Supreme Court

  • March 9, 2016
    Guest Post

    by Geoffrey R. Stone, Edward H. Levi, Distinguished Service Professor of Law, The University of Chicago

    * This post was excerpted from Professor Stone’s statement to the Senate Democratic Steering and Outreach Committee.

    In a recent piece in The Washington Post, Miguel Estrada and Benjamin Wittes proclaimed that the only rule that now governs the confirmation process for Supreme Court justices “is the law of the jungle: There are no rules.”

    This is a profoundly misleading – and dangerous – statement. If taken seriously and acted upon, this misconception would undermine 225 years of well-settled tradition and throw the Supreme Court confirmation process into a state of partisan chaos that would damage both the rule of law and the Supreme Court as an institution.

    In fact, when we take a deep breath and actually examine the performance of the Senate over time, it is clear that the Senate defers to the president in these matters as long as the president puts forth nominees who are clearly qualified for the position and who are reasonably moderate in their views. Indeed, this has been the outcome in every single nomination in the last 60 years and, as far as I can discern, in every nomination in American history.

    Moreover, this is true even when the senators disagree with a nominee’s judicial philosophy, even when the Senate is controlled by the opposing party, even when the nominee’s confirmation is likely to have a significant impact on the balance on the Court, and even if the final year of a president’s term. When all is said and done, nominees who are both qualified and moderate are confirmed. Period.

    The “no rules/law of the jungle” assertion is premised primarily on the fact that since the Supreme Court’s 2000 decision in Bush v. Gore, members of the Senate have tended to vote in a more partisan manner than in the past. This is true. In the Roberts, Alito, Sotomayor, and Kagan confirmations, members of the opposing party cast only 26 percent of their votes to confirm, whereas in the five preceding Supreme Court nominations senators from the opposing party cast 73 percent of their votes to confirm.*

    This is, indeed, a troubling trend. It is due largely to the much greater involvement of interest groups in the confirmation process, a phenomenon that raises the political stakes for members of the Senate and gives them an incentive to vote in a more partisan manner. But it is important not to blow this out of proportion. In fact, in the years since 2000 every one of those four nominees was confirmed by the Senate, and they were confirmed with appreciable bipartisan support.

  • March 4, 2016
    Guest Post

    by Jill E. Adams, J.D., Chief Strategist, SIA Legal Team; Executive Director, Center on Reproductive Rights and Justice

    Anyone who’s read the transcript or colorful dispatches from Wednesday’s oral arguments in the Whole Woman’s Health case knows the four liberal-leaning Justices took some of the swagger out of Texas Solicitor General Scott Keller.

    What Knocked Keller Off His Lone Star High Horse?

    That would be many illuminating laser lines of questioning, among them Justice Breyer’s about how closing facilities, cutting off clinical access to safe medications and procedures, delaying abortions until later in pregnancy, and forcing women onto freeways and into overnight stays hundreds of miles away from home just might lead to an increase in the number of women who end their own pregnancies outside of the formal health care system. Justice Breyer and his sistren repeatedly call out the illogic of these cascading effects flowing directly from the state’s dementedly disingenuous claim of wanting to enhance women’s health by enacting the sweeping set of anti-abortion laws that is HB2.

    What Happens When There Is a 75 Percent Reduction in the Number of Clinics?

    Here’s a hint: It isn’t fewer abortions.

    Justice Breyer correctly points out that excessive restrictions on abortion provision limit clinic access and increase the necessity for self-administered abortion care. The Texas Policy Evaluation Project report concluded that as many as 100,000 women in Texas have already attempted to end their own pregnancies outside the formal medical system. Global data have consistently demonstrated that highly restrictive laws do not reduce the abortion rate, they simply relocate the site of abortion care from the hospital to the home.

    Before your mind goes conjuring up gruesome images, take note that this is not your grandmother’s self-induced abortion. Coat hangers and other dangerous methods, while still occasionally employed, have largely given way to safer methods. More often than not, the women in the TxPEP report, and other studies, used traditional herbs or safe and effective pharmaceutical pills purchased online―the same pills they would be prescribed by a healthcare professional for a fraction of the costs.

    What Abortion Access Looks Like Under HB2 for People Living in Poverty

    The abortion costs borne by people living in poverty are much higher than one might think. A pregnant woman in Texas who is struggling to make ends meet may be shocked to discover that her health insurance doesn’t cover abortion. Like the rest of the 13.5 million women of reproductive age in the United States who rely on Medicaid, she’ll have to pay out of pocket for the abortion medication or the procedure, both of which cost about $500 in the first trimester. Tack onto that the price of bus tickets or gas, which could be high if she’s one of the 10,000 women who live more than 150 miles from the nearest abortion provider under HB2. Plus, she has to come up with money for a place to stay overnight and child care for the kids she had to leave behind. That’s all assuming she can afford the lost wages for the days away from work. All told, securing an abortion can cost some families half a month’s pay.

