Brooklyn Law School event focuses on what’s next for U.S. Supreme Court
Brooklyn Law School continued its series of Constitution Day events this past Thursday, when members of its constitutional law faculty gathered in the student lounge for a presentation and Q&A session on what to expect from the U.S. Supreme Court over the next year.
“Two hundred-twenty-nine years ago, at the conclusion of the Constitutional Convention in Philadelphia, Ben Franklin was asked, ‘What have you created?’ and he responded, ‘A republic, if you can keep it,’” said President and Dean of Brooklyn Law School (BLS) Nicholas Allard. “His observation, at this moment in our history, really resonates today, as we find ourselves today grappling with the presidential election that is taking place against a backdrop of tumult and uncertainty in our country.”
Much of what’s going on in the Supreme Court these days surrounds the recent death of Justice Antonin Scalia and the subsequent nomination of Merrick Garland, whose appointment has still not been put to a vote in the U.S. Senate. With that in mind, BLS Professors Susan Herman, Joel Gora, Bill Araiza and Judge Andrew Napolitano each gave a brief presentation before they took questions from the audience.
Napolitano spoke first and discussed a few upcoming cases and what he expected to happen regarding Garland’s future.
“The logjam in the Senate is without, in my view, intellectual respectability, and will not be broken,” Napolitano said. To no one’s surprise, he predicted that the Senate would likely vote to appoint Garland if Hillary Clinton wins the presidential election, but added that Garland likely wouldn’t have been her first choice, and that he won’t be appointed if Donald Trump wins. He added that a Clinton win could have a huge impact for the future of the court.
“If she wins, [Clinton] could have the opportunity to put her mold on the court more than any president since Nixon, who had more opportunity than any president since FDR just by the coincidence of people retiring.”
Gora talked about the court under the leadership of Justice John Roberts by giving a eulogy of the “Roberts Court” where conservatives dominated. He also called it one of the most free speech-friendly courts in the country’s history. He also took issue with the fact that Clinton has suggested that any of her Supreme Court nominees must first agree that they would overrule the Citizens United decision.
“President-elect Clinton — and I think I can say that — said she would appoint justices who would only agree to overrule Citizens United,” Gora said. “I’m old enough to remember when a litmus test like that was a bad thing. It was wrong for a president to insist that they would only appoint justices if they came out a certain way on hot-button cases. I think the ethics folks would talk about that, because you’re not supposed to do that.”
Araiza spoke on the Lee vs. Tam case, which involves the band The Slants and the fact that the government refused to trademark the band’s name because it was a derogatory term.
“There is disagreement even within the relevant community about the valence of the term — whether it’s disparaging or not,” Araiza said. “It’s a whole potpourri of doctrinal issues, a deeper dive into what the underlying theory of the first amendment [is]. It’s not just a trademark case. This, at the heart, goes towards a lot of first amendment doctrine.”
Finally, Herman discussed few cases, most notably the three Turkmen cases — Ziglar v. Turkmen, Ashcroft v. Turkmen and Hasty v. Turkmen. These cases involved immigrants who overstayed their visas and were subsequently treated as terrorists while in detention.
“There were supposed to be different things if you were a visa violator or a legitimate terrorism suspect,” Herman said. “But many of these men were kept for eight months in solitary, they were physically abused, prevented from sleeping and I could go on — the conditions were that bad. These were not just allegations; we know that these things happened. For the last 14 years, these men have been trying to get redress.”
Allard closed the event by explaining that the school’s purpose for holding Constitution Day events is to expose the students to an even more well-rounded education so they can become better teachers for the general public. He expressed that this is essential to the survival of the rule of law.
“I’m an optimist. We’ve heard a lot about situations in our country that may occur that can cause a revolution and our system can be ripped under,” Allard said. “I don’t believe that is going to happen. Our constitution, our rulebook, is going to get us through, but we can’t take that for granted.”
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