For decades, presidential candidates disclaimed the idea that they would have “litmus tests” for their nominees to the Supreme Court. Republicans and Democrats alike agreed that to demand that their judicial nominees decide particular cases particular ways would be wrong. Judicial litmus tests were bad. They were what candidates accused opponents of having. In the 2016 election, this taboo was exploded.
The idea of a Supreme Court litmus test first became prominent in post-Roe v. Wade debates over the right to abortion. The 1980 Republican platform included a promise to “work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life,” and the party’s nominee, Ronald Reagan, denounced Roe. Yet Reagan always insisted that he would not use opposition to the decision as a requirement for his Supreme Court nominees. Democrats nonetheless attacked Reagan throughout his presidency for having an abortion litmus test. Senator Daniel Patrick Moynihan went so far as to declare “ideological tests for the judiciary” a form of “corruption.”
In 1988, both major party candidates disclaimed having any litmus tests for Court appointments. Four years later, then-incumbent George H.W. Bush again rebuffed accusations that he had any litmus tests. Bush supporters attacked Democratic nominee Bill Clinton when he indicated that a commitment to upholding Roe would be a requirement for his Court nominees. Clinton and his advisors tried to steer clear of the litmus-test label. They ultimately chose largely to sidestep the Court as a campaign issue.
In 2000 and again in 2004, George W. Bush came out strongly in support of a pro-life position on abortion, yet he too insisted he would not make opposition to Roe a litmus test for his Court appointments.
The 2016 election shattered what previously had been a stable precedent that presidential candidates must openly reject litmus tests for potential Supreme Court appointments. In the Democratic primary, Bernie Sanders declared that his nominees would have to be committed to overturning Citizens United, even embracing the previously verboten “litmus test” label. Clinton matched Sanders by also stating opposition to Citizens United would be a litmus test. She then upped the ante by declaring that she would have “a bunch of litmus tests” for her nominees.
On the other side, Trump went on record declaring opposition to Roe and support for religious liberty and for Heller as litmus tests for his nominees.
Legal commentator and newspapereditorsprotested the apparent fall of the no-litmus-test norm, but their criticism had little effect on the candidates.
Whether there is any life left in the no-litmus-test norm is a question that will be answered in future presidential elections.
This post was written by ISCOTUS Co-Director and Chicago-Kent Faculty MemberChristopher W. Schmidt. It is the fifth of a multi-part ISCOTUS series on the Supreme Court and the 2016 presidential election.
When it comes to the role of the Supreme Court on the presidential campaign trail, how does the 2016 election compare to past elections? For all its precedent-shattering and unpredictable qualities, the 2016 campaign basically fell into a predictable dynamic when it came to the candidates’ treatment of the Court.
As I discussed in my earlierposts in this series on the Court and the 2016 election, although the future of the Court played a major role in the election for many voters and for advocacy groups, the candidates themselves showed relatively little interest in the issue. This limited interest only decreased as Election Day approached. In my last post, I offered factors that help explain why neither Trump nor Clinton demonstrated much interest in making the future of the Court a central campaign issue. In this post, I turn to history to show that the Court has always been a difficult issue on the campaign trail for presidential candidates. Continue reading →
As I discussed in my earlierposts on the Supreme Court and the 2016 presidential election, although the future of the Court played a major role in the election for many voters and for advocacy groups, the candidates themselves seemed uninterested in the issue. Trump released a list from which he promised to select a nominee for Justice Scalia’s vacant seat and he made brief reference to the Court in his stump speeches, but he spent most of his time on the campaign trail on other topics. Clinton rarely mentioned the Court. When she did, it was usually in response to a direct question. The candidates’ limited engagement with the Court only decreased as they got closer to Election Day.
In this post I offer four factors that help explain why neither Trump nor Clinton demonstrated much interest in making the future of the Court a central campaign issue. Continue reading →
In the lead-up to virtually every presidential election over the past few decades, legal commentators and journalists have predicted that the future of the Supreme Court would feature prominently as a campaign issue. But these predictions have been consistently wrong—or at least considerably inflated. While the Court has featured as an issue on the campaign trail in every election since the 1960s, it has never been, with only rare exceptions, a prominent campaign issue.
