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How Justice Alito is openly testing the bounds of judicial conduct
Nov 19 2020
Sarat is associate provost, associate dean of the faculty and a professor of jurisprudence and political science at Amherst College. Aftergut is a former federal prosecutor in San Francisco.
<p>Last week, Justice Samuel Alito <a href="https://reason.com/volokh/2020/11/12/video-and-transcript-of-justice-alitos-keynote-address-to-the-federalist-society/" rel="noopener noreferrer" target="_blank">delivered</a><a href="https://www.washingtonpost.com/politics/2020/11/13/samuel-alitos-provocative-unusually-political-speech/" rel="noopener noreferrer" target="_blank"> </a>a rousing keynote address to the annual convention of the Federalist Society, arguably the nation's most influential conservative legal group. </p><p>The speech was starkly different from the <a href="https://www.usnews.com/news/the-report/articles/2017-06-02/supreme-court-justices-blur-lines-with-political-speeches" rel="noopener noreferrer" target="_blank">guarded public pronouncements</a> that are the usual fare from members of the Supreme Court. Instead, it was a full-throated attack on policies and judicial decisions that, he contended, grant too much power to government agencies charged with protecting public health — and further threaten religious liberties already under assault.</p><p>Afterward, one could hardly be blamed for musing on the <a href="https://www.sup.org/books/title/?id=9538" rel="noopener noreferrer" target="_blank">hypocrisy</a> of Supreme Court nominees who regularly claim they have no political agenda only to pursue such an agenda once they've secured confirmation. It was only last month when the nation witnessed this charade at the Senate Judiciary Committee, with Amy Coney Barrett <a href="https://www.cbsnews.com/live-updates/amy-coney-barrett-supreme-court-senate-confirmation-hearings-day-2-recap/" rel="noopener noreferrer" target="_blank"> repeatedly assuring the committee</a> that "I have no mission and no agenda. Judges don't have campaign promises." </p><p>Like the newest justice, Alito at his 2006 confirmation hearings promised his political views <a href="https://www.govinfo.gov/content/pkg/GPO-CHRG-ALITO/pdf/GPO-CHRG-ALITO.pdf" rel="noopener noreferrer" target="_blank">would be irrelevant</a> to his work on the high court. Then on a federal appeals court, he contended there is a stark difference between being a judge and an advocate who "has the goal of achieving the result that the client wants within the bounds of professional responsibility." A judge, he said, "doesn't have an agenda, and a judge has to follow the law." </p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>And when asked if he agreed with a series of Supreme Court rulings, or continued to subscribe to previous criticisms of other decisions, he consistently. <a href="https://fas.org/sgp/crs/misc/R41300.pdf" rel="noopener noreferrer" target="_blank">refused</a> to answer. He insisted he could not comment on cases or issues that might come before the court, lest he be seen as prejudging them.</p><p>Such reticence vanished before the Federalist Society. Alito unburdened himself of grievances, legal and political. And he freely talked about issues already on the Supreme Court docket. He seemed untroubled skating up to the line of ethics rules <a href="https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges" rel="noopener noreferrer" target="_blank">requiring</a> judges to remain impartial, to avoid any appearance of bias and to avoid public comment on the merits of any pending matter. </p><p>About state public health measures attempting to curb the spread of the coronavirus, he observed that "the pandemic has resulted in previously unimaginable restrictions on individual liberty" and asserted that "We have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020."</p><p>Abandoning the posture he assumed at his confirmation hearings, Alito specifically criticized his own court's recent refusal to stop restrictions imposed by two states to fight Covid-19 — measures, he contended, that "blatantly discriminated against houses of worship."