Carolyn Shapiro

  • April 7, 2017
    Guest Post

    *This piece originally appeared on Chicago-Kent 's ISCOTUS now blog.

    by Carolyn Shapiro, Associate Professor of Law, Co-Director, Institute on the Supreme Court of the United States (ISCOTUS), IIT Chicago-Kent College of Law

    Going nuclear may serve Republicans today, but in the long term, it may do more for Democrats. Thursday, in response to a Democratic filibuster of Judge Neil Gorsuch’s nomination to the Supreme Court, the Republicans voted to eliminate the 60-vote threshold to end debate on a Supreme Court nomination. The Republicans have an immediate victory here: Justice Gorsuch will be sitting on the Supreme Court before its oral arguments scheduled for later this month. But in the long run, the elimination of the filibuster may help Democrats more than Republicans when it comes to Supreme Court appointments. (I am not alone in thinking about unintended consequences here. Nate Silver of 538.com has an extensive piece about how Republicans have generally used the filibuster more effectively than Democrats to block legislation and arguing that eroding its power may thus advantage Democrats in areas beyond the Supreme Court.)

    As a general matter, Republican nominees over the past 35 years have been quite conservative. During that time Republican nominees included Scalia, Rehnquist (to become Chief Justice), Thomas, Roberts, Alito – and, of course, Bork. There are of course the notable exceptions of Justices Souter (who turned out to be a surprising moderate liberal) and Kennedy (a moderate conservative), but overall, the Republican roster has been notably conservative – and at least as important, they were perceived as such when nominated. In this regard, Judge Gorsuch fits right in (no pun intended).

    In contrast, the Democratic nominees during this timeframe

  • March 22, 2017
    Guest Post

    by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States, IIT Chicago-Kent College of Law

    The two days of Q&A between senators and Judge Neil Gorsuch has been marked by his unwillingness to answer some of the most basic questions about his views of the law. Judge Gorsuch and Sen. Blumenthal (D-CT), for example, had a lengthy tug-of-war about whether Brown v. Board of Education was correctly decided. This should not be a hard question, but Gorsuch resisted giving a straight answer. Of course, Gorsuch does think that Brown was rightly decided, and he eventually got around to saying so, albeit circuitously. Gorsuch resisted answering this softball because once he gave a straight answer about Brown, it was harder not to answer about other, more controversial cases like Griswold (right to birth control) or Roe v. Wade.

    Admitting to a belief that a case was wrongly decided does not require committing to vote to overrule (and I do not think that any nominee should make promises about how they will vote) because there are significant stare decisis concerns, as Gorsuch repeatedly and correctly emphasized. But a more candid discussion even about Brown would allow for some insight into how Gorsuch thinks about how to interpret the Constitution’s protections for rights that may not have been recognized by, or relevant to, the Framers. Indeed, at least in the portions of the hearing that I heard, no senator pushed him to fully explain his claim that Brown was “consistent with the original meaning” of the 14th Amendment, which might have shed some light on his judicial philosophy and methodology. (Segregated schools were widespread and uncontroversial at the time the Amendment was enacted.)

  • February 15, 2017
    Guest Post

    by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States, IIT Chicago Kent College of Law

    There have now been approximately 25 cases filed around the country challenging President Trump’s executive order (“EO”) imposing a travel ban on refugees and on individuals from seven majority-Muslim countries, and TROs of various scopes have issued. (The University of Michigan Civil Rights Litigation Clearinghouse is gathering filings in these cases.) Most famous, of course, is the nationwide TRO issued by the district court in Seattle in Washington v. Trump, the case brought by Washington and Minnesota, and the refusal of the Ninth Circuit – which treated the TRO as a preliminary injunction – to stay that order pending appeal. (The Ninth Circuit, at the request of at least one active judge, is now considering whether to rehear that decision en banc.) But other cases continue apace. Just yesterday, in a case called Aziz v. Trump, Judge Leonie Brinkema of the Eastern District of Virginia issued a preliminary injunction precluding enforcement of the portion of the Executive Order prohibiting entry into the United States by people from seven specific majority-Muslim countries. (This injunction applies only to Virginia residents as well as to students and employees of Virginia educational institutions.)