The 2016 election was going to be different. Surely this time the Supreme Court would be one of the leading issues on the campaign trail. Justice Scalia’s death in February 2016 left a Court that was evenly divided between four ideologically conservative Republican-appointed Justices and four liberal Democratic-appointed Justices. Rarely has the direction of the Court been so clearly in the balance. When Republican senators refused to hold hearings on President Obama’s nominee to the Court, Judge Merrick Garland, Democrats predicted that their opponents would pay a price at the polls. Indeed, the justification Republicans gave for why they refused to hold hearings was that they believed the voters should have a chance to express their views on the direction of the Supreme Court. Now the voters had their opportunity. Continue reading →
What role did the Supreme Court play in the 2016 election? This is the question I consider in an article that will be published in a forthcoming issue of the Chicago-Kent Law Review. The article is based on a paper I presented at a symposium organized by ISCOTUS last fall; the law review will be publishing an entire issue of articles from the symposium.
My article focuses how Donald Trump and Hillary Clinton used the Court as a campaign issue. My central finding is this: Although the Court was an unusually significant factor when people cast their votes in this election, the major party candidates themselves did not seem particularly interested in pressing the Court as a major campaign issue. My articles explains why. Continue reading →
Why in the world did Wendy Vitter refuse to declare her allegiance to that constitutional holy of holies, Brown v. Board of Education?
During Vitter’s confirmation hearings this week, Senator Richard Blumenthal asked the federal district court nominee whether she believed Brown was rightly decided. “Senator, I don’t mean to be coy,” she responded,
but I think I get into a, uh, difficult area when I start commenting on Supreme Court decisions which are correctly decided and which I may disagree with. Again, my personal, political, or religious views I would set aside. That is Supreme Court precedent. It is binding. If I were honored to be confirmed I would be bound by it and of course I would uphold it.
Blumenthal repeated his question. Again Vitter performed her duck and weave. “I would respectfully not comment on what could be my boss’s ruling, the Supreme Court. I would be bound by it and if I start commenting on I agree with this case or don’t agree with this case, I think we get into a slippery slope.”
A video clip of Vitter’s awkward exchange on Brown soon bounced around social media. Predictably, the nominee earned mostly scathingreviews for her performance.
This isn’t the first time we’ve seen this puzzling dance around what most people consider the most uncontestable of Supreme Court precedents. At his confirmation hearing a little over a year ago, when posed this very same question by this very same questioner, Neil Gorsuch also avoided a direct answer. Senator Blumenthal asked Gosuch whether he agreed with the result in Brown. Gorsuch responded, “Brown v. Board of Education corrected an erroneous decision—a badly erroneous decision—and vindicated a dissent by the first Justice Harlan in Plessy v. Ferguson where he correctly identified that separate to advantage one race can never be equal.” Blumenthal reiterated his question: did Gorsuch agree with the result in Brown? “Senator, it is a correct application of the law of precedent,” Gorsuch responded. The senator noted that when John Roberts faced this same question in his confirmation hearing, he said simply “I do.” “Would you agree with Judge Roberts?” Blumenthal pressed. Gorsuch still resisted the obvious one-word three-letter response. He instead offered a tentative, roundabout, but seemingly affirmative answer response: “Senator, there’s no—there’s—there’s no daylight, here.”
Since Vitter’s artless performance was basically a replay of the strategy Gorsuch deployed more skillfully at his confirmation hearing, we can assume that the Brown bob-and-weave is the current strategy for Republican-nominated judicial nominees.
What’s going on here? Why don’t these nominees take the less controversial and less awkward path and just straight up say: “Brown was correctly decided. Of course I agree with Brown. Next question?”
Commentators have offered three different explanations. One I don’t believe is plausible; the other two make more sense. But none seem strong enough to justify the tactic.
The explanation I find implausible is that the reason these nominees have so much trouble simply expressing their support for Brown is that they are opposed to or ambivalent toward racial desegregation. This is the line Democrats and liberal groups have pressed to mobilize opposition to Vitter’s nomination.
