• June 22, 2016

    by Jim Thompson

    A new ACS report, The Gavel Gap, shows that state courts do not reflect the diversity and talent of the communities they serve.

    In The American Prospect, ACS President Caroline Fredrickson considers whether the Supreme Court will implicitly restrict abortion access to wealthy women.

    ACS Board Member Erwin Chemerinsky writes in Democracy Journal about the failure of Miranda rights.

    At, Thomas Tobin discusses the historically-high number of judicial vacancies and blasts dangerous Senate obstructionism.

    “The American Civil Liberties Union (ACLU) is accusing the state of Texas of hiding public information about abortion, and telling state employees to lie about it,” reports Emily Crockett at Vox

  • June 17, 2016
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center

    *This blog post is part of ACSblog’s “Justice in the Balance” symposium. See our infographic here.

    The Supreme Court has split 5-4 in three decisions involving the regulation of greenhouse gases. The federal government's program to reduce greenhouse gas emissions was set in motion by the Court's 5-4 ruling in Massachusetts v. EPA. Another 5-4 decision in Utility Air Regulatory Group v. EPA rejected EPA's application of permitting requirements to stationary sources based on their greenhouse gas emissions alone, and embraced an interpretive principle that would disfavor ambitious agency interpretations of longstanding statutes. In a third 5-4 ruling, West Virginia v. EPA, the Justices voted to stay EPA's regulation limiting greenhouse gases from existing power plants.

    With thin and shifting majorities like these, it is quite clear that one Justice may determine the fate of the country's regulatory programs for climate change.

    The federal government began to regulate greenhouse gas emissions only after losing a case in the Supreme Court. In Massachusetts v. EPA, the Supreme Court rejected the reasons EPA had given for refusing to regulate greenhouse gases under the Clean Air Act. In response to a citizen petition asking the agency to regulate greenhouse gas emissions from motor vehicles under the Clean Air Act, EPA had argued that it simply had no authority to regulate these pollutants under the Act. The Supreme Court disagreed by a vote of 5-4 and held that the agency does have authority to regulate greenhouse gases because greenhouse gases are "air pollutants" within the meaning of the Clean Air Act. The Court observed that the broad language of the Clean Air Act reflected "an intentional effort to confer the flexibility necessary to forestall . . . obsolescence" in the presence of "changing circumstances and scientific developments."

    By the same margin, the Court also rejected EPA's policy-based justifications for refusing to regulate greenhouse gases. The Court ruled that EPA erred by citing a "laundry list" of reasons why it preferred not to regulate, rather than grounding its decision in the statutory criterion of endangerment of public health and welfare. Even if the agency found the science of climate change uncertain, the Court said, the agency could not refuse to regulate greenhouse gases unless the science was so profoundly uncertain that the agency could not even form a judgment as to whether greenhouse gases were endangering public health or welfare. "The statutory question," the Court explained, "is whether sufficient information exists to make an endangerment finding."

  • June 17, 2016
    Guest Post

    by Joshua I. Hammack and Meghan E. Greenfield, associates at Jones Day. 

    Next week, at the June 23rd conference, the Supreme Court will consider whether to grant certiorari in Cordova-Soto v. United States, No. 15-945, and consider an important question with broad ramifications in both criminal and immigration law: whether due process applies to immigration proceedings where a form of discretionary relief—including asylum, cancellation of removal, and many others—is at issue.   

    In this case, the Fifth Circuit below rejected Ms. Cordova’s claim that her indictment for illegal reentry should be dismissed.  It held that she could not show that her removal proceedings were fundamentally unfair because due process did not apply at all to those proceedings. The First, Third, Fourth, Sixth, Seventh, Eighth, and Eleventh Circuits have applied the same sweeping rule, denying any constitutional protections to removal proceedings. The Second and Ninth Circuits, by contrast, apply the opposite rule and hold that due process does apply. 

    The question presented in the petition impacts countless immigration proceedings across the country, as well as criminal prosecutions for illegal reentry. In fact, the question is implicated in the majority of removal proceedings because nearly all forms of relief from removal are discretionary in nature. And, the rule has been applied to foreclose due process challenges on a panoply of claims, including claims that the immigration judge was biased, that there was ineffective assistance of counsel, and that the alien was prevented from testifying or did not receive an interpreter at his removal proceedings. 

