Supreme Court

  • November 8, 2016
    Guest Post

    by Nicholas Muellerleile

    It has been a year of distraction and scandal, to the point where the abstract strangeness of it all no longer registers. The extended vacancy on the Supreme Court would be the biggest political embarrassment of the year, if this were even close to being a normal year. Now, months later, we sit with a Scalia-shaped hole both on the bench of the nation's highest court and in our hearts, with seemingly no end in sight. How did things end up like this? What, if anything, can be done about it? Minnesota Sen. Amy Klobuchar and former Vice President Walter Mondale addressed these issues in a recent forum held at the University of Minnesota Law School, organized jointly the American Constitution Society’s Minneapolis-St. Paul Lawyer Chapter and Student Chapter at the University of Minnesota Law School, along with the University of Minnesota Law Democrats.

    One theme running throughout the forum was the notion that recently, in Congress, something has changed. Rote tasks, ministerial appointments and other basic functions of government have become political acts. Sen. Klobuchar told the audience of the struggles to pass the budget in late 2012. The end result was that she spent New Year's Eve between Sens. Reid and McConnell. “No Girl wants to do that”, she told the audience. Former Vice President Mondale called much of the current partisanship “childish” and spoke of his experience in the Senate. Qualified nominees for the court were passed with near unanimity. Even the appointment of William Rhenquist was, by comparison with today, an example of democracy in action, clearing the 66-vote threshold required.

    The voting threshold was one area where the speakers had different views. The supermajority requirement has been relaxed to 60 votes to confirm a Supreme Court Justice and there seemed to be some flexibility as to whether even that threshold should be lowered. Both Sen. Klobuchar and Former Vice President Mondale agreed that there was something special about the Supreme Court, something that required more than just the simple majority required for other appointments. Both speakers also seemed willing to admit that in light of the present deadlock, even 60 votes might be too high. But then what? 55? 53? Sen. Klobuchar stated that she would not be opposed to having the Supreme Court appointment be made a simple majority vote, “in the event it becomes a Constitutional crisis.” When pressed about this during the Q & A session, Sen. Klobuchar made clear that the issue was about political gridlock, not about trying to enforce different rules depending who would win the election. “You have got to live by the rules you set up,” Vice President Mondale added.

    Even in a forum discussing the Supreme Court vacancy, the presidential election loomed large. Both the speakers and the audience recognized that the stakes were high and there were murmurs of tense acknowledgement when Sen. Klobuchar commented that “this really is about our democracy.” In spite of all the rhetoric from some lawmakers, Sen. Klobuchar felt that there might be a chance of Garland getting appointed during the Obama lame duck session. Then again, maybe he will not be. After all, stranger things have happened this year.

  • November 3, 2016
    Guest Post

    *This post originally appeared on Crain's Chicago Business.

    by Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor at the University of Chicago

    In recent days, several leading Republicans, including Sens. Ted Cruz and Richard Burr, have argued that if Hillary Clinton is elected president, Senate Republicans should refuse to confirm any of her nominees to the Supreme Court. The very suggestion of such a strategy threatens to undermine core principles of our constitutional democracy.

    The driving motivation for those taking this position has nothing to do with principle. It is about partisan politics, plain and simple. Senate Republicans who refused even to hold hearings on President Obama's nomination of Chief Judge Merrick Garland pretended that the rationale for their stance was the “principle” that a president should not be allowed to appoint a justice in the final year of his term. Although that claim was plainly disingenuous and has no foundation in American history, the advocates of the “no Clinton nominees” position now go even further and insist that the Senate should not confirm any nomination by a president they do not like.

    This is entirely about partisan politics. They do not want to see a change in the ideological makeup of the Supreme Court. The problem, though, is that throughout our nation's history the Senate has consistently confirmed Supreme Court nominees even when they are made by a president of the opposite party and even when their confirmation would shift the ideological direction of the court.

    Indeed, of the 16 justices who have been confirmed in the last half-century, nine of them substantially altered the ideological balance on the Supreme Court. This includes, among others, Warren Burger for Earl Warren, John Paul Stevens for William Douglas, David Souter for William Brennan and Clarence Thomas for Thurgood Marshall. Interestingly, in eight of these nine confirmations, the new justice was nominated by a Republican president and moved the court significantly to the right. Nonetheless, they were confirmed, often by a Democratically controlled Senate.

  • November 3, 2016
    Guest Post

    by Ajmel Quereshi, Assistant Counsel at the NAACP Legal Defense and Educational Fund   

    On Election Day, the Supreme Court will hear argument in a highly consequential case about lending discrimination and the subprime mortgage crisis. In this case, the City of Miami is trying to hold Wells Fargo and Bank of America accountable for well-documented deceptive, predatory lending practices. However, the banks, in an attempt to evade liability, are arguing that cities cannot seek relief from them for violations of the Fair Housing Act.      