The reason this strikes me as an implausible explanation is that even if, for the sake of argument, we assume a nominee truly held such beliefs, and if that nominee wanted to convey this point, the nominee could simply say so. This would never happen, of course, because expressing such an openly racist position would be automatically disqualifying. This being the case, why, as a strategic matter, would a nominee who hypothetically held such retrograde attitudes want to shine a light on this fact by botching the Brown question? If skeptical senators were truly worried that the nominee was an avowed segregationist, they could just ask the nominee straight up: do you support racial segregation? She would, of course, deny the charge (as Vitter did later in her testimony, when given the opportunity by a supportive Republican senator). It’s hard to think of why it would make any strategic sense for a racist nominee—who would of necessity have to lie when faced with the “are you a segregationist?” question—to not just lie when faced with the “do you accept Brown?” question. In this sense, Brown doesn’t work as a dog whistle; it’s just a regular whistle, loud and clear.
A more plausible explanation is that difficulty with directly embracing Brown stems from concerns some conservative jurists have with the reasoning the Court used to arrive at its landmark ruling. Originalists, in particular, are often put on the defensive when asked to explain how their preferred approach to constitutional interpretation squares with Brown. In Brown, Chief Justice Earl Warren quite explicitly rejected the history of the framing and ratification of the Fourteenth Amendment as a basis for his ruling, relying instead on twentieth-century understandings about the role of public schools in American society and the harms of racial segregation. Justice Scalia got so exasperated with this line of challenge to his jurisprudence that he called it “waving the bloody shirt of Brown.” Maybe these nominees’ unwillingness to just say Brown was correctly decided indicates lingering doubts with the way in which the Brown Court arrived at its holding.
While this explanation identifies a perceived vulnerability for some conservative jurists, it too is insufficient to fully explain the chosen tactic. After all, Justice Gorsuch, in his exchange with Senator Blumenthal, eventually came around to basically saying that Brown was justified on originalist grounds. This is a position Justice Scalia also came to embrace, and various originalist scholars have gone to great lengths to try to support this point. So even if these nominees wanted to take issue with how Warren went about arriving at his decision, they could simply say that Brown was correct, but that they would have taken a different path to reach the holding.
This then brings us to the explanation the nominees themselves offer for the Brown duck and weave: they want to avoid saying anything of substance on any Court ruling, and they are unwilling to make an exception for Brown.
Here was what Gorsuch said at his confirmation hearing: “If I were to start telling you which are my favorite precedents or which are my least favorite precedents or if I view a precedent in that fashion, I would be tipping my hand and suggesting to litigants that I’ve already made up my mind about their cases. That’s not a fair judge.” Gorsuch went on to explain that he wanted to avoid “giving hints or previews or intimations about how I might rule.” This was also the explanation that Vitter was struggling toward in her response to Blumenthal. And it is the explanation that Vitter’s defenders have offered.
But I still have difficulty seeing why a nominee who has a general policy of avoiding discussion of precedents would not make exceptions for certain well-settled cases.
Let’s apply Gorsuch’s explanation to Brown. The reasoning here would seem to be that if a nominee unequivocally accepted Brown as correctly decided, then a potential litigant who walks into the Supreme Court hoping to get the justices to overturn Brown would somehow be disadvantaged because one or more of the justices had already expressed the opinion that the decision was correct. And this would not be fair.
Can this be right? Of course a lawyer who walks into the Court expecting the justices to overturn the most revered decision of constitutional law is going to know that she is walking into a judicial buzz saw. Who are we fooling here? Put another way, do we really want a judicial system in which no precedent can be regarded as solid? Do we really want a lawyer who dreams of interring Brown alongside Plessy and Lochner in the dustbin of constitutional history to feel she has a fair shot, that she’s going to be speaking to a bench that is completely open-minded on this question?
[C]onfirmation hearings function as a high-profile public forum in which we as a nation affirm our shared constitutional commitments. If future nominees follow Gorsuch in refusing to provide firm opinions on even our most iconic cases, we lose an important tool in ensuring that the individuals selected to serve on the Supreme Court accept the constitutional settlements reached by each generation of Americans.
