Congress Can and Should Take Action on the ERA

This week, the House of Representatives will take up H. J. Res. 79, which would remove the time limit on ratification of the Equal Rights Amendment.  The recent ratifications by Nevada, Illinois, and Virginia have put the practice of imposing time limits to the test, and a lawsuit by the Attorneys General of those three states challenges the time limit’s effectiveness.  Whatever happens in the litigation, however, it remains clear that Congress has broad power over the ratification process—so much so that to a great extent, its judgments are not even subject to judicial review.  Congress can and should act now to remove the time limit, honoring the expressed will of those three states and the many others—now 38 in all—that have voted in favor of constitutional equality.

Much has been made of Justice Ruth Bader Ginsburg’s recent comments about the Equal Rights Amendment, in which she expressed a preference that the ratification process “start over.”  Importantly, Justice Ginsburg did not comment about the pending legislation to remove the time limit, or about the pending lawsuit by the state Attorneys General.  Judges do not comment on pending or forthcoming lawsuits—and for good reason.   In our constitutional system, judges do not resolve issues in the abstract; they reserve judgment until they have seen and heard the arguments for each side, presented by counsel in an adversary proceeding.  Justice Ginsburg did not cross this important line.  What she expressed was a preference for a “new beginning” in the face of the “controversy” over what she called the “late comers,” as well as the handful of states that have voted to rescind. To be sure, the existence of this controversy is undeniable and unfortunate.  In 2020, there should be no controversy about the Equal Rights Amendment.  That is precisely why members of Congress plan to take an important step to resolve it by removing the time limit altogether.

The arguments in support of the current efforts are powerful.  The time limit on the ERA does not appear in the body of the amendment itself; Congress chose to place it in the accompanying joint resolution.  Through this choice, Congress reserved for itself the power to change it, under the familiar premise that one Congress cannot bind future Congresses.  Congress made such a change in 1978, extending the time limit by another three years.  And it can do so again now.  Doing so would eliminate the argument that the validity of the Equal Rights Amendment depends on something other than Article V of the Constitution, which states in plain text that an amendment “shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several States.”

On the merits of the Equal Rights Amendment, Justice Ginsburg’s views are clear. Although she acknowledges the progress that has been made over many years, she recognizes the limits of that progress, even under the 14th Amendment’s Equal Protection Clause.  She also notes that even if the ERA were merely symbolic at this point, “it is a very important symbol.”  After all, every Constitution written in the world since 1950—even Afghanistan’s—contains a provision equivalent to the ERA.  In testimony in support of H. J. Res. 79, scholar and former dean of Stanford Law School Kathleen Sullivan explained that the absence of an equal rights guarantee from our Constitution is a “national embarrassment.” Congress now has the power to correct it.

Book Talk: The Enduring Constitutional Vision of the Warren Court

The following is a summary by the authors of the new book, Democracy and Equality: The Enduring Constitutional Vision of the Warren Court, Oxford University Press (2020).

Chief Justice Earl Warren retired from the Supreme Court a half-century ago, marking the end of the Warren Court. Before Warren joined the Court, school districts in 17 American states required black schoolchildren to go to different schools from white children. In 27 states, it was illegal for a black person to marry a white person. Every state in the nation violated the principle of “one person, one vote,” many of them grotesquely so. Government officials could sue their critics for ruinous damages for incorrect statements, even if the critics acted in good faith. Members of the Communist Party and other dissenters could be criminally prosecuted for their speech. Married couples could be denied the right to use contraception. Public school teachers led their classes in overtly religious prayers. Police officers could interrogate suspects without telling them their rights. People were convicted of crimes on the basis of evidence that police officers seized illegally. And criminal defendants who could not afford a lawyer had no right to a public defender. 

The Warren Court changed all of that. In all of these ways, and others, the Constitution, as we know it today, is very much the work of the Warren Court. It would be unthinkable to return to the world that existed before the Warren Court. 

But despite that, the Warren Court today does not have the reputation it deserves. Conservative critics, in particular, have consistently attacked it—now, as they did then—as “lawless.” But the Warren Court had a vision of the role the Supreme Court should play in American government, and even the Warren Court’s most controversial decisions had deep roots in American law and traditions. Critics who say that the Warren Court “went too far” or was “too activist” should be asked: which of the Warren Court’s decisions would you overturn? 

