Harvard Law & Policy Review

SCOTUS

by on

Inferred Consent: Merrick Garland Should Be Allowed To Sit On The Court

By Andrew Hanson*

After refusing to hold hearings on the appointment of Merrick Garland, President Obama’s nominee to fill a Supreme Court vacancy—because “the people” should be able to decide who nominates the next Justice—Republicans recently suggested that they would continue to leave the Court with a vacancy if the people’s decision was Hillary Clinton. Now that Trump has won, they are likely to allow him to appoint the next Justice. But the vacancy occurred on Obama’s watch, and he still has time left in office. Can the Senate refrain from voting on a president’s Supreme Court nominee indefinitely? Perhaps not.

The president, “by and with the Advice and Consent of the Senate,” has the obligation to nominate and appoint judges to the Supreme Court. Historically, this has meant that the Senate will either approve or reject the nominee. However, it is unclear how to proceed when the Senate refuses to affirmatively approve or reject the nominee. Could consent be inferred from inaction?

In 2013, Harvard Law professor Matthew Stephenson suggested that, at least with regards to certain Executive Officers, the text and history of the Advice and Consent clause supports the argument that consent could be inferred if the Senate failed to expressly affirm or reject a presidential nominee. He appeared to exclude, for pragmatic reasons, this reading insofar as it applied to judges. I think his analysis is persuasive, but why not extend it to the appointment of judges?

Under Stephenson’s analysis, while the president cannot appoint an officer without “consent,” the president may be able to infer “consent” when the Senate fails to affirmatively reject the nominee. This reasoning, arguably, could apply with equal force to judicial appointments. In other words, where the Senate does not expressly reject the appointment of a judicial nominee for an indefinite period of time, the president should be allowed to infer implied consent and rely on his independent and exclusive power to take care that the laws be executed by appointing the judge. Some sort of notification to the Senate of the intent to pursue this course of action by a certain date would be prudent given professional courtesy and the rather radical nature of this proposal. I would not go so far as to say it is legally required, but rather a practical consideration. The Senate, of course, could prevent the seating of the nominee by holding a hearing and voting to reject the nominee prior to the date set by the president.

If one accepts Stephenson’s reading of the Advice and Consent clause, then there are two reasons why the president should be allowed to apply this “inferred consent” to judicial appointments. First, the president has the constitutional obligation to “take care that the laws be faithfully executed.” The Constitution gives the president the independent obligation to “nominate” judges and the obligation to “appoint” the judges with the advice and consent of the Senate. Second, federal law states the Supreme Court “shall consist of a Chief Justice of the United States and eight associate justices” (emphasis added). In order to take care that these laws be faithfully executed, the president has an obligation to see to it that the vacancy on the Court is filled. The Senate’s prolonged refusal to take any action fundamentally interferes with the president’s ability to achieve his constitutional obligations.

Under Justice Jackson’s famous categories of presidential power, this conduct would likely fall under category one. Under category one, when the president acts pursuant to an express or implied authorization by Congress, the president’s power is at its maximum. If the president’s conduct is unconstitutional, the federal government as a whole lacks the power to do what the president has done. Obviously, the government has the authority to fill vacancies in the judiciary. Thus, if prolonged inaction can be interpreted as implied consent, and the president also has his or her independent constitutional authority to rely on, then the president’s power to appoint the judge would appear to be at its maximum under such circumstances. Under this reading, Obama’s nominee, Merrick Garland, who has been waiting for a hearing since March, could just show up to work one day in the face of Senate inaction.

The Senate could, of course, hold a hearing and reject a nominee. This would put the facts into Jackson’s category three whereby the president would only be able to rely on his or her independent and exclusive authority—however, the Constitution textually requires the “consent” of the Senate for the appointment of judges. Thus, where the Senate has rejected a nominee, it has affirmatively not consented, and the president would be prohibited from appointing that nominee.