Ringhand and Collins raise a key issue here, one that often gets lost beneath the posturing and politics that characterize judicial confirmation hearings: What can we expect to achieve from these hearings? It may be too much to ask for a rigorous debate over constitutional principles. It may be too much to ask for deep insights into a nominee’s thinking on the most pressing of constitutional controversies. But is it too much to ask that we use confirmation hearings as opportunities to recognize that in our moment of ideological fracturing, there remains—or at least should remain— a constitutional common ground on which we all stand?
On this day in 1898, Justice Joseph McKenna took his oath of office to serve on the Supreme Court.
President William McKinley nominated McKenna to the Court on December 16, 1897, to fill the seat of Justice Stephen J. Field, who had retired. McKenna was serving as President McKinley’s Attorney General at the time. The Senate confirmed him that same day by a voice vote, over the opposition of lawmakers, newspaper editors, and two federal judges, all of whom believed him unfit for the position.
In a ceremony of the members of the Court, Chief Justice Melville Weston Fuller administered the statutory oath to Justice McKenna in the robing room,.
Then, at noon, the Chief Justice and the associate justices took their seats on the bench. The clerk read Justice McKenna’s commission while McKenna stood. Everybody in the chamber rose and McKenna read the judicial oath. The clerk presented McKenna an open Bible. According to the Buffalo Enquirer, “upon its page [McKenna] imprinted a kiss that could be heard over half the courtroom.”
The court marshal escorted Justice McKenna behind a curtain behind the bench, and the new associate justice appeared at the left of the Chief Justice.
The Buffalo Enquirer account continued:
As he ascended the steps leading to the platform, his hand was warmly clasped by Justice [Edward Douglass] White, who occupied the adjoining chair, and he was formally welcomed to his seat. All the other justices faced the new member and bowed to him, but none shook hands.
The Court then turned to the business of the day.
McKenna would serve on the Court until his retirement in 1925.
This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director and Chicago-Kent faculty member Christopher Schmidt.
In honor of Martin Luther King Jr Day, we are reposting this essay by ISCOTUS Co-Director Christopher W. Schmidt.
Among the most important of Martin Luther King, Jr.’s contributions to American history were his commentaries on the relationship between the law and social justice.
King’s views toward the law can be divided into two categories: law as obstacle and law as opportunity.
Law as an Obstacle to Racial Justice
Much of the civil rights movement was a struggle against law: against racially discriminatory laws or racially neutral laws that segregationists used to attack civil rights activism.
Southern police arrested civil rights protesters—including, on multiple occasions, King—for violating practically every criminal code provision: disturbing the peace, marching without a permit, violating picketing or boycott laws, trespassing, engaging in criminal libel and conspiracy. The NAACP was prosecuted in Alabama and elsewhere for refusing to disclose its membership rolls as required by state law. Several southern states went after civil rights attorneys for legal ethics violations. Montgomery used minor traffic ordinance violations as a way to undermine the carpools used during the Montgomery Bus Boycotts. Alabama prosecuted King on charges of tax evasion.
King often struggled to explain why he believed civil rights activists were justified in breaking certain laws—even some laws that on their face said nothing about race—while also condemning segregationists for their defiance of Brown and other federal civil rights requirements. He famously tackled this question in his 1963 Letter from Birmingham Jail, where he differentiated just and unjust laws. “A just law,” he wrote, “is a man-made code that squares with the moral law, or the law of God. An unjust law is a code that is out of harmony with the moral law.” Since segregation laws fall squarely in the later category, “I can urge men to obey the 1954 decision of the Supreme Court because it is morally right, and I can urge them to disobey segregation ordinances because they are morally wrong.”
A more challenging situation, King continued, involves a law that “is just on its face and unjust in its application.” It was this kind of law that landed King in his Birmingham jail cell, since he had been arrested for parading without a permit. “Now, there is nothing wrong with an ordinance which requires a permit for a parade,” he explained, “but when the ordinance is used to preserve segregation and to deny citizens the First Amendment privilege of peaceful assembly and peaceful protest, then it becomes unjust.”
