Faulty Federalism, Texas Edition: How Texas Hopes to Gut the Right to Abortion

David Gans

Posted 11:51 AM by David Gans [link]

The Scalia Vacancy and Informal Constitutional Change

Stephen Griffin

Read more »
Posted 3:11 PM by Stephen Griffin [link]

Does the Biden speech undermine the case for Supreme Court confirmation hearings?

Guest Blogger

John Witt

What’s the difference between resisting a Supreme Court nomination during a presidential campaign and resisting one until the next president is in office?  The answer is two and a half months -- and a radically transformed conception of the Court.

As readers of this blog will likely know by now, then-Senator Joseph Biden delivered a speech on the Senate floor in June of 1992 warning that in the event of a Supreme Court vacancy, President George H. W. Bush ought not “name a nominee until after the November election is completed.”  Biden urged that the Senate consider “not scheduling confirmation hearings on the nomination until after the political campaign season is over.”

Flash forward to 2016.  Republicans in the Senate and elsewhere cite the Biden speech in support of their refusal to consider a nomination to fill the seat left vacant by the death of Justice Scalia.  The country’s newspapers and commentators have gone along.  The New York Times called Biden’s speech “a direct contradiction to President Obama’s position.”

The Times is flat wrong.  The Biden speech is no contradiction, but not for the reasons the White House and its allies have asserted.  In 1992, Biden’s argument was that action “must be put off until after the election campaign is over.”  In our system of government, the end of campaign season does not coincide with the inauguration of the new president.  To the contrary, since the enactment of the Twentieth Amendment, the election gives way to a period of two and a half months in which the incumbent president, though to be sure a lame duck, holds all the formal powers of the office, including the power to nominate new justices.  Biden’s move was to insist that, until the post-election period, there would be too much partisan rancor to have a full and fair hearing on the merits.  After all, that was what mattered: ensuring an evaluation of the next justice on the merits, not according to a partisan political calculus.

By contrast, when Republicans today insist that the the current president should not get a nomination at all, they assert the exact opposite: that partisan politics should decide the fate of the Court.  Thus the letter to the Senate Majority Leader signed by every Republican member of the Senate Judiciary Committee announcing that there will be no hearings “on any Supreme Court nominee until after our next President is sworn in."

Skeptics will surely respond that the two months between the election and the next president’s inauguration is a distinction without a difference.  The Democrats, they will argue, would surely have blocked any effort at a lame-duck nomination after the Bush 41 lost the election to Bill Clinton.  Perhaps.  Certainly there would have been huge pressure to do so.  The prospect of such pressure is why Democrats who are scrambling this week to explain Biden’s speech have not focused on the gap between November and January as a key distinction.  No one today thinks that the Republican Senate could be persuaded to confirm a lame-duck Obama nominee in the two months before a Republican president took office.

Nonetheless, the important difference between the Biden speech in 1992 and the Republican position in 2016 offers powerful evidence for how the party of Nixon, Reagan, and Scalia has organized itself around the Supreme Court during the past half-century--and transformed the Court in the process. 

Emily Bazelon and I get into the underlying phenomenon here.

John Witt is Allen H. Duffy Class of 1960 Professor of Law at Yale Law School. You can reach him by e-mail at john.witt at yale.edu 
Posted 6:58 PM by Guest Blogger [link]

Holding A National Referendum

Gerard N. Magliocca

I just finished reading my co-blogger Stephen Griffin's new book (psst--look to the right and you can see how to buy one) and want to say something about his qualified endorsement of creating a process to hold a national referendum.

Longtime readers of the blog know that I am fascinated by what we can learn from British constitutional practice.  The other day the Prime Minister announced that the country would hold a referendum in June on whether to leave the European Union.  This vote is not binding.  Parliament is the ultimate authority on this question.  In practice, though, Parliament will accept the verdict (at least if there is a decisive margin).  On such a fundamental question, this looks like an appropriate process, especially given that Britain held a similar referendum in the 1970s on joining the Common Market.

My view is that the United States would benefit from having an occasional single-issue referendum that is non-binding but would be treated as very important by Congress, the President, and the Court. Perhaps that would be on an issue of war and peace.  (Should we invade Iraq?)  Perhaps that could be on some critical domestic matter (Should marijuana be legalized?)

But can this be done within our present Constitution?  After all, states run our elections.  How can Congress put a question on the ballot across the country?  I think that there is a way.  Under the Article One, Section Four power to regulate "the Times, Places, and Manner of holding Elections for Senators and Representatives," a statute could be enacted stating that "to advise members of the House and Senate on the ballot who are elected" a question of the sort that I am describing could be added.  This could be done, I think, only at a general election for Congress, as there would have to be some connection between congressional elections and a referendum under Article One, Section Four for this statute to pass constitutional muster.

