ACSBlog

  • April 6, 2017
    Guest Post

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

    by Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

    Progressive litigators who have to deal with the Supreme Court unsurprisingly count votes and understand that to win there they have develop arguments that have some chance of getting votes from Justice Kennedy and perhaps Chief Justice Roberts. That leads them into what I have called a defensive crouch: Maybe we can win by showing how what we think the Constitution means in this specific case is consistent with what Justice Kennedy has said the Constitution means in some other case.

    For a litigator that is a sensible tactic (though not the only one – sometimes you can ask for the sky and let the justices think of themselves as moderates by coming up with a solution that gets you pretty much what you wanted in the first place). And, to the extent that scholars think of themselves as providing reflective or theorized arguments that litigators can adopt, it is also a sensible course for some progressive scholarship – even if that scholarship sometimes seems to treat Justice Kennedy implausibly as having especially deep insights into what the Constitution really means.

    But defensive crouch arguments are not the only ones worth making. Rousseau described his project as taking people as they are and laws as they might be. There is a similar project for progressive constitutional scholarship of taking the Constitution as it is and the Supreme Court (and Congress and the polity) as it might be. I call that the project of utopian constitutional theory.

  • April 6, 2017
    Guest Post

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

    by Dawn Johnsen, ACS Board of Advisors Member and Walter W. Foskett Professor of Law, Indiana University Maurer School of Law

    Over the next week, the ACSblog will feature posts from some of the nation’s leading constitutional law experts as they prepare to gather on Friday, April 14 at the Indiana University Maurer School of Law to examine “The Future of the U.S. Constitution.” ACS and the Indiana Law Journal (ILJ) join Maurer School of Law as co-sponsors for this symposium in Bloomington, Indiana, and a live stream will make the day available to all, at youtube.com/iumaurerlaw. The symposium participants have been active in academia and public life, including in government, nonprofit advocacy and as members of the ACS Board of Academic Advisors. They will address the great constitutional challenges of our time: presidential power, judicial review, congressional dysfunction, political polarization and mobilization, economic inequality, plutocracy, immigration, race, religion, refugees, abortion, guns, voting, disenfranchisement, presidential conflicts of interest, anti-intellectualism, disdain for facts, discrimination, exclusion, nativism and justice. A special ILJ symposium issue is forthcoming in September 2017, with essays from participants and several others. In the meantime, we hope you will enjoy this special ACSblog series on “The Future of the U.S. Constitution.”

  • April 5, 2017
    Guest Post

    by Nat Stern, John W. & Ashley E. Frost Professor, Florida State University College of Law

    The ability of politicians to utter falsehoods with legal impunity is evident today to perhaps an unprecedented degree. Less appreciated is that the overwhelming majority of judges in America qualify as politicians in the basic sense that they are chosen through some form of popular election. In the case of candidates for judicial office, however, nearly half of states codes contain a “misrepresent clause” barring deliberately false factual statements by judicial candidates.

    The basis for this ban is understandable and even admirable. In contrast to legislators and elected executive officers, judges are expected to serve as detached and impartial arbiters of the law. Dishonest campaign tactics may then be viewed as impairing the administration of justice, tarnishing the public image of the judiciary or even revealing a disqualifying character trait. Nevertheless, the misrepresent clause—as opposed to generally applicable bans on certain kinds of dishonesty like defamation and fraud—probably violates the First Amendment. This conclusion derives mainly from the confluence of three Supreme Court doctrines: stringent protection of political speech, application of this doctrine to restrictions on judicial campaign speech and refusal to regard false expression as categorically unprotected.

    It is a commonplace that unhindered political speech is essential to self-government and therefore lies at the heart of the First Amendment. Thus, the Supreme Court has repeatedly affirmed the privileged place of political expression in the hierarchy of First Amendment freedoms. Nor has the Court left any doubt that political campaign speech falls squarely within this protection. Accordingly, the Court has subjected restrictions on political expression to rigorous scrutiny.

  • April 4, 2017
    Guest Post

    by Katie Eyer, Associate Professor of Law at Rutgers Law School

    *Professor Eyer was a panelist on our March 23 event, Trans Rights in the Trump Era

    On March 30, under the pressure of significant economic boycotts, the North Carolina legislature purported to repeal its so-called bathroom bill, HB 2. Enacted in 2016, HB2 responded to a local ordinance that had adopted LGBT-inclusive anti-discrimination protections by preempting (i.e., invalidating) all such local ordinances. Most famously, HB2 went further in specifically mandating that state facilities exclude transgender people from gender identity appropriate restroom access.

    While framed as a repeal, the legislation enacted last week did not simply restore the status quo. Rather, HB 142 replaced HB2 with a moratorium on new or amended local anti-discrimination laws and legislatively preempted local or executive regulation of access to multiple occupancy restrooms, showers and changing facilities. 

    Absent knowledge of its background, HB 142 could be taken for a compromise, and that is how North Carolina’s Democratic governor and some progressive legislators, have defended their acquiescence in its enactment. But for those familiar with the history of HB2 and of LGBT equality struggles, HB 142 is a transparent attempt to suspend the mechanisms of progress for LGBT equality in the state. Just as limited state-level marriage equality victories helped to pave the way for broader marriage equality gains, incremental, local level enactment of LGBT equality has been one of the lynchpins of LGBT success in the employment, education and public accommodations realms. There can be no doubt that HB 142 is an attempt to forestall this highly effective strategy by precluding localities from demonstrating—on an incremental, locality by locality basis—that LGBT equality works (and conversely, that the claims of LGBT rights opponents lack any basis in reality).

  • April 4, 2017
    Guest Post

    *This post was adapted from a longer piece at The Vetting Room.

    by Harsh Voruganti, Founder and Principal at The Voruganti Law Firm

    On March 21, 2017, President Trump made his first lower court nomination: Judge Amul R. Thapar, for a seat on the Sixth Circuit Court of Appeals. With over 136 current and future vacancies on the federal bench, more nominees will likely follow. With a Republican majority in the Senate, the elimination of the filibuster on lower court nominations and conservative groups howling for blood, there is little incentive for Trump to choose moderates for the bench. However, one Senate practice may work to constrain Trump’s more conservative nominees and encourage him to work with Democrats: the blue slip.

    Derived from the traditions of senatorial courtesy, the blue slip is named after the traditional blue paper it is printed on. When a nominee is submitted to the Senate Judiciary Committee, “blue slips” are sent to the senators representing the nominee’s home state. The senators then return the blue slip, indicating either approval or disapproval of the nominee. If a home state senator expresses opposition to a nominee, or refuses to return a blue slip, the Committee does not move the nomination to the floor.

    While the blue slip practice goes back about 100 years, there are rare examples of nominees moving through the Senate Judiciary Committee without two positive blue slips. In 1983, then Judiciary Committee Chairman Strom Thurmond (R-SC) processed (and the Senate later confirmed) John Vukasin to a seat on the Northern District of California, over the objection of Sen. Alan Cranston (D-CA). A few years later, then-Chairman Joe Biden (D-DE) processed President George H.W. Bush’s nomination of Vaughn Walker to the same court, again over Cranston’s objection.