Supreme Court

  • 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 3, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post.

    by Christopher Kang, ACS Board Member and National Director, National Council of Asian Pacific Americans

    The Senate Rules provide a 60-vote threshold for Supreme Court nominees to be confirmed, and it appears less and less likely that Neil Gorsuch will be able to meet that threshold. If he cannot, Senate Republicans will face a choice—and yes, it is their choice—as to whether they should unilaterally change the Senate Rules through the nuclear option, so that Supreme Court nominees can be confirmed with just a majority vote.

    Most of the arguments against the nuclear option have focused on institutional interests for both the Senate and the Supreme Court. Retaining the 60-vote threshold would preserve the unique nature of the Senate that encourages broader consensus and less extremism. There also is a concern—on both sides—that reducing the confirmation threshold to a simple majority could lead to more ideological Supreme Court Justices and a more polarized Court.

    Those are compelling reasons in themselves, but there also is a far more practical question that Republicans must consider: How will Senate Democrats respond to this historic power grab? If Democrats follow the Republican response in 2013, it will freeze the Senate for thousands of hours, preventing Republicans from advancing their agenda.

    In November 2013, Senate Democrats invoked the nuclear option to lower the confirmation threshold for lower court and executive branch nominees. In response, over the next 13 months, Republicans forced Democrats to file cloture on 154 nominees, and they forced 131 cloture votes.

  • March 31, 2017

    by Caroline Fredrickson

    Next week, Senators will vote on Trump’s most enduring legacy as president. Lawmakers will vote up or down on Judge Neil Gorsuch, the president’s nominee to be associate justice of the Supreme Court. 

    To fulfill their advice and consent duties, members of the Senate Judiciary Committee held a four-day confirmation hearing to question Gorsuch, including his 10-year record of 2,700 appeals on the 10th Circuit Court of Appeals in Denver. As a witness, the nominee shared center stage with the looming presences of Chief Judge Merrick Garland and Trump. Sen. Patrick Leahy’s (D-Vt.) opening statement put the three competing interests in perspective:

    The Judiciary Committee once stood against a court-packing scheme that would have eroded judicial independence. That was a proud moment. Now, Republicans on this Committee are guilty of their own “court un-packing scheme.” The blockade of Chief Judge Merrick Garland was never grounded in principle or precedent.

    While Senate Republicans were meeting in back rooms to block President Obama’s nominee, extreme special interest groups were also meeting in private – to vet potential Supreme Court nominee for then-candidate Donald Trump. I do not know of any other Supreme Court nominee who was selected by interest groups, rather than by a president in consultation with the Senate, as required by the Constitution.

  • March 31, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post.

    by Christopher Kang, ACS Board Member and National Director, National Council of Asian Pacific Americans

    Last week, the Washington Post recommended that Democrats should make a deal on Gorsuch by not filibustering his nomination and instead preserving the 60-vote threshold for a future nominee. Yesterday, reports surfaced about efforts to find a last-ditch deal.

    Here are five reasons that a deal does not make sense for Democrats.

    First, Judge Gorsuch’s record. I agree with the Washington Post that “the national interest requires that Democrats judge Mr. Gorsuch ‘on the merits.’” Republicans and Democrats agree that, on the merits, Judge Gorsuch’s record demonstrates that he is a judge in the mold of former Justice Scalia. As Justice Scalia once noted about his own confirmation, “I was known as a conservative then, but I was perceived to be an honest person. I couldn’t get 60 votes today.” The same could be said of Judge Gorsuch.

    In fact, academic studies predict that Judge Gorsuch would be even more conservative than Justice Scalia. According to one study, if confirmed, Judge Gorsuch “might be the most conservative justice on the Supreme Court.” Another forecast that Judge Gorsuch would be the most conservative other than Justice Thomas—and that he is one of the most conservative among the candidates hand-selected by the ideologically-driven Federalist Society and Heritage Foundation. A third report looked at campaign contributions before becoming a judge and estimated that Judge Gorsuch is more conservative than 87% of all other federal judges.

    Given Judge Gorsuch’s judicial ideology and record, if Democrats do not insist on a 60-vote threshold now, then when would they?

  • March 23, 2017
    Guest Post

    by Mark S. Kende, Director of the Drake Constitutional Law Center, James Madison Chair in Constitutional Law

    Judge Neil Gorsuch finished testifying yesterday so today was made up of testimony by surrogates and opponents. Perhaps most significantly, Democratic Sen. Chuck Schumer is urging his party to filibuster the nomination. Sen. Chuck Grassley, Republican Chair of the Judiciary Committee has labeled this a smoke screen. What would be the consequences of such an action and would it be wise?

    Historically, the filibuster is most famous for being used by senators from the South seeking to block civil rights legislation. Thus it would be ironic to see the more liberal party employ this tactic. Moreover, the filibuster is a very rare specimen in the Supreme Court context. One of the only other examples was a Senate filibuster in 1968 regarding the nomination of Justice Abe Fortas to be Chief Justice, which was based on ethics concerns and political bias.

    But despite its rarity, a Democratic filibuster is completely justified by the outrageous refusal of the Republicans even to give President Obama’s nominee, the very distinguished Chief Judge Merrick Garland, a hearing. By contrast, the Democrats have shown Judge Gorsuch a huge courtesy, not shown to their nominee, in treating Gorsuch fairly and giving him extensive hearings. The Democrats have set an example of how not to be hyper-partisan and immoral. And yet Republicans still have had the chutzpa to say that a filibuster would be obstructionist. The Republicans even stole one of President Obama’s most basic executive powers from him (selecting a potential justice who would receive a fair hearing), and gave pretextual reasons for doing so. That is not just obstructionist, it was contrary to the Constitution.    

    Admittedly, a filibuster may be largely symbolic. If the Democrats keep the Republicans from obtaining 60 votes, Republican leader Mitch McConnell has said he will ensure a change in Senate rules, so that only 50 votes will be needed for Judge Gorsuch to take office. This is typical of the new Trump era -- if the Republicans are losing, they simply change the rules of the game. This may be comprehensible as raw politics, but it is shameful when the fate of the Supreme Court and the rule of law itself is at stake.