Supreme Court

  • January 31, 2017
    Guest Post

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

    Tonight, President Trump announced his nomination to the Supreme Court. In doing so, he ratified the inappropriate actions taken by Sens. McConnell, Grassley and others in the Republican Party who refused to give a confirmation hearing to the bi-partisan endorsed and highly credentialed nominee of President Obama, Judge Merrick Garland, Chief judge of the Court of Appeals for the D.C. Circuit. During that refusal delay, the Senate also reduced the status of the judiciary as the Supreme Court only had eight members and could not fully function. The Senate trampled on the idea of three equal branches of government. Republicans further failed to comply with the federal law specifying that there be nine Justices. Ironically, President Trump and these same Republicans now expect the Democratic Party to proceed with confirmation hearings on this nominee. 

    To add to the irony, Republicans said that a Garland nomination was problematic during an election year and “the people” should decide. Though President Trump certainly won the Electoral College, almost three million more people voted for Secretary Hillary Clinton. Thus, if this was a true plebiscite, Chief Judge Garland should still be the nominee by the Republican’s own reasoning. Of course, the Republican statements about the people were little more than window dressing for a raw and unfortunately successful, political calculation that they could stall the Obama nomination (he was supposed to be President for a full eight years after all).

  • January 31, 2017
    Guest Post

    *This piece orignially appeared on Slate

    by Dawn Johnsen, Walter W. Foskett Professor of Constitutional law at the Maurer School of Law at Indiana University

    As President Donald Trump’s nominee for the vacant Supreme Court seat receives public scrutiny in the coming days, it is incumbent for us all to remember one thing: This seat was not Trump’s to fill.

    In fact, the U.S. Senate should refuse to confirm anyone President Trump nominates to the Supreme Court—until Trump renominates and the Senate confirms Chief Judge Merrick Garland. On Monday, Sen. Jeff Merkley of Oregon said he would be leading a Senate filibuster of any Trump nominee until Garland is seated. This is the only correct approach.

    To recap: The Senate failed to fulfill its constitutional responsibility with its unprecedented refusal even to consider President Obama’s nomination of Garland. Obama made the nomination with about a year left in his presidency, but from day one the Republican Senate leadership insisted that it would permanently block the nomination.

    No one ever questioned Garland’s qualifications—an impossibility for this brilliant, dedicated public servant. The obstruction constituted an insulting challenge to Obama’s legitimacy, accompanied by calls for the people to decide via the election of the next president.

  • January 10, 2017
    Guest Post

    by Stephen I. Vladeck, Professor of Law, the University of Texas School of Law and Author of the New ACS Issue Brief, “The Bivens Term: Why the Supreme Court Should Reinvigorate Damages Suits Against Federal Officers

    It is, of course, a coincidence that the very last oral argument the Supreme Court will hear during the Obama administration and one of the first it will hear during the Trump administration both involve remedies for constitutional violations by federal government officers. And yet, the fortuitous timing only underscores why these two cases—Ziglar v. Abbasi and Hernández v. Mesa—are, as my new ACS Issue Brief explains, likely the most important cases the Justices have heard in decades on the scope of so-called “Bivens suits,” and could well turn out to be among the most significant rulings the Court hands down this Term. [Full disclosure: I am co-counsel to the Petitioners in Hernandez. This post, like the Issue Brief, reflects my personal views, and not necessarily those of the Petitioners or their counsel.]

    The facts of Abbasi and Hernandez are sharply different. In Abbasi, a group of immigrants are seeking to challenge their allegedly unconstitutional treatment while detained as part of the post-9/11 roundup of Muslim and Arab non-citizens in and around New York City. Specifically, the plaintiffs allege that senior government officials—including Attorney General Ashcroft and FBI Director Mueller—knew that they had no connection to terrorist activity and nevertheless chose to subject them to especially harsh, punitive and allegedly unconstitutional conditions of confinement otherwise reserved for terrorism suspects. Hernández, in contrast, arises out of a single Customs and Border Patrol agent’s allegedly unprovoked cross-border shooting of an unarmed 15-year-old Mexican boy. But whereas the cases raise different facts (and other legal questions, including, in Hernández, whether the Fourth Amendment even applies to such a cross-border shooting), both raise a basic question about remedies—and whether the courts can and should recognize damages claims for constitutional violations by federal officers even though Congress has never expressly authorized such suits.

