ACSBlog

  • April 27, 2015
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law. Follow Professor Winkler on Twitter @adamwinkler.

    *This post is part of ACSblog’s symposium on the consolidated marriage equality cases before the Supreme Court.

    Oral argument in the Supreme Court can be opaque, especially for those who aren’t well versed in the legal issues at stake or the precedents likely to be considered.  During oral argument, the justices aren’t interested in educating the citizenry.  They are trying to gain a better understanding of the case or subtly influencing the votes of their colleagues, so the questions and comments fly  quickly—and usually right over the heads of anyone but the experts.  Because oral argument in the same-sex marriages cases will draw an extraordinary amount of public attention, here’s a list of five things to watch for when the justices hold Court on April 28.

     

    1.    Justice Kennedy

    The first and most obvious thing to pay careful attention to is the questioning by Justice Anthony Kennedy.  With four justices who lean liberal and four who lean conservative, the Supreme Court has long been the Kennedy Court.  Because Kennedy has written all the major pro-gay rights decisions of the Supreme Court in recent years, many people assume he’ll vote in favor of marriage equality.  If I were a betting person, that’s where I’d put my money, too.  Yet it’s worth remembering that Kennedy’s opinions in those cases have always been compromises.  In Romer v. Evans, he declined to say that sexual orientation was a suspect classification.  In Lawrence v. Texas, he didn’t say gay intimacy was a fundamental right that triggered strict scrutiny.  In U.S. v. Windsor, half his opinion rested on states’ rights.  If Kennedy was serious in Windsor’s ode to the traditional autonomy of states over marriage, it could spell trouble.  That’s why it’s worth paying close attention to what Kennedy says at oral argument.  Is he skeptical of the state’s arguments?  Does he express concern about the implications of overturning the marriage bans?  Or does he emphasize the harms that come from denying LGBT couples marriage?  Kennedy, in this as in most other cases, is the vote that counts.

    2.    Baker v. Nelson

    Often lost in the current debate over marriage is that the Supreme Court has already held there is no constitutional right to same-sex marriage.  Or at least that’s one way to read Baker v. Nelson, a 1971 case that raised the issue.  The Minnesota Supreme Court upheld that state’s restriction of marriage to one man and one woman, and the case was appealed to the Supreme Court of the United States.  The justices summarily affirmed the lower court decision “for want of a substantial federal question.”  In other words, the challenge to the marriage ban didn’t even raise a colorable constitutional claim.  Will the justices treat Baker as binding precedent warranting their deference under the principle of stare decisis?  There are good reasons to believe they won’t.  The law and society has changed immensely since 1971.  Back then, laws discriminating against women didn’t even trigger any form of heightened review.  Besides, do the justices ever really treat any prior decision as binding?

  • April 24, 2015
    Guest Post

    by Meredith Wilensky. Wilensky was the 2013-2014 associate director and fellow at Columbia Law School's Sabin Center for Climate Change Law. She currently clerks for Judge Claudia Wilken of the Northern District of California.

    The Trans-Pacific Partnership Trade and Globalization Agreement (TPP) is currently being negotiated by 12 Pacific Rim countries: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam. The Obama Administration maintains that it will promote strong environmental protection in the TPP and “insist on a robust, fully enforceable environment chapter.” To that effect, the United States is advocating that the agreement include commitments to effectively enforce domestic environmental laws and provisions to address wildlife trafficking, illegal logging and illegal fishing practices.

    A strong environment chapter is an admirable goal, but it does not discount the potential threats to the environment posed by other chapters of the agreement, especially the investment chapter.  Modern international investment agreements (IIAs) impose standards of conduct on host countries in their dealings with foreign investors. For example, expropriation provisions require governments to compensate for all takings and “Fair and Equitable Treatment” obligations set a minimum standard of treatment for all foreign investors.  While these provisions are intended to ensure fair and ethical dealings with foreign investors, they can have sweeping repercussions for host states’ environmental policy.

    Investor protection provisions are particularly powerful because they are usually accompanied by an investor-state dispute settlement (ISDS) mechanism, which permits aggrieved investors to initiate arbitration in ad hoc international tribunals for compensation of losses that the tribunals find have arisen from the host country’s violation of the investor protection provisions. Under preexisting IIAs, investor protection provisions have been interpreted broadly to require compensation for a number of actions taken by governments to protect the environment and public health.

