Michael Arnheim

Article / Updated 05-03-2023

The Supreme Court overturned Roe v. Wade on June 24, 2022, ending nearly 50 years of a woman's constitutional right to an abortion. The decision allows individual states the ability to set their own abortion laws, banning or restricting the procedure as they see fit. The nation was expecting the landmark decision due to a leaked draft of the Supreme Court's deliberations in the related case Dobbs v. Jackson Women's Health Organization. The leaked document, obtained by news outlet Politico on May 3, 2022, indicated the court's plans to overturn Roe v. Wade. At the time of the leak, about half of the states were poised to ban or severely restrict abortion, following the expected ruling. The history of Roe v. Wade Before the court's decision in 2022, Roe v. Wade had been the litmus test for confirmation to the U.S. Supreme Court bench. No judge who came out openly against Roe v. Wade was likely to be confirmed. In the 1973 case, the Supreme Court ruled 7–2 that women have the right to an abortion, at least during the first trimester of pregnancy. The court characterized abortion as a “fundamental” constitutional right, which means that any law aiming to restrict it is subject to the standard of strict scrutiny. In Planned Parenthood v. Casey (1982), the high court modified Roe by giving the state the right to regulate an abortion, even in the first trimester, as long as that regulation doesn’t pose an “undue burden” on the woman’s fundamental right to an abortion. One such “undue burden” identified in Casey was any requirement for the woman to notify her husband. A Texas law that placed certain restrictions on abortion clinics in the state was struck down by the Supreme Court, in a 5–3 vote, as placing an “undue burden” on abortion rights in Whole Woman’s Health v. Hellerstedt (2016). In Stormans Inc. v. Wiesman (2016), a five-justice majority on the court refused to hear a challenge to a Washington state law making it illegal for pharmacists to refuse to dispense contraceptive drugs. In a dissent, Justice Samuel Alito, joined by Chief Justice John Roberts and Justice Clarence Thomas, wrote: “This case is an ominous sign … If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.”

Cheat Sheet / Updated 01-27-2022

The US Constitution was written and signed by men who craved independence from Britain but who were nonetheless steeped in its history and ideals. The document starts with some basic precepts of English governance, but then adds some uniquely American twists — three branches of government that act to check and balance each other, for example. Although much thought went into the Constitution, the framers left it open to amendment. The first ten amendments were ratified just four years after the Constitution itself and are known as the Bill of Rights.

Article / Updated 03-19-2021

The 25th Amendment to the US Constitution, ratified in 1967, made some arrangements about the presidency and vice presidency. Most of the 25th Amendment addresses points like who replaces the US president if he dies while in office or resigns, how to fill a vacancy in the vice presidency, and how a president can temporarily transfer powers to the vice president in the event he cannot discharge his duties. One of the most talked about provisions of the 25th Amendment is the fourth section, which establishes how a US president can be removed from office if it is believed he is unfit to govern. Section 4 of the 25th Amendment, which has never been used, deals with the tricky situation when the vice president and Cabinet decide that the president is “unable to discharge the powers and duties of his office.” Some believe this provision is potentially dangerous, as it could be used as a political weapon against a US president who is disliked by his vice president and a majority of his Cabinet. The 25th Amendment stipulates that to remove a US president from office, the vice president and a majority of the president’s Cabinet or the vice president and a similar group designated by Congress must tell the leaders of the Senate and House of Representatives that the president is unable to carry out his responsibilities to the nation. On delivery of this notice, the vice president immediately becomes acting US president. Of course, the president can dispute this assessment and send a written message to the Senate and House leaders stating that he is able to do his job. Thus begins a political game of “he said, she said.” One reason this section of the amendment is confusing is because it doesn’t clearly define the role of Congress in initiating the 25th Amendment. The actual text of the 25th Amendment states the vice president can initiate proceedings with “a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide.” To date, Congress has not passed a law designating a body that would work with the vice president in starting 25th Amendment proceedings. The most recent attempt to clarify this portion of the amendment came in October 2020 when Rep. Jamie Raskin (D-MD) introduced a bill that would establish a “Commission on Presidential Capacity to Discharge the Powers and Duties of the Office” to fill this duty. Raskin introduced similar legislation in 2017 as well during the presidency of Donald Trump. If the vice president and the Cabinet or Congress members disagree with the US president about his capabilities, they have four days to inform the president pro tempore of the Senate and the speaker of the House that they want the president removed. At that point, the issue moves to the House and Senate. Lawmakers have 21 days to decide whether the president is capable of performing his duties. It requires a two-thirds majority vote of both houses of Congress — 288 members of the House of Representatives and 67 members of the Senate — to permanently remove a president from office using the 25th Amendment. If two-thirds of lawmakers vote in favor of the vice president, the president is removed from office, and the vice president becomes the acting president. If fewer than two-thirds of representatives and senators agree with the vice president and Cabinet or congressional body, the president can resume his duties, presumably with a big focus on firing members of his Cabinet and asking for the vice president’s resignation. The 25th Amendment of the US Constitution (Ratified February 10, 1967) Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President. Section 2. Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President. Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office. Check here to learn more about the 25th Amendment.

