Neil Siegel

  • April 7, 2017
    Guest Post

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

    by Neil S. Siegel, ACS Board of Academic Advisers Member and David W. Ichel Professor of Law and Professor of Political Science, Co-Director of the Program in Public Law, and Director of the DC Summer Institute on Law and Policy, Duke University School of Law

    Some questions in American law and politics are timeless, but at certain historical moments asking them is especially timely.

    The improbable election of Donald Trump resulted almost immediately in widespread protests  around the nation. His victory subsequently inspired letters condemning his conduct and that of certain of his executive branch nominees; a sit-in by the NAACP at the state office of one of those nominees; boycotts of his Inauguration by many Democratic members of Congress; more protests and violence in the capital on Inauguration Day; and a Women’s March the next day that drew large crowds. Trump’s approval rating upon taking office was the lowest for any incoming president over the past four decades. Protests of his presidency and angry town hall meetings hosted by Republican politicians have since become commonplace.

    Those responses are no doubt attributable in part to disagreements with what Trump and congressional Republicans promised they would do and are doing. It does not appear, however, that such responses reflect only substantive disagreement. There is also widespread frustration and anger that national political institutions have failed the majority of Americans—that unified Republican government will mean great changes in policy and tone that most Americans did not vote for and do not want. Thus the signs at the Women’s March that “he lost the popular vote” and the denunciations of the “fucking Electoral College.” Thus the debate that will not end over the relative sizes of the crowds at Trump’s Inauguration and at the Women’s March, a contest that appears to be a proxy war for which side won the election in the numerical, democratic sense, as opposed to the technical, legal sense.

    What is one to make of Americans who display such signs, or condemn the Electoral College, or mock the size of the crowd on Inauguration Day? Those Americans appear to be lodging a process objection, in addition to a substance objection. It is democratically (as opposed to legally) illegitimate, they insist, for the electoral process to result in the election of officials who generate policy outcomes that do not reflect majority will in the nation.

  • March 22, 2017
    Guest Post

    by Neil Siegel, David W. Ichel Professor of Law and Professor of Political Science, Co-Director of the Program in Public Law, and Director of the DC Summer Institute on Law and Policy, Duke University School of Law

    In the summer of 2011, Justice Scalia taught a separation of powers course in Duke Law School’s summer program in Geneva. I was honored to serve as his assistant, which meant that I answered his questions in class and—more importantly from his perspective—wrote and graded his exam.

    On the last day of class, Justice Scalia gave what Court watchers have come to regard as his originalism “stump speech,” in which he essentially argued that one is either an originalist on matters of constitutional interpretation or else one is making it up. When he was done, he asked for critical responses from anyone in the class, including law professors. (He was exemplary about hearing other points of view and generous in many other ways.) Because he was looking right at me when he asked for pushback, I raised my hand.

    I had a feeling that he was expecting me to criticize originalism as descriptively inaccurate and/or normatively unattractive. I declined the opportunity. Instead, I decided to (gently) criticize him in the form of a compliment. I told him and the class that he was way too sensible to be just an originalist. Rather, I suggested (using plentiful examples) that he was indeed an originalist some of the time, but that he was also a traditionalist, and a structuralist, and a doctrinalist, and—because he had to decide when to be what—a prudentialist. In short, I implied that he was a living constitutionalist.

    When I was done speaking, Justice Scalia paused, thought for a moment, and responded that maybe he needed a new word for what he was. I replied, “How about a judge?”  (I dared not say “living constitutionalist.”) He laughed, paused again, and returned to his stump speech.

  • November 5, 2012

    by Jeremy Leaming

    As noted in a Nov. 2 piece for The Huffington Post by ACS President Caroline Fredrickson, the make-up of the nation’s top court rests on tenuous ground – with one more conservative justice helping its conservative bloc turn the clock back on longstanding precedent protecting an array of rights, such as reproductive rights.

    Fredrickson notes, “As recently as 2007, the Court upheld burdensome restrictions on abortion rights in Gonzales v. Carhart,” and that a “more conservative Court “could easily further restrict women’s reproductive rights, chipping away at Roe v. Wade or undoing it altogether.” (Fredrickson’s post notes the recent ACS paper, “Courts Matter: Justice on the Line,” which provides numerous examples of Supreme Court precedent that could be fundamentally altered with the change in the make-up of the high court.)

    Duke School of Law Professor Neil S. Siegel, also in a piece for The Huffington Post, zeroes in on the importance of the Supreme Court’s role in protecting or eviscerating reproductive rights. Siegel, also co-director of the Program in Public Law at Duke’s law school, writes how close the high court, in the past, has come to overturning the landmark Roe v. Wade. In the 1992 Planned Parenthood v. Casey, Justice Anthony Kennedy had narrowly joined the majority in upholding Roe. But since Casey, Siegel continues, Kennedy “has voted to uphold abortion-restrictive regulations that deny pregnant women the safest method of abortion in medical emergencies.”

  • July 22, 2009

    In a recent letter to the editors of the Washington Post, Reva Siegel of Yale and Duke's Neil Siegel defended Justice Ruth Bader Ginsburg against a recently published op-ed allegedly mischaracterizing her beliefs:

    Michael Gerson's op-ed suggest[ed] that Supreme Court Justice Ruth Bader Ginsburg or her associates believe Medicaid should cover abortion services to control the population of "social undesirables," to use Mr. Gerson's term ["Justice Ginsburg in Context," July 17]. We find the claim incredible, as would anyone acquainted with Justice Ginsburg's work who is not out to damage her reputation. 

    Ms. Siegel is the co-editor of the recently released The Constitution in 2020. Mr. Siegel, who clerked for Justice Ginsburg, offered his insights in the latest ACSblog symposium "Sotomayor's Confirmation Hearings."