Category Archives: The Judiciary

Rights ch 2, Powers ch 2, Short Course ch 3

An Unusual Lobbying Campaign

Yesterday, veteran Court reporter Tony Mauro wrote about a lobbying effort headed by Professor Peter Irons to cleanse the reputation of the Supreme Court resulting from the Korematsu ruling.  As political scientists, we know about the usual efforts to lobby the courts.  Interest groups bring test cases, though this strategy is actually quite rare, take over cases as they climb the appellate court ladder, write amicus briefs to sway the justices, and publish or support law review articles to introduce new ideas or concepts to the legal lexicon.

Irons sent each of the justices an article that presents why the Court should repudiate its 1944 decision.  The basis of Iron’s argument is not that history reveals that the Court decision was wrong, but rather that vital facts were purposely kept from the justices—facts that likely would have altered the outcome of the case. A 2011 statement of the Solicitor General’s office, as Mauro reports, significantly bolsters Irons’s argument.  In this blog post,[1] then acting SG Neal Katyal outlines the purposeful withholding of information by his office.[2]  Mauro also reports that most of the justices have made their stance on this case clear: Korematsu was wrongly decided.  The executive and legislative branches have come to the same conclusion; Irons argues that it is now time for the judicial branch to do likewise formally.

How would the Court follow Irons’s advice?  Mauro reports on a rare practice of “correcting factual errors.”  Essentially, Irons is asking the justice to correct the factual errors then repudiate Korematsu without having an additional case that serves to overturn the decision.  How could the Court do this?  Professor Irons argues that both reversal and repudiation of earlier decisions are not defined by the Supreme Court rules.[3]  Therefore, the justices can consider the evidence from the coram nobis hearings and the Solicitor General’s statement to correct the facts and note that the decision would have been different had this information come to light.  He also argues that any invidious discrimination case can be used to reverse formally the internment decisions.  “The fact that the Court has never before issued such a “repudiation” statement is no bar to the authority of the Justices to take such an action.[4]

Professor Irons makes a good argument and I wholeheartedly agree that the Japanese internment decisions need to be reversed and repudiated.[5]   However, I do not agree that there is no bar to action he requests.  The evidence here is overwhelming, but there are good reasons to embrace historical precedent. One clear consideration is the current political climate.  Like it or not, repudiating this decision creates a new avenue for lobbying the Court.  How long would it be before other groups use additional facts—facts “ignored” by the government—to petition the justices to re-evaluate precedent setting decisions.  The Court might like to take this step for the internment cases and note the extraordinary circumstances, but as with Bush v. Gore the Court can claim that the case won’t be used a precedent, it cannot prevent litigants from finding other uses or cases for the procedure.

Imagine the Court does repudiate the internment cases.  How long will it be before the next request comes?  And, can we hazard a guess what cases will be first on the “need to repudiate” list?


[2] It is interesting that the SG’s office makes this statement in May of 2011 and the cornam nobis decision of 1983 (vacating Korematsu’s wrongful conviction) was based on the same evidence.  Professor Irons represented Korematsu in this case.

[3] Peter Irons, The Case for Repudiation, a publication of the Earl Warren Bill of Rights Project, University of California, San Diego, 2013 at 26.

[4] Ibid.

[5] Some years ago, the authors of this blog viewed a Smithsonian exhibit about the internment camps.  One of the most disturbing parts of the exhibit was a section that compared US and Nazi propaganda (How to tell a Jew/Japanese type of literature).  The similarities were striking.


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Filed under Discrimination, The Judiciary, Understanding the U.S. Supreme Court

Judicial Elections and Equal Protection?

In the forthcoming issue of Judicature, there is a symposium on James L. Gibson’s new book, Electing Judges: The Surprising Effects of Campaigning on Judicial Legitimacy.[1]  The commentators, Sara Benesh, Robert Hume, Matt Streb, and Lee Epstein, all sing the praises of Gibson’s latest work and discuss a number of issues regarding judicial elections and relate them to his findings.  Interestingly, both Epstein and Streb wonder about a potential equal protection problem.  I find their concerns intriguing from the standpoint of constitutional law and judicial politics.

Essentially, the argument stems from research revealing a tendency for elected judges to vote more harshly in some areas than others (the death penalty is the most cited and obvious case) and to vote more or less harshly depending on where in the electoral cycle the case is inserted.  Gibson finds these arguments specious; judges will make different decisions and no one is guaranteed the same outcome for the same crime in the district.  Two judges will likely handle the matter differently.  Additionally, there are many reasons why a judge might be harsher on some crimes or defendants at one point in time than another.  After a series of particularly violent crimes or high profile thefts, a judge might sentence defendants convicted of similar crimes differently to set an example.

