Supreme Court

  • November 10, 2014

    by Caroline Cox

    In the Los Angeles Times, David G. Savage and Timothy M. Phelps argue that President Obama is unlikely to change the ideology of the Supreme Court with the new Republican Senate. ACS President Caroline Fredrickson is quoted in the article.

    Noah Feldman examines the newest challenge to the Affordable Care Act before the Supreme Court this term in Bloomberg View.

    In the Detroit Free Press, David H. Gans argues against the decision of U.S. Sixth Circuit Court of Appeals Judge Jeffrey Sutton that upheld same-sex marriage bands in four states.

    Jessica Eaglin writes at the blog for the Brennan Center for Justice on California’s Proposition 47 and the attempt to slow mass incarceration.

    At The Atlantic¸ Matt Ford explains why the Supreme Court may not have to rule on same-sexmarriage. 

  • November 4, 2014

    by Caroline Cox

    Justice Watch, the blog for Alliance for Justice, explains why a Republican-controlled Senate does not necessarily doom the judicial confirmation process for Obama-nominated judges.

    Jeffrey Rosen has a less optimistic view, and argues in The New Republic that the death of a justice during a Republican Congress would lead to disaster.

    Russel Berman reports in The Atlantic that a challenge to the filibuster survived a recent Supreme Court challenge.

    At SCOTUSblog, Amy Howe discusses Zivotofsky v. Kerry, the Jerusalem passport case, and what yesterday’s oral argument signals about how the Supreme Court will decide the case.

    Irin Carmon of MSNBC reports on the numerous ballot measures that challenge reproductive rights throughout the country.

  • November 3, 2014
    Guest Post

    by Atiba R. Ellis, Associate Professor of Law, West Virginia University College of Law. Follow Professor Ellis on Twitter @atibaellis

    The debate over voter identification laws in this election season has shown once again that the voter fraud debate has shaped the right to vote over the last decade.  Recently, voter identification laws in Wisconsin, North Carolina and Texas – passed on the belief that the integrity of elections must be defended against the imminent threat of voters who will impersonate other voters and otherwise commit fraud—has spurred substantial litigation and, most recently, generated a hotly contested denial of a stay of the Texas voter ID law over a scathing dissent from Justice Ruth Bader Ginsburg. 

    Scholars like Lorraine Minnite, Richard Hasen, Justin Levitt and others, have shown that this voter fraud claim is a myth. Yet, right-leaning pundits like Hans von Spakofsky and Mona Charen have argued that voter fraud will likely occur in the 2014 election. Thus, some pundits, politicians and grassroots organizations like True the Vote see rampant voter fraud as real and looming, despite all research to the contrary.

    This voter fraud claim is often seen as partisan-motivated propaganda or a means perpetuating racial subordination – some call it the return of Jim Crow. Yet, as I argue in an article recently published in the Catholic University Law Review, these claims must be connected to the long saga of voter suppression in the United States. In The Meme of Voter Fraud (also available here), I explain that the voter fraud myth is the latest step in the evolution of the American ideology of exclusion – the belief that “unworthy” citizens should be excluded from the electorate. 

    A meme (an idea based on evolutionary theory) is any idea, belief, concept or behavior that spreads and replicates in the culture. Memes replicate through, among other ways, the sharing of narratives, teaching, or posting on the Internet (think cat videos!). Memes are appealing because they play into a person’s experiences, and on some level people identify with them. This fact prompts a person to share the idea, and the most attractive memes spread virally. As a meme spreads, people often modify it to attract a broader audience.  The new recipients will in turn transform the meme again and replicate it, causing it to evolve (and the changes that fail cause that particular meme to die off). A meme’s appeal and its ability to meet our psychological needs – for instance, for political or social power – causes people to spread memes, not the truth or falsity of the meme.

    People can connect one meme with other memes to develop a complex set of ideas – an ideology – which we use to view the world. And, as scholar J.M. Balkin has observed, ideologies that spur us to action to subjugate the rights of others inevitably result in injustice. Memes can enable power plays, and those most invested in maintaining that power maintain the meme to this end, despite any oppression that might occur.

  • October 23, 2014
    Guest Post

    by Jason Steed, Associate at Bell Nunnally, and president of the Dallas-Ft. Worth Lawyer Chapter

    In part 1, I tried to briefly explain why the argument for term limits should be focused on the nonpartisan value of increased apolitical predictability in the Court’s appointment process. Justices shouldn’t be tempted to base their retirement decisions on partisan politics, and we shouldn’t be left to speculate wildly about when the next justice might retire—or about how many appointments the next president might get.

    But once we agree term limits are a good idea (and 70% of the public agrees on this), we must shift to the practical concerns that surround the actual implementation of term limits. Right off the bat, at least four questions (or problems) arise:

    1.  How long should the term limits be?

    2.  What about the filibuster and other attempts to deprive a president of an appointment?

    3.  What about the role of Chief Justice—how does that work in a fixed-term system?

    4.  How do we transition? That is, how do we impose fixed terms on nine sitting justices who everyone expected to have lifetime appointments?

    Now, I’m no scholar on these matters, and I assume others have addressed them already, in one way or another. But here are my thoughts:

  • October 22, 2014
    Guest Post

    by Jason Steed, Associate at Bell Nunnally, and president of the Dallas-Ft. Worth Lawyer Chapter

    *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.