Guest Post

  • March 31, 2016
    Guest Post

    by Gregory Magarian, Professor of Law, Washington University School of Law

    Today I and nine other law professors who study the Second Amendment and legal issues related to gun violence have called on the Senate Judiciary Committee to evaluate President Obama's nomination of Merrick Garland to the United States Supreme Court without regard to the right-wing fantasy that Judge Garland hates the Second Amendment.  Senate Majority Leader McConnell has all but stated that the N.R.A. will dictate the Senate's approach to its constitutional responsibility of advice and consent on the nomination.  The N.R.A. has all but branded Judge Garland a gun-seizing thug.  Both positions are very important and very dangerous.

    In Judge Garland's nearly two decades on the D.C. Circuit, he has twice encountered cases that touched on gun rights.  In one case he voted, along with a bipartisan group of colleagues, for en banc rehearing of a panel decision that upheld an individual right to keep and bear arms, the decision the Supreme Court eventually affirmed in District of Columbia v. Heller. In the other case he wrote an opinion that let the George W. Bush administration temporarily maintain some records about gun ownership. The idea that, based on those actions, a Justice Garland would vote to overrule or limit the decisions in Heller and/or McDonald v. Chicago is, regrettably, irrational. The N.R.A., however, portrays the barest nod toward caution or procedural regularity about gun rights as a black helicopter on the horizon.

    That unhinged or calculated (take your pick) attitude toward the law makes it especially terrifying that the Senate Republican Conference has effectively outsourced its judgment about the Court to the N.R.A. The Senate is supposed to work for the American people. The present Senate -- to whatever minimal extent it deigns to work at all -- has sworn blind obedience to one very special interest group, a group whose sole reason for being is to make sure that any person, no matter how homicidal, can add to his private arsenal any gun, no matter how lethal.

  • March 30, 2016
    Guest Post

    by Charlotte Garden, associate professor at Seattle University School of Law, litigation director of the Korematsu Center for Law & Equality, and faculty advisor to the ACS student chapter at Seattle Law. Follow her on Twitter @CharlotteGarden.

    On Tuesday, the Supreme Court affirmed the Ninth Circuit’s decision in Friedrichs v. California Teachers Association by equally divided vote. This result—a win for public sector unions—has been anticipated by Court watchers since Justice Scalia’s death made a tie vote among the remaining eight justices nearly inevitable. Still, a tie vote did not require the Court to affirm the judgment below—instead, the Court could have held the case over for reargument once it was back to the full compliment. That the Court did not go that route could reflect the Justices’ own recognition of the political reality that Senate Republicans’ intransigence makes confirmation of a ninth justice before the presidential election in November unlikely. More important, though, Friedrichs is a sign of things to come—the 4-4 affirmances that are all but certain to arrive later this Term will cause far more disruption and uncertainty.

    What Does Affirmance in Friedrichs Mean for Public Sector Unions?

    As I previously described for ACSblog, January’s argument in Friedrichs left public sector unions—as well as states that have chosen to manage their workforces through collective bargaining with unions supported by agency fees—little reason for hope. The Court seemed poised to hold that public sector employees have a First Amendment right not to contribute financially to the unions that represent them, even as they benefit from that representation. A ruling against the union and state defendants would have reversed a nearly 40-year-old Supreme Court precedent, Abood v. Detroit Board of Education, and handed a long-sought victory to the right.

    Thus, Tuesday’s decision was a reversal of fortunes for public sector unions and employers. It means that in the nearly half of states in which public sector agency fees are required or authorized, unions will not be left scrambling to cover the gap that would have inevitably resulted when represented workers made the economically rational decision to free ride on their co-workers. And the timing of that reversal—which would have left unions to cover their shortfall using dues paid by members on a voluntary basis—is also critically important. Unions would have had to divert member dues that could otherwise have gone to election-related advocacy (among other things). And that reallocation would have dampened union members’ ability to engage in political speech through their unions during the upcoming presidential election season—a fact not lost on the plaintiffs’ lawyer, Michael Carvin.

  • March 29, 2016
    Guest Post

    by Mark S. Kende, James Madison Chair Professor in Constitutional Law and director of the Drake University Constitutional Law Center. Professor Kende serves as faculty advisor to the ACS student chapter at Drake University Law School.

    *This post originally appeared in The Des Moines Register.

    A group is running television advertisements in Iowa on behalf of Sen. Chuck Grassley saying that he wants “the people” to select the next U.S. Supreme Court justice to replace the Honorable Antonin Scalia, via this year’s presidential election.  Grassley justifies refusing to hold hearings as chair of the Senate Judiciary Committee on President Obama’s distinguished nominee, U.S. Court of Appeals Judge Merrick Garland, for this reason even though Garland has received support from distinguished Republicans such as Ken Starr and Sen. Orrin Hatch. Yet the Grassley advertisement misinforms Iowans.

    The U.S. Constitution specifically authorizes the president, not “the people,” to nominate Supreme Court justices. The Senate must give its “advice and consent,” but it’s the president’s choice. And by the way, President Obama was elected by “the people” through our electoral college for a full four-year term, not three years.

    Grassley assumes Iowans will not notice the misinformation campaign because he is making his position sound very democratic and populist. Yet it’s just incorrect. And Senator Grassley is not following his own frequent statements about strict allegiance to the text of the Constitution in his advertisements. Moreover, polls show that most people vote for a presidential candidate based on a number of reasons, including the Supreme Court. Other people worry about the economy or terrorism. So his statements that the presidential election is a referendum on the Supreme Court is not accurate.

    Some Republican leaders, including Senator Grassley, initially said that no vote should be held because Supreme Court confirmation decisions historically were not made in presidential election years. Yet Grassley had no problem when a Democratic-controlled Senate confirmed Republican presidential court nominee Justice Anthony Kennedy in 1988 during an election year.

  • March 24, 2016
    Guest Post

    by Lara Schwartz, Professorial Lecturer at American University School of Public Affairs, and John Burns, who will graduate from the School of Public Affairs in May 2016

    Although Americans across the political spectrum use our Constitution as a rallying cry, what Americans think the Constitution means is by no means static or certain. The battle to fill a vacancy created by Justice Antonin Scalia’s death provides a window both to what Americans think about the Court and Constitution and to how little we know about the subject.

    Since Associate Justice Antonin Scalia’s death and Senate Republican leadership announcing its intention not to consider any nominee President Obama put forward to fill the vacancy, players on both sides of the aisle have tried to stake claims to the most valuable real estate there is. First, what our Constitution requires: Democrats claim the Constitution requires the President to nominate (and they have a decisive “shall” on their side) and requires the Senate to consider the nomination. Republicans counter that the critical “shall” does not apply to the Senate, and that nothing in our Constitution requires them to act.

    Second, both sides want what the American people want. Republicans brand their position as a battle to give the American people a voice in the decision. Democrats, on the other hand, point to opinion polls showing that a majority of Americans disapprove of the Republicans’ plan not to hold hearings. Democrats should not assume this means they have the moral high ground; 62 percent of respondents to a Wall Street Journal poll believed Democrats would do the same thing if they were in the GOP’s position.

    It is tempting for lawyers and students of our Constitution to infer that the public’s preference for confirmation hearings and a vote means that they agree with President Obama’s judicial philosophy or his choice of Merrick Garland (61 percent approve). But the question of how public opinion on the nomination will ultimately go is not that simple, nor can we reasonably conclude that it is perfectly aligned with American’s views of our Constitution or the Court. In fact, public opinion research would tend to show that the public’s low opinion of Congress could just as easily explain their disapproval of Senator McConnell’s gambit.

    It is highly unlikely that Americans support confirming President Obama’s nominee because they believe that replacing Scalia will move the Court to the left. First, although the late Justice Scalia looms as a giant among lawyers and those who follow the Court closely, as late as July 2015, 32 percent of the American public didn’t know who he was. Additionally, in a 2013 survey, 20 percent misidentified him as the Court’s swing vote. (In fact, most Americans cannot identify even one Supreme Court justice).

    Second, in spite of the Roberts Court’s conservatism―striking down a key portion of the Voting Rights Act, eviscerating civil litigants’ access to redress against corporate malfeasance, and recognizing for-profit corporations’ religious liberties—37 percent of Americans view the Court as “too liberal,” compared to only 20 percent who view it as “too conservative.” In fact, only 30 percent of liberal Democrats view the Court as conservative, while 49 percent see it as “middle of the road” and 17 percent consider it liberal. Not surprisingly, opinions of the Court as liberal increased sharply after the two decisions upholding the Affordable Care Act and the Court’s 2015 decision recognizing the right of same-sex couples to marry. When the public sees the Court as liberal, progressives should not interpret public opinion about the current nomination as a desire for a more liberal court. Nor should a campaign to confirm Merrick Garland be based entirely on the assumption that Americans are hungry to tack left.

  • March 23, 2016
    Guest Post

    by Caroline Mala Corbin, professor of law, University of Miami School of Law. Corbin is the author of an ACS Issue Brief, The Contraception Mandate Accommodated: Why the RFRA Claim in Zubik v. Burwell Fails.

    Today, the Supreme Court will hear arguments in Zubik v. Burwell. Zubik represents the second challenge to the contraception benefit of the Affordable Care Act, which requires that health care plans include all FDA-approved contraception without any cost sharing. In Hobby Lobby v. Burwell, for-profit businesses with religious objections won a RFRA challenge to it. In this term’s Zubik v. Burwell, it is religiously affiliated nonprofits like Baptist universities and Catholic Charities challenging the contraception benefit.

    There is, however, is a major difference between Hobby Lobby and Zubik: These religiously affiliated nonprofits are already exempt from the contraception mandate. Once a nonprofit certifies that it is religiously opposed to contraception and notifies either their insurance carriers or the Department of Health and Human Services, the responsibility for contraception coverage shifts to private insurance companies. The nonprofit does not have to provide, pay for, or even inform their employees or students of the separate coverage.

    Despite the ability to opt out of contraception coverage, many nonprofits complain that the religious accommodation itself imposes a substantial religious burden in violation of the Religious Freedom Restoration Act (RFRA). According to these nonprofits, providing notice of their objections triggers the provision of contraception to their employees and students, thus making them complicit in sin.

    Their RFRA claim cannot succeed. RFRA requires that the contraception regulations impose a substantial religious burden and fail strict scrutiny, and neither requirement is met. First, filing paperwork to receive an exemption is not a substantial burden on the nonprofits’ religious exercise. The nonprofits’ claims to the contrary are based on a legal mistake. Their belief that they are complicit in the sin of contraception use rests on the assumption that their written refusal triggers the provision of contraception. As a matter of law, they are wrong. Their paperwork does not cause contraception coverage. The Affordable Care Act does. It is federal law, not the completion of any form, that creates the insurance companies’ obligation to cover contraception. All the paperwork does is extricate the nonprofit organizations from the coverage. Although courts must defer to the nonprofits’ interpretation of religious theology, courts should not defer to their interpretation of federal law.