    The “Bivens doctrine” is named after a 1971 case in which the Supreme Court held that, in at least some circumstances, the answer was yes—that courts could infer a cause of action for damages against federal officers directly into the Constitution, at least in the absence of adequate alternatives or what Justice Brennan called “special factors counseling hesitation.” But as the Issue Brief explains in more detail, Bivens was not a bolt from the blue. Going all the way back to the Founding, federal officers had routinely been liable for damages to victims of constitutional violations. It’s just that the pre-1971 practice was to leave such suits to the vagaries of state tort law—a practice that became increasingly incongruous as new constitutional protections lacking state law analogues were recognized and as federal courts more regularly asserted the similar (if not more coercive) power to enjoin unconstitutional federal official action without express statutory authorization. Bivens, then, reflected the Supreme Court’s conclusion that there would be circumstances in which prospective relief or retrospective state-law remedies would be insufficient to vindicate individuals’ constitutional rights—and so retrospective federal remedies would be necessary. In Bivens itself, that meant a cause of action for damages to vindicate Webster Bivens’s Fourth Amendment right to be free from unreasonable searches and seizures.

  • January 9, 2017
    Guest Post

    by Marissa Brown, Director, Coalition for a Better Court

    Since 1970 every New Year’s Eve at 6:00 p.m., the Chief Justice releases a Year-End Report on the Federal Judiciary. As Chief Justice John Roberts pointed out in 2009, Chief Justice Warren Burger established the report “to discuss the problems that federal courts face in administering justice.”

    In 2016, the spirit of this almost 50-year tradition was broken.

    The most recent Year-End Report on the Federal Judiciary is most notable for failing to discuss the big problems. It is silent on the unprecedented obstruction of a highly-qualified nominee to the Supreme Court of the United Sates.  It did not mention that more than 10 percent of the federal bench is vacant due to the U.S. Senate majority’s failure to perform their duties to give advice and consent to many of President Obama’s judicial nominees. And most damaging of all, it did not address the perception that the court has become polarized and partisan.

    Despite the Chief Justice ignoring the problem in his 2016 report, legal scholars across the political spectrum are concerned about the court’s perception of bias.  Now a more than 200-year old debate is quietly awakening again. One side likes to quote Alexander Hamilton’s writing in Federalist Paper No. 78, presenting a case for permanent tenure of Supreme Court justices as a way to ensure judicial independence. However, reality has smashed this idea that life tenure of justices protects against the politicization of the federal bench.

    Fortunately, there is another compelling proposal articulated by legal scholars that instead of life tenure, each justice should be nominated for staggered, 18-year terms so that each president, regardless of party affiliation, would nominate a Supreme Court justice every two years during the court’s summer recess in non-congressional-election years. With periodic nominations, the justices would more accurately reflect the changes and judgments of society.

  • November 30, 2016

    by Caroline Fredrickson

    President-elect Trump posted one outlandish tweet after another all the way to the White House. But his latest tweet on flag-burning topped most of the others.

    On Nov. 29, Trump tweeted:

    Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!

    The tone and text of the post read like something that a ruler from a bygone era without the checks and balances of the U.S. Constitution would say.  Most alarming is the sweeping and ominous part about “consequences.” Fortunately, a chorus of critics checked Trump.

    The very next day, both The New York Times and The Washington Post editorialized against Trump’s tweet.  The headline in the Post’s View summed up the problem, “In one tweet, Trump trashes two constitutional amendments.”

    In 140 characters, the next president knocked the First and 14th Amendments. The Supreme Court ruled almost three decades ago that burning a flag is protected speech under the First Amendment. Ironically, Trump’s model of the ideal Supreme Court Justice, the late Antonin Scalia, joined the majority decision in the 1989 case, Texas v. Johnson.

    Even Senate Majority Leader Mitch McConnell (R-Ky.) and House Majority Leader Kevin McCarthy (R-Calif.) chimed in right after the tweet to educate the public and president-elect about the First Amendment protection. Both members of Congress felt compelled to voice their support for this protected speech. McCarthy tried to shut down the debate by stating the unlikelihood of congressional action.