Rethinking Partisanship and its Effects on the Federal Judiciary

by Allan Griffey, 2L Note Candidate

What has the reputation of being fair, competent, and independent? The federal judiciary. Judge Hamilton, of the Seventh Circuit, assiduously explains how partisanship in the executive and legislative branches of the federal government can directly, or indirectly, influence the federal judiciary in his article in the Indiana Law Review. Hon. David F. Hamilton, Federal Courts and Partisan Conflicts, 50 Ind. L. Rev. 127 (2016) (available at https://mckinneylaw.iu.edu/ilr/pdf/vol50p127.pdf). Judge Hamilton’s article contemplates to answer: (1) how partisanship in the other branches of federal government affect the federal judiciary; (2) what the federal judiciary can do to protect itself from theJ16_4172 partisanship of the other branches; and (3) what the federal judiciary can do, if anything, to avoid worsening the affairs of the other branches.

In undertaking the first question, Judge Hamilton calls to attention that partisanship from the other branches becomes highly visible during federal judiciary appointments. He illustrates this point by referencing his 2009 nomination to the Court of Appeals where U.S. Senate committee procedures slowed his confirmation. Additionally, the manner in which nomination and appointments are being handle by the executive and legislative branches of the federal government, Judge Hamilton argues, is “increas[ing] the temptation for judges and justices to make strategic decisions about when they will retire or take senior status.” Thus, threatening the function of the federal judiciary nomination and confirmation process.

In addressing the second question, Judge Hamilton proposes that if federal judges thoroughly do their job, avoid self-inflicted wounds on the judiciary’s reputation, and show the American public, then the federal judiciary will be protected from the partisanship of the other branches. By avoiding conflicts of interest and controversial off-the-job conduct, the public’s perception of a partisan judiciary should diminish. Further, refraining from “rhetorical incivility,” which Judge Hamilton describes as excessively harsh rhetoric in judicial opinions, is crucial to the judiciary’s aspiration to protect itself from partisanship.

Lastly, the article suggests that federal judges should remain humble and bear in mind the law of unintended consequences when deciding on doctrines that directly affect the political system. These particular doctrinal areas of the law include campaign finance, voting rights, state redistricting, and the extent of the political question doctrine. In conclusion, Judge Hamilton’s article brings into perspective the effects of executive and legislative partisanship on the federal judiciary.

The Zika Response: A Case of Congressional Dysfunction and Polarization

by Jennifer Phillips, 2L Note Candidate



Government shutdown.

Words like this are starting to seem like the norm in describing Congress’s efforts to pass legislation. Congress’s slow response to the Zika virus is just one example of Congressional behavior that has engendered criticism. The Zika virus has sparked numerous travel advisories, has infected thousands, and has been declared a public health emergency by the World Health Organization – yet Congress took 233 days took to secure funding to combat the virus.

J16_4140Why the delay? Controversial measures added to the legislation by Republicans, a filibuster from the Democrats, and a seven-week summer break certainly contributed. And each party blamed the other for the delay.

Congress struggled to reach agreement on a 2017 federal budget, partly due to its squabbles over the Zika funding measures. The possibility of a federal government shutdown loomed as Congress worked to pass budgetary measures just days before the October 1 deadline. On September 28, 2016, Congress passed a continuing resolution that lasted until December 9, 2017, extending the deadline to agree on a full 2017 budget by a mere two months. On the night of December 9, the Congress passed another continuing resolution and set a new deadline of April 28, 2017.

Issues like Congress’s budgetary stalemates and struggles to pass vital legislation may be effects of today’s increasingly polarized political climate, as Professor Nolan McCarty asserts in his article published in Issue 1 of Volume 50 of the Indiana Law Review. Nolan McCarty, Polarization, Congressional Dysfunction, and Constitutional Change, 50 Ind. L. Rev. 223 (2016) (available at https://mckinneylaw.iu.edu/ilr/pdf/vol50p223.pdf).

McCarty illustrates how Congress has become increasingly polarized since as early as the late 1970’s and suggests that the increase in polarization has contributed to Congressional dysfunction. Such dysfunction can be seen through Congress’s low legislative output, poor budgetary performance, and delay in affirming executive appointees. Political polarization, McCarty notes, is also related to the increased use of legislation-impeding mechanisms like filibusters and refusals to compromise.

