ACSBlog

  • March 31, 2016
    Guest Post

    by Gregory Magarian, Professor of Law, Washington University School of Law

    Today I and nine other law professors who study the Second Amendment and legal issues related to gun violence have called on the Senate Judiciary Committee to evaluate President Obama's nomination of Merrick Garland to the United States Supreme Court without regard to the right-wing fantasy that Judge Garland hates the Second Amendment.  Senate Majority Leader McConnell has all but stated that the N.R.A. will dictate the Senate's approach to its constitutional responsibility of advice and consent on the nomination.  The N.R.A. has all but branded Judge Garland a gun-seizing thug.  Both positions are very important and very dangerous.

    In Judge Garland's nearly two decades on the D.C. Circuit, he has twice encountered cases that touched on gun rights.  In one case he voted, along with a bipartisan group of colleagues, for en banc rehearing of a panel decision that upheld an individual right to keep and bear arms, the decision the Supreme Court eventually affirmed in District of Columbia v. Heller. In the other case he wrote an opinion that let the George W. Bush administration temporarily maintain some records about gun ownership. The idea that, based on those actions, a Justice Garland would vote to overrule or limit the decisions in Heller and/or McDonald v. Chicago is, regrettably, irrational. The N.R.A., however, portrays the barest nod toward caution or procedural regularity about gun rights as a black helicopter on the horizon.

    That unhinged or calculated (take your pick) attitude toward the law makes it especially terrifying that the Senate Republican Conference has effectively outsourced its judgment about the Court to the N.R.A. The Senate is supposed to work for the American people. The present Senate -- to whatever minimal extent it deigns to work at all -- has sworn blind obedience to one very special interest group, a group whose sole reason for being is to make sure that any person, no matter how homicidal, can add to his private arsenal any gun, no matter how lethal.

  • March 31, 2016

    by Jim Thompson

    ACS President Caroline Fredrickson calls on Republican senators to follow the lead of Sen. Jerry Moran (R-Kan.) and allow hearings on Merrick Garland in The Topeka Capital-Journal.

    In Cincinnati.com, Joseph Tomain, incoming faculty advisor to the University of Cincinnati College of Law chapter, uses examples from recent environmental litigation to explain why the Supreme Court must be restored to full power.

    Joshua Douglas, faculty advisor to the University of Kentucky student chapter, warns that a 4-4 split could cause catastrophe in the event of a contested presidential election in The Courier-Journal.

  • March 30, 2016
    Guest Post

    by Charlotte Garden, associate professor at Seattle University School of Law, litigation director of the Korematsu Center for Law & Equality, and faculty advisor to the ACS student chapter at Seattle Law. Follow her on Twitter @CharlotteGarden.

    On Tuesday, the Supreme Court affirmed the Ninth Circuit’s decision in Friedrichs v. California Teachers Association by equally divided vote. This result—a win for public sector unions—has been anticipated by Court watchers since Justice Scalia’s death made a tie vote among the remaining eight justices nearly inevitable. Still, a tie vote did not require the Court to affirm the judgment below—instead, the Court could have held the case over for reargument once it was back to the full compliment. That the Court did not go that route could reflect the Justices’ own recognition of the political reality that Senate Republicans’ intransigence makes confirmation of a ninth justice before the presidential election in November unlikely. More important, though, Friedrichs is a sign of things to come—the 4-4 affirmances that are all but certain to arrive later this Term will cause far more disruption and uncertainty.

    What Does Affirmance in Friedrichs Mean for Public Sector Unions?

    As I previously described for ACSblog, January’s argument in Friedrichs left public sector unions—as well as states that have chosen to manage their workforces through collective bargaining with unions supported by agency fees—little reason for hope. The Court seemed poised to hold that public sector employees have a First Amendment right not to contribute financially to the unions that represent them, even as they benefit from that representation. A ruling against the union and state defendants would have reversed a nearly 40-year-old Supreme Court precedent, Abood v. Detroit Board of Education, and handed a long-sought victory to the right.

    Thus, Tuesday’s decision was a reversal of fortunes for public sector unions and employers. It means that in the nearly half of states in which public sector agency fees are required or authorized, unions will not be left scrambling to cover the gap that would have inevitably resulted when represented workers made the economically rational decision to free ride on their co-workers. And the timing of that reversal—which would have left unions to cover their shortfall using dues paid by members on a voluntary basis—is also critically important. Unions would have had to divert member dues that could otherwise have gone to election-related advocacy (among other things). And that reallocation would have dampened union members’ ability to engage in political speech through their unions during the upcoming presidential election season—a fact not lost on the plaintiffs’ lawyer, Michael Carvin.

  • March 30, 2016

    by Jim Thompson

    Sen. Minority Leader Harry Reid (D-Nev.) calls on the Senate to do its job at a press conference hosted by the UNLV Law ACS student chapter and covered by KSNV News. The chapter’s faculty advisor, Ruben J. Garcia, said “Republicans are creating a preemptive veto over a nominee.”

    ACSblog contributor Richard Painter, chief ethics lawyer under George W. Bush, tells WNYC that Bush would have also nominated a consensus candidate for the Supreme Court had he been in President Obama’s situation.

    In The Charlotte Observer, co-faculty advisor to the UNC Law ACS student chapter Gene Nichol says “paying homage to Scalia by boastfully violating the text, intention, history, traditions and structure of the U.S. Constitution is beyond rich.”

    Meaghan Winter at Slate explains how the“undue burden” standard has effectively eliminated a woman’s right to choose abortion. 

  • March 29, 2016
    Guest Post

    by Mark S. Kende, James Madison Chair Professor in Constitutional Law and director of the Drake University Constitutional Law Center. Professor Kende serves as faculty advisor to the ACS student chapter at Drake University Law School.

    *This post originally appeared in The Des Moines Register.

    A group is running television advertisements in Iowa on behalf of Sen. Chuck Grassley saying that he wants “the people” to select the next U.S. Supreme Court justice to replace the Honorable Antonin Scalia, via this year’s presidential election.  Grassley justifies refusing to hold hearings as chair of the Senate Judiciary Committee on President Obama’s distinguished nominee, U.S. Court of Appeals Judge Merrick Garland, for this reason even though Garland has received support from distinguished Republicans such as Ken Starr and Sen. Orrin Hatch. Yet the Grassley advertisement misinforms Iowans.

    The U.S. Constitution specifically authorizes the president, not “the people,” to nominate Supreme Court justices. The Senate must give its “advice and consent,” but it’s the president’s choice. And by the way, President Obama was elected by “the people” through our electoral college for a full four-year term, not three years.

    Grassley assumes Iowans will not notice the misinformation campaign because he is making his position sound very democratic and populist. Yet it’s just incorrect. And Senator Grassley is not following his own frequent statements about strict allegiance to the text of the Constitution in his advertisements. Moreover, polls show that most people vote for a presidential candidate based on a number of reasons, including the Supreme Court. Other people worry about the economy or terrorism. So his statements that the presidential election is a referendum on the Supreme Court is not accurate.

    Some Republican leaders, including Senator Grassley, initially said that no vote should be held because Supreme Court confirmation decisions historically were not made in presidential election years. Yet Grassley had no problem when a Democratic-controlled Senate confirmed Republican presidential court nominee Justice Anthony Kennedy in 1988 during an election year.