    Wells Fargo has, of course, recently been in the news for secretly creating as many as 2 million unauthorized loan accounts in response to the company’s loan quotas, prompting investigations by the Department of Justice and even a Saturday Night Live sketch. But the misconduct at issue in the case before the Supreme Court runs far deeper than that: as has been well-documented, several regional and national banks targeted African American communities for deceptive, predatory loans in the lead up to the financial crisis of 2008. One of the most common types of loans used was the predatory subprime mortgage. Subprime mortgages were directed at communities that had been historically denied credit and included hidden fees, undisclosed costs, and masked terms that resulted in ballooning interest rates.  

    In the run-up to the financial crisis, these deceptive and predatory loans proliferated exponentially. In the five years between 1994 and 1999, the subprime mortgage market expanded from $35 billion to $160 billion, and by 2007, totaled approximately $650 billion, roughly 25 percent of the overall mortgage market. A strong undercurrent of prejudice was unmistakable in these predatory lending practices. By 2008, 55 percent of African American mortgage holders nationwide had high-risk, subprime loans, compared with only 17 percent of white mortgage holders. According to a loan officer’s affidavit, lenders used racial slurs in characterizing subprime loans to African Americans, who they referred to as “mud people” receiving “ghetto loans.”

    Accordingly, when these predatory loans all came crashing down, the damage was predictably severe for communities of color. High-risk subprime loans originated between 1999 and 2007 cost borrowers of color collectively between $164 billion and $213 billion. Between 2005 and 2009, a staggering two-thirds of median household wealth in communities of color was wiped out. Waves of foreclosures pushed families out of their homes, causing lasting damage to neighborhoods and livelihoods, depressing property values, and suppressing tax revenues. In cities like Miami, the damage and harm was compounded: reduced tax revenue reduced basic services available to residents. The lost tax revenue also negatively impacted municipal efforts to combat housing discrimination and foster integration.

  • November 2, 2016

    by Kevin Battersby Witenoff

    At many points during my frigid three and a half hour wait, I questioned whether waking up before 6:00 a.m. was worth the chance to see oral arguments before the Supreme Court. Any doubt I harbored immediately vacated my mind upon entering the burgundy draped courtroom. The opportunity to stand in the presence of such mastery would have been enough to amaze any citizen, but as a future law student I felt an electric connection to the setting that enhanced my aspirations and heightened my admiration for my prospective profession to an almost Tocquevillian level. Between my own personal elation and the vicarious excitement of my family members and coworkers in the legal profession, it would have been easy to classify the trip as a complete success. But even after such a formative experience, I could not help but feel as though something, or rather someone, was missing from my morning at the High Court.

    Though the late Justice Scalia’s chair has been temporarily removed from the courtroom, the ramifications of that chair’s vacancy continue to reverberate across the country. In Fry v. Napoleon Community Schools, the scope of the Americans with Disabilities Act (ADA), a piece of legislation that affects millions of Americans, was called into question. The Court’s interpretation of this act, in conjunction with its interpretation of the Individuals with Disabilities Education Act (IDEA), will determine the process that some aggrieved parties filing a complaint under the ADA will have to follow.  Attorneys representing E.F., a young girl born with cerebral palsy, contend the ADA protects her right to bring her service dog to a Napoleon Community School. The defense asserts that prior to filing a complaint under the ADA, the Fry family must first raise a complaint under IDEA, an act specifically focusing on disability in educational settings. E.F.’s family’s hesitation lies in the process of filing a claim under IDEA, as it takes over 100 days to do so. Though the defense minimized this point, Chief Justice Roberts noted this amount of time is enough to derail a student’s entire school year. To this point the plaintiff’s attorneys emphasized that this case does not represent an isolated incident, but rather will influence countless individuals filing future disability claims in educational settings. As a result the ruling in this case has the possibility to disrupt an incalculable number of school days. This portion of the plaintiff’s argument reminded the entire courtroom of the importance of a single justice. One opinion has the power to change the process and thus the lives of an entire constituency.

  • October 31, 2016
    Guest Post

    by Robert Smith, Director of the Fair Punishment Project at Harvard Law School and Amy Weber, Frequent Outside Counsel, Fair Punishment Project

    Today, the Supreme Court vacated five juvenile life-without-parole (JLWOP) sentences and remanded the respective cases back to the Arizona courts. These cases may provide guidance to state courts faced with determining whether the Eighth Amendment requires a sentencer to not only consider mitigating circumstances such as the age of the juvenile before imposing an LWOP sentence in light of Montgomery v. Louisiana, but also explicitly find that the juvenile’s crime illustrates his or her “irreparable corruption” or “permanent incorrigibility” before imposing a life-without-parole sentence. In these cases, the life without parole sentence was not mandated by statute. Rather, the sentencer in each case had the opportunity to consider mitigating evidence—including the juvenile’s age—before imposing the sentence. Therefore, today’s remands strongly suggest that mere consideration of mitigating evidence is insufficient. At the Fair Punishment Project, we released an issue brief last week that explains this issue in more depth and details how state courts have treated the question. Here is a quick summary:

    In Miller v. Alabama, the Supreme Court held that the Eighth Amendment prohibits the imposition of a mandatory life without parole sentence for a juvenile who commits a homicide offense (JLWOP is categorically barred for non-homicide offenses per Graham v. Florida). Miller held these mandatory sentences unconstitutional because the sentencer was unable to “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”