ACSBlog

  • 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.

  • April 5, 2016

    by Jim Thompson

    In The New York Times, Adam Liptak discusses the shifting dynamics on the eight-person Supreme Court, quoting Justin Pidot, faculty advisor to the University of Denver Sturm College of Law ACS Student Chapter, who states, “No term since 1990 has included more than two tie votes, a benchmark the court has now hit in a single week.”

    In The Atlantic, frequent ACS speaker Garrett Epps provides commentary on Evenwel v. Abbott, explaining how conservatives’ attempts to “shift power toward older, white, more conservative areas” backfired.

    The Department of Justice has opened an inquiry into the chaos that surrounded Arizona’s presidential primaries, reports AJ Vicens at Mother Jones.

  • April 4, 2016
    Guest Post

    by Ann C. Hodges, professor of law, University of Richmond School of Law

    Justice Scalia was widely viewed as the swing vote in Friedrichs v. California Teachers Association. The Court’s 4-4 decision on March 29 supports that view, but leaves unknown how the case would have been decided had Justice Scalia survived to participate in the decision. In his concurring and dissenting opinion in Lehnert v. Ferris Faculty Association, Justice Scalia recognized that the state’s decision to require the union to represent nonmembers offered a compelling justification for charging the nonmembers for that representation. Despite this opinion, which preceded Justice Alito’s attacks on fair share fees in Harris v. Quinn and Knox v. SEIU Local 1000, Justice Scalia’s comments at the Friedrichs argument suggested that he accepted the position of the dissenting employees that all collective bargaining in the public sector is political. If that is the case, it undercuts the distinction that Justice Scalia accepted in his opinion in Lehnert, that the state can require payment for the mandated representational activities but not for political or ideological activities.

    Regardless of how the case might have come out with Justice Scalia on the Court, the Abood decision, which Friedrichs sought to overturn, has survived. The dead heat leaves the Ninth Circuit’s opinion upholding the statute based on Abood intact. Fair share fees remain constitutionally permissible at present. That this issue will return to the Court, however, is a certainty. Unions may have “dodged a bullet” but union opponents remain loaded and ready. The National Right to Work Legal Defense Foundation and the Center for Individual Rights are dedicated to eliminating the ability of unions to charge objectors for their representational activities and offer free legal services to employees that want to challenge unions on this ground. While Friedrichs’ counsel argued that the case would have no impact in the private sector, that is not at all certain given the Court’s previous decisions analogizing public and private sector union security. Further, these same organizations are committed to taking away union security in the private sector as well.

    The Friedrichs case was rushed to the Court without a record because the plaintiffs sought to capitalize on Justice Alito’s invitations in Harris and Knox. That strategy gave the unions several arguments that may be unavailing in a case with a full record. There are cases in the lower courts raising the issue that may be headed to the high Court. But there is little incentive to rush another case to the Court since it appears that the Republicans in the Senate will block confirmation of any nominee until after the 2016 elections. In addition, the Center for Individual Rights has indicated that it will ask the Court to rehear the case once a new justice is confirmed.

  • April 4, 2016
    Guest Post

    by Meghan Cleary, JD/Master of Public Policy Class of 2017, George Washington University Law School, Trachtenberg School of Public Policy and Public Administration

    The recent passing of Justice Antonin Scalia has brought out a gamut of opinions regarding many of the Supreme Court’s practices. According to Professor of Law Emeritus Paul Carrington of Duke Law School, one big drawback of the current Court is that justices are remaining on the Court past their prime. He argues that staying on the Court as they age is not the “good behavior” that their lifetime tenure requires. In fact, he says that until relatively recently it was common practice for the justices of the Supreme Court to keep an eye on one another: When a justice started showing his age, his colleagues would politely urge him to retire–and he would usually oblige.

    At a recent George Washington University Law School ACS student chapter event with Professor Carrington and Alan Morrison, GW Lerner Family Associate Dean for Public Interest and Public Service Law, Professor Carrington argued justices are no longer retiring because they have made their own jobs too easy. Between the decrease in the number of cases the Court opts to hear per year (around 75) and the increasing number and role of young law clerks, they simply don’t have to do as much work—and of course, the justices no longer “ride circuit,” a practice in which high Court justices toured the country on horseback. The problem is exacerbated, Carrington says, by how highly politicized most of the Court’s decisions are becoming. Each justice individually holds too much power. In turn, the nomination of new justices becomes more and more politicized and contentious with each vacancy. Reform is needed.

    The solution, he contends, is term limits. Specifically, 18-year term limits with the president nominating a new justice every two years. This would solve multiple problems beyond just the issue of age, including the confirmation stalemate that is currently an issue of national debate. The political nature of Supreme Court appointments should be accepted and brought out into the open. With a new Court vacancy occurring every two years, nominating a new justice would be a less high-stakes game.

  • April 4, 2016

    by Jim Thompson

    In Evenwel v. Abbott, the Supreme Court has reaffirmed a lower court decision that says total population, not just the population of eligible voters, can be used to draw electoral districts, reports Tierney Sneed at Talking Points Memo

    Former ACS Board of Advisors member Laurence Tribe discusses his experience teaching Merrick Garland at Harvard Law School on NBC News.

    Caroline Mala Corbin, recent Issue Brief author and faculty advisor to the University of Miami Law student chapter, speaks at a press conference with U.S. Rep. Lois Frankel about the need for hearings and a vote on Chief Judge Garland. Corbin also comments to PolitiFact Florida about Zubik v. Burwell.