</p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>Those cases reveal what he called "emerging trends in the assessment of individual rights" by the court. "It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right." </p><p>The justice proudly proclaimed his belief in the virtues of the 1993 law dubbed the <a href="https://www.congress.gov/bill/103rd-congress/house-bill/1308" rel="noopener noreferrer" target="_blank">Religious Freedom Restoration Act</a>, even as the court is <a href="https://www.forbes.com/sites/nicksibilla/2020/10/05/the-trump-administrations-surprising-attack-on-religious-freedom-reaches-the-supreme-court/?sh=3c516d395b79" rel="noopener noreferrer" target="_blank">currently considering</a> a case that could curtail its reach.</p><p>And in discussing the <a href="https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/not-a-masterpiece/" rel="noopener noreferrer" target="_blank">2018 case</a> of a Colorado baker who refused on religious grounds to sell a wedding cake to a gay couple, the justice declared such treatment caused the couple no harm because a nearby baker provided them a "free cake." He professed that view even though a similar issue involving religious freedom and discrimination against same-sex couples <a href="https://www.oyez.org/cases/2020/19-123" rel="noopener noreferrer" target="_blank">is also pending in his courthouse</a>. </p><p>Warming to another conservative legal <a href="https://www.nytimes.com/2019/06/21/opinion/sunday/gundy-united-states.html" rel="noopener noreferrer" target="_blank">cause celebre</a>, Alito cited what he called the "disturbing trend" of the <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2645036" rel="noopener noreferrer" target="_blank">growing power of federal regulatory agencies</a>. Again, he spoke while the <a href="https://www.scotusblog.com/2020/07/before-the-summer-recess-one-last-set-of-grants/" rel="noopener noreferrer" target="_blank">court's docket</a> now has cases testing the authority of the Federal Communications Commission, the Federal Housing Finance Agency and the Federal Trade Commission. </p><p>"Every year," the justice complained, "administrative agencies acting under broad delegations of authority churn out huge volumes of regulations that dwarf the statutes enacted by the people's elected representatives." Echoing the Trump administration's paranoia about a "<a href="https://democracyjournal.org/magazine/specialissue/blaming-the-deep-state/" rel="noopener noreferrer" target="_blank">deep state</a>" and its <a href="https://www.nature.com/articles/d41586-018-05706-9" rel="noopener noreferrer" target="_blank">hostility to science</a>, Alito decried what he called "government by executive officials."</p><p>These are hardly the words of a justice without an agenda. Indeed, they seem to be a rallying cry for the Supreme Court's newly augmented conservative majority to use its power <a href="https://newrepublic.com/article/156207/plot-level-administrative-state" rel="noopener noreferrer" target="_blank">to curtail</a> the power of government agencies responsible for protecting public health and safety and to advance the libertarian cause.</p><div></div><p>As Gabe Roth of <a href="https://fixthecourt.com/" rel="noopener noreferrer" target="_blank">Fix the Court</a>, a nonprofit group that has called for stricter ethics rules for the Supreme Court, <a href="https://www.nytimes.com/2020/11/13/us/samuel-alito-religious-liberty-free-speech.html" rel="noopener noreferrer" target="_blank">rightly noted</a>, the speech "was more befitting a Trump rally than a legal society." It provides yet another occasion for Americans to wonder whether our judges can be trusted when they claim that they are merely neutral arbiters of the law. </p>
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A modest proposal for taking partisanship out of the federal judiciary
Nov 18 2020
Patton was the Democratic governor of Kentucky from 1995 to 2003 and has been chancellor of the University of Pikeville for seven years.
