by Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
Editor’s Note: This Thursday, November 7, the ACS Pittsburgh Lawyer Chapter and the University of Pittsburgh School of Law Student Chapter will host a Supreme Court Preview featuring Professor Tushnet and Professor Jules Lobel of the University of Pittsburgh School of Law. To hear more from Professors Tushnet and Lobel about Noel Canning and the rest of the Court’s October Term 2013, please RSVP here.
Courts of appeals panels with majorities appointed by Republican presidents have teed up a problem for the Supreme Court: Are the Court’s Republican appointees devotees of originalism or executive power – or, will they use originalism as an excuse for supporting executive power when the executive is a Republican but for opposing it when the executive is a Democrat?
National Labor Relations Board v. Noel Canning involves the president’s power to make recess appointments. Filibusters over nominations to the National Labor Relations Board had paralyzed the NLRB (aided and abetted by a Supreme Court decision holding that the NLRB couldn’t act through panels of fewer than three members), when Republicans in the Senate refused to go forward with nominations to fill three vacancies on the five-member board. Republican Senators also refused to allow a vote on the nomination of Richard Cordray to head the Consumer Financial Protection Bureau because they opposed the Bureau’s existence (and by law, the Bureau’s powers were quite limited in the absence of an agency head). President Obama responded by seizing on a technical “recess” in the Senate – a series of days out of session punctuated by minutes-long “pro forma” sessions – as the basis for making recess appointments to the NLRB and the CFPB.
With its new “members” on board, the NLRB entered an order against Noel Canning, which appealed. The U.S. Court of Appeals for the D.C. Circuit held that President Obama didn’t have the power to make the recess appointments because the recess appointment power allowed him to make appointments only when the Senate was between its major sessions – basically, between the adjournment of the House of Representatives pending an election and the new House’s convening. (A majority of the court of appeals also held that the recess appointment power extended only to vacancies that arose during that same period – not to vacancies that extended into a session of a sitting Congress.)
As the NSA spying scandal has progressed, congressional Democrats have grown co-opted by an Obama administration committed to defending, entrenching, and perpetuating the Bush administration’s legacy—despite the president’s campaign promises in 2008 to reverse it. This co-optation spells grave threats not only to partisan Democrats, but also to principled progressives attached to an ideology inadvertently weakened by partisan Democrats aligned with the president.
Rallying around President Obama…to shoot themselves in the feet
In August 2013, during the debate on the House defense appropriations bill, only 7 votes protected the NSA from debilitating budget cuts that would have ended its domestic bulk collection activities. Seven members of Congress could have changed the outcome of the vote, reflecting a razor thin (under 2%) margin of victory for the surveillance state.
That margin of victory could be explained in many ways. One explanation may surprise progressives: Democrats from the Bay Area and Chicago, representing safe blue seats, who were outspoken about surveillance abuses at one point, comprised the NSA’s entire margin of victory. They chose to resign their principles, oaths of office, and constituents’ concerns in order to support their partisan patron, the president. They’re carrying the Bush administration’s water because it’s now President Obama holding the glass.
In December, the Supreme Court is scheduled to hear an important case out of Mount Holly, New Jersey, that involves Fair Housing Act (FHA) claims in the context of an effort by Mount Holly Township to use eminent domain to redevelop its only predominately minority community – and in the process, displace and raze the homes of its residents. As such, the case raises an important test of whether conservatives hate eminent domain more than they detest civil rights statutes like the FHA that protect minority homeowners from unjustified disparate impact. The answer apparently is the latter.
As everyone knows, the property rights movement has led a crusade against eminent domain in the courts over the past decade, highlighted by the case of Kelo v. New London. While they lost Kelo, property rights groups such as the Institute for Justice and the Pacific Legal Foundation (PLF) have used public sentiment against the Kelo ruling to fuel ballot initiatives and legislation that have passed in whole or in part in 42 states. A critical talking point for leading groups in this crusade has been the impact that eminent domain can have on low-income and minority communities. This concern has activated some important groups on the Left. For example, the NAACP, the Southern Christian Leadership Conference, and other big names of the civil rights community filed briefs for the plaintiff in Kelo alongside the property rights groups.
It would seem, then, that something we could all agree on is that eminent domain should not be used as a tool for racial discrimination. That is precisely what is being alleged by the homeowners in the Mount Holly case, whose homes are slated to be demolished to make way for a planned community of significantly more expensive housing units with a tony-sounding name, “The Villages at Parker’s Mill.” They are seeking a court hearing on their claims under the FHA that the township is employing eminent domain in a way that unjustly disadvantages minority homeowners and residents.
For American communities of color, the latest revelations about U.S. government surveillance, at home and abroad, has been met without much surprise and with a long memory of the injustice suffered by minority groups since our nation’s inception.
“We are a settler-colonial nation,” explained Fahd Ahmed. “Race and social control are central to the project.” As the legal and policy director for Desis Rising Up and Moving, an organization dedicated to organizing and amplifying the voice of immigrant workers, Ahmed has seen first-hand how the government isolates and targets vulnerable populations. In particular, he noted the targeting of Muslims by the NYPD under the supposition of anti-terrorism efforts, but was careful to emphasize the broader scope of the present danger. “These practices won’t be limited to one community,” he said. “After all, surveillance has a purpose – to exert the power of the state and control the potential for dissent.”
Other panelists reached similar conclusions. Surveillance is “not anything new” for people of color, observed Adwoa Masozi, a communications specialist and media activist. Recalling the COINTELPRO programs of the 1960s and 1970s, she named the major difference between then and now: “The government is just more open about it.”
Alfredo Lopez, the founder of May First/People Link, called the recent news an indication that “the ruling class is figuring out how to rule a society that is rapidly changing beneath it.”
Seema Sadanandan of the American Civil Liberties Union’s National Capital Area Affiliate called the last few months a “tough time for white people,” whose relatively unchallenged faith in the Bill of Rights has been profoundly shaken.
Still, the next steps were harder to assess. For example, what role do lawyers and the law have in movements against this kind of surveillance? And how should activists interact, if at all, with the Internet and popular platforms like Facebook and Twitter?
The government shutdown has not resulted, so far, in the Supreme Court shuttering its doors and its 2013-2014 Term starts Oct. 7. The new Term might fairly be dubbed a stealth term, especially after two "blockbuster" ones that produced major rulings on health care reform, marriage equality, voting rights and affirmative action. But the new term, like many terms, carries the potential for significant change.
Justice Ruth Bader Ginsburg recently tagged the Roberts Court as the most activist in terms of overturning acts of Congress. It's also a Court that has made it more difficult for many Americans to access the court system and produced win after win for business interests.
So let's look at a few of the cases that should be on everyone's radar. These cases should also remind us of the importance of judges who interpret the Constitution with a deep understanding of our challenges today and the ability to apply the Constitution's broad language and principles to them. For it makes little sense, as Erwin Chemerinsky notes in this ACSblog post, "to be governed in the 21st century by the intent of those in 1787 ...." For additional discussion of the forthcoming Term, see the annual preview hosted by the American Constitution Society for Law and Policy (ACS).