Note that this sort of referendum is very different from the initiative process used in many states, as it would not be binding.  Still, if the results of such a national vote were taken seriously, then the result might be more responsive government.


Posted 1:52 PM by Gerard N. Magliocca [link] (23) comments

March 3 Event at UNC: Federalism in the Rehnquist and Roberts Courts

Jason Mazzone

On March 3, 2016, the North Carolina Law Review will host a colloquy on Federalism in the Rehnquist and Roberts Courts. The colloquy begins at 4:15 pm at the UNC School of Law.

The colloquy grows out of an article Carl Emery Woock and I published last December entitled Federalism as Docket Control. The article uses the twentieth anniversary of United States v. Lopez (2015) to revisit the Rehnquist Court’s federalism revolution.

The colloquy will continue the conversation about the Rehnquist Court as well as take up federalism developments in the Roberts Court and the possible impact (from a federalism perspective) of a new Court member following the death of Justice Scalia.

Besides myself, participants at the colloquy include Ernest Young and Neil Siegel (Duke), Rick Hills (NYU), Jud Campbell (Stanford), and Bill Marshall, Mary-Rose Papandrea, Michael Gerhardt, and Eric Muller (UNC).

Faculty members or students interested in attending the colloquy should feel free to e-mail me at mazzonej[at]illinois.edu for additional information.



Posted 7:11 PM by Jason Mazzone [link]

Are liberals and conservatives being strategic in constitutional theory? Not necessarily.

JB

Over at Law and Liberty, Mike Rappaport argues that my predictions about how liberal constitutional theory will evolve if there is a new liberal majority on the Supreme Court show that (1) liberal constitutional theories are merely strategic; (2) that liberals have not acted in good faith about constitutional theory; and (3) that I and other liberal theorists actively support this strategic, bad-faith approach.

What Jack appears to saying – admitting – is that the liberal constitutional theories have been strategic.  The liberals are not arguing what they believe as a matter of first principle.  They are engaged in strategic arguments in an effort to foreclose the conservatives from deciding cases in ways the liberals don’t like.
. . . .
Many people on the right believe that the liberals have been and continue to be strategic about such matters.  But since it involves attributing a kind of bad faith to the other side, it is often not asserted.  But in this case, the argument is made by the liberals.

This is a very serious charge. I think Mike is too eager to conclude that people who disagree with him on important questions are acting in bad faith -- and even admitting to acting in bad faith! A moment's reflection will show why his conclusion is mistaken.

I wrote my previous post about liberals, responding to Eric Posner's comments about how liberals and conservatives would be affected by a long term shift in the ideological composition of the Supreme Court. I was planning to follow up my discussion of the effects on liberal constitutional theory with a second post about how a shift in the Supreme Court would affect the development of conservative constitutional theory. Mike apparently seems to believe that the effects will only occur on one side. He is incorrect. I might as well summarize the basic points now.

A long-term liberal majority on the Supreme Court and the lower federal courts will have an effect on conservative constitutional theory that is roughly symmetrical to the effects that it will have on liberal constitutional theory. And this does not mean that conservatives, any more than liberals, have always been strategic, or that they will be acting in bad faith.
Read more »
Posted 2:42 PM by JB [link]

The Constitution in 2020, er.... 2016

JB

Eric Posner predicts-- correctly, I think-- that if the Democrats succeed in replacing Justice Scalia with a liberal Justice, there will be a sea change in liberal constitutional argument:

[T]he various theories of judicial restraint (that is, deference to precedent) advocated in recent years by a number of liberal law professors will instantly lose their appeal. Judicial restraint would simply consolidate conservative precedents at a time when liberals finally have the opportunity to reverse hated decisions like Citizens United and Heller. Look for a revival of Elyish theories that claim that the political process fails women, gays and lesbians, African-Americans, criminal defendants, poor people, and other vulnerable minorities (or, in the case of women majorities). Look for more arguments, adumbrated by essays in this book [The Constitution in 2020], that liberal or progressive values have been incorporated into constitutional norms via historical, sociological, and intellectual processes. (The authors of the book may have been unduly pessimistic, from their own standpoint, in picking 2020 as the year of constitutional change.)

The liberal constitutional theories of the past twenty-five years had to come to terms with a conservative majority that had no qualms about using judicial review to promote conservative constitutional values. Therefore many liberal theorists advocated various forms of judicial restraint, judicial minimalism, popular constitutionalism, and, in general, taking the Constitution away from the courts.

Eric is right that if the balance of power in the federal courts changes dramatically, liberal constitutional theories that focus on the courts will make a comeback, as will the work of earlier Warren Court defenders like John Hart Ely and Ronald Dworkin.  Who knows? Perhaps Laurence Tribe-- or his appointed successor--will take up his famous treatise once again.

