• April 8, 2016

    by Jim Thompson

    “While Justice Ginsburg is rarely classified as an originalist, during her tenure on the Court, she has written a series of brilliant text and history opinions, powerfully making the case that Constitution’s text and history point in a progressive direction,” writes David Gans at Balkinization.

    Ahead of this month’s oral arguments in United States v. Texas, Brianne J. Gorod at Huffington Post predicts Chief Justice John Roberts will reject a challenge to the president’s executive action on immigration, guided by his beliefs that the role of courts should be limited and nonpartisan.

    In The Wichita Eagle, Judith E. Schaefer criticizes Kansas Sen. Jerry Moran (R) for reversing his position on Judge Merrick Garland’s nomination hearing, yielding instead to the obstructionist views of his conservative colleagues. 

  • April 7, 2016
    Guest Post

    by Jeymee Semiti, National Center for Transgender Equality

    This past week we celebrated the International Transgender Day of Visibility, which was founded in 2009 as an annual celebration of transgender lives. The visibility of transgender individuals has increased both in mainstream media as well as in the legal world, with the Supreme Court’s marriage equality decision, a rise in trans-inclusive healthcare (Delaware recently became the 15th state banning trans health exclusions), and the Equal Employment Opportunity Commission’s precedent-setting conclusion in 2012 that gender identity is protected under Title VII of the 1964 Civil Rights Act (Macy v. Holder). 

    However, along with visibility, transgender communities are seeing a continuing rise in anti-trans homicides, unchecked state-sanctioned violence against trans women of color in detention centers, and a surge of anti-trans legislation targeting trans people in public accommodations. North Carolina’s House Bill 2, officially the Public Facilities Privacy and Security Act, was the first of these anti-trans initiatives to pass into law. It not only nullifies the pre-existing LGBT nondiscrimination ordinance recently passed in Charlotte, the state’s largest city, but also requires everyone to use the facilities according to the sex designated on their birth certificate.

    HB 2 has made transgender issues a national conversation. Opposition to the bill has federal agencies reviewing legality of the practice under federal funding requirements, businesses taking their business elsewhere and interest groups filing lawsuits on its unconstitutional nature. The bill delegitimizes the existence of trans and gender-non-conforming individuals, and specially targets the visibility of trans women by mischaracterizing them as “voyeuristic” threats to the privacy of women and young girls.

  • April 6, 2016
    Guest Post

    by Anthony S. Winer, professor of law, Mitchell Hamline School of Law

    In the last few weeks, Georgia and North Carolina proposed anti-LGBT legislation. The Georgia bill was cast as a measure “to protect religious freedoms.” The North Carolina bill was cast mainly to “provide for” single-sex multiple occupancy bathrooms. But both were actually designed to prevent LGBT people from obtaining protection against discrimination. The bills present notable contrasts.

    The most important contrast was that the governor of Georgia vetoed his state’s bill, while the governor of North Carolina signed his so that the North Carolina bill is now law in that state. The next most salient contrast was indicated above: The Georgia statute purports to be based in preserving religious freedom, while the North Carolina statute is entirely secular. This can serve to illustrate that anti-LGBT prejudice can be expressed either in purportedly religious or in secular terms.

    Another glaring contrast is that the Georgia bill was drafted clumsily, while the North Carolina bill reflected a sophisticated (if malevolent) understanding of key Supreme Court precedents.

    The Georgia bill purported to protect “religious freedoms,” but its coverage was pitiably parochial. Its definition of one of its key defined terms, “faith based organization,” referenced any “church . . . association or convention of churches . . . or any integrated auxiliary of a church or convention or association of churches.” In the entire bill, there was no reference to any synagogue, mosque, temple, or other house of worship that was distinctly not Christian. This phraseology betrayed the narrow mindset of the bill’s authors.

    The Georgia bill reflected inept drafting in a variety of additional ways, from the maladroit repetition of certain provisions to the bizarre restatement of the self-evident. (For example, the bill actually contained a provision stating that religious ministers are “free to solemnize any marriage . . . or to decline to do the same, in their discretion.”)

  • April 6, 2016

    by Jim Thompson

    The Supreme Court’s decision in Evenwel v. Abbott “reaffirmed that the Constitution’s text and history secure equal representation for all, rejecting the far-reaching claim—never accepted by any court in history—that the Constitution requires states to draw districts composed of an equal number of eligible voters,” writes David Gans at Balkinization.

    In The New York Times, David Montgomery and Michael Wines opine that the Supreme Court’s ruling in Evenwel set the stage for a renewed battle over legislative redistricting following the 2020 national census, quoting Daniel P. Tokaji, faculty advisor to the Ohio State University Moritz College of Law ACS Student Chapter, who says, “The big case isn’t this case, but the next case.”

    At Jost on Justice, Kenneth Jost blasts hollow arguments supporting the discriminatory North Carolina law nullifying pro-LGBT ordinances in the state.

  • April 5, 2016
    Guest Post

    by Peter Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law, The Ohio State University Moritz College of Law

    *This article first appeared in Washington Monthly.

    It would probably delight the late Justice Antonin Scalia to know that the fight over his successor was generating constitutional controversy. Indeed, like many controversies that Justice Scalia fueled, this one concerns not only the implications of particular clauses, but the very nature of constitutional law.

    In nominating Judge Merrick B. Garland to succeed Justice Scalia, President Obama declared: “As President, it is … my constitutional duty to nominate a Justice… . I hope that our Senators will do their jobs, and move quickly to consider my nominee. That is what the Constitution dictates… .”

    The President’s rhetoric of duty and obligation, however, quickly elicited dissents. Noah Feldman writes: “[I]f Obama didn’t want to nominate a replacement for Justice Antonin Scalia at all, it would be within his constitutional discretion not to do so.” As to the Senate, Jonathan Adler argues: “The Senate may withhold its consent by voting down a nominee, but it may also withhold its consent by refusing to act, or otherwise failing to confirm a nominee.” These two esteemed legal scholars with very different politics are hardly alone in their views.

    The arguments for the “not-a-duty” position are typically based on the sorts of textual and historical arguments Justice Scalia advocated. Article II declares that the President “by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.” But “shall” in legal instruments does not always mean “must.” As for the Senate, “Each House [of Congress] may determine the Rules of its proceedings.” Such blanket language on its face supports the idea that the Senate has the discretion to proceed with nominees quickly or slowly, with much or little debate, or, indeed, not at all.

    Lost in the fog, however, is an idea of the Constitution that Justice Scalia no doubt regarded as “argle-bargle,” but which is both historically and in principle a stronger and more appealing concept than his own. It is the view that Chief Justice John Marshall elaborated in the famous 1819 case upholding the constitutionality of the National Bank of the United States, McCulloch v. Maryland.