Today, especially, it is important to see just how wrong the Warren Court’s critics are. Over the past half-century, the Supreme Court has become increasingly conservative. In this environment, the notion that the rulings of the Warren Court were examples of excessive judicial “activism” that were not based on law is especially toxic. That line of criticism opens the door to conservative claims that conservatives, alone, are truly committed to the rule of law—that the decisions of the Warren Court were the product of the justices’ political opinions or fuzzy liberal sentiment, not real law. It rationalizes aggressively conservative judicial decisions as a necessary corrective. All of that is wrong. The Warren Court’s decisions—unlike, it should be said, many decisions of the conservative Courts that followed it—were principled, lawful, and consistent with the spirit and fundamental values of our Constitution.

The Warren Court’s vision, at its core, was deeply democratic. The Warren Court thought its role was to act when American democracy was not truly democratic: when some groups were marginalized or excluded and denied their fair share of democratic political power. Most important, the Warren Court protected the interests of African Americans in the Jim Crow South, who were effectively kept from voting in many places and were utterly excluded, often violently, from positions of influence. The Warren Court protected political dissidents, stating unequivocally that free and open debate is a central commitment of any democratic government. In its “one person, one vote” decisions, the Warren Court put an end to manipulative and unjustified disparities in people’s ability to elect their representatives. The Warren Court acted on behalf of members of minority religious groups whose interests were disregarded by the majority, and of criminal defendants who were often also members of discriminated-against minority groups and who lacked any effective voice in politics. 

Contrary to the critics, this was a principled and appropriate role for the Supreme Court to play. Ordinarily the people’s elected representatives should make the important political decisions in a democracy. If the courts are to step in, they must have a reason: a reason why a particular issue should not be left to ordinary democratic processes. In the cases that made the Warren Court famous, there were such reasons. The Warren Court did the things – fighting race discrimination, making sure that everyone’s vote counted the same, protecting dissidents from a majority that wanted to silence them – that a democracy needs to do and that elected representatives cannot always be trusted to do. 

The Warren Court’s decisions implemented deeply-rooted American traditions of equality, democracy, and respect for the dignity of individuals—traditions that began with the Framing of the Constitution and were revitalized by the Reconstruction Amendments, and to which generations of judges, elected officials, and ordinary citizens have contributed. Those traditions have not always been honored as they should be; the Warren Court’s mission was to extend them to people who had previously been excluded. The Warren Court’s decisions brought to life our deepest national commitments. 

Leading figures in the conservative legal movement have adopted, in name at least, an approach to the Constitution that they call “originalism.” Originalism has many variants, but the essential idea is that judges, in interpreting the Constitution, should adhere to decisions made by the people who adopted the constitutional provision in question. Originalism conveys a sense of rigor, and the conservative embrace of originalism has fed into the notion that only conservatives do real law—that the Warren Court justices were unprincipled “activists” who were engaged in politics or simply enforcing their own preferences and sensibilities. 

The achievements of the Warren Court are themselves a refutation of originalism. Many Warren Court decisions that even conservatives accept today would unquestionably have surprised the people who adopted the constitutional provisions that the Court was interpreting. Ironically, there is a cottage industry among conservative legal scholars who try to show that decisions that they dare not renounce—Brown, most prominently—actually are consistent with originalism, even though the Warren Court itself never made such a claim and even though the evidence to the contrary is overwhelming. 

The deeper problem, though, is that originalism is not actually rigorous at all. It is not even clear what question originalism asks; over time, originalism seems to have migrated from a search for original “intent” to original “understandings” to original “public meaning” to more complex and esoteric variations, often without a clear account of just what those notions require. It is all too easy for originalism to serve as rhetorical garb for conclusions that are reached for other reasons; people with opinions about gun rights, or religion, or affirmative action, or campaign spending, or the size of the federal government find enough in the archives to convince themselves that the Framers of the Constitution agreed with them.

