Judicial Elections Back in the News

Two recent news items caught my attention as they show the difficulty states have with keeping their elected judges independent. In an en banc decision the U.S. Court of Appeals for the Ninth Circuit upheld an Arizona law that regulates the fundraising activities of judges. According to the Arizona Courthouse News Service:

Saying free-speech rights cannot outweigh the need to preserve judicial integrity, the en banc Ninth Circuit on Wednesday upheld an Arizona law banning judges from soliciting donations or stumping for colleagues. The 21-page lead opinion affirms five provisions in Arizona judicial code, which restrict judicial candidates from in-person solicitation or endorsing and campaigning for other candidates publicly, under the First Amendment.

The goal here is to keep judges out of the normal give and take political campaigning process in order to keep them independent.

In Wisconsin court watchers are concerned that the upcoming Wisconsin Supreme Court race will be overly partisan. This illustrates yet another difficulty with judicial elections. Can judges be said to be truly independent when they run on a partisan platform? 

Lifetime Appointments

The Washington Post's blog "The Fix" recently had a post informing its readers that the average age of the U.S. Supreme is nearing its record high. The post has some interesting tidbits:

• The average when Justices retire is around 78
• Three Justices are older than 78
• The average age of the Court at the moment is 69

This is good opportunity to remind students that judges in the U.S. federal court system are appointed for life, whereas judges in England have a mandatory retirement age. The majority of states in the United States also require their judges to retire after reaching a certain age. 

Making Courts More Transparent

Whether high court hearings should be televised has been an ongoing topic on this blog (see here, here and here). In the United States, at least at the federal level, the Supreme Court has rejected calls to televise its hearings, although the audio version of the hearings are made available after the fact. In the UK, the Supreme Court has taken transparency one step further by releasing video of its hearings after the fact. And apparently these videocasts are becoming increasingly popular. To get a better understanding of the debate over cameras in the courtroom, I suggest taking a quick glance at the Debatepedia page on the topic.

Natural Born Citizen and the Presidency

The natural born citizen question is currently front and center in the Republican primary contest for President of the United States. Students in my U.S. Constitutional Law course will know that a requirement to be President is being a "natural born citizen" of the United States. As I said in class, clearly this disqualifies someone who became a naturalized American citizen, for instance Arnold Schwarzenegger. But what about an American born overseas to American parents? Are they natural born citizen? Or must the person be born in the United States? The issues is being discussed (again) in the United States because Texas Senator Ted Cruz, who is running for President, was born in Canada to an American mother and Cuban father. He has his American citizenship through his mother, of course, but does being born in Canada disqualify him from running for the Presidency? Donald Trump thinks so. So do some legal scholars. The National Constitution Center's blog "Constitution Daily" has more.

Behind the Scenes at the U.S. Supreme Court

The NPR Politics Podcast has an interesting interview with U.S. Supreme Court Justice Stephen Breyer. In the podcast Breyer takes us behind the scenes at the Supreme Court. It's well worth the listen.

Constitutional Standing

The Blog Religion Clause reports that a lawsuit challenging Montana's law prohibiting polygamy is on the verge of being dismissed for lack of standing. Students in my U.S. Constitutional Law course might want to take a quick look at this post and see whether they understand why this case might be dismissed. If you understand the reason, then you understand constitutional standing.

The Meaning of Religious Freedom

Students in my U.S. Constitutional Law course were recently introduced to the confusing and sometimes contradicting Supreme Court jurisprudence related to religious liberty. This confusion is primarily the result of a struggle that has been taking place among the Justices on the Supreme Court for several decades over the meaning of these words:

Congress shall make law respecting the establishment of religion or free exercise thereof.

Some see the words "respecting the establishment of religion" as a command for strict church/state separation, while others see it simply as a bar on the federal government from creating a national church or religion. The gulf between these two positions is enormous and multiple views landing somewhere in between these two poles have been expressed by Justices, making this perhaps the most confusing area of American constitutional law.

Justice Antonin Scalia is perhaps the most outspoken advocate on the court of a very limited reading of the so-called establishment clause. Speaking at an event in Louisiana recently, the Justice said:

the idea that government must be neutral between religion and unbelief is not grounded in the country’s constitutional traditions and that God has been good to the United States because Americans honor him.

