• March 29, 2016
    Guest Post

    by Mark S. Kende, James Madison Chair Professor in Constitutional Law and director of the Drake University Constitutional Law Center. Professor Kende serves as faculty advisor to the ACS student chapter at Drake University Law School.

    *This post originally appeared in The Des Moines Register.

    A group is running television advertisements in Iowa on behalf of Sen. Chuck Grassley saying that he wants “the people” to select the next U.S. Supreme Court justice to replace the Honorable Antonin Scalia, via this year’s presidential election.  Grassley justifies refusing to hold hearings as chair of the Senate Judiciary Committee on President Obama’s distinguished nominee, U.S. Court of Appeals Judge Merrick Garland, for this reason even though Garland has received support from distinguished Republicans such as Ken Starr and Sen. Orrin Hatch. Yet the Grassley advertisement misinforms Iowans.

    The U.S. Constitution specifically authorizes the president, not “the people,” to nominate Supreme Court justices. The Senate must give its “advice and consent,” but it’s the president’s choice. And by the way, President Obama was elected by “the people” through our electoral college for a full four-year term, not three years.

    Grassley assumes Iowans will not notice the misinformation campaign because he is making his position sound very democratic and populist. Yet it’s just incorrect. And Senator Grassley is not following his own frequent statements about strict allegiance to the text of the Constitution in his advertisements. Moreover, polls show that most people vote for a presidential candidate based on a number of reasons, including the Supreme Court. Other people worry about the economy or terrorism. So his statements that the presidential election is a referendum on the Supreme Court is not accurate.

    Some Republican leaders, including Senator Grassley, initially said that no vote should be held because Supreme Court confirmation decisions historically were not made in presidential election years. Yet Grassley had no problem when a Democratic-controlled Senate confirmed Republican presidential court nominee Justice Anthony Kennedy in 1988 during an election year.

  • March 29, 2016

    by Jim Thompson

    The Supreme Court issued a 4-4, unsigned ruling in Friedrichs v. California Teachers Association today, a decision that sets no national precedent but affirms the Ninth Circuit’s previous ruling in favor of union agency fees, reports Matt Ford at The Atlantic.

    Former ACS Board member, current Chicago Lawyer Chapter Board member, and co-faculty advisor to the University of Chicago ACS student chapter Geoffrey Stone praises Sen. Mark Kirk (R-Ill.) in the Chicago Tribune for breaking with his party’s obstructionist stance.

    A quarter-century has passed since a criminal defense lawyer sat on the nation’s highest court. Dara Lind at Vox, referencing Bidish Sarma’s recent ACSblog post, explains why the absence of this valuable perspective hinders the court’s effectiveness.

    In the Billings Gazette, retired Montana Supreme Court Justice James C. Nelson, a member of the Montana Lawyer Chapter, laments that the “partisan cancer affecting the other two branches has now metastasized to the Supreme Court.”

  • March 28, 2016

    by Jim Thompson

    Conservative political action committees are investing hundreds of thousands of dollars in media advertisements defending the obstructionist strategies of Republican senators, reports Nathalie Baptiste in The American Prospect.

    Ralph Ellis at CNN lauds Georgia Gov. Nathan Deal (R) for announcing his intent to veto a dangerous “religious freedom” bill that would legalize discrimination against LGBT individuals.   

    At Mother Jones, Stephanie Mencimer explains how Justice Samuel Alito’s misunderstanding of health insurance could undermine women’s access to birth control.   

    A law passed by Congress two decades ago imposing a lifetime ban on cash and nutrition assistance programs for anyone formerly convicted of a drug felony leaves thousands of Americans hungry every year, says Jeremy Haile at The Nation

  • March 25, 2016
    Engines of Liberty
    The Power of Citizen Activists to Make Constitutional Law
    David Cole

    by David Cole, Hon. George J. Mitchell Professor in Law and Public Policy, Georgetown Law

    President Obama’s nomination of D.C. Circuit Judge Merrick Garland to fill the seat vacated by Supreme Court Justice Antonin Scalia’s death has many wondering what we might expect from a Court with a liberal majority. It’s been a long time; the Court has not had a majority of liberal justices since the early 1970s. If Republicans maintain their current obstructionist stance, that may not change until and unless Hillary Clinton wins the presidential election. But even if Garland is ultimately confirmed, we ought not to expect major changes from the Court. Stare decisis places significant constraints on the ability of any Court to change direction; absent the rare overruling of precedent, most of the action is at the margins. The margins are important, to be sure, but they are margins.

