The Balance of the Supreme Court

” […] and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, […]” Article 2, Section 2, Clause 2 of US Constitution

Word broke late on Friday of the death of Supreme Court justice Antonin Scalia. The death of the conservative justice during an election year is bound to have great ramifications.

Even before the Supreme Court had officially announced the passing of Justice Scalia, Senator Ted Cruz (R-TX) tweeted out that the next President gets to pick his replacement instead of President Obama.

Justice Scalia was an American hero. We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.

— Ted Cruz (@tedcruz) February 13, 2016

When Republicans took control of the Senate last year, Senate Majority Leader Mitch McConnell (R-KY) stated that there would be few if any votes on any of Obama’s nominations still awaiting for the Senate’s confirmation with the exception of a Supreme Court vacancy. (The Senate did confirm a few State Department officials within the past week though.)

Now, however, Senate Majority Leader McConnell is talking differently as he states that the American people should have a voice in the next justice with the upcoming election.

The American people should have a voice in the selection of their next Supreme Court Justice. #Scalia https://t.co/QXHfOpEY6G

— Leader McConnell (@SenateMajLdr) February 14, 2016

One has to wonder if Republicans would be singing the same tune if the President was a Republican instead of a Democrat. The Court is narrowly split and a new justice appointed by President Obama could shift it in the opposite direction.

In 2005, Senator McConnell defended the absolute right of a sitting President to nominate judges, stating, “The Constitution of the United States is at stake.  Article II, Section 2 clearly provides that the President, and the President alone, nominates judges.  The Senate is empowered to give advice and consent.”

Keep in mind that the next President will not be sworn in until January 2017, just under a year away. The longest confirmation hearing in modern times was Justice Clarence Thomas at 100-days. This would be triple the amount of time just to wait for a nomination let alone the confirmation hearing and a vote.

President Obama is within his constitutional right to put forth a nominee, and the Senate has the duty then to hold confirmation hearings and to hold a vote. It doesn’t matter if it’s an election year or not.

In January 1801, in the wake of the 1800 election, President John Adams nominated John Marshall to be Chief Justice. Marshall was confirmed by the Senate within a few days much to the chagrin of the incoming Jeffersonian Republican majority.

In 1987, President Reagan nominated Anthony Kennedy to fill a vacancy in the Supreme Court. Kennedy was confirmed in February 1988 (an election year) by a 97-0 vote in which Democrats held the majority in the Senate.

Senator Elizabeth Warren (D-MA) called out the hypocrisy of her GOP colleagues in refusing to even consider a nominee by President Obama. She went on to state that they all took the same oath and shouldn’t abandon their duties.

I can’t find a clause in the Constitution that says “…except when there’s a year left in the term of a Democratic President.”

— Elizabeth Warren (@SenWarren) February 14, 2016

President Obama has already stated that he will be making a nomination to fill Scalia’s seat as is his right to do so and names are already circulating. It will be up to the Senate to prove that it can perform its constitutional duties or whether they are willing to hold the third branch of government hostage to politics.

There is no doubt that Justice Scalia’s death brings the issue of Supreme Court nominations into the 2016 election. And though we are reminded of this issue in the most tragic of ways, it deserves more than just a partisan soundbite. The President and the Senate have a constitutional responsibility at this point, and they need to step it up.

How Much “Political Speech” Can You Buy?

The ruling by the Supreme Court in the case McCutcheon v. FEC could have been predicted.  This is the same court that gave us the ruling on Citizens United v. FEC (with the exception of Elana Kagan replacing John Paul Stevens).  Where Citizens United determined that corporations and unions are people and that money is equal to the freedom of speech, the McCutcheon verdict goes a step further by striking down maximum limits on campaign contributions.

The McCutcheon verdict actually overturns a 1976 ruling in the case Buckley v. Valeo in which the court ruled that independent spending is political speech and is protected by the First Amendment; however, contributions could be capped in order to prevent corruption.  The campaign limits were put in place by Congress following the Watergate scandal to discourage large contributors from buying votes and to restore faith into the system.

So what are the specifics of this latest ruling?  The McCutcheon ruling only concerns contributions from individuals.  There are still laws in place that affect corporations and unions in this particular instance.  And it does not undermine limits on individual contributions to candidates for President and Congress which is currently set at $2600 per election.

The ruling states that individuals have the right to give the legal maximum amount to candidates for Congress and president (as well as to the parties and PACs) without worrying that they will come up against the limit placed on all contributions which is placed at $123,200 for the 2014 election.

Chief Justice John Roberts, writing for the majority, stated, “There is no right in our democracy more basic than the right to participate in electing our political leaders.”  Justice Clarence Thomas, in agreement with the Chief Justice, wrote his own opinion stating that he would have rather had wiped out all contribution limits.

So apparently our republic is open to those who have deeper pockets.  This is nothing that is really new.  In the later decades of the 1800s (after the Civil War), politicians were controlled by Tammany Hall in New York City.  This would even continue into the beginning of the 20th century when the wealthy industrialists of the day had more clout than even the President.

Since the 2010 ruling in Citizens United, we have seen what an influx of money can do in an election.  The money spent in the 2012 election cycle was by far greater than any election to date, and it is very likely that the 2016 election will break that record as even more campaign finance limits have now been struck down.

It is technically illegal to bribe an elected official, and it is illegal for for an elected official to accept that bribe.  However, with these latest rulings (Citizens United and McCutcheon), is this any different than just legal bribery?  The more money you have, the more “political speech” you possess… or at least that is what they want you to think.  In reality, the more money you have and can contribute, the more you can buy that vote or influence that party platform.

Justice Breyer wrote in his dissent that “If the court in Citizens United opened a door, today’s decision may well open a floodgate.”  Considering the aftermath of Citizens United, he is probably correct.  Our elections will no longer service the people as a whole, just those with the deepest pockets.  And it will continue to disenfranchise more voters and drive them away from the polls.

Null and Void: Unconstitutional Laws

In my last article, I wrote of the Executive Branch’s responsibility to enforce all laws passed by the legislature.  Failure to do so means that the Executive (whether Governor or President) is not doing his or her job.  However, I was at dinner the other night with a friend that studies constitutional law when she posed this question in response.  If a law is passed by the legislature that is in clear violation of the US Constitution (or even a state constitution), does the Executive have a responsibility to still enforce the law?

PREVIOUS ARTICLE: Executive Responsibility to Enforce Laws

My response to her question was to quote conservative columnist George Will who once stated on This Week with George Stephanopoulos that no law is unconstitutional until it is ruled so by the courts.  And though my response seemed to move the conversation in an entirely different direction, it still had my mind thinking about it.

According to the legal encyclopedia American Jurisprudence,

“The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed … An unconstitutional law is void.” (16 Am. Jur. 2d, Sec. 178)

Though in my previous article, I was basically discussing the topic of same-sex marriage, in this instance I will use a couple of other topics.  Let’s say a state legislature decides to take away a woman’s right to vote or brings back segregation laws.  The nation has already decided these two issues.  A woman is guaranteed the right to vote via the 19th Amendment to the US Constitution.  And segregation laws were ruled unconstitutional based on the Equal Protection Clause of the 14th Amendment.

So are these laws automatically unconstitutional  or do they need to be ruled so by the courts yet again since they pertain to different laws?  This is also somewhat being played in the Religious Freedom bills that are coming up in states like Arizona that would allow people/businesses with severe religious convictions to deny services to LGBT people.

These laws would seem to be quite similar to the old segregation laws and would be in clear violation of the Equal Protection Clause of the 14th Amendment in the same way.  So if they are enacted, does the Governor or state Attorney General have the responsibility to defend these laws in court?  The definition found in the American Jurisprudence would indicate ‘no’ since the law is already null and void.

When it comes to the federal Executive (the President), remember the oath of office he/she must take: “[…] preserve, protect and defend the Constitution of the United States.”  And though the oaths of office for the various state governors might be different, they are still similar in their overall message… to uphold their state constitution and must still uphold the US Constitution as no law may violate that document.

Some laws are a bit murkier, and the courts need to make a decision regarding its constitutionality.  But when it comes to laws that are in clear violation, it would seem the government doesn’t really have the responsibility to defend the law in court (or even enforce the law) as the law is already null and void from the start.

The Rights of the People

Prop 8: Majority Rule Of Minority Rights

Today the Supreme Court of the United States (SCOTUS) is hearing the case regarding the constitutionality of California’s Proposition 8 (Prop 8) which made same-sex marriages in the state illegal.  Two lower courts have overturned the proposition, so the question of whether the Supreme Court could intervene was brought into question since the lower court’s ruling was not overturned by the Appeals Court.  Also called into question was whether the federal courts could decide an issue that was based solely in the states which would be based on 10th Amendment to the US Constitution.  (SCOTUS blog)  However, SCOTUS is hearing the case and will be making its ruling later this year.  It could indeed overturn the lower courts on the grounds of the 10th amendment, but it’s not likely since there has been a precedent set by such cases as Lawrence v. Texas, Romer v. Evans, Loving v. Virginia, and even Brown v. Board of Education.

Though the Appeals Court did not overturn the lower court’s ruling, there was a difference between the two.  The lower court ruled that a majority vote cannot strip away the rights of a minority.  Basically, this would make all constitutional bans on same-sex marriage null and void if upheld and not just California’s Prop 8.  The Appeals Court would rule that it just applied to California and to no other state because same-sex marriages were legal before Prop 8 was passed thus stripping away the rights once they had been granted; whereas, other states simply banned same-sex marriage before it became legal.  So there are two ways for the Supreme Court to rule if it upholds the lower courts.

We’ll start with the lower court’s ruling that a majority vote cannot strip away the rights of a minority thus making all the state constitutional bans unconstitutional.  Thomas Jefferson would have disagreed with this notion.  He felt that since we had such a diverse population that the will of the majority should always be upheld since it would be void of outside influence and would point the nation in the best possible direction.  However, we have the luxury of a bit more history to look back on than Mr. Jefferson did.  We can see that the will of the majority is not always correct.  Case in point the Territory of Wyoming.  When the territory was set up in 1868, it included the right for women to vote.  This was long before the passage of the 19th Amendment (1920).  When Wyoming applied for statehood, the federal government said it would have to get rid of its suffrage in order to be admitted since the rest of the US didn’t allow women to vote, and it was still the majority opinion that they shouldn’t.  The territorial government refused to budge and said it would wait for the rest of the country to catch up.  Wyoming would be admitted in 1890 as the 44th state without giving up the right for women to vote in the state.

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  9th Amendment

In Afroyim v. Rusk (1967), the Supreme Court ruled that Congress could not strip away a person’s citizenship which is guaranteed under the Citizenship Clause of the 14th Amendment.  With this ruling though, the court was stating that once you have a right, it cannot be stripped away.  In Brown v. Board of Education (1954), the Supreme Court ruled that states could not establish separate schools for black and white students (state-sponsored segregation).  As a result, racial segregation in all matters was ruled to be in violation of the Equal Protection Clause of the 14th Amendment.  It did not matter if a state had passed segregation laws or not.  The case Griswold v. Connecticut (1965) set the legal precedent for the 9th Amendment to the US Constitution.  Though the case pertained to a person’s right to privacy, the ruling had something more to it.  In writing his concurring opinion, Justice Arthur Goldberg stated, “Other fundamental personal rights should not be denied protection simply because they are not specifically listed [in the US Constitution].”

The Supreme Court has already ruled that government cannot ban interracial marriage (Loving v. Virginia, 1967), so what would be the difference between that ruling and the ruling to come regarding Proposition 8?  Opponents to interracial marriage were making the same arguments then that opponents to same-sex marriage are making now.  It’s not so much whether Prop 8 is going down or not.  The real question is going to be how and the full effect of that ruling.  Will it be more in line with Afroyim and thus would technically only apply to the state of California (since they are the only state to strip away the right to same-sex marriage after it was granted), or will it be more toward the Brown and Griswold rulings which would negate all same-sex marriage bans?  Though it has been completely overlooked, will the precedent set by the 9th Amendment come into play as much as the Equal Protection Clause of the 14th Amendment?  These questions will be answered in a few months when the court’s decision is announced, but it will be felt for ages to come.

UPDATE:
Prop 8: Oral Arguments – Audio
Prop 8: Transcript

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