Author: Gerard Magliocca


Upcoming Event in Philadelphia

In May, I’ll be participating in a panel at the National Constitution Center to mark the 150th Anniversary of the adoption of the Fourteenth Amendment by Congress.  This event is open to the public and will include several notable names.  If you’re interested in attending, here is the link.


The End of the Swing Justice

240px-IngamozgasThis is an idea that I’m going to do a series of posts on because I’m thinking about the topic for an article.  Let’s start with this question:  Suppose Judge Garland is confirmed to the Supreme Court.  Who would then be the swing justice in ideological cases?  The answer, I submit, is nobody.  In any given case it could be Garland, Breyer, Ginsburg, Kagan, or Sotomayor.  And I think this will be a good thing.

We have lived for a generation in a world where there was clearly a swing justice. For the past ten years it’s been Justice Kennedy.  Before that it was Justice O’Connor and sometimes Justice Kennedy.  Before that it was Justice Powell.  You’d have to go back to the mid-1970s to find a time where there wasn’t a single person who played this pivotal.

The rise of the swing Justice did considerable damage to constitutional law.  First, it gave too much power to that one person. Second, briefs and opinions were unduly influenced by the idiosyncratic views of that person rather than by the doctrine.  (Obergefell is a good example.) Both of these effects undermined the rule of law within the Court.

Moreover, the notion of a swing Justice is a distinctly modern one.  Until the 1930s, nobody would have understood that idea because the Court operated much more by consensus.  Indeed, my research suggests that the term was even used until the 1960s.  More on that another time.


Pro Forma Senate Sessions

I have a question for people who know Senate procedures better than I do.  Is a quorum presumed when the Senate convenes?  Here’s why I’m asking.

Suppose the Senate meets in one of its pro forma sessions to block recess appointments by the President.  Typically this sort of session involves two Senators-one sits in the Chair and the other is on the floor. They usually do nothing other than (1) approve an order to meet again in three days, and then (2) adjourn.  But what if the Senator on the floor said “I ask for unanimous consent that ‘The Everything Republicans Want to Enact Omnibus Act’ be passed.” The Chair responds:  “Is there objection?  Hearing none, the bill is passed.”

Can this be done?  One reason the answer could be no is that a quorum must be established first.  My sense from watching the Senate, though, is that they do not typically begin their day by initiating a quorum call and establishing one.  But am I wrong about that?


Time For More Certiorari Grants

Though it may be impolitic to say, one result of Justice Scalia’s death is that the Justices will have much less work.  Today they issued their second one-sentence “affirmed by an equally divided Court” decision, and more are sure to follow.  Thus, I would guess that this Term will have the fewest number of opinions in many years.

This creates an opportunity.  Lawyers have long complained that the Justices take far too few cases in the less glamorous areas of law.  (bankruptcy, tax, ERISA, IP, administrative law, securities regulation etc.).  One explanation for that is that the Court has to reserve its docket for important constitutional cases.  For now, though, it’s fair to say that the Court will be unable to resolve most of those. While they may split in other sorts of cases (the first tie after Justice Scalia’s death involved a bankruptcy issue), that sort of deadlock is less likely.  I would therefore suggest that they lean forward in stocking their docket with these sorts of meat-and-potatoes matters for next Term, where there is high likelihood they will be without a ninth member for a significant period of time.


One Way to Force a Senate Hearing on Judge Garland

Apologies for the light blogging of late.  I’m on sabbatical next semester, which means that in a few weeks I expect to be posting much more frequently (you decide whether that is exciting news or not).

With respect to the nomination of Judge Garland, I don’t expect much to happen until November.  I’m surprised, though, that the focus has been on how to bring public pressure on Senate Republicans (or just some of them) to hold a confirmation hearing.  I would think that the more effective strategy would be for Senate Democrats to start filibustering things that Republicans want until a hearing is granted.  Then again, these days Senate Democrats are probably feeling good about their chances of taking the Senate after Trump gets wiped out in the Fall, so why do anything that gets in the way of that?


The Citizenship Oath

When new American citizens are naturalized, they take the following oath:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.

The first part of the oath strikes me as odd.  Someone who becomes a citizen is not, in fact, required to renounce their prior citizenship–there are lots of dual nationals who are naturalized American citizens.  The second part (about subjecting yourself to the draft or to a noncombatant role) is rather outdated.  And nothing in the oath refers to the actual duties of citizens (serving on juries, paying taxes, etc.)  Perhaps it’s time for a new oath.


Revisiting School Segregation in DC

One truism about the original understanding of the Fourteenth Amendment goes something like this:  The Thirty-Ninth Congress thought that racial segregation by the government was constitutional.  How do we know this?  Because that Congress voted to maintain racial segregation in the public schools of the District of Columbia.

When I was writing my biography of John Bingham, I was curious to see what that was about.  What I found is that there was no discussion of the issue at all.  Basically, what happened is that Congress simply voted appropriations for schools that were apparently segregated without any objection.  I thought this a little odd, but did nothing more.

Yesterday I was reading the briefs in Bolling v. Sharpe and I was startled to see that one of the arguments made by the NAACP was that the Acts of Congress governing public schools in the District of Columbia did not impose mandatory segregation.  Their position was that schools in the District were segregated in practice and that the relevant statutes recognized this fact, but that integrated schools did not violate those statutes. The brief went on to distinguish state school segregation statutes, which were perfectly clear, with the ambiguous ones in the District.  (Today we might say that the DC laws should be read as not mandating segregation to avoid constitutional difficulties.)

This raises a question in my mind about whether, in fact, the Thirty-Ninth Congress (or any other, for that matter) actually required segregation in public schools there.  I’m going to look into this further.


Some Thoughts on the Garland Nomination

I interviewed for a clerkship with Judge Garland right after he was confirmed to the D.C. Circuit.  It was a disaster, but entirely because I was young and didn’t understand how to handle those sorts of situations.  He’s an excellent judge, though I don’t think that Senate Republicans will allow the nomination to go forward for now.

I want to make two observations about this choice.  One is that it shows how hard it is break the recent paradigm for Supreme Court Justices (someone from Yale or Harvard who served as a federal appellate judge).  Only Elena Kagan partially breaks with this template (she was not a judge) going all the way back to Sandra Day O’Connor.

The other is that I think this choice could pose a problem in the Fall.  Suppose that in October Senate Republicans look at the polls and conclude that Hillary will win and the Democrats will take back the Senate.  Or suppose it’s November and those things have happened.  At that point Garland will look a lot better than what’s behind Door #2.  If they try to confirm Judge Garland then, though, will Hillary or some Senate Democrats object and try to hold out for a different choice?  Would the nomination be renewed in January 2017 under those circumstances?

In the end, I wonder if Judge Garland will be another Al Gore.  You win the prize, but you don’t receive the prize.


Who Owns Soccer?

I’m pleased to announce that Mike Madison, a terrific IP scholar at the University of Pittsburgh Law School, will be giving a talk at my school on Tuesday, March 29th on “Laws of the Game:  Who Owns Soccer?”  The details are here for those who would like to attend.


National Party Conventions as Authoritative Bodies

A thought that occurred to me yesterday is that the forum most likely to decide the issue of whether Ted Cruz is a natural-born citizen eligible for the presidency is the Republican National Convention. If the convention is contested, then the Trump delegates are bound to make a motion stating that Cruz is ineligible and to force a debate on the issue.  The decision of the convention could then be cited in any future discussion or case on that provision.  I’m not sure if courts have cited convention decisions or platforms in the past, but that’s something that I’m going to explore.