To be clear, if originalism means adhering to the ideals that the Framers embraced—rule by the people, individual dignity, equality—then no one could object to originalism. And the Warren Court promoted those originalist ideals in a way that no Court, before or since, has ever done. But if originalism purports to dictate the outcomes of specific cases, then there are any number of problems with it—problems that have been rehearsed over and over, and never satisfactorily answered by originalists. The idea that the Warren Court wasn’t lawful because it wasn’t originalist has things backwards. The fact that even conservatives are unwilling to repudiate the central Warren Court decisions shows that originalism is not viable—and that the approach the Warren Court took has a more solid foundation in the law than anything originalism can provide. 

In the post-Warren Court era, conservative justices have aggressively invalidated gun control legislation, even though there is no reason to believe that the democratic process is unable to deal with that issue. Similarly, conservative justices in recent decades have undermined affirmative action, even though it is difficult to see why a local school board—or any politically accountable body, which will be responsive to nonminority voters—should not be allowed to deal with school integration and affirmative action in the way it sees fit. And there are other examples of conservatives’ unjustified judicial activism, when the Court has undermined, instead of reinforcing, the power of the people to rule themselves: decisions invalidating critical provisions of the Affordable Care Act and the Voting Rights Act, striking down restrictions on commercial advertising, holding laws regulating corporations unconstitutional, resolving the 2000 presidential election,  and refusing to invalidate gerrymandering. 

In Democracy and Equality: The Enduring Constitutional Vision of the Warren Court, we illustrate our claims about the Warren Court by examining 12 of its most important and controversial decisions. We discuss what the world was like before these decisions, what the decisions did, and why they were justified. We have moved well past the Warren era, of course. It is not clear when, or if, there will again be a Court with the same aspirations and commitments. But it is worth keeping in mind what the Warren Court accomplished, if only to give us an idea of what is possible. 

Post-Impeachment: Finding the Constitution’s Redemptive Strand 

Last week, the Senate voted to acquit President Trump of the impeachment charges filed against him in the House. The acquittal will merely ratify an absence of legal constraints on presidential action that has long been implicit in the particular way our Constitution has been implemented. Over at the Boston Review, Tom Ginsburg, David Landau and I analyze the causes of this failure not in terms of partisan dynamics, but by thinking about constitutional possibilities.  Our analysis and proposals draw on a larger project comparing the presidential removal mechanisms used in some 200 democratic constitutions around the world.  

One of the lessons from that larger project is apt today: Democracies go through periods of "institutional rot." Illegality, corruption, and callous stupidity reach a nadir. Yet by perseverance, and by an insistence on some basic forms of democratic civility that go under the name of the rule of law, and (of course) by dint of some good fortune, these democracies can survive, prosper and even flourish. An element of the American constitutional tradition that we forget at our peril is this redemptive strand. I associate this tradition with Frederick Douglass’s scintillating 1860 speech on the Constitution, in which he rescues the text—implausibly, miraculously—from its embrace of slavery.  His example is worth considering again today as a model of ethical commitment against mere power.   

Judge Nathaniel R. Jones: A Life of Wisdom, Courage, and Moderation

Giants do walk the earth. There are heroes among us. And, on January 26, 2020, Judge Nathaniel R. Jones, a legal giant and a hero to many died at the age of 93 after eight decades of fighting for civil rights, of fighting for justice.

Judge Jones was a direct legal descendent of Walter White, William Hastie, Thurgood Marshall, and Robert Carter. As a recipient of the highest awards given by the National Underground Railroad Freedom Center, the Freedom Conductor Award, and by the NAACP, the Spingarn Medal, his name is forever linked with artists such as Marion Anderson, Duke Ellington, and Richard Wright; with historical figures such as Rosa Parks, Dorothy Height, John Lewis, and John Hope Franklin; and with friends such as Leon Higginbotham and Quincy Jones. His life and service have also been recognized by world leaders including Nelson Mandela, Bill Clinton, and Barack Obama. Impressive company, indeed.

As a lawyer, he served in private practice, as Assistant U.S. Attorney, as General Counsel of the NAACP, as a Supreme Court litigator, and, after 23 years on the United States Court of Appeals for the Sixth Circuit he was a valued Biglaw partner for two decades. His resume as a lawyer is incomparable. However, being the giant that he was even a field as capacious as law was insufficient to contain his talents and his interests. Does any reader know, for example, that he harbored a desire to captain an Ohio River coal barge? His daughter Stephanie made that happen.