  • April 24, 2015

    by Caroline Cox

    The U.S. Senate made another judicial confirmation on Monday. In a vote of 91-0, the Senate confirmed the nomination of George C. Hanks, Jr. to be a United States District Judge for the Southern District of Texas. Additionally, in unanimous voice votes, the Senate Judiciary Committee voted out two more nominees.  Kara Stoll, nominated to be a United States Circuit Judge for the Federal Circuit, and Roseann A. Ketchmark, to be a United States District Judge for the Western District of Missouri, were both voted out of committee. 

    Overall, the Senate continues to delay on confirming nominees. Republican leadership has refused to accept responsibility for the judicial vacancies. Texas, for example, has ten current vacancies according to the Alliance for Justice. Senate Republicans have done little to alleviate this pressing problem, and have they failed to accept their part in creating judicial emergencies. 

    U.S. Senator Chuck Grassley announced that he will recommend two Iowans for District Court vacancies this week, and it looks as though he will move quickly to move the nominees through the process. The Des Moines Register argues that the senator should apply this same sense of urgency to other nominees.

    Senator Mitch McConnell may be slowing down judicial nominations as means of getting back at Democrats for previous filibuster reforms. But as ACS President Caroline Fredrickson points out in a recent article at Talking Points Memo by Sahil Kapur, these delays may offer an opportunity for progressives to mobilize their base.

    After the confirmation of Loretta Lynch, the Senate now needs to consider Sally Yates to be Deputy Attorney General. Senator Patrick Leahy issued a statement on the nomination and the importance of moving more quickly on judicial nominations.

    There are currently 53 vacancies, and 23 are now considered judicial emergencies. There are 17 pending nominees. For more information see judicialnominations.org.

  • April 24, 2015

    by Caroline Cox

    The Editorial Board of The Washington Post remarks on the confirmation of Loretta Lynch as the next attorney general, calling the vote “embarrassing not to Ms. Lynch, who clearly deserved confirmation, but to the Republicans who voted against a nominee who should have breezed through.”

    Tom Donnelly explains at Slate how the history behind the drafting of the Fourteenth Amendment created the conditions necessary for modern marriage equality.

    At The New Republic, Brianne J. Gorod uses previous decisions of the Supreme Court to show that state bans on same-sex marriage cannot trump the protections found in the U.S. Constitution.

    Lawrence Hurley discusses at Reuters how the United States’ biggest financial firms have clearly sided with marriage equality “by urging the court to strike down state laws banning same-sex unions.”

    In The New York Times, Jonathan Sherman urges the Court to end its ban on cameras during oral arguments.  

  • April 23, 2015
    Guest Post

    by K.O. Myers, coordinator of the Iowa Fair Courts Coalition, and Development and Operations Manager at One Iowa in Des Moines.

    On April 14, Senator Chuck Grassley (R-Iowa) recommended candidates to fill two upcoming District Court vacancies here in his home state of Iowa. If President Obama takes the Senator’s suggestions, he’ll nominate Magistrate Judge Leonard Strand for an opening on the Northern District of Iowa, and state district Judge Rebecca Goodgame Ebinger for the Southern District. The nominations will then go to the Senate Judiciary Committee to begin a lengthy confirmation process where, if recent history is any guide, they’ll collide with one of their biggest obstacles to confirmation: the Chair of the Judiciary Committee, Senator Chuck Grassley.

    Article II of the Constitution reserves an important “advice and consent” role for the Senate in confirming the president’s judicial nominees. These are lifetime appointments, with the power to invalidate actions of the political branches. Under our thoughtfully designed system of checks and balances, it makes sense that neither the legislative nor executive should have exclusive control over staffing the judiciary.

    As chair of the Judiciary Committee, Grassley wields enormous influence on the confirmation process. He sets the agenda for the committee, and is responsible for scheduling hearings and votes on pending nominees. Potential judges can’t proceed to a Senate floor vote until they’ve been vetted by the committee.

    Unfortunately, Grassley and his Republican Senate colleagues have enthusiastically embraced the “check” portion of that famous formula, and don’t seem particularly concerned about “balance.” On the day Grassley announced his recommendations, the Senate held its first vote on a judicial nomination, three months after the Republican majority took over in January, unanimously confirming Alfred H. Bennett to a vacancy in the Southern District of Texas. On April 20, the Senate held a second vote, confirming George C. Hanks, Jr. As former Judiciary Chair Patrick Leahy noted after the first vote, by April of 2007 the Democratically controlled Senate had confirmed 15 of then-President George W. Bush’s judicial nominees. (In fairness to Grassley, Senate Majority Leader Mitch McConnell (R-Ky.) is responsible for scheduling confirmation votes on the Senate floor.)