ACSBlog

  • 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.

  • April 7, 2017
    Guest Post

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

    by Adam Winkler, ACS Board Member and Professor of Law, UCLA School of Law

    One might think that the Second Amendment has never been more important to constitutional law. In the past decade, the Supreme Court for the first time held unambiguously that the Second Amendment guaranteed an individual’s right to have guns and we have seen hundreds of Second Amendment cases arise in the lower federal courts. The provision, which was for decades legally moribund, has been brought to life. That is why it may be especially surprising to realize that the Second Amendment is, in fact, becoming increasingly irrelevant. And the reasons why tell us something about the nature of constitutional law and the relative importance of political mobilization as compared to legal mobilizations.

    Of course, the Second Amendment is a potent tool of political rhetoric; elected officials will continue to invoke it to justify permissive gun laws. In that sense, the Second Amendment is not irrelevant as a matter of politics. Yet, the story is much different if we look at the Second Amendment as a matter of constitutional law. One of the central purposes of a constitutional provision is to shape the law of the nation, separating out valid laws from invalid ones. Today, however, the Second Amendment already has little legal impact – and it is likely to become even less impactful over the next decade.

    Consider perhaps the most important, cutting-edge Second Amendment question currently pending in the federal courts: discretionary permitting for concealed carry. This is an important doctrinal question, but one with a limited impact. Since the mid-1980s, a wave of reforms has swept the nation and now less than 10 states have discretionary permitting; the vast majority have nondiscretionary permitting and many states are moving to unrestricted carry, in which no permit is required. Even if the courts were to hold discretionary permitting laws to violate the Second Amendment, only a handful of states would be affected.

    And the impact looks likely to get even smaller over time. The political Second Amendment is leading towards reforms that would effectively end discretionary permitting. A proposed “national reciprocity” law, which is the NRA’s highest legislative priority and likely to be considered by Congress soon, could make it lawful for a resident of a discretionary permitting state to obtain a permit to carry from a permissive state like Utah, which does not require residency, and carry his or her gun at home. If that law passes, the constitutional debate over discretionary permitting becomes mostly meaningless. Whatever the courts say about discretionary permitting will not have much, if any, impact on the law on the ground.

    At least for the foreseeable future, we are likely to continue to see the political Second Amendment outpacing the legal Second Amendment on a host of issues. For advocates of gun control, this is a troubling development. They are winning in the courts, as nearly all gun control laws have been upheld under the Second Amendment. The opponents of gun control are nonetheless winning in the state and federal legislatures. Those political victories are proving to be far more important than judicial interpretations of the Second Amendment. That legislative success is a function of political mobilization – and highlights to gun control advocates how they must direct their activities. Winning broader political support for gun control will likely have a more profound impact on the law than any Supreme Court decision on the Second Amendment.

  • April 7, 2017
    Guest Post

    by Steve Sanders, Associate Professor of Law, Maurer School of Law, and affiliated faculty in political science, Indiana University Bloomington

    Going back at least to 1977, majorities of Americans have agreed that gays and lesbians “should … have equal rights in terms of job opportunities.”  The number hit 89 percent in 2004. Gallup apparently stopped asking the question in 2008, perhaps because the social consensus was so overwhelming that there was nothing useful to be learned from further polling.

    If American government operated the way civics books tell us it does, Congress, acting on such an overwhelming public preference, would long ago have enacted federal legislation outlawing employment discrimination against gays and lesbians. 

    But Congress does not work this way. Constituent preferences do not always get translated into policy. For example, Congress has shown a longstanding and “persistent bias against constituent will on LGB rights,” and “Republicans consistently oppose” such rights “regardless of constituent preferences.” Legislators also know most people don’t pay much attention (except in the most extraordinary situations, such as Ryan/Trumpcare) to what Congress does or does not do. And as Ilya Somin has been documenting for years, too many Americans are ignorant about politics and public affairs. 

    Moreover, Congress is broken. Partisan gerrymandering subverts principles of fair representation. And the current Republican majority is an “insurgent outlier” that is incapable of governing

  • April 7, 2017
    Guest Post

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

    by Jamal Greene, ACS Board of Academic Advisers Member and Dwight Professor of Law, Columbia Law School

    The election of Donald Trump as president represented a failure of American politics. No healthy political culture could have produced his presidency. What is less clear, and what I wish to address here, is whether Trump’s election also represented a failure of the U.S. Constitution. Do our constitutional arrangements predict just the kind of political failure that materialized in November 2016? If so, does that mean that the long-term remedy for that failure lies in constitutional reform? Does our constitutional fate, in other words, determine our political fate?

    Trump’s election has many causes, some of which are clearly contingent. It is easy to imagine Hillary Clinton winning an election held one week later, say, or two weeks earlier. And so the question that interests me arises from the possibility of Trump’s being elected rather than the fact of his election itself. The question does not, moreover, depend on Trump’s particular cocktail of policy interests (such as they are). Trump’s presidency is a crisis not because of his policy positions but because of his corruption, his infantile temperament, his dangerous self-obsession, his sexism and sympathy to white nationalism, his indifference to the truth and his fundamental indecency. A leftist version of Trump is imaginable and, in my view, equally frightening.

    The set of conditions that create the possibility of a Trump or Trump-like presidency are many and are contestable. The umbrella term I will place over at least a subset of those conditions is one I borrow from economics: disintermediation. Disintermediation is what it sounds like: cutting out the middle person, typically from a supply chain. Intermediaries such as distributors or brokers connect sellers to buyers. This is easy to see in a commercial market, and it is equally easy to see how technological change can reduce the need for intermediaries. Amazon is a low-cost means of connecting buyers to sellers. Trulia connects home buyers to sellers without the need for real estate brokers. But disintermediation also occurs in political and information markets, as the Internet and social media platforms diminish the need for traditional information brokers such as major media outlets.