Guest Post

  • April 10, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution"

    by Nancy Gertner, ACS Board Member and Senior Lecturer on Law, Harvard Law School

    I want to stop focusing on the United States Supreme Court as if it is the site of all decisional law, or even all constitutional law. It is not. It takes fewer and fewer of the cases in which cert is sought; even fewer cases that are otherwise important are not in the mix at all. 

    I do not want to ignore the lower federal courts – district and appellate – as progressives have done, except insofar as these are routes to the Supreme Court. I want to imagine a system in which the lower federal courts are in fact common law courts, considering new constitutional issues on the merits, prefiguring arguments that may one day make it to the Supreme Court – or not—either way shaping the way justice is actually delivered.

    That is not the system we have. As I have written since leaving the bench, the lower federal courts for a variety of reasons, are schooled in what I have called “duck, avoid and evade.” They have resorted to a host of doctrines that narrow access to justice; they have created a set of procedural trip wires to avoid dealing with substantive issues on the merits; they have reduced civil rights cases, police misconduct litigation, to name a few, to kabuki rituals in which the plaintiffs regularly lose long before trial. This was not judicial restraint, as the concept is understood; this was avoiding substantive principled decision making of any kind. And when they engage on the merits, too often, rather than trying out new constitutional concepts, and new applications, they rigorously enforce the old. (I wrote about this in an article entitled “Opinions I Should Have Written.” Richard Re described a similar phenomenon as “Reversing From Below.”) Many lower court judges try to predict the direction of the Supreme Court, which for the past twenty years has become more conservative.  The Walmart decision for example, was used by some district courts to justify the dismissal of numbers of employment discrimination class actions, interpreting the decision far more expansively than was necessary. It was almost as if they were applying not just what the Court said, but what it implied, predicting the rightward direction in which it was moving. And these tendencies cut across the appointing president, the party affiliation, etc. There are obvious exceptions, but the trends are there. It is a version of what Robert Cover wrote about in Justice Accused, describing the Northern anti-slavery judges who enforced the Fugitive Slave Act with a rigor that was not required by the law. He called it “judicial can’t.”

  • April 10, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution

    by William Marshall, ACS Board Member and Kenan Professor of Law, University of North Carolina School of Law

    The subject of this essay may seem nostalgic to some; the constitutional implications of the congressional obstruction that plagued the Obama Administration during six of its eight years in office. After all, we are now living in a period of an ostensible united government under a Trump presidency and a Republican Congress, a phenomenon that, as other writers in the Symposium point out, raises its own set of constitutional concerns.

    Nevertheless, the problem of Congressional obstruction is one that is likely to return to the constitutional landscape. The country’s equally divided electorate, combined with the nation’s intense polarization means that we can fully expect future episodes of divided government and more prolonged periods when the Congress, no matter which party controls it, will be intent upon using whatever tactics may be available to frustrate the agenda of an opposing party’s presidency.   

    President Obama’s response to congressional obstruction was to adopt a “we can’t wait” strategy under which he strived to pursue as much of his agenda as he could unilaterally, without waiting for Congress to assent. That approach, however, generated serious criticism on the grounds that it exacerbated an already dangerous trend of centering too much power in the presidency. Congress, after all, provides the primary bulwark against presidential overreaching; and the argument that the presidency should assume more power because Congress is using its prerogatives to check executive authority seems exactly backward. If Congress is to serve its checking function, it would seem that, at the least, it should have the authority not to accede to executive branch direction. At least at one level, then, Congress has, and should have, the power to do nothing.

  • April 7, 2017
    Guest Post

    by Katie Eyer, Associate Professor, Rutgers Law School             

    Since the 1970s, gay and lesbian plaintiffs have raised the argument that discrimination on the basis of sexual orientation is, inherently and necessarily, sex discrimination under Title VII. Such arguments have long had strong doctrinal support. As early as 1978, the Supreme Court made clear that "treatment of a person in a manner which, but for that person's sex, would be different" is discriminatory and prohibited under Title VII. This standard is satisfied in each and every case of sexual orientation discrimination—since by definition in a sexual orientation discrimination case sex-based disparate treatment has occurred (a woman who is fired for marrying a woman would not have been fired for the same conduct had she been a man). Other arguments founded in well-established anti-discrimination doctrine, such as associational discrimination and gender stereotyping, have also been put forward.