In this particular case, King might have won in the court of public opinion and certainly in the court of history, but he lost in the highest court of the land. When the Supreme Court finally decided to hear an appeal of the conviction of civil rights protesters for violating a state court injunction ordering them to refrain from demonstrating, the Court ruled 5-4 against the civil rights protesters. King and his cause generally fared well before the Supreme Court, but this case was one of a handful of exceptions. Justice Stewart, writing for the Court, reprimanded the protesters in Walker v. Birmingham:
This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law and carry their battle to the streets. One may sympathize with the petitioners’ impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.
For King, unjust laws—and the courts that enforced them—were obstacles in the cause of racial justice.
Law as an Opportunity for Advancing Racial Justice
And then there were the laws that King and other civil rights activists wanted: school desegregation orders; non-discrimination requirements for restaurants, hotels, and private employers; voting rights protections. King’s attitude toward these kinds of civil rights laws is also quite interesting.
King understood court decisions and legal reform as a central component of broader political and social struggle. Although he certainly saw the importance of courtroom decisions and legislation, when he talked about the power of law, he tended to focus on the difficult work required to give life to basic legal principles. Judicial and legislative breakthroughs were not just moments for celebration. They were calls to action.
King’s sometimes tense relationship with civil rights lawyers helped shape his attitude toward the law. From the start of his civil rights career, King recognized his debt to the civil rights lawyers. In December 1955, on the eve of the Montgomery bus boycott that first brought him to the nation’s attention, he gave a passionate speech in which he framed boycotters’ cause as building on the long work of civil rights lawyers, particularly the dramatic NAACP victory in Brown the year before. “If we are wrong,” he declared, “the Supreme Court of this nation is wrong. If we are wrong, the Constitution of the United States is wrong. If we are wrong, God Almighty is wrong.” Furthermore, civil rights lawyers played a critical role in the eventual triumph of the boycott. The boycott was teetering on the brink of failure, faced with a potentially crippling legal challenge to the carpool system on which the boycotters relied, when news arrived that the Supreme Court had struck down the segregated bus system as unconstitutional.
Yet King also sought to distance himself from the NAACP and its litigation-based tactics. There was an element of inter-organizational rivalry at play here—King’s SCLC competed with the NAACP for attention and funds. There was also an element of a generational divide at play, as King became more closely aligned with the younger element of the movement that was committed to direct-action protest and lashed out against the legalistic tactics favored by the older civil rights activists.
The work of lawyers was important, King stressed, but it must not dominate the energy of the movement. Direct-action protest was both an extension of, and an alternative to, the NAACP’s project of school desegregation litigation, which by the late 1950s had largely stalled in the face of obstructionist legal maneuverings. A new wave of civil rights protest emerged, sparked by the student lunch counter protests of 1960 and motivated in large part by frustration with the slowness of legal reform. To understand what drove African Americans to take to the streets to demand their rights, King explained, “[o]ne must understand the pendulum swing between the elation that arose when the [school desegregation] edict was handed down and the despair that followed the failure to bring it to life.” He critiqued what he saw as an overly idealistic vision of the law that the NAACP lawyers relied upon in making their case for Brown. “When the United States Supreme Court handed down its historic desegregation decision in 1954, many of us, perhaps naively, thought that great and sweeping school integration would ensue.”
Injustice might find expression in unjust laws, but King emphasized that the roots of injustice are deeper. For King, the law by itself was limited in its ability to affect hearts and minds; to truly uproot entrenched patterns of inequality, one must acknowledge the limits of legal reform. African Americans “must not get involved in legalism [and] needless fights in lower courts,” King warned, for that was “exactly what the white man wants the Negro to do. Then he can draw out the fight.” This was the harsh lesson of Brown and massive resistance. “Our job now is implementation. . . . We must move on to mass action . . . in every community in the South, keeping in mind that civil disobedience to local laws is civil obedience to national laws.”
One of King’s contributions to the struggle for racial equality was his passionate skepticism toward the efficacy of legal change when it was unaccompanied by organized social action.