Judge Jones’ life story from his Youngstown youth to the well of the United States Supreme Court and from his membership on the Kerner Commission to serving as an election observer in South Africa is told with great grace in his 2016 memoir Answering the Call: An Autobiography of Modern Struggle to End Racial Discrimination in America. Judge Jones heard the call to fight for justice when he was a 10-year-old and he never wavered, he never ignored racial injustice, he never stopped fighting against it. He was answering the call right up to his last speech on civil rights at the dedication of the Nathaniel R Jones Center on Race, Gender and Social Justice at the University of Cincinnati College of Law on November 14, 2019.

Answering the Call is required reading for anyone who wants to know about the many lives of Judge Nathaniel R. Jones; it is also required reading for anyone who wants to understand the history of civil rights over the last 80 years.

One of the lesser-known aspects of Judge Jones' career is that he was a superb teacher and scholar. His scholarship can be found in law review articles and is manifest in his many public speeches. He was a remarkable teacher in many venues. For over 30 years he served as an adjunct professor at the University of Cincinnati College of Law. He also taught at Harvard, Yale, Stanford, any number of other United States law schools, and in Cincinnati public schools. Even though he was a formidable classroom teacher, his teaching role transcended the classroom and affected every phase of his life. Just ask any of the dozens of law clerks that he has shepherded throughout his 23 years on the bench. Those clerks have become leaders in private practice, law professors, cabinets secretaries, and outstanding public servants.

Still, his teaching reached beyond his chambers and beyond the court room. He was unstinting in his community service. As a member of corporate and nonprofit boards his teaching continued. Indeed, as a board member he might best be characterized as a CCO – chief conscience officer. His participation in board meetings was always germane and on matters of justice and civil rights indispensable.

What qualities, gave Nathaniel R. Jones such stature as a civil rights voice and leader and as a citizen committed to justice?

Judge Jones possessed an abundance of the virtues needed to live an outstanding life; to live the life of a hero. He possessed wisdom; he possessed a piercing intellect. Judge Jones was a principal actor in many of the key civil rights activities over the last half-century and more. He knew everyone. He knew his history, his politics, his society, and his community. He remembered everything. And, he was able to bring all of that intellect and knowledge and all of those experiences together to confront racial discrimination in the United States and in other parts of the world.

He possessed the courage to keep his eyes open and speak his mind when confronted with injustice and he had an extraordinary capacity to focus. He never wavered in his commitment to civil rights; he never lost sight of the need for constant awareness of civil rights violations and the need to recognize them where they existed. No forum was inappropriate for him to acknowledge racial bigotry and discrimination. No audience could prevent him from talking about his passion.

He also possessed moderation. Politics of any kind can be intense and contentious. Racial politics can draw bloodshed and has been fatal. In the face of such contention his voice was always steady and clear; forceful and persuasive; and never shrill, never false, never expedient. He spoke his mind in the world with dignity, diplomacy, and deep humanity.

In Judge Nathaniel R. Jones, the virtues of wisdom, courage, and moderation that he possessed in such abundance contributed to and advanced the cause of justice for all of us.

 

 

Judicial Elections Could Break Spending Records in 2020

State courts across the country could see a record amount of campaign cash this year from corporate interests, political parties, and secret money groups. Justice John Paul Stevens’ dissent in Citizens United predicted that the decision had “unleashed” a flood of special interest spending in judicial races.

In the last decade, Citizens United made it possible for super-PACs to spend unlimited sums on judicial elections, and a paralyzed Federal Election Commission has done nothing to crack down on “dark money” groups. In several high court elections, special interests spent much more money than the candidates.

This year’s high court elections could see more independent spending than ever. Republican and Democratic groups in Washington, D.C. have announced plans to spend big.

Iowa, Michigan, and Ohio to hold pivotal judicial elections this year

This year, super-PACs and dark money groups will spend millions of dollars on pivotal elections that could change the ideological direction of the high courts in Iowa, Michigan, and Ohio. The outcome of these races will impact redistricting, voting rights, and access to abortion.

In Michigan and Ohio, Democrats have a chance to gain a majority on the high courts for the first time in years. The conservative high courts have generally ruled in favor of corporate defendants and against injured plaintiffs.

Recent elections have seen millions of dollars in spending, and this time, control of the courts is up for grabs. (In both states, candidates for the general election are chosen by the political parties, but they run in November without party labels.)

