Thomas Fu – The Stanford Daily https://stanforddaily.com Breaking news from the Farm since 1892 Thu, 01 May 2014 14:31:58 +0000 en-US hourly 1 https://wordpress.org/?v=6.4.3 https://stanforddaily.com/wp-content/uploads/2019/03/cropped-DailyIcon-CardinalRed.png?w=32 Thomas Fu – The Stanford Daily https://stanforddaily.com 32 32 204779320 Law versus politics on the Supreme Court https://stanforddaily.com/2014/05/01/law-versus-politics-on-the-supreme-court/ https://stanforddaily.com/2014/05/01/law-versus-politics-on-the-supreme-court/#comments Thu, 01 May 2014 14:31:58 +0000 https://stanforddaily.com/?p=1085159 There is a sharp divide in the Court, for instance, on the question of whether the Constitution’s meaning should remain fixed (a position most often associated with Justices Scalia and Thomas) or whether its meaning should change over time (a position that Justices Alito and Breyer, among others, have expressed sympathy with recently). Similarly, a number of justices have staked out divergent positions on whether it is more important to interpret the law to be coherent and consistent (Justices Scalia and Ginsburg, for example) or to account for the law’s practical consequences (Justices Breyer and Kennedy).

The post Law versus politics on the Supreme Court appeared first on The Stanford Daily.

]]>
To the extent that the American public thinks about the Supreme Court at all, it only seems to do so in the context of the one or two most divisive (and therefore most mass-media-friendly) cases each year. The cases that make it into the public’s eye tend to be highly controversial, both in society and among the justices, and are often framed in partisan terms, with the media often painting the Court as consisting of a liberal wing (Justices Ginsburg, Breyer, Sotomayor, and Kagan—all Democratic appointees), a conservative wing (Chief Justice Roberts along with Justices Scalia, Thomas, and Alito—all Republican appointees), and Justice Kennedy, who acts as the deciding “swing vote.”

Given this popular characterization of the Court, most people are surprised to learn that the vast majority of the Court’s cases are not decided by a 5-4 vote. Last term, for instance, in which the Court decided a number of contentious cases—including, most notably, those involving the constitutionality of Section 5 of the Voting Rights Act (Shelby County v. Holder), the Defense of Marriage Act (Windsor v. United States), California’s Prop. 8 (Hollingsworth v. Perry) and warrantless DNA searches of arrestees (Maryland v. King)—only 29 percent of cases involved a 5-4 split, while a full 49 percent were decided unanimously.

Perhaps even more surprisingly, when the Court does divide 5-4, it often does so along lines that radically depart from the stereotypical liberal-conservative breakdown. Last week, for instance, the Court handed down two 5-4 decisions (some of the first 5-4 decisions of the term) that departed from the “classic” 5-4 breakdown.

The first, Navarette v. California, involved the question of whether the Fourth Amendment permits a police officer to pull a car over for drunk driving when the officer herself did not observe any suspicious behavior, but only received an uncorroborated anonymous tip that the car was driving erratically. Voting to uphold the stop as constitutional, Justice Breyer broke from the Court’s liberal wing and joined Chief Justice Roberts, Justice Thomas, Justice Kennedy and Justice Alito to form a majority siding with the police. Meanwhile, Justice Scalia penned a fiery dissenting opinion, joined by Justices Ginsburg, Sotomayor and Kagan, in which he accused the Court of “serv[ing] up a freedom-destroying cocktail consisting of two parts patent falsity.”

The day after it handed down Navarette, the Court issued its decision in Paroline v. United States, a case asking how much restitution, if any, federal law requires an individual convicted of child pornography to pay to his victim. Again, the Court split 5-4, and again the lineup departed from the ordinary liberal-conservative divide. Justice Kennedy, in an opinion for a majority consisting of himself, Justice Ginsburg, Justice Breyer, Justice Alito and Justice Kagan, held that a child pornography defendant is required to pay for his proportional share of the harm that the victim suffered as a result of the child pornography. Under Justice Kennedy’s rule, the defendant is required to compensate the victim for somewhere between zero percent and 100 percent of the harm suffered, with the precise amount depending on the extent to which the defendant’s conduct caused the victim’s harm.

