• Professor Carolyn Shapiro

    Carolyn Shapiro

    Associate Professor of Law and Director of the Institute on the Supreme Court of the United States (ISCOTUS)

    – Go to her faculty biography

    – Go to her publications:

       SSRN: http://papers.ssrn.com
       Bepress: http://works.bepress.com/carolyn_shapiro/

    From November 8 to December 19: The Electoral College Evaluates Trump

    by  • December 2, 2016 • Faculty Commentary • 0 Comments

    Shapiro_Carolyn_portraitOriginally posted December 1, 2016 on The Huffington Post. 

    by Carolyn Shapiro

    The presidential election is not over. The election on November 8 was the mechanism for each state to select its slate of electors, who will not themselves elect the president and vice-president until December 19. That six-week gap has never been more crucial. We can all observe Donald Trump’s conduct during that time, but by the time the members of the Electoral College are called upon to exercise their judgment, they will, as Alexander Hamilton explained, “possess the information and discernment necessary to” evaluate him in ways that the public at large could not. And if the electors take the Constitution and the wellbeing of the country seriously – if they are conscientious – they will watch carefully.

    Already, some electors, calling themselves the Hamilton Electors, are pushing, not to elect Hillary Clinton (despite her having received the majority of the popular vote by at least 2.5 million), but for a bipartisan effort to elect a compromise candidate, probably a Republican, to prevent Trump from becoming President. And with good reason. Trump is poised to take an oath to the Constitution and to violate it at the very same time. The Constitution prohibits government officials from receiving gifts or compensation (“emoluments” in the language of the Constitution) from foreign governments. Yet Trump is eager to use his new position to increase his personal wealth. His hotel in Washington, for example, has hired a “director of diplomatic sales,” and foreign diplomats are lining up to stay there to curry favor with him. And the New York Times has detailed numerous possible conflicts of interest around the globe, including ways that Trump’s business could benefit from favorable acts by foreign governments. As Richard Painter, former ethics counsel to President George W. Bush, explained on CNN, the electors will violate their own duty if they vote for Trump without assurances that he will not violate his oath even as he takes it.

    Trump has no regard for the truth, for preserving our government and civic institutions, or for promoting national unity, even at a time when he has every reason to be gracious. He claimed on Sunday night, in the form of a Twitter storm, that he would have won the popular vote except that “millions of people voted illegally.” This is entirely false. Let us be clear about what Trump is doing here: in response to formal, legal recount efforts (which will ensure the accuracy of the vote count but are not expected to change the result), he is making utterly baseless accusations – accusations that serve only to undermine confidence in American democratic institutions. And the insinuation that these illegal voters are undocumented immigrants, combined with claims he made during the election about voter fraud in cities and “other communities” serve only to stoke racial division and suspicion.

    This latest temper tantrum, along with other actions, belies Trump’s claims that he wishes to be “president for all Americans” and – when pressed – that he denounces white supremacy. He has appointed the incendiary Steve Bannon as his chief strategist, a man who, by his own account, provided “the platform for the alt-right,” part of the white nationalist movement. And he has failed to personally acknowledge – much less denounce – the more than 800 documented incidents of harassment and hate crimes in the first ten days after the election, including many in which the perpetrators expressly invoked his name. In light of all this, Trump’s recent claim that he does not know why his campaign and election have “energized” white nationalists is either an outright lie or remarkable ignorance.

    For any elector to reject the popular vote in their state is highly unusual, and for enough of them to do so to affect the result would be unprecedented. It certainly would itself be divisive. Some of Trump’s supporters warned of violence if Trump lost what they believed might be a “rigged” election; they might make good on those threats if he is not installed in the White House. But now is a seminal moment. The electors should carefully evaluate whether Trump’s post-November 8 conduct is worthy of their votes. And if not, a bipartisan majority should choose a responsible Republican instead of Trump. For electors of both parties, such an action would elevate love of country over party and political advantage. It would be the most patriotic of acts, it would honor the Constitution, and it would remind us all that – like it or not – we are in this together.

    Prof. Shapiro Discusses the Upcoming Supreme Court Term

    by  • September 22, 2016 • Faculty Commentary, Multimedia • 0 Comments

    Yesterday, Professor Carolyn Shapiro spoke on a panel about the upcoming Supreme Court term at the National Press Club in Washington, D.C. The panel was sponsored by the American Constitution Society. Information about the panelists and a video are available on the ACS website.

    Professor Shapiro is co-director of Chicago-Kent’s Institute on the Supreme Court of the United States (ISCOTUS), and she recently returned to Chicago-Kent full time after two-and-a-half years serving as Illinois Solicitor General.

    Shapiro in CNN on “How Scalia played with fire”

    by  • February 17, 2016 • Faculty in the News • 0 Comments

    The following opinion piece by Professor Shapiro, “How Scalia played with fire,” was posted February 16, 2016, on cnn.com.

    By Carolyn Shapiro

    The late Justice Antonin Scalia has been justly praised for his tremendous intellect, his resounding influence on the law and his supremely accessible opinions. And since his death Saturday, many commentators have noted his sincere, long friendship with liberal Justice Ruth Bader Ginsburg and others with whom he often disagreed.

