Category Archives: Supreme Court

ELB Book Corner: Evans and Gaddie: “The American Courthouse”

I am pleased to welcome to ELB Book Corner Jocelyn Evans and Keith Gaddie, authors of the new book, The U.S. Supreme Court’s Democratic Spaces. Here is the second of four blog posts:

ELB Book Corner

“The basic building block of American governance is the citizen, and the basic unit of American architecture is the citizen’s home.” ~Allan Greenberg, Architecture of Democracy (2006: 32-34).

“ Court + House = Courthouse”

When started exploring the homes of the Supreme Court, with the origin of the term and type “courthouse.” The term is not uniquely American, but its widespread use is distinctively so.

 “Court” is from the Latin coˉrtem, cohors (“yard,” “enclosure), and courts historically referenced various assemblies, but became associated with judicial proceedings. “House” is Germanic and cognates with Old Saxon and Middle Dutch traditions, referring not both individual dwellings and also other enclosed common spaces.   “Courthouse” as a singular English term emerged in the late fifteenth century.

The first Anglo-American civic buildings were meeting-houses imported by Puritans in the early 1600s. These extensions of the home — a communal house — were modeled after domestic architecture. Meeting-houses provided space for both religious and secular gatherings. They stored town records. By the early-18th century, growing religious diversity across the colonies led to meeting-houses being replaced by town-houses. Government business could dominate these spaces set aside from churches to serve secular purposes for the community, including the administration of justice. Markets usually filled the ground level; local governing bodies were on the floor above. Reference to these civic spaces as courthouses became common by the mid-1700s, and the term took hold in the second half of the century.

A pluralism of purpose persisted. Early advertising  suggests that courthouses served as fora and meeting places for community events — announcements, electioneering, speeches, scientific demonstrations, sermons, and mobilization of militia. The courthouse type emerged as government grew and the legal profession differentiated itself from other secular activities. The type persists, transactional spaces below, more solemn court space above, and censoring social behaviors to serve as the mainstay of the community.

The separate courthouse structure emerged coincident to the propagation of court systems, institutionalized with the staking of new states, counties, and governments. Governing Institutions — grand juries, ‘courts ordinary,’  ‘fiscal courts’ managed county affairs, and needed permanent seats. County courthouses and county squares logically followed.

Style also changed. As the U.S. broke from Georgian England, this new, multipurpose courthouse shifted from Georgian, and local vernacular styles to the ‘national style’ of Greek Revival or Classical. Later other Neoclassical, Gothic, and various Revival styles  took over and became associated with courthouses as a type.

The state and federal courts grew in complexity and permanence.  Appellate courts were created. Circuit-riding appellate judges acquired permanent court homes.  At the federal level, courthouses, customshouses, and post offices  were erected to create both homes and physical presence of the Federal authority.

American county courthouses are today spaces of communal and individual memory. People enter into marriage, adopt children, divorce, bring suit against others, pay fines, face trial, and sit on juries in these spaces. Births and deaths are recorded. They are secular temples for the ritual performance of hyper-localized popular governance, keeping democratic government at the center of everyday life. Whether a result of city planning or grand design, they sit as aspirational reminders of civil society, individual rights and responsibilities, and communal values.

 Meeting of the Sons of Liberty at Annapolis Court-House on March 1, 1766

The 1859 Georgian-influenced vernacular White County Courthouse, Cleveland, Georgia (photograph by authors)

The 1902 Classical Revival Colquitt County Courthouse, Moultrie, Georgia  (photograph by authors).
Share this:

ELB Book Corner: Evans and Gaddie: “The Homes of the Court”

I am pleased to welcome to ELB Book Corner Jocelyn Evans and Keith Gaddie, authors of the new book, The U.S. Supreme Court’s Democratic Spaces. Here is the first of four blog posts:

ELB Book Corner

We write about democracy and public space. Some colleagues find it odd that we describe as ‘democratic’ the spaces of an unelected lifetime tribunal.  We see the courts as the oldest democratic institutions, a safeguard of rights and of public influence through the jury system. Individual dignity, equal protection under the law, and equal due process rights are where we find our definition.

Over time, democracy has changed. With change came changes in the location, composition, institutional reach and power of the Court. It expanded its calendar and has a more powerful docket. Circuit duties changed. The Court went from occasionally-sitting body to permanently-sitting. And as it evolved from upstairs tenant to “basement relation” to having a home of its own, it grew in symbolism, substantive power, and became cloaked in mystery like Karnak’s ancient priests.

