ACSBlog

  • April 10, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution"

    by Reva Siegel, ACS Board Member and Nicholas deB. Katzenbach Professor of Law, Yale Law School

    An aroused public can shape judicial appointments, and shape law.

    Only a few constitutional cases provoke sustained public engagement. But in those few cases where the public is fiercely engaged, judges often respond. Justice Kennedy expressly acknowledged public deliberation about same-sex marriage in Windsor and Obergefell. Justice Scalia, who denounced the living Constitution, wrote an originalist opinion in Heller responding to the claims of living Americans opposed to gun control.

    Mobilization can influence not only the outcome of cases, but even their reasoning. Opponents of health care spread fear of death panels and government-mandated consumption of broccoli, and, in the process, transformed constitutional arguments against the law from “off the wall” to “on the wall.” In Sebelius, the Justices addressed Congress’s power to enact the health care law in opinions that repeatedly discussed vegetables and the importance of protecting individual liberties.

    *   *   *

    Looking back over a half century of abortion conflict, we can see this dynamic in action and imagine new forms it might take.

    For decades, supporters of the abortion right sought protection for women’s health, liberty and equality, while opponents sought protection for unborn life. The Court balanced these claims in Roe’s trimester framework and in Casey’s undue burden standard.

  • 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 10, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution

    by William Marshall, ACS Board Member and Kenan Professor of Law, University of North Carolina School of Law

    The subject of this essay may seem nostalgic to some; the constitutional implications of the congressional obstruction that plagued the Obama Administration during six of its eight years in office. After all, we are now living in a period of an ostensible united government under a Trump presidency and a Republican Congress, a phenomenon that, as other writers in the Symposium point out, raises its own set of constitutional concerns.

    Nevertheless, the problem of Congressional obstruction is one that is likely to return to the constitutional landscape. The country’s equally divided electorate, combined with the nation’s intense polarization means that we can fully expect future episodes of divided government and more prolonged periods when the Congress, no matter which party controls it, will be intent upon using whatever tactics may be available to frustrate the agenda of an opposing party’s presidency.   

    President Obama’s response to congressional obstruction was to adopt a “we can’t wait” strategy under which he strived to pursue as much of his agenda as he could unilaterally, without waiting for Congress to assent. That approach, however, generated serious criticism on the grounds that it exacerbated an already dangerous trend of centering too much power in the presidency. Congress, after all, provides the primary bulwark against presidential overreaching; and the argument that the presidency should assume more power because Congress is using its prerogatives to check executive authority seems exactly backward. If Congress is to serve its checking function, it would seem that, at the least, it should have the authority not to accede to executive branch direction. At least at one level, then, Congress has, and should have, the power to do nothing.

  • April 10, 2017

    by Caroline Fredrickson

    Soon after President Donald Trump nominated Judge Neil Gorsuch to the Supreme Court, the Judicial Crisis Network (JCN)—a conservative secret-money group that spends millions of dollars on ads attacking judges—promised to spend up to $10 million in support of his nomination. Representing a major attack on the fairness and impartiality of our judicial branch, this same group, among many other organizations, has been increasingly involved with big-money efforts to help elect or attack their favored state supreme court judges—all behind a curtain of secrecy.

    When asked directly by Sen. Whitehouse about why these groups are so interested in supporting his nomination, Gorsuch responded, “You’d have to ask them.” For a Supreme Court candidate, this betrays an inexcusable lack of understanding and concern for the menacing role that secret money has played in this Supreme Court nomination process and in many of our state judicial elections. “We don’t know because it is dark money,” Sen. Whitehouse countered a frustrated Judge Gorsuch about the secret money group, “I can’t [ask them]. I don’t know who they are. It’s just a front group.”

    The $10 million was in addition to the $7 million that JCN already spent in its effort to distort the record of Chief Judge Merrick Garland, Obama’s Supreme Court nominee who Republicans and JCN itself previously praised.

    At the state level, the group recently spent big to help persuade Arkansas voters to reject judicial candidates who JCN argued would favor injured individuals over corporate defendants. JCN spent far more money than any of the candidates. One of its ads criticized the Arkansas Chief Justice for a unanimous ruling to strike down a voter ID law, which JCN claimed could lead to “illegal immigrants voting.” Arkansas Business said the JCN ads should be “categorized as lies.” And in 2012, JCN ran a revolting last-minute ad attacking a Michigan Supreme Court candidate, exploiting the tragic death of a U.S. soldier to lie about the judicial candidate’s record. A recent report from the Michigan Campaign Finance Network found that $3.4 million was spent on the 2016 supreme court race there, with 50 percent of the money from secret sources.

  • April 7, 2017
    Guest Post

    by Katie Eyer, Associate Professor, Rutgers Law School             

    Since the 1970s, gay and lesbian plaintiffs have raised the argument that discrimination on the basis of sexual orientation is, inherently and necessarily, sex discrimination under Title VII. Such arguments have long had strong doctrinal support. As early as 1978, the Supreme Court made clear that "treatment of a person in a manner which, but for that person's sex, would be different" is discriminatory and prohibited under Title VII. This standard is satisfied in each and every case of sexual orientation discrimination—since by definition in a sexual orientation discrimination case sex-based disparate treatment has occurred (a woman who is fired for marrying a woman would not have been fired for the same conduct had she been a man). Other arguments founded in well-established anti-discrimination doctrine, such as associational discrimination and gender stereotyping, have also been put forward.

    And yet even after the Supreme Court’s decision in Price Waterhouse v. Hopkins—recognizing the doctrine of gender stereotyping, and holding categorically that an employer “may not take gender into account”—most courts have continued to reject the notion that sexual orientation discrimination could be considered a form of sex discrimination. Thus, while most courts did allow gay plaintiffs to bring narrower sex discrimination claims—focused on discrimination targeting deviations from gender-stereotypical appearance or mannerisms—every Court of Appeals until this week had held that sexual orientation itself was not categorically protected under Title VII.

    On Tuesday, breaking from this history, the Seventh Circuit, sitting en banc, took a fresh look at the doctrine and concluded that “discrimination on the basis of sexual orientation is a form of sex discrimination.”

    Thus, the Court observed inter alia:

    “Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her… This describes paradigmatic sex discrimination.