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During a press briefing yesterday, White House Press Secretary suggested that in light of decision by Senate Republicans not to afford Chief Judge Garland a hearing and vote, Senate Democrats would be “justified” in blocking a Republican President’s nomination for the full four-year term.

Mr. Earnest: [W]hat’s to stop Democrats who are in charge of the Senate when a Republican is in office from saying, well, we’re just going to wait four years to fill the vacancy.  There’s no material difference in that argument.  That would represent a breakdown of the process.

Q    Would they do that?  I mean, you’re saying that it seems like — that they would do that.

MR. EARNEST:  They would be justified in doing it based on what Republicans have done so far.

In effect, if a Republican wins the White House in 2017, so long as Senate Democrats hold the gavel, Justice Scalia’s seat will remain empty. So long as the Senate and Presidency are not controlled by the same party, no nominations will be possible.

Things are proceeding as I anticipated some time ago.

Between October 2014 and January 2015, I gave four presentations on selecting the next Supreme Court Justice in New Jersey, Chicago, Berkeley, and at Georgia State. In each presentation, I made a very similar point–in the event that the President and Senate are controlled by different parties, there is a distinct possibility that a seat on the Court remains empty for an extended period of time. To illustrate this dynamic, in my presentation I used a picture of Clint Eastwood from the 2012 Republican National Convention to illustrate the empty seat–I called it the Eastwood effect. This point was made well before the Scalia vacancy.

I considered a hypothetical with a SCOTUS vacancy in 2017, a Republican President seeks to make a nomination, and the Democratic-controlled Senate blocks any nominees. (I didn’t quite consider denying the person a hearing–rather I thought the candidate would simply be voted down). I suggested that a Republican President–if the Democrats refuse to even hold a vote in 2017–could roll the dice, and hope the Republicans pick up the Senate in 2018. Then, the Senate Republicans could eliminate the filibuster and confirm the President’s nominee of choice. This would raise the distinct possibility of a seat remaining empty for one or more years, but I predicted this was a likely consequence of the escalation in the nomination wars following Sen. Reid’s nuclear option.

From September through February, I was planning on writing an article on the empty-seat scenario, and focus on how state courts handle them–see New Jersey–but unfortunately never got around to it. (There are far more things that I want to write, but never have time to complete).

All of my discussions from these four events are recorded, and articulate my thoughts on this–well before the passage of Justice Scalia made this a reality and not a hypothetical.

My remarks from the Chicago Federalist Society Lawyer’s Chapter on 10/15/15 (fast-forward to 23:19):

From the New Jersey Federalist Society Lawyer’s Chapter on 10/6/15 (fast-forward to 21:30):

From the Berkeley Federalist Society Chapter at 13:45 (in an event featuring Ed Whelan):

And finally, at the Georgia State Federalist Society, with the inestimable Eric Segall, (starting at 23:20).

The lecture notes are here.

 Same-Sex Marriage

• Obergefell v. Hodges

On Tuesday, 10/27/15 Jim Obergefell and Eric Alva appeared at an event in Houston to discuss LGBT rights. Alva, whose name is probably less familiar, was the first Marine who was seriously injured in Iraq–he stepped on a land mine within three hours of arriving–and later championed the cause of repealing Don’t Ask, Don’t Tell. Obergefell, whose name you ought to know, was the lead plaintiff in the Supreme Court’s same-sex marriage decision last June. (He was the named party because his cert petition was filed first, and had the lowest docket number). It was a very interesting and engaging event, as the two offered their personal insights about their history and accomplishments.

Before the event, I asked Obergefell if he would sign my pocket constitution. I have a growing collection of Pocket Constitutions signed by various judges, scholars, and others who have some impact on the Constitution. I usually hand over the Constitution, and ask them to sign the inside cover. But, as I approached Obergefell, I opened it up to the 14th Amendment page. Back in 2008–shortly after Heller–I had asked Justice Scalia to sign my Constitution on the page with the 2nd Amendment. (He refused, twice, but I got him to sign it on the third try). Why not, I thought quickly, ask Obergefell to sign the 14th Amendment. It seemed fitting.

I handed him the Constitution, told him I was a law professor, and said I would be teaching his case in a few weeks. He was really friendly, and as he graciously signed it, as we chit-chatted for a few moments. There were a lot of people waiting to see him, so I didn’t keep him much longer. He wrote his name, and below that “Love Won!” It was poetic, both in terms of what, and where he wrote it.

His message was indeed one of love. During the event, he told the heart-wrenching story of how his husband-to-be, John Arthur, was dying from ALS. (Remember the ice bucket challenge?). The couple flew on a medical plane to Maryland, where they were married on the tarmac, and immediately flew back to Ohio. Soon, suit was filed in federal district court in Ohio to modify Arthur’s death certificate, so that Obergefell would be listed as the spouse. The rest is, well, history.

