Tag: scotusblog

Judge Sanctions Obama Lawyers for Ethical Violations, Wishes He Could Disbar Them

While everyone was debating Trump’s judicial-nominations list yesterday, the judge in Brownsville, Texas, who still maintains control of certain technical aspects of the immigration-executive-action case now before the Supreme Court issued an extraordinary order sanctioning the Justice Department for various misrepresentations and other ethical breaches. It turns out that the government had begun implementing DAPA and extended DACA – the program providing temporary eligibility for residence and other benefits to large classes of illegal aliens – before the February 2015 date when those programs were intended to become active.

Judge Andrew Hanen had worked to produce a 123-page opinion enjoining the executive action on the eve of that “go” date, and it turns out that the Justice Department violated its duty of candor by not revealing the extent of its malfeasance – and continuing with the program in certain ways for a few weeks after the order went into effect. That is, regardless whether the government purposely defied the judge or this was a case of the left hand not knowing what the far-left hand was doing, administration lawyers had a duty to disclose everything that was going on, and to make best efforts to stop the Department of Homeland Security from putting its new programs into effect.

Set Fixed Judicial Terms for Supreme Court Justices

Contrary to the judiciary’s reputation as the least dangerous branch, judges exercise almost every executive and legislative power other than going to war. This is why the battle over Antonin Scalia’s successor is so bitter.

That wasn’t the Constitution’s original plan. The courts were important but were not to supplant the other branches. Rather, judges were expected to constrain the executive and legislative branches.

Alexander Hamilton expected the judiciary to play a “peculiarly essential” role to safeguard liberties and act as an “excellent barrier to the encroachments and oppressions of the representative body.” Judges were to “guard the Constitution and the rights of individuals” from “the people themselves.”

James Madison, intimately involved in drafting the Constitution, explained that: “independent tribunals of justice will consider themselves in a peculiar manner the guardians of [Bill of Rights guarantees]; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they are will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.”

Supreme Court Leaves Meaning of “One-Person, One-Vote” Unclear

This morning, the unanimous Supreme Court ruled that Texas was constitutionally justified in drawing state electoral districts based on total population, even if this meant that great disparatives result among districts in numbers of voters. This was the case of Evenwel v. Abbott, in which Cato had filed a brief arguing that the plaintiff-voters’ proposed “citizen of voting age population” (CVAP) metric was a much better one to use when applying the “one-person, one-vote” standard. 

While the eight-justice Court managed to achieve rare unanimity in an election-law case, at least in judgment, it did so only by declining to address the elephant in the voting booth. The Court failed to fill the gaping hole in its voting-rights jurisprudence: the question whether the venerable “one-person, one-vote” principle requires equalizing people or voters (or both) when crafting representational districts.

Still, the ruling leaves open to the states the ability to experiment further with populations considered in drawing district lines both for their own legislatures and federal House seats. Some states already exclude aliens, nonpermanent residents, nonresident military personnel, inmates who were not state residents prior to incarceration, and other non-permanent or non-voting populations.

States like Texas where total-population allocations continue to diverge from eligible-voter allocations—resulting in great disparities of voters between districts—should indeed try to ensure that each vote has the same relative weight, forcing the Supreme Court’s hand in some future case. Regardless of the outcome in that eventual case, however, jurists and political scientists should take heed of Justice Alito’s concurring opinion, which concisely explains why the “federal analogy” to the Constitution’s apportionment of House seats among states is inapposite to the question posed in Evenwel regarding redistricting.

For more background on the case, see my SCOTUSblog essay.

SB 1070: Constitutional But Bad Policy

That’s the title of an essay I wrote for SCOTUSblog as part of their symposium on United States v. Arizona.  This is the big immigration case that will hit the Supreme Court’s doorstep later this month when Paul Clement, recently hired by Arizona, files his cert petition.

Here’s an excerpt:

…state governments, feeling tremendous pressure from their citizens to address the consequences of the federal failure to meet this nation’s immigration needs, are acting for themselves.  Arizona happens to be the “tip of the spear,” but we’ve also seen various other immigration-related laws passed in states as different as Utah, Georgia, and California.  Whether related to enforcement, expanded work permits, sanctuary cities, or other types of policy innovations, Congress’s abdication of its duty to manage our immigration system has spawned a host of federalism experiments.

And so we come to S.B. 1070 (as amended by H.B. 2162), which exemplifies the crucial distinction between law and policy that both liberals and conservatives tend to forget.  A law that is good policy might be unconstitutional or preempted by some higher law.  Here we see the converse: while S.B. 1070 is (with the exception of one provision) constitutional, it’s bad policy.

Read the whole thing.

Supreme Court Will Hear Appeal of School Choice Case

The SCOTUS Blog reports this morning that the United States Supreme Court has agreed to hear an appeal of the Ninth Circuit’s ruling in the Arizona k-12 scholarship tax credit case. This is great news, and paves the way for the Court to ultimately overturn the 9th Circuit’s credulity-straining legal misadventure.

For the details, see the Cato brief in this case, which was joined by the American Federation for Children and Foundation for Educational Choice.

Kagan Nomination: Around the Web

  • Confirmation hearings are a “vapid and hollow charade”, or at least that’s what Elena Kagan wrote fifteen years ago. National Review Online invited me to contribute to a symposium on how Republican senators can keep the coming hearings from becoming such a charade, with results that can be found here.
  • The First Amendment has been among Kagan’s leading scholarly interests, and yesterday in this space Ilya Shapiro raised interesting questions of whether she will make an strong guardian of free speech values. Eugene Volokh looks at her record and guesses that she might wind up adopting a middling position similar to that of Justice Ginsburg. As Radley Balko and Jacob Sullum have noted, the departing John Paul Stevens ran up at best a mixed record on First Amendment issues, so the overall impact on the Court is far from clear.
  • Kagan’s other main scholarly topic has been administrative and regulatory law, and Nate Oman at Concurring Opinions warns that everything in her career “suggests that she is intellectually geared to look at the regulatory process from the government’s point of view.” Oman took an advanced seminar she taught, and brings back this cautionary report:

    It was an interesting class, mainly focused on the competition between bureaucrats and political appointees. In our discussions businesses were always conceptualized as either passive objects of regulation or pernicious rent-seekers. Absent was a vision of private businesses as agents pursuing economic goals orthogonal to political considerations. We were certainly not invited to think about the regulatory process from the point of view of a private business for whom political and regulatory agendas represent a dead-weight cost.

  • I’m not the only one who finds Kagan’s exclusion of military recruiters at Harvard wrongheaded, even while agreeing with her in opposing the gay ban. Peter Beinart made that argument in a widely noted post at The Daily Beast last month and now has a followup. Former Harvard law dean Robert Clark is in the Wall Street Journal today (sub-only) with an argument that Kagan’s policy was a continuation of his own and represented the sense of the law faculty as a whole. Emily Bazelon points out that the recruitment bar was overwhelmingly popular at top law schools at the time, an argument that as Ramesh Ponnuru points out may raise more questions than it answers. And Ilya Somin cautions against assuming that the wrongheadedness reflects any specifically anti-military bias.
  • One of John Miller’s readers recalls John Hasnas’s wise words on “empathy” in judging. David Brooks at the Times runs with the “Revenge of the Grinds” theme. SCOTUSblog rounds up some other reactions (with thanks for the link). And Brad Smith, writing at Politico, advises us to be ready should Citizens United come up at the hearing.