Two Democratic candidates won seats on the Ohio Supreme Court in 2018, despite almost $300,000 in spending by a pro-business secret money group that supported their opponents. The Michigan Chamber of Commerce, which has dominated high court elections for decades, shelled out nearly as much to back two Republican justices in 2018, without disclosing any of its spending. One incumbent was reelected, but a Democrat won the other race.

The election this spring for the Wisconsin Supreme Court will likely see big spending from groups supporting the progressive and conservative candidates. In the 2019 election, both candidates were backed by groups with “non-transparent” funding, according to a report from the Brennan Center for Justice.

Five of the seven seats on the Iowa Supreme Court will be on the ballot in 2020, and voters will decide whether to keep the incumbents on the bench in a “retention” election. The court’s recent decisions in favor of abortion rights have angered religious conservatives, which successfully ousted three justices in 2010, the year after a groundbreaking marriage equality ruling.

Family Leader, the dark money group that ran ads attacking the justices in 2010, has suggested that it could run more opposition campaigns in 2020. Republican Gov. Kim Reynolds has pledged to make the court more conservative, and if justices are thrown off the bench, a new law has given her more control over picking their successors, though the law is being challenged in a lawsuit.

Dark money donors, led by Judicial Crisis Network, are backing conservative candidates across the country

Conservative candidates across the country could get help this year from a new secret money group being created by Leonard Leo, former head of the Federalist Society. Leo has advised President Donald Trump and Florida Gov. Ron DeSantis (R) on picking judges, and he is the center of a web of dark money groups that have spent $250 million to make courts more conservative. Leo recently announced that he’s leaving the Federalist Society to launch a new dark money group called CRC Advisors, which will spend at least $10 million on election ads about the courts in 2020.

The Republican State Leadership Committee (RSLC) has received more of its funding in recent election cycles from the Judicial Crisis Network (JCN), a secret money group linked to Leo and the Koch brothers’ donor network. Given the timing of JCN’s contribution and RSLC’s spending, the Brennan Center for Justice concluded that the millions of dollars spent by RSLC in judicial races in 2018 likely came from JCN, which was funded that year by a $17 million-dollar contribution from an unknown donor.

JCN and RSLC have dominated recent high court elections in Arkansas, North Carolina, and West Virginia. The groups have spent millions of dollars attacking incumbent justices with misleading “soft on crime” attack ads.

JCN’s attack ad in the 2018 Arkansas Supreme Court election was so clearly false that a state court ordered TV stations not to air it, and a federal court declined to review the decision.Another incumbent is on the ballot in the May 2020 Arkansas Supreme Court election, and local observers expect the D.C.-based dark money group to again dominate the race.

The National Democratic Redistricting Committee (NDRC) has announced that it will back progressive candidates in high court races in Michigan, Ohio and several other states. The NDRC is targeting high court elections that could impact the post-2020 redistricting cycle. NDRC spokesperson Patrick Rodenbush said that because Ohio’s elections were “so gerrymandered after 2011, we want to try as much as possible to make that map more fair for the next 10 years.” The group ran ads backing a progressive candidate for the Wisconsin Supreme Court in 2018.

Three high court seats will be on the ballot this year in North Carolina, where state courts have recently ordered legislators to redraw election districts that were designed to benefit Republican candidates. The NDRC ran ads in 2018 supporting the election of Justice Anita Earls, a former civil rights attorney that sued the state over racially discriminatory election districts, to the court.

The gerrymandering rulings will give North Carolinians a chance to elect legislators that reflect their values, after a decade of rule by an unaccountable, gerrymandered Republican majority.

Constitutional Connections: Separation of Powers, Partisanship and the Trump Impeachment

This column originally appeared in The Concord Monitor.

Our constitutional system divides power horizontally, among the three branches of the federal government, and vertically, between the federal government and the states. We refer to the former division as our “separation of powers” and the latter as our “federalism.”

The framers designed the Constitution in this way because they believed that politicians, like people generally, tend to be self-interested and lacking in virtue. They thought that the structural checks and balances imbedded in the system would prevent “factions” (think “interest groups”) from seizing power and imposing their will on the rest of us.