Scalia went on to note that the government should not favor one religion over another, but there is nothing in the American constitutional tradition that demands equal treatment between religion and non-religion.

Failing to Answer as a Strategy

A quick review of how a case is filed in common law countries. The plaintiff begins by filing a pleading called a complaint (or claim in England), which states the facts of the case (from the plaintiff's perspective) and the legal claims. The next step calls for the defendant to file an answer to the complaint. In class we learned that failure to file this answer will usually result in the plaintiff winning the case. In the United States this is often referred to as a default judgment or in England a judgment in default. Recently the Chelsea Football Club was sued by one of its employees. After receiving the claim, Chelsea opted not to file an answer, thus resulting in them losing the case. An amateur mistake made by the football club's high paid legal advocates? Not all. To learn why check out this post at Legal Cheek.

Langauge Unbecoming of a Judge?

Readers of recent Supreme Court opinions in both the United Kingdom and United States might be surprised by some of the language used by Justices to describe the arguments set forth by their fellow Justices. In England, it has apparently become so bad that the President of the UK Supreme Court has now publicly called for his fellow Justices to show restraint when writing their opinions. As the Telegraph reports:

The president of the Supreme Court has chastised judges, saying that while it is "fun" to throw insults at each other they are damaging the reputation of the court. Lord Neuberger of Abbotsbury urged lawmakers to stop their “abuse” and “hyperbolic criticism” of one another in their judgements because they risk undermining the authority of the judicial process.

This act of "throwing insults" is nothing new at the U.S. Supreme Court. Justice Antonin Scalia has been doing it for almost thirty years calling the views of his fellow Justices "silly" "absurd" and "feeble."

Can Muslims Be Banned From Entering the United States?

Donald Trump is no stranger to controversy. In fact, he craves it. His most recently controversial statement, however, has raised an interesting constitutional question: Would it be constitutional to exclude all Muslims from entering the United States? (for a primer on this issue in German see "Trump für komplettes Muslim-Einreiseverbot in die USA"). Interestingly, there is a split of opinion among American academics regarding this question, and one of the reasons is a case that was discussed here early this month. For a taste of the some of the conflicting views regarding this question see here, here and here.

Judicial Review of Administrative Acts

Students in my American Constitutional Law course were recently exposed to the complex area of American Administrative Law concerning when and what kind of administrative acts the U.S. federal courts may review. A few weeks late, but nevertheless relatively timely, Forbes has published a short article about a case heading to the U.S. Supreme Court concerning an agency interpretation of federal law. The case concerns a recent Obama administrative rule broadening the definition of "waters of the United States." The term is found in the Clean Water Act, which gives the government the authority to prohibit landowners from building on certain land because of environmental concerns. According to Forbes:

The court’s decision to hear U.S. Army Corps of Engineers v. Hawkes Co. follows the Obama administration’s enactment of a new Clean Water Rule that puts millions of additional acres within the definition of “Waters of the U.S.” covered by the Clean Water Act. If the Supreme Court rules for the government in Hawkes, landowners will be left with a difficult choice if regulators decide their property contains wetlands: They can abandon all commercial use of it, apply for a permit with a high chance of being rejected, or risk ruinous fines and even jail if they modify the land.

Ultimately, this case boils down to the definition of "final agency action." As we learned in class, federal courts generally refrain from reviewing agency actions unless they are considered to be final. This short article is certainly worth a read. 

The Reach of Constitutional Rights

Prof. Noah Feldman recently started his Bloomberg View column with the question "can an American detained and allegedly tortured by the FBI at black sites outside the U.S. sue for damages? The answer: NO. As we discussed in my American Constitutional Law course, the rights found in the U.S. constitution only protect people when they are inside the boundaries of the country (with a few exceptions). Feldman explains why a recent court decision dealing with the question he poses was wrongly decided. It's worth a read. So is the blog post by Lyle Denniston at the blog Constitution Daily.

Disappearing Precedent

The Marshall Project recently ran a very informative news piece on its website about unpublished opinions. As students in my courses learn, not all court decisions turn into precedent. Of course, only the highest courts create binding precedent, and even their decisions can only be precedent if they are published. A court may choose to "unpublish" its opinion and in so doing the opinion will not be treated by future courts as precedent. At least most of the times. Those interested in understanding this oddity of American common law should read this short and informative article.

