ACSBlog

  • September 29, 2014

    by Caroline Cox

    Burgess Everett of Politico reports that judicial confirmation hearings are likely to return after the November elections.

    In The Nation, Ari Berman examines the voting rights record of Eric Holder. In The Washington Post, E.J. Dionne, Jr. looks at Eric Holder’s legacy in comparison to Robert F. Kennedy.

    Adam Liptak writes in The New York Times on the popularity of judicial elections and the legal challenges facing them.

    The New Republic features Jeffrey Rosen’s lengthy interview of Justice Ruth Bader Ginsburg on topics ranging from the Scalia/Ginsburg opera to rumors of her retirement.

    Eric Segall and Lisa McElroy criticize the secrecy of the Supreme Court in an article for Salon.

     

    In The New York Times, Richard Fausset reports on the underrepresentation of African Americans in politics even in large African American communities. 

  • September 26, 2014

    by Paul Guequierre. This post is part of our 2014 Constitution Day symposium.

    In terms of constitutional law, it might seem these days like we take two steps forward and then two steps back. Last year we saw significant victories for marriage equality in the Supreme Court opinions of Hollingsworth v. Perry and U.S. v. Windsor, but the day after the high court issued those opinions, it dealt a major blow to Voting Rights Act in Shelby County v. Holder. We have conservative activist judges and a conservative activist movement hell-bent on reframing the Constitution and what it stands for. Last week we celebrated Constitution Day, the 227th anniversary of the singing of the Constitution. And as we near the end of Constitution month, it’s worth taking a look back at what the Constitution means and where we are going.

    Three years ago, legal scholars  Geoffrey R. Stone and William P. Marshall wrote in an ACS Issue Brief titled “The Framers’ Constitution: Toward a Theory of Principled Constitutionalism,” that “The Framers of the American Constitution were visionaries. They designed our Constitution to endure. They sought not only to address the specific challenges facing the nation during their lifetimes, but to establish the foundational principles that would sustain and guide the nation into an always uncertain future.

  • September 26, 2014
    Guest Post

    by Neil J. Kinkopf, Professor of Law, Georgia State University College of Law

    A growing chorus of legal scholars has argued that President Obama’s move against the Islamic State of Iraq and the Levant (ISIL) lacks legal authority. Professor Noah Feldman has most recently added his voice. He first made the claim on Tuesday in a blog post and repeated it Thursday on NPR’s “All Things Considered.” Feldman assures his readers that “We can dispense quickly the justifications that the administration has proffered ….”   True to his word, Feldman dispenses with the arguments quickly – too quickly, leaving his analysis facile and utterly unpersuasive. 

    In fact, at least three sources firmly establish the President’s authority to proceed against ISIL. 

    1.  Days after the terrorist attacks of September 11, 2001, Congress specifically empowered the President to respond.  Under the 2001 Authorization of Use of Military Force, “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons ….”   Prof. Feldman argues that this law does not support the President’s action against ISIL.  Here’s the full argument:

    The 2001 authorization is less applicable still. In it, Congress told the president he could make war on anyone he determines to have “planned, authorized, committed, or aided” the Sept. 11 attacks. The George W. Bush and Obama demonstrations [sic] have vastly expanded this language to cover al-Qaeda affiliates and spinoffs that didn't exist in 2001. But even these extensions don't cover Islamic State, which is not only unaffiliated with al-Qaeda but also at war with its affiliate in Syria, known as the Nusra Front.

  • September 26, 2014

    by Caroline Cox

    Harry Enten of FiveThirtyEight challenges the assertion that someone like Justice Ruth Bader Ginsburg could not be confirmed to the Supreme Court today.

    In the New Republic, Yishai Schwartz looks at the possible cases the Supreme Court could hear on same-sex marriage and argues the Court should follow the lead of the U.S. Court for the Tenth Circuit.

    The current Supreme Court is primarily concerned with protecting majority rights argues Garrett Epps for The Atlantic.

    Geoffrey R. Stone writes for The Daily Beast on the mixed legacy, particularly on issues of civil liberties, of Eric Holder.

    In Slate, Jamelle Bouie presents a more positive message of Eric Holder’s record, and argues that the partisan environment was his major challenge. 

  • September 25, 2014
    BookTalk
    The Case Against the Supreme Court
    By: 
    Erwin Chemerinsky

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    How should we assess the Supreme Court’s performance over the course of American history? That is the central question of my new book, The Case Against the Supreme Court. My conclusion is that the Supreme Court often has failed at its most important tasks and at the most important times. Recognizing this is important in order to focus on how to improve the institution and make it much more likely to succeed in the future.

    Obviously the evaluation of any institution requires criteria by which it can be assessed.   In the introductory chapter, I posit that the Court exists, above all, to enforce the Constitution. The Constitution exists to limit what government and thus the democratic process can do. As Marbury v. Madison said long ago, the limits contained in the Constitution are meaningless unless enforced and that is the “province and duty” of the courts. The judiciary is particularly important in protecting the rights of minorities (of all sorts) who cannot rely on, and should not have to rely on, the democratic majority. Also, the courts need to play a special role in times of crisis to ensure that society’s short-term passions do not cause it to lose sight of its long-term values.

    I believe that all, liberal and conservative, can agree that these are fair criteria by which to assess the Supreme Court. I also think that liberals and conservatives can agree that the Court very often has failed. Part I of the book looks at the Court historically. Chapter one looks at the Court’s dismal record over the course of American history with regard to race. For the first 78 years of American history, from 1787 until 1865, the Court aggressively protected the rights of slave owners and upheld the institution of slavery.  For 58 years, from 1896 until 1954, the Court approved and enforced the doctrine of “separate but equal.” The Court’s failure with regard to race continues to this day, as evidenced by the decision in Shelby County, Alabama v. Holder, which declared unconstitutional a key provision of the Voting Rights Act of 1965. This is the first time since the 19th century that the Court has invalidated a federal civil rights law to protect racial minorities.