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“Get Over It”: Justice Scalia and Bush v. Gore, Roe v. Wade and Obergefell v. Hodges

It is one of the worst Supreme Court decisions in history.

No, I’m not referring to Dred Scott v. Sanford, which held that blacks could never be U.S. citizens, thereby making the Civil War all but inevitable.

I’m also not referring to Plessy v. Ferguson, which upheld separate but equal and ushered in Jim Crow.

I’m not referring to Lochner v. New York, where a laissez faire Supreme Court struck down pro-labor progressive legislation.

And I’m not referring to U.S. v. Korematsu, which upheld the internment of loyal Japanese-American citizens during World War II.

All four of these decisions are morally repugnant, and several are even evil.

No, I’m referring to the infamous and much more recent 2000 decision in Bush v. Gore, where the Court called a halt to the Florida recount and effectively selected George Bush as President of the United States.

This is, in my opinion, perhaps the most overtly politically partisan decision in Supreme Court history. Five Republican-appointed Justices voted for the Republican candidate, while the four dissenters, including two Democrat-appointed Justices and two Republican-appointed Justices, maintained that the Court should not have become involved or at least should not have stopped the recount.

Bush v. Gore blatantly violated the most basic principles of federalism, comity and judicial restraint. The five Justices in the majority, even if they thought they acted in good faith, fooled themselves into thinking that they were simply interpreting the Constitution rather than voting their own partisan political preferences. Justice Scalia was, of course, one of those.

Why do I bring up Bush v. Gore? Because Justice Scalia repeatedly admonished those who criticized the Court’s decision to “get over it.”

But Justice Scalia himself never could get over Roe v. Wade, the 1973 landmark abortion decision. He contended that Roe was incorrect and should be overruled, regardless of the consequences. He repeatedly and heatedly accused his colleagues of intellectual dishonesty and of supplanting the political process.

He could never get over the Court’s decision in Romer v. Evans, dealing with sexual orientation discrimination. He accused the majority of taking sides in the culture wars and of signing on to the “homosexual agenda.”

He angrily attacked the Court’s decision in U.S. v. Windsor, striking down the Defense of Marriage Act, and commented bitterly (and correctly, as it turned out), that Windsor would directly lead to constitutionalizing same-sex marriage. Then came Obergefell v. Hodges, the blockbuster 2015 decision finding a due process right to same-sex marriage.

I fully understand Justice Scalia’s anger and frustration regarding abortion and same-sex marriage, even though I disagree with his views on the merits. And I even understand why he could never “get over” those decisions.

But his calls for others to “get over” Bush v. Gore always rang hollow to me and smacked of disingenuousness or even hypocrisy.

I continue to teach Bush v. Gore as the last case in my constitutional law course because it is the best example of a wrongheaded and politically partisan Supreme Court decision handed down by a triumphalist Court.

I still cannot get over it.

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Written by snahmod

February 22, 2016 at 2:02 pm

Posted in Constitutional Law

Federal Attorney’s Fees Statute Means What SCOTUS Says It Means: Slapping Down the Idaho Supreme Court

It is hard to believe in this day and age that a state Supreme Court thinks it can advance its own interpretation of federal law contrary to an interpretation by the United States Supreme Court. But that’s exactly what happened in James v. Boise (No. 15-493), handed down on January 25, 2016.

In a terse per curiam decision, the Supreme Court slapped down the Idaho Supreme Court and declared that its interpretation of 42 U.S.C. section 1988, the Civil Rights Attorney’s Fees Awards Act, governed.

Recall that section 1988 provides that “a reasonable attorney’s fee” should be awarded to “the prevailing party” in a section 1983 suit. In Hughes v. Rowe, 449 U.S. 5 (1980)(per curiam), the Supreme Court, relying on the clear legislative history, interpreted this language as creating a double standard: a prevailing plaintiff is ordinarily entitled to fees but a prevailing defendant is only entitled to fees where the plaintiff’s suit was “frivolous, unreasonable, or without foundation.” See chapter 10 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2015)(West).

However, in the James case, which arose in the Idaho courts, the Idaho Supreme Court expressly rejected this interpretation of section 1988 as applied to prevailing defendants when section 1983 claims are brought in state courts.

Unsurprisingly, the Supreme Court reversed. Giving the Idaho Supreme Court a lesson from the basic course in constitutional law, the Supreme Court cited Martin v. Hunter’s Lessee, 1 Wheat. 304 (1816), for the proposition that Supreme Court interpretations of federal law are the supreme law of the land. They trump any contrary state court interpretations.

It quoted Rivers v. Roadway Express, Inc., 511 U.S. 298, 314 (1994): “It is this Court’s responsibility to say what a [federal] statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law.”

There is no need to comment on this decision. Res ipsa loquitor.