<p>Our very wise Founders established a method for the people to have a direct way to be involved in the selection of our president and our Congress. Then they provided for the two of them to select our federal judiciary. That worked well for almost 200 years. It is failing us now.</p>
<p>There are a few hot-button social issues about which this nation is passionate and divided. Among these are abortion rights, gun rights, gay rights and the separation of church and state. All these issues have and may still come before the Supreme Court. They are all important issues that impact people in very serious ways, but the future of the nation does not depend on them. The important issues that threaten the nation are the national debt, the economy, the federal budget, crime, defense, healthcare and Social Security — things that affect all of our lives every day. </p>
<p>The nation is so divided that we cannot make a rational decision on these important issues.</p><p>A major reason is the selection of the federal judiciary. It seems many people vote on these issues, even when they disagree with their preferred candidate on other, more important issues. His stated opposition to abortion was crucial to Donald Trump's election four years ago.</p>
<p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Justices on the high court, and judges on the federal appeals and trial courts, are now selected by presidents mainly because they are either a liberal or a conservative. We now have a Supreme Court with five reliable conservatives, three reliable liberals and one not always reliable conservative. We should have courts where personal beliefs are not an issue. Judges should not be known as liberals or conservatives. Judges and justices should not be selected based on their social beliefs, but instead on their demonstrated willingness to decide issues based on the Constitution and federal law.</p>
<p>This is a national crisis. Article III of the Constitution is obsolete. The only solution is to remove the involvement of the two other branches of the federal government in populating the third branch.</p>
<p>The Constitution makes one of the most important parts of our system of government, the privately owned free press, a bedrock of our system, not beholden to the two elected branches, but rather the watchdog of those two branches. Genius. It has worked pretty well. A lot of misinformation is out there but enough rebuttal is available to permit concerned citizens to discern the truth.</p>
<p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>We need to do the same with the federal court system. Turn it over to the American Bar Association. This voluntary organization's members are educated, by and large ethical, and representative of the people. There are about 1.3 million licensed attorneys in the United States. They can protect the people of the nation as well as the free press can. Let's trust them.</p><p>I propose the federal judiciary be a career path for young lawyers to pursue. There are now 94 trial court districts with 667 judges and 13 courts of appeal with 167 judges. There is one Supreme Court with nine justices — for now. This is at least 843 highly compensated and secure positions for ambitious and talented young attorneys to aspire to. The courts will continue to expand. There will be more judicial positions in the future.</p><p>I propose that the district judges be selected by the licensed attorneys who practice in that district, using secret ballots to select among all qualified attorneys who apply for each vacancy. I would have runoffs between the top two finishers — who would have to be 35 years old with five years of experience as a trial attorney. They could serve until they turned 65 and have retirement benefits for life.</p>
<p>Circuit appeals court judges, in turn, would be similarly selected — but by the district judges in the relevant circuits, choosing from trial court colleagues who want the job. These judges would need to be at least 40 and have been on the bench at least five years when they're promoted, and would have to step aside at age 70.</p>
<p>One proposal for expanding the Supreme Court calls for increasing it to 17 justices and having cases reviewed by subgroups of them but subject to a discretionary later hearing by the full court — the general practice on the appeals courts now. Sounds like a good idea to me.</p>
<p>The eight new justices, and replacements for the current nine, would be selected by all the lower court judges. Judges with at least five years on an appeals court could apply. The top two finishers in the first round of voting would go on to a runoff, and the winner could serve until age 75.</p>
<p>There are about 8,000 new cases filed in the Supreme Court each year. It hears about 80 of them (1 percent, in other words) and disposes of about 100 more without full review. So there are many cases that someone thinks is worth spending a lot of money on but which don't get a fair hearing. This proposal would allow many more cases to get at least an initial high court review.</p>
<p>This will be seen as stacking the court, but changes like this only occur during times of crisis. We have a crisis about selecting judges and justices — and it is destroying the ability of the nation to come together on a lot of other, very serious issues. </p>
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What the courts can (and can't) do to decide the election
Nov 04 2020
Organizer: McCourtney Institute for Democracy at Penn State
President Trump has made it clear that the Supreme Court is part of his strategy for winning another term. But how much say do the courts really have when it comes to reviewing claims of voter fraud and deciding who the next president will be? Are we looking at another Bush v. Gore this year?
Michael Nelson, the Jeffrey L. Hyde and Sharon D. Hyde and Political Science Board of Visitors Early Career Professor in Political Science and affiliate faculty at Penn State Law, will discuss these questions and more during a virtual Q&A session.
Location: Webinar
Drew Angerer/Getty Images
Joe Biden unveiled a full slate of political reforms early in the campaign but has spent minimal time talking about these issues in recent months.
While you wait: What a Democratic sweep would mean for democracy reform
Nov 02 2020
American democracy has taken a beating over the last four years, but Election Day may set the table for historic reforms.
The severe stress test for democratic norms can be counted on to further intensify if President Trump gets re-elected. Continuation of a divided Congress would likely perpetuate gridlock on most policy fronts. But should Joe Biden win the White House, and the Senate turn Democratic as well, the new president would take office with an ambitious stack of ready-to-go democracy reform bills on his desk — all of them strongly backed by Democrats newly in control of the entire Capitol.
