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To amend the Constitution to reverse the Citizens United Decision will take 2/3 of the House and Senate and 3/4 of the states to ratify it. This ill-fated Amendment has no chance. But to appoint a single Justice, and potentially sway the balance of the Supreme Court, takes only 51 votes in the Senate. The latter approach is much easier. Democratic candidate Bernie Sanders has imposed a litmus test, promising to only appoint Justices who vow to overturn Citizens United.

Sanders offered this promise:

“My nominees to the U.S. Supreme Court will in fact, have a litmus test and that test will be that they will have to tell the American people that their first order of business on the Supreme Court will be to overturn Citizens United.”

I’m glad Sanders thinks Justices can overturn cases whenever they wish, as an “order of business.” Democratic candidate Hillary Clinton offered a less direct, but equally apparent litmus test:

“I will do everything I can do to appoint Supreme Court justices who will protect the right to vote and not the right of billionaires to buy elections,”

The irony of Clinton opposing a case that protected the right of a group to make a movie critical of her is too rich.

The Legal Ethics Forum comments on the appropriateness of such a litmus test:

While ideological screening of Supreme Court nominees by Presidents is the norm and privately administered litmus tests probably not uncommon, Senator Sanders goes one step further. He would require that nominees publically commit to case outcomes. Presumably, nominees would “tell the American people” about their specific commitments at a press conference or other public event, or at least in a signed statement made available to the press.

Sitting judges in jurisdictions that have adopted Rule 2.10(B) of the ABA Model Code of Judicial Conduct may have difficulty making the commitment required by Sanders. Rule 2.10(B) prohibits a judge from making pledges, promises, or commitments inconsistent with judicial impartiality in connection with cases, controversies, or issues likely to come before the court. But President Sanders could easily select a judge from a jurisdiction that has not incorporated Rule 2.10(B) into its judicial code or nominate a lawyer employed outside of the judiciary. And that nominee would be under no legal or ethical duty to refrain from making commitments on any number of issues, controversies, and cases. There is no code of judicial conduct applicable to Supreme Court Justices much less a code applicable to nominees for that office.

Of course, once on the Court the new Justice would be subject to the federal disqualification statute which requires recusal from cases in which a judge’s impartiality might reasonably be questioned. But this should not be much of a roadblock since Supreme Court Justices decide their own recusal motions.

 

This may be the first time a candidate has openly admitted to a litmus test. The notion of a litmus test came up during the 2012 VP debate between Paul Ryan and Joe Biden, and Biden vehemently rejected it.:

MS. RADDATZ: I want to go back to the abortion question here. If the Romney-Ryan ticket is elected, should those who believe that abortion should remain legal be worried?

REP. RYAN: We don’t think that unelected judges should make this decision; that people, through their elected representatives and reaching a consensus in society through the democratic process, should make this determination.

VICE PRESIDENT BIDEN: The court — the next president will get one or two Supreme Court nominees. That’s how close Roe v. Wade is.

Just ask yourself: With Robert Bork being the chief adviser on the court for — for Mr. Romney, who do you think he’s likely to appoint? Do you think he’s likely to appoint someone like Scalia or someone else on the court, far right, that would outlaw Planned — excuse me — outlaw abortion? I suspect that would happen.

I guarantee you that will not happen. We picked two people. We picked people who are open-minded. They’ve been good justices. So keep an eye on the Supreme Court —

REP. RYAN: Was there a litmus test on them?

VICE PRESIDENT BIDEN: There was no litmus test. We picked people who had an open mind, did not come with an agenda.

Disclosure: I have advised the Rand Paul campaign.

Oyez, oyez oyez! Happy first Monday! Today LexPredict has launched the 7th Season of FantasySCOTUS. Continuing our successes from last year, FantasySCOTUS is sponsored by Thomson Reuters. If you’ve played before, or are new to the competition, sign up and start predicting cases. If you haven’t we have three new reasons to join.

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One of the themes I develop in Collective Liberty is how the secularization of our society will weaken statutory protections for religious organizations.

YouGov has released a poll that reflects this secularization trend.

