ACSBlog

  • February 7, 2017
    Guest Post

    *This piece originally appeared on Law360.

    by James J. Brosnahan, Senior Trial Counsel, Morrison Foerster

    As President Trump applies his whack-a-mole, hammer-them-all-on-the-head theory of leadership, could a Justice Neil Gorsuch legal philosophy join opinions that would declare the president’s actions unconstitutional? It is a lot to ask when the president has just given you the greatest legal gift America can bestow. But if the bestower actually holds up federal money from the University of California or sanctuary cities or does any other of the threatened unconstitutional actions in violation of established constitutional doctrine, the court will have to check and balance him as the country’s founders intended.

    Judge Gorsuch is, at times, a positivist. He is outside mainstream American judicial decision-making. I have looked at the headings and results in all 237 of his decisions. I read those that might reflect U.S. Supreme Court issues in the future — those cases I examined much more closely.

    When the words "Oxford degree" are first uttered in the confirmation hearing, it will have a mesmerizing effect on the senators. He got a degree in legal philosophy there in 2004. He studied under the tutelage of John Finnis, a natural-law theorist, who according to Google supports the Catholic Church on a range of contentious issues. Finnis believes the state should deter public approval of “homosexual” behavior. He opposes gay unions and believes they are an assault on heterosexual marriage. More to the point of Gorsuch’s legal philosophy, his teacher Finnis opposes looking for the “ought” in natural-law ethics. At the heart of all Western legal theory, there is the “is vs. ought” division; the United States Constitution is all about the ought.

  • February 6, 2017
    Guest Post

    *This piece was originally published by Niskanen Center.

    by Paul Gowder, Associate Professor of Law at the University of Iowa

    The Constitution and the Rule of Law

    The late Justice Scalia was well-known for a number of important judicial commitments—to constitutional originalism, to a permissive account of the Establishment Clause, to a skeptical approach to executive criminal justice power. But his most important commitment was to the rule of law, a central constitutional ideal to which he routinely appealed (and about which he published a famous academic article, “The Rule of Law as a Law of Rules“).

    The rule of law is traditionally contrasted to “the rule of men.” The contrast captures the difference between societies in which the awesome power of governments to send men and women with weapons to order their people about is governed by general rules, laid down in advance, and enforceable against government officials who would abuse their power, and societies in which government violence is deployed at the whim of powerful officials without such constraints.

    At a minimum, the rule of law requires that public officials obey the substance of the law as well as respect the procedures embedded in the law, such as the judgment of courts. They must also respect the right of the people to turn to such procedures in order to defend themselves from the might of the government. And the rule of law requires that public officials not be endowed with the open-ended authorization to exercise force and violence against ordinary people in accordance with their mere wills.

  • February 6, 2017
    Guest Post

    *This piece originally appeared on the Whistleblower Protection Law Blog

    by Jason Zuckerman, Principal, Zuckerman Law

    If Judge Neil Gorsuch is confirmed, he will play a critical role in construing laws that protect worker health and safety, including laws protecting whistleblowers who suffer retaliation for opposing illegal or unsafe conduct that jeopardizes public health and safety. According to the Bureau of Labor Standards, 4836 workers were killed on the job in 2015—on average, that is more than 93 a week, or more than 13 deaths every day. As the Occupational Safety and Health Administration (OSHA) is already severely understaffed and will soon be further weakened by a political appointee charged with gutting it, the last thing workers need is an activist judge who has expressed disdain for worker-protection laws. But that is exactly what we can expect from Judge Gorsuch.

    In a recent dissent in TransAm Trucking, Inc. v. Administrative Review Board, 833 F.3d 1206 (10th Cir. 2016), Judge Gorsuch demonstrated that he will construe worker-protection laws as narrowly as possible and that he deems worker “health and safety” as “ephemeral and generic” statutory goals. His opinion also reveals that his alleged values-neutral approach to statutory construction is intellectually dishonest. The majority decision affirming the whistleblower’s win at the Department of Labor was based on the plain meaning of the statute, well-established precedent construing the statutory term at issue and the purpose of the statute. Judge Gorsuch’s dissent, however, was arguably activist in that it rewrites the statute. In other words, Judge Gorsuch does not check his policy preferences or values at the courthouse door and render value-neutral decisions based on the dictionary definitions of statutory terms. Instead, as this opinion demonstrates, his alleged strict textualism appears to be a cloak for his policy preferences, including his apparent disdain for worker protection laws.

  • February 6, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post.

    by Lara Schwartz, Former ACS Director of Strategic Engagement and Professorial Lecturer, SPA Honors Program Director and Adjunct Professor, Washington College of Law at American University

    After Judge James Robart of the U.S. District Court for the Western District of Washington issued an order halting enforcement of President Trump’s executive order on immigration, Trump took to Twitter, stating “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” Opponents rightly sounded the alarm about this extraordinary disrespect for the judicial function and our Constitution. Sen. Chuck Schumer tweeted that it “shows a disdain for an ind. Judiciary that does not bend to his wishes & lack of respect for the Constitution.”

    This is not simply one more example of Trump’s thin-skinned attitude or his intolerance for dissent. It casts doubt on his capacity to fulfill his constitutional duty to nominate fair-minded, independent judges. Everything we know about Trump should lead us to believe he wants to nominate judges who will put loyalty to him above faithfulness to the law. This means any potential justice whom Trump would consider a satisfactory choice to fill the late Justice Scalia’s seat would be presumptively unfit.

    Trump introduced his nominee, 10th Circuit Judge Neil Gorsuch, to America just days after the executive order that “so-called” federal judges have halted. It is now incumbent upon Gorsuch to demonstrate that in spite of having earned Trump’s approval, he is an independent thinker who can keep his oath to uphold our Constitution and not, in the words of Molly Ivins, to “dance with them what brung” him.

  • February 3, 2017
    Guest Post

    *This post updates the Aug. 6, 2015 piece, State Constitutions: The Next Frontier in Voting Rights Protection.

    by Joshua A. Douglas, the Robert G. Lawson & William H. Fortune Associate Professor of Law, University of Kentucky College of Law

    On the 50th anniversary of the Voting Rights Act, in August 2015, I wrote that "A renewed, independent focus on state constitutions and their explicit grant of the right to vote would restore the importance of the most foundational right in our democracy." In the Trump era -- with false claims of widespread voter fraud and likely calls for new restrictive voting rules -- that reliance on robust state constitutional protection is more vital than ever.

    Reformers who care about protecting the right to vote face an uphill battle in the current political environment. The Trump White House, the Republican-led Congress, and even many conservative-controlled state legislatures are unlikely to enact meaningful voting rights reform in the near future. The Supreme Court, especially with a new conservative justice, is unlikely to alter its crabbed interpretation of U.S. constitutional protection of the right to vote. State courts are therefore even more important in vindicating the most fundamental right in our democracy by checking partisan abuses and attempts at entrenchment. They must recognize the robust right to vote that all state constitutions confer and construe them as providing stronger protection than the Constitution.