The homes of the Court can be divided into three periods: Tenancy during the establishment of the Republic; adaptation in DC from 1800 until 1935; and institutional independence of space from 1935 forward.

The early Court made its home in three prominent quarters — the old Royal Market in lower Manhattan, and then the Pennsylvania Supreme Court Chamber in Independence Hall and then Philadelphia County Building from 1791 to 1799. This first location echoed the early local courthouse arrangements throughout the U.S. The latter two were formal governing structures, built in the Georgian /Federal style which defines the revolutionary era.

The movement of government to Washington brought along the Court, but it had no home despite Peter L’Enfant’s designation of a ‘Judiciary Square’ in DC’s masterplan, no courthouse accompanied. The Court took up rooms in the Senate wing, until Latrobe’s redesign of the Senate chamber resulted in the creation of an intimate basement courtroom and cloaking room for the Court. The Court moved into the “Old Senate Chamber” in 1861 after the new Senate chamber was completed.  The justices otherwise largely worked from home, relying on a messenger system to circulate opinion drafts. 

The consequence was a cloistered brotherhood, not unlike a small town law practice.

By 1925, Chief Justice William Howard Taft, was agitating for a building for the Court, and succeeded in the getting Congress to act, hiring Cass GIlbert as architect. Gilbert’s design reflected a conservatism displayed by many late 19th century architects from the City Beautiful movement (which influenced the McMillan Plan for D.C.). McMillan advantaged Neoclassical and Beaux Arts styles, reflected in Gilbert’s design, an iconic stone edifice in which Chief Justice Charles Evans Hughes described the court as “black-robed beetles in the Temple of Karnak.” The structure defied emerging Art Deco, Bauhaus, Organic and International Modernist styles.

But it nonetheless changed the Court, and succeeded in creating a public space for protest and expression, as we see every first Monday in October. It presented an iconic temple front which accompanied news stories on the Court. It was a fully-defined home, composed of the diversity of spaces required by a fully functioning civic institution — ritual spaces, civic spaces, and circulation spaces — and also an ability to define its perimeter. Movement of the justices from home to a stone palace, and a change of entry into the court from public processional through the Capitol to an emergence from behind great curtains built a sense of mystery and distance, stage-shaped by the structure itself.

Supreme Court chambers in the Old Senate Chambers  (Postcard, from author’s collection).

Model of the United States Supreme Court Building (Postcard, from author’s collection).

The United States Supreme Court Building, Capitol, and Library of Congress (Postcard, from author’s collection).

Share this:

ELB Podcast Episode 3:3: Guy Charles: Race and Election Law in Today’s United States

On Season 3, Episode 3 of the ELB Podcast:

Is the Voting Rights Act effectively dead as a superstatute? Is the John Lewis Voting Rights Advancement Act the best way to protect minority voters in the United States? Are the dangers of election subversion and voter suppression more closely linked than some have said?

On Season 3, Episode 3 of the ELB Podcast, we talk to Guy Charles, the Charles Ogletree, Jr. Professor of Law at Harvard Law School and faculty director of HLS’s Charles Hamilton Houston Institute for Race and Justice.

You can subscribe on SoundcloudApple Podcasts, and Spotify.

Share this:

League of Women Voters amicus brief in New York State Rifle & Pistol Association v. Bruen

The Supreme Court is set to hear a case involving gun rights and the Second Amendment this term, New York State Rifle & Pistol Association v. Bruen. Over at SCOTUSblog, you can see the briefs in the case. One jumped out at me this week, as it was unexpected (to me, at least!)–a brief from the League of Women Voters. Here’s the summary of the argument:

Continue reading League of Women Voters amicus brief in New York State Rifle & Pistol Association v. Bruen
Share this:

“Wisconsin Republicans have asked the U.S. Supreme Court to halt a redistricting case”

Milwaukee Journal Sentinel:

Republican state lawmakers Friday asked the U.S. Supreme Court to throw out a redistricting lawsuit before a panel of federal judges, saying the matter should instead be considered by Wisconsin’s high court.

The move comes two days after conservatives on the Wisconsin Supreme Court accepted a similar case.

The court fight over redistricting is quickly escalating even though no one yet has proposed new maps for the state’s legislative and congressional districts.

Lawyers for the Republican legislators told the U.S. Supreme Court it should toss aside the challenge in federal court because there’s no basis for a lawsuit at this stage. Federal courts have tight rules for when they allow cases to proceed and the Republicans contend there isn’t sufficient conflict for the lawsuit to be considered

You can find the Republicans’ writ here (via How Appealing).