Gibson is correct that there are infinite reasons why different judges may behave differently or the same judge may behave dissimilarly at different points in time.  The issue or concern is more than judges behaving differently or a judge reacting to the political context surrounding a crime or string of crimes.  I am sure after the massive Enron fraud or the Madoff ponzi scheme was uncovered and the damages to individuals made headlines, many judges were a bit harder when sentencing similar defendants.  I am also sure no one would quibble with such a discrepancy in judicial behavior—all of our decisions are affected by context.  However, a systematic and predictable pattern of changes in judicial decision-making related to the timing of elections may be a horse of a different color.  If judges make calculated choices to treat similar defendants differently simply because the case happens to appear on their docket two months prior, rather than two months after, their next election, the reaction is one of self-interest.  Altering behavior because an external stimulus forces a re-evaluation of values—for judges and layfolk alike—is not the same as calculating an abrupt shift simply because of an upcoming retention or general election.  The election stimulus is unrelated to the facts of the case or the crime committed unlike a high profile scandal revealing a need for stricter sentencing. Such behavior is expected among other elected politicians—legislators or executive branch officials, but as Gibson’s new book and the symposium highlight, the judicial branch must be concerned with its legitimacy, perceptions of fairness, and due process.[2]  To the extent that judges behave like politicians, they could undermine the strength of public perceptions of legitimacy and fairness,

Even so, is the finding that there is a cycle of decision-making related to electoral necessity grounds for claiming either a due process or equal protection violation?  The trial doesn’t change and the institutional and constitutional rules still apply.  The sentence, albeit harsher, is not necessarily out of the bounds of regular practice.  And the claim that one sentence is harsher than another due to proximity to an election would be much harder to prove and receive a different level of scrutiny than a claim that sentence length is due to race or gender.

The concern is real.  Regardless of the debate between accountability and independence, and regardless of how judges make their decisions (based upon ideology, constituent preferences, etc.), we do and should expect those decisions to be consistent and stable.  But I do not see any way we can argue that such results are constitutionally guaranteed.

[1] Chicago, IL: University of Chicago Press, 2012

[2] Gibson’s book argues that judicial elections do not undermine legitimacy; rather, judicial elections may actually boost it.

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Filed under Discrimination, The Judiciary

When government stops working

The court of appeals for the DC circuit ruled today that President Obama’s recess appointments for the National Labor Relations Board were unconstitutional.  This ruling essentially nullifies a large number of decisions made by the board since he made these appointments a little over a year ago.


Using original meaning and textualism, the appellate court noted that the founders used the word “the” in front of “Recess” indicating only one.  And, in referring to other times when the Congress may not be meeting, the word “adjourn,” in some form, was employed.  Therefore, “the Recess” cannot be equivalent to the intrasession adjournments.  Additionally, the combination of “the Recess” and “the next Session” in the recess appointments clause provides further justification for holding that adjournments are not recesses.  The court then continues to justify the ruling through historical and legal precedent, including INS v. Chadha and Myers v. USChadha is cited to note that frequency of an action (including legislative vetoes in bills or making recess appointments during intrasession adjournments) does not make that action constitutional.  Myers provides support for examining the language of the constitution closely when dealing with the appointments clause.


These parts of the ruling are certainly fabulous and clear examples of the application of the legal approaches describe in the CLCA textbooks.  And the legal analysis is well done, as expected.  However, the opinion avoids the approach of pragmatism.  And perhaps it is time for a heavy dose of pragmatism at least when interpreting the Appointments clause.  As the New York Times reports[1], this ruling leaves the NLRB with only one member and essentially shuts down part of the executive branch and prevents the President from executing the National Labor Relations Act because the Senate will not confirm his nominees.  The same situation is repeated within the judiciary as has been repeated in state of the judiciary reports from Chief Justices Rehnquist and Roberts for years.


The opinion of the court of appeals notes some legislative business that occurred over the courts of these various adjournments.  We documented that business only occurs during some of these periods.[2]  And certainly the judiciary is managing to complete cases even though it is woefully understaffed.  Passing a constitutional amendment to provide greater discretion for recess appointments or forcing the Senate to provide some hearing or vote on presidential nominees is DOA in this polarized political climate.  The US is going to appeal this ruling to the US Supreme Court.  Based upon precedent and jurisprudential philosophies, we would predict the US would lose.  If so, the appointments process is also DOA.  Is this a situation that calls for pragmatism and a deviation from more “legal” forms of interpretation?