In the end, the president arguably has the authority—in fact, it may be at its maximum—to appoint a judge to fill the vacancy on the Supreme Court in the face of prolonged inaction by the Senate. I would say the failure to even consider the nominee for the last eight months counts as prolonged—indeed, unprecedented—inaction. In fact, the Garland nomination holds the record for the longest wait for a Senate hearing. This inaction arguably authorizes the president to fulfill his constitutional duties to appoint judges and take care that the federal law requiring nine Justices is faithfully executed.

Others have advocated forms of this argument to apply the “silence is consent” interpretation of the Advice and Consent clause to judicial appointments (see here, here, here, here, and here). As many of these other pieces point out, it would be a political and legal battle to actually move forward on this theory. There would be questions about whether any president would be willing to be the first to step out in this direction, whether the Chief Justice would allow it, and whether there would be suits challenging it (and if so, what courts would hear the issue or what would happen if there was a tie in the Supreme Court on the issue after the new Justice recused themselves). It may be the case that it is politically unlikely and legally complex, but that does not detract from the question of whether it is legally possible. I think it is. It may very well turn out that the Court agrees. Or, the Court may find the need for affirmative consent. But the bold act would bring the issue to the forefront of public discussion and help highlight the irony in the position of certain Senators. Perhaps it would incite enough public outrage to compel the Senate to take action—one way or the other—rather than sit on their hands and avoid their constitutional duties.

*Andrew Hanson is a 3L at Harvard Law School.

by on

The Supreme Court Vacancy and the End of Capital Punishment

By Isaac Saidel-Goley*

Justice Antonin Scalia’s passing on February 13 has fundamentally altered the ideological composition of the Supreme Court. The Court has for decades consistently leaned Right and suddenly finds itself leaning Left. This shift in the composition of the Court provides a rare opportunity for abolitionists to successfully challenge the constitutionality of capital punishment.

For decades, the death penalty has been a deeply divisive issue, both politically and constitutionally. Challenges to the death penalty have focused on innocence, racial bias, ineffective defense counsel (especially for indigent clients), and economic burdens on taxpayers. Over the years, the Court has steadily chipped away at the constitutionality of the death penalty. Although it has upheld the constitutionality of the death penalty as a punishment for murder, the Court has consistently split along ideological lines, with conservative Justices voting to uphold capital punishment and liberal Justices voting to strike it down.

The current ideological composition of the Court presents the best opportunity that abolitionists have had in decades—and the best opportunity they are likely to have in the foreseeable future—to end capital punishment. Justices Breyer and Ginsburg recently publicly requested briefing on the constitutionality of capital punishment, indicating their belief capital punishment is unconstitutional under the 8th and 14th Amendments. Justices Kagan and Sotomayor—the other two liberals on the Court—would almost certainly join Justices Breyer and Ginsburg in striking down the death penalty. Although three of the conservatives on the Court—Justices Roberts, Alito, and Thomas—are very likely to uphold the constitutionality of capital punishment, Justice Kennedy is more difficult to predict. Although he has not explicitly indicated whether he considers capital punishment unconstitutional, Justice Kennedy has voiced serious concern about the potentially unconstitutional tension between two fundamental 8th Amendment requirements: guided discretion and individualized sentencing. Considering Justice Kennedy’s 8th Amendment apprehension and his enduring jurisprudential focus on human dignity, there is a distinct possibility that he would side with the liberals and strike down capital punishment.

Abolitionists should take advantage of the favorable composition of the Court and file a broad challenge to the constitutionality of capital punishment as soon as possible. As always, selecting the appropriate forum will be essential, and abolitionists should be careful to challenge capital punishment in the 9th Circuit, which is predominantly comprised of Democratic-appointed judges who would likely find capital punishment unconstitutional. After the 9th Circuit ruling, abolitionists would face one of three potential scenarios at the Supreme Court, depending on when Justice Scalia’s vacancy is filled and by whom it is filled.

Scenario 1. If the case were to reach the Supreme Court before Justice Scalia’s vacancy is filled, then abolitionists would face a win-win scenario (assuming the 9th Circuit declares capital punishment unconstitutional): If Justice Kennedy were to side with the liberals, then the Court would strike down capital punishment; and if Justice Kennedy were to side with the conservatives, then the Court would evenly split, the 9th Circuit ruling would stand, and capital punishment would be abolished in the 9th Circuit.