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Written by snahmod

February 12, 2016 at 11:53 am

Posted in Civil Rights - Section 1983, Constitutional Law

My Class on Race, Dred Scott and Korematsu (Audio)

On October 21, 2015, I audio-taped a 55-minute makeup class on racial discrimination that covered two major (and infamous) Supreme Court cases, Dred Scott and Korematsu.

I hope you find it of interest.

Here it is:

listen online:
http://kentlaw.hosted.panopto.com/Panopto/Podcast/Stream/87d8daec-1f34-4d84-a418-1948f821f298.mp3

or download file here

Follow me on Twitter @NahmodLaw.

Written by snahmod

January 4, 2016 at 10:54 am

Posted in Constitutional Law

My Class on Presidential Immunity and Separation of Powers, with an Introduction to Preemption (Audio)

On October 7, 2015, I audio-taped a 55-minute makeup class on presidential immunity–our last class on separation of powers–and then began preemption with a hypothetical. Cases covered included Nixon v. Fitzgerald and Clinton v. Jones.

I hope you find it of interest.

Here it is:

listen online:

or download file here

Follow me on Twitter @NahmodLaw.

Written by snahmod

January 4, 2016 at 10:37 am

Posted in Constitutional Law

My Class on the Affordable Care Act Case: Taxing, Spending and the Commerce Clause (Audio)

I audio-recorded a 55-minute makeup constitutional law class on the groundbreaking Affordable Care Act Case (NFIB v. Sibelius).

This class took place on September 16, 2015, and dealt with the taxing power, the spending power, the individual mandate of the Affordable Care Act and the commerce power.

I hope you find it of interest.

Here it is:

listen online:

or download file here

Follow me on Twitter @NahmodLaw

Written by snahmod

December 28, 2015 at 11:42 am

Posted in Constitutional Law

My First Amendment Class on Access to the Press and to Information (Audio)

I audio-recorded a 1 1/2 hour makeup class in my First Amendment course. This class took place on November 18, 2015, and dealt with freedom of the press, access to the press and press/public access to information.

This class began with my brief review of the preceding class that addressed the First Amendment as a shield for the press, including Cohen, Branzburg and Zurcher.

I then got right into the cases that address the First Amendment as a sword, including Red Lion, Miami Herald, Richmond Newspapers and Houchins.

I hope you find it of interest.

Check it out below.

listen online:

or download file here

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Written by snahmod

December 28, 2015 at 10:57 am

Posted in First Amendment

The Confederate Flag and the Walker Case: A Video

Several weeks ago the Chicago-Kent Federalist Society sponsored a discussion of the Confederate Flag. John Kunich (University of North Carolina at Charlotte) and I spoke about the symbolism of the Confederate Flag.

In particular I discussed the Supreme Court’s recent important First Amendment Confederate Flag/license plate decision in Walker v. Texas Div., Sons of Confederate Veterans, Inc. (No. 14-144, 6-18-15). I also addressed government speech and forum analysis.

The program lasted for 50 minutes, and I was the second speaker. There was no followup discussion.

Here is the video of that program. I hope you find it of interest.

I invite you to follow me on Twitter @NahmodLaw.

Written by snahmod

November 24, 2015 at 9:59 am

Posted in First Amendment

Supreme Court Preview 2015 Term (Video)

In early October 2015, my colleague Chris Schmidt and I participated in an hour-long Preview of the Supreme Court’s current 2015 Term that was sponsored by Chicago-Kent’s American Constitution Society.

Professor Schmidt provided an overview of the previous Term as well as brief comments on several of the cases pending in the current Term.

I spoke at some length about one particular case pending in the current Term, the Fisher affirmative action case now before the Court for the second time.

I am pleased to post a video of this Preview, and hope you find it of interest. Special thanks to Chicago-Kent’s Audio-Visual staff and its Public Relations staff, as well as to ACS.

You can find related posts by searching on my blog for “affirmative action” and “Fisher.”

Here it is:

Written by snahmod

October 30, 2015 at 11:12 am

Posted in Constitutional Law

All My First Amendment Posts to 10-12-15

This is Part III of the All My Posts series to 10-12-15. Part I, dealing with section 1983 and Part II, dealing with Constitutional Law, were also posted today.

Please search within this post for any cases, topics and the like that you are interested in.

PART III: FIRST AMENDMENT

Freedom of Speech (1): Three Rationales

Freedom of Speech (2): Content, Medium and Forum

Freedom of Speech (3): The Clear and Present Danger Years

Freedom of Speech (4): Internet Threats and Elonis v. United States

Public Employee Free Speech: The New Regime

From Buckley to Citizens United (Part One of Two)

From Buckley to Citizens United (Part Two of Two)

Government Speech and Justice Souter (1): Introduction

Government Speech and Justice Souter (2): Rust v. Sullivan

Government Speech and Justice Souter (3): Rosenberger v. Rectors of the University of Virginia