Many people have proposed reforms to counter polarization, but such reforms have been met with little success. Suggesting that polarization is here to stay for now, McCarty explores the impact it has on the functioning of the legislative, executive, and judicial branches as a whole. At first glance, it seems like dysfunction of the legislative branch would lead to greater power for the other branches. Wouldn’t a Congress crippled by polarization lend more strength to the President and the courts? After all, a weak Congress means that Congress has less capacity to override Presidential vetoes or to counter Supreme Court interpretations of laws. On the other hand, polarization has affected the executive and judicial branches, too, and, according to McCarty, such polarization diminishes the power of the federal government overall.

McCarty’s article will enhance your perspective on the Congressional environment we see today and will give you an appreciation for the factors that have led up to its current state. As April 28, 2017 draws closer and the buzzword “government shutdown” again peppers the news, maybe we can both stop to think a little more deeply about the questions McCarty has invoked.

Congress’ Role in the Rules-of-the-Road of Representative Democracy

by Yaniv Shmukler, 2L Note Candidate

In his recently published article, Can Congress Play a Role in Remedying Dysfunctional Political Partisanship?, Professor Mark Rosen discusses how voting rights, gerrymandering, and political campaigns lead to increased polarization in today’s political climate. He notes that most rules-of-the-road are state law, although Congress has the power to displace them. The article reiterates the main points from Rosen’s 2012 article, which suggested substantive and institutional ways to improve the rules-of-the road. Mark D. Rosen, The Structural Constitutional Principle of Republican Legitimacy, 54 Wm. & Mary L. Rev. 371 (2012).

The newly published article responds to critiques that say Rosen’s proposal is self-defeating j16_4169-1by invoking the constitutional origin of the rules-of-the-road and Congress’ ability to affect them. He connects these two ideas by arguing that an increased perception of the rules-of-the-road as constitutional will lead to an increased role by Congress.

Given the hostile political climate that has arisen since the 2016 presidential election, Rosen’s recommendations are more relevant now than ever. Political polarization has reached new heights, and even educators are struggling with this new reality. Vikki Ortiz Healy, Educators Struggle to Teach Election Lessons amid Charged Presidential Race, Chicago Tribune (Sept. 24, 2016, 5:35 AM), http://www.chicagotribune.com/news/ct-presidential-election-education-met-20160923-story.html [https://perma.cc/2D5R-BUKD]. This partisan divide prevents important legislation from being passed, leading to disillusionment within the populace. Partisan bias in redistricting, known as gerrymandering, persists despite efforts to eliminate the bias through independent commissions. Voting rights issues continue to be debated, as some states pass controversial voter ID laws and prevent felons from voting. In some cases, courts have struck down such laws, while in other cases, voting bans have been upheld. Congress can eliminate the uncertainty created by these rulings by playing a larger role in voting rights legislation.

Rosen argues that Congress should play a larger role in solving these problems. By bringing the constitutional origins of the rules-of-the-road to light, Rosen is hoping to give Congress a better understanding of its power to create change without waiting for the judiciary to decide on certain issues. With his new article, Rosen provides a much-needed perspective that could reduce partisan gridlock and lead to solutions to difficult problems. To read more about this topic check out Rosen’s article in this issue of the Indiana Law Review. Mark D. Rosen, Can Congress Play a Role in Remedying Dysfunctional Political Partisanship?, 50 Ind. L. Rev. 265 (2016) (available at http://mckinneylaw.iu.edu/ilr/pdf/vol50p265.pdf).

A Government Divided Against Itself

by Katherine M. Forbes, 2L Note Candidate


Among the many important tasks the new Commander in Chief will undertake is the appointment of a new Supreme Court Justice. Where We Stand on Stalled Supreme Court Nominee Merrick Garland, ABC News (October 7, 2016), http://abcnews.go.com/Politics/stand-stalled-supreme-court-nominee-merrick-garland/story?id=42648073 [https://perma.cc/Z9X8-U38C]. Many voters considered this an important element in choosing whom to vote for, with good reason.

