Over the course of three decades on the Supreme Court, Justice Anthony Kennedy has developed a legacy as a passionate defender of the First Amendment. In case after case, Kennedy has spelled out the structural role the First Amendment plays in our democratic system of government, insisting that the government may not discriminate against forms of speech or political association disfavored by the government. Doing so, as Kennedy has explained, runs afoul of one of the First Amendment’s most basic rule--its prohibition on viewpoint discrimination. The question
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Ziglar offers a thin, unconvincing view of separation of powers that never takes seriously that the judiciary has an affirmative role to play in the Constitution’s system of separation of powers. It closes the courthouse doors on victims of unconstitutional misconduct, discounting the judicial check our Constitution’s Framers insisted. It turns its back on the rule of law, the building block of our most precious constitutional guarantees.
When Judge Gorsuch appears to testify before the Senate Judiciary Committee this week, he will have a heavy burden to meet: he cannot simply call himself an originalist. Instead, he must demonstrate that he truly is one—and that his brand of originalism respects the whole Constitution, and that he will follow it wherever it leads. He must demonstrate his fidelity to the Second Founding Amendments that protect fundamental rights and ensure equal dignity under the law for all persons. And if he doesn’t, senators on the Judiciary Committee ought to ask him why.
As we’re certain to hear during this week’s Senate Judiciary Committee confirmation hearing, conservatives insist that Judge Neil Gorsuch of the Denver-based 10th Circuit should be confirmed because he is an originalist who will decide cases by following the Constitution’s text and history. But a review of his record — both his opinions and his nonjudicial writings — suggests that he is a selective originalist.
The fundamental question in Hernández v. Mesa is whether Hernández’s family can seek redress for this tragic abuse of power. Under the Constitution’s text and history, the answer is yes. The role of the courts in our system of separation of powers is to check official abuse of power and maintain the rule of law. There is no “border shooting” exception to these foundational principles.
A ruling striking down these districts would be an important victory not just for those challenging them, but also for our Constitution’s promise of equal political opportunity for all.
A key chapter in North Carolina’s long running attack on one of our Constitution’s most cherished principles—equal political opportunity for all regardless of race—comes to the Supreme Court next week. The pair of redistricting cases the Justices will hear (one from North Carolina, one from Virginia), which have gone largely unnoticed, will be an important test for the Roberts Court. In deciding these cases, it will be critical that the Court ensure that states respect the Constitution’s promise of equal opportunity for all, reflected in the Fourteenth and Fifteenth Amendments, and the Voting Rights Act.
For now, one thing is clear: federal courts have played a key role in upholding the fundamental right to vote for all people this November and in ensuring that states abide by the Constitution.
Access to courts may not grab attention in the same way that issues such as guns, abortion, or affirmative action do, but it forms the foundation of the rule of law. How this law changes after Scalia will determine whether minorities victimized by the government, consumers threatened by corporate power, and others will have the right to go to court to redress violations of their rights. The vitality of the Constitution and federal law depends on ensuring that individuals have their day in court to vindicate their legal rights and prevent the abuse of power.