Scenario 2. If the case were to reach the Supreme Court after the vacancy is filled by President Obama or the next Democratic President, then the Court would very likely strike down capital punishment, as there would most likely be five abolitionist votes between the four liberals currently on the Court, Justice Kennedy, and the new Democratic appointee.

Scenario 3. The worst-case scenario for abolitionists would be if the case were to reach the Court after the vacancy is filled by a Republican President. The outcome of this scenario would almost certainly depend on Justice Kennedy’s vote. This scenario would admittedly be a gamble, but as previously noted there is reason to believe Justice Kennedy would join the liberals and strike down capital punishment. Regardless of Justice Kennedy’s unpredictability, it would be preferable for abolitionists to gamble on this scenario than for them to postpone a challenge to capital punishment and face a Court where the most reliable abolitionist Justices—Breyer and Ginsburg—are two of the eldest Justices on the Court and where a Republican President would appoint their replacements.

In conclusion, regardless of the scenario that unfolds, now is the best opportunity in the foreseeable future for abolitionists to challenge the constitutionality of capital punishment. We must take advantage of this rare opportunity to end capital punishment.

 

* Isaac Saidel-Goley is a 2L at Harvard Law School.

by on

On Senate Divisions, Carbon Emissions, and Appointment Decisions

By Robert Seaney*

The passing of one of America’s most prolific jurists has sparked a fierce debate over Constitutional interpretation in an entirely different branch of government. Senators Ted Cruz and Mitch McConnell immediately took to Twitter to express their intentions to block any nomination advanced by President Obama; Senator Elizabeth Warren responded that such efforts would be “abandoning the duties they swore to uphold.”

In the likely event that the Senate does elect to obstruct a confirmation, Obama will be left with limited options. He might try an appeasement approach with an agreeable nominee like Sri Srinivasan, an India-born DC Appellate judge approved unanimously by the Senate less than three years ago. Alternatively, if he perceives any confirmation attempt to be futile, he may nominate someone he likes but knows would be D.O.A. in any Republican Senate: Pam Karlan, for example, an outspoken and celebrated liberal law professor who – if she were somehow confirmed – would become the first openly gay justice.

But as we face the increasing likelihood of an eight-person court, it bears considering the ramifications of a split judiciary. Notably, while we’ve been inundated in the past couple days with shortlists and punditry, surprisingly little has been said about what may pan out to be one of the most consequential elements of Justice Scalia’s passing.

Just one week ago, Justice Scalia joined the majority in issuing an unexpected “stay and postponement” of the Obama administration’s Clean Power Plan. While an important step forward in America’s efforts to reduce domestic carbon emissions, the Plan was most significantly a means of securing international cooperation at last year’s historic Paris Agreement. A perceived slip in the United States’ commitment could jeopardize the tepid international consensus in a manner redolent of the 1997 Kyoto Protocol.

On this particular issue, an understaffed court may serve the President’s interests. The challenge to the Plan (beyond the temporary stay decided February 9, 2016) is led by over two-dozen states and numerous energy companies, and will be heard by a three-judge panel of the DC Circuit Court in oral arguments beginning this June. Fortunately for the President (and, arguably, for the planet), the panel is composed of judges likely receptive to the EPA’s regulatory efforts. Judith Rogers, a Clinton appointee, and Karen Henderson, a George H.W. Bush appointee, have each stood in favor of the EPA in the past. The third judge, Sri Srinivasan (referenced above), has a limited corpus of environmental decisions, but is a recent Obama appointee. Thus, an early fall decision in favor of the emissions standards appears likely.

If the DC Circuit finds in favor, the Supreme Court will then consider whether or not to grant certiorari. If they did, a vote from Justice Scalia would have probably struck down the regulations along the same partisan divide as Tuesday’s stay and postponement. Instead, if the Court grants certiorari before a replacement is confirmed, they will likely split 4-4, with Justices Thomas, Alito, Kennedy and Roberts opposing the EPA regulations and Justices Ginsburg, Kagan, Breyer, and Sotomayor supporting. Such a split would uphold the lower court’s ruling (without generating precedent), and the Clean Power Plan would proceed as law.

