• February 26, 2016

    by Jim Thompson

    In The New York Times, Nicholas Kristof lambastes conservative policymakers’ reckless disregard for their constitutionally-established roles in the judicial confirmation process. USA Today’s Editorial Board also denounces senators who have prematurely vowed to block any Supreme Court nominee submitted by President Obama, stating, “This outright obstructionism represents a new low in this long-running conflict.”

    Kimberly Robinson at Bloomberg BNA explains how the motives of Texas legislators will factor into Whole Woman’s Health v. Hellerstedt, quoting ACS President Caroline Fredrickson who says their real mission is to “make abortion more costly and stigmatized.”

    In a surprising move, Douglas Laycock–who argued against the ACA’s birth control mandate at last year’s ACS National Convention–opposed plaintiffs’ arguments in Zubik v. Burwell, writes Sarah Posner at The American Prospect. Laycock said, “Religious liberty can be endangered by exaggerated claims and overreaching as well as by government intransigence and judicial under-enforcement.”

    Reuben J. Garcia, faculty advisor to the ACS Student Chapter at the University of Nevada, Las Vegas, discusses the current Supreme Court vacancy on KNPB.

    Ted Olson, the prominent lawyer representing Apple in its battle with the FBI, says there is no law requiring the company to redesign iPhone security features to allow the government access to the San Bernardino shooter’s cellphone, reports Camila Domonoske at NPR.

  • February 25, 2016
    Guest Post

    by Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School, and Joshua Matz, associate at Robbins Russell LLP and former law clerk to Justice Anthony Kennedy from 2014 to 2015. Together, Tribe and Matz wrote Uncertain Justice: The Roberts Court and the Constitution.

    In 1901, Mr. Dooley—a popular, opinionated comic strip character—explained that “th’ Supreme Coort follows th’ election returns.”  Dooley’s view was cynical, political, and slightly unnerving. It was also right, in important respects. Elections matter, especially in polarized times. Nowadays, Democrats and Republicans can’t even agree on which election matters, let alone on judicial philosophy or temperament. A Justice selected by Hillary Clinton or Bernie Sanders would, beyond doubt, strive toward a very different future from one selected by Donald Trump, Marco Rubio, or Ted Cruz.

    But as we explain in our book, Uncertain Justice: The Roberts Court and the Constitution, no Justice—not a single one—is invariably liberal or conservative. Furthermore, a Justice’s influence on the Court can take many forms, not all of them reducible to vote tallies. This was true of Justice Antonin Scalia and it will be true of his successor. Thus, to better understand what issues lurk on the horizon for any new Justice, it is helpful to see where Scalia stuck to familiar left-right scripts and where he tossed those scripts aside.

    *          *          *

    Selected by President Ronald Reagan to be a white knight for judicial conservatism, Scalia largely fulfilled Reagan’s expectations. Waging war on liberalism, Scalia championed the right’s view of gun rights, abortion, campaign finance, voting rights, gay rights, capital punishment, gender equality, racial equality, access to justice, separation of church and state, and federalism.  In law schools and op-eds, his name grew synonymous with rigorous, principled conservatism. Even as divergent strands emerged within conservative ranks, Scalia urged the Court to move further and faster rightward—at times, blasting his conservative colleagues for their hesitation. Warren Court rules had to be ripped asunder, not whittled and narrowed. As a rock star of the right, its patron saint and favored son, Scalia made full use of his powers to remake the Nation in a more conservative light.    

    Within years of arriving at the Court, Scalia had become the left’s black-robed bête noir. His unabashed conservative views—not to mention his slashing rhetoric—offended many liberals, who saw in Scalia’s judgecraft a threat to core constitutional values. Moreover, the frequent alignment of Scalia’s policy preferences with his judicial votes led some to doubt the supposed virtues of his originalist and textualist methods. Charges of hypocrisy and incivility piled up, even as conservatives rallied to the man who finally spoke their truths. 

    Scalia is often typecast as the conservative Justice—a Republican appointee straight from central casting. While true in many areas of law, this view doesn’t hold water in a few important contexts. In those fields, Scalia upset the standard dichotomy. Given that many of these issues do not evoke uniform liberal/conservative splits, their future is especially uncertain.

  • February 25, 2016
    Guest Post

    by Bruce A. Green, Louis Stein Chair, Fordham Law School; director of the Louis Stein Center for Law and Ethics

    Whatever the merits of his statement that a judge does no more than “call balls and strikes,” Chief Justice John Roberts' famous confirmation-hearing declaration spoke to a fundamental truth about the need for impartiality in our justice system. And just as no baseball player, or fan of America’s national pastime, would consider it fair for the opposing manager to come off the bench in the middle of the game to become the home-plate umpire, no criminal defendant, or member of the public, would believe that the man who initiated and managed a prosecution could later be a fair judge in the very same case.