Article / Updated 10-21-2018

The Constitution emerged from a meeting called the Philadelphia Convention, which took place in 1787. (That meeting has since come to be known also as the Constitutional Convention.) The Convention was held because the Articles of Confederation — the document that had been serving as the country’s first governing constitution — were considered to be weak and problematic. The stated goal of the Convention was to revise the Articles of Confederation, but the outcome was much more than a mere revision: It was a new form of government. See the figure for a look at a scene from the Convention. The 55 delegates to the Philadelphia Convention came to be known as the Framers of the Constitution. They represented 12 of the 13 states (Rhode Island didn’t send a delegate), and they included some familiar names, such as George Washington, Alexander Hamilton, and James Madison. The Convention lasted from May 25 to September 17, 1787. In the end, only 39 of the 55 delegates actually signed the Constitution. Three delegates refused to sign it, and the rest had left the Convention before the signing took place. For the Constitution to take effect, it had to be ratified — or confirmed — by nine states. Special conventions were summoned in each state, and the Delaware, New Jersey, and Georgia conventions ratified the Constitution unanimously. But some of the other states saw a pretty fierce battle for ratification. In New York, for example, the Constitution was ratified only by 30 votes to 27. Ratification was achieved in 1788, and the Constitution took effect with the swearing in of President George Washington and Vice President John Adams on April 30, 1789.