The American public is split right down the middle on the thorny issue of whether or not religious organizations should be exempt from taxation. 40% of Americans think that they should be exempt, while 40% think that they should not be. There is a strong partisan element to opinion on this issue, though a significant minority among both Republicans and Democrats disagree with the majority opinion of their fellow partisans. Democrats oppose tax exempt status for religious organizations 52% to 32% while Republicans support it 57% to 25%. Independents are effectively split, with 40% saying that religious organizations should not be tax exempt and 36% saying that they should be.

This trend speaks to the the thorny issue of tax-exempt status for religious organizations that do not perform same-sex marriages. Justice Kagan aptly explained during oral arguments in P that no church or temple can be forced to perform same-sex marriages–that would be a violation of the free exercise clause. But as an exchange between Justice Alito and the Solicitor General elucidated, whether such houses of worship can maintain their tax-exempt status is “going to be an issue.” Looking abroad, a think tank in New Zealand has already proposed eliminating religious organizations automatic tax-exempt status.

I don’t think this “issue” starts at the top with the IRS eliminating federal tax-exempt status. Rather, I think this begins with local municipalities voting to rescind sales and property tax exemptions–these are true lifebloods to churches, synagogues, and mosques in areas with high sales and property taxes. We are already seeing jurisdictions exclude religious organizations from supervising adoptions, because they will not place children with same-sex couples. In certain progressive enclaves, even today, I can see a city counsel, approving a measure that denies tax-exempt status to any non-profit that does not comply with the local non-discrimination ordinance. Ultimately, progressive states that have RFRAs on the books will soon repeal them (I’m looking at you Connecticut), and then we are left only with the Free Exercise clause as envisioned by Justice Scalia in Smith–which provides very little protection at all.

This isn’t even a 50-50 issue today. If a majority of Democrats today oppose tax-exempt status, that number will likely continue to grow as Obergefell becomes more settled, and the notion strengthens that the government should not subsidize to the tune of billions of dollars a year those who do not conform to prevailing societal norms.

In January, I will be speaking at the AALS Constitutional Law Panel on “Resistance and Recognition,” alongside Erwin Chemerinsky (U.C. Irvine), Charlton C. Copeland (Miami), Martha L. Minow (Harvard), and Rachel F. Moran (UCLA). Here is a description of the event.

With the Supreme Court reaching a tipping point in terms of its composition, and the Court’s opinions renegotiating the parameters of reproductive justice, racial justice and same-sex marriage under the 14th Amendment, voting rights, political equality, and the scope of federal authority relative to state authority, our goal with this program is to create a space to discuss the overall issue of resistance and recognition. What does resistance and recognition mean? Are they even possible, and if so, under what conditions? Are we limited to the forms of resistance and request for recognition pursued in the Civil Rights Era? Does resistance require direct negation of government policy, regulation, or structures? Or can/should we expand our understanding to include things like a transvaluation of constitutional memory or a reconstruction of subjectivity as a means to assert rights for recognition under the Constitution? The participants in this panel will offer a variety of perspectives on thinking about resistance and recognition under the Constitution. The larger aim of the panel is to open up a conversation about the possibilities for the formation of a discourse of resistance and recognition under the Constitution in the 21st century.

What looks to be a fascinating panel is very much in keeping with the topic of Collective Liberty.

Update: Pope Francis aptly summarizes the trend:

Until recently, we lived in a social context where the similarities between the civil institution of marriage and the Christian sacrament were considerable and shared.  The two were interrelated and mutually supportive.  This is no longer the case.

The lecture notes are here.

Scope of Federal Powers III

• Taxing Power (637-643).
• The Spending “Power” (643-645).
• United States v. Butler (645-648).
• South Dakota v. Dole (648-656).
• New York v. United States (657-670).
• Printz v. United States (670-683)

Baiely v. Drexel Furniture Co. (The Child Labor Tax Case)

The Drexel Furniture Company was established on November 10, 1903 in Drexel, North Carolina. B

By 1968, after several acquisitions, the company became known as the Drexel Heritage Furnishings, Inc. It is still known as that today.

Here is a photograph form 1906 of the Drexel Furniture Company in  Drexel, North Carolina that employed child laborers.

