Praveen Fernandes of @MyConstitution explains that although there used to be two clear paths to constitutional interpretation -- originalism and living constitutionalism -- these strict categories are no longer articles of faith for conservatives or liberals. #ACS2020
Pam Karlan explains there are many methods of constitutional interepretation and the difference of outcomes is not a product of methodology but what intelligence we bring to bear on constitutional problems
We cant only focus on federal actors when discussing constitutional interpretation, we must remember the various actors taking part in developing constitutional meaning at the state and local level, something we've seen extensively during the COVID epidemic - @ProfMMurray
"Whats unusual in the past 50 years is the gap between how liberals and conservatives practice constitutional politics" - Joseph Fishkin of @UTexasLawpapers.ssrn.com/sol3/papers.cf…
"This administration's unapologetic attempt to jam through conservative judges presents a practical and moral problem for progressive constitutionalists," says David Strauss of @UChicagoLaw
How should we approach judicial selection norms (blue slips, ABA ratings, etc) that have asymmetrically disadvantaged progressives? Josey Fishkin suggests we need a "norm by norm basis" #ACS2020acslaw.org/inbrief/broken…
David Strauss of @UChicagoLaw suggests that one norm that we might be able to restore is stare decisis #ACS2020
Karlan: There are precedents like Planned Parenthood v. Casey that people organize their lives around - these are the precedents that need to be protected #ACS2020#SCOTUS
Murray: Janus v AFSCME shows that the Roberts Court isn't willing to just rethink precedent, they're doing it in a stealth and destabilizing way #SCOTUS#ACS2020
Karlan: Lets get the courts out of the way of progressive legislation and the Constitution we're making as a contemporary people. SCOTUS isn't changing its view of the 4th amend. Ppl on the ground are changing what the 4th amdt should look like when demanding an end to chokeholds
Strauss: "Trump is trashing non-judicial norms, but these actions are a form of precedent that we need to make sure aren't repeated"
Fishkin: "On issues of civil rights and voting rights progressives should focus on legislatures and not the courts to pursue progressive change"
Should we expand the court? Fishkin and @ProfMMurray suggest its a pressure point we need to consider even if we don't enact any change
Whenever we can, we need to explain that originalism is just not a thing -- Strauss #ACS2020
Fishkin: There is a judicial menace, and its coming from conservative judicial activism
Strauss: All constitutional actors, not just judges, must protect and enforce the constitution - this is especially clear with norms that aren't part of our written constitution and can't be judicially enforced
Fishkin: We need to admit more states, it is past time for DC statehood - More on DC statehood in our recent issue brief: acslaw.org/issue_brief/br…
ICYMI: “A More Perfect Union: The Future of Labor Law in a Post-COVID Economy” took place yesterday (1/7)
We need labor law reform. We need sector-wide solutions to address the multiple crises of the environment, the healthcare system, the economic crisis, said Nicole Berner of @SEIU (2/7)
Labor law has become an obstacle for workers to come together and countervail the power of corporations, said @sharblock (3/7)
In a new blog post on our expert forum, @MyConstitution’s David Gans explores California v. Texas, the latest attempt in the long-running effort by conservatives to strike down the entire Affordable Care Act bit.ly/3klf20x (1/5)
“Both Chief Justice Roberts and Justice Brett Kavanaugh—who together with the Court’s three more liberal Justices could form a majority—repeatedly stated that it would be inappropriate to strike down the statute as a whole.” (2/5)
Gans argues that while the Roberts Court is deeply conservative, for now it seems unwilling to upend settled legal principles to strike down the ACA. (3/5)
From our first issue brief by Kristina Silja Bennard back in 2005 (!) on the confirmation hearings of #RBG and answering questions while maintaining judicial impartiality (1/21)
Bennard: The hearings for #RBG in 1993 provide a good example of how a nominee balances her obligation of impartiality with the need to shed light on her fundamental views (3/21)
.@espinsegall in the ACS Expert Forum Blog: Judge Amy Coney Barrett stated during her confirmation hearings that she's an originalist, which is meaningless as it relates to interpretation, but suggests that she'll consistently cast conservative votes acslaw.org/expertforum/ju… (1/9)
There are conservative, moderate and liberal judges, but there are no originalist judges, Professor Segall argues (2/9)
In the 1970s and 80s, originalists like Robert Bork were opposed to judges overturning state & federal law absent a clear inconsistency with constitutional text (3/9)
ACS President @russfeingold released this statement as the Senate begins hearings for #SCOTUS nominee Amy Coney Barrett (1/8):
The illegitimate plan to seat another extremely conservative #SCOTUS justice will allow the Right to achieve their ultimate goal: locking down a supermajority that could last for a generation (2/8)
By doing so, the Right will effectively steal the future of the younger generation – and generations to come. This generation will not be able to forge its own way or make manifest the promises in our Constitution (3/8)