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Filed under The Executive, The Judiciary, The Legislature, The Separation of Powers System in Action, Understanding the U.S. Supreme Court

Its Bigger than DOMA

The twitter and blogospheres are lighting up with the news coming out of the Court of Appeals for the Second Circuit.  Chief Judge Dennis Jacobs has ruled that the Defense of Marriage Act is unconstitutional.  As a conservative judge appointed by H.W. Bush, with a Clinton judge, Chester Straub[1], dissenting, the opinion turns the perceived ideological divide of the debate on its head.

Upon the first blush, more striking to me is the reasoning rather than the result.  Chief Judge Jacobs did not take the states’ rights position to void DOMA; he ruled it unconstitutional under the equal protection clause.  In doing so, he altered where the classification of homosexuality sits on the tripartite equal protection scheme.  Determining that homosexuals as a class have “A)…endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.”  If his reasoning holds, homosexuality will be equivalent to gender and receive intermediate scrutiny rather than rational basis.  Any classifications not allowed for gender would be equally suspect as applied to homosexuals.

Again, if this reasoning is accepted, the first class will be added to the semi-suspect or suspect classification in several decades.  Eschewing rational basis with teeth for this decision, Judge Jacobs opens the door for one Supreme Court decision to alter a whole slew of federal laws.  Under heightened scrutiny, all federal benefits denied to same-sex couples would likely fall, and fall quickly and easily.  The precedents from the 1970’s and decisions regarding benefits for women versus men will pave the way.  This decision is much bigger than DOMA.

[1] Judge Straub dissented essentially stating a classic restrainist rationale.  This is a question for the people and their representatives not the courts.

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Filed under Discrimination, The Judiciary, The Legislature, The Right to Privacy

If it quacks like a recess, is it a recess?

George Will’s column[1] on October 10, 2012 ridiculed and criticized Obama’s use of recess appointments.   As Charlie Savage reported in January, Obama granted recess appointments in January while the Senate was in “pro forma” session.  In a pro-forma session, most of the Senate is away from the chamber and one Senator comes back every few days to bang the gavel.  Thus, the Senate isn’t truly in recess and recess appointments are not allowed—at least this is what Senate Minority Leader McConnell and George Will seem to argue.

As Will frames the problem, it is one of senatorial or congressional power.  The Senate determines when it is and is not in session and the President is acting beyond his powers to make that determination.  The framing of the problem here is very reminiscent of Nixon v. US where the Court demurred under the political question doctrine to the Senate regarding the definition of “try” in Article 1 Section 3.  “Because the Constitution unambiguously gives the Senate the power to regulate its proceedings, Obama’s opinion that the Senate was not in session when it said it was…has no force or relevance.”[2]

The President’s view, not surprisingly, is very different.  It is not an issue of senatorial power, but of presidential power.  The Constitution provides the president with the power to fill vacancies during the recesses of Congress (Art. II Sec. II).  However, the minority keeps the Senate in “pro forma” session, but there is no quorum present for those sessions and no business is completed.[3]  The political maneuver prevents the President from filling vacancies and “taking care” of executing the laws of the nation.  Regardless of the ‘banging of the gavel’ by one member every few days, Obama’s White House Counsel suggests, the Senate is not doing business and thus preventing from fulfilling his “constitutional function”.[4]  And according to cases like Nixon v. Fitzgerald (1982) and Myers v. US (1926), the president must be able to organize the executive branch as he sees fit to fulfill his constitutional duties.

Would this be a political question or would the Court hear this case to decide if it is an issue of executive or legislative power?  For that matter, which is it–an executive or legislative powers question?  And how would the justices decide?  Based on the Chief Justice’s opinion from the Healthcare cases, he would fall on the side of President Obama.  If it acts like a tax it is a tax.  So if it acts like a recess, then it is a recess.  Or is he more likely to revert to form and interpret the constitution more strictly and defer to the Senate?

[2] ibid

[3] Will does note that twice in 2011, legislation was passed during pro forma sessions; however, again there would have been sufficient senators in the chamber to perform business.


Filed under The Executive, The Judiciary, The Legislature, The Separation of Powers System in Action

Can textualism kill the filibuster?