    Mustering Bravery and Ingenuity to Secure an Abortion

  • March 4, 2016
    Guest Post

    by Jill E. Adams, J.D., Chief Strategist, SIA Legal Team; Executive Director, Center on Reproductive Rights and Justice

    Anyone who’s read the transcript or colorful dispatches from Wednesday’s oral arguments in the Whole Woman’s Health case knows the four liberal-leaning Justices took some of the swagger out of Texas Solicitor General Scott Keller.

    What Knocked Keller Off His Lone Star High Horse?

    That would be many illuminating laser lines of questioning, among them Justice Breyer’s about how closing facilities, cutting off clinical access to safe medications and procedures, delaying abortions until later in pregnancy, and forcing women onto freeways and into overnight stays hundreds of miles away from home just might lead to an increase in the number of women who end their own pregnancies outside of the formal health care system. Justice Breyer and his sistren repeatedly call out the illogic of these cascading effects flowing directly from the state’s dementedly disingenuous claim of wanting to enhance women’s health by enacting the sweeping set of anti-abortion laws that is HB2.

    What Happens When There Is a 75 Percent Reduction in the Number of Clinics?

    Here’s a hint: It isn’t fewer abortions.

    Justice Breyer correctly points out that excessive restrictions on abortion provision limit clinic access and increase the necessity for self-administered abortion care. The Texas Policy Evaluation Project report concluded that as many as 100,000 women in Texas have already attempted to end their own pregnancies outside the formal medical system. Global data have consistently demonstrated that highly restrictive laws do not reduce the abortion rate, they simply relocate the site of abortion care from the hospital to the home.

    Before your mind goes conjuring up gruesome images, take note that this is not your grandmother’s self-induced abortion. Coat hangers and other dangerous methods, while still occasionally employed, have largely given way to safer methods. More often than not, the women in the TxPEP report, and other studies, used traditional herbs or safe and effective pharmaceutical pills purchased online―the same pills they would be prescribed by a healthcare professional for a fraction of the costs.

    What Abortion Access Looks Like Under HB2 for People Living in Poverty

    The abortion costs borne by people living in poverty are much higher than one might think. A pregnant woman in Texas who is struggling to make ends meet may be shocked to discover that her health insurance doesn’t cover abortion. Like the rest of the 13.5 million women of reproductive age in the United States who rely on Medicaid, she’ll have to pay out of pocket for the abortion medication or the procedure, both of which cost about $500 in the first trimester. Tack onto that the price of bus tickets or gas, which could be high if she’s one of the 10,000 women who live more than 150 miles from the nearest abortion provider under HB2. Plus, she has to come up with money for a place to stay overnight and child care for the kids she had to leave behind. That’s all assuming she can afford the lost wages for the days away from work. All told, securing an abortion can cost some families half a month’s pay.

    Mustering Bravery and Ingenuity to Secure an Abortion

    As a matter of household economics, that is simply not feasible for many women in this position, who may turn to the internet to research less expensive alternatives to clinic-based care. Unfortunately, her Google search might turn up headlines about Purvi Patel, Jennie Linn McCormack, Kenlissia Jones, and other women who’d been in her shoes and ended up arrested and jailed for allegedly ending their own pregnancies outside the formal medical system. What is she to do? She doesn’t feel she has the resources to take care of another child, doesn’t have coverage for an abortion, doesn’t have money to pay the costs out of pocket, and doesn’t want to go to prison for taking matters into her own hands.

    The reality is that if 75 percent of the clinics in Texas close, we won’t see 75 percent fewer abortions. Resourceful women and their loved ones will find ways to end pregnancies outside the formal medical system. For some, the self-induced abortion experience will be a positive one, occurring in a safe place through effective means while accompanied by a loved one. For others, particularly people living in poverty, immigrants, and people of color who are disproportionately arrested for pregnancy-related crimes, the self-induced abortion experience may be shrouded by the fear of jail or deportation.

    A Better Way That Truly Enhances Women’s Health

    In addition to fighting laws like HB2 and others that threaten to cut off clinic-based abortion care, we must also work to halt the criminalization of self-induced abortion, which effectively curtails the abortion right altogether for many people. Instead of going after people for ending their own pregnancies, we should be working to end the stigma, restrictions, and other barriers to health care that overzealous lawmakers have imposed on abortion access. Should the Court deadlock 4-4 and allow the lower court opinion to stand, 5.4 million women of reproductive age in Texas will be forced to run the gauntlet of HB2 abortion restrictions against the ticking clock of the 20-week abortion ban. However, should the Court muster a majority and strike down these regulations as the wolves in sheep’s clothing they are, it will help to remove at least a few of the obstructions from the obstacle course that has become abortion access in this country.

    That’s still not enough, of course. Women deserve access to the full panoply of provider-directed and self-directed abortion care options, along with the freedom to choose the setting and method right for them―without fear of going broke or getting locked up. This is what it would look like to truly enhance women’s health through expanded, rather than contracted, abortion care options.

  • March 3, 2016
    Guest Post

    by Jamal Greene, vice dean and professor of law, Columbia Law School. Professor Greene teaches and writes in the areas of U.S. constitutional law and theory, federal courts, and comparative constitutional law.