    Indeed, some have suggested that we use the legendary Scalia-Ginsburg friendship — so well-known that it inspired an opera — as a model for how we should all relate to those whose political views we disagree with.

    But Scalia’s personal warmth should not preclude considering to what extent his jurisprudence and his famously acerbic tone may have contributed to the polarized national conversation about the court.

    Read more on CNN.

    Democratic Legitimacy, Shelby County, and DOMA

    by  • June 27, 2013 • Faculty Commentary • 1 Comment

    Shapiro_Carolyn thumbBy Carolyn Shapiro

    It has been a busy few days at the Supreme Court. People have been riveted by the Court’s dramatic striking down of a key portion of the Voting Rights Act (Tuesday) and by its equally dramatic rulings striking down the Defense of Marriage Act and declining to reach the merits in the challenge to California’s Proposition 8 (Wednesday).

    While there is much to say about all of these cases, here I want to remark on the very different views of the democratic process on display. To begin with, the Voting Rights Act case, Shelby County v. Holder.

    Quick summary: Section 5 of the Voting Rights Act requires certain “covered jurisdictions” to get permission (known as preclearance) from federal authorities before making any changes to their voting procedures. Section 4 of the Act provides the coverage formula by which these jurisdictions, mostly but not exclusively in the South, are identified. The rationale behind these provisions is to prevent jurisdictions from using facially neutral changes to impede minorities’ political participation. Most recently, for example, Section 5 preclearance has prevented several states from imposing voter ID requirements—requirements that would apply to everyone but that would have the effect of preventing disproportionate numbers of minorities from voting. Texas has already announced its intention to move forward with such requirements now that this part of the VRA has been struck down. (more…)

    More Pro-Business Decisions at the Supreme Court

    by  • June 25, 2013 • Faculty Commentary • 0 Comments

    Shapiro_Carolyn thumbBy Carolyn Shapiro

    After last week’s decision in American Express v. Italian Colors Restaurant, I explained that the case was a classic example of the Roberts Court’s pro-business bent. On Monday, the Court issued two more. Both of these cases are Title VII cases, both were decided 5-4, and both will make successful litigation much harder for victims of discriminatory harassment (racial, sexual, etc.) or of retaliation for exercising their Title VII rights.

    In Vance v. Ball State University, the Supreme Court addressed the question of “who is a supervisor” within the meaning of Title VII. (Title VII is the 1964 law that outlaws employment discrimination on the basis of race, religion, sex, national origin, or color.) If a supervisor harasses someone, it is easier for that person to win a Title VII suit than if the harassment is by a co-worker. (It is not impossible to win if the harasser is not a supervisor, but the employee must show that the employer was negligent, which is a tougher standard to meet than if the harasser is a supervisor.) The Supreme Court said that only a person with authority to make “tangible employment decisions” such as hiring, promotion, and termination, counts as a supervisor. A person who oversees someone’s day-to-day work assignments and sets her work schedule, as in Vance, is not a supervisor under this standard.

    In University of Texas Southwestern Medical Center v. Nassar, the issue was what an employee has to show to establish that he or she was illegally retaliated against. In order to allow and encourage employees to assert their Title VII rights, Congress made it illegal for employers to retaliate against them for doing so. In Nassar, the Court decided that such an employee has to show that any adverse employment actions taken against them would not have occurred had they not asserted their rights. This is a more demanding standard than Title VII requires for establishing discrimination. There, the plaintiff need establish only that the discrimination was a motivating factor for the employer’s actions. (more…)

    Arbitration uber alles in the Supreme Court

    by  • June 21, 2013 • Faculty Commentary • 0 Comments

    By Carolyn Shapiro

    This week’s opinion in American Express Co. v. Italian Colors Restaurant is a particularly bad decision for consumers, employees, and small businesses—basically anyone who does business with large and powerful entities. The issue in American Express, on first glance, might seem rather esoteric and technical. So before I delve into this particular case, I’m going to provide some background.

    (1)   Back in the 1920s, Congress passed a statute called the Federal Arbitration Act (FAA), prompted by courts’ reluctance to enforce arbitration clauses in contracts. Arbitration clauses are contractual provisions that obligate the parties to take any contractual disputes to arbitration instead of to court.

    (2)   The FAA provides, in relevant part:

    A written provision in any maritime transaction or contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter aris­ing out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. 9 U.S.C. § 2.

    In the 1920s, when the FAA was enacted, everyone believed that congressional power to regulate commerce was limited (basically) to regulation of the actual movement of goods between states. So, the number of contracts that the FAA was understood to address was relatively small. Beginning with the New Deal era, however, congressional power to regulate interstate commerce is understood to be extremely broad; basically anything that affects interstate commerce is within congressional jurisdiction.

