• March 7, 2016

    by Jim Thompson

    In the Huffington Post, Geoffrey Stone, co-faculty advisor to the ACS Student Chapter at the University of Chicago Law School, discusses Justice Scalia’s failed effort “to make originalism the dominant approach to constitutional interpretation.”

    At Hamilton and Griffin on Rights, Glenn Northern presents religious arguments against two upcoming Supreme Court cases that aim to severely restrict reproductive health services at the expense of women’s religious liberties.

    Rekha Basu in The Courier blasts Sen. Chuck Grassley (R-Iowa), chairman of the Senate Judiciary Committee, for obstructing the judicial nominations process in a blatantly unconstitutional manner.

    “A $1.1 million corporate spending blitz that helped defeat two candidates for the Arkansas Supreme Court has prompted the state legislature to call for reforms that would either eliminate judicial elections, ban undisclosed ‘dark’ money in those races, or both,” reports Justin Miller at The American Prospect.

  • March 4, 2016
    Guest Post

    by Jill E. Adams, J.D., Chief Strategist, SIA Legal Team; Executive Director, Center on Reproductive Rights and Justice

    Anyone who’s read the transcript or colorful dispatches from Wednesday’s oral arguments in the Whole Woman’s Health case knows the four liberal-leaning Justices took some of the swagger out of Texas Solicitor General Scott Keller.

    What Knocked Keller Off His Lone Star High Horse?

    That would be many illuminating laser lines of questioning, among them Justice Breyer’s about how closing facilities, cutting off clinical access to safe medications and procedures, delaying abortions until later in pregnancy, and forcing women onto freeways and into overnight stays hundreds of miles away from home just might lead to an increase in the number of women who end their own pregnancies outside of the formal health care system. Justice Breyer and his sistren repeatedly call out the illogic of these cascading effects flowing directly from the state’s dementedly disingenuous claim of wanting to enhance women’s health by enacting the sweeping set of anti-abortion laws that is HB2.

    What Happens When There Is a 75 Percent Reduction in the Number of Clinics?

    Here’s a hint: It isn’t fewer abortions.

    Justice Breyer correctly points out that excessive restrictions on abortion provision limit clinic access and increase the necessity for self-administered abortion care. The Texas Policy Evaluation Project report concluded that as many as 100,000 women in Texas have already attempted to end their own pregnancies outside the formal medical system. Global data have consistently demonstrated that highly restrictive laws do not reduce the abortion rate, they simply relocate the site of abortion care from the hospital to the home.

    Before your mind goes conjuring up gruesome images, take note that this is not your grandmother’s self-induced abortion. Coat hangers and other dangerous methods, while still occasionally employed, have largely given way to safer methods. More often than not, the women in the TxPEP report, and other studies, used traditional herbs or safe and effective pharmaceutical pills purchased online―the same pills they would be prescribed by a healthcare professional for a fraction of the costs.

    What Abortion Access Looks Like Under HB2 for People Living in Poverty

    The abortion costs borne by people living in poverty are much higher than one might think. A pregnant woman in Texas who is struggling to make ends meet may be shocked to discover that her health insurance doesn’t cover abortion. Like the rest of the 13.5 million women of reproductive age in the United States who rely on Medicaid, she’ll have to pay out of pocket for the abortion medication or the procedure, both of which cost about $500 in the first trimester. Tack onto that the price of bus tickets or gas, which could be high if she’s one of the 10,000 women who live more than 150 miles from the nearest abortion provider under HB2. Plus, she has to come up with money for a place to stay overnight and child care for the kids she had to leave behind. That’s all assuming she can afford the lost wages for the days away from work. All told, securing an abortion can cost some families half a month’s pay.

    Mustering Bravery and Ingenuity to Secure an Abortion

  • March 4, 2016

    by Jim Thompson

    In The Tennessean, Shanna Singh Hughey, a member of the ACS Nashville Lawyer Chapter Executive Board, slams attempts to turn Senate obstruction of Supreme Court nominees into the “new normal.”

    Leaders of the Kentucky NAACP and other civil rights groups slammed Senate Majority Leader Mitch McConnell (R-Ky.) for vowing to obstruct any Supreme Court nominee, saying that upcoming voting rights and redistricting cases require a full Supreme Court, reports Chris Kenning at the Courier Journal.

    In Whole Woman’s Health v. Hellerstedt, the Supreme Court will “reaffirm a woman's right to choose or subject the abortion right to a death by a thousand cuts,” writes the Constitutional Accountability Center’s David H. Gans at The New Republic. Julie Rovner at NPR dissects the chain of events that paved the way for this high-profile lawsuit.