And those sweeping overhauls of the laws governing campaign financing, voting rights, gerrymandering, executive branch ethics, the courts and even the inner workings of Congress would all be both on the table and viable. The question would be how high they would be on a Biden priority list and how much political capital he and his congressional allies would be willing to spend to get them done.
<p>"As dispiriting as it can be how frustrated Americans have become with politics, their anger actually is a source of hope," says Rep. John Sarbanes, the Maryland Democrat who was the main sponsor of HR 1, the catchall election process, government ethics and money-in politics package that died in the GOP Senate right after the House passed in early 2019. "Because the fact that they're angry means they still care enough about their democracy to want to see it change and improve."</p>
<p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>To Sarbanes, the voter protections and big money curbs long central to the democracy reform movement remain the most urgent, and the most likely to top Democrats' agenda in the new Congress. </p>
<p>But Trump's four-year assault on democratic norms and institutions has fueled bipartisan support for a new class of reforms aimed at ending self-dealing, cronyism, foreign collusion and other ethics abuses in the executive branch. Talk of expanding the Supreme Court and bestowing statehood on D.C. and perhaps Puerto Rico is mobilizing progressives. </p>
<p>And the Senate's legislative filibuster may also get toppled if Democrats take over and Republicans refuse to cooperate early on. That change would please those who view those supermajority rules as a relic of a Senate culture that's long gone, and as a recipe for the partisan deadlock that has fueled congressional dysfunction. It also would likely be needed to get most fix-the-system bills past GOP opposition and under a President Biden's pen.</p>
<p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>The obstacles to changing ethics and election laws remain as formidable as ever. Even reform-minded Democrats this year embraced deep-pocketed outside groups that helped push election spending past <a href="https://www.opensecrets.org/news/2020/10/cost-of-2020-election-14billion-update" rel="noopener noreferrer" target="_blank">a record-shattering $14 billion</a>, double what was spent on presidential and congressional contests just four years ago. Bitter lawsuits over voting this year attest to the difficulty of expanding access to the ballot. And partisan divisions tend to flare most heatedly around the rules of the political game. </p>
<p>But the depth of the nation's democracy crisis may be precisely what ushers in change. Trump's norm shredding, the coronavirus pandemic, the resulting recession, heightened reckoning with systemic racism, income inequality fueled by tax cuts and bailouts for the super rich, efforts in many states to suppress the vote this fall — all have riled up the electorate this year, and not just on the left.</p>
<p>Voters are voicing growing unease that rigged rules are keeping an out-of-touch minority in power. Republicans' rush to install Justice Amy Coney Barrett on the Supreme Court was the latest evidence of this cited by Democrats, and it has boosted their fundraising and Senate hopes — along with their ambitions for reform.</p>
<p>"Our political system has so clearly failed the people that the environment will be ripe for a big transformative package to make our government work for all of us," Deirdre Schifeling, campaign director for the progressive coalition Democracy For All 2021, <a href="https://www.theguardian.com/us-news/2020/sep/28/democracy-america-trump-biden-election" rel="noopener noreferrer" target="_blank">told</a><a href="https://www.theguardian.com/us-news/2020/sep/28/democracy-america-trump-biden-election" target="_blank"> The Guardian</a>.</p>
<p>Biden unveiled a full slate of political money, lobbying and ethics reforms early in the campaign and much of the consensus democracy reform agenda earned a place in the <a href="https://www.demconvention.com/wp-content/uploads/2020/08/2020-07-31-Democratic-Party-Platform-For-Distribution.pdf" target="_blank">party platform</a>. But since <a href="https://thefulcrum.us/big-picture/joe-biden-agenda" target="_self">ticking those boxes</a> he and his running mate, Sen. Kamala Harris of California, have spent minimal time talking about these issues during the fall campaign — beyond professing their support for an election that gives Americans many options for voting and doesn't block them from the polls.Biden would face <a href="https://thefulcrum.us/democracy-reform-groups-to-biden-dont-you-forget-about-us" target="_self">considerable pressure</a> from good governance advocates to try to deliver in his first 100 days — and he could, if he decides he can do that while also potentially moving to combat the pandemic, stimulate the economy, address the health care system's shortcomings and curb climate change.<br></p>
