Supreme Court

  • February 25, 2016
    Guest Post

    by Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School, and Joshua Matz, associate at Robbins Russell LLP and former law clerk to Justice Anthony Kennedy from 2014 to 2015. Together, Tribe and Matz wrote Uncertain Justice: The Roberts Court and the Constitution.

    In 1901, Mr. Dooley—a popular, opinionated comic strip character—explained that “th’ Supreme Coort follows th’ election returns.”  Dooley’s view was cynical, political, and slightly unnerving. It was also right, in important respects. Elections matter, especially in polarized times. Nowadays, Democrats and Republicans can’t even agree on which election matters, let alone on judicial philosophy or temperament. A Justice selected by Hillary Clinton or Bernie Sanders would, beyond doubt, strive toward a very different future from one selected by Donald Trump, Marco Rubio, or Ted Cruz.

    But as we explain in our book, Uncertain Justice: The Roberts Court and the Constitution, no Justice—not a single one—is invariably liberal or conservative. Furthermore, a Justice’s influence on the Court can take many forms, not all of them reducible to vote tallies. This was true of Justice Antonin Scalia and it will be true of his successor. Thus, to better understand what issues lurk on the horizon for any new Justice, it is helpful to see where Scalia stuck to familiar left-right scripts and where he tossed those scripts aside.

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    Selected by President Ronald Reagan to be a white knight for judicial conservatism, Scalia largely fulfilled Reagan’s expectations. Waging war on liberalism, Scalia championed the right’s view of gun rights, abortion, campaign finance, voting rights, gay rights, capital punishment, gender equality, racial equality, access to justice, separation of church and state, and federalism.  In law schools and op-eds, his name grew synonymous with rigorous, principled conservatism. Even as divergent strands emerged within conservative ranks, Scalia urged the Court to move further and faster rightward—at times, blasting his conservative colleagues for their hesitation. Warren Court rules had to be ripped asunder, not whittled and narrowed. As a rock star of the right, its patron saint and favored son, Scalia made full use of his powers to remake the Nation in a more conservative light.    

    Within years of arriving at the Court, Scalia had become the left’s black-robed bête noir. His unabashed conservative views—not to mention his slashing rhetoric—offended many liberals, who saw in Scalia’s judgecraft a threat to core constitutional values. Moreover, the frequent alignment of Scalia’s policy preferences with his judicial votes led some to doubt the supposed virtues of his originalist and textualist methods. Charges of hypocrisy and incivility piled up, even as conservatives rallied to the man who finally spoke their truths. 

    Scalia is often typecast as the conservative Justice—a Republican appointee straight from central casting. While true in many areas of law, this view doesn’t hold water in a few important contexts. In those fields, Scalia upset the standard dichotomy. Given that many of these issues do not evoke uniform liberal/conservative splits, their future is especially uncertain.

  • February 25, 2016
    Guest Post

    by Bruce A. Green, Louis Stein Chair, Fordham Law School; director of the Louis Stein Center for Law and Ethics

    Whatever the merits of his statement that a judge does no more than “call balls and strikes,” Chief Justice John Roberts' famous confirmation-hearing declaration spoke to a fundamental truth about the need for impartiality in our justice system. And just as no baseball player, or fan of America’s national pastime, would consider it fair for the opposing manager to come off the bench in the middle of the game to become the home-plate umpire, no criminal defendant, or member of the public, would believe that the man who initiated and managed a prosecution could later be a fair judge in the very same case.

    Fairness and impartiality are longstanding, bedrock principles of our courts. A judge who is prejudiced or biased cannot fulfill his or her responsibilities, or the expectations of the public, without violating these principles. Even the appearance that the judge is biased erodes the public’s confidence that court proceedings are fair.

    On Monday, the U.S. Supreme Court will hear arguments about judicial bias in Williams v. Pennsylvania. The question is whether the chief prosecutor in a death penalty case may later serve in the same case as the chief judge of the court responsible for deciding an appeal in the case and, in the process, reviewing the conduct of the lawyers whom he previously supervised.

    In this case, while serving as the elected Philadelphia District Attorney, Ronald Castille authorized his office to seek the death penalty against Terrance Williams and oversaw the assistant prosecutor who tried the case. Following his conviction, Mr. Williams argued that the trial had been tainted by the prosecutor’s serious misconduct. A lower court judge, herself a former a prosecutor, agreed. She found that the Philadelphia District Attorney’s Office hid evidence that would have been crucial to the jurors’ life or death decision. (In a nutshell, the hidden evidence was that the murder victim had sexually abused Mr. Williams as a minor.)

    By the time the case arrived at the Pennsylvania Supreme Court, Ronald Castille had left the prosecutors’ office to become the state’s Chief Justice. The state’s high court, over which he now presided, was asked to review the fairness of the very death penalty prosecution that he had authorized and overseen. In particular, the Court was asked to decide whether, as the lower court judge found, District Attorney Castille’s assistant had engaged in serious prosecutorial wrongdoing on his watch.

  • February 24, 2016
    Guest Post

    by Brianne J. Gorod, chief counsel, Constitutional Accountability Center. Find her on Twitter @BrianneGorod.

    The Chief Justice of the Pennsylvania Supreme Court voted to reverse a lower court decision that gave relief to a criminal defendant whom the lower court concluded was the victim of prosecutorial misconduct. The Chief Justice even wrote separately to make clear just how wrong he thought the lower court decision was. At first glance this might seem like nothing unusual, but the conduct the Chief Justice was reviewing was that of lawyers he had supervised as a District Attorney.