The company’s first plant burned in 1906.  The plant pictured was built in two weeks after the fire and was identical to the first one. The plant consisted of two buildings. In 1917, the building got electricity.  An addition was added in 1918.

Steward Machine Company v. Davis (1937)

The Steward Machine Company, based in Birmingham, Alabama, challenged the constitutionality of the social security tax cases. The company was founded in 1900. Here is one of their first facilities.

I think this photograph is dated February 19, 1900, but it is too blurry to make out for sure.

Here is their modern-day image.

United States v. Butler

This is President Roosevelt signing the Agricultural Adjustment Act into law.

And some cartoons.

South Dakota v. Dole

This case involved Secretary of Transportation Elizabeth Dole, whose husband (Viagra spokesman) Bob Dole, was a long-time Senator from Kansas, and Republican nominee for President in 1996.

Printz v. United States

The case of Printz v. United States was brought by two sheriffs. Sheriff/Coroner Jay Printz of Ravali County, Montana, and Sheriff Richard Mack of Graham County, Arizona. Both were the Chief Law Enforcement Officers (CLEO), subject to the background-check mandate of the Brady Act’s National Instant Criminal Background Check System. Printz was represented by Stephen Halbrook, and Mack represented by David Hardy.

I’ve spoken to both plaintiffs, and they are very interesting officers–they certainly look the part of CLEOs. Mack insists that the case should be called Mack v. United States, because his name came first alphabetically (docket numbers be damned!).

Following this case, Jay Printz would serve as Sheriff until 1999, and then became a member of the Board of the National Rifle Association. Richard Mack ran unsuccessfully for Congress in Arizona and Texas.

From left to right: Atty. Dave Hardy; Sheriff Richard Mack, Arizona; Sheriff Sam Frank, Vermont; Atty. Stephen Hallbrook; Sheriff Printz, Montana.

Sheriff Richard Mack at the Utah Capitol.

Stephen Halbrook arguing Printz v. United States. Note Justice Scalia has a hipsteriffic beard.

More pictures of Sheriff Printz

During a Q&A at Boston College, Justice Kagan referred to the ACA as “Obamacare.” I should know this for sure, but I think this is the first time a Justice actually referred to the law as Obamacare. Famously–or is it infamously–Justice Scalia referred to the law as “SCOTUScare” in King v. Burwell, but I can’t recall anyone calling it Obamacare.

Her broader remarks are of far more interest:

“We don’t stare at polls. We don’t say, ‘Do people like gay marriage or do they not like gay marriage? Do people like Obama­care or do they not like Obama­care,’ ” Kagan said yesterday during a question-and-answer at Boston College. “I think the nine of us would think that is utterly irrelevant to what we do.”

Kagan, formerly the dean of Harvard Law School, said “sometimes the majority of Americans want X, but sometimes the Constitution demands Y, and it’s too bad.”

Justice Ginsburg gives a very different impression. In an interview with Bloomberg in February–four months before the Court decided Obergefell–the Notorious RBG specifically noted that public perception on same-sex marriage has changed, and as a result, there would not be a “large adjustment” to the Court’s imminent decision.

The 81-year-old justice discussed the public’s increasing acceptance of gays against the backdrop of resistance by Alabama officials to a federal court order that took effect Monday and made it the 37th gay-marriage state. With the high court set to rule on the issue by June, she said it “would not take a large adjustment” for Americans should the justices say that gay marriage is a constitutional right.

“The change in people’s attitudes on that issue has been enormous,” Ginsburg said. “In recent years, people have said, ‘This is the way I am.’ And others looked around, and we discovered it’s our next-door neighbor — we’re very fond of them. Or it’s our child’s best friend, or even our child. I think that as more and more people came out and said that ‘this is who I am,’ the rest of us recognized that they are one of us.”

Contrast this with Ginsburg’s statements in 2013, when Hollingsworth v. Perry was before the Court, where spoke often of Roe v. Wade, which she argued moved too quickly ahead of public opinion on abortion:

“That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly,” she told a crowd of students. “… My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.”

The parallels to the same-sex marriage debate were obvious.

I hope Kagan doesn’t look at public opinion, but RBG certainly does.