• March 2, 2016

    by Jim Thompson

    Ahead of today’s oral arguments in Whole Woman’s Health v. Hellerstedt, the Editorial Board at The Washington Post says the Supreme Court should dismiss baseless claims that Texas’s restrictive abortion laws are designed to protect patient health.

    South Dakota Gov. Dennis Daugaard (R) on Tuesday vetoed a discriminatory bill that would have required transgender students at the state’s public schools to use bathrooms that match their gender assigned at birth, report Greg Botelho and Wayne Drash at CNN.

    The Supreme Court on Monday declined to hear a lawsuit challenging the constitutionality of a New Jersey law banning conversion therapy for LGBT minors, writes Chris Johnson at the Washington Blade.

    Laws disenfranchising ex-felons will prevent nearly six million citizens from voting in this year’s presidential election, laments Nathalie Baptiste at The American Prospect.

  • March 1, 2016
    An Argument Open to All
    Reading "The Federalist" in the 21st Century
    Sanford Levinson

    by Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and Professor of Government, University of Texas at Austin School of Law

    Early in my new book, An Argument Open to All: Reading "The Federalist" in the 21st Century, I refer to the set of essays published in 1787-1788 as “the best known, most widely read and analyzed extended work of American political thought.” I now believe, from talking to many colleagues and students, that the reference to “widely read” is almost certainly wrong. Many people have no doubt read Federalists No. 10, 47, 51, and 78, but there are 81 additional essays, most of which languish in obscurity.

    So the central question is whether there is good reason for a 21st century reader in fact to read The Federalist beyond the few “greatest hits.” It is obvious why someone interested in the formation of the Constitution would be interested in the entire corpus. Interestingly, it is less obvious why anyone with a particular interest in interpreting the Constitution would have to read it; very few of the 85 essays actually relate to the controversies that come before the judiciary or other constitutional interpreters in the 21st century. Most of them are devoted to explaining why the system established by the Articles of Confederation was “imbecilic;” why unifying behind a new constitution was essential to defense against what we would today call threats to our national security; and broad discussions of the institutions that comprise our political system (and which, being “hard wired,” are almost never the subjects of litigation).

    My book consists of 85 separate essays, each one corresponding to the respective original essay. They offer not so much an exegesis of the original as an inquiry whether it still has anything to tell us about constitutionalism in the 21st century. Underscoring the “presentism” of the essays is the fact that I refer exclusively to Publius, the notional author, and not to the actual historical authors Alexander Hamilton, John Jay, or James Madison. One of the consequences of adopting that approach is that I don’t have to concern myself with the question of the authors’ “sincerity” or genuine belief in their own arguments, shaped to elicit the votes of ratifiers at the state ratification conventions in 1788. My audience is persons interested in the Constitution in 2016 (or in 2020). Should they (you) make time at least to read my book and perhaps even return to The Federalist itself? To a degree that genuinely surprises even me, given my own doubts when I embarked on this project, I think the answer is yes.

  • March 1, 2016

    by Jim Thompson

    At Hamilton and Griffin on Rights, Leslie C. Griffin previews oral arguments in Whole Woman’s Health v. Hellerstedt, concluding, “A more deferential attitude toward all abortion regulations combined with a weakened undue burden standard would mark a significant change in the Court’s abortion jurisprudence and an invitation to the states to pass new regulations.”

    FBI Director James Comey and Apple General Counsel Bruce Sewell will both testify before the House Judiciary Committee today, reports Alina Selyukh at NPR. Lawmakers will consider if the FBI has “the right to compel a company to produce a product it doesn't already make, to the FBI's exact specifications and for the FBI's use.”

    German Lopez at Vox criticizes the punitive treatment of Americans with mental illnesses, attributing the issue to an underfunded mental health system that relies on an overly-aggressive criminal justice system to “pick up the slack.”

    Associate Justice Clarence Thomas spoke from the bench for the first time in 10 years on Monday, revealing a new dynamic on the Supreme Court since the death of Justice Antonin Scalia, writes Garrett Epps at The Atlantic.

  • February 29, 2016
    Guest Post

    by Eric J. Segall, Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law. Follow Professor Segall on Twitter @espinsegall.

    On Wednesday, the Supreme Court will hear arguments in an historic abortion case involving two Texas laws that, if upheld, will make it much more difficult for poor women in Texas to obtain abortions. The death of Justice Scalia has little effect on the outcome of this case. There are likely three conservative votes to uphold the laws (Roberts, Alito, and Thomas) and four liberal votes to invalidate the laws (Ginsburg, Breyer, Sotomayor and Kagan). If Justice Kennedy votes with the liberals, the laws will be struck down 5-3 (instead of 5-4 had Scalia remained on the bench). If he votes to uphold the laws, the decision of the lower court sustaining both laws will be affirmed by a 4-4 vote (though the case would not have national implications).

    One of the Texas laws requires clinics that perform abortions to have the physical plans of ambulatory surgical centers while the other requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of the clinic. Before these laws went into effect, there were over 40 clinics in Texas where women could secure a safe abortion. If these laws are upheld, the number will be less than 10. Women in West Texas will have to drive over 150 miles to obtain an abortion should the Supreme Court affirm the lower court.

    The legal standard currently in effect for abortion laws is whether they pose an “undue burden” on the right to an abortion. There can be little dispute that these laws do exactly that (in fact that is their very purpose). As the Texas Solicitor General announced shortly after the laws were passed:

    These laws were not enacted solely to advance the State’s interest in maternal health. They were also enacted to advance the State’s interest in promoting and protecting fetal life. A law that is enacted to advance the State’s interest in the life of the unborn need not be medically necessary to survive constitutional challenge.

    Although Texas does argue that both laws further women’s health by making abortion clinics safer and by ensuring doctors have access to a hospital should something go wrong, both rationales are patently absurd. As Judge Posner held in a case striking down the same admitting privileges law in Wisconsin, and as many other folks have pointed out, abortion is a much safer medical procedure than many other outpatient procedures, including colonoscopies and liposuction, yet nether Wisconsin nor Texas requires doctors to have admitting privileges at local hospitals when performing those services.

  • February 29, 2016

    by Jim Thompson

    At Jost on Justice, Kenneth Jost criticizes the unprecedented obstruction efforts of Senate Republicans, noting, “In the modern era of public hearings for Supreme Court confirmations that began in 1916, no nominee has been denied a hearing and only one has been denied a vote: Abe Fortas, filibustered in 1968 by Republicans.”

    Supreme Court Chief Justice John Roberts “loathes writing in the minority,” so a shift in the high Court’s balance of power would force Roberts to moderate his views or “let himself drift into irrelevance,”  writes Mark Joseph Stern at Slate.

    Nina Martin at Mother Jones explains how Justice Antonin Scalia’s deeply conservative views on abortion may oppress reproductive rights even after his death.

    Justice Anthony Kennedy will likely cast a crucial swing vote in the upcoming Supreme Court case Whole Woman’s Health vs. Hellerstedt. Irin Carmon at MSNBC examines the factors that will influence his decision.

    In strong defense of the Second Amendment, Justice Clarence Thomas spoke from the bench for the first time in decade, reports Cristian Farias at The Huffington Post.