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Brief Authors
- Doug Kendall (1964-2015)
- Elizabeth B. Wydra
- David H. Gans
- Tom Donnelly
for good guys?
CEDAR POINT NURSERY AND FOWLER PACKING COMPANY, INC., Petitioners, v. VICTORIA HASSID, IN HER OFFICIAL CAPACITY AS CHAIR OF THE AGRICULTURAL LABOR RELATIONS BOARD, ET AL., Respondents. __ On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit __ BRIEF OF CONSTITUTIONAL ACCOUNTABILITY CENTER AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS ___ ELIZABETH B. WYDRA BRIANNE J. GOROD* DAYNA J. ZOLLE CONSTITUTIONAL ACCOUNTABILITY CENTER 1200 18th Street NW Suite 501 Washington, D.C. 20036 (202) 296-6889 brianne@theusconstitution.org
acs
Gans
Director of the Human Rights, Civil Rights, and Citizenship Program at the Constitutional Accountability Center (CAC)
AUTHORED BY DAVID GANS
MENTIONS
EXPERTFORUM BLOG
Severability, the Affordable Care Act, and the Supreme Court: The Oral Argument in California v. Texas
DAVID GANS November 11, 2020
ISSUE BRIEF
The Roberts Court, The Shadow Docket, and the Unraveling of Voting Rights Remedies
DAVID GANS October 8, 2020
EXPERTFORUM BLOG
Severability, Robocalls, and the Legacy of Marbury v. Madison: Why the Challenge to the ACA Must Fail
DAVID GANS July 7, 2020
ISSUE BRIEF
To Save and Not to Destroy: Severability, Judicial Restraint, and the Affordable Care Act
DAVID GANS December 5, 2019
debate?
fedsoc
david joined CAC after serving as Program Director of Cardozo Law School's Floersheimer Center for Constitutional Democracy, and as an attorney with the Brennan Center for Justice at NYU School of Law, where he worked with Bert Neuborne on appellate briefs in constitutional cases involving the First Amendment and voting rights. Previously, David was an Acting Assistant Professor at NYU School of Law and practiced law at Emery Cuti Brinckerhoff & Abady, PC, where he litigated a wide range of constitutional and civil rights cases. David has also served as an attorney fellow for the Center for Reproductive Law and Policy and as a law clerk for the Hon. Rosemary Barkett on the U.S. Court of Appeals for the 11th Circuit.
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He is a graduate of Yale Law School, where he served as an editor on the Yale Law Review. His academic writings have appeared in the Yale Law Journal, the Boston University Law Review, the Emory Law Journal, the George Washington Law Review. Before receiving his law degree, David worked as a paralegal for the American Civil Liberties Union, where he helped Kathryn Kolbert prepare the briefs and argument in Planned Parenthood v. Casey. In 1993, David and Ms. Kolbert co-authored an article in the Temple Law Review titled "Responding to Planned Parenthood v. Casey: Establishing Neutrality Principles in State Constitutional Law." David received his undergraduate degree from Columbia University.
an ah 7 22
During the Bill Clinton years, the term “originalism” was primarily used in connection with two far-right U.S. Supreme Court justices: Clarence Thomas and the late Antonin Scalia. Others on the High Court, from the late liberal Clinton appointee Justice Ruth Bader Ginsburg to Justice Sandra Day O’Connor to Justice Anthony Kennedy — a right-wing libertarian and Ronald Reagan appointee who was fiscally conservative yet protective of gay rights and abortion rights — rejected originalism, which is often synonymous with far-right social conservatism.
The Clinton years are long gone. O’Connor (now 92) and Kennedy retired, Ginsburg died in 2020, and the originalist thinking now dominates the High Court — where Republican-appointed justices have a 6-3 supermajority. One-third of the Court now consists of justices appointed by former President Donald Trump: Neal Gorsuch, Brett Kavanaugh and Amy Coney Barrett, all of whom joined Thomas and Justice Samuel Alito in overturning Roe v. Wade.
Author/legal expert David H. Gans, who serves as director of the Human Rights, Civil Rights, & Citizenship program at the Constitutional Accountability Center, examines the originalist doctrine as practicedby 2022’s Supreme Court in a biting think piece published by The Atlantic on July 20 — and lays out some reasons why it has been a total disaster.
“When Justice Amy Coney Barrett joined the Supreme Court in 2020,” Gans explains, “conservatives celebrated that ‘there are now four avowed originalists on the Court.’ To those on the right, the latest version of the Roberts Court had the potential to be the greatest originalist Court in history. But this term’s biggest decisions show how wrong those conservatives were —even as they got all the results they wanted. Although conservative originalists have, for years, been touting their method as restrained, sensible, and tightly tethered to constitutional text and history, this term blew away such pretenses. If this is the great conservative originalism, then those professing it have finally and conclusively revealed it to be what many skeptics already considered: a hollow edifice designed to hide an ugly and aggressive ideological agenda.”
The problem with originalism as practiced by Thomas, Barrett, Alito and other Republican-appointed justices, Gans argues, is that they “cherry-pick” the parts of U.S. history that they like and gloss over the parts that they don’t.
“This is a radical Court dominated by conservatives who treat the past practices