They also thought that the constant striving by politicians to press the advantage of their own governmental branches (which they called “departments”) would force compromise, maintain balance and dilute factional power.

The framers’ expectations regarding the virtue of politicians have been amply confirmed over time. But their expectation that politicians usually would seek to advance the interests of their own governmental departments, which is a central premise of separation-of-powers theory, has not.

Partisanship, a type of factionalism whose form and nature the framers did not fully anticipate, has time and again trumped (if you will pardon the pun) departmental loyalty.

Consider how the impeachment of President Trump is playing out. Put to the side for a moment the allegations regarding the president’s solicitation of foreign interference in our 2020 presidential election, which are set forth in the first article of impeachment charging an abuse of power.

Focus instead on the second article of impeachment. That article charges the president with unlawfully obstructing Congress by directing executive branch offices, agencies and officials not to comply with subpoenas issued by the House of Representatives in furtherance of the “sole Power of Impeachment” conferred upon it by article I, section 2 of the Constitution.

Congress’s power to impeach and remove a corrupt president, and its more general authority to conduct oversight of executive branch officials tasked with carrying out legislative directives, are among the most important tools for preserving its constitutional power and checking the executive branch.

Therefore, if the framers were correct in assuming that politicians’ primary allegiance would run to their governmental departments, one would expect widespread congressional support for, if not the second article of impeachment itself, then at least its animating principle: that the president should provide reasonable cooperation with Congress when it exercises a constitutionally authorized power.

But this has not occurred. Not one member of the president’s political party in the House of Representatives voted for the second article of impeachment or voiced support for the principle it seeks to vindicate.

Moreover, Senate Majority Leader Mitch McConnell has made it clear that partisanship, rather than upholding congressional authority or discharging constitutional responsibility, will inform his approach when the Senate exercises the “sole Power to try all Impeachments” conferred upon it by article 1, section 3 of the Constitution.

Sen. McConnell has expressed an unwillingness to call witnesses at the Senate impeachment trial and an eagerness to deliver a quick acquittal.

He also stated: “Everything I do during this [impeachment trial], I’m coordinating with the White House counsel. There will be no difference between the president’s position and our position as to how to handle this to the extent that we can.”

And he later added: “I’m not an impartial juror. This is a political process. There’s not anything judicial about it. The House made a partisan political decision to impeach. I would anticipate we will have a largely partisan outcome in the Senate. I’m not impartial about this at all.”

Compare the approach Sen. McConnell contemplates with the substance of the oath he will swear when the Senate trial of President Trump commences: “I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment . . . now pending, I will do impartial justice according to the Constitution and laws: so help me God.” (Article 1, section 3 expressly requires that senators “be on Oath or Affirmation” while trying articles of impeachment.)

You are not alone if you perceive an inconsistency.

So, what is to be done when our political leaders exceed constitutional limits or fail to discharge constitutional obligations, and partisanship prevents the proper functioning of constitutional processes to hold them accountable?

The obvious answer is nothing unless and until “We the People” communicate in overwhelming numbers that we value constitutional fidelity more than partisan victories. The primary (but by no means exclusive) way we can send this message is with our votes this fall.

But does a sufficient percentage of us actually prefer principled constitutional governance to the raw exercise of partisan power?

The upcoming election will be a referendum on this question. I am convinced, however, that an overwhelming majority of us would hold this preference if we were able to cut through partisan propaganda and soberly evaluate the downsides of governance by the victors in all-out partisan war.

So, how can we overcome the partisan propaganda?

This is an enormous problem. But a renewed national commitment to robust civics education would be a good place to start.

In his 2019 Year-End Report on the Federal Judiciary, Supreme Court Chief Justice John Roberts argued powerfully for just such a recommitment. “We have come to take democracy for granted, and civic education has fallen by the wayside,” Roberts wrote. “In our age, when social media can instantly spread rumor and false information on a grand scale, the public’s need to understand our government, and the protections it provides, is ever more vital.”

He also opined: “Each generation has an obligation to pass on to the next, not only a fully functioning government responsive to the needs of the people but the tools to understand and improve it.”

Hear, hear. “We the People” need to understand that, notwithstanding its many undeniable flaws, governance through our constitutional order is far preferable to governance by crude tribal partisanship. And a commitment to civics education is necessary to such an understanding.