ACSBlog

  • April 11, 2017
    Guest Post

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

    by Kate Andrias, ACS Board of Academic Advisers Member and Assistant Professor of Law, University of Michigan Law School

    Ours is an economy and a political system from which many ordinary Americans feel excluded; they feel forgotten by those in power; and they worry that their opportunities are declining. Their perceptions are based in reality. Today, income inequality in the United States is at its highest level since the period leading up to the New Deal. The top 1 percent of earners in the United States take home nearly a quarter of our national income. Workers’ real wages have barely grown during recent decades, even as productivity and educational attainment have increased. The situation is most dire for people of color, particularly African Americans, but white men have also fallen behind, suffering mounting health problems and diminishing opportunities. Political inequality has soared as well. Numerous studies demonstrate the outsized influence of economic elites, both individuals and corporations, at every level of the legislative and administrative process. 

    Trump came to power in part because of these problems of economic and political inequality. His election, like others around the globe, reflected voters’—and nonvoters’—widespread dissatisfaction with political elites. Unfortunately, every indication is that the problems in the political economy that contributed to Trump’s victory will only grow worse under his watch.

    The inequality that helped produce Trump’s election represents a failure of American politics. It also represents a failure of U.S. constitutional law—or more precisely, judge-made constitutional doctrine. Constitutional doctrine contributes to, even facilitates, political and economic inequality in numerous ways. Campaign finance doctrine is the most notorious example. But paltry constitutional protections for workers’ rights to organize and strike are also to blame. Some scholars estimate that the decline in unionization in the United States is responsible for up to one-third of the climb in income inequality in recent decades. So too, the Supreme Court’s doctrine on poverty and education is at fault, having allowed, despite sound constitutional arguments to the contrary, a system of vast inequity in schooling to persist. Many other examples exist.  Here, too, things are likely to get worse under the Trump administration rather than better.

  • April 10, 2017
    Guest Post

    *This piece originally appeared in the Baltimore Sun.

    by Douglas F. Gansler, Former Attorney General of Maryland

    As the Maryland legislative session comes to a close, it is important to take note of one of the most significant accomplishments that occurred — the expansion of the Maryland attorney general's ability to challenge perceived unconstitutional and un-American maneuvers taken by the Trump administration "Maryland attorney general Frosh awarded expanded power to sue Trump administration," Feb. 15). As state attorneys general continue to emerge as the vanguard in the fight against the Trump administration, the Maryland Defense Act provides the attorney general with the same rights currently enjoyed by 41 other states and should be applauded.

    Previously, the attorney general had to seek the permission of the governor before instituting any lawsuit on behalf of the people of Maryland. For example, when Attorney General Brian Frosh requested Gov. Larry Hogan's permission to support other states' lawsuits against President Donald Trump's unconstitutional Muslim ban, the governor never granted that permission.

    In fact, the governor, in an apparent power grab, called the Maryland Defense Act "outrageous," "potentially unconstitutional," and upsetting to the system of "checks and balances." It is none of those things. Indeed, the authority of the Maryland attorney general should be expanded further so that he or she can join colleagues from the vast number of other states where the state attorney general does not need to seek permission from the governor prior to bringing any suit. For example, should Mr. Frosh wish to sue oil and gas companies exposing their complicity in climate change, pharmaceutical companies for pumping opioids into the market, gun dealers for pumping assault weapons onto our streets or car manufacturers for manipulating emissions readouts, he should be able to do so. 

  • 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.