    In The Morning Call, Brianne J. Gorod of the Constitutional Accountability Center provides commentary on Williams v. Pennsylvania, arguing that the defendant’s constitutional rights were violated by a judge’s clear conflict of interest.

  • March 3, 2016
    Guest Post

    by Jamal Greene, vice dean and professor of law, Columbia Law School. Professor Greene teaches and writes in the areas of U.S. constitutional law and theory, federal courts, and comparative constitutional law.

    * This post was excerpted from Professor Greene’s statement to the Senate Democratic Steering and Outreach Committee.

    The duty of the Senate in regards to its constitutionally enumerated functions is measured by whether its exercise of those functions serves the Constitution’s purposes and is consistent with well-established institutional practices. By that measure, the Senate has a constitutional duty to give due consideration to anyone nominated by the president to fill a Supreme Court vacancy. In the modern history of the nation, there is no precedent for the Senate’s deliberately refusing to vote on a nominee to a vacant Supreme Court seat, whether during an election year or at any other time.

    I. The Constitutional Duty to Consider Supreme Court Nominations

    Republicans currently hold a majority of seats in the Senate and on the Senate Judiciary Committee. Accordingly, should the party remain unified, it has the capacity to refuse to schedule a hearing on any executive nomination or to refuse to report a presidential nominee out of committee. A government institution’s capacity to exercise political power is not, however, the measure of its responsibility under the Constitution. Rather, constitutional duty is best measured by an institution’s exercise of the enumerated responsibilities necessary to serve the Constitution’s purposes.

    The Constitution explicitly informs us of those purposes. The Preamble states that “We the People” establish the Constitution in order to, among other things, “establish Justice.” The Framers believed that part of the reason behind the failure of the Articles of Confederation was its failure to provide for any federal court system. As Alexander Hamilton wrote in Federalist 78, “In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out.” The Supreme Court was among the major innovations of the new Constitution. Unlike all other federal courts and indeed all other institutions subject to executive appointment, the Supreme Court is established by the Constitution directly. Its existence does not depend on congressional action, and Congress—much less the Senate acting unilaterally—does not have the authority to disestablish it.

    It is no surprise, then, that the Constitution specifically enumerates the President’s power to “nominate, and by and with the Advice and Consent of the Senate . . . [to] appoint . . . Judges of the supreme Court . . . .” The Framers did not contemplate the use of the Senate’s advice and consent power solely to run out the clock on a presidential appointment. As Hamilton speculated in Federalist 76, rejection of a nominee “could only be to make place for another nomination by [the President].”

    Viewing the appointments power as a whole confirms the Framers’ assumption that the President and the Senate would work together to ensure a functioning government. When the Senate is in recess, the President has the power to appoint officers to fill vacancies, including on the Supreme Court. This power implies that when the Senate is in session, it is expected to act on the President’s nominations. Past presidents have used the power of recess appointment for Supreme Court nominees, including for three nominees of President Eisenhower. Although the Senate expressed its disapproval of this practice in a 1960 “sense of the Senate” resolution, that resolution notably included an express exception for recess appointments “to prevent or end a breakdown in the administration of the Court’s business.”

  • March 3, 2016

    by Jim Thompson

    According to a recent poll, two-thirds of Americans want the Senate to hold hearings for a potential Supreme Court nominee, says Caitlin Cruz at Talking Points Memo. Further, 58 percent of respondents said they want President Obama to appoint the new judge, not the next president.

    At Slate, Dahlia Lithwick provides commentary on yesterday’s oral arguments in Whole Woman’s Health v. Hellerstedt and celebrates the Supreme Court’s new gender balance in the post-Scalia era, saying the female justices “are just not inclined to play nice anymore.”

    Earlier today, Chief Justice John Roberts refused to block an Environmental Protection Agency regulation limiting emissions of mercury and other toxic pollutants from coal-fired power plants, writes Adam Liptak at The New York Times.

    Brian Encinia, the Texas state trooper who arrested Sandra Bland, was fired after failing to “rebut disciplinary charges leveled against him in January,” reports Stephen A. Crockett, Jr. in The Root.

    At the Huffington Post, Jennifer Bendery chastises Georgia lawmakers considering “a law that would let any taxpayer-funded organization deny services to same-sex couples, or unmarried couples in general, by citing religious freedom.”