Article / Updated 10-21-2018

Chief Justice Charles Evans Hughes famously remarked that, “We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and our property under the Constitution.” The Chief Justice was right to point out that the meaning of the Constitution keeps changing as a result of judicial interpretation and reinterpretation, without any change in the words on paper. Changing the Constitution Hughes was not criticizing the courts for this process but was actually praising them. Not everyone would agree with this view. Here are some of the reasons for opposing judicial changes to the Constitution: Article V of the Constitution makes it clear that the only way that the Constitution can be changed is by formal amendment, which requires a two-thirds majority in both houses of Congress and ratification by three-fourths of the state legislatures. The Framers deliberately made amendment difficult, so that any change would command broad general support. The Supreme Court justices are unelected, are appointed for life, and are removable only by impeachment. This means that the justices are independent and not answerable to the electorate or to anybody else. Supreme Court justices who interpret the Constitution in ways that depart from the text are effectively rewriting that document by imposing their own views on it. The reply to these points is along the following lines: The Constitution was mostly written more than 200 years ago. It’s impossible to get back to the original intention of the Framers — even if we wanted to. To remain relevant and meaningful, the Constitution must be interpreted afresh by each new generation, as a “living Constitution.” This process of interpretation in the light of changing political, social, and moral values doesn’t amount to unauthorized amendment but is needed to make sense of the Constitution and to apply it to the modern age. Identifying methods of interpretation The classification of the different schools of constitutional interpretation is messy, to say the least. But here’s a bird’s-eye view of the main divisions: Living Constitution: This school of thought sees the Constitution as a living and breathing document that must be interpreted and reinterpreted according to society’s changing needs. On the present Supreme Court, Justices Breyer, Ginsburg, Kagan, and Sotomayor generally adhere to this approach. As Justice Breyer puts it, the Constitution’s values don’t change, but they “must be applied to a world that changes every five minutes.” And: “George Washington did not know about the Internet, but he did know about free speech. And the values of free speech have to apply to today’s world that includes an Internet.” The late Justice Antonin Scalia attacked this approach as undemocratic by wanting “matters to be decided not by the people, but by the justices of the Supreme Court.” Strict constructionism: This label is used to refer to a literal approach to constitutional interpretation. Thomas Jefferson favored this approach, which took a narrow view of the powers of the federal government as against the states. Chief Justice William Rehnquist was often described as a strict constructionist, as are Justices Clarence Thomas and Scalia. Scalia rejected the label. “Strict constructionism,” explained Scalia, “is a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be — though better that, I suppose, than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.” Scalia went on to provide an illuminating example from the criminal case of Smith v. United States (1993). The question before the Supreme Court was whether Mr. Smith had “used” a firearm in the course of committing a drug-related crime. Smith had wished to buy some cocaine, for which he had offered an unloaded gun in payment. Did this amount to “using” a gun in connection with the drug trafficking offense? The majority on the Court, made up of six justices, were satisfied that it did. Scalia dissented and explained his dissent as follows: “The phrase ‘uses a gun’ fairly connoted use of a gun for what guns are normally used for, that is, as a weapon. When you ask someone ‘Do you use a cane?’ you are not inquiring whether he has hung his grandfather’s antique cane as a decoration in the hallway.” Textualism: Judges who are referred to by politicians and the media as strict constructionists nowadays tend to prefer to be regarded as textualists, formalists, or originalists. These labels are not identical, but they overlap to a considerable extent. Originalism is essentially an approach to the Constitution, while textualism is concerned with other legislation. So, there is no contradiction between being both a textualist and an originalist. Scalia referred to himself as “first of all a textualist, and secondly an originalist.” Textualists are also often regarded as conservatives (check out Figure 3-1 for a picture of liberal and conservative justices), but there is some confusion here. Conservative judges normally have a certain reverence for stare decisis — the doctrine of binding precedent, that courts should adhere to previous decisions. But what should a textualist do when his reading of the Constitution disagrees with a previous Supreme Court decision? In those circumstances, some of them, like Thomas, tend to jettison stare decisis. Scalia is on record as remarking: “Clarence Thomas doesn’t believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let’s get it right. I wouldn’t do that.” Originalism: This term is now applied to several different shades of legal opinion, which share the view that the Constitution had a clear and definite meaning at the time it was drafted and that to interpret the Constitution, a court must get back to that original meaning. Justice Neil Gorsuch, a Trump appointee who took his seat in April 2017, has been described as a textualist in statutory interpretation and an originalist in regard to constitutional interpretation. He is also known to be an advocate of natural law, having written his Oxford doctoral dissertation on assisted suicide and euthanasia (he is against both). In Gorsuch’s first criminal case as a Supreme Court Justice, his vote tipped the scales against eight death row inmates from Arkansas who were petitioning the Court for a stay of execution in McGehee v. Hutchinson (2017). Gorsuch wasn’t swayed by Justice Breyer’s impassioned plea in support of a stay of execution on the ground that “Apparently the reason the State decided to proceed with these eight executions is that the ‘use by’ date of the State’s execution drug is about to expire.” The most influential branch of this school of thought, claiming adherents such as Scalia, stresses original meaning at the expense of original intent — the meaning of the text as it would have been understood by a reasonable person at the time it was drafted, rather than some secret purpose that the Framers may have had. Critics of this approach have pooh-poohed as unrealistic the attempt to recapture the meaning of a text as it was understood more than 200 years ago. The sight of judges beating one another over the head with old dictionaries can be entertaining. In 1994, Scalia, relying on a raft of dictionaries, ruled that the word modify meant no more than “to make minor changes.” He rejected the argument, based on Webster’s Third New International Dictionary published in 1976, that modify could also refer to the making of major or fundamental changes. If this is the sort of mess a court can get into on the basis of word meanings of the late 20th century, how easy can it be to reach the original meaning of texts drafted in the late 18th century? Interpreting the Constitution on the basis of its meaning at the time it was written sure makes sense. The problem may be that none of the high court justices were trained as a historian, a linguist, or a philologist.