I should point out that my own conversion to originalism in 2006 (published in 2007) is orthogonal to the judicial restraint/judicial engagement debate. I always regarded this debate as not very helpful, precisely because I have always believed that whether courts should intervene in any particular case, and how they should intervene, depends on the nature of the constitutional interests at stake. If the best interpretation of the Constitution requires a certain kind of judicial review, then judicial review is appropriate as a matter of judicial duty. If not, then not. (I note that many of my conservative friends who are arguing for judicial engagement have reached pretty much the same conclusion.) There is plenty of room for the political branches (and social movements) to play a role in shaping constitutional culture without taking away the power of judicial review.

Reva Siegel and I began working on The Constitution in 2020 in 2005, during the Bush Administration, when it seemed as if conservatives would rule the country and the courts forever.  We chose 2020 because it was far enough away that we could imagine the world being different. It was also a play on 20-20 vision, that is, clear vision about the Constitution.  The book finally came out in 2009, at the very beginning of the Obama Administration.

We did not expect that an opportunity for change would occur as quickly as it has. The book now seems more relevant than on the day it was published. I recommend its essays-- written by a very distinguished group of scholars--to anyone thinking about the Constitution's future. As an edited collection, it reflects the views of many minds, and neither Reva or I would agree with every essay in all respects.
Read more »
Posted 1:26 PM by JB [link]

Why Originalism Will Not Fade Away

JB

Eric Posner argues that, without Antonin Scalia on the Supreme Court, originalism will gradually fade away. Why would law professors and litigators spend their time making originalist constitutional arguments given that the key players on the Court don't really care about originalism, and the only Justice who does care, Clarence Thomas, goes his own way?

Larry Solum disagrees, but his arguments are more normative than predictive. He points out, entirely correctly, that one should work on developing the ideas one truly believes in, even if they may only have influence in the far future.

Since my own constitutional theory is a synthesis of originalism and its purported opposite, living constitutionalism, I have a dog in this fight. But I will limit my remarks to the positive or predictive question.
Read more »
Posted 11:40 AM by JB [link]

The Matthew Stephenson Moment

Richard Primus

Posted 2:58 PM by Richard Primus [link]

Constitutional hardball in Justice Scalia’s country

Joseph Fishkin

Let me start by stating the really obvious—not a point about precedents or conventions but just a practical point.  Imagine that Mitt Romney were President right now.  Senator Mitch McConnell and the rest of the Republican Senate majority would not be arguing that Justice Scalia’s seat on the Court should remain vacant until a new President is sworn in.  They would be arguing just the opposite: Instead of “delay, delay, delay,” the strategy would be “confirm, confirm, confirm”—make absolutely sure the President’s choice is confirmed before any possibility of an adverse election.  I don’t think there is any serious question about this.  Thus, it’s fair to say that the Senate Republican leaders have made their rule clear.  The rule is as follows: for a Supreme Court vacancy arising in February 2016, Democrats must win two consecutive Presidential elections—2012 and 2016—in order to appoint a successor. Republican victory in either of those elections would mean that a Republican president chooses the new Justice.

Is this rule unfair?  Sure.  Special pleading?  Obviously.  It has been widely noted that Justice Kennedy was confirmed by a Democratic Senate on February 3, 1988, nine months from election day.  But: would the Democrats impose the same rather one-sided rule if they could, if the shoe were on the other foot (i.e. a Republican President facing a Democratic Senate)?

I doubt it.  The parties are not similarly situated.  The leaders of a typical American political party face a mix of conflicting incentives: earning the respect of the activist base on their own side versus earning the respect of moderates and others who want to see the government function effectively.  For today’s Republicans, the incentives are unusually heavily weighted in one direction.  Entrepreneurs on the far right (some of them themselves members of Congress) have marshalled legions of activists and deep-pocketed donors ready to run primary opponents against any Republican who seems to compromise too much with President Obama, whose entire presidency they view, as one observer recently noted, “as an eight-year constitutional crisis.” The result has been a predictable series of major escalations from the right—repeated government shutdowns, threats to default on the debt, blocking the appointment of essentially all appellate judges on a blanket basis—that have come to seem almost normal.  A decision simply to refuse to hold any hearings or votes on a Supreme Court nominee, regardless of who the nominee is, would be entirely consistent with this pattern—so much so that within hours of the news of Justice Scalia’s death, before the obituaries were even up on the web, both nonpartisan observers and Senator McConnell himself were predicting, assuring, or even assuming, just such an escalation.  It is possible for something to be both unprecedented and predictable based on current trends; this is both.  If left-wing activists held as much sway over Democrats as right-wing activists now hold over Republicans, President Obama would be about to escalate in kind—to use his recess appointment power to put, say, Elizabeth Warren on the Court right now, before Congress returns from its recess.  (Don’t hold your breath.)

