Monday, February 29, 2016

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

David Gans

Last year, defenders of discriminatory marriage laws urged the Supreme Court to defer to the judgment of state legislatures that had denied marriage equality to same-sex couples.  This year, defenders of restrictive anti-abortion laws designed to shutter abortion clinics are making the same argument, insisting that courts have no warrant to decide whether a state’s abortion law actually serves health-related purposes.   This argument works no better a second time around.  When the Supreme Court hands down its ruling in this Term’s blockbuster abortion case, the Justices should make clear that courts should not rubberstamp laws that deny women liberty, equality, and dignity.

At issue in the case of Whole Woman’s Health v. Hellerstedt, which will be heard by the Justices this week, is a pair of onerous abortion regulations adopted by the state of Texas, requiring physicians who perform abortions to have admitting privileges at a hospital within 30 miles of the abortion clinic and requiring abortion clinics to meet the standards for standalone surgical centers.  Texas defends these laws, which would force more than 75% of the state’s abortion clinics to close, insisting that the Supreme Court must defer to the legislature’s view of what is necessary to protect women’s health.  According to Texas, courts should not referee disputes about whether state regulation serves a medical basis.  Any other result, Texas claims, would violate principles of federalism and turn the Supreme Court into a medical board for the nation.  Texas is wrong—judicial opt out is just not how the Constitution works. 

There is no more basic principle of constitutional law than the duty of the courts to carefully review challenged legislation to ensure its consistency with the Constitution.  When the Constitution was written more than two centuries ago, its Framers made the courts the frontline against state violations of the Constitution’s guarantees.  The need for careful judicial scrutiny is reflected in many Supreme Court decisions that limit the power of state majorities to violate fundamental constitutional guarantees.  Decisions vindicating rights ranging from freedom of expression, to freedom from unreasonable searches and seizures, to protection of personal liberty and equality under law all reflect that courts must engage in searching review to ensure that states do not subvert constitutional rights.  

To ensure the full scope of liberty protected by the Constitution, courts must pay close attention to the state needs asserted to justify a deprivation of liberty.  That’s particularly important here.  History shows that states often denied women equal citizenship through legislation that purported to protect their health and welfare, but in fact denied them equal liberty, dignity, and autonomy.   Texas’s effort now to make it virtually impossible for women to exercise their constitutionally guaranteed right to choose abortion—like long-outmoded laws that denied women the right to work on the same terms as men—cannot be squared with our Constitution’s promise of liberty, dignity, and equality for all. 

Texas’s view of the law would allow states to do an end-run around the Constitution, letting them manipulate constitutional rights out of existence.   Of course, that’s exactly what Texas wants.   The very point of its restrictive abortion laws—which single out abortion providers for special regulations that are not applicable to other medical procedures—is to make abortions practically unavailable in the state.  Rather than asking the Court to overrule the long line of cases protecting a woman’s right to choose, Texas would subject the abortion right to a death by 1,000 cuts, eliminating the “real substance” of liberty that the Court’s decisions guarantee to women.   

If the state’s argument that the Justices should defer to political process sounds familiar, it should.  In last year’s landmark marriage equality case, states insisted that it was up to the people of the states, acting through the democratic process, to decide whether loving, committed same-sex couples had the right to marry.  Invoking principles of federalism, the states argued—as Texas does now—that the Supreme Court should defer to their judgment.  The Court flatly rejected that argument.  As Justice Anthony Kennedy’s opinion made clear, constitutional rights are not subject to a vote.  When majorities in the legislature deny to any group of people the full scope of liberty guaranteed by the Constitution, courts have a constitutional obligation to strike down the acts of the legislature. 
Justice Kennedy’s opinion declaring that marriage equality is the law of the land—a case that Texas does not even mention in its brief—should loom large when the Justices meet to consider Texas’s effort to close abortion clinics throughout the state.  To strike down the Texas law, all Justice Kennedy has to do is to repeat what he’s already written. 

David H. Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center.  This post is cross-posted at Text and History.