    And yet even after the Supreme Court’s decision in Price Waterhouse v. Hopkins—recognizing the doctrine of gender stereotyping, and holding categorically that an employer “may not take gender into account”—most courts have continued to reject the notion that sexual orientation discrimination could be considered a form of sex discrimination. Thus, while most courts did allow gay plaintiffs to bring narrower sex discrimination claims—focused on discrimination targeting deviations from gender-stereotypical appearance or mannerisms—every Court of Appeals until this week had held that sexual orientation itself was not categorically protected under Title VII.

    On Tuesday, breaking from this history, the Seventh Circuit, sitting en banc, took a fresh look at the doctrine and concluded that “discrimination on the basis of sexual orientation is a form of sex discrimination.”

    Thus, the Court observed inter alia:

    “Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her… This describes paradigmatic sex discrimination.

  • April 7, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution

    by Adam Winkler, ACS Board Member and Professor of Law, UCLA School of Law

    One might think that the Second Amendment has never been more important to constitutional law. In the past decade, the Supreme Court for the first time held unambiguously that the Second Amendment guaranteed an individual’s right to have guns and we have seen hundreds of Second Amendment cases arise in the lower federal courts. The provision, which was for decades legally moribund, has been brought to life. That is why it may be especially surprising to realize that the Second Amendment is, in fact, becoming increasingly irrelevant. And the reasons why tell us something about the nature of constitutional law and the relative importance of political mobilization as compared to legal mobilizations.

    Of course, the Second Amendment is a potent tool of political rhetoric; elected officials will continue to invoke it to justify permissive gun laws. In that sense, the Second Amendment is not irrelevant as a matter of politics. Yet, the story is much different if we look at the Second Amendment as a matter of constitutional law. One of the central purposes of a constitutional provision is to shape the law of the nation, separating out valid laws from invalid ones. Today, however, the Second Amendment already has little legal impact – and it is likely to become even less impactful over the next decade.

    Consider perhaps the most important, cutting-edge Second Amendment question currently pending in the federal courts: discretionary permitting for concealed carry. This is an important doctrinal question, but one with a limited impact. Since the mid-1980s, a wave of reforms has swept the nation and now less than 10 states have discretionary permitting; the vast majority have nondiscretionary permitting and many states are moving to unrestricted carry, in which no permit is required. Even if the courts were to hold discretionary permitting laws to violate the Second Amendment, only a handful of states would be affected.

    And the impact looks likely to get even smaller over time. The political Second Amendment is leading towards reforms that would effectively end discretionary permitting. A proposed “national reciprocity” law, which is the NRA’s highest legislative priority and likely to be considered by Congress soon, could make it lawful for a resident of a discretionary permitting state to obtain a permit to carry from a permissive state like Utah, which does not require residency, and carry his or her gun at home. If that law passes, the constitutional debate over discretionary permitting becomes mostly meaningless. Whatever the courts say about discretionary permitting will not have much, if any, impact on the law on the ground.

    At least for the foreseeable future, we are likely to continue to see the political Second Amendment outpacing the legal Second Amendment on a host of issues. For advocates of gun control, this is a troubling development. They are winning in the courts, as nearly all gun control laws have been upheld under the Second Amendment. The opponents of gun control are nonetheless winning in the state and federal legislatures. Those political victories are proving to be far more important than judicial interpretations of the Second Amendment. That legislative success is a function of political mobilization – and highlights to gun control advocates how they must direct their activities. Winning broader political support for gun control will likely have a more profound impact on the law than any Supreme Court decision on the Second Amendment.

  • April 7, 2017
    Guest Post

    by Steve Sanders, Associate Professor of Law, Maurer School of Law, and affiliated faculty in political science, Indiana University Bloomington

    Going back at least to 1977, majorities of Americans have agreed that gays and lesbians “should … have equal rights in terms of job opportunities.”  The number hit 89 percent in 2004. Gallup apparently stopped asking the question in 2008, perhaps because the social consensus was so overwhelming that there was nothing useful to be learned from further polling.

    If American government operated the way civics books tell us it does, Congress, acting on such an overwhelming public preference, would long ago have enacted federal legislation outlawing employment discrimination against gays and lesbians. 

    But Congress does not work this way. Constituent preferences do not always get translated into policy. For example, Congress has shown a longstanding and “persistent bias against constituent will on LGB rights,” and “Republicans consistently oppose” such rights “regardless of constituent preferences.” Legislators also know most people don’t pay much attention (except in the most extraordinary situations, such as Ryan/Trumpcare) to what Congress does or does not do. And as Ilya Somin has been documenting for years, too many Americans are ignorant about politics and public affairs. 

    Moreover, Congress is broken. Partisan gerrymandering subverts principles of fair representation. And the current Republican majority is an “insurgent outlier” that is incapable of governing