ACSBlog

  • March 21, 2017
    Guest Post

    *This piece originally appeared on The Huffington Post.

    by Joshua A. Douglas, Robert G. Lawson & William H. Fortune Associate Professor of Law, University of Kentucky College of Law

    As Judge Neil Gorsuch faces his confirmation hearings to be the next Supreme Court Justice, the Trump White House and Republican senators continue to say that he is a strong conservative in the mold of Justice Antonin Scalia, who he would replace. If Judge Gorsuch’s views on the constitutional right to vote are the same as Justice Scalia’s, however, there is great cause for concern.

    The right to vote is the most important and fundamental right we enjoy. It provides the foundation for our democracy.

    Yet Justice Scalia’s rulings were extremely restrictive when it came to voting rights. For instance, in 2008, when the Court refused to strike down Indiana’s strict voter ID law, Justice Scalia wrote a separate opinion to complain that the Court’s main opinion did not go far enough. While the Court’s ruling upholding the law left the door open to future lawsuits with better evidence, Justice Scalia would have closed off any future challenges to a voter ID requirement. He said that it did not matter if a handful of voters might find it more difficult to participate on Election Day. The harm to the constitutional right to vote for any particular individual was no big deal if the law did not impose a burden on the electorate as a whole.

  • March 21, 2017
    Guest Post

    *This piece originally appeared on Medium

    by Todd A. Cox, Director of Policy, NAACP Legal Defense Fund

    Today, as the Judiciary Committee begins in earnest its questioning of Judge Neil Gorsuch about his nomination to the Supreme Court of the United States, the senators are sure to raise a range of very important constitutional and philosophic questions. But with limited time available and so many issues to discuss, LDF has identified the three key questions senators should ask about Judge Gorsuch’s record on civil rights.

    1. Under your originalist approach to interpreting the Constitution, was Brown v. Board of Education rightly decidedand if so, how specifically?

    Potential follow-up questions:

    - Likewise, under an originalist interpretation of the Constitution, was Loving v. Virginia rightly decided — and if so how?

    - Is the history or original meaning of the 13th, 14th and 15th Amendments — or the Civil War Amendments — relevant to interpreting those provisions today? If so, which of the drafters or their statements would you consider in construing, for example, the 14th Amendment?

    - Brown was a unanimous decision in 1954, but just 68 years earlier, the Supreme Court upheld segregation in a 7–1 vote in Plessy v. Ferguson. What changed in terms of the original meaning (or intent) of the Constitution?

  • March 21, 2017

    by Caroline Fredrickson

    On the eve of the confirmation hearings for Judge Neil Gorsuch to be an associate justice of the Supreme Court, there was more evidence of just what Trump’s judge thinks about women.

    On March 17, Jennifer Sisk, a former student of Judge Neil Gorsuch, wrote to leaders of the Senate Judiciary Committee, urging lawmakers to explore deeply disturbing values that Trump’s nominee expressed in a class last year.

    Sisk described an uncomfortable situation in a class discussion on April 19, 2016. Judge Gorsuch asked students to talk about what a female job candidate should tell her future employers about her plans to start a family. According to the letter, Gorsuch told students:

    …“many” women use their companies for maternity benefits and then leave the company after the baby is born. Judge Gorsuch focused on women having babies, not men expanding their families. Judge Gorsuch argued that because many women left their companies we all knew women who purposefully used their companies. Judge Gorsuch’s comments implied that women intentionally manipulate companies and plan to disadvantage their companies starting from the first interview.

    After class, Sisk reported Gorsuch’s discriminatory comments to the administration at University of Colorado Law School. She also vented in a Facebook post about these stereotypes of working women.

