Commentary

Is an eight-justice Supreme Court the new normal?

That’s one of the provocative questions that constitutional scholar Michael Gerhardt will tackle at the next NC Policy Watch Crucial Conversation luncheon on Tuesday May 10 in Raleigh. RSVP today as it’s sure to be a full house. Here are the details:

A conversation with nationally acclaimed scholar, author and commentator Michael Gerhardt: The Merrick Garland nomination and its implications for the U.S. Supreme Court

Register below

It’s been well over a month now since President Obama nominated Merrick Garland, the Chief Judge of the U.S. Court of Appeals for the D.C. Circuit to fill a vacancy on the U.S. Supreme Court. To date, however, Senate Republicans (including Richard Burr and Thom Tillis) have remained adamant that Garland’s nomination will not even receive a hearing – much less an “up or down” confirmation vote.

To veteran constitutional law expert, Professor Michael Gerhardt, this is an important and disturbing turn in the history of the Court and the politics surrounding it. As Gerhardt has explained in a variety of national publications, Garland is one of the most distinguished and well-prepared nominees in Supreme Court history. If senators follow through with their plans to ignore the nomination, it will have important implications for the future of the Court.

Join us as Gerhardt examines the Garland nomination, what we can expect from a divided Court comprised of just eight justices and what the Senate blockade might mean for future presidents and nominees.

About the speaker: Michael Gerhardt is Samuel Ashe Distinguished Professor of Constitutional Law at the UNC School of Law. He specializes in constitutional conflicts and has been active as a special counsel, scholar, adviser, expert witness, and public commentator on all the major conflicts between presidents and Congress over the past quarter century.

Professor Gerhardt has written dozens of law review articles and five books, including “The Power of Precedent” (paperback, Oxford University Press, 2011). The Financial Times selected his most recent book, “The Forgotten Presidents: Their Untold Constitutional Legacy” (Oxford University Press, 2013), as one of its Best Non-Fiction Books of 2013.

Professor Gerhardt’s extensive public service has included advising congressional leaders and White House officials on numerous constitutional issues, including judicial nominations, recess appointments, impeachment, health care reform, the filibuster, and the debt ceiling crises. In 1992-93, he served as one of eight members of the Justice Department transition team for President Clinton and wrote the judicial selection policy for the incoming administration.

Professor Gerhardt is the only legal scholar to participate in Supreme Court confirmation hearings for five of the nine justices currently sitting on the Supreme Court. He served as Special Counsel assisting the Clinton White House on Justice Stephen Breyer’s confirmation hearings. In 2005, he advised several senators on President Bush’s nomination of John Roberts as Chief Justice of the United States, and he testified as an expert witness in the confirmation hearings for Justice Samuel Alito, Jr. In 2009-2010, Professor Gerhardt served as Special Counsel to Chairman Patrick Leahy (D-Vt.) and the Senate Judiciary Committee for the nominations of Sonia Sotomayor and Elena Kagan to the U.S. Supreme Court.

Don’t miss this very special event!

Register here

When: Tuesday May 10, at noon — Box lunches will be available at 11:45 a.m.

Where: Center for Community Leadership Training Room at the Junior League of Raleigh Building, 711 Hillsborough St. (At the corner of Hillsborough and St. Mary’s streets)

Space is limited – pre-registration required.

Cost: $10, admission includes a box lunch.

Questions?? Contact Rob Schofield at 919-861-2065 or rob@ncpolicywatch.com

News

SCOTUS rejects challenge to “one person one vote” doctrine applicable in the drawing of state legislative districts

Supreme courtWho should states count when tabulating populations for redistricting purposes?

In an 8-0 decision written by Justice Ruth Bader Ginsburg, the U.S. Supreme Court today upheld the “one person one vote” concept applicable in the drawing of legislative districts, holding that constitutional history, precedent, and practice permit a state or locality to draw its legislative districts based on total population.

Writing for the Court in Evenwel v. Abbott, Ginsburg said:

As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote. Nonvoters have an important stake in many policy debates—children, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation.

Justices Clarence Thomas and Samuel Alito wrote separate opinions concurring in the judgement of the court.

Typically states have counted the total population, giving all people equal representation. Voters in rural Texas however challenged that process in Evenwel, contending that by including non-eligible voters – those who aren’t citizens, for example, or those who’ve been in prison – in a district’s total population, the state gives greater weight to the far fewer votes that would be cast in such districts. They argue that instead each vote should be equal and that population count should be based on eligible voters only.

