THE COURT SHOULD NOT LET POLITICALLY DIVIDED TIMES AFFECT ITS CHOICES AND DECISIONS.

AuthorChemerinsky, Erwin

ABSTRACT

The Court should not let politically divided times affect its choices or decisions. Altering the Court's role in politically divided times would require a definition of what qualifies as such an era and a theory of how to act in such times. Almost every era in American history could be deemed a politically divided time. Changing the Court's role in politically divided times is inconsistent with its preeminent role: interpreting and enforcing the Constitution. This role does not change, and should not change, in politically charged moments. Indeed, history shows that the Court cannot know what is likely to lessen divisiveness, and when it has tried, it has gotten it tragically wrong.

TABLE OF CONTENTS INTRODUCTION I. WHAT ARE "POLITICALLY CHARGED MOMENTS" AND WHAT TO DO ABOUT THEM? II. THE COURT'S ROLE DOES NOT CHANGE IN POLITICALLY CHARGED TIMES III. THE CAUTION OF HISTORY A. Dred Scott v. Sandford B. The Slaughter-House Cases C. Nairn v. Nairn CONCLUSION INTRODUCTION

On Friday, January 11, 2019, the Justices met in their private conference to decide the remaining cases to take during the October 2018 Term. (1) There were eight slots open on their April oral argument calendar. (2) The Justices had an amazing array of cases, posing difficult and controversial issues, to choose among. (3)

For example, the Court had on its January 11 conference list the petition for a writ of certiorari in Regents of the University of California v. U.S. Department of Homeland Security, concerning whether President Trump violated the law in rescinding the Deferred Action for Childhood Arrivals (DACA) program. (4) The federal district court enjoined President Trump's action, and the Ninth Circuit affirmed. (5)

The January 11 conference list had a number of potential crucial questions concerning LGBT rights. Bostock v. Clayton County and Zarda v. Altitude Express, Inc. raised the question of whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination "because of ... sex" within the meaning of Title VII of the Civil Rights Act of 1964. (6) The Circuits have split on the question of whether employment discrimination based on sexual orientation is a form of sex discrimination in violation of federal law.' Also, R.G. and G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission raised the related question of whether Title VTI's prohibition of sex discrimination includes a person's gender identity so as to protect people from discrimination based on their transgender status. (8)

There were three different cases--Stockman u. Trump, (9) Doe 2 u. Trump, (10) and Trump v. Karnoski (11)--which involved the validity of President Trump's Executive Order barring transgender individuals from the military. All three federal district courts enjoined the transgender military ban, and the Trump administration was seeking Supreme Court review before any court of appeals decisions. (12)

The conference list also included Box v. Planned Parenthood of Indiana & Kentucky, Inc., which involved the constitutionality of an Indiana law prohibiting abortions performed solely because of the race, sex, or disability of the fetus. (13) The statute also requires facilities to dispose of fetal remains in the same manner as other human remains--by burial or cremation--rather than as medical waste. (14)

The Justices also considered whether to grant review in New York State Rifle & Pistol Ass'n v. City of New York. (15) This case involved a New York City law that limits handgun owners to possessing their guns at the address listed on their handgun licenses, with the sole exception of transporting their guns "directly to and from" one of approximately seven "authorized small arms range/shooting club [s], unloaded, and in a locked container, the ammunition to be carried separately." (16)

The conference list also included Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation and Presbyterian Church in Morristown v. Freedom from Religion Foundation. (17) The New Jersey Supreme Court unanimously ruled that Morris County, New Jersey, violated the New Jersey Constitution when the County provided public funds for the preservation of historic buildings for restoration of churches. (18) In 2017, in Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court held that a state violated free exercise of religion when the state refused to provide parochial schools funds for surfacing playgrounds when the same money was available to secular private schools. (19) The question is whether this analysis extends to money for historic preservation. (20)

The Supreme Court took none of these cases on January ll. (21) None were heard in October Term 2018. (22) The conclusion is inescapable that the Court made a deliberate choice to stay away from the most divisive, controversial issues. In light of the bruising confirmation fight over the nomination of Brett Kavanaugh, it seems obvious that the Court decided to have a lower profile this Term.