Despite being short one justice, the Justices returned to work in October. A short-handed Supreme Court begins a new term, The Economist (October 7, 2016), http://www.economist.com/blogs/democracyinamerica/2016/10/slow-justice [https://perma.cc/S4Q7-R447]. However, because of the one empty seat left by the death of Antonin Scalia, they face the prospect of 4-4 splits, meaning the ruling of the lower Court of Appeals is maintained. In such instances, “[i]t’s as if the Supreme Court never took the case at all.” Supreme Court gamesmanship unjust, USA Today (October 7, 2016), http://www.news-press.com/story/opinion/2016/10/07/supreme-court-gamesmanship-unjust/91722606/ [https://perma.cc/JP6S-8P5Y]. Such toothless results could matter since this new docket concerns a number of cases dealing with race—an issue Americans are still struggling with.

Although tension always existed between the political parties, the standoff between President Obama and the Senate over the current Supreme Court nominee, Merrick Garland, has weakened the power of the Supreme Court (for a season) and perhaps harmed the American public as well. Sun-Times Editorial Board, Editorial: The harm of short-handed Supreme Court, Chicago Sun Times (October 6, 2016), http://chicago.suntimes.com/opinion/editorial-the-harm-of-short-handed-supreme-court/ [https://perma.cc/R46B-XWVV]. Rather than look to Garland’s merits and examine how much he aligns with their approach to Constitutional interpretation, Senate Republicans have taken a hard stance against him simply for being President Obama’s nominee.

This shallow approach to such an important institutional task is a crown of shame for the current Senate. Perhaps the American conscious can take comfort knowing this is not the norm. Rather, in the past, the nine seats of the most stalwart branch of government use to be confirmed by reasonable men and women who looked beyond their party to confirm individuals they trusted would reason with similar Constitutional views. This historical approach to Supreme Court appointments is addressed in Mark A. Graber’s article. Graber, Mark A., Judicial Supremacy and the Structure of Partisan Conflict, 50 Ind. L. Rev. 141 (2016) (available at http://mckinneylaw.iu.edu/ilr/pdf/vol50p141.pdf).

His article gives the academically minded a deeper understanding for why the Court’s present vacancy is significant. He helps us take a step back to see the history of the Supreme Court’s relationship with our dual-party system. He then ties the recent shift in bipartisanship to a weakening of vision and “supremacy” given to the Judiciary. Basically, he reminds us of a time when both parties looked to the broader scope and worked with the Supreme Court to make America’s government an admirable enterprise.

Testimony of Professor of Law Robert Katz on Indiana RFRA

by Robert A. Katz
Professor of Law (Faculty Profile)
Indiana University Robert H. McKinney School of Law
Lawrence W. Inlow Hall, Room 349
530 W. New York Street
Indianapolis, IN 46202-3225

[Editor’s Note: This article departs from the typical format and citation style of the Indiana Law Review Blog in the interest of providing commentary on the passage of Senate Bill 101, commonly referred to as the “Religious Freedom Restoration Act,” or RFRA. This article consists of abbreviated remarks presented by the author to the House Judiciary Committee of the Indiana General Assembly on March 16, 2015, 10 days before the bill was signed into law by Indiana Governor Mike Pence.]

Good day. My name is Robert Katz. I am a professor of law at Indiana University Robert H. McKinney School of Law where I teach First Amendment law and law and religion. My research focuses on the tension between religious freedom and anti-discrimination law. It is one of my most profound concerns as a citizen, a parent, and a member of the Jewish community.

The freedom of religion is one of our most fundamental rights as Americans. Yet, also precious to us as citizens are our civil rights and, most relevantly here, our right to be free from discrimination.

As I understand it, this bill has two main goals. (more…)

Separating Myths from Reality: Four Arguments for Raising the Minimum Wage

by Fran Quigley
Clinical Professor of Law (Faculty Profile)
Health and Human Rights Clinic
Indiana University Robert H. McKinney School of Law
Lawrence W. Inlow Hall, Room 111N
530 W. New York Street
Indianapolis, IN 46202-3225

Proposals to raise the U.S. minimum wage have attracted a great deal of attention in the last several years.  At the federal level, President Obama and many members of Congress have expressed support, via the Fair Minimum Wage Act, for an increase in the U.S. minimum wage. [1]. The legislation calls for an increase to $10.10 per hour for most workers, compared to the current minimum of $7.25 per hour. [2].  The bill also would increase the bottom level of pay for tipped workers from $2.13 per hour to 70% of the hourly worker minimum, and index both hourly and tipped worker wage levels for inflation. [3].