    Here is a concrete example: when the FAA was enacted, it would have regulated a contract between a manufacturer in, say, Nebraska, to ship goods to a store in, say, Illinois. But it would not have reached any of the Illinois store’s sales within Illinois. Today, on the other hand, the Illinois store’s local sales would be understood to affect interstate commerce and so if the store incorporated an arbitration clause into its sales agreements, it would almost certainly be enforced. (more…)

    What Are They Doing? Why Does It Take So Long?

    by  • June 19, 2013 • Faculty Commentary • 0 Comments

    By Carolyn Shapiro [via Oyez/ISCOTUSnow]

    As we all wait for decisions in this Term’s major cases, people may wonder what is taking so long and why the big cases are so often the last cases to be announced. The short answer is that the big cases are also those in which there is most likely to be fairly strong disagreement among the justices, meaning that there are likely to be multiple opinions—and when that happens, the process can take some time. Here’s a quick primer on what happens:

    Each week of argument, the justices meet in Conference to discuss the cases. They take a tentative vote at that point. After the Conference, the Chief Justice assigns the majority opinion in each case in which he is on the winning side. In any other cases, the senior justice in the majority assigns the opinion.

    In each case, the majority opinion author then begins drafting. Occasionally, a dissenter will start drafting then as well, particularly if the dissenter thinks there is some chance of getting another justice to change his or her mind. (This does happen, although not often.) But more often, the dissents—and concurrences—aren’t written until after the first draft of the majority opinion circulates to the whole Court. At that point all the opinion writers start revising their opinions in response to each other. This is why you often see majority opinions referring to the dissent, and vice versa. Because the justices are essentially having an argument on paper, the opinions go back and forth until everyone is satisfied that they have fully had their say.

    This process is what is undoubtedly happening now in the big cases that are yet to be announced. In addition to that, except for Fisher (the affirmative action case), the other big cases were all argued relatively recently. Shelby County (the Voting Rights Act case) was argued in February and the gay marriage cases (DOMA and Prop 8) were not argued until the end of March.

    As of this week, the Court is announcing opinions twice a week—on Mondays and Thursdays. The ISCOTUSnow app will have the opinions available as soon as possible after they are announced.

     

    What’s Going On at the Supreme Court?

    by  • May 21, 2013 • Faculty Commentary • 1 Comment

    By Carolyn Shapiro [via Oyez/ISCOTUSnow]

    Yesterday, the Supreme Court issued decisions in four cases.* All but one were unanimous as to result, and that one, City of Arlington v. FCC, though important in administrative law, is not a case most members of the public are likely to be following. This may lead some people to wonder what the Supreme Court is doing and when they will issue decisions in the big cases from this Term — the gay marriage cases (Perry and Windsor), the affirmative action case (Fisher), and the Voting Rights Act case (Shelby County), to name a few.

    The short answer is that the dispositions of these cases will almost certainly be announced before the end of June, when the Court goes into summer recess. I say “almost certainly” because there is at least one other, very remote, possibility: Occasionally a case is held over for reargument in the fall. This happened with Citizens United.

    At this time of year, the Court generally announces (or “hands down”) opinions on Mondays (next week it will be Tuesday due to Memorial Day), and it sometimes adds an additional hand-down days, usually Thursdays, towards the end of the Term. But the Court never announces ahead of time what opinions it will be issuing on a particular hand-down day. So between now and the end of June, every hand-down day has the potential to be a biggie.

    * Read Oyez’s overviews of the cases decided this week:
    – Sebelius v. Cloer
    – Metrish v. Lancaster
    – PPL Corporation v. Commissioner of Internal Revenue
    – City of Arlington, TX v. FCC

    A Hint on Hollingsworth from a Criminal Case?

    by  • April 30, 2013 • Faculty Commentary • 0 Comments

    By Carolyn Shapiro [via Oyez/ISCOTUSnow]

    Case: Boyer v. Louisiana

    At oral argument in Hollingsworth v. Perry, the Prop 8 case, Justice Kennedy openly wondered whether the case had been “properly granted” and hinted that an appropriate resolution might be to dismiss it as improvidently granted (or DIG it, in the shorthand of the Court. A DIG would mean that the Court would simply decline to decide the case as if it had never granted it in the first place, and the Ninth Circuit judgment would stand. As Tom Goldstein observed, such an outcome is seen as unlikely because, presumably, the four conservative justices would oppose it. And if five justices could DIG a case over the objections of four, then the rule of four — it takes four votes to grant certiorari — would be in jeopardy. Today, however, that is precisely what happened. In Boyer v. Louisiana, the Court DIG’ed a case involving a criminal defendant’s challenge to his conviction over the dissents of the four liberal justices.

    There are of course differences between Boyer and Hollingsworth. For one thing, in a concurrence, three members of the Boyer majority (Justice Alito, joined by Justices Thomas and Scalia) argued that the facts of the case, as they emerged during briefing and argument, were different from the factual assumptions that led to the grant. Nothing similar is likely to happen in Hollingsworth. On the other hand, the long time from argument (October 5, 2012) to decision (April 29, 2013) suggests that there was some jockeying and negotiation going on among the justices — generally a DIG occurs fairly quickly after oral argument, even where there are separate opinions. So the fact that the Court has not yet DIG’ed Hollingsworth should not lead to the conclusion that it won’t.