Supreme Court

  • November 30, 2016

    by Caroline Fredrickson

    President-elect Trump posted one outlandish tweet after another all the way to the White House. But his latest tweet on flag-burning topped most of the others.

    On Nov. 29, Trump tweeted:

    Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!

    The tone and text of the post read like something that a ruler from a bygone era without the checks and balances of the U.S. Constitution would say.  Most alarming is the sweeping and ominous part about “consequences.” Fortunately, a chorus of critics checked Trump.

    The very next day, both The New York Times and The Washington Post editorialized against Trump’s tweet.  The headline in the Post’s View summed up the problem, “In one tweet, Trump trashes two constitutional amendments.”

    In 140 characters, the next president knocked the First and 14th Amendments. The Supreme Court ruled almost three decades ago that burning a flag is protected speech under the First Amendment. Ironically, Trump’s model of the ideal Supreme Court Justice, the late Antonin Scalia, joined the majority decision in the 1989 case, Texas v. Johnson.

    Even Senate Majority Leader Mitch McConnell (R-Ky.) and House Majority Leader Kevin McCarthy (R-Calif.) chimed in right after the tweet to educate the public and president-elect about the First Amendment protection. Both members of Congress felt compelled to voice their support for this protected speech. McCarthy tried to shut down the debate by stating the unlikelihood of congressional action.

  • November 23, 2016
    Guest Post

    by Lawrence O. Gostin, Founding O'Neill Chair in Global Health Law at Georgetown Law, Faculty Director of the O'Neill Institute for National and Global Health Law, Director of the World Health Organization Collaborating Center on Public Health Law & Human Rights, and University Professor at Georgetown Law

    Since 2002, the Supreme Court has banned the execution of people with intellectual disability. Writing for the Court, Justice John Paul Stevens looked to the clinical understanding of intellectual disability and explained that people with that condition bear diminished culpability “by definition” and are “categorically excluded from execution,” lest cruel and unusual punishment be imposed.

    In spite of this categorical ban, people with intellectual disability still face execution in the U.S. because Texas – the state that carries out far more executions than any other state – has disregarded the Supreme Court’s directive that intellectual disability evaluations in death penalty cases must be informed by the medical community’s diagnostic framework. The Supreme Court will soon have an opportunity to address Texas’s unusual and bizarre approach.

    Texas is a global outlier when it comes to its method for evaluating intellectual disability claims in death penalty cases. Remarkably, Texas prohibits the use of current medical standards. It is difficult, if not, impossible to locate any other jurisdiction in any country where it is forbidden to use current medical standards in evaluating intellectual disability. As with any field, when policy makers or courts not only defy scientific evidence or standards, but also disregard them, the results can be catastrophic—in this case, literally a matter of life or death. And briefs in the Supreme Court show that no other jurisdiction in the U.S. follows that practice.

  • November 14, 2016
    Guest Post

    by Arthur Bryant, Chairman, Public Justice

    While everyone waits to see how the election changes the Supreme Court, one thing is clear: workers’ rights hang in the balance. The Court is soon going to have to decide whether employers can use mandatory arbitration clauses in employment contracts to ban—and eliminate—workers’ collective and class actions.

    Four cases now up for review raise that question. All involve employees claiming they were cheated out of overtime pay—and employers arguing they cannot be sued because mandatory arbitration clauses in their employment agreements prohibit collective and class actions.

    Two federal circuits held employers can ban those actions. Two ruled they cannot. If the Court does not review any of these decisions, more are on the way. Suits raising the question are pending in five more federal courts of appeal.

    The four cases now before the Court show the arguments and the issues.

    In National Labor Relations Board v. Murphy Oil USA, Inc., the NLRB says the Fifth Circuit made an enormous mistake when it held the employer could use its mandatory arbitration clause to bar all workers at over 1,000 stores in 21 states from pursuing collective actions against it under the Fair Labor Standards Act and class actions in federal and state court. The clause says each worker has to proceed individually and alone.

    The NLRB insists that violates section 7 of the National Labor Relations Act, which gives employees “the right to…engage in…concerted activities for the purpose of…mutual aid and protection.” The Supreme Court previously said these “concerted activities” include actions pursued in “administrative and judicial forums.” Because the NLRB is charged with enforcing America’s labor laws, its interpretation is entitled to substantial deference. That interpretation stresses the importance of what is at stake: “the right to engage in collective action – including collective legal action – is the core substantive statutory right protected by the NLRA and the foundation on which the Act and Federal labor policy rest.”