    Fairness and impartiality are longstanding, bedrock principles of our courts. A judge who is prejudiced or biased cannot fulfill his or her responsibilities, or the expectations of the public, without violating these principles. Even the appearance that the judge is biased erodes the public’s confidence that court proceedings are fair.

    On Monday, the U.S. Supreme Court will hear arguments about judicial bias in Williams v. Pennsylvania. The question is whether the chief prosecutor in a death penalty case may later serve in the same case as the chief judge of the court responsible for deciding an appeal in the case and, in the process, reviewing the conduct of the lawyers whom he previously supervised.

    In this case, while serving as the elected Philadelphia District Attorney, Ronald Castille authorized his office to seek the death penalty against Terrance Williams and oversaw the assistant prosecutor who tried the case. Following his conviction, Mr. Williams argued that the trial had been tainted by the prosecutor’s serious misconduct. A lower court judge, herself a former a prosecutor, agreed. She found that the Philadelphia District Attorney’s Office hid evidence that would have been crucial to the jurors’ life or death decision. (In a nutshell, the hidden evidence was that the murder victim had sexually abused Mr. Williams as a minor.)

    By the time the case arrived at the Pennsylvania Supreme Court, Ronald Castille had left the prosecutors’ office to become the state’s Chief Justice. The state’s high court, over which he now presided, was asked to review the fairness of the very death penalty prosecution that he had authorized and overseen. In particular, the Court was asked to decide whether, as the lower court judge found, District Attorney Castille’s assistant had engaged in serious prosecutorial wrongdoing on his watch.

  • February 25, 2016

    by Jim Thompson

    In The Huffington Post, Geoffrey Stone, a former ACS Board member and current co-faculty advisor to the University of Chicago Law School Student Chapter, warns against the legal and political ramifications of Senate obstructionism over Justice Scalia’s Supreme Court replacement.

    Many states have voted on legislation that would regulate transgender people’s use of sex-segregated spaces, and one South Dakota bill, if signed into law, would set a discriminatory national precedent, writes Alia Wong In The Atlantic.

    Ahead of Wednesday’s oral arguments in Whole Woman’s Health v. Hellerstedt, Lyle Denniston previews the case for SCOTUSblog.  

    In 2013, Russell Maroon Shoatz filed a lawsuit against the Pennsylvania Department of Corrections, arguing that his prolonged placement in solitary confinement deprived him of basic human rights. A decision in favor of Shoatz would mark the first ruling that solitary confinement imposed for excessive duration constitutes cruel and unusual punishment, reports Victoria Law at The Nation.

  • February 24, 2016
    Guest Post

    by Richard W. Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota Law School; former Associate Counsel to the President and chief ethics lawyer, White House Counsel's Office (2005-2007); co-author of the ACS Issue Brief, “Extraordinary Circumstances: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations"

    The Constitution is clear.  Presidents have four year terms, Senators have six year terms, and Members of the House of Representatives have two year terms. Their powers and responsibilities are carried out throughout their term in office. We do not take a “time out” from orderly government just because it is an election year.

    Justice Antonin Scalia – one of the greatest jurists in the history of Anglo-American law – did not give an excuse for our Country to descend into chaos simply because he departed from us in an election year.

    In an election year as in every other year it is the responsibility of the President to nominate judges, including Justices of the Supreme Court. It is the responsibility of the Senate to advise the President on nominations and to decide whether to give its consent to particular nominations. This includes holding hearings to determine the suitability of a nominee and voting on nominees just as the Senate votes on legislation, treaties and other matters.

    Or does our government simply grind to a halt because it is an election year? Does the President stop nominating people to vacancies in the judiciary and the executive branch? Does the Senate refuse even to hold hearings? Is no new legislation introduced? Perhaps so, if we assume that the only responsibility of the President and both houses of Congress for an entire year is to collect their paychecks and focus only on the election. 

    And so executive branch regulators shouldn’t do anything significant – or perhaps even show up for work – because it is not clear who the new President will be a year from now? And perhaps the military need not take orders from the Commander in Chief for the next year, because after all we will have a new Commander in Chief a year from now?  

    Everything simply shuts down or worse because it is an election year. This is because we are no longer a great power and those who govern us choose to act as if we were a Banana Republic.

    We know, and the members of the Senate Judiciary Committee know, that the Constitution did not intend for it to be this way. This government functions with two houses of Congress and a President until January 20, 2017 and on that day the government will continue to function with two houses of Congress and a President. Our government has the power, and the responsibility, to enact needed laws, to nominate and confirm judges and other officers to fill vacant positions, to take military action if needed and to declare war if our Country is attacked by an enemy. There is no Election Day – much less election year -- exception to any of this.