The four remaining justices all dissented, but for different reasons: Chief Justice Roberts, joined by Justices Scalia and Thomas, read the federal child pornography statute as not entitling victims to any restitution at all, while Justice Sotomayor read that same law as requiring restitution for all damages suffered by the victim, regardless of whether the child pornography defendant caused that harm.

So what’s going on here? Why is a self-described law-and-order conservative like Justice Scalia siding with criminal defendants while Justice Breyer, a Clinton-appointee often described as a moderate liberal,  votes in favor of expanded crime-fighting power for the police?

While speculating as to why particular justices cast particular votes in particular cases is always a dangerous proposition, the basic answer is that the justices (both “liberal” and “conservative” ones) do more than simply vote their politics. Indeed, the issues which most often split the Court tend not to be hot-button political questions, but rather seemingly esoteric legal ones.

There is a sharp divide in the Court, for instance, on the question of whether the Constitution’s meaning should remain fixed (a position most often associated with Justices Scalia and Thomas) or whether its meaning should change over time (a position that Justices Alito and Breyer, among others, have expressed sympathy with recently). Similarly, a number of justices have staked out divergent positions on whether it is more important to interpret the law to be coherent and consistent (Justices Scalia and Ginsburg, for example) or to account for the law’s practical consequences (Justices Breyer and Kennedy).

With a number of highly contentious constitutional cases yet to be decided this term (e.g., the constitutionality of legislative prayer, abortion clinic buffer zones, cell phone searches and the Affordable Care Act’s contraceptive mandate)—at least a few of which are likely to depart from the “typical” 5-4 split—this distinction between legal and political questions is worth keeping in mind.

Thomas Fu and David Friedman are the managing editors of the Stanford Law Review. Contact them at thomasfu@stanford.edu and dfriedma@stanford.edu.

The post Law versus politics on the Supreme Court appeared first on The Stanford Daily.

]]>
https://stanforddaily.com/2014/05/01/law-versus-politics-on-the-supreme-court/feed/ 1 1085159
Recess Appointments and Presidential Authority https://stanforddaily.com/2014/04/03/recess-appointments-and-presidential-authority/ https://stanforddaily.com/2014/04/03/recess-appointments-and-presidential-authority/#comments Thu, 03 Apr 2014 08:59:28 +0000 https://stanforddaily.com/?p=1084041 Despite the importance of recess appointments to the functioning of the federal government, the text of the Constitution itself provides little elaboration on the scope of the recess-appointments power, stating simply that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

The post Recess Appointments and Presidential Authority appeared first on The Stanford Daily.

]]>
When the Supreme Court is in session, constitutional law comes to the fore of American politics. To explain how the Court makes its decisions and why these decisions matter, it can be useful to think of constitutional law as raising two distinct types of questions.

First-order questions involve decisions about the fundamental rules governing our democracy and society. They frequently implicate the limits on government power and often are the sexy kinds of legal issues that make headlines. Think of the debate on whether state universities may use race-based affirmative action procedures.

Second-order questions involve decisions about who has the authority to decide the first-order questions. For example, should the courts or the president determine whether drone strikes against American citizens abroad are constitutional? What are the limits of the president’s ability to wage war without Congressional approval?

Though not nearly as headline-ready as the first-order questions, second-order questions are nevertheless important and interesting in their own right. And though they are often politicized, they nevertheless have the potential to attract a bipartisan consensus. As Professor Akhil Amar explained, they raise the distinct possibility that “even if people violently disagree about what the law in a given area was or ought to be…they [might] nevertheless agree that the legal decision in that area ought to be made by a given legal institution…acting under certain specified rules of operation.”

NLRB v. Noel Canning, a case currently before the Supreme Court, brings both first- and second-order questions to the fore. The first-order questions (and the questions on which the Supreme Court officially granted review) concern the scope of the president’s recess-appointments power. But while the scope of the president’s recess-appointments power is undoubtedly interesting in its own right, what makes Noel Canning a particularly fascinating case is the second-order constitutional question underlying it: Who ought to have the authority to define the scope of the recess-appointments power?