Article / Updated 08-02-2018

This case is remarkable for several reasons, not least because the U.S. Supreme Court decision was unanimous, ruling that trawling through the digital contents of a cellphone without a warrant is unconstitutional as a violation of the Fourth Amendment. The case arose out of an incident in 2009 in which David Leon Riley was pulled over in his Lexus by a San Diego police officer for expired registration tags. During the stop the officer also found that Riley had a suspended driver’s license. Two loaded handguns were subsequently discovered hidden in the car that matched the firearms used in a recent gangland murder of which Riley had been a suspect. On the basis of all this information, Riley was placed under arrest, and a search of his cellphone without a warrant yielded evidence of Riley’s membership of the “Bloods” gang, contacts, text messages, and photographs, including one of a red Oldsmobile (his gang’s color) also owned by Riley, which was the vehicle involved in the gangland shooting. Riley was then charged in connection with the gang shooting. Riley’s application to exclude the cellphone evidence from his trial was denied, and he was convicted of attempted murder and sentenced to 15 years to life in prison. The California Court of Appeal upheld his conviction and sentence, and the California Supreme Court found the seizure of Riley’s cellphone kosher because it occurred during a “search incident to arrest.” A unanimous Supreme Court — a rare phenomenon indeed — disagreed. Chief Justice John Roberts, writing for the Court, waxed lyrical in defense of individual liberty in the digital age: “Modern cellphones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” Justice Alito, while concurring in the holding of the Court, raised some commonsense concerns about possible anomalies: “It would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment. Legislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future.” “Won battle, lost war” is how the San Diego Union-Tribune put it, because, despite his victory in the Supreme Court, David Riley was ordered to stay in jail to serve out the rest of his sentence of 15 years to life. The reason was that Riley’s conviction didn’t depend on the erroneous admission into evidence of the digital contents of his cellphone. How, if at all, does the Supreme Court’s decision in Riley impact the issue of the National Security Agency’s bulk collection of metadata, which was not mentioned in Riley? The key lies in the term metadata, which doesn’t give any information about the contents of the calls. So Riley has no direct bearing on the NSA cases.

Article / Updated 08-02-2018

This was a U.S. Supreme Court 5–4 decision upholding the constitutionality under the Eighth Amendment of lethal injection by a three-drug protocol including midazolam as an acceptable form of execution. The Court also, rather strangely, held that death-row prisoners could challenge their method of execution only if they came up with an alternative method! — what may be characterized as a “pick your poison” ruling. An unusual feature of this case was that the condemned man, Richard Glossip, was convicted of first-degree murder even though he didn’t kill anyone himself but was found guilty of hiring someone else to commit the murder for him, which was done by beating the victim to death with a baseball bat. Another unusual feature of the case is the fact that there wasn’t much evidence against Glossip other than the testimony of the actual killer, Justin Sneed, who was given life imprisonment without parole in return for confessing and pointing the finger at Glossip. Sneed’s own grown daughter wrote to the Oklahoma Pardon and Parole Board that, based on her many communications with her father, she “strongly believes” that Glossip was innocent, adding: “For a couple of years now, my father has been talking to me about recanting his original testimony. I feel his conscious [sic] is getting to him.” This letter arrived too late for it to be considered by the board. But Glossip, who has never stopped proclaiming his innocence, turned down a plea bargain under which he would have been sentenced to life with parole. However, the Supreme Court wasn’t concerned with the curious facts of the case, only with the question of a constitutionally acceptable form of lethal injection. Justice Breyer, who is opposed to capital punishment of any kind, claimed that “this country has fallen short of the aspiration that capital punishment be reserved for the ‘worst of the worst.’” Justice Clarence Thomas, concurring with the majority, rejected Justice Breyer’s whole argument and recited a catalog of gruesome murders whose perpetrators had been granted a stay of execution by the Supreme Court itself. Thomas concluded his opinion with this powerful, down-to-earth observation: “To the extent that we are ill at ease with these disparate outcomes, it seems to me that the best solution is for the Court to stop making up Eighth Amendment claims in its ceaseless quest to end the death penalty through undemocratic means.” This is a salutary reminder that, as the death penalty is implicitly approved by the Constitution, it would be undemocratic for the Court to abolish it — something that can only be done by the process of amendment, involving a vote in Congress followed by ratification by the states. Justice Alito, for the majority, wrote that “because it is settled that capital punishment is constitutional, ‘it necessarily follows that there must be a [constitutional] means of carrying it out.’ And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain … Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.” So far, so good. Capital punishment is currently legal in 31 states. But in May 2016, the giant pharmaceutical company Pfizer announced that its drugs could no longer be used in lethal injections. Pfizer is the last big-name pharmaceutical company to withdraw its products from the death penalty industry, placing a question mark over the future of lethal injection. Maybe other states will consider following the example of Utah, which has now relegalized its traditional method of execution by firing squad.

Article / Updated 08-02-2018

This landmark 5–4 U.S. Supreme Court decision legalized same-sex marriage throughout the United States and its possessions and territories. It marked the culmination of a long battle fought out in a number of states, 37 of which, plus the District of Columbia, had legalized gay marriage prior to the ruling and 13 of which had banned it. The majority opinion, penned by Justice Anthony Kennedy, held that state laws banning same-sex marriage were a violation of the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. Kennedy concluded, referring to the petitioners: “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” Chief Justice Roberts and Justices Scalia, Thomas, and Alito put in a strong dissent. Justice Scalia attacked the thinking, analysis, and legal reasoning of the majority, which he likened to “the mystical aphorisms of the fortune cookie.” Justice Alito wrote: “Neither petitioners nor the majority cites a single case or other legal source providing any basis for such a constitutional right [as that of same-sex marriage]. None exists, and that is enough to foreclose their claim.” Chief Justice Roberts specifically attacked what he called the 5-justice majority’s “extravagant conception of judicial supremacy.” He added: “Allowing unelected federal judges to select which unenumerated rights rank as ‘fundamental’ — and to strike down state laws on the basis of that determination — raises obvious concerns about the judicial role.” Referring to the Founders’ struggle “for the precious right to govern themselves,” he added: “They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges … The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people.” The Chief Justice concluded his vigorous dissent by sounding a warning that the legalization of same-sex marriage could endanger religious liberty: “Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is — unlike the right imagined by the majority — actually spelled out in the Constitution.”

Article / Updated 08-02-2018

This highly controversial case is important for two reasons: first, because of its effect on elections, and secondly, because it struck down a major bipartisan Act of Congress, which had been essentially upheld by the Supreme Court itself. The conservative nonprofit organization Citizens United wanted to run TV commercials to promote its film Hillary: The Movie in the run-up to the 2008 Democratic presidential primary elections. This would have been illegal under the Bipartisan Campaign Reform Act, generally known as the McCain–Feingold Act, of 2002, which prohibited the broadcast of “electioneering communications” paid for by corporations in the 30 days before a presidential primary and in the 60 days before a general election. In the Supreme Court, Justice Kennedy wrote the majority opinion in favor of Citizens United, striking down the prohibition in McCain–Feingold of independent expenditure by corporations and labor unions as a violation of the First Amendment’s protection of free speech. Kennedy wrote: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” The majority ruling also overruled provisions in earlier Supreme Court decisions which allowed restrictions on corporate spending on election campaigns, including Austin v. Michigan Chamber of Commerce (1990) and McConnell v. FEC (2003). In a strong dissenting opinion, Justice John Paul Stevens, joined by liberal Justices Ginsburg, Breyer, and Sotomayor, argued that the majority ruling “threatens to undermine the integrity of elected institutions across the Nation … A democracy cannot function effectively when its constituent members believe laws are being bought and sold.” This ties in with Senator McCain’s remark in his 2002 book with the curious title Worth the Fighting For: “Money does buy access in Washington, and access increases influence that often results in benefiting the few at the expense of the many.” The most worrying perceived result of the Citizens United decision was the rise of “super PACs,” or “political action committees,” which do not themselves contribute to political candidates or parties but can accept unlimited contributions from individuals, corporations, and labor unions. In fact, it was the decision by the U.S. Court of Appeals for the District of Columbia in SpeechNOW.org v. FEC (2010) that allowed the creation of super PACs. In a 9–0 decision, the D.C. Circuit Court held that on the basis of Citizens United, a nonprofit organization like SpeechNOW, which itself made only “independent expenditures,” could not be subject to any contribution limits. “Independent expenditure” means money spent advocating for the election of a particular candidate but without consultation, cooperation, or any “material” involvement with that candidate. Citizens United also means that the laws of 24 states prohibiting or limiting “independent expenditures” by corporations and labor unions are under threat. And in McCutcheon v. FEC (2014), the U.S. Supreme Court swept away the previous prohibition on individuals contributing more than $48,600 combined to all federal candidates and more than $74,600 combined to all parties and super PACs. But an individual’s contributions to an individual politician’s campaign are still capped at $2,700 per election. In the words of Chief Justice Roberts, writing for the majority: “The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.” Justice Breyer, writing for the dissenting minority, argued that the decision “creates a loophole that will allow a single individual to contribute millions of dollars to a political party or to a candidate’s campaign.” Whoever is right, election campaigns are now more awash with money than ever before. The whole new approach to campaign finance rests on the definition of contributions to political campaigns as protected speech under the First Amendment. Though Chief Justice Roberts was one of the chief protagonists of this approach, he was also concerned about the way Citizens United struck down much of the McCain–Feingold Act and overruled some recent Supreme Court decisions to boot — in contradiction to Roberts’s stated commitment to judicial restraint and stare decisis, or fidelity to precedent. So the Chief Justice, joined by Justice Alito, wrote a separate concurrence to address this important problem. “There is a difference between judicial restraint and judicial abdication,” wrote Roberts. He quoted Justice Oliver Wendell Holmes in remarking that “Judging the constitutionality of an Act of Congress is ‘the gravest and most delicate duty that this Court is called upon to perform.’” But he did not really justify the complete redefinition of “political speech” in Citizens United. His justification of the majority’s departure from precedent was more persuasive. If stare decisis were an “inexorable command,” he explained, “segregation would be legal, minimum wage laws would be unconstitutional, and the Government could wiretap ordinary criminal suspects without first obtaining warrants.” Citizens United remains a radical and highly controversial reinterpretation of the free speech clause of the First Amendment, with a major effect on elections.

Article / Updated 08-02-2018

This case is the flip side of Nixon v. Fitzgerald. In that case, the high court ruled that the President is totally immune from civil suits for anything he does in his official capacity. In this later case, a unanimous high court held that the President is not immune from suit for anything that he did before he became president — and that such private lawsuits can go ahead even while the President is still in office. What about civil lawsuits arising out of private acts that the President commits while in office? Can a sitting President be sued for these too? Yes, apparently so. The case arose out of a civil suit brought against President Bill Clinton by Paula Jones, who accused Clinton of sexual harassment while he was Governor of Arkansas. The case led indirectly to Clinton’s impeachment. Clinton survived the impeachment process and was acquitted, which enabled him to serve out the rest of his second term. He left office in 2001 with (according to Gallup) an approval rating of 65 percent — up from the 50 percent average approval rating during his first term.