Saturday, February 27, 2016

The Scalia Vacancy and Informal Constitutional Change

Stephen Griffin

The controversy over how to fill Justice Scalia’s seat illustrates the uncertainty over the place of informal practices within American constitutionalism.  This is a topic I’ve addressed in a recent paper.  In this post, I’ll use the approach I present in that paper and elsewhere (especially my 1996 book, American Constitutionalism) to try to advance the discussion.  I stress that this is a “theory” post not meant to advocate a view on whether a Supreme Court nomination that could shift the balance of the Court should be allowed to go forward in an election year.

My basic intuition is that constitutions, like the American Constitution, meant to operate as legally effective documents (as opposed to aspirational or precatory declarations) are hampered by their necessarily self-enforcing nature.  Yet the self-enforcement problem can be overcome through a process of institutionalization or state-building.  So to understand what the Constitution means or comes to at a given moment requires exploring how it has been operationalized within a particular historical context.  Further, to the extent lawyers and judges are involved in the process of implementing the Constitution, they do this through “legalization” or “judicialization,” understanding the Constitution by making analogies to documents familiar to them such as statutes and contracts.

Now another example of legalization is treating instances of constitutional interpretation and constitutional controversies in the legislative and executive branches as if they were “precedents” – like judicial opinions in concrete cases.  I think this is largely a false trail for analysis, unless it is shown that these instances were themselves institutionalized or resulted in state-building, the meaningful alteration of the structures in which political action takes place.

Well, that’s a bit abstract, but in that light let’s consider Senate Biden’s 1992 statement, recently highlighted on this blog.  Or past statements of a similar character by Senators McConnell and Grassley.  Are any of these statements “precedents” or evidence of constitutional “conventions?”

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Wednesday, February 24, 2016

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 

Tuesday, February 23, 2016

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.

Monday, February 22, 2016

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] for additional information.

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


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.
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Friday, February 19, 2016

The Constitution in 2020, er.... 2016


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.
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Why Originalism Will Not Fade Away


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.
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Thursday, February 18, 2016

The Matthew Stephenson Moment

Richard Primus

        There’s logic in expecting that cooler heads will prevail and the Senate will later this year confirm a successor to Justice Scalia.  There’s also logic in expecting that the Senate will refuse to confirm a successor.  If the Senate refuses, there’s logic in expecting that the Senate will confirm a successor early next year.  But there are also foreseeable scenarios in which the Senate continues to refuse even after the election.  Suppose that Hillary Clinton is elected President and the Senate remains majority-Republican.  All of the Senate’s real reasons for blocking a nomination in 2016 will still be in force in 2017: the ideological balance of the Supreme Court is at stake, and a nontrivial constituency among the GOP’s voters will be inclined to punish any Senator who acquiesces to an unwelcome appointed.  Indeed, voting to confirm might be more dangerous for a Republican senator in 2017 than in 2016.  The threat, after all, comes from voters who are part of the party’s base, not from swing voters.  By the time of a confirmation vote in 2016, the senatorial primaries will be finished, and the voters to worry about will be in the political center.  A 2017 confirmation vote would come just as potential primary challengers are building support, and it is in the primaries where the danger lies.  To be sure, staggered elections in the Senate mean that only some Republican senators will be facing a new primary election cycle, and maybe a sufficient number of the others would decide, after a Democrat won the Presidency, that the time had come to go along.  But given the steady deterioration of interparty cooperation in recent years, it isn’t hard to imagine people digging in, either.

            If the conflict over the Supreme Court vacancy became protracted in this way, the big danger would not be the Court’s lack of a ninth member.  It’s better to have nine Justices than eight, but the Court and the country could survive for a while with only eight Justices—or even seven or six or five, if it came to that.  Uncertainty about the future of the law and nonuniformity about the law in the present would both have costs, but sustainable ones.  The big danger would be something else—the near-certain reality that the stalemate would not remain stable.  It would escalate.