  • March 20, 2017
    Guest Post

    by Heidi Kitrosser, Professor of Law, University of Minnesota Law School

    Last month, a panel of the U.S. Court of Appeals for the Ninth Circuit denied the Trump administration’s request to stay a federal district court judge’s temporary injunction against the first version of President Trump’s travel order. Some critics of the Ninth Circuit’s opinion have argued, among other things, that the panel should not have considered Donald Trump’s statements as evidence that the order purposefully discriminated against Muslims. These critics suggest that presidential campaign speech categorically ought not to be included among the evidence to which courts look to determine whether a law was passed for discriminatory reasons.

    This past Friday, Judge Kozinski – in an opinion joined by four of his fellow Ninth Circuit judges, dissenting from the Ninth Circuit’s refusal to vacate the panel opinion on the First Travel Order – joined these critics. Judge Kozinski characterized the panel’s use of Trump’s own statements as an “evidentiary snark hunt.” This approach, he warned, will reward lawyers for sifting through a candidate’s “often contradictory or inflammatory” statements, “when in truth the poor schlub’s only intention is to get elected.”  Worse still, it “will chill campaign speech,” as candidates censor themselves for fear of uttering statements that will haunt them in court one day.

    The concerns voiced by Judge Kozinski and other critics are misplaced. As both the Ninth Circuit panel and the federal trial court that first ruled on the case recognized, it is well established that courts may – indeed, often must – look beyond the face of a law to determine whether it is motivated partly by a discriminatory purpose. A contrary rule would create gaping loopholes in constitutional and statutory bars against religious or other forms of discrimination. To be sure, judicial inquiries into alleged discriminatory purposes are highly context-sensitive. A stray bigoted statement by a legislator or executive is unlikely to persuade a court that a measure is discriminatory in the face of ample evidence that it was directed toward, and serves a legitimate, non-discriminatory interest. On the other hand, a long history of public statements promising to take a particular action against a given group may well convince a court that the promised action, once taken, does purposefully discriminate against that group. At minimum, that history is relevant to the judicial inquiry, even if the court ultimately deems it outweighed by countervailing evidentiary factors. Were courts not free to so much as consider such history, the judicial power regarding anti-discrimination laws would be dramatically curtailed.

  • March 20, 2017
    Guest Post

    by William Yeomans, Fellow in Law and Government, American University Washington College of Law

    As has become the custom, day one of the confirmation hearing for Neil Gorsuch to become an associate justice of the Supreme Court was swallowed by a series of now mandatory positioning statements by members of the Senate Judiciary Committee. Republicans followed their script, uniformly adhering to talking points in praise of the nominee’s Ivy League credentials, years in private practice as a defender of free enterprise and principled conservatism on the bench. Translation: he is a smart guy who has shown his willingness to put his energy and intellect behind positions that track the Republican political agenda. That agenda favors employers over employees, management over labor, corporations and banks over consumers, religious interests over the rights of others and the Commander-in-Chief over Congress, while weakening federal administrative agencies, interpreting civil rights statutes narrowly and applying the doctrine of originalism to minimize individual rights and lock in traditional social injustices.

    Several Republican senators spent considerable energy providing cover for the nominee to refuse to answer questions, citing statements from Ruth Bader Ginsburg as a nominee and Sen. Edward M. Kennedy as a Committee member, cautioning that a nominee should not take positions on matters that could reach the Court. Invoking liberal icons exploited a tradition at confirmation hearings – citing the opposition to set up the defense of the nominee and teeing up the charge of hypocrisy if the other side attacks.

    Democrats were not deterred. Several cited the abusive treatment of Merrick Garland, but none declared these proceedings illegitimate. Nobody went quite so far as to suggest that President Trump might be as crazy and corrupt as he seems, undercutting the need to respect the nominee. But, several senators plainly thought the mistreatment of Garland combined with the unorthodoxy of the Trump presidency (including his announcement of litmus tests, and reliance on the Federalist Society and the Heritage Foundation to identify a nominee) to place an added burden on Gorsuch to be more forthcoming than the usual nominee to establish his independence and ability to serve as a check on an undisciplined executive.