Common Cause, along with some members of the House of Representatives and three children of illegal immigrants, is suing the Senate.  Specifically, the suit challenges a 2010 vote on the Dream Act.  The Dream Act would have provided citizenship to children of illegal immigrants after they complete college or military service.  A filibuster in the Senate prevented promulgation.  The suit, filed in the District Court for D.C. alleges that the filibuster itself violates “principle of majority rule.” (Common Cause et al v. Joseph R. Biden, et al)

To support their claim, the plaintiffs use textualism and intent.  When more than a majority was necessary for legislative action, the constitution was specific (i.e. 2/3rd of the Senate to ratify a treat.)  In all other cases, the majority principle was understood to hold.  The filibuster, however, “gives a dissident minority in one house (i.e., the Senate), a veto power”; thus this rule “even more anti-democratic than the one house veto statute that was held unconstitutional in INS v. Chadha, 462 US 919 (1983).” (pp 6)[1]   The filibuster bars debate and vote.  Additionally, the filibuster is an obstacle to altering the filibuster rule.  Any attempt to adapt or reconsider the filibuster, the plaintiffs note, is subject to a filibuster.  As such, the filibuster is halting the democratic process.  The members of the House are claiming that the filibuster invalidates their votes and without noting

Perhaps the plaintiffs hope that by citing two instances when the Court waded in on issues of congressional procedure, they may overcome the very large hurdle of the political question doctrine.  However, it is more likely that Nixon v. US, 506 US 224 (1993) is a more appropriate precedent.  While it is clear to most observers that the filibuster is wielded quite often and undermining the legislative process, (i.e., long term judicial and executive vacancies or stalled legislation that has the support of a majority of both houses of Congress,) the internal operation and rules of the Senate are generally considered outside of the judiciary’s purview.  Recall, in Nixon an impeached federal judge challenged Senate procedures used for his trial.  The Senate chose to seat a committee for the trial rather than try the judge before entire body.  Reading the constitution literally, Judge Nixon claimed that the Senate as a body must try him.  The justices disagreed and noted that the Senate, and only the Senate, has power to determine the procedures used.

This reasoning, it seems, would travel very easily to the case before the District Court of DC and likely the suit will not get very far.  But, if by some strange happenstance the case comes before the justices, then Judge Nixon’s case will likely be bumped out of its place in textbooks and replaced with this more contemporary example of a political question.  If the case is dismissed the argument is still a useful example of taking a legal approach to its logical end.

[1] The plaintiffs also note that the filibuster is “more pernicious than the line-item veto statute…” (Clinton v. City of New York 524 US 417 (1998) (pp 7)

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Filed under The Judiciary, Understanding the U.S. Supreme Court

No influence over either the sword or the purse (Federalist 78)

Both National Public Radio and the Wall Street Journal report on a District Court ruling that takes the Federal Elections Commission (FEC) to task for overstepping its powers.  In Chris Van Hollen, Jr v. FEC (Civil Action No. 11-0766(ABJ)), Judge Amy Berman Jackson says, “In other words, the agency did not purport to be responding to a direct delegation of rule-making authority or addressing an ambiguity inherent in the statutory scheme: it specifically undertook to modify existing law to fit the changed circumstances.”  It matters not that the agency promulgated its new rules to reflect a Supreme Court decision[1]; the law is clear and the agency does not have the power to alter it via bureaucratic regulation.  This opinion makes clear that the FEC violated a federal statute[2] and the rule is no longer valid.

A loss for a federal agency in federal court may not be earth-shattering news—after all there is a great deal of litigation involving challenges to various federal regulations.  The agency now has two choices.  It could appeal the loss to the Court of Appeals for the District of Columbia or it could comply with Judge Jackson’s order and rescind its rule.  And here is the tricky part, as noted by both NPR and WSJ, either action requires a majority vote (4 of 6) of the commissioners on the FEC.  By statute, the six commissioners are bipartisan.  As the FEC website notes, “The six Commissioners, no more than three of whom may represent the same political party, are appointed by the President and confirmed by the Senate.”[3]  Controversy at the FEC, notes NPR’s Peter Overby, “…often end in a 3-to-3 deadlock.”[4]

If this decision results in a stalemate, there is little the courts can do.  The District Court has issued an order, but it cannot enforce that order without the help of the commissioners.  If the commissioners do not agree or half of the commission does not agree with the decision, the order is without affect.  Similarly, if half the commission rejects the idea of an appeal, the Court of Appeals, or even the Supreme Court, cannot review the decision.  The rule will remain in effect–a decision of the judiciary notwithstanding.  This situation, among others, provides a very clear example of how the structure of the judiciary and the laws designed by Congress, at times, do make the courts a less dangerous branch.

[1] FEC v. Wisconsin Right to Life, Inc 551 US 449 (2007)

[2] The statute is the Bipartisan Campaign Reform Act (McCain-Feingold).

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Filed under The Judiciary, The Legislature, The Separation of Powers System in Action