The Shadow of Korematsu

With all the overheated rhetoric coming from some Republican presidential candidates about how Muslims in America should be treated, one cannot help but think back to some of the darker episodes of American history where fear overran reason. Perhaps no other episode sticks out more than the internment of Japanese-Americans in the aftermath of the attacks on Pearl Harbor. While the internment was bad enough, the fact that the Supreme Court went along with such a policy is even more shameful, at least in retrospect.

Writing for the Court in the (in)famous Korematsu case, Justice Black said:

"It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can,"

For Black and the majority, the idea that there could be Japanese spies circulating among the populace in the immediate aftermath of a Japanese attack was sufficient justification to round up over 120,000 people and place them into camps. The case is still good law today, never having been overturned by the U.S. Supreme Court, and has actually been cited by a few American politicians as precedent for the idea of rounding up recent refugees from Syria. 

Students who are interested in learning more about the Korematsu case and how it relates to Syrian refugees are encouraged to check out a recent post over at the Constitutional Daily Blog as well as a recent article by Matt Ford of the Atlantic.

On sixteen occasions the office of the Vice President of the United States has been left vacant due to either : 1) resignation, 2) death or 3) succession to the presidency (because the President had died in office). Prior to the passage of the 25th Amendment, the office simply remained vacant until the next election. As the wikipedia page of the 25h Amendment notes:

With President John F. Kennedy’s assassination, the need for a clear way to determine presidential succession, especially with the new reality of the Cold War and its frightening technologies,^[14] forced Congress into action.^[14] The new President, Lyndon B. Johnson, had once suffered a heart attack,^[15] and the next two people in line for the presidency were Speaker of the House John McCormack,^[16] who was 71 years old,^[14] and Senate President pro tempore Carl Hayden,^[16] who was 86 years old.

In short, the situation was ripe for one of those rare moments when the country was ready and willing to amend its constitution. A mere six years after being added to the constitution, the amendment was tested with resignation of Vice President Spiro Agnew. To take his place President Richard Nixon selected Rep. Gerald Ford to be the new VP. Under the new amendment, his appointment needed to be confirmed by a majority of both houses of Congress. It was.

And just in time. An informative post on the Constitution Daily blog explains how another aspect of the 25th Amendment, the temporary replacement of the President, was also in play as the Watergate scandal was threatening the Nixon presidency.

Presidential Pardons

As is usually the case in late November, the press (even the German press) was filled with stories about the President exercising his pardon power. Of course, the pardon in this case was for a turkey, something that over the past several decades has become a tradition in the United States marking the beginning of the Thanksgiving holiday weekend. However, students in my constitutional law course know (or at least they should) that the president's power to pardon individuals is real and important. The Economist has a nice, short "explainer" regarding how this power works. Well worth the read.

The First American Constitution

At some point or another most of my students have heard me say that the constitution we study today in American Constitutional Law is actually America's second constitution. The first one, the Article of Confederation, were an abysmal failure, leading to its total repeal and replacement with what we now call the Constitution of the United States of America. So why did this first one fail? As usual, the National Constitutional Center has this question well covered with a post entitled "10 reasons why America's first constitution failed." A nice a short read that is worth your time. Check it out!

The Importance of Dissenting Opinions

Students in all of my courses are at one point or another confronted with dissenting opinions found in appellate court cases. While the dissenting opinion is a somewhat new feature of German constitutional jurisprudence, it has a long and storied history in American constitutional law. A recent short article in the magazine Reason underscores the importance of dissents.

Youngstown Steel Case

Last night in my Constitutional Law course we discussed the landmark Youngstown Sheet & Tube case. The National Constitution Center has a wonderful summary of the case and the various opinions filed in it. Students wishing to obtain a better understanding of the case should take a look at the post. There is also a link to a video shown on C-SPAN about the case.

The Origins of Judicial Review in the United States

Students of my American Constitutional law course, and to a lesser extent all my other courses, are aware that the U.S. Supreme Court is basically a constitutional court. However, a careful reading of Article Three of the U.S. Constitution shows that in fact the Supreme Court was not expressly given the power to review whether actions taken by the other two branches of government violate the constitution. As it turns out, the Court gave itself this power in perhaps the most important decision ever issued by the Court: Marbury v. Madison. C-Span has a video of a discussion concerning the history of this case and its impact. For all you American constitutional history junkies out there, this video is worth checking out.