    Critically, the circuit conflict means that a lawful permanent resident’s ability to remain in this country, or a defendant’s criminal liability for illegal reentry, can (and often does) turn entirely on the location of the proceedings.

  • June 16, 2016
    Guest Post

    by Robin Bradley Kar, Walter V. Schaefer Visiting Professor of Law at University and Professor of Law & Philosophy, University of Illinois College of Law, and Jason Mazzone, Professor, Lynn H. Murray Faculty Scholar in Law Co-Director, Program in Constitutional Theory, History, and Law, University of Illinois College of Law

    Much has been written about the Senate Republicans’ current plan to prevent President Obama from appointing a replacement for Justice Scalia and to leave the choice of a new justice to the next president. Many commentators have suggested that there is something wrong with this plan, but it has thus far been difficult to pinpoint the precise problem. In our recent study, The Garland Affair, published online in the New York University Law Review, we believe we have pinpointed the problem. We thank ACS for inviting us to describe our study and why we believe Senate Republicans should change course in order to avoid a number of pragmatic and constitutional risks with their current plan.

    First a brief discussion of where things stood prior to our study. Before publication of The Garland Affair, some opponents of the Republicans plan suggested that it was unprecedented for the Senate to block a President from making an appointment to the Supreme Court. Senate Republicans claimed that to the contrary no prior president has made an election-year appointment to the Supreme Court in the last 80 years—thus implying that it is President Obama’s attempt to fill the Scalia vacancy that contravenes historical precedent; defenders of the Republican plan also pointed to scattered cases where the Senate, resisting particular nominees to the Court, had succeeded in preventing a president from filling a vacancy. Given competing accounts of the historical record, it was difficult to determine precisely where precedent lay.

    Turning to constitutional matters, some opponents of the Republican plan have argued that the Appointments Clause imposes a general duty upon the Senate to proceed to a vote on all Supreme Court nominations. This claim has, however, met with resistance from certain constitutional scholars on the ground that the Senate’s role to provide advice and consent is completely discretionary and it is under no duty to act in any particular way.

  • June 16, 2016
    Guest Post

    by Jeff Clements, president, American Promise, and Board chair, Free Speech For People

    *This blog post is part of ACSblog’s “Justice in the Balance” symposium. See our infographic here.

    “Well, the court overruled part of what I wrote. . . . It is a source of concern today, the extent of campaign contributions and whether corporations and unions must be held to the [same] standard as an individual. These are tough issues for the nation and the court.”

    ‒ Justice Sandra Day O’Connor on Citizens United v. FEC, Newsweek, December 2010

    What a difference a Justice or two can make. The notorious 5-4 decision in Citizens United v. Federal Election Commission would never have happened without the twist in history in 2005 that brought John Roberts and Samuel Alito to the Court.

    The consequences are grave. As Justice John Paul Stevens wrote in his dissent, Citizens United is a “radical departure” from settled First Amendment law. Americans have worked to constrain the undue and corrupting influence of concentrated money in our democracy, particularly money of corporations, since the beginnings of the Republic. Until Citizens United, the tiny minority of Americans who share the current Court’s idiosyncratic view that the Constitution forbids Americans from doing so have almost always lost.

    They lost in the Gilded Age, when the federal government and most states enacted Corrupt Practices Acts to end the domination of elections and government policy by corporate political spending. They lost when more than a dozen major corporations were prosecuted and convicted for illegal election spending after the Watergate scandal forced President Nixon to resign in 1974.

    They lost in 1990, when the Supreme Court upheld Michigan’s law prohibiting election spending by corporations in Austin v. Michigan Chamber of Commerce. They lost in 2003 when the Supreme Court in McConnell v. Federal Election Commission upheld the same Bipartisan Campaign Reform Act provisions that Citizens United would strike down only a few years later. They might well have lost in the 1978 First National Bank of Boston v. Bellotti case that invalidated a state law prohibiting spending by corporations in citizen referenda, except for a false promise that other limits on corporate election spending would not be threatened (but that is another story).

    So how did they win in Citizens United? Suddenly, they had five votes on the Court.