On this day in 1804, the United States Senate created a committee tasked with preparing rules to govern the first impeachment trial of a Supreme Court justice. The previous March, the House of Representatives had voted to impeach JusticeSamuel Chase. Chase had been appointed to the Court by George Washington in 1796 and had established a reputation for his staunch, outspoken commitment to the Federalist Party. This gained him the enmity of the Jeffersonian Republicans, who in 1800 had won the presidency and gained control of Congress.
Chase had been particularly vocal in criticizing the Republican repeal of the Judiciary Act of 1801. The repeal abolished a number of newly created federal courts, along with the judgeships Federalists had secured prior to losing power. Chase told a Baltimore grand jury in May 1803 that the repeal would “take away all security for property and personal liberty, and our Republican constitution will sink into a mobocracy.”
At the urging of President Jefferson, Representative John Randolph of Virginia initiated impeachment proceedings against Chase. On March 12, 1804, the House approved eight articles of impeachment against the justice. Among them was the charge that Chase was “continually promoting his political agenda on the bench,” and thereby “tending to prostitute the high judicial character with which he was invested, to the low purpose of an electioneering partisan.”
The House also charged him with “refusing to dismiss biased jurors,” and “excluding or limiting defense witnesses in two politically sensitive cases.” These charges stemmed from two trials over which Chase presided. One was the 1800 treason trial of John Fries, in which Chase had delivered a written opinion that defined treason as a matter of law, without hearing the lawyers’ arguments. Fries’ attorneys withdrew from the case because, claiming that Chase’s conduct had tainted the jury pool, rendering a fair trial impossible. Fries was easily convicted. The other was the 1800 trial of James Callender, who had been indicted under the Sedition Act for publishing a book in which he accused John Adams of being a British sympathizer and a monarchist. The Sedition Act, which a Federalist Congress passed in 1798, made it a crime to bring the president or Congress “into contempt or disrepute.” The House impeachment charge alleged that Chase had acted in a way to ensure Callender’s indictment and that Chase also failed to exclude a biased juror.
The Senate ultimately acquitted Chase of all eight charges on March 1, 1805. None of the articles of impeachment came close to getting the two-thirds majority needed for conviction. His victory is widely believed to be a critical foundation for the principle that the federal judiciary should be insulated—to a large extent—from the partisan machinations of the legislative and executive branches.
Chase went on to serve the rest of his life on the Court. He died in 1811.
This post was drafted by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and edited by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and ISCOTUS Co-Director Professor Christopher Schmidt.
On this day in 1987, President Ronald Reagan’s nominee to the Supreme Court, Douglas H. Ginsburg, admitted to using marijuana while he was a student at Cornell University and as a professor at Harvard Law School. Ginsburg’s admission would end his chance to occupy the seat that had opened when Justice Lewis Powell had announced his retirement the previous June.
Ginsburg had been a Supreme Court nominee for just nine days. President Reagan nominated him after the Senate rejected Reagan’s initial nominee for Powell’s seat, Judge Robert H. Bork. At the time of his nomination, Ginsburg was a judge on the United States Court of Appeals for the District of Columbia Circuit.
Nina Totenberg of NPR first broke the news of Ginsburg’s marijuana use. Several of the nominee’s former colleagues from Harvard Law, where he taught from 1975 to 1983, disclosed to the press that they had witnessed Ginsburg smoking marijuana during his time on the faculty. Ginsburg admitted to the allegations later that day. “It was a mistake,” he stated in a press conference, “and I regret it.”
The revelation was especially controversial because of the Reagan Administration’s aggressive “War on Drugs” campaign. When Reagan nominated Ginsburg, he presented him as someone who would be tough on crime. “No one has rights when criminals are allowed to prey on society,” Reagan stated in announcing Ginsburg’s nomination. “Judge Ginsburg understands that.”
This post was drafted by ISCOTUS Fellow Elisabeth Hieber and edited by ISCOTUS Fellow Bridget Flynn, both Chicago-Kent Class of 2019. It was overseen by ISCOTUS Co-Director Professor Christopher Schmidt.