In 2006, Justice Scalia famously said, “I don’t want to have to deal with global warming, to tell you the truth.” For a generation not afforded the option, there may just be a route forward without the late great ninth justice.

 

* Robert Seaney is a 1L at Harvard Law School.

by on

SCOTUS Invites Death Row to BYOE (Bring Your Own Executioner)

By Charles McGonigal

The death penalty is the government’s deepest moral quagmire. An execution is irrevocable and heavily resembles the crimes that it punishes. To make peace with this decision, society deploys resources to try to avoid executing innocents (due process, defense counsel, mandatory appeals) and to distinguish it from homicide. One of the most important differentiators has been to make the execution as humane as possible, embodied in the Eighth Amendment’s prohibition of cruel and unusual punishment. Until Glossip v. Gross.

In 2008’s Baze v. Rees, the Supreme Court allowed a specific three-drug protocol that put the victim into a coma before administering the killing drugs. The likelihood that the protocol would prevent suffering was very high, indeed high enough to satisfy the Eighth Amendment. The Court held that petitioners challenging such a satisfactory method had to offer a means of further increasing that likelihood. However, market pressures later caused the supplier of the anesthetic sodium thiopental—the first drug of the protocol—to stop providing it for executions, so some states (including Oklahoma) switched their protocols to use the sedative midazolam, which is not FDA-approved for sole use as an anesthetic. While midazolam does help patients fall asleep, the patients are usually awakened by significant trauma like incisions or burning chemicals designed to stop the heart.

Glossip v. Gross challenged Oklahoma’s execution protocol on the grounds that midazolam would not sufficiently prevent the executed from suffering during the execution. The prisoners’ suit was dismissed both on the merits and because they had not proposed an alternative. The Supreme Court affirmed both bases. Specifically, the risk of midazolam causing the victim to suffer was found to be not substantial “compared to a known and available alternative method of execution.” Rather than applying the alternative-method rule only to methods meeting the Eighth Amendment standard, the state’s right to execute now supersedes the Eighth Amendment, so death row inmates bear the burden of finding and proving non-cruel execution methods.

Capital punishment is constitutionally allowable (although Justice Breyer’s dissent offers compelling reasons to revisit that assessment), but not mandated. The government is not compelled to kill prisoners, and no individuals have ever been compelled to specifically assist or provide resources. Constitutional limitations control all government actions, including executions – those limitations should not be restricted to accommodate a particular action. But the Supreme Court holds that the state must be able to execute prisoners, and if society denies it the resources to satisfy the Eighth Amendment, cruel punishments may become usual.

by on Leave a Comment

Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project: A fair housing victory also vindicates the right way to interpret Civil Rights law

By Francesca Procaccini

In a seismic, albeit relatively foreseeable, week at the Supreme Court—one in which love and equal justice triumphed over antiquated beliefs and modes of interpreting the Constitution, in which President Obama’s landmark health care bill again repelled attack, in which rights of criminal defendants were safeguarded and the viability of solitary confinement forcefully challenged—one shock wave that emanated from the court was at least as momentous and by far the most unpredictable: in a 5-4 vote the United States Supreme Court confirmed that claims for disparate impact discrimination are cognizable under the Fair Housing Act (FHA)—that is, the FHA prohibits housing policies that have an unintentional discriminatory affect on minorities. The upshot: a Court that has been relatively regressive on civil rights issues protected one of the most powerful tools that poor, minority Americans currently have to fight back against housing discrimination, blighted housing, and the racial segregation of our cities and suburbs.