    * This post was excerpted from Professor Greene’s statement to the Senate Democratic Steering and Outreach Committee.

    The duty of the Senate in regards to its constitutionally enumerated functions is measured by whether its exercise of those functions serves the Constitution’s purposes and is consistent with well-established institutional practices. By that measure, the Senate has a constitutional duty to give due consideration to anyone nominated by the president to fill a Supreme Court vacancy. In the modern history of the nation, there is no precedent for the Senate’s deliberately refusing to vote on a nominee to a vacant Supreme Court seat, whether during an election year or at any other time.

    I. The Constitutional Duty to Consider Supreme Court Nominations

    Republicans currently hold a majority of seats in the Senate and on the Senate Judiciary Committee. Accordingly, should the party remain unified, it has the capacity to refuse to schedule a hearing on any executive nomination or to refuse to report a presidential nominee out of committee. A government institution’s capacity to exercise political power is not, however, the measure of its responsibility under the Constitution. Rather, constitutional duty is best measured by an institution’s exercise of the enumerated responsibilities necessary to serve the Constitution’s purposes.

    The Constitution explicitly informs us of those purposes. The Preamble states that “We the People” establish the Constitution in order to, among other things, “establish Justice.” The Framers believed that part of the reason behind the failure of the Articles of Confederation was its failure to provide for any federal court system. As Alexander Hamilton wrote in Federalist 78, “In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out.” The Supreme Court was among the major innovations of the new Constitution. Unlike all other federal courts and indeed all other institutions subject to executive appointment, the Supreme Court is established by the Constitution directly. Its existence does not depend on congressional action, and Congress—much less the Senate acting unilaterally—does not have the authority to disestablish it.

    It is no surprise, then, that the Constitution specifically enumerates the President’s power to “nominate, and by and with the Advice and Consent of the Senate . . . [to] appoint . . . Judges of the supreme Court . . . .” The Framers did not contemplate the use of the Senate’s advice and consent power solely to run out the clock on a presidential appointment. As Hamilton speculated in Federalist 76, rejection of a nominee “could only be to make place for another nomination by [the President].”

    Viewing the appointments power as a whole confirms the Framers’ assumption that the President and the Senate would work together to ensure a functioning government. When the Senate is in recess, the President has the power to appoint officers to fill vacancies, including on the Supreme Court. This power implies that when the Senate is in session, it is expected to act on the President’s nominations. Past presidents have used the power of recess appointment for Supreme Court nominees, including for three nominees of President Eisenhower. Although the Senate expressed its disapproval of this practice in a 1960 “sense of the Senate” resolution, that resolution notably included an express exception for recess appointments “to prevent or end a breakdown in the administration of the Court’s business.”

  • February 26, 2016
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr. Professor of Law, Georgetown University Law Center. This post draws from Heinzerling’s article, "The Supreme Court's Clean-Power Power Grab," to be published in the Georgetown Environmental Law Review in May 2016.

    The Environmental Protection Agency's "Clean Power Plan" establishes emission guidelines for states to follow in regulating carbon dioxide from existing power plants. Many states and industry groups have challenged the rule in the D.C. Circuit. Some of the challengers asked the D.C. Circuit to stay the rule pending the court's review, but the D.C. Circuit declined, explaining that the challengers had not met the strict requirements for such relief. The challengers then moved on to the Supreme Court, filing five separate applications to stay EPA's rule pending judicial review in the D.C. Circuit. The applicants for a stay did not file petitions for certiorari or indicate that they intended to file petitions for certiorari, and they did not challenge the D.C. Circuit's decision denying a stay. Instead, they challenged the Clean Power Plan itself and asked that it be stayed pending initial judicial review of the rule in the D.C. Circuit. No party weighing in on the applications for a stay, either in favor or opposed, was able to identify any previous case in which the Supreme Court had stayed the application of a nationally applicable agency rule before any court had reviewed it. Nevertheless, the Court granted the stay.

    The unique posture of the case creates uncertainty about the jurisdictional basis for the Court's action. In its terse, identical orders granting the five applications for a stay, the Court did not identify the source of its power to hear the case. Moreover, the five different sets of applicants for a stay did not agree among themselves about the source of the Supreme Court's authority to hear the case and issue a stay. The applicants' disarray reflects the uncertain jurisdictional basis for the Court's orders.

    The applicants for a stay cited, in varying configurations, four different statutory provisions which, they asserted, gave the Supreme Court jurisdiction to hear the case: 5 U.S.C. § 705 (Administrative Procedure Act's provision on stays of administrative action), 28 U.S.C. § 2101(f) (on stays pending the filing of petitions for writs of certiorari), 28 U.S.C. § 1254(1) (on certiorari jurisdiction), and 28 U.S.C. § 1651(a) (All Writs Act).

    Did one of these statutory provisions give the Supreme Court the power to stay the Clean Power Plan? I don't think so. Let's take them one at a time.