U.S. Senator Roman Hruska, despite his patrician-sounding name, is most famous for his praise of the common man. Hruska, a Nebraska Republican, made the following remark on behalf of Judge Harrold Carswell’s 1970 nomination to the Supreme Court:
Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?
Like Judge Carswell before him, Judge Richard Posner is one of the very few Americans honored with a lifetime appointment to the federal courts of appeal. And like Judge Carswell, Judge Posner is one of the even smaller minority ever considered for (though never appointed to) the Supreme Court.
In a recent article published at the Harvard Law Review Forum, Paul Clement and Professor Neal Katyal emphatically denied the existence of any substantial controversy as to whether Senator Ted Cruz meets one of the eligibility requirements for the presidency, viz., whether he is a “natural born citizen” of the United States. Any claim otherwise, they argue, is “specious,” for the historical evidence “clearly” demonstrates that he is such a natural-born citizen; because he was born to a citizen mother and thus a citizen “from birth,” he was a “natural-born citizen.”
I write to note my disagreement with their certitude, but tentative agreement with their conclusion.
According to our Constitution, the President nominates, and with the consent of the Senate appoints, the judges of the Supreme Court. In only 12 of the last 30 years has a single party controlled the presidency and the Senate; therefore, only during those years has there been (largely) uni-partisan control over the selection of new members of the Supreme Court.
All nine of our justices were appointed during the last three decades. Seven, however, were chosen during those more uni-partisan years. Four were appointed under Democratic dominance: Justices Ginsburg, Breyer, Sotomayor, and Kagan. Three were appointed under Republican dominance: Justices Scalia and Alito, and Chief Justice Roberts.
The other two, Justices Thomas and Kennedy, were chosen by a Republican President and confirmed by a Democratic-controlled Senate. In Justice Thomas’s case, his 52 to 48 confirmation vote was nearly uni-partisan—and bitterly so: a handful of conservative Democrats, including future Republican Richard Shelby of Alabama, joined nearly all Republicans in (barely) consenting to Thomas’s appointment. Justice Kennedy, in contrast, was nominated by President Reagan but then unanimously endorsed by the Democratic majority in the Senate. In this respect, his appointment was peculiarly and distinctively bipartisan.
The Fourteenth Amendment’s “Privileges or Immunities Clause” prohibits the states from making or enforcing any laws that “abridge the privileges or immunities of citizens of the United States.” Nearly all scholars agree that this Clause has been effectively dormant since the 1870s, when the Supreme Court largely nullified the provision’s original meaning. Yet scholars disagree sharply as to what that lost original meaning was. Partly because of this scholarly discord, the Supreme Court has resisted efforts to revive the Clause. Most notably, four years ago, in McDonald v. City of Chicago, the petitioners asked the Court to invalidate Chicago’s comprehensive ban…
Some fans of Justice Sonia Sotomayor have recently dubbed her “the people’s justice.” But if her dissent in Schuette v. BAMN is any indication, she doesn’t seem to really like the actual people. And unfortunately for popular government, her colleagues on the bench do not seem very friendly either.
In Schuette, the Supreme Court held that the Constitution did not prohibit the people of Michigan from adopting a constitutional amendment banning governmental racial discrimination, including racial preferences. The Court’s decision overturned a Sixth Circuit decision invalidating the ban.
The seven articles and twenty-seven amendments to our national Constitution contain roughly 8,000 words. Of those, perhaps none have generated so much intense controversy as the fifty-two words placed inconspicuously in the second sentence of the Fourteenth Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” In this sentence’s three prohibitions—the Privileges or Immunities, Due Process, and…
In a pending case, Schuette v. Coalition to Defend Affirmative Action, the Supreme Court faces the claim that the Fourteenth Amendment prohibits Michigan and every other state from including, within its constitution, a prohibition on any state racial discrimination, even if such discrimination might favor a racial minority. Several briefs, including a brief filed by 76 professional historians, present evidence allegedly supporting this contention.
Some conservative commentators have decried the Windsor case as the new Roe v. Wade. As to legal doctrine, however, the case looks more like a reversal of Harris v. McRae, the Supreme Court decision (barely) upholding the constitutionality of the Hyde Amendment. Further, the case looks like a vindication of the concurring federalist arguments once offered by Justices Catron and Campbell in Dred Scott.
Both Harris and Windsor involved a constitutional challenge, under the Fifth Amendment, to a federal law that affected a due-process right the Court had recently created: the right to abortion, created in Roe v. Wade, and the right to consensual acts of “intimacy,” created in Lawrence v. Texas. Both of those cases were the alleged progeny of the prior due-process cases supporting certain unenumerated, non-economic rights: from Meyer v. Nebraska to Pierce v. Society of Sisters to Griswold v. Connecticut.
In both cases, the federal law involved not criminal prohibition but the distribution of federal benefits in a selective manner that arguably disfavored the exercise of these rights. Moreover, in both cases, the laws were proposed by Republicans, many of whom denied there was any such “right,” for such rights were actually wrongs. In both cases, then, there was some moral disapprobation involved (though probably far more in the case of the Hyde Amendment, for inflammatory words like “murder” were used). In both cases, conversely, the laws were signed by Democratic presidents who affirmed the existence of the alleged constitutional rights, but who believed the federal government did not need to subsidize these rights equally with alternatives.
As Richard Reinsch notes, Justice Scalia's dissent in Windsor is a powerful response to Justice Kennedy's majority opinion, which "put the stigma of implicit bigotry around anyone who disagrees with his emancipated individualism." It occurred to me that the Supreme Court has rarely expressed such comprehensive and prominent disdain for whole classes of citizens. True, Justice Kennedy had leveled a similar accusation in Roemer and Lawrence. But the law at issue in Roemer resulted from a discrete act of the people of Colorado, and Lawrence involved a largely unenforced statute. In those cases, the target of his disdain was selective, involving citizens…