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| Fulfilling the Progressive Promise of the Constitution's Text & History July 2011 |
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Opening Statement
Judith Schaeffer
Vice President, CAC
We're well into summer here in our Nation's capital, with temperatures regularly hitting the sweltering mark and the humidity making things pretty sticky. While that's typical for summer in Washington, one thing is very different: this is the first summer since President Obama took office that there's no Supreme Court vacancy to fill. This means the Administration does not have to devote time to shepherding a nominee through the confirmation process, and the Senate does not have to spend time on confirmation hearings, debates, and a vote.
We have a great suggestion for how the Administration and the Senate should use all that "free" time this summer: get moving faster to fill the vacancies on the lower federal courts. When President Obama took office, there were 55 vacancies on the federal bench, a number that soon exploded and has stood at more than 80 for the past two years -- it's at 91 now -- creating a serious crisis in our federal courts as justice for litigants is delayed or denied.
During the first 30 months of Barack Obama's presidency, the Senate confirmed judicial nominees at an average rate of only three judges per month. (Over the course of George W. Bush's first term, that number was 4.3.) For the sake of our justice system, this leisurely pace cannot continue. We're working hard this summer to get the message out that a substantial dent must be made, and made quickly, in the number of federal court vacancies.
We're also continuing our aggressive response to the skewed constitutional vision of the Tea Party and its allies. The latest installment in our "Strange Brew" series debunking the "Constitution according to the Tea Party" takes aim at the totally misguided "Balanced Budget Amendment" that's been proposed by one of the Tea Party's favorite Senators, Mike Lee of Utah. And with Constitution Day approaching in September, we expect to hear more wild ideas about our Nation's charter from Tea Partiers; CAC will be right there to answer.
For now, enjoy the summer; I hope it's not too hot and humid where you are!
Until next month,
Judith
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Progressive Visions of the Constitution
For years, conservatives have co-opted the conversation about the Constitution, claiming our Nation's charter for themselves, while ignoring the parts they don't like. Led by Supreme Court Justice Antonin Scalia, conservatives claim that constitutional decision making is "easy as pie": you follow the text of the Constitution and you get conservative results.
Since CAC's inception, we have been leading the charge for progressives to take back the Constitution. Though just about every progressive agrees that it's time to reclaim the document, there has been a significant amount of debate over just how progressives can achieve this goal. In the Summer 2011 edition of Democracy Journal, CAC President Doug Kendall and UVA Law Professor Jim Ryan debate University of Chicago Law Professor Geof Stone and UNC Law Professor Bill Marshall on precisely this issue. In our contribution to this series, CAC proposes that progressives beat Justice Scalia at his own game by embracing what we call "new textualism," the core premise of which is that constitutional interpretation must start with a determination, based on evidence from the text, structure, and enactment history, of what the language in the Constitution actually means.
As a result of the debate in Democracy Journal, the Brookings Institution held a debate on July 18 entitled "Progressive Visions of Jurisprudence," featuring Doug and Professor Stone, that was moderated by Brookings Senior Fellows E.J. Dionne and Benjamin Wittes. (Visit our YouTube channel to see Doug's opening statement and some highlights from this debate.)
Speaking of "visions," last month, the National Law Journal honored Doug and CAC by including us on its annual Champions and Visionaries list. Doug was named one of NLJ's ten 2011 "Visionaries" for his "vision of reclaiming the Constitution for the legal left." We're delighted to be included on the NLJ list -- particularly as the only progressive, non-profit organization recognized this year -- but also humbled by the task ahead. The conservative takeover of the Constitution and the courts has resulted from decades of effective strategizing, organizing and mobilizing. Progressives still have a ways to go to meet the right's energy and single-focused determination on these issues. The good news is that we have the Constitution's text and history on our side. CAC is in this fight for the long haul, and we'll keep you posted on our efforts to take back our progressive Constitution.
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The Constitution According to the Tea Party
For a group that claims to revere the Constitution, the Tea Party consistently seems to be dreaming up new schemes to destroy it. The past month was no exception. Attempting to address the need for Congress to raise the debt-ceiling, Senator Mike Lee (R-UT), a Tea Party favorite, proposed a Balanced Budget Amendment to the Constitution that would require a two-thirds supermajority -- the highest threshold for congressional action in the Constitution -- for Congress to increase the debt ceiling, raise taxes, or spend more than the revenues it brings in. With a name like "Balanced Budget Amendment," how could one possibly oppose it? But as CAC's David Gans and David McNamee (one of our two great summer legal interns) explained in a blog post on Text & History, such an Amendment would not only hold hostage the full faith and credit of the United States, but would also be a stark departure from the constitutional order our Founders instituted.