First, some context. In general, high-level presidential appointments require approval by the Senate. The recess appointment power allows the president to temporarily appoint nominees without Senate approval while the Senate is in a recess. While this provision was originally intended as a practical safety valve to keep the federal government running, particularly in the Founding Era when the Senate was often not in session (and when calling senators back to Washington solely to approve nominees was impracticable), it has since become a tool employed by presidents to avoid subjecting some (controversial) nominees to a Senate vote. Most recently, congressional gridlock over congressional appointments has often tempted President Obama to make more recess appointments.

Despite the importance of recess appointments to the functioning of the federal government, the text of the Constitution itself provides little elaboration on the scope of the recess-appointments power, stating simply that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Notably, no further explanation is provided regarding what a “recess” is or what it means for a vacancy to “happen during” a recess.

Perhaps unsurprisingly, these are precisely the points of disagreement between the parties in Noel Canning. One side—Noel Canning, a company challenging a number of President Obama’s recess appointments to the National Labor Relations Board—argues that “recess” refers only to the time between official sessions of Congress, not adjournments within an official session, and that the recess-appointments power applies only to positions that become vacant during a recess, not to all positions that happen to be vacant during a recess. The Obama Administration, defending its appointments to the NLRB, has taken the opposite view on both of these points.

After Senate Majority Leader Harry Reid used the so-called “nuclear option” to change the Senate’s rules governing presidential appointments, the particular issue itself is somewhat academic. However, Reid’s action did not resolve the issue of who, ultimately, has the right to determine the answers to these questions.

Until now, the answer has been, emphatically, not the Court. Indeed, for many years, the president and the Senate have operated under a mutual understanding that any adjournment of the Senate longer than three days (the Senate sometimes adjourns early for three-day weekends) would constitute a recess, and that the recess-appointments power would extend to any position that happened to be vacant during such a recess. This compromise allowed the president to appoint some nominees without Senate approval if he was willing to wait until a recess, and it allowed the Senate to block particularly objectionable recess appointments by holding so-called pro forma sessions of the Senate—whereby a single senator would open the Senate for business and then promptly adjourn every three days to avoid the occurrence of a recess.

In Noel Canning, however, all of this seems likely to change. At oral argument, most of the justices seemed convinced that the text of the Constitution failed to support but indeed belied the compromise understanding of the recess-appointments power, thrusting the second-order question into the fore. As Justice Scalia asked the Obama Administration’s lawyer: “What do you do when there is a practice that…flatly contradicts a clear text of the Constitution?… [W]hich of the two prevails?”

With the necessity of recess appointments having been obviated by the Senate’s recent changes to the filibuster rules, how the Court thinks about this question, and more generally, the roles of the various branches in determining constitutional questions, may well be the most important part of its decision. The Court declared in its very infancy that “it is emphatically the province and duty of the judicial department to say what the law is.” But how far that authority extends within the halls of Congress itself is another question entirely.

Thomas Fu and David Friedman are the managing editors of the Stanford Law Review. Contact them at thomasfu@stanford.edu and dfriedma@stanford.edu.

The post Recess Appointments and Presidential Authority appeared first on The Stanford Daily.

]]>
https://stanforddaily.com/2014/04/03/recess-appointments-and-presidential-authority/feed/ 1 1084041
The Affordable Care Act’s Contraceptive Mandate https://stanforddaily.com/2014/02/20/the-affordable-care-acts-contraceptive-mandate/ https://stanforddaily.com/2014/02/20/the-affordable-care-acts-contraceptive-mandate/#respond Thu, 20 Feb 2014 10:04:10 +0000 https://stanforddaily.com/?p=1082514 Although the American Judiciary is one of the three co-equal branches of government, it is probably the least well understood by the public. In 2010, for instance, one study found that 53% of Americans responded “Don’t know” when asked to name the Chief Justice of the United States (John G. Roberts, Jr.), while another 18% […]

The post The Affordable Care Act’s Contraceptive Mandate appeared first on The Stanford Daily.

]]>
Although the American Judiciary is one of the three co-equal branches of government, it is probably the least well understood by the public. In 2010, for instance, one study found that 53% of Americans responded “Don’t know” when asked to name the Chief Justice of the United States (John G. Roberts, Jr.), while another 18% answered incorrectly (including 4% who named Senate Majority Leader Harry Reid (D-Nev.)). In this column, we seek to help address this knowledge gap by discussing some of the important work of the “least dangerous branch.”