Share this:

“Are Censures of Politicians a Form of Free Speech or a Threat to It?”

Adam Liptak in the NYT:

Last summer, the City Council in River Falls, Wis., censured a member for calling an opponent of wearing masks during the coronavirus pandemic “a rancid tub of ignorant contagion.”

A few days later and a hundred miles away, the City Council in St. Cloud, Minn., censured one of its own for saying mask mandates were like requiring that “Covid-positive people wear some sort of identification badge, maybe like a bright yellow star.”

Censures, which are formal reprimands and a kind of punishment, seem to be on the rise in these divisive times. The Supreme Court will hear arguments this fall on whether the First Amendment has anything to say about when elected bodies can impose them on their members.

The justices will have to decide whether censures condemning politicians’ statements are a threat to free speech that chills expression or a form of free speech responding to one set of views with another.

The case before the justices was brought by David Wilson, a former elected trustee of the Houston Community College System and an energetic critic of its work. In addition to airing his concerns in interviews and on a website, Mr. Wilson sued the system’s board, orchestrated robocalls and hired private investigators to look into whether another trustee had lied about where she lived.

He was, a federal appeals court judge wrote in a dissent, a “gadfly legislator.”

Share this:

“Racial Turnout Gap Grew in Jurisdictions Previously Covered by the Voting Rights Act”

Brennan Center analysis:

While in 2012, just before the Shelby County decision, the white-Black turnout gap was shrinking in the states we analyzed, and in many instances even briefly closed, this trend has reversed in the years since. In 2012, seven out of the eight states had Black voter turnout higher than that of white voters. In 2020, the reverse is true — in only one of the eight states was Black turnout higher than white turnout.

In a few states, this reversal is especially alarming. Louisiana, South Carolina, and Texas had higher turnout gaps in 2020 than at any point in the past 24 years. South Carolina’s white-Black turnout gap widened the most, expanding by a staggering 20.9 percentage points within the eight years since Shelby County. While Black turnout exceeded white turnout in 2012, white turnout was more than 15 percentage points higher than Black turnout in 2020.

 similar trend can be seen in the gap between white voters and all nonwhite voters. The total white-nonwhite turnout gap has grown since 2012 in all of the eight states likely to be covered under the VRAA. There is sufficient data to conclude that the gap has increased for Blacks, Hispanics, and Asians in Florida, Georgia, North Carolina, South Carolina, and Texas. In Alabama, Louisiana, and Mississippi, the sample sizes in the available 2020 census data are too small for Hispanic and Asian voters to make much of a difference in an overall white-nonwhite turnout gap estimation that is distinct from the white-Black turnout gap in those states. Notably, North Carolina went from having a larger share of nonwhite voters represented in 2012 with a white-nonwhite gap of -9.3 percentage points to having a gap of 5.4 percentage points, a jump of 14.7 percentage points, far greater than the national average of 4.6 percentage points.

Overall, we see that the growth in the racial turnout gaps between 2012 and 2020 were even starker in the states likely to be subject to preclearance under the VRAA than those seen nationwide. Seven out of the eight states had white-nonwhite turnout gaps that grew more than the national rate of 4.6 percentage points between 2012 and 2020.  And in four out of the eight states to be subject to preclearance under the VRAA, the white-Black turnout gap grew more than the national rate of 10.3 percentage points from 2012 to 2020.

Share this:

Newsom recall lawsuit

Politico has a story on a new federal lawsuit raising a constitutional challenge to the procedures that California uses for its gubernatorial recall. The lawsuit follows upon a NY Times op-ed from last week by Erwin Chemerinsky and Aaron Edlin, which argued that California’s procedures violate the one-person-one-vote doctrine of Reynolds v. Sims (and related precedents) because Gov. Newsom can receive more votes in the first (recall) phase of process than the leading candidate does in the second (replacement) phase of the process. Because only a plurality, and not a majority, is required in the second (replacement) phase, Newsom could fall just short of a majority in the first (recall) phase and then be replaced by a candidate whose plurality is far short of a majority and thus far lower than the number of votes in favor of retaining Newsom. As the op-ed observed, the problem could be solved by permitting Newsom to be one of the candidates eligible in the second (replacement) phase of the process, but given the way the California procedure is designed, if there is a majority of votes to recall Newsom in the first phase of the process, he’s ineligible from being a candidate in the second phase.