I recently argued in the Harvard Law and Policy Review that the Supreme Court should uphold the availability of disparate impact claims under the Fair Housing Act and the Equal Credit Opportunity Act, not because it is sound policy (which it is), but because it is the best interpretation of these statutes when analyzed according to how the Court has always analyzed whether anti-discrimination statutes prohibit disparate impact discrimination. Even amid sea changes in the Court’s “political” orientation and the now decades-old spat over whether “textualism” or “purposivism” provides the best method of statutory interpretation, a majority of the Supreme Court has consistently approached the task of interpreting whether a civil rights statute outlaws disparate impact discrimination by reading the text broadly for results-oriented language in light of the purpose and objectives of the statute, its structure, and its legislative and reenactment history.

And this week, in a surprising and crucial victory for civil rights, Justice Kennedy, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, not only affirmed that the FHA creates liability for disparate impact discrimination, but also confirmed that the way in which judges should analyze civil rights and anti-discrimination statutes is through a holistic and contextual understanding that the political branches, perhaps against all odds, have acted to move the nation towards greater racial integration. In other words, a contextual reading has won out over a formalist reading, and TDHC is strike three for the argument that the inclusion or omission of magic words like “adversely affect” do not alone determine the triumph or demise of Congress’s efforts to increase racial integration and harmony.

Specifically, the Court instructed that the proper way to interpret whether a civil rights statute creates liability for disparate impact discrimination is to look broadly for “results oriented language” and then check the purpose, structure, and history of the statute for conformity with this textual interpretation. Justice Kennedy devoted a considerable number of words to reprising the climate of racial violence and discord that directly led to the passage of the FHA in 1968, so as to shine a light on the statute’s central purposes. Next, by examining the FHA’s disparate impact provision within the context of the whole statute and reminding that Congress reenacted this provision unchanged after all nine appellate courts to address the issue had ruled that it authorized claims for disparate impact liability, Justice Kennedy reached beyond the four corners of the statute to more accurately perceive its contours.

In the process, Justice Kennedy rejected the tenuous legal argument—advanced by private employers, housing developers, and credit lenders—that there is tension between the Supreme Court’s 1971 opinion in Griggs v. Duke Power Co., upholding disparate impact liability in employment discrimination under Title VII, and the Court’s 2005 opinion in Smith v. City of Jackson, upholding disparate impact liability in age discrimination under the Age Employment Discrimination Act (AEDA). Defendants in civil rights lawsuits have tirelessly attempted to pigeon-hole Griggs as a one-dimensional purposivist opinion and then to paint Smith as its modern and rational textualist counterpart, insinuating that the interpretive methodologies used in these two opinions are diametrically opposed and that Smith flat-out rejects the method of looking to a civil rights statute’s purpose and history to better interpret its text. This week’s TDHC opinion should be read as finally putting this feeble argument to rest.

Although a careful reading of both Griggs and Smith actually reveals that both opinions employ a holistic analysis that relies on text, purpose, history, and structure, Justice Kennedy went to great lengths to explicitly state that the “the logic of Griggs and Smith” both counsel that the courts should interpret the words of an anti-discrimination provision to be “consistent with the structure and objectives of the [statute].” Accordingly, in TDHC, simply the word “discriminate” was itself enough to find that Congress had prohibited disparate impact discrimination once that general word was read in light of the history, purpose, and structure of the FHA. It was easier to contrast Griggs and Smith when those opinions formed two isolated data points, but this third case charts a pattern and confirms that the various provisions of civil rights statutes are too important to reduce to simplistic semantics. Rather, they require a multidimensional, perceptive, and faithful understanding of the legislative process and its rare achievements to advance the civil rights of poor and minority Americans.

What’s next? Opponents of disparate impact liability will continue to wage their campaign to excise the doctrine from civil rights law, and next up on the chopping block appears to be the Equal Credit Opportunity Act (ECOA), which protects against discriminatory lending and borrowing practices. Interpreted correctly—that is, according to the type of analysis the Supreme Court has now used to interpret the Fair Housing Act, Title VII, and the AEDA—the ECOA prohibits lenders from pursing lending practices that intentionally discriminate against minority borrowers or that disproportionately deny minority borrowers fair and equal access to credit. And the Supreme Court should rule as such when this issue inevitably reaches its docket.