• April 6, 2016
    Guest Post

    by Anthony S. Winer, professor of law, Mitchell Hamline School of Law

    In the last few weeks, Georgia and North Carolina proposed anti-LGBT legislation. The Georgia bill was cast as a measure “to protect religious freedoms.” The North Carolina bill was cast mainly to “provide for” single-sex multiple occupancy bathrooms. But both were actually designed to prevent LGBT people from obtaining protection against discrimination. The bills present notable contrasts.

    The most important contrast was that the governor of Georgia vetoed his state’s bill, while the governor of North Carolina signed his so that the North Carolina bill is now law in that state. The next most salient contrast was indicated above: The Georgia statute purports to be based in preserving religious freedom, while the North Carolina statute is entirely secular. This can serve to illustrate that anti-LGBT prejudice can be expressed either in purportedly religious or in secular terms.

    Another glaring contrast is that the Georgia bill was drafted clumsily, while the North Carolina bill reflected a sophisticated (if malevolent) understanding of key Supreme Court precedents.

    The Georgia bill purported to protect “religious freedoms,” but its coverage was pitiably parochial. Its definition of one of its key defined terms, “faith based organization,” referenced any “church . . . association or convention of churches . . . or any integrated auxiliary of a church or convention or association of churches.” In the entire bill, there was no reference to any synagogue, mosque, temple, or other house of worship that was distinctly not Christian. This phraseology betrayed the narrow mindset of the bill’s authors.

    The Georgia bill reflected inept drafting in a variety of additional ways, from the maladroit repetition of certain provisions to the bizarre restatement of the self-evident. (For example, the bill actually contained a provision stating that religious ministers are “free to solemnize any marriage . . . or to decline to do the same, in their discretion.”)

  • April 6, 2016

    by Jim Thompson

    The Supreme Court’s decision in Evenwel v. Abbott “reaffirmed that the Constitution’s text and history secure equal representation for all, rejecting the far-reaching claim—never accepted by any court in history—that the Constitution requires states to draw districts composed of an equal number of eligible voters,” writes David Gans at Balkinization.

    In The New York Times, David Montgomery and Michael Wines opine that the Supreme Court’s ruling in Evenwel set the stage for a renewed battle over legislative redistricting following the 2020 national census, quoting Daniel P. Tokaji, faculty advisor to the Ohio State University Moritz College of Law ACS Student Chapter, who says, “The big case isn’t this case, but the next case.”

    At Jost on Justice, Kenneth Jost blasts hollow arguments supporting the discriminatory North Carolina law nullifying pro-LGBT ordinances in the state.

  • 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.