• September 20, 2013

    by Jeremy Leaming

    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.”

  • September 16, 2013
    Guest Post

    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 Education was wrongly decided. 

  • June 28, 2013

    by John Schachter

    Article III of the U.S. Constitution plainly states that members of the Supreme Court “shall hold their Offices during good Behaviour.” For so-called textualists or strict constructionists who believe in using the actual words of the Constitution to interpret its meaning the time has come to kick Justice Samuel Alito off the bench.

    I have a nearly 14-year-old son – also named Samuel, by the way. Ever since he was toddler, we have told him to show respect for his peers, teammates, friends and teachers, for young and old alike. (Even for his parents, hard as that message is to sell.) When he scoffs at others’ opinions, interrupts those sharing their thoughts or – most annoying of all – rolls his eyes when someone is speaking, we reprimand him for his “bad behavior.”

    Justice Alito apparently never learned this lesson. As a result his behavior on the Court (and sometimes outside it) is anything but exemplary. It seems that it’s not just his opinions and votes that are offensive, but that his treatment of colleagues and other esteemed leaders is equally odious.

    The Washington Post’s Dana Milbank chronicled Alito’s rude treatment of Justice Ruth Bader Ginsburg during the Court’s closing sessions, as he “visibly mocked” her during her reading of a dissent to one of his right-wing opinions. His eye-rolling also caught the attention of The Atlantic’s Garrett Epps, who called the behavior a “mini-tantrum” that “brought gasps from more than one person in the audience.”

    Milbank reported that Alito’s insolence extends beyond his ocular offenses aimed at Ginsburg. Days before as both Justices Elena Kagan and Sonia Sotomayor read from opinions in other cases Alito “demonstrated his disdain” for his colleagues by glowering, shaking his head and (it must be his signature move) rolling his eyes.

    Of course, all of this bad behavior comes on the heels of Alito silently yet snippily scolding President Obama during the 2010 State of the Union address when the president had the audacity to criticize the Court’s decision in Citizens United.

    When it comes to bad behavior, it doesn’t take an experienced jurist or constitutional scholar to “know it when [we] see it.” (It’s a lot easier to define than pornography.) So for those who believe in the words and text of the Constitution, let’s hear your call for Alito’s removal – or let’s hear your contorted reasoning why not.

    But you better not simply roll your eyes.

  • April 18, 2013

    by Jeremy Leaming

    Whether Justice Antonin Scalia is toiling away in the cloistered halls of the Supreme Court or speaking before right-wing think tanks or groups of law school students he has over the years proven a knack for annoying large swaths of people. And does anyone believe Scalia cares?

    What Scalia has done is to tamp down a handful of Supreme Court reporters who for years assured us the conservative justice was the high court’s sharpest thinker and nimblest writer and witty too. Those reporters, however, have had to give up the narrative thanks in large part to Scalia’s increasingly cranky, bizarre, racially insensitive, and unnecessarily over-the-top commentary. It has also helped that a lot more people call out Scalia for his ridiculousness. He might thrill American Enterprise Institute or the Federalist Society, but others paying attention are increasingly seeing a serial offender, with a wobbly way of interpreting the Constitution.

    He’s on bit of a roll this year. In February during oral argument in Shelby County v. Holder, the case involving a challenge from a largely white community in Alabama to the Voting Rights Act’s integral provision, Section 5, Scalia said the Act perpetuates racial entitlement. But Scalia couldn’t stop there; he had to add flippantly that the reason Congress reauthorized the Voting Rights Act was that lawmakers couldn’t bring themselves to vote against a measure with such a “wonderful name.”

    What these offensive and flippant asides have to do with the constitutional and other questions before the high court is anyone’s guess. It’s likely the acidity was all theatrics.

    The high court in Shelby will hopefully decide the case by looking at the text and history of the Constitution, in particular the 14th and 15th Amendments, which give Congress great discretion  in creating and enforcing appropriate laws to ensure that states do not discriminate in voting. Scalia’s disdain for the Voting Rights was evident, so it is likely he’ll find a way to contort so-called “originalism” to argue for gutting the law’s primary enforcement provision. (Section 5 requires states and localities, mostly in the South, with long histories of suppressing the minority vote to obtain preclearance from a federal court in Washington, D.C. or the Department of Justice before altering their voting procedures, to ensure they do not intentionally or unintentionally discriminate against minority voters.)

    This week during a talk before some law students in Washington, D.C., Scalia piled on, telling the students that Section 5 is an “embedded form of “racial preferment.”

    George Washington University law school professor Spencer Overton pushes back against Scalia’s racially charged attack on the Voting rights Act.

  • February 14, 2013
    Guest Post

    by Doug Kendall, founder and president, Constitutional Accountability Center. This piece is crossposted at CAC’s Text & History Blog.

    One of the glaring things revealed by a review of the briefs in Shelby County v. Holder is the dearth of serious constitutional scholars in the fray supporting the conservative attack on the Voting Rights Act. On Shelby County’s side are the predictable array of political scientists like Abigail Thernstrom, election policy hacks like Hans von Spakovsky, and Reagan-era war horses like John Eastman. But where are the leading conservative constitutional thinkers on this – Mike McConnell, Eugene Volokh, Randy Barnett, Gary Lawson, and Steve Calabresi?  None of these bright-light conservative names grace the briefs on behalf of Shelby County and, so far, their silence has been deafening in the public debate.  As University of Kentucky law professor Josh Douglas has pointed out over at PrawfsBlawg, it’s really hard to find a credible academic to provide “balance” to a panel discussion on Shelby (though Cato’s Ilya Shapiro has gamely offered to fill this void).