In 1964, the U.S. Supreme Court rejected an Alabama redistricting plan which allotted just one representative to heavily-populated and sparsely-populated districts alike, ruling in Reynolds v. Sims that under the “one person, one vote” concept of equal representation, legislative districts should have roughly equal populations. The high court had not, however, dictated how states should count population for purposes of drawing state legislative districts.

Many voting law experts predicted that a ruling in favor of the challengers would lead to a shift in political power from urban diverse areas to suburban and rural ones would follow.

Others added that a switch to limiting population to eligible voters played into the politics of those lawmakers set on suppression through voter ID and other measures.

In more blunt terms, Election Law Blog’s Rick Hasen had called the case “an attempted Republican power grab in Texas and other jurisdictions with large Latino populations.”

Today’s opinion is significant not only for its affirmation of the concept of “equal representation” but also for its restraint, as Hasen notes in his analysis:

Perhaps the most important aspect of Justice Ginsburg’s opinion, and especially notable because it attracted the votes of not just the liberals but also Chief Justice Roberts and Justice Kennedy, is the Court’s refusal to give Texas the green light to use total voters if it wants in the next round of redistricting. The Court simply put the issue off for another day. It is hard to stress enough what a victory this is for plaintiffs. Many of us thought Burns already gave Texas this power. The fact that the Court leaves that issue open will serve as a deterrent for states like Texas to try to use total voters in the next round of redistricting, because it will guarantee major litigation on the question.

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News

SCOTUS gives class action plaintiffs a break

Supreme courtClass action plaintiffs lawyers can breathe a bit of a sigh of relief today as the U.S. Supreme Court handed down a decision in one of several class action cases before the court this term, ruling in Tyson Foods, Inc. v. Bouaphakeo that in certain circumstances representative and statistical evidence can be used to establish classwide liability.

With the ruling, the high court disabused attorneys of the notion that its 2011 decision in Wal-Mart Stores Inc. v. Dukes precluded the use of any such evidence in class actions. In Wal-Mart, the court rejected a class of more than a million female employees claiming pay discrimination, with a majority of the justices finding that the women had distinct and different employment experiences and thus lacked the commonality needed to proceed as a class.

In Tyson Foods, some 3,000 hourly workers at an Iowa pork processing plant sued the company, alleging that the company failed to pay them for time spent “donning and doffing” protective equipment and walking to and from the job floor. The district court certified the workers as a class based upon the common question of whether those activities constituted compensable work, despite differences in the amount of time workers spent on these tasks, and allowed the workers to prove their case with statistical evidence of the time an average employee would spend donning and doffing — gleaned from their expert’s filming and timing of workers doing just that.

Tyson Foods argued that the court’s decision in Wal-Mart limited the use of that evidence.

Rejecting Wal-Mart as setting down such a bright line test and writing for a majority that included Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan,  Justice Anthony Kennedy said:

[T]he Court would reach too far were it to establish general rules governing the use of statistical evidence, or so-called representative evidence, in all class action cases. Evidence of this type is used in various substantive realms of the law. Whether and when statistical evidence can be used to establish classwide liability will depend on the purpose for which the evidence is being introduced and on the elements of the underlying cause of action.

Read the full decision here.

News

Obama nominates Merrick Garland as next Supreme Court Justice

GarlandPresident Barack Obama’s choice to fill the open slot on the U.S. Supreme Court is 63-year-old Merrick Garland, currently Chief Judge of the U.S. Court of Appeals for the D.C. Circuit.

The President made his announcement this morning from the Rose Garden, setting off a battle with Republicans in the U.S. Senate, most of whom have vowed to block any of Obama’s nominees, arguing that the selection to replace deceased Justice Antonin Scalia should be left to the next president.

Here’s Sen. Mike Lee, a Republican from Arizona who sits on the Senate Judiciary Committee just this morning:

lee

Garland is described as a centrist judge, likely selected by the President as the most confirmable by the Senate of those being vetted for the high court seat.

He has been battle-tested, having survived a long political fight on the road to confirmation in the mid-1990s, when Republican Senator Charles E. Grassley took the position that a vacancy should not be filled, according to the New York Times:

Judge Garland is often described as brilliant and, at 63, is somewhat aged for a Supreme Court nominee. He is two years older than Chief Justice John G. Roberts Jr., who has been with the court for more than 10 years. The two served together on the appeals court and are said to be friends.