Where does this leave us?  One way or another—whether the Republicans follow through on their present strategy as I expect they probably will, or not—it seems we are headed for a presidential election campaign in which the future direction of the Supreme Court will play a highly salient role.  That, on its face, has the potential to be a good thing: it could potentially help bring to the surface, for the general public, some of the more important long-term consequences of their votes.  The careful reader will notice a lot of weasel words in the previous sentence.  Whether focusing attention right now on the Supreme Court actually turns out to be a salutary development for our politics will depend on just what we bring to the surface—on what terms we have our coming argument about the Court.  In that way our political system now faces an unusual test.

We have a Court today that is as divided and polarized as the rest of our political system.  Its two major factions are linked relatively tightly with the two political parties in the world of ordinary politics.  In the sweep of American history this is an unusual development; it has many causes, but no Justice deserves more credit for it than Justice Scalia.  He will go down in history as the Court’s greatest practitioner (to date) of popular constitutionalism.  He was a forceful and indefatigable galvanizer of public opinion whose highest-profile written opinions, oral opinions from the bench, and extracurricular speechifying all rested firmly on the premise that what the public thinks about the Constitution really matters, and that by changing minds, he could ultimately change the way we all understand the Constitution.

Justice Scalia was more effective outside the Court than inside.  It is something of a mystery why he reserved some of his most vicious and personal written barbs for Justices Anthony Kennedy and Sandra Day O’Connor, the two votes he needed most throughout his career if he hoped to become the Justice Brennan of the right.  In the end he did not become the Brennan of the right.  Instead he became a more iconoclastic sort of leader, and also one more consonant with our contemporary politics: a leader who views the opposing side in major disputes as deeply, profoundly wrong and even worthy of ridicule.  Today any conversation about the Court necessarily takes place in the world he helped make.

Read more »
Posted 12:40 AM by Joseph Fishkin [link]

Conventions on Replacing a Justice in a Presidential Election Year

Gerard N. Magliocca

I think there is some confusion in the ongoing discussion about the propriety of nominating or not confirming a Justice in a presidential election year, so I thought I would lay out some helpful points.

Last summer I published a short piece on the unsuccessful nomination of Justice Abe Fortas to be Chief Justice in 1968.  The essay explained how that precedent (or anti-precedent) led to a significant change in the customs for the relationship between the Justices, the White House, and presidential politics. Specifically, since 1968 no Justice has retired in a presidential election year, even though before that such retirements were not uncommon.

Why do we think that Justices should not retire in a presidential election year?  First, that draws the Court more directly into electoral politics, which could be damaging to the institution. Second, there is the concern that Justices will strategically retire to avoid being replaced by a President that they dislike.  Chief Justice Warren was guilty of this in 1968 when he announced his retirement in June (because he saw that Richard Nixon, whom he hated, had a good chance of winning) and said that he would not vacate his seat until a successor was confirmed, which left open the option that he would not retire if Nixon won.  Third, there was the argument made by some Senators that the voters should be allowed to speak before a nomination or a confirmation occurred.

There is no convention that a Justice who dies in a presidential election year may not be replaced.  One reason is that there is no strategic aspect to this on the part of the deceased, and another is that a death inevitably draws the Court into the election campaign.  On the other hand, I think it is wrong to say that any Justice who dies then may be replaced in that year.  If Justice Scalia had died in October 2016, I do not think it would have been proper for President Obama to make that choice.  The claim that "the voters should have a say" gets stronger the closer you are to the election.

What should be the boundary between dying to close to the election versus not?  I would say the line is the end of June, which marks the traditional end of opinions for that Supreme Court Term.  Why is that the best point?  Because any vacancy after that only disrupts one Term of the Court.  A prolonged vacancy prior to July (especially several months prior) disrupts two Terms, which I would submit is one too many.  Thus, I think a nomination is appropriate here and that there should be a hearing.

That does not mean, however, that the Senate must confirm the nominee.  Suppose Justice Scalia had died in February 2015.  Nobody would say that the Senate was required to approve the President's first choice--it depends on the name. It's nice to note that a Democratic Senate confirmed Justices Kennedy and Thomas, but in political time that was the Jurassic Era.  (For example, Justice Scalia was confirmed unanimously--I doubt that unanimity will happen again.)  If the President wants to get a nominee confirmed this year, then he needs to pick a compromise candidate.
Posted 2:35 PM by Gerard N. Magliocca [link] (168) comments

Justice Scalia's Orwellian Jurisprudence

Mark Graber

Posted 11:30 AM by Mark Graber [link]

The tragedy of Antonin Scalia

Andrew Koppelman

I elaborate in a column at Salon.com, here.
Posted 7:38 AM by Andrew Koppelman [link]