The federal bill has not passed, but twenty-nine states and the District of Columbia have all raised their minimum wage above the federal level. [4].  At least 140 individual communities have passed living wage ordinances, which raise salaries above the federal or state minimums. [5].  Bills proposing an increase in Indiana’s minimum wage, currently set to mirror the federal level, [6] failed to get a hearing in the 2015 session of the Indiana General Assembly. [7].

The minimum wage debate has often been characterized by misstatements of facts and forecasts that are not supported by evidence.  In an effort to separate the myths from the reality, here are four arguments for raising the minimum wage: (more…)

Myths and Realities of GMO Labeling Initiatives

by Drake T. Land
J.D. Candidate, 2015, Indiana University Robert H. McKinney School of Law
Indiana International & Comparative Law Review: Executive Articles Development Editor
B.S., 2007, Ball State University; Muncie, Indiana
Twitter (@draketland)

Editor’s note: Mr. Land’s article was selected from submissions in the Indiana Law Review‘s first writing competition.

Following the introduction of Genetically Modified Organisms (“GMOs”) into the food market in 1994, [1] consumer groups and multiple legislative bodies have fought to restrict their sale and label GMOs differently than traditionally developed foods. [2].  This push to restrict the sale, or label, of GMOs is born of the fear that GMOs will have unforeseen consequences to human health and/or the environment. [3].  These fears have been shown to be unrealized after twenty years of market availability [4] and, although restrictions on the sale of GMOs and mandatory labeling is the law in most European countries, [5] labeling initiatives have not achieved the same success in the United States’ federal and state governments. [6].  The European Union “has probably the strictest GMO regulations in the world though these derive rather from political considerations, rather than being based upon scientific principles.” [7].  Unlike the European Union (“the EU”), the United States Constitution explicitly “promote[s] the progress of science,” [8] and under this framework the United States has provided more protection to the development and retail of GMOs.

All currently grown crops have been developed through genetic modification. [9].  “By selectively breeding plants and animals with the most desirable traits, our predecessors transformed organisms’ genomes, turning a scraggly grass into plump-kerneled corn, for example.” [10].  Following Mendel’s discovery of the inheritance of genetic traits, farmers and scientists alike have been using selective breeding and hybridization to alter food crops to make them more reliable and marketable. [11].  “Today, there are virtually no food products in supermarkets that have not been improved in some manner by selective breeding.” [12]. (more…)

Local Legislators and the Need for an Evidentiary Privilege

by Jonathan Hughes [1] (Attorney Profile)
Bose McKinney & Evans, LLP
111 Monument Circle, Suite 2700
Indianapolis, IN 46204
(317) 684-5381

“To preserve legislative independence, . . .‘legislators engaged in the sphere of legitimate legislative activity should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.’” [2].

“Private lawsuits threaten to chill robust representation by encouraging legislators to avoid controversial issues or stances in order to protect themselves.” [3].

“We are governed by laws, not by the intentions of legislators.” [4].

“[I]t simply is not consonant with our scheme of government for a court to inquire into the motives of legislators . . . .” [5].

“All politics is local.” [6].  Former Speaker of the House Thomas Phillip “Tip” O’Neill used these words to remind federal politicians to “pay attention to their own backyards and take care of their folks.” [7].  The concept also carries a broader meaning – that local legislative actors are most intimately entrusted with providing services to the public.  Often, local legislative actors are not afforded the opportunity to focus solely on their legislative jobs.  Their role as town council member, city council member, or state legislator is often only a part-time job for which they must supplement their salary with other work.  Federal legislators, on the other hand, are afforded full-time jobs and a staff to assist them in performing their functions.  In this context, when a city or town is sued for taking some legislative action, the local legislator should be protected from judicial inquiry to the same extent as the federal legislator.  Unfortunately, a circuit split has developed, with some federal courts providing a lesser legislative immunity to local legislators than is provided to federal legislators. (more…)