The California procedure does seem seriously flawed, to put it mildly. (I confess that I haven’t focused on it specifically before.) In general, I strongly favor majority-winner rather than plurality-winner elections. That point was the main theme of my book Presidential Elections and Majority Rule. It’s also the core of the claim that Congress should adopt a majority-winner requirement for congressional elections, as argued in the forthcoming article Requiring Majority Winners for Congressional Elections: Harnessing Federalism to Combat Extremism.

But it is one thing to say that majority-winner elections are desirable policy, and quite another to say that they are constitutionally mandated by virtue of the one-person-one-vote doctrine. Perhaps the particular California procedure is constitutionally flawed in a way that would not requiring judicial invalidation of all plurality-winner elections–although the idea that a candidate who is defeated in a first phase of a two-part electoral process is ineligible to be on the ballot in the second stage of the process was upheld in another case from California, involving the state’s “sore loser” law: Storer v. Brown, 415 U.S. 724 (1974). Thus, it’s not clear to me that the recall system is unconstitutional just because Newsom can’t compete in the second phase of the process after he’s disqualified in the first phase.

Both phases, considered separately, seem to comply with the basic idea of one-person-one-vote: each voter’s vote counts equally, first for determining whether Newsom is recalled and second for determining the winner of the plurality replacement election (for which Newsom is ineligible by virtue of being recalled). I could imagine the judicial activism of the Warren Court, which propagated the one-person-one-vote doctrine, invalidating the California recall system just because it offended the Court’s views of how democracy should work. But I’m not sure that the current Roberts Court will be as eager to apply the one-person-one-vote jurisprudence as aggressively as its Warren Court authors would.

Still, the case and issue seem interesting and important, and my own views on the specific constitutional question remain tentative as I’m just considering it for the first time. I very much welcome others weighing in on the merits of the pending suit.

Share this:

“John Roberts and the Supreme Court might block anything Democrats do on voting rights”

Tierney Sneed at CNN:

A key piece of congressional Democrats’ voting rights push faces not only a near-impossible odds of becoming law, but also a daunting court battle in front of a conservative judiciary if it does.

The legislation, known as the “John Lewis Voting Rights Advancement Act,” is now a focus of the House and is expected to be part of the voting rights package negotiated in the Senate to win over West Virginia Democratic Sen. Joe Manchin’s support. The bill would restore a provision of the Voting Rights Act meant to address racial discrimination that was gutted by the Supreme Court in 2013. Doing so has long been a goal of lawmakers, and one that seemed only remotely possible after Democrats obtained narrow control of Congress while winning the White House.

But Democrats have had to move deliberately in how they’ve advanced that aspect of their voting rights push, in the hopes of protecting it from the kinds of Supreme Court cases that have undermined the Voting Rights Act, most recently this summer.

“The bill has to pass constitutional muster,” a House Democratic staffer involved in the process told CNN.

Share this:

Ninth Circuit finds that some Alaska campaign finance rules violate First Amendment

Thanks, Ned, for your terrific insight over the last couple of weeks. And thanks once again, Rick, for this opportunity to join ELB as a contributor, including picking up daily blogging duty for the next couple of weeks.

Late last week, the Ninth Circuit issued its decision in Thompson v. Hebdon, a challenge to Alaska’s campaign finance laws. The case was filed back in 2015, and the Supreme Court remanded it in 2019, “ducking major confrontation,” as Rick blogged earlier. The opinion finds that some of the Alaska laws at issue run afoul of the First Amendment: a law that prohibits candidates from accepting more than $3,000 in contributions from people living outside Alaska, and a law that prohibits individuals from giving more than $500 to a candidate or a political group. (It also concluded a couple of other challenged laws were permissible.)

The first time around, the Ninth Circuit found that the $500 limit was permissible. But the Supreme Court’s per curiam opinion in 2019 strongly hinted that the $500 limit was problematic in light of its 2006 decision in Randall v. Sorrell. Justice Ruth Bader Ginsburg wrote separately to highlight potential ways that the limit might be sustained, even though she agreed with sending the case back.

The Ninth Circuit panel split 2-1 on these issues. Judge Consuelo Callahan wrote the majority opinion, joined by Judge Carlos Bea. Chief Judge Sidney Thomas dissented.

Professor Ciara Torres-Spelliscy presaged this result over at the Harvard Law Review Blog back in 2019. The case attracted a few amici at the cert stage back in 2019. Will the case go en banc or back to the Supreme Court? Or will Alaska fashion new rules to meet the deficiencies the Ninth Circuit identified here?

From the Anchorage Daily News, “Federal court ruling likely allows unlimited cash in Alaska political campaigns.”

Share this: