Writing for Bloomberg, distinguished Harvard Law School professor Cass R. Sunstein objects to the “originalist” approach to constitutional interpretation. Sunstein reveals originalism’s “alluring siren’s call” and why “our constitutional tradition has been right to resist it.”
Today, members of the Privacy and Civil Liberties Oversight Board will testify before the Senate Judiciary Committee regarding their report on the National Security Agency’s bulk collection of phone records. Jennifer Granick of Just Security offers eight important questions Congress should be asking the PCLOB about the controversial surveillance tactics under section 702 of the FISA Amendments Act.
Last year, the Internal Revenue Service proposed new rules regulating political speech for select nonprofit organizations. Reporting for the ACLU’s Blog of Rights, Gabe Rottman and Sandra Fulton explain why these rules “create the worst of all worlds.”
At the NAACP, U.S. Secretary of Health and Human Services Kathleen Sebelius and NAACP Senior Director of Health Programs Shavon Arline-Bradley celebrate Black History Month with a discussion about the Affordable Care Act.
NPR’s Carrie Johnson notes Attorney General Eric Holder, Jr.’s call for 11 states to repeal laws prohibiting current or formerly convicted felons from voting
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.
by Michael Avery and Danielle McLaughlin. Mr. Avery is Professor of Law and Director of Litigation at Suffolk University Law School. Ms. McLaughlin is an associate at Nixon Peabody.
In mid-November the Democrats finally exercised the so-called “nuclear option,” barring filibusters for all votes on judicial appointments in the Senate, other than for Supreme Court Justices. The change in the Senate Rules followed the Republican filibuster of three of President Obama’s nominees for the very conservative D.C. Circuit Court of Appeals and the radical increase in opposition to presidential judicial choices by Republicans since 2009. According to Harry Reid, almost half of the filibusters of presidential judicial nominations in our Nation’s history have been used against President Obama’s selections. The rules change will allow a simple majority of senators present and voting to approve presidential nominees to the federal bench and eliminate the 60-vote supermajority required to overcome a filibuster.
Right-wing ideologues have been successful since the 1980 election of President Reagan in securing judicial appointments for conservatives during Republican presidencies. Ed Meese, the Reagan Attorney General and now elder statesman of the conservative legal movement, said that “no President exercises any power more far reaching, more likely to influence his legacy, than the selection of federal judges.” The Federalist Society, whose founders were mentored by Meese in the Reagan White House and Department of Justice, has always believed that the easiest way to change the law is to change the judges. We document their success in doing so at all levels of the federal judiciary in our book, The Federalist Society: How Conservatives Took the Law Back from Liberals. Federalist Society members are just as active with respect to judicial selection when a Democrat is president as they are when a Republican is in the White House. For example, in 2010, the Judicial Confirmation Network, formed to promote George W. Bush’s judicial nominations, simply changed its name to the Judicial Crisis Network (JCN), once President Obama began nominating judges. The leadership of the group remained in the hands of key Federalist Society members and it lobbied actively against the president’s appointments.
In an impassioned speech before a gathering on Constitution Day earlier this week retired Montana Supreme Court Justice James C. Nelson tackled the ongoing effects of the U.S. Supreme Court’s Citizens United v. FEC opinion and Justice Antonin Scalia’s defense of originalsim.
Nelson’s speech, a must-read for all interested in constitutional debate, started with a look at the Roberts Court’s 2010 opinion in Citizens United giving corporations greater ability to spend on elections, including judicial elections. Citing a recent study sponsored by ACS, Justice at Risk, Nelson (pictured) noted how quickly Citizens United has impacted state Supreme Court judicial elections. (Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions provides new data showing, among other things, a significant relationship between group contributions to state Supreme Court justices and the voting of those justices in cases involving business matters.)
Nelson said, in part:
Importantly for Montana judicial elections, the data show expenditures influenced judges’ decisions in both partisan and non-partisan elections systems. The report reveals the influx of expenditures generated by Citizens United and subsequent cases is having significant impact on judicial impartiality. The data demonstrate there is stronger correlation between business contributions and judges voting in the period from 2010 – 2012, compared to 1995 – 1998. And, unfortunately, Justice at Risk concludes that there is no sign that politicization of Supreme Court elections is lessening. Indeed, powerful interest groups’ influence on judicial outcomes will only intensify.
Nelson dove into the ongoing debate over constitutional interpretation, tying it to the outcome in Citizens United. Last month at a Federal Society gathering in Bozeman, Justice Scalia provided yet another defense of originalism as a serious method of constitutional interpretation.
In post for ACSblog’s 2013 Constitution Day symposium, Erwin Chemerinsky remarked that it is rather obvious why originalism is a wobbly way to attempt to interpret and apply constitutional principles and values. It makes little sense, Chemerinsky wrote, “to be governed in the 21st century by the intent of those in 1787 (or 1791 when the Bill of Rights was adopted or 1868 when the Fourteenth Amendment was ratified).”
At the University of Montana School of Law event, hosted by the ACS Montana Chapter, Nelson had similar observations, saying “originalism is grounded more in opportunistic hypocrisy than in fact and substance.”
by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law. This post is part of our 2013 Constitution Day symposium.
What are we celebrating on September 17, the 226th anniversary of the completion of the Constitutional Convention in Philadelphia in 1787? To be sure, we are celebrating a document that has facilitated democratic rule for over 200 years. We are celebrating a document that has allowed society, throughout American history, to debate many of its most controversial issues in legal terms. In other words, we are celebrating not just the document itself, but how it has been interpreted and implemented over the course of American history.
For several decades, conservatives have espoused originalism as a theory of constitutional interpretation. This is the view that the meaning of a constitutional provision is limited to its original intent. Originalism is the idea that the meaning of a constitutional provision is fixed when it is adopted and can change only by constitutional interpretation. In other words, originalists give no consideration to how the Constitution has been interpreted and implemented over the course of American history. In this way, they ignore what we really are celebrating about the Constitution.
Originalism does not reflect what the Supreme Court ever has done in interpreting the Constitution. The Court always has looked at the text and the underlying purpose and the original intent and traditions and precedents and contemporary social needs. Even the justices who most advocate originalism abandon it when it does not serve their purposes. Justices Scalia and Thomas, for example, are adamantly opposed to affirmative action and simply choose to ignore that the original intent of the equal protection clause was to allow race-conscious programs to benefit minorities. The Congress that ratified the Fourteenth Amendment, however, adopted many such efforts.
There is an obvious reason why originalism never has – and hopefully never will – be followed by a majority of the Court: it makes no sense to be governed in the 21st century by the intent of those in 1787 (or 1791 when the Bill of Rights was adopted or 1868 when the Fourteenth Amendment was ratified). Simple examples illustrate this. The Constitution uses the pronoun “he” to refer to the President and Vice President and the original understanding is that they would be men. An originalist would have to say that it is unconstitutional to elect a woman to these offices until the Constitution is amended.
The same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools. Under Justice Scalia’s theory of originalism, Brown v. Board of Educationwas wrongly decided.