discrimination, leaving many central issues open. Some states defied the 1954 decision for years—and even today, many schools are racially segregated. It took congressional action in the 1964 Civil Rights Act to address discrimination in employment and public accommodations. As for Roe, from the start, the Court left room for legislators to regulate abortion. Since the Court’s 1992 decision in Planned Parenthood v. Casey, room for legislative action has only increased, and both Congress and state legislatures have eagerly responded by passing a raft of laws aimed at restricting access to abortion. The Court has upheld most of these restrictions.

  • February 23, 2016
    Guest Post

    by Harry Baumgarten, Inaugural Partner Legal Fellow at the Voting Rights Institute

    This post originally appeared on the blog of the Campaign Legal Center.

    Members of the U.S. Senate and House of Representatives will gather tomorrow to award the foot soldiers of Bloody Sunday, Turnaround Tuesday and the final Selma to Montgomery March with the Congressional Gold Medal. This award constitutes the highest civilian honor bestowed by Congress and marks a fitting tribute to the brave men and women who risked life and limb so that “every American citizen would be able to exercise their constitutional right to vote and have their voices heard.”

    Yet, however befitting and overdue this award may be, we must not accept it as a substitute for meaningful legislative action to safeguard the fundamental right to vote.

    Minority voting rights are perhaps more imperiled today than at any time since these brave marchers gathered at the Edmund Pettus Bridge in 1965. Just three years ago, the U.S. Supreme Court gutted a key provision of the Voting Rights Act, despite four reauthorizations and thousands of pages of congressional findings that showcased why the law was still needed. The 2013 decision, Shelby County v. Holder, dismantled the VRA’s coverage formula, which determined which states and local jurisdictions were required to gain approval from the Department of Justice or a federal court before making changes to their electoral laws and procedures due to histories of racial discrimination in voting.

    Many of the states that would have once needed to seek preclearance from the DOJ acted within hours of the Supreme Court’s ruling, implementing onerous voting restrictions, such as voter ID laws, that had the intent and effect of burdening minority access to the polls. These laws threaten to disenfranchise millions of people across the country and would previously have been barred by the Voting Rights Act. Scarily, without congressional action, 2016 will likely mark the first presidential election in more than 50 years without the full protections of the Voting Rights Act.

  • February 22, 2016
    Guest Post

    by Joseph Thai, Watson Centennial Chair in Law and Presidential Professor, University of Oklahoma College of Law

    Even in death, Justice Antonin Scalia is larger than life. Praise upon his passing has been outsized from both friends and foes of his jurisprudence—ranking him at least as “one of the country’s most influential jurists” if not “the most important justice in American history.” Time will tell whether these extraordinary assessments are prescient or premature.

    What is clear today is that the theory of constitutional interpretation that Justice Scalia championed—originalism—is one justice away from extinction on the Supreme Court. The only other avowed originalist in the history of the Court is Justice Clarence Thomas. This stark fact runs counter to the false dichotomy often peddled to the public that conservative jurists are faithful to the Constitution because they stick to its original or “dead” meaning (to quote Justice Scalia), while liberal jurists play fast and loose with constitutional text in favor of an updated or “living” meaning (again, Justice Scalia) that matches their own contemporary values.

    In fact, the most cutting critic of originalism on the current Court is also one of its most conservative members, Justice Samuel Alito. For example, at oral argument in a case assessing the constitutionality of a ban on the sale of violent video games to minors, Justice Alito mocked Justice Scalia’s questioning about the original meaning of the First Amendment and its application to the case by boiling down his inquiries thus: “Well I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”

    And in a Fourth Amendment case involving surreptitious GPS tracking of a car over the course of a month, Justice Alito poked fun at Justice Scalia’s originalist methodology. He refused to join Justice Scalia’s opinion for the Court even though he agreed with the result, for rather than applying modern Fourth Amendment principles to “a 21st-century surveillance technique,” the Court “[i]ronically . . . has chosen to decide this case based on 18th-century tort law.” What is more, Justice Alito noted, “The Court suggests that something like this might have occurred in 1791” with a constable hiding in a coach, “but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience.”

  • February 18, 2016
    Guest Post

    by Victor Williams, clinical assistant professor of law, Catholic University of America Columbus School of Law

    At noon last Friday, the Senate began a 10-day recess without any of the usual pro-forma sessions scheduled. No Senators were left home alone to gavel the Senate open and closed in sham sessions during the 10-day vacation. According to the formal House-Senate joint adjournment resolution, the Senate will not return until 3:00 p.m. on Monday, February 22. An uninterrupted 10-day break is exactly the minimum recess period established by the Supreme Court's NLRB v. Noel Canning ruling during which the president may exercise his recess appointment power. Whether intended or not, the GOP-controlled Senate has left Barack Obama a wide open appointment window. But it will be shut on Monday afternoon.

    When conservative commenters learned of the open window, they were not pleased. But even Senate GOP leadership aides acknowledge the unusual recess opportunity would allow Obama to make an immediate Supreme Court appointment: "He could appoint [Vice President Joe] Biden tonight if he wanted to.”

    Will President Obama immediately fill the vacant seat on the nation's highest judicial bench? If so, he would retain authority and obligation to also nominate someone (the recess appointee or another person) for a life-tenured appointment. Earl Warren, William Brennan and Potter Stewart each served as recess appointees on the Supreme Court while they waited for Senate confirmation to tenured positions. And will Obama use the 10-day recess to fill the many other empty executive, regulatory and judicial positions? He has a unique opportunity to ensure a fully staffed government for his final year in office.

  • February 17, 2016
    Guest Post

    by William Marshall, the William Rand Kenan, Jr. Distinguished Professor of Law, UNC School of Law; Marshall is also a member of the ACS Board of Directors.

    I understand that some have vehemently criticized Senator McConnell for proclaiming that “[t]he American people‎ should have a voice in the selection of their next Supreme Court Justice.” But Senator McConnell is right. The American people should have a voice in the selection of Supreme Court justices. And, as long as we are on the subject, we might also note that the American people should have a voice in the selection of judges appointed to the lower courts.

    The problem is that Senator McConnell has apparently forgotten that the American people have already exercised this right. In 2012, they elected Barack Obama President of the United States. This means that the American people have already voiced their decision that Barack Obama, under Article II § 2 of the United States Constitution should, among his other duties and obligations, “nominate Judges of the supreme Court.”

    It is really that simple. So simple, in fact, that John Adams, the second president of the United States, saw no problem in appointing John Marshall to be the Chief Justice of the Supreme Court even after Thomas Jefferson defeated Adams in the election of 1800. So simple that the United States Senate in 1801 confirmed Adams’ nominee event though Jefferson was only weeks away from assuming office. So simple that in 2016, no presidential candidate from either party has even remotely suggested that he or she would not nominate a candidate to the Supreme Court if a vacancy arose during his or her last year in office. (Where else has there been such unanimity in this race?)

    The contrary conclusion that a president should abrogate his duty to appoint judges at the end of his term simply cannot be squared with the Constitution. Article II sets the term of the presidency at four years; not three years, not three years and a quarter, and not three years and one half. The Twenty-Second Amendment to the Constitution imposes a two-term limit on the presidency – it does not impose a mid-term limit. Neither Article II nor Amendment XXII (or for that matter any other constitutional provision) suggests or implies that some presidential powers should be exercised until the president’s last day in office while others should be abandoned months or years before.

    Few constitutional questions are this easy. The president appoints Supreme Court justices, and the Senate provides advice and consent. Both should start doing their jobs.