Supreme Court

  • October 22, 2014
    Guest Post

    by Jason Steed, Associate at Bell Nunnally.

    *This is part one of a three part series.

    There’s been a lot of talk lately about term limits for Supreme Court justices. Norm Ornstein brought renewed attention to the issue in May. Erwin Chemerinsky has proposed term limits in his new book, The Case Against the Supreme Court. And a recent poll asked about it, and shows nearly 70% of the public thinks term limits are a good idea.

    I was invited to write a blog post on this topic because I have a short article forthcoming in the December issue of The Federal Lawyer, which also makes a case for term limits. But unlike Ornstein and Chemerinsky, my primary focus isn’t the politics or ideology of the Court. My focus is on the 1968 presidential election.

    In a nutshell, a confluence of circumstances turned the 1968 election into a watershed for the Supreme Court. The newly elected Nixon was suddenly able to appoint four new justices to the Court—in his first term—transforming the progressive Warren Court into the moderately conservative Burger Court, and setting a trajectory (through the appointment of William Rehnquist) for the much more conservative Court that we have today. (You’ll have to read the article when it comes out, to get my full take on the story.)

    Yes, this transformation of the Court—politically and ideologically—has been deeply troubling for progressives over the last 40 years. But it would be a mistake, when making an argument for term limits, to spend too much time complaining about the longevity of the Court’s rightward bent. Imposing term limits will require a constitutional amendment, which will require support from both sides. And you can’t get support from both sides if you’re complaining about something that one side really, really likes.

  • October 8, 2014
    Guest Post

    by Alex J. Luchenitser, Associate Legal Director, Americans United for Separation of Church and State

    The Supreme Court this week heard arguments in Holt v. Hobbs, a challenge to a prison’s refusal to let an inmate grow a half-inch beard to comply with his Islamic religious beliefs. Most church-state cases that reach the Court are deeply divisive. In Holt, on the other hand, there appears to be a broad consensus among religious-freedom advocacy groups, as well as the justices themselves, that the prisoner should prevail.

    Groups that are typically at odds in church-state cases, such as my organization Americans United for Separation of Church and State and the Becket Fund for Religious Liberty, supported the prisoner’s claims. And from the questions posed by the justices, it appears that the prisoner will win unanimously or nearly so.

    The prisoner, Gregory Holt (who now goes by the name Abdul Maalik Muhammad), brought his claim under the Religious Land Use and Institutionalized Persons Act, which is known by the difficult-to-pronounce acronym RLUIPA. RLUIPA prohibits a prison from substantially burdening an inmate’s religious exercise unless the prison is furthering a compelling governmental interest through the least restrictive means of doing so.       

    More than forty states, as well as the federal prison system, allow beards of the length that inmate Holt requested. Yet the defendant Arkansas prison system advanced two justifications for its denial of the beard: First, Arkansas argued, prisoners could hide contraband even in short beards.  Second, according to Arkansas, allowing prisoners to have facial hair could make it difficult to identify inmates within the prison.

    Justices who often hold diametrically opposing views on church-state and other hot-button issues were united in being deeply skeptical of these assertions.

    Justices Ruth Bader Ginsburg and Samuel A. Alito noted that it would be much easier to hide objects in a head of hair, pointing out that Arkansas prisons allow inmates to have voluminous locks. Justice Alito also pointed out that even if it were possible to hide contraband in a half-inch beard, prison guards could easily expose such contraband by simply making the inmates comb their beards so that anything hidden falls out.

  • September 26, 2014
    Guest Post

    by Neil J. Kinkopf, Professor of Law, Georgia State University College of Law

    A growing chorus of legal scholars has argued that President Obama’s move against the Islamic State of Iraq and the Levant (ISIL) lacks legal authority. Professor Noah Feldman has most recently added his voice. He first made the claim on Tuesday in a blog post and repeated it Thursday on NPR’s “All Things Considered.” Feldman assures his readers that “We can dispense quickly the justifications that the administration has proffered ….”   True to his word, Feldman dispenses with the arguments quickly – too quickly, leaving his analysis facile and utterly unpersuasive. 

    In fact, at least three sources firmly establish the President’s authority to proceed against ISIL. 

    1.  Days after the terrorist attacks of September 11, 2001, Congress specifically empowered the President to respond.  Under the 2001 Authorization of Use of Military Force, “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons ….”   Prof. Feldman argues that this law does not support the President’s action against ISIL.  Here’s the full argument:

    The 2001 authorization is less applicable still. In it, Congress told the president he could make war on anyone he determines to have “planned, authorized, committed, or aided” the Sept. 11 attacks. The George W. Bush and Obama demonstrations [sic] have vastly expanded this language to cover al-Qaeda affiliates and spinoffs that didn't exist in 2001. But even these extensions don't cover Islamic State, which is not only unaffiliated with al-Qaeda but also at war with its affiliate in Syria, known as the Nusra Front.

  • September 26, 2014

    by Caroline Cox

    Harry Enten of FiveThirtyEight challenges the assertion that someone like Justice Ruth Bader Ginsburg could not be confirmed to the Supreme Court today.

    In the New Republic, Yishai Schwartz looks at the possible cases the Supreme Court could hear on same-sex marriage and argues the Court should follow the lead of the U.S. Court for the Tenth Circuit.

    The current Supreme Court is primarily concerned with protecting majority rights argues Garrett Epps for The Atlantic.

    Geoffrey R. Stone writes for The Daily Beast on the mixed legacy, particularly on issues of civil liberties, of Eric Holder.

    In Slate, Jamelle Bouie presents a more positive message of Eric Holder’s record, and argues that the partisan environment was his major challenge. 

  • September 25, 2014
    BookTalk
    The Case Against the Supreme Court
    By: 
    Erwin Chemerinsky

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    How should we assess the Supreme Court’s performance over the course of American history? That is the central question of my new book, The Case Against the Supreme Court. My conclusion is that the Supreme Court often has failed at its most important tasks and at the most important times. Recognizing this is important in order to focus on how to improve the institution and make it much more likely to succeed in the future.

    Obviously the evaluation of any institution requires criteria by which it can be assessed.   In the introductory chapter, I posit that the Court exists, above all, to enforce the Constitution. The Constitution exists to limit what government and thus the democratic process can do. As Marbury v. Madison said long ago, the limits contained in the Constitution are meaningless unless enforced and that is the “province and duty” of the courts. The judiciary is particularly important in protecting the rights of minorities (of all sorts) who cannot rely on, and should not have to rely on, the democratic majority. Also, the courts need to play a special role in times of crisis to ensure that society’s short-term passions do not cause it to lose sight of its long-term values.

    I believe that all, liberal and conservative, can agree that these are fair criteria by which to assess the Supreme Court. I also think that liberals and conservatives can agree that the Court very often has failed. Part I of the book looks at the Court historically. Chapter one looks at the Court’s dismal record over the course of American history with regard to race. For the first 78 years of American history, from 1787 until 1865, the Court aggressively protected the rights of slave owners and upheld the institution of slavery.  For 58 years, from 1896 until 1954, the Court approved and enforced the doctrine of “separate but equal.” The Court’s failure with regard to race continues to this day, as evidenced by the decision in Shelby County, Alabama v. Holder, which declared unconstitutional a key provision of the Voting Rights Act of 1965. This is the first time since the 19th century that the Court has invalidated a federal civil rights law to protect racial minorities.