While many of the cases we’ll be discussing are not only high profile, but also highly controversial, we will intentionally shy away from expressing any normative (and, to the fullest extent possible, legal) views in this column. Instead, our goal is to sketch out the basic contours of (hopefully) interesting and timely legal issues, as well as to explain a bit about how the Supreme Court goes about its business.

On March 25, the Supreme Court will hear oral argument in what are likely to be two of the most controversial cases this term:  Conestoga Wood Specialties Corp. v. Sebelius and Sebelius v. Hobby Lobby Stores, Inc. In each case, a for-profit corporation has filed a challenge to the Patient Protection and Affordable Care Act’s (ACA’s) contraceptive-coverage mandate, which requires employers to provide their employees with a health insurance plan that includes coverage for a list of contraceptives. Both corporations claim that providing such insurance is a violation of its religious rights.

Though the facts of the two cases differ slightly, the legal issues presented in each are essentially the same: (1) whether protections for the free exercise of religion extend to for-profit corporations; and (2) whether the contraception-coverage mandate violates the Religious Freedom Restoration Act (RFRA), a federal law that subjects all measures that “substantially burdens a person’s exercise of religion” to strict judicial scrutiny—a test that is “strict in theory but fatal in fact.”

While the question of whether for-profit corporations are entitled to protections for religious exercise may strike some as Citizens United redux, the analyses in these cases are actually quite distinct. As the challengers point out, incorporated entities have long been entitled to protections for religious freedom. Indeed, many churches are organized as nonprofit corporations, and it is uncontroversial that they are entitled to protections for their religious exercise.

Similarly, the Supreme Court has routinely recognized that individuals engaged in commerce (Jewish merchants are a classic example) are also entitled to religious protections. Because neither corporate status nor profit-seeking alone create a barrier to free exercise protections, the question in these cases is whether the combination is somehow fatal. Unsurprisingly, the challengers take the position that it is not.

The Obama Administration, on the other hand, argues that for-profit corporations are qualitatively different than either nonprofits or individuals engaged in commerce. For-profit corporations, the government argues, must abide by the “first principle of corporate law”: the notion that a corporation and its owners are distinct entities. Because corporations, as abstract legal entities, are incapable of possessing a sincere religious belief, the government argues, the challengers are improperly ignoring corporate separateness by attributing to the corporation the beliefs of its owners.

While the question of corporate religious exercise may be the most highly watched question in Conestoga and Hobby Lobby, it may not be the most difficult question for the Court to answer. Instead, the most challenging question may be whether the mandate “substantially burden[s]” either corporation’s religious exercise.

On the one hand, it is undisputed that if the government directly penalizes one’s exercise of religion (e.g., through a fine or imprisonment), that constitutes a substantial burden. Similarly, there is also a substantial burden if the government conditions receipt of a benefit on refraining from religious exercise (e.g., refusing to give welfare to anyone who takes Communion). On the other hand, it is not a substantial burden for the government to compel a person to pay taxes, even if a portion of those taxes are spent on something (e.g., war) that deeply offends the taxpayer’s religion.

In this case, it’s not clear where on that spectrum the mandate falls. The challengers argue that their religions prohibit them from facilitating access to certain contraceptives. So in their view, it is the act of purchasing the insurance itself that causes the religious harm, and in this way, the mandate acts as a direct penalty on their religious exercise. The government, however, sees it differently. In its view, the mandate is more like the tax—it requires the employers to contribute to a bundle of goods, where, as with war, the particular choices regarding expenditures are far outside the employers’ control.

However the Court comes out, the Conestoga and Hobby Lobby decisions have the potential to have important ramifications, not just for the implementation of the ACA, but also for religious liberty in the country more generally.

 

David Friedman and Thomas Fu are the managing editors of the Stanford Law Review. Contact them at dfriedma@stanford.edu and thomasfu@stanford.edu.

The post The Affordable Care Act’s Contraceptive Mandate appeared first on The Stanford Daily.

]]>
https://stanforddaily.com/2014/02/20/the-affordable-care-acts-contraceptive-mandate/feed/ 0 1082514