Constitutional
Law Class Notes
First, something about Monday’s assignment. It’s probably the single most important
assignment of the semester in terms of analytic or conceptual framework. We’ll be talking about the basic concept of equal
protection for the Equal Protection Clause.
There are ideas of laws being over-
or under-inclusive, and we have a
reading from Chemerinsky on those concepts.
If there’s one assignment to devote extra energy to, it’s this one.
How
do we read Beazer
in relationship to Chemerinsky? Pay more
attention to Chemerinsky. On Monday, we
want to get the analytic framework. We’re
only look at Beazer as an application of the analytic
framework. Beazer will later be compared to
The
New York Times has an article by Greenhouse about the public release of Justice
Blackmun’s papers from his time on the court. That’s Foley’s justice!
To
what degree do justices change their own minds?
The justices feel the weight and pressure of the arguments on both sides
of an issue. They can get tipped to one
side of an issue only to get tipped back to the other side later on. Justices can change their minds well into the
deliberation of the case.
Blackmun’s papers are now public!
More on the political
question doctrine
What
about these lawsuits at the time of the Vietnam War? People filed lawsuits saying that the war was
illegal and unconstitutional because it was undeclared. The court would not judge this issue because
they felt that it was a political question.
In fact, this is the quintessential political question doctrine
situation.
But
what if someone was being sent to prison for resisting the draft for an
undeclared war? Wouldn’t there be
personal consequences to that individual?
Would it still be a political question?
Why would the Supreme Court say that they’re not going to decide what
the Constitution means even though they’re being asked to do so by individuals
who may end up in jail? It’s not enough to say that it is relevant
whether the Court has in front of it an issue of rights or an issue of
powers. The Court is less willing to get
involved in a turf battle between branches.
The presence of a rights question is not dispositive in deciding whether
the Court will tackle the question. That’s
just one factor. Another factor is
whether the Court feels that another branch of government has more expertise on
the subject at hand.
Another
famous political question case was the “Pentagon Papers” case. The New York Times published some documents
about the Vietnam War. The government
went to court to stop the newspaper from publishing the papers, arguing that it
would be a serious breach of national security.
The government invoked the political question doctrine in this
case. They said that the documents were classified
and should not be released. Instead, the
Court decided to protect the freedom of the press. In that case, they felt that the Court must
interpret the Constitution to allow the New York Times to publish the
information.
How
do we explain the difference between the two types of cases? The Court may not feel that they have military expertise, but they do feel
like the guardians of fundamental personal liberties. What they won’t decide in the war powers
context is whether the war itself is
permissible or impermissible. They won’t
get into the question of whether the president can send troops overseas without
congressional authorization.
It’s
hard to figure out when they will intervene; we have no definitive rule.
Isn’t
everything in some sense a political
question? One of the biggest debates
over whether the Court should invoke the political question doctrine has come
up in the case of gerrymandering/redistricting. There have always been claims that the ways
those boundaries get drawn violate equal protection. Is this a political question? Or is it the Court’s role to protect against
discrimination? The court could go
either way on this.
As
a practical matter, when you have constitutional litigation, you must ask
yourself whether the court could possibly decide to invoke the political
question doctrine in this case, even if it hasn’t done so previously. Is there a possibly that the political
question doctrine could be in play, even though on the surface of the precedents
you wouldn’t normally think that it was in play. Any
constitutional question could be considered a political question, but most of
them are not.
What
about the case of Judge Nixon? The Court
said that it could decide when it’s
proper to use the impeachment power or not and decide what the phrase “high
crimes and misdemeanors” means, but they feel that this is a case they shouldn’t
decide because decisions about the impeachment power belong exclusively to Congress.
The
Court is going to think in practical terms.
“What would this mean for the country if we, the Court, decided this question?” Should drawing district lines be subject to
judicial management? The issue of remedies is important. Sometimes you lose sight of the consequence
when you look at the question to be decided.
But the courts, as practical institutions, will be thinking: what’s the
remedial consequence of deciding this constitutional question?
Are
there remedies less extreme than invoking the political question doctrine? Can courts address an issue but impose some
limitations on their own remedial authority?
What about equitable jurisdiction?
Equitable remedies, like injunctions and orders, are thought to be
somewhat discretionary on the part of the court issuing them. A court could address a question on the
merits but delay or limit their remedy.
Always think about the remedy issue.
How burdensome does the court think the remedy will be? The Court can soften the implications of its
decisions by manipulating its remedial power.
In Cheney, what was sought was a writ of
mandamus. Should we give this remedy?
Virtually
every law professor in the country when Bush
v. Gore was going on thought that the Court would find a way to duck the
issue. But they actually granted cert twice.
They can manipulate their own agenda and their own docket when they want
to. They will make strategic judgments
as to the grant or denial of cert.