Supreme Court

  • 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.

  • February 19, 2016

    by Nanya Springer 

    In The Huffington Post, ACS President Caroline Fredrickson urges the U.S. Senate to fulfill its constitutional duty and “give fair and prompt consideration” to any Supreme Court nominee.

    ACS Director of Strategic Engagement Jill Dash comments to Paul Waldman in The Washington Post about the improbability that a new Supreme Court would immediately overturn high-profile decisions. “The four more liberal justices currently on the Court take precedent and stare decisis seriously,” adds ACS Issue Brief author Samuel Bagenstos.

    Perry Cooper at Bloomberg BNA says class actions may see a Renaissance in the near future and notes ACS Board member Erwin Chemerinsky’s prediction that Spokeo Inc. v. Robins will result in a 4-4 split decision.

    In the Emory Corporate Governance and Accountability Review, Caroline Poplin examines the pharmaceutical industry’s misuse of First Amendment doctrine, and ACS Board member Reuben Guttman, with Paul J. Zwier, examines wrongful marketing and pricing practices.

  • February 19, 2016

    by Leslie C. Griffin, Boyd Professor of Law, UNLV Boyd School of Law

    This post originally appeared on Hamilton and Griffin on Rights.

    Catholics for Choice joined nine other Catholic organizations in filing a “friend of the court” brief with the Supreme Court of the United States. The amicus brief lifts up the voices of the Catholic laity, workers, women, children and LGBT people who would be affected by the Supreme Court ruling in the Zubik v. Burwell case.

    Zubik v. Burwell is consolidated with six other cases brought by members of the Catholic hierarchy and allied organizations in the latest round of challenges to the birth control provisions in the Affordable Care Act. If the Supreme Court were to rule in favor of the bishops’ demands, hundreds of thousands of employees at religiously-affiliated nonprofit organizations could be deprived of their conscience rights, religious freedom and access to healthcare.

    Jon O’ Brien, president of Catholics for Choice and lead among the amici, said, “Where you are employed should not override your religious freedom nor limit your access to healthcare. The majority of Catholics use and support contraceptive coverage. The majority of Catholics support real religious liberty for all. The majority of Catholics would be disappointed by a ruling in favor of the bishops.”

    Continued O’Brien, “We filed this brief because we are all concerned that if the bishops and their allies get their way, it will only be the beginning. The bishops have shown their desire to circumvent any law to which they object. If the courts rule in their favor, they could start opposing health insurance benefits for same-sex couples and their dependents, or refuse maternity leave to women who have children using in vitro fertilization, or deny gay and lesbian parents the right to adopt a child.”

    Marianne Duddy-Burke, executive director of DignityUSA, a member of the coalition, said, “We believe it is absolutely essential that the petitioners not prevail in this case. We are already seeing employees in same-sex marriages being refused employment, fired and denied health benefits that are given to their colleagues—all on the basis of employers’ religious beliefs. We don’t believe the law supports this and hope the court upholds the equality of all employees.”

    Jim Fitzgerald, executive director of Call to Action, a third member of the coalition, said, “The majority of Catholics across the country support equality, inclusivity and social justice. We join them in rejecting discrimination on the basis of sexual identity or conscience-based decisions about healthcare. We lift up the rights of workers to follow their God-given conscience when making deeply personal decisions around their reproductive health.”

    “Catholics for Choice is proud to stand with our partners to represent the majority of Catholics who believe that imposing religious beliefs on others is wrong,” concluded O’Brien. “To use the Catholic faith to deny employees equal access to healthcare is not the freedom from religion guaranteed by our Constitution. What the bishops want is simply state-sponsored discrimination. We support the rights of the workers to follow their conscience when making a decision about contraception, and we oppose the hierarchy’s attempts to interfere with anyone’s personal decisions.”

    Oral arguments for Zubik v. Burwell will be heard by the Supreme Court on March 23.

     

  • February 16, 2016
    Guest Post

    by Erin Ryan, professor of law, Florida State University College of Law. Professor Ryan  is the author of many scholarly works, including Federalism and the Tug of War Within (Oxford, 2012).

    Last week, the Supreme Court controversially stayed implementation of the Clean Power Plan (CPP), the cornerstone of the Obama Administration’s climate policy, while 29 states proceed with litigation against it. The CPP targets greenhouse gas emissions from power plants, which account for about a third of all U.S. carbon emissions. The rule is designed to reduce emissions from coal-fired plants, the dirtiest form of energy production, through a mix of stricter limits on existing plants, measures to increase energy efficiency, and other mechanisms that encourage producers to shift from coal to cleaner renewables and natural gas.

    The CPP provides for substantial flexibility in how reduction targets may be attained within states, allowing states to choose among various options proposed in the rule to come up with their own proposals or to opt for federal regulation in lieu of state oversight. Nevertheless, energy generators heavily invested in coal argue that implementation will require expensive changes.

    It therefore surprised no one that states with the most coal-dependent economies, and with political leadership most sympathetic to the coal industry, are challenging the CPP in court. They argue, among other things, that EPA is unauthorized to regulate power plants this way, that the standards imposed by the rule did not take fair account of the costs of implementation, and that the final rule was insufficiently related to the proposed rule on which the public provided comment. Eighteen other states are supporting the rule, together with environmental groups and some power companies (including utilities in some states that are challenging the rule). Proponents contend that federal environmental laws have always targeted energy production, a primary source of regulated pollutants, and that the CPP legitimately follows from established legal authority, the regulatory record, and the proposed rule.

    EPA always knew the CPP would be litigated, and so the lawsuits came as no surprise. But the Court’s move to stay the rule—before the issues had even been aired in open court—has apparently surprised everyone. The one-page order made no judgment on the merits of the case, but it suspends implementation of the rule while the litigation runs its full course, a process expected to take at least 18 months. The Court split along ideological lines in issuing the stay, with the five more conservative justices voting for the stay over opposition by the four more liberal justices. Just weeks earlier, the D.C. Circuit declined to issue the plaintiffs’ request for the stay, following uniformly applied federal judicial norms—until now.