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Judicial Nominations of Legal Scholars: How Much Does Prior Scholarship Indicate Likely Decisions on the Bench?

By on February 6, 2013 11:49 pm in Judicial Nominations, Stare Decisis

CUNY Law Professor Jenny Rivera has been nominated for a position on the New York Court of Appeals. In a hearing earlier this week, some of the questioning focused on her article, An Equal Protection Standard for National Origin Subclassifications: The Context that Matters, 82 Wash. L. Rev 897 (2007), the abstract of which includes the following:

This Article argues that context that is specific to and conscious of the experience and legal position of national origin groups matters just as much as racial themes and context in race-based legislation. It analyzes equal protection challenges to Latino classifications and presents a new approach to equal protection doctrine and discourse in which Latino national origin subclassifications are contextualized and recognized as legally relevant and operative. The Article demonstrates that the context that matters in national origin classification cases depends on factors associated with country of origin subclassifications, as well as the homogeneous classification of all persons of Latin American and Latino Caribbean descent as Latino.

This Article’s proposed uniform standard of review for national origin subclassifications depends upon the legal, historical, cultural, and political context of subclasses. To justify a contextualized definitional and constitutional analysis, it draws on the history surrounding the definition of “Latinos” and “Hispanics” in the United States. Subclassifications are constitutional if (1) the initial legislative or administrative decision to classify by national origin satisfies the current strict scrutiny standard, which requires a narrowly-tailored remedy that serves a compelling governmental interest; and (2) the subclassifications are based on the intragroup dynamics and histories of the relevant target subclass, focusing on the experience of individuals within the subclass as “Latinos” and as subclass members.

Rivera was asked in the hearing if and how the views advocated in her article reflected how she would interpret and apply the […]

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The Conventional Wisdom Before Missouri v. Holland: Was It “Close To Universally Accepted” That a Treaty Could Increase The Legislative Powers of Congress?

By on January 22, 2013 12:09 am in Constitutional Law, Stare Decisis, Treaties

I have criticized Missouri v. Holland for concluding — in one unreasoned sentence — that a treaty can increase the legislative power of Congress. But Rick insists that, by 1920, only one sentence was necessary. He writes: “That sentence in Holland merely reflects a position that had been close to universally accepted long before Holland and in the all the years since. In constitutional treatises throughout the 19th century, in political debates within Congress, in federal court decisions that touched on the issue, the view expressed in Missouri v. Holland had long been the essential position on this issue.”

This is a bold claim to make without citation. I’m afraid that it is incorrect on each point.

First, treatises. Just five years before Missouri v. Holland, a leading treatise on the treaty power was written by Henry St. George Tucker — law professor, dean, congressman, ABA president. Tucker considered the precise claim at issue here: “that when a treaty may need legislation to carry it into effect, has embraced a subject which Congress cannot legislate upon, because not granted the power under the Constitution, that the treaty power may come to its own assistance and grant such right to Congress, though the Constitution, the creator of both, has denied it.” The treatise emphatically rejected this proposition, and for just the right reason: “[s]uch interpretation would clothe Congress with powers beyond the limits of the Constitution, with no limitations except the uncontrolled greed or ambition of an unlimited power.” Henry St. George Tucker, Limitations on the Treaty-Making Power, s 113, at 129-30 (1915).

Second, congressional debates. The most important such debate about the treaty power was the one surrounding the Louisiana Purchase. The debate is too involved to recreate here, and a wide variety of positions were expressed, but […]

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What If Lower Court Judges Weren’t Bound by Supreme Court Precedent?

By on July 7, 2011 4:43 pm in Stare Decisis

Last week’s post, What Should Conservative Lower Court Judges Do With Liberal Supreme Court Precedents?, drew some interesting comments. I wanted to respond to one common argument: Lower court judges take an oath to defend and are bound by the Constitution, not the Supreme Court’s erroneous version of the Constitution. As a result, the argument runs, they should put aside Supreme Court precedents and follow the true Constitution instead. Put another way, lower-court judges should interpret the Constitution as best they see it, not as best the Supreme Court sees it.

Let’s assume this argument is correct, and let’s see how it would play out in practice. In particular, let’s say you’re a new federal district court judge. You’ve just been confirmed by the Senate, and on your first day there are three cases on your docket: 1) a constitutional challenge to a state law flatly banning the possession of guns, exactly like the law struck down in McDonald; 2) a constitutional challenge to a federal law banning the possession of guns in school zones, exactly like the law struck down in Lopez; and 3) a constitutional challenge to a campaign finance law that is extremely similar to the one struck down in Citizens United.

How should you decide these cases as a new Federal District Court Judge? If you believe that lower court judges are bound by precedent, then your decisions are easy. You have to strike down the gun law under McDonald and Heller; you have to strike down the second law under Lopez; and you have to strike down the third law under Citizens United. Whether you happen to agree with these 5-4 Supreme Court decisions is irrelevant, as you are bound by them and have to apply them. All […]

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