    The Trump Administration’s litigation strategy in these cases reveals, if there were any doubt, that no evidence of any security risk prompted the EO and that it engaged in no internal process to evaluate such a risk. Its primary argument on the merits is that the courts can have no role in reviewing the president’s immigration decisions, particularly when they implicate national security. The courts in the travel ban cases have resoundingly rejected this argument, even as they have acknowledged that the president is entitled to substantial deference. The Ninth Circuit spent more than four pages of its opinion and cited reams of Supreme Court opinions explaining the role of the courts in reviewing immigration and national security related decisions of the political branches. And as Judge Brinkema said in her opinion, “Maximum power is not absolute power.”

  • February 3, 2017
    Guest Post

    by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States, IIT Chicago-Kent College of Law

    Now that President Trump has nominated Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit to the Supreme Court, we will be hearing a lot about the proper role of a Supreme Court justice. In introducing Judge Gorsuch, for example, Trump said that he had sought a nominee who would “interpret [the Constitution and laws] as written.” Praising Trump’s choice, Sean Hannity noted that Trump was fulfilling his promise to appoint someone who would “strictly adhere to the original meaning of the words of the Constitution” and claimed that Gorsuch is not someone who will “legislate from the bench.” Other conservatives have hailed him as a “textualist” and one who “espouses judicial restraint.”

    All of these statements are wrong. They are wrong not necessarily because they misdescribe Gorsuch’s jurisprudence, but because they misdescribe the job. The job of the judge – and especially the job of a Supreme Court justice – is much more complex and nuanced than catchphrases like “applying the law as written” suggest.

    The statements are also code. They are code for a particular type of judge – and make no mistake, it is a judge who conservatives believe will produce results that, by and large, they like. This is not to say that a judge has to do something illegitimate to reach those results. Rather, it is to say that such a judge is – like all judges addressing hard and indeterminate questions of law – making judgments, considering facts, weighing competing principles and taking account of precedent, history, and societal norms and expectations.

  • December 16, 2016
    Guest Post

    by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States at Illinois Institute of Technology Chicago-Kent College of Law

    On Monday, Dec. 19, 2016, the 538 members of the Electoral College will gather in their states to cast their votes for president. The expected outcome is that they will elect Donald Trump. But this year there has been a surprising amount of discussion of a different result, thanks to efforts of some electors themselves and a variety of academics, writers and advocates.

    Article II, section 1 and the Twelfth Amendment of the Constitution provide the framework for the Electoral College. Every state has a number of electors equal to their congressional representation – two Senators plus the state’s House delegation. (Under the Twenty-third Amendment, the District of Columbia also has three electors.) The state legislatures have the authority to determine how the electors are selected and there is no requirement that the selection be by popular vote. Nor is there a requirement that the states assign their electors on a winner-take-all basis, as almost all do. (Maine and Nebraska are the exceptions.)

    Once the electors are selected, they meet in their states and cast their ballots. They certify the votes and send them to Congress, which will meet in early January to count the votes. To become president, a candidate must receive a majority – at least 270 – of the electoral votes. If no candidate receives 270 votes, then the House of Representatives, voting in state delegations with each state receiving one vote, must choose between the top three electoral-college vote-getters.

    This system is an odd way to run an election in the 21st century. Its roots are in compromises made at the Founding to protect slavery and (arguably) to ensure the influence of smaller states. Some argue that there was no expectation that the electors would exercise independent judgment. But as Alexander Hamilton explained in Federalist 68, the Framers were concerned that the people might be taken in by an unqualified candidate and they wanted to ensure that “[t]alents for low intrigue, and the little arts of popularity” would not displace the “requisite qualifications” for the presidency. And, he added, “every practicable obstacle should be opposed to cabal, intrigue, and corruption.”  Finally, he argued that the electoral college would protect the country against “the desire in foreign powers to gain an improper ascendant in our councils.” It is hard to read this explanation for the Electoral College without wondering if Hamilton was prescient.