Supreme Court

  • March 17, 2017
    Guest Post

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

    In November 2004, Neil Gorsuch oversaw legal teams in Eastern and Central Ohio for the Bush-Cheney campaign. In an email to President George W. Bush’s Political Director Matt Schlapp, he cheered, “What a magnificent result for the country. For me personally, the experience was invigorating and a great deal of fun.” (The experience for up to 15,000 people unable to vote in Columbus, Ohio because lines stretched for hours was probably less invigorating or fun.)

    Gorsuch continued, “While I’ve spent considerable time trying to help the cause on a volunteer basis in various roles, I concluded that I’d really like to be a full-time member of the team.” 

    His resume describes the various roles in which he was politically active to “help the cause,” with greater specificity than his Senate Judiciary Questionnaire—Co-Director of Virginia Lawyers for Bush-Cheney; Bush-Cheney Marshal; RNC Bronco; and Co-Chairman of the Republican National Lawyers Association Judicial Nominations Task Force—for which the Senate Republican Conference cited his Distinguished Service to the United States Senate for his work in support of President Bush’s judicial nominees.

    As Gorsuch began his effort to “be a full-time member of the team,” the way he started and then advanced his public service career raises troubling concerns regarding his nomination to the Supreme Court. 

  • March 16, 2017
    Guest Post

    *This piece originally appeared on Demos' PolicyShop

    by Adam Lioz, Counsel and Senior Advisor, Policy & Outreach, Demos

    Hearings on Trump’s Supreme Court pick Neil Gorsuch are less than a week away—and whomever is confirmed to the lifetime appointment will have a decisive vote on whose voices carry weight in our democracy. 

    In a new report released today, Court Cash: 2016 Election Money Resulting Directly from Supreme Court Rulings, Demos demonstrates exactly what is at stake by quantifying—for the first time—the direct impact of four of the Supreme Court’s most significant money in politics cases on 2016 election spending.

    The Supreme Court’s rulings in Buckley v. Valeo (1976), Colorado Republican Federal Campaign Committee v. FEC (1996) and Citizens United v. FEC (2010) led to more than $3 billion in spending on the 2016 elections, which is equivalent to 45 percent of the total cost of the elections.

  • March 15, 2017
    Guest Post

    by Caroline Fredrickson

    This week marks a national initiative to highlight transparency, accountability and open government. The timing could not be better.

    Sunshine Week, March 12-18, falls the week before confirmation hearings begin for Trump’s Supreme Court pick.

    National discourse has centered on the president’s commitment to core constitutional values and his understanding of the importance of rule of law. Indeed, leading constitutional scholars have already raised red flags on numerous issues and lawsuits have been filed.

    Events of the last few months have increased the gravity of the decision about who should fill the ninth seat on the Supreme Court. The Supreme Court is often the last defense for our Constitution and it is imperative that any nominee not be beholden to any one person, let alone the president of the United States.

    Throughout his campaign and since his election, the president repeatedly emphasized that his Supreme Court nominee would be the most conservative jurist he could find, and he made sure his nominee passed a series of litmus tests, including on reproductive rights and gun safety laws. This compromises the independence of the judiciary at a time when we especially need to rely on the courts to make their own assessment of the constitutionality of legislative and executive actions. Decisions from federal judges across the country impact the lives of all of us, from how we are treated in the workplace, how the law regards women, racial minorities and those with disabilities, among others, consumer protections, the safety of our environment, our right to vote and our immigration system – just to name a few issues.

  • March 14, 2017
    Guest Post
    by Peter M. Shane, Professor of Constitutional and Administrative Law at The Ohio State University’s Moritz College of Law. The views in this essay are entirely his own.
     
    Contrary to a recently published opinion piece entitled, “There is no principled reason to vote against Gorsuch,” many such reasons exist to oppose the nomination of Judge Neil A. Gorsuch to succeed the late Justice Antonin Scalia. This is especially so if you have principled objections to judicial methodologies that purport to constrain judges, but which, in the hands of conservatives, lead quite predictably, even if not quite inevitably to politically conservative outcomes.
     
    But even for Senators who think taking a judge’s legal views into account is somehow inappropriate, a perfectly principled reason to oppose the Gorsuch nomination is to avoid rewarding Senate Republicans’ 2016 assault on constitutional governance and the Obama presidency. The issue is not just comeuppance for the “mistreatment of Judge Merrick Garland” as a matter of personal unfairness, although I agree “an exceptionally fine jurist was treated shabbily.” The issue is whether there remains any institutional penalty for sabotaging constitutional norms.
     
    Republicans defending last year’s fiasco have offered a breathtaking exercise in revisionist history. Even now, they speak of a nonexistent presidential “tradition” of not nominating Justices in the last years of their respective terms. Yet the only reason why no president in the last eighty years nominated a Justice in the last year of his term is that, for the last eight decades, no Supreme Court vacancy arose during an election year. One might as well refer to a 228-year tradition of not nominating Justices to fill nonexistent seats!
  • March 13, 2017
    Guest Post

    by Bidish Sarma. Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans

    On March 29, 2017, the Supreme Court will hear oral arguments in the consolidated cases of Turner v. United States and Overton v. United States. The Court does not rule upon questions pertaining to prosecutorial misconduct and the State’s duty to disclose exculpatory evidence very often. When it does, it tends to rely on decisions handed down decades ago despite evidence that courts struggle to enforce the relevant principles consistently and appropriately. The Turner-Overton matter thus presents both an opportunity and a challenge to the justices. The opportunity? An uncommon occasion upon which it can clarify principles and curtail the confusion that permeates lower courts’ opinions. The challenge? Moving beyond the facts presented and penetrating the deeper questions that reside beneath the surface.   

    The question presented by these cases is a relatively narrow one: whether the Petitioners’ convictions must be set aside under Brady v. Maryland. That question is one the Court itself generated; the Petitioners initially asked the Court to resolve thornier questions that sometimes arise when the State fails to turn over all exculpatory evidence before trial. While it appears that SCOTUS will most likely take its well-worn minimalist approach in the Brady due process context here, several pleadings demonstrate that deeper, systemic concerns warrant attention.