Here’s more on Garland from Think Progress:

Chief Judge Merrick Garland of the DC Circuit is the sort of nominee that Obama and Senate Republicans might agree to elevate to the Supreme Court as a compromise, if compromise is actually possible with the current Senate majority. Garland, who President Clinton appointed to the DC Circuit in 1997, is far and away the oldest candidate among the four the White House is reportedly vetting — he’s 63. In nearly two decades on the bench, Garland has also built a fairly centrist record.

Garland’s resume is laden with the kind of credentials that make mere mortal attorneys droll with envy — including a clerkship for Supreme Court Justice William Brennan and a senior Justice Department job prior to Garland’s elevation to the bench. On most issues, moreover, is is likely that Garland would side with the Supreme Court’s liberal bloc in divided cases.

Nevertheless, there are a few areas where his instincts appear more conservative. In 2003, Garland joined an opinion holding that the federal judiciary lacks the authority, “to assert habeas corpus jurisdiction at the behest of an alien held at a military base leased from another nation, a military base outside the sovereignty of the United States,” effectively prohibiting Guantanamo Bay detainees from seeking relief in civilian courts. The Supreme Court reversed this decision a little over a year later in Rasul v. Bush. (Though, it is worth noting that legal experts disagree about whether the result Garland supported was compelled by then-existing precedents.)

Garland also appears to have relatively conservative instincts in criminal justice cases. According to a 2010 examination of Garland’s decision by SCOTUSBlog’s Thomas Goldstein, “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.” Goldstein “identified only eight such published rulings,” as well as an additional seven where “he voted to reverse the defendant’s sentence in whole or in part, or to permit the defendant to raise a argument relating to sentencing on remand,” during the 13 years Garland had then spent as a federal judge.

The next step toward Garland’s appointment should be hearings before the Judiciary Committee, but if Republicans there have their way, those hearings will be a long way off — if they happen at all.

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Commentary

Pro-choice supporters energized despite divided court on abortion case

On the blistery cold morning of March 2, hundreds gathered at the steps of the U.S. Supreme Court in advance of oral arguments in Whole Woman’s Health v. Hellerstedt, the most significant reproductive rights case in recent history. The crowd sprawled out across the sidewalk and into the street. A man held a baby in one arm and a “Protect Abortion Access” sign in the other. Others held homemade signs, which read “Not Going Back.” An anti-choice crowd had also gathered, all clad in blue, but their presence was drowned out by the sea of purple pro-choice supporters.

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Inside the building, the walls vibrated with the sound of the crowd outside chanting “Stop the Sham!” The mood inside the courtroom was more somber as attendees contemplated the gravity of what was at stake in this case. The Justices would not only be determining the constitutionality of HB2, a law passed in Texas that requires clinics to convert into ambulatory care centers, and requires doctors who provide abortion care to have admitting privileges at a nearby hospital, but also whether states can continue to put barriers in place to prevent women from exercising their constitutional right to an abortion. As U.S. Solicitor General Verilli stated at the end of his oral arguments, if the court finds that HB2 should be upheld, what they will really be saying is “that this right exists only in theory and not in fact, going forward.”

At exactly 10am, the Justices entered the courtroom armed with questions for both sides. The seat formerly occupied by Justice Scalia sat noticeably empty and covered in black cloth. Within minutes, it was clear that this was going to be a battle for Justice Kennedy’s vote. Justices Ginsburg, Sotomayer and Kagan pulled no punches in calling out the unfairness in applying certain rules to abortions that aren’t applied to more dangerous procedures like liposuctions and colonoscopies. Justice Breyer further pointed out the hypocrisy in the State’s argument by asking if the State was truly passing these abortion restrictions for health reasons, weren’t they worried that the result of the restrictions was to shut down clinics and cause later-term and more self-induced abortions? Breyer continued, “[s]o if the concern is this tiny risk of dying through complication in a clinic, is this a remedy that will in fact achieve the legislature’s health-saving purpose?”

The arguments in favor of Whole Woman’s Health seemed persuasive at the time but it will be a few months before the Justices release their decision. Walking back down the steps of the Supreme Court and seeing the even larger and more energized crowd of supporters rallying in the cold weather, one thing was clear — no matter what the Justices decide, the right to abortion will not be allowed to be easily taken away.

Chavi Koneru is Policy Analyst for NARAL Pro-Choice North Carolina