    Next week, the U.S. Supreme Court will be hearing oral argument in Williams v. Pennsylvania, in which the Court has been asked to decide whether the Pennsylvania Chief Justice’s decision to participate in that case was lawful. In a Term with a huge number of blockbuster cases (not to mention a new Supreme Court vacancy), Williams hasn’t been getting a great deal of attention. But it should. It’s a case that will test the Supreme Court’s commitment to the fundamental principle, recognized by James Madison at the nation’s founding, that “[n]o man is allowed to be a judge in his own cause.” And it’s a case that will determine whether the American people can feel confident that they will get what the Supreme Court has said the Constitution’s Due Process Clause requires: “[a] fair trial in a fair tribunal.”

    The facts in Williams are truly stunning. In 1986, Terrance Williams was convicted of murder and sentenced to death in Pennsylvania state court. At the time of his trial and sentencing, Ronald Castille was the elected District Attorney of Philadelphia. Castille not only headed the office that prosecuted Williams, he personally approved the pursuit of a death sentence in the case. Decades later (and after Williams’s initial appeals were unsuccessful), a post-conviction court found that the prosecutors in Williams’s case had engaged in “gamesmanship” and “plainly ‘suppressed’” evidence that Williams had been the victim of sexual abuse at the hands of the man he killed. Based on this finding, the post-conviction court granted Williams a new penalty hearing.

    By the time the state appealed that decision, Castille was no longer District Attorney. He had been elected Chief Justice of the Pennsylvania Supreme Court, the court that was now being asked to decide whether attorneys in his office had engaged in misconduct while prosecuting Williams. Because of this obvious conflict of interest, Williams asked that Castille recuse himself, or at the very least, refer his request to the full court for decision. Castille refused to do either. Instead, he joined the court’s opinion reversing the grant of relief and wrote a separate concurrence in which he excoriated both the attorneys who had helped Williams seek that relief and the post-conviction court itself. By deciding to judge the conduct of his own office in a case in which he was personally involved, Castille created a judicial conflict so obvious and so extreme that it violated the Due Process Clause’s guarantee of an impartial justice system.

  • February 22, 2016
    Guest Post

    by Joseph Thai, Watson Centennial Chair in Law and Presidential Professor, University of Oklahoma College of Law

    Even in death, Justice Antonin Scalia is larger than life. Praise upon his passing has been outsized from both friends and foes of his jurisprudence—ranking him at least as “one of the country’s most influential jurists” if not “the most important justice in American history.” Time will tell whether these extraordinary assessments are prescient or premature.

    What is clear today is that the theory of constitutional interpretation that Justice Scalia championed—originalism—is one justice away from extinction on the Supreme Court. The only other avowed originalist in the history of the Court is Justice Clarence Thomas. This stark fact runs counter to the false dichotomy often peddled to the public that conservative jurists are faithful to the Constitution because they stick to its original or “dead” meaning (to quote Justice Scalia), while liberal jurists play fast and loose with constitutional text in favor of an updated or “living” meaning (again, Justice Scalia) that matches their own contemporary values.

    In fact, the most cutting critic of originalism on the current Court is also one of its most conservative members, Justice Samuel Alito. For example, at oral argument in a case assessing the constitutionality of a ban on the sale of violent video games to minors, Justice Alito mocked Justice Scalia’s questioning about the original meaning of the First Amendment and its application to the case by boiling down his inquiries thus: “Well I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?”

    And in a Fourth Amendment case involving surreptitious GPS tracking of a car over the course of a month, Justice Alito poked fun at Justice Scalia’s originalist methodology. He refused to join Justice Scalia’s opinion for the Court even though he agreed with the result, for rather than applying modern Fourth Amendment principles to “a 21st-century surveillance technique,” the Court “[i]ronically . . . has chosen to decide this case based on 18th-century tort law.” What is more, Justice Alito noted, “The Court suggests that something like this might have occurred in 1791” with a constable hiding in a coach, “but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience.”

  • February 19, 2016

    by Nanya Springer

    In the week following the death of Supreme Court Justice Antonin Scalia, confusion and misinformation became widespread with regard to U.S. leaders’ constitutional obligations to fill the vacant seat. To explain what the Constitution requires of President Obama and the U.S. Senate, as well as the ramifications of a prolonged vacancy on the high Court, noted professor and legal expert Erwin Chemerinsky on Wednesday joined ACS for a discussion about what comes next.

    Chemerinsky immediately dispelled the myth that a president should not nominate a Supreme Court justice in an election year by simply reading the text of the Constitution. He explained, “What it says in Article II, Section 2, paragraph 2, is that the president ‘shall appoint Ambassadors, other Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States . . . with the Advice and Consent of the Senate.’ So, the Constitution creates a duty for the president to appoint Supreme Court justices by using the word ‘shall.’ There is no clause in Article II that says, ‘but not in an election year.’” He added that “presidents throughout American history have nominated in an election year, the last year of their term.”

    Chemerinsky provided historical data, noting that "over the entire course of American history, 24 times presidents have nominated individuals in an election year . . . and in 21 of 24 instances, the nominee has been confirmed by the Senate. That’s 87.5 percent. If you look at the entire course of American history, and all presidential nominations to the Supreme Court, 86.9 percent have been conformed. So there’s no statistical difference between nominations in the last year of presidency and nominations that come at any other time of the presidency.”

    Clearly, there are consequences that result from having an eight-member Supreme Court, particularly in the event of a 4-4 split. In that situation, Chemerinsky explained, the Court may choose to reconsider the case and seek a resolution on narrow or procedural grounds, put the case over for reargument the next term, or affirm the lower court’s decision without opinion. The latter situation would create complications in the presence of a circuit split because “the same federal law will have varying meanings in different parts of the country.”

    To listen to the full discussion, click here.