<p>Those are big "ifs." But democracy advocates see an analogy to the Watergate era, which also ushered in historic reforms. If the stars align for Democrats, here's what their reform agenda would look like:</p>
<p><strong>Curb special interests. </strong>Democrats would immediately revive the "For the People Act," the other name for HR 1, the sweeping package of voting, ethics and campaign finance reforms the House passed entirely along party lines in March 2019. The bill would modernize voter registration, take aim at voter suppression and gerrymandering, strengthen ethics laws, expand lobbyist disclosure and inject new transparency, tougher limits and public money into campaign financing, among other measures.</p>
<p><strong>Restore voting rights. </strong>The afterglow of the election would spur a new push to update the <a data-linked-post="2636710625" href="https://thefulcrum.us/voting-rights-act" target="_blank">Voting Rights Act</a>. The bill the House <a href="https://thefulcrum.us/voting-rights-act-2641537798" target="_self">passed last year</a> has since been renamed after the late civil right icon and Georgia congressman John Lewis. The legislation would revive the racial discrimination protections enshrined in the original 1965 landmark law — by once again requiring states with histories of voter suppression to get federal permission to change any election rules. The old rules for this "<a data-linked-post="2636699867" href="https://thefulcrum.us/preclearance-voting-rights" target="_blank">preclearance</a>" were struck down seven years ago by the Supreme Court.</p>
<p><strong>End presidential abuses. </strong>In September the Democrats in charge of seven House committees unveiled the Protecting Our Democracy Act, <a href="https://thefulcrum.us/democracy-reform-237909823" target="_self">their plan for curbing</a> executive branch balance-of-power abuses after Trump is gone. The measure would regulate presidential pardons, enforce bans on foreign contributions and expedite enforcement of congressional subpoenas. It echoes some of the bipartisan reforms outlined by Bob Bauer, a White House counsel in the Obama administration, and Jack Goldsmith, who served in the Justice Department under President George W. Bush, <a href="https://www.nytimes.com/2020/10/20/us/politics/trump-washington-reforms.html?referringSource=articleShare" rel="noopener noreferrer" target="_blank">in their new book</a> "After Trump: Reconstructing the Presidency." </p>
<p><strong>Strengthen Congress.</strong> While the rest of Congress bickered, a bipartisan Select Committee on the Modernization of Congress quietly but with <a href="https://thefulcrum.us/congress/select-committee-on-the-modernization-of-congress" target="_self">rare bipartisan unanimity</a> approved 97 ideas to make the House more efficient, transparent and responsive to voters. Key recommendations include technology and staffing upgrades, strengthening congressional committees and executive branch oversight and overhauling the budget process. Many of <a href="https://modernizecongress.house.gov/final-report" rel="noopener noreferrer" target="_blank">these ideas</a> would need to be turned into House rules or legislation next year.</p>
<p><strong>Limiting minority power. </strong>Curbing or downright ending the legislative filibuster, which allows 40 senators (almost always from the minority) to block a bill, would get intense scrutiny the first time the Senate GOP refuses to negotiate on a high-profile measure. Democrats may also decide that — in part to counterbalance the 22 Republican senators reliably elected from states with 5 percent of the population — it's time to make states out of much more Democratic and ethnically diverse D.C. and Puerto Rico. And they would frame talk of adding more seats to the Supreme Court, or limiting justices' terms, as a way to curb conservative dominance at a time the country is not so conservative.</p>
<p>And if Trump wins? Or if Republicans retain the Senate? Democracy reforms would be put off, but the impetus for them would continue to grow. History tells us that scandals tend to usher in cycles of change. As Sarbanes puts it: "It's when you reach these points of high frustration in the electorate, and a sense that things are fundamentally broken, that you have the opportunity to come in with significant reform."</p>
<p><em>Carney is a contributing writer.</em></p>
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