            The story of the collapse of a functional confirmation process has, after all, been a story of serial escalations, with each side deciding to de-emphasize or disregard conventions that once underwrote a shared understanding of the boundaries of the game.  The Constitution itself says relatively little about the process, and the courts have not policed it and probably can’t.  So things can only move along if both parties exercise self-restraint, rather than trying to push more and more aggressively for their own advantage.  We haven’t seen that self-restraint lately.  Instead, we’ve seen, say, Senatorial refusal to confirm perfectly mainstream and honorable people as judges, the elimination of the filibuster, and so forth.  Mark Tushnet might describe the dynamic in terms of “constitutional hardball”—with a more optimistic lens, David Pozen might speak of “countermeasures.”  But either way, it should be clear that each escalation risks provoking further escalations, such that it is dangerously naïve to think that one has the power to end the game with a winning move. 

            What might a next escalation look like, if we find ourselves a year from now with a continued refusal by the Senate to confirm a Presidential nominee?  There’s no way to know for sure.  One of the dangerous things about escalating conflicts is that the menu of possible moves is not set in advance, and people might wind up doing something both unexpected and unexpectedly damaging.  But here is one possibility—offered both for its own value and as illustrative of what sorts of things might lie down this road, even if it isn’t this particular thing.

            Three years ago, Matthew Stephenson published an article arguing that the prevailing understanding on which a Presidential appointee to a position requiring Senate confirmation is confirmed only upon an affirmative vote of the Senate is itself merely a convention.  As Stephenson explains, the text of Article II does not say whether the Senate’s consent is to be signaled only by an affirmative vote or whether the Senate can be deemed to have consented simply by remaining silent for a period of time.  That silence indicates consent is, of course, a maxim in some areas of the law.  And there is logic to thinking that rule would make sense here.  Senate confirmation is an important check on Presidential power, because it enables the Senate to stop the President from naming rogues or incompetent cronies to positions of power.  But that doesn’t mean that no appointee can take office without an affirmative vote.  The check would still operate if the President said “I’m nominating Jessica Jonson—let me know if you have a problem with that.”  If the nominee is objectionable, the thinking runs, the Senate will say so.  If the Senate doesn’t bother to say anything after some reasonable time has elapsed, it means that the Senate has no objection.

            If we can inter the convention by which Presidential appointees get prompt hearings, and the convention by which competent appointees get confirmed even if their politics are not to the Senate’s liking, and the convention by which appointments are not held hostage to policy fights having nothing to do with the particular appointment, and the convention by which the Senate majority permits a sizeable Senate minority to have a veto, might it be naïve to think that the convention whereby the President waits for affirmative approval from the Senate before deeming an appointee confirmed is not also subject to elimination when the stakes get high enough?

            It’s hard to foresee what might happen if a President said “From now on, I’m going to deem my nominees appointed unless they are affirmative rejected by the Senate within ninety days.”  It might not be pretty.  And maybe we will never get that far.  But whether it’s that escalation or a different one, the important point is that escalations in the separation-of-powers game are likely to produce further escalations, especially when the stakes are high and politically salient, and especially in a particular domain—judicial confirmations—where escalation responding to escalation is already the established dynamic.  All of which raises the premium on getting things resolved before the stakes are raised yet again.

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.

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Wednesday, February 17, 2016

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.

Tuesday, February 16, 2016

Justice Scalia's Orwellian Jurisprudence

Mark Graber

Antonin Scalia was the most Orwellian jurist in American history.  He was one of the most important members of the Supreme Court in American history, but not for any reason he identified.  Scalia claimed to champion judicial restraint, originalism and the separation of law and politics.  In fact, he was a judicial activist who struck down laws based on a contemporary constitutional vision that he campaigned for aggressively in both legal and political settings.

Scalia's professed adherence to judicial restraint masked a remarkably broad judicial activism.  As Thomas Keck documents in THE MOST ACTIVISTSUPREME COURT IN HISTORY (see also Eric Segall’s fine piece in the Wake Forest Law Review), Scalia was among the least restrained justices who ever sat on the federal bench.  He voted to declare unconstitutional land-use regulations, environmental regulations, campaign finance regulations, restrictions on speech outside abortion clinics, hate speech regulations, laws limiting state funding to religious organizations, affirmative action policies, majority-minority districts, crucial provisions of the Voting Rights Act of 1965, crucial provisions of the Affordable Care Act of 2010 and many other federal and state enactments.  Scalia insisted that the federal government could rarely permit citizens to sue states in federal or state courts or require state officials to implement federal laws.  Bush v. Gore probably belongs in a class of its own as an instance of judicial activism.  Scalia’s last major opinion on the Supreme Court urged the justices to declare unconstitutional local bans on semi-automatic weapons.  

Scalia insisted that he was guided by the original meaning of the Constitution, but his activist opinions often made no reference to practice in 1789 or 1868 or did so in ways that would cheer the heart of a living constitutionalist.  He posed as Raoul Berger, but was far closer in spirit to Jack Balkin. Scalia’s denunciations of affirmative action never engaged with the substantial scholarly literature maintaining that the Republicans who framed the post-Civil War Amendments frequently enacted race-conscious programs.  His aggressive attacks on regulatory takings never engaged with the scholarly debate over whether the conception of regulatory takings even existed in 1789.  His support for corporate contributions in political campaigns refused to tackle antebellum legal decisions holding that states were free to restrict corporate charters in any way the people thought best for the public interest.  He never sought to refute Saul Cornell's influential claim that the right to bear arms in 1791 was the right to be part of a state militia.  As did most justices, Scalia appealed to broad general principles (free speech, formal equality) when they supported his pet causes, and appealed to particular historical practices when general principles standing alone might lead in a disfavored direction.

Scalia demanded from others a separation of law and politics that was missing in his practice.  As Mark Tushnet observes, Scalia often wrote for the evening news or the blogs rather than for legal analysts.  His opinions consistently included insults that mobilized conservative activists without advancing by an iota any legal argument.  Scalia spent most of his time off the court campaigning for his constitutional vision in any forum that would offer him a podium.

Scalia was hardly unique in his activism and devotion to the political movements of his time.  Think William Douglas and William Brennan during the late twentieth century or David Brewer at the turn of the twentieth century.  Each was a judicial activist who identified with a political movement of that time and articulated that political movement’s constitutional vision.  What set Scalia apart was his Orwellian insistence that he was the anti-Brennan/Douglas/Brewer, a justice who respected legislatures and whose jurisprudence was connected only to the political movements of the late eighteenth century that produced the Constitution of the United States.  If he fooled some of the people some of the time early in his career, by the end he demonstrated the adage that you can’t fool all of the people all of the time.  Just as the historical reputation of David Brewer and William Brennan are tied to the political movements whose constitutional vision they articulated, so will the historical reputation of Antonin Scalia depend on the fate of the Tea Party in American constitutional politics.

By all accounts, Scalia was an honorable public servant who was gracious in private life and committed to advancing the common good as he saw it in public life.  He had an exceptional capacity for friendship across ideological divides and there was never a hint of scandal in his behavior.  A great many public officials might emulate those behaviors.  Nevertheless, Scalia did more to cheapen than enrich public discourse.  His judicial rants, even if they were of little concern to his colleagues, further polarized a too polarized polity.  His false professions of judicial modesty converted appropriate debates over how the court should be activist into an historically silly debate over whether the court should be activist.  His false professions of neutrality converted appropriate debates over which contemporary constitutional vision ought to be the official law of the land into an absurd debate over whether any contemporary constitutional vision ought to be the official law of the land.  His false professions about the separation of law and politics obscured the myriad ways in which constitutional law does and should bleed into constitutional politics.


The tragedy of Antonin Scalia

Andrew Koppelman

Almost everyone either loved Antonin Scalia or hated him.  I’m ambivalent.  He was a brilliant jurist and a joy to read.  He was wrong about same-sex marriage, but Anthony Kennedy, who wrote the somewhat daffy opinion recognizing it, deserved the ridicule Scalia piled onto him.  On crucial occasions, however, Scalia’s dedication to judicial restraint, the main theme of his jurisprudence, evaporated.  Then he turned into a partisan hack, with no awareness that this had happened.  It is precisely because he was a great man that he was sometimes a tragic figure.

I elaborate in a column at, here.

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