    More to the point, as I show in my new book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, major transformations of constitutional law are generally attributable not so much to new Court personnel as to the extended, in-the-trenches work of citizens working in association with like-minded citizens to lay the ground for change, most often outside the federal courts altogether. Constitutional law changes slowly, from the ground up, not suddenly, from the top down.

    Take marriage equality. In 1972, the Supreme Court in Baker v. Nelson summarily dismissed a petition arguing that the Constitution requires recognition of same-sex marriage as not even presenting a substantial federal question. Yet in 2015, the Court in Obergefell v. Hodges recognized a constitutional right to marriage equality. One cannot explain that remarkable shift simply by examining the changed personnel on the Court. The Court in 2015 was, if anything, more conservative than the Court in 1972. Rather, one must look at the work gay rights groups did in a wide variety of forums beyond the federal courts.

    Gay rights activists did not immediately ask for marriage. They started small and worked incrementally, seeking recognition in state family law of parental rights of gay and lesbian parents, urging private and public employers at the state and local levels to extend modest work-related benefits to same-sex domestic partners, and lobbying for anti-discrimination laws to include protection for gays and lesbians. Only when gay rights groups had made substantial progress in particular states did they seek marriage recognition—and even then only in the most favorable states. They also worked with public relations experts to determine how best to argue for marriage equality in public referenda, learning from their losses and adjusting their strategies as they went. Other groups pressured the media and entertainment industries to represent gays and lesbians more positively, and fought for legal protections that made it safer for gays and lesbians to “come out.” All of these changes were essential steps along the way to Obergefell, and they were taken deliberately, strategically, and over more than two decades. It’s that work that explains the constitutional recognition of marriage equality.

  • March 24, 2016
    Guest Post

    by Lara Schwartz, Professorial Lecturer at American University School of Public Affairs, and John Burns, who will graduate from the School of Public Affairs in May 2016

    Although Americans across the political spectrum use our Constitution as a rallying cry, what Americans think the Constitution means is by no means static or certain. The battle to fill a vacancy created by Justice Antonin Scalia’s death provides a window both to what Americans think about the Court and Constitution and to how little we know about the subject.

    Since Associate Justice Antonin Scalia’s death and Senate Republican leadership announcing its intention not to consider any nominee President Obama put forward to fill the vacancy, players on both sides of the aisle have tried to stake claims to the most valuable real estate there is. First, what our Constitution requires: Democrats claim the Constitution requires the President to nominate (and they have a decisive “shall” on their side) and requires the Senate to consider the nomination. Republicans counter that the critical “shall” does not apply to the Senate, and that nothing in our Constitution requires them to act.

    Second, both sides want what the American people want. Republicans brand their position as a battle to give the American people a voice in the decision. Democrats, on the other hand, point to opinion polls showing that a majority of Americans disapprove of the Republicans’ plan not to hold hearings. Democrats should not assume this means they have the moral high ground; 62 percent of respondents to a Wall Street Journal poll believed Democrats would do the same thing if they were in the GOP’s position.

    It is tempting for lawyers and students of our Constitution to infer that the public’s preference for confirmation hearings and a vote means that they agree with President Obama’s judicial philosophy or his choice of Merrick Garland (61 percent approve). But the question of how public opinion on the nomination will ultimately go is not that simple, nor can we reasonably conclude that it is perfectly aligned with American’s views of our Constitution or the Court. In fact, public opinion research would tend to show that the public’s low opinion of Congress could just as easily explain their disapproval of Senator McConnell’s gambit.

    It is highly unlikely that Americans support confirming President Obama’s nominee because they believe that replacing Scalia will move the Court to the left. First, although the late Justice Scalia looms as a giant among lawyers and those who follow the Court closely, as late as July 2015, 32 percent of the American public didn’t know who he was. Additionally, in a 2013 survey, 20 percent misidentified him as the Court’s swing vote. (In fact, most Americans cannot identify even one Supreme Court justice).

    Second, in spite of the Roberts Court’s conservatism―striking down a key portion of the Voting Rights Act, eviscerating civil litigants’ access to redress against corporate malfeasance, and recognizing for-profit corporations’ religious liberties—37 percent of Americans view the Court as “too liberal,” compared to only 20 percent who view it as “too conservative.” In fact, only 30 percent of liberal Democrats view the Court as conservative, while 49 percent see it as “middle of the road” and 17 percent consider it liberal. Not surprisingly, opinions of the Court as liberal increased sharply after the two decisions upholding the Affordable Care Act and the Court’s 2015 decision recognizing the right of same-sex couples to marry. When the public sees the Court as liberal, progressives should not interpret public opinion about the current nomination as a desire for a more liberal court. Nor should a campaign to confirm Merrick Garland be based entirely on the assumption that Americans are hungry to tack left.