ACSBlog

  • April 7, 2017
    Guest Post

    *This piece originally appeared on Chicago-Kent 's ISCOTUS now blog.

    by Carolyn Shapiro, Associate Professor of Law, Co-Director, Institute on the Supreme Court of the United States (ISCOTUS), IIT Chicago-Kent College of Law

    Going nuclear may serve Republicans today, but in the long term, it may do more for Democrats. Thursday, in response to a Democratic filibuster of Judge Neil Gorsuch’s nomination to the Supreme Court, the Republicans voted to eliminate the 60-vote threshold to end debate on a Supreme Court nomination. The Republicans have an immediate victory here: Justice Gorsuch will be sitting on the Supreme Court before its oral arguments scheduled for later this month. But in the long run, the elimination of the filibuster may help Democrats more than Republicans when it comes to Supreme Court appointments. (I am not alone in thinking about unintended consequences here. Nate Silver of 538.com has an extensive piece about how Republicans have generally used the filibuster more effectively than Democrats to block legislation and arguing that eroding its power may thus advantage Democrats in areas beyond the Supreme Court.)

    As a general matter, Republican nominees over the past 35 years have been quite conservative. During that time Republican nominees included Scalia, Rehnquist (to become Chief Justice), Thomas, Roberts, Alito – and, of course, Bork. There are of course the notable exceptions of Justices Souter (who turned out to be a surprising moderate liberal) and Kennedy (a moderate conservative), but overall, the Republican roster has been notably conservative – and at least as important, they were perceived as such when nominated. In this regard, Judge Gorsuch fits right in (no pun intended).

    In contrast, the Democratic nominees during this timeframe

  • April 7, 2017
    Guest Post

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

    by Neil S. Siegel, ACS Board of Academic Advisers Member and David W. Ichel Professor of Law and Professor of Political Science, Co-Director of the Program in Public Law, and Director of the DC Summer Institute on Law and Policy, Duke University School of Law

    Some questions in American law and politics are timeless, but at certain historical moments asking them is especially timely.

    The improbable election of Donald Trump resulted almost immediately in widespread protests  around the nation. His victory subsequently inspired letters condemning his conduct and that of certain of his executive branch nominees; a sit-in by the NAACP at the state office of one of those nominees; boycotts of his Inauguration by many Democratic members of Congress; more protests and violence in the capital on Inauguration Day; and a Women’s March the next day that drew large crowds. Trump’s approval rating upon taking office was the lowest for any incoming president over the past four decades. Protests of his presidency and angry town hall meetings hosted by Republican politicians have since become commonplace.

    Those responses are no doubt attributable in part to disagreements with what Trump and congressional Republicans promised they would do and are doing. It does not appear, however, that such responses reflect only substantive disagreement. There is also widespread frustration and anger that national political institutions have failed the majority of Americans—that unified Republican government will mean great changes in policy and tone that most Americans did not vote for and do not want. Thus the signs at the Women’s March that “he lost the popular vote” and the denunciations of the “fucking Electoral College.” Thus the debate that will not end over the relative sizes of the crowds at Trump’s Inauguration and at the Women’s March, a contest that appears to be a proxy war for which side won the election in the numerical, democratic sense, as opposed to the technical, legal sense.

    What is one to make of Americans who display such signs, or condemn the Electoral College, or mock the size of the crowd on Inauguration Day? Those Americans appear to be lodging a process objection, in addition to a substance objection. It is democratically (as opposed to legally) illegitimate, they insist, for the electoral process to result in the election of officials who generate policy outcomes that do not reflect majority will in the nation.

  • 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.