  • November 8, 2016
    Guest Post

    by Nicholas Muellerleile

    It has been a year of distraction and scandal, to the point where the abstract strangeness of it all no longer registers. The extended vacancy on the Supreme Court would be the biggest political embarrassment of the year, if this were even close to being a normal year. Now, months later, we sit with a Scalia-shaped hole both on the bench of the nation's highest court and in our hearts, with seemingly no end in sight. How did things end up like this? What, if anything, can be done about it? Minnesota Sen. Amy Klobuchar and former Vice President Walter Mondale addressed these issues in a recent forum held at the University of Minnesota Law School, organized jointly the American Constitution Society’s Minneapolis-St. Paul Lawyer Chapter and Student Chapter at the University of Minnesota Law School, along with the University of Minnesota Law Democrats.

    One theme running throughout the forum was the notion that recently, in Congress, something has changed. Rote tasks, ministerial appointments and other basic functions of government have become political acts. Sen. Klobuchar told the audience of the struggles to pass the budget in late 2012. The end result was that she spent New Year's Eve between Sens. Reid and McConnell. “No Girl wants to do that”, she told the audience. Former Vice President Mondale called much of the current partisanship “childish” and spoke of his experience in the Senate. Qualified nominees for the court were passed with near unanimity. Even the appointment of William Rhenquist was, by comparison with today, an example of democracy in action, clearing the 66-vote threshold required.

    The voting threshold was one area where the speakers had different views. The supermajority requirement has been relaxed to 60 votes to confirm a Supreme Court Justice and there seemed to be some flexibility as to whether even that threshold should be lowered. Both Sen. Klobuchar and Former Vice President Mondale agreed that there was something special about the Supreme Court, something that required more than just the simple majority required for other appointments. Both speakers also seemed willing to admit that in light of the present deadlock, even 60 votes might be too high. But then what? 55? 53? Sen. Klobuchar stated that she would not be opposed to having the Supreme Court appointment be made a simple majority vote, “in the event it becomes a Constitutional crisis.” When pressed about this during the Q & A session, Sen. Klobuchar made clear that the issue was about political gridlock, not about trying to enforce different rules depending who would win the election. “You have got to live by the rules you set up,” Vice President Mondale added.

    Even in a forum discussing the Supreme Court vacancy, the presidential election loomed large. Both the speakers and the audience recognized that the stakes were high and there were murmurs of tense acknowledgement when Sen. Klobuchar commented that “this really is about our democracy.” In spite of all the rhetoric from some lawmakers, Sen. Klobuchar felt that there might be a chance of Garland getting appointed during the Obama lame duck session. Then again, maybe he will not be. After all, stranger things have happened this year.

  • November 3, 2016
    Guest Post

    *This post originally appeared on Crain's Chicago Business.

    by Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor at the University of Chicago

    In recent days, several leading Republicans, including Sens. Ted Cruz and Richard Burr, have argued that if Hillary Clinton is elected president, Senate Republicans should refuse to confirm any of her nominees to the Supreme Court. The very suggestion of such a strategy threatens to undermine core principles of our constitutional democracy.

    The driving motivation for those taking this position has nothing to do with principle. It is about partisan politics, plain and simple. Senate Republicans who refused even to hold hearings on President Obama's nomination of Chief Judge Merrick Garland pretended that the rationale for their stance was the “principle” that a president should not be allowed to appoint a justice in the final year of his term. Although that claim was plainly disingenuous and has no foundation in American history, the advocates of the “no Clinton nominees” position now go even further and insist that the Senate should not confirm any nomination by a president they do not like.

    This is entirely about partisan politics. They do not want to see a change in the ideological makeup of the Supreme Court. The problem, though, is that throughout our nation's history the Senate has consistently confirmed Supreme Court nominees even when they are made by a president of the opposite party and even when their confirmation would shift the ideological direction of the court.

    Indeed, of the 16 justices who have been confirmed in the last half-century, nine of them substantially altered the ideological balance on the Supreme Court. This includes, among others, Warren Burger for Earl Warren, John Paul Stevens for William Douglas, David Souter for William Brennan and Clarence Thomas for Thurgood Marshall. Interestingly, in eight of these nine confirmations, the new justice was nominated by a Republican president and moved the court significantly to the right. Nonetheless, they were confirmed, often by a Democratically controlled Senate.