Supreme Court

  • March 21, 2017
    Guest Post
    by Adam Winkler, Professor of Law, UCLA School of Law
     
    Tuesday’s confirmation hearing on the nomination of Judge Neil Gorsuch to the Supreme Court went exactly according to script. Against a background of Republican praise and Democratic skepticism, Gorsuch showed himself to be smart and articulate without saying much of substance on any of the major issues of the day. The nominee parried nearly every question by invoking the law’s first principles: A judge should apply the law, not make it. No man, not even the President, is above the law. Justice requires adherence to precedent, open-minded judges, and equal treatment of rich and poor alike. Anyone seeking insight on how Gorsuch would rule in particular controversies could only come away disappointed from the latest instance of the confirmation process’s “kabuki theatre.” 

    Gorsuch is nothing if not polished. Handsome, charming and easy with a smile, Gorsuch joked with committee members on both sides of the aisle. He showed the calm intelligence and detailed knowledge of doctrine for which he is known. He came prepared, and when asked about his tendency to rule for big business and against the “little guy,” he offered a list of cases in which he ruled in favor of the latter. Gorsuch even threw in some one-liners, insisting in response to a question about his independence that a judge wields “a gavel, not a rubber stamp.” But, by the end of the day, the picture of what Gorsuch would be like as a justice had not come into any sharper focus.

    Yet maybe that is about all we should expect from Supreme Court confirmation hearings. Most of the senators asked questions that seemed poorly designed to draw out a thoughtful and revealing response from the nominee. The day began with Sen. Grassley asking Gorsuch if he could rule against Trump, prompting the nominee to call it a “softball.” For a skilled lawyer like Gorsuch, they were just about all softballs. Even when senators had some difficult questions, they often seemed more interested in expressing their disagreement with Gorsuch’s rulings than soliciting further explanation from him. Others were content to refer to the nominee’s strong bladder and his favorite fishing stream. Meanwhile, the nominee only revealed what he wanted and claimed over and over again his adherence, over all, to those first principles of the law. 
  • March 21, 2017
    Guest Post

    by Hillary Schneller, Staff Attorney, Center for Reproductive Rights

    This week marks the 45th anniversary of a key decision protecting our constitutional right to reproductive freedom—and it is not Roe v. Wade. Often flying under the jurisprudential radar is Eisenstadt v. Baird, decided on March 22, 1972, in which the Supreme Court held that the Constitution protects the right of unmarried individuals to use contraception. There, the Court pronounced simply: if this right of personal liberty “means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

    This anniversary happens to coincide with the confirmation hearings of Judge Neil Gorsuch, who has heard cases bearing on access to contraception during his time on the bench, but has never heard a case about abortion access. While Judge Gorsuch’s lack of a record on abortion has confounded those who seek a window on how he would decide reproductive rights cases, there is much to be gleaned from his views about access to contraception. Senators should ask Judge Gorsuch where he stands on the right to contraception, a right that he has not acknowledged even while writing opinions that would allow employers—if not the government itself—to deny individuals access to birth control.

    It may be unsurprising that Judge Gorsuch has never addressed the constitutional right to contraception. While abortion is well-known to be a constitutional right, contraception lacks equivalent popular recognition. Eisenstadt is in fact the second case in a trio in which the Court defined the fundamental right to contraception. Those three cases—Griswold v. Connecticut; Eisenstadt v. Baird; and Carey v. Population Services International—identify a sphere of personal liberty protected by the Due Process Clause of the Fourteenth Amendment that is shielded from government interference. The Court has carried that point through its decisions about reproductive freedom, personal decision-making and family relationships.

  • March 21, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post.

    by Joshua A. Douglas, Robert G. Lawson & William H. Fortune Associate Professor of Law, University of Kentucky College of Law

    As Judge Neil Gorsuch faces his confirmation hearings to be the next Supreme Court Justice, the Trump White House and Republican senators continue to say that he is a strong conservative in the mold of Justice Antonin Scalia, who he would replace. If Judge Gorsuch’s views on the constitutional right to vote are the same as Justice Scalia’s, however, there is great cause for concern.