In fact, the most high-profile, controversial cases of the term were ones the Court had little choice but to hear. Rucho u. Common Cause--which involved whether federal courts can hear challenges to partisan gerrymandering--had been decided by a three-judge federal district court. (23) The Supreme Court is obligated to take such cases when appellate review is requested. (24) In Department of Commerce v. New York--which involved whether the Commerce Department could include a question about citizenship on the census--the government told the Court that the census forms had to be printed by June 30, 2019, and the Court therefore took the case even before review in the court of appeals. (25)

Assuming I am correct that the Justices decided to avoid divisive issues whenever possible in October Term 2018, the Court seriously erred. The Court abdicates its role in the system of separation of powers when it fails to hear and decide important issues of federal law, including constitutional questions. A crucial responsibility of the Court is to give guidance to lower courts, to legislatures, and to litigants as to the law. The Court does not do this when it chooses to avoid the hard cases.

Moreover, the Court's inaction has an unintended consequence: the Court took many of these cases for the next term and they will be decided in the spring of 2020, in the midst of a presidential election campaign. The Court subsequently granted certiorari in cases mentioned above--such as those involving DACA, (26) sexual orientation discrimination in employment, (27) discrimination against transgender individuals in employment, (28) and the New York City ordinance regulating guns outside the home. (29) These cases are scheduled to be heard in October Term 2019. (30) The Court obviously will not succeed in its quest for a lower profile.

My thesis is that the Court should not let politically divided times affect its choices or decisions. I make three points. First, altering the Court's role in politically divided times would require a definition of what qualifies as such an era and a theory of how to act in such times. Such a definition and theory are elusive. Indeed, almost every era in American history could be deemed a politically divided time. (31) Second, changing the Court's role in politically divided times is inconsistent with its preeminent role: interpreting and enforcing the Constitution. (32) This role does not change, and should not change, in politically charged moments. Third, history shows that the Court cannot know what is likely to lessen divisiveness, and when it has tried, it has gotten it tragically wrong. (33)

I, of course, do not deny that inevitably the Justices are affected by the society in which they live. My point is that the Court should not try to manage those times by altering its behavior because of partisan divisions within society, even at a time like now when there is enormous ideological polarization.

  1. WHAT ARE "POLITICALLY CHARGED MOMENTS" AND WHAT TO DO ABOUT THEM?

    This Symposium focuses on "The Role of Courts in Politically Charged Moments." The question is whether this role should change at such times. But this raises a threshold question: What are "politically charged moments?" If the role of the courts is different at such times, it is essential to have a definition of when they exist. I know of no such definition and, even if there were such a definition, I am skeptical whether it would be possible to know if it was met at the time of the determination. I think it is very hard to assess one's own times. Would a politically charged moment be determined by the closeness of the most recent presidential election? Would it be ascertained by whether the President and Congress are controlled by the same political party (which would mean that the first two years of the Trump administration would not be deemed a politically charged time)? Or is it a matter of public opinion polls on key issues? But then what issues, and what would be the standard for divisiveness?

    Looking back, when have there not been politically charged moments in American history? Certainly, early American history was politically charged as reflected in the enactment of the Alien and Sedition Acts of 1798 and the divisive presidential election of 1800, which was decided by the House of Representatives. (34) The country was deeply divided over the issue of slavery in the nineteenth century before the Civil War. In the years after the Civil War, there was the impeachment of President Andrew Johnson and Reconstruction, which certainly made that time a "politically charged moment." (35)

    The first part of the twentieth century saw a divisive debate over whether the United States should participate in World War I. It also was a time of great disagreement over the role of the government in protecting workers and consumers; during this period of time, known...

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