But his inscription took on an even higher salience because of where he wrote it. In the Federalist Society Pocket Constitution I gave him (he didn’t note the irony), there is a blank space below Section 5 of the 14th Amendment. Obergefell, figuratively and literally, added a new section to the Constitution. Justice Kennedy’s majority opinion recognized love itself–not just “equal protection” or “due process of law”–as an interest protected by the Constitution. States that refused to recognize this “dignity” violated the Fourteenth Amendment. At the heart of this constitutional case was love.

With a few small scribbles, perhaps unwittingly, Obergefell aptly summarized everything his case was about from the moral and legal perspectives.

Here are a few other pictures from the event.

With arguments before the Supreme Court in U.S. v. Texas ten days away, the docket in Brownsville keeps on chugging along. A few minutes ago, Judge Hannen issued an order, noting that “In the immediate future, this Court intends to issue an order concerning the misrepresentations made to it and Plaintiffs’ counsel by counsel for the Government.”

But even stranger, the government submitted four envelopes to the court to review in camera, but asked the court not to open envelopes two and three.

Defense counsel invited this Court to review the contents of Envelopes One (Government’s unredacted brief) and Four (non-privilege responsive documents) and it has done so. 1 The Government asked this Court not to review the contents of Envelopes Two and Three. The Court has honored that request as well. This Court has explained on at least one prior occasion that it was perplexed by the Government’s use of this unorthodox procedure.

Judge Hanen has now mailed the unopened envelopes back to the government. Unless the government sends them back by April 15 (three days before arguments), “the Court will assume the Government did not want them considered.”

I have no idea what is in these mystery envelopes, and it is very strange that the government would send the court documents in camera, but tell the Judge not to open it. Judge Hanen writes:

The Government’s request is the equivalent ofasking this Court to “take our word for it.” Given the fact that the conduct under consideration concerns multiple misrepresentations (to which the Government has admitted), this approach is not reassuring.

Stay tuned.

As an aside, this order is all the more surreal, because this was effectively my aborted April Fool’s joke. I photoshopped an order from Judge Hanen, directing the parties to appear in court to address issues of misconduct. On second thought, I determined that doctoring an order of the court was probably a bad idea, and spiked it. Instead I went with Nino’s Cafe at the new Antonin Scalia Law School. The intent of the joke was to make something just plausible enough, but outrageous, that people would believe. April Fools!

In Evenwel, there is a fascinating back-and-forth between Justice Ginsburg and Justice Alito over how to understand actions taken by the framers of the Constitution in 1787, and the framers of the 14th Amendment in 1866. In short, Justice Ginsburg looks to this history for evidence that the framers in both periods favored representation based on total population, rather than on the voting population. From this, she bolsters the principle of “one person, one vote,” a doctrine that lacked any legitimate originalist pedigree when introduced in the 1960s.

Justice Alito disputes any effort to derive an equal representation theory, because the framers at both of these critical junctures of American history were not concerned with theories–they were concerned with “raw political power.”

When the formula for allocating House seats was first devised in 1787 and reconsidered at the time of the adoption of the Fourteenth Amendment in 1868, the overwhelming concern was far removed from any abstract theory about the nature of representation. Instead, the dominant consideration was the distribution of political power among the States.

In 1787, the Framers struck a fraught compromise–indeed it was the “Great Compromise”–whereby States would receive at least one representative, plus more based on population, and two Senators selected by the legislature. Justice Thomas aptly describes this compromise:

As the Framers understood, designing a government to fulfill the conflicting tasks of respecting the fundamental equality of persons while promoting the common good requires making incommensurable tradeoffs.

In no sense is either based on a total population rule, because the smallest state will have one representative, and the next smallest state will also have one representative. The Senate is entirely anti-democratic, and was designed with that intent in mind. Same for the electoral college, which is constituted based on the number of representatives and senators.

Alito explains with some references to Hamilton and Madison:

As is clear from the passage just quoted, Hamilton (ac­cording to Yates) thought the fight over apportionment was about naked power, not some lofty ideal about the nature of representation. That interpretation is confirmed by James Madison’s summary of the same statement by Hamilton: “The truth is it [meaning the debate over appor­ tionment] is a contest for power, not for liberty. . . . The State of Delaware having 40,000 souls will lose power, if she has 1/10 only of the votes allowed to Pa. having 400,000.” Id., at 466. Far from “[e]ndorsing apportion­ ment based on total population,” ante, at 9, Hamilton was merely acknowledging the obvious: that apportionment in the new National Government would be the outcome of a contest over raw political power, not abstract political theory.

In 1866, Justice Alito continues, Section 2 of the 14th Amendment was drafted the way it was to prevent Southern states from claiming too much power due to the freed, but disenfranchised slaves–now counted as a full people–who would now count towards full representation.

After the Civil War, when the Fourteenth Amendment was being drafted, the question of the apportionment formula arose again. Thaddeus Stevens, a leader of the so-called radical Republicans, unsuccessfully proposed that apportionment be based on eligible voters, rather than total population. The opinion of the Court suggests that the rejection of Stevens’ proposal signified the adop­ tion of the theory that representatives are properly under­ stood to represent all of the residents of their districts, whether or not they are eligible to vote. Ante, at 10–12. As was the case in 1787, however, it was power politics, not democratic theory, that carried the day.