    The right to vote is the most important and fundamental right we enjoy. It provides the foundation for our democracy.

    Yet Justice Scalia’s rulings were extremely restrictive when it came to voting rights. For instance, in 2008, when the Court refused to strike down Indiana’s strict voter ID law, Justice Scalia wrote a separate opinion to complain that the Court’s main opinion did not go far enough. While the Court’s ruling upholding the law left the door open to future lawsuits with better evidence, Justice Scalia would have closed off any future challenges to a voter ID requirement. He said that it did not matter if a handful of voters might find it more difficult to participate on Election Day. The harm to the constitutional right to vote for any particular individual was no big deal if the law did not impose a burden on the electorate as a whole.

  • March 21, 2017
    Guest Post

    *This piece originally appeared on Medium

    by Todd A. Cox, Director of Policy, NAACP Legal Defense Fund

    Today, as the Judiciary Committee begins in earnest its questioning of Judge Neil Gorsuch about his nomination to the Supreme Court of the United States, the senators are sure to raise a range of very important constitutional and philosophic questions. But with limited time available and so many issues to discuss, LDF has identified the three key questions senators should ask about Judge Gorsuch’s record on civil rights.

    1. Under your originalist approach to interpreting the Constitution, was Brown v. Board of Education rightly decidedand if so, how specifically?

    Potential follow-up questions:

    - Likewise, under an originalist interpretation of the Constitution, was Loving v. Virginia rightly decided — and if so how?

    - Is the history or original meaning of the 13th, 14th and 15th Amendments — or the Civil War Amendments — relevant to interpreting those provisions today? If so, which of the drafters or their statements would you consider in construing, for example, the 14th Amendment?

    - Brown was a unanimous decision in 1954, but just 68 years earlier, the Supreme Court upheld segregation in a 7–1 vote in Plessy v. Ferguson. What changed in terms of the original meaning (or intent) of the Constitution?

  • March 20, 2017
    Guest Post

    by William Yeomans, Fellow in Law and Government, American University Washington College of Law

    As has become the custom, day one of the confirmation hearing for Neil Gorsuch to become an associate justice of the Supreme Court was swallowed by a series of now mandatory positioning statements by members of the Senate Judiciary Committee. Republicans followed their script, uniformly adhering to talking points in praise of the nominee’s Ivy League credentials, years in private practice as a defender of free enterprise and principled conservatism on the bench. Translation: he is a smart guy who has shown his willingness to put his energy and intellect behind positions that track the Republican political agenda. That agenda favors employers over employees, management over labor, corporations and banks over consumers, religious interests over the rights of others and the Commander-in-Chief over Congress, while weakening federal administrative agencies, interpreting civil rights statutes narrowly and applying the doctrine of originalism to minimize individual rights and lock in traditional social injustices.

    Several Republican senators spent considerable energy providing cover for the nominee to refuse to answer questions, citing statements from Ruth Bader Ginsburg as a nominee and Sen. Edward M. Kennedy as a Committee member, cautioning that a nominee should not take positions on matters that could reach the Court. Invoking liberal icons exploited a tradition at confirmation hearings – citing the opposition to set up the defense of the nominee and teeing up the charge of hypocrisy if the other side attacks.

    Democrats were not deterred. Several cited the abusive treatment of Merrick Garland, but none declared these proceedings illegitimate. Nobody went quite so far as to suggest that President Trump might be as crazy and corrupt as he seems, undercutting the need to respect the nominee. But, several senators plainly thought the mistreatment of Garland combined with the unorthodoxy of the Trump presidency (including his announcement of litmus tests, and reliance on the Federalist Society and the Heritage Foundation to identify a nominee) to place an added burden on Gorsuch to be more forthcoming than the usual nominee to establish his independence and ability to serve as a check on an undisciplined executive.