• September 26, 2016

    by Caroline Fredrickson

    If you were president of the United States, how would you work with the Senate to avoid gridlock over confirmation of Chief Judge Merrick Garland or other judicial nominations in a process that currently threatens a shutdown of the federal bench?

    The American people need to know the answer.

    As moderator of the first presidential debate tonight, NBC’s Lester Holt should pose this question to the two major party’s nominees.

    Right now, the Senate is holding the judicial branch hostage by refusing to hold a vote or even a simple hearing for Merrick Garland, President Obama’s nominee to the Supreme Court as well as for hundreds of lower court nominees.

    We are in the middle of a Constitutional crisis when it comes to judicial nominations. Not only because of the politics of it all, which are despicable, but because every day Americans are seeing justice delayed as cases languish, sometimes for years, because there simply are not enough judges to hear them. Put simply, Americans are not getting their day in court. Let’s take a look at the numbers to illustrate just how dire the situation is.

  • September 23, 2016
    Guest Post

    by Ashley Lawrence, co-president, ACS Student Chapter at Howard University School of Law

    On Tuesday Sept. 20, the Howard Law community celebrated Constitution Day commemorating the signing of the Constitution by our country’s Founding Fathers on Sept. 17, 1787.  Among the many relevant words within the living, breathing document are those contained in Article II, Section 2, Clause 2 which states: “The President […] shall nominate, and by and with the advice and consent of the Senate, shall appoint […] judges of the Supreme Court.” At present—more than 191 days after nomination —Supreme Court nominee and U.S. Court of Appeals for the D.C. Circuit Chief Judge Merrick Garland awaits confirmation and has yet to receive even a hearing for a seat on the United States Supreme Court.

    The guest for Howard Law’s celebration of Constitution Day was none other than Chief Judge Merrick Garland. The lively “Arm Chair Conversation” between Chief Judge Garland and Howard Law Dean Danielle Holley-Walker was thought provoking and left me with two main takeaways. One—this is the longest any Supreme Court nominee has waited to be confirmed. His nomination is all the more important because his role in the federal judiciary, which plays a significant role in making decisions that address critical constitutional and civil rights issues, is currently diminished. Two—it is imperative that we learn in law school how crucial it is to participate in public interest opportunities and continue to commit to public service in our legal careers by investing in our communities to ensure the legal rights of society’s most vulnerable. Chief Judge Garland has demonstrated this commitment by volunteering with students from J.O. Wilson Elementary School for the past 18 years and by participating in the Annual Judicial Reception here at Howard Law for the past 14 years.

  • September 19, 2016

    By Caroline Fredrickson

    *This post is part of the ACSblog symposium: Constitution Day 2016.

    For the past few years, ACS has celebrated Constitution Day with the Annual Supreme Court Preview, a lively debate about challenges before the nine justices. Now, for obvious reasons, the Term starting October 3rd is different.

    With Justice Antonin Scalia’s passing in February and the refusal of Senate Republicans to consider the nomination of Chief Judge Merrick Garland, the Court is a diminished institution, limited in its ability to perform its constitutional role.

    With only eight justices at the end of the last Term, the Court was unable to resolve a number of critical cases, such as U.S. v. Texas, involving a nationwide injunction on the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) immigration program and the Zubik case, which asked whether non-profit religious employers can be required to provide their employees access to insurance coverage for contraception.

    Since 2000, one justice has determined many landmark cases that directly influence American lives. The ninth justice mattered in Bush v. Gore, deciding the 2000 presidential election; Citizens United v. Federal Election Commission, unleashing unlimited corporate spending in campaigns; and Obergefell v. Hodges, upholding marriage equality.

    Looking forward at the coming term, the Court will again examine the constitutional contours of the death penalty and electoral redistricting. Undoubtedly more cases will be added to the docket. But just how many and on what topics seems directly related to when the justices can expect to be joined by a ninth colleague. Hopefully the justices will not have to wait much longer.

  • September 19, 2016
    Guest Post

    by Erwin Chemerinsky, dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    *This post is part of the ACSblog symposium: Constitution Day 2016

    After the country observed Constitution Day this past weekend, there remains the simple reality that the outcome of the November presidential election almost surely will determine the meaning of the Constitution for decades to come. Since 1971, when Richard Nixon’s third and fourth justices for the Supreme Court were confirmed, until Justice Antonin Scalia died on Feb. 13, there always have been five and sometimes as many as eight justices appointed by Republican presidents. Now there are four justices appointed by Republican presidents (Roberts, Kennedy, Thomas and Alito) and four justices appointed by Democratic presidents (Ginsburg, Breyer, Sotomayor and Kagan). Who replaces Justice Scalia will tip the ideological balance on the Supreme Court in countless areas – such as campaign finance, gun control and separation of church and state – where he has been in the majority in 5-4 decisions.

    But it is not only Justice Scalia’s seat that is at stake. Since 1960, 78 years old is the average age at which a Supreme Court justice has left the bench. There are now three justices – Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer -- who are 78 or older. Especially if the next president serves two terms, he or she will have several picks for the Supreme Court. This will determine the ideological composition of the Court, likely for decades.

    Picking Supreme Court justices is one of the most long lasting legacies of any presidency. William Rehnquist was nominated for the Supreme Court by President Richard Nixon in 1971 and served until his death in 2005. John Paul Stevens was nominated by President Gerald Ford in 1975 and served until he retired, at age 90, in 2010. Clarence Thomas was 43 when he was confirmed in 1991 and if he remains until he is 90, he will be a justice for 47 years until the year 2038.

    If a right-leaning president replaces Justice Scalia and say Justices Ginsburg and Breyer, these justices, together with Chief Justice Roberts and Justices Thomas and Alito – all of whom are in their 60s – will be a conservative majority for years to come. But if a left leaning president fills these vacancies, the new justices, along with Justices Sotomayor and Kagan will be a progressive majority for a long time.

  • September 16, 2016
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law

    *This post is part of the ACSblog symposium: Constitution Day 2016

    Happy Constitutions Day!

    No, that is not a typo. I know that tomorrow, September 17, is officially “Constitution Day,” marking the date in 1787 when the Constitution was submitted to the states for ratification. And I know there is only one document called the Constitution of the United States, not multiple different ones. Yet given how much the Constitution has changed, how different our perceptions of its requirements and the many other constitutions in American lives, perhaps we should nonetheless refer to it as “Constitutions Day.”

    Of course the original version of the Constitution is of vital importance to American history, culture and law. We must remember, however, that the states found that document wanting because it lacked a clear specification of individual rights. Several states conditioned their ratification of the Constitution on the adoption of significant amendments. Their objections to the Constitution led to the addition of the Bill of Rights in 1791. Four years after the first Constitution was proposed, we end up with a new one, revised and improved.

    Since then, we have added another 17 amendments to the Constitution. Some, like the Reconstruction Amendments (13th, 14th, & 15th) are of tremendous significance, radically reshaping the Constitution once again. The effect on American life and government from these amendments, which overhauled the relationship between the federal government and the states, was profound. Other amendments, like the 27th, which deals with congressional salaries, are relatively minor. Yet all of them have one thing in common: they each created a new Constitution. The Constitution today is different than the Constitution Americans lived with 50 years ago, which is different from the one 50 years before that.