The goal (quite plainly) was to prevent Northern states from losing too much representation. Alito also makes an important point on Section 2 of the 14th Amendment, and indeed the 3/5 Clause, which most people don’t understand: Granting full representation to Southern blacks in 1787–who could not vote–would have given Southern states a disproportionate share of the representation in Congress.

As Stevens spelled out, if House seats were based on total population, the power of the former slave States would be magnified. Prior to the Civil War, a slave had counted for only three-fifths of a person for purposes of the apportionment of House seats. As a result of the Emancipation Proclamation and the Thirteenth Amendment, the former slaves would now be fully counted even if they were not permitted to vote. By Stevens’ calculation, this would give the South 13 addi­ tional votes in both the House and the electoral college.

This is why deeming slaves 3/5 was actually a compromise in favor of the Northern states. Had the slaves been deemed full people, the Southern states would have had even more representatives in Congress, and in turn the electoral college. The slave trade–which the Constitution protected until 1808–would not have been repealed given the representative-bonus afforded by a 5/5 clause.

In two footnotes, Justice Ginsburg offers a rejoinder to Alito. First, in FN 9, she argues that Hamilton’s statements can be cited, notwithstanding the “political controversies of his day.” To drill the point home, she cites Justice Scalia’s opinion in Printz.

Notably, in the statement JUSTICE ALITO quotes, Madison was not attributing that motive to Hamilton; instead, according to Madison, Hamilton was attributing that motive to the advocates of equal representation for States. Farrand, supra, at 466. One need not gainsay that Hamilton’s backdrop was the political controversies of his day. That reality, however, has not deterred this Court’s past reliance on his statements of principle. See, e.g., Printz v. United States, 521 U. S. 898, 910–924 (1997).

The primary rejoinder appears in FN 11. RBG explains that even if “politics played a part” in the decision, she can still derive a “prinicpled argument.”

JUSTICE ALITO asserts that we have taken the statements of the Fourteenth Amendment’s Framers “out of context.” Post, at 9. See also post, at 12 (“[C]laims about representational equality were invoked, if at all, only in service of the real goal: preventing southern States from acquiring too much power in the national government.”). Like Alexan- der Hamilton, see supra, at 9, n. 9, the Fourteenth Amendment’s Framers doubtless made arguments rooted in practical political reali- ties as well as in principle. That politics played a part, however, does not warrant rejecting principled argument. In any event, motivations aside, the Framers’ ultimate choice of total population rather than voter population is surely relevant to whether, as appellants now argue, the Equal Protection Clause mandates use of voter population

I suppose it’s true–“We are all originalists now.” Justices Ginsburg and Alito are now battling over how to interpret statements from Madison, Hamilton, and Thaddeus Stevens.

In Evenwel v. Abbott, the Supreme Court considered the “One Man, One Vote” doctrine, articulated in Chief Justice Warren’s 1964 decision in Reynolds v. Sims. As Andrew Grossman pointed out during the Federalist Society call on the case, Justice Ginsburg’s majority opinion in Evenwel represents a triumph or sorts for originalism–the doctrine championed by her late, great colleague, Justice Scalia.

Part II.A of her opinion (from page 8-15), which focuses primarily on history, begins:

We begin with constitutional history.

In Footnote 7, Ginsburg engages in a back-and-forth with Justice Alito over the import of statements from Hamilton and Madison. And, citing Justice Scalia’s opinion in Printz, Ginsburg champions Hamilton:

Notably, in the statement JUSTICE ALITO quotes, Madison was not attributing that motive to Hamilton; instead, according to Madison, Hamilton was attributing that motive to the advocates of equal representation for States. Farrand, supra, at 466. One need not gainsay that Hamilton’s backdrop was the political controversies of his day. That reality, however, has not deterred this Court’s past reliance on his statements of principle. See, e.g., Printz v. United States, 521 U. S. 898, 910–924 (1997).

In 2011, Justice Ginsburg offered this quasi-defense of her originalism:

“I have a different originalist view. I count myself as an originalist too, but in a quite different way from the professor,” she said. “Equality was the motivating idea, it was what the Declaration of Independence started with but it couldn’t come into the original Constitution because of the odious practice of slavery that was retained,” she said. “I think the genius of the United States has been from the original Constitution where ‘we the people’ were white property-owning men to what it has become today. That it is ever more embracive including Native Americans … people who were once held in human bondage, women, aliens who come to our shores.  So ‘we the people’ has a marvelous diversity which it lacked in the beginning.”

My how far we’ve come. Consider one of the more famous passages from Reynolds (which was quoted from Gray v. Sanders):

“The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.”

This is what passed for originalism in 1964, or something like that.

We’ve come a long, long way.