CAC's Doug Kendall expounded on this point in a piece with Dahlia Lithwick for Slate, saying that Lee's proposed Amendment -- which would cap federal spending at 18 percent of gross domestic product in addition to requiring two-thirds majorities in the House and Senate for any tax increase or debt expenditure -- "would make the Framers weep." The Framers established a system in which, in general, the majority rules; moreover, the first two enumerated powers the Constitution vests in Congress -- the power to collect taxes and pay the Nation's debt -- are a direct response to the failed limited government approach of the Articles of Confederation. Thankfully, it does not appear that there are the votes in either the House or the Senate necessary to send the Lee Amendment to the states for ratification.
In other Tea Party nonsense, Tea Party Caucus Chair and "constitutional conservative" Michele Bachmann recently touted her preference for "strict constructionist" judges -- a "philosophy" of constitutional interpretation that even Justice Scalia rejects. For the latest on the Tea Party's constitutional misinformation and distortions, stay tuned to our blog post series Strange Brew on Text & History.
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Supreme Court Term Wrap-Up
On June 27, the Supreme Court ended its October 2010 Term with rulings in four cases, including Arizona Free Enterprise v. Bennett the Court's biggest campaign finance case since last year's controversial, 5-4 ruling in Citizens United v. FEC. Continuing the assault on campaign finance laws that the conservative majority began with Citizens United, the Court in Arizona Free Enterprise struck down the matching public funds program of Arizona's campaign finance law, designed to combat corruption in the state's elections, as an unconstitutional restriction on free speech. This ideologically divided, 5-4 ruling extending the impact of Citizens United in the campaign finance arena was preceded a few days earlier by the 6-3 ruling in Sorrell v. IMS Health, in which the Court appears to have extended Citizens United's protection of political speech by corporations into the separate arena of commercial speech.
As we explained in a post-Term Issue Brief, protection of corporate speech was just one of two themes running through the Court's most important and most sharply divided business cases this Term. The other concerned corporate accountability, as the Court, in a series of closely divided cases including Wal-Mart v. Dukes, AT&T v. Concepcion, and PLIVA v. Mensing, has made it increasingly difficult for Americans to hold corporations accountable for widespread and serious wrongdoing. It truly was a year of big wins for big business, and we elaborated on these disturbing themes in written testimony that we submitted to the Senate Judiciary Committee for its end-of-Term hearing.
In our post-Term Issue Brief, we also updated our empirical analysis of the trends in the success rate of the Chamber of Commerce before the Supreme Court over the past 30 years to include this Term's decisions. Our research demonstrates that the number of ideologically divided rulings is increasing, and that the Chamber is prevailing overwhelmingly in this growing number of cases that split the Court along ideological lines. You can read more about these troubling findings in our Issue Brief, Big Wins for Big Business: Themes and Statistics in the Supreme Court's 2010-2011 Business Cases. |
Litigation Update Last month, for the first time in any court decision involving a constitutional challenge to the Patient Protection and Affordable Care Act, a Republican-appointed judge agreed that Congress had the power to enact the health care reform law, including the minimum coverage provision. In Thomas More Law Center v. Obama, Sixth Circuit Judge Jeffrey Sutton -- a prominent conservative appointed by President George W. Bush -- joined Judge Boyce Martin (a Carter appointee) in upholding a lower court ruling that the minimum coverage provision of the law is constitutional. In our widely-quoted statement, CAC's Chief Counsel, Elizabeth Wydra, concluded that, with his vote, Judge Sutton "transformed the debate over the constitutionality of health care reform from a partisan fight into a legal dispute, one in which, as Sutton recognized, 'the government has the better of the arguments.'" You can read our full statement on the Sixth Circuit's decision here. On June 23, in PLIVA, Inc. v. Mensing, the Supreme Court ruled, 5-4, that generic drug manufacturers may not be sued for allegedly inadequate drug labels under state failure-to-warn laws because it would be "impossible" for the generic drug manufacturers to comply with both state law and federal law. As we explained in our end-of-Term Issue Brief, the ruling in PLIVA stands in sharp contrast to the Court's earlier decision in Wyeth v. Levine, in which the Court held that no such federal preemption exists against the manufacturers of brand-name prescription drugs. Our statement decrying the PLIVA decision is here. On July 5, we filed an amicus curiae brief in the D.C. Circuit in Seven-Sky v. Holder, another challenge to the health care reform law. As in other cases, CAC's brief in Seven-Sky argues that, under the original meaning of both the Commerce Clause and the Necessary and Proper Clause, Congress acted within its constitutional authority in enacting the Affordable Care Act's minimum coverage provision. Please continue to follow the litigation section of our website and our blog, Text & History, for the latest updates in this and all other CAC cases. |
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Constitutional Accountability Center (CAC) is a think tank, law firm, and action center dedicated to fulfilling the progressive promise of our Constitution's text and history. We work in our courts, through our government, and with legal scholars to preserve the rights and freedoms of all Americans and to protect our judiciary from politics and special interests. For more information on CAC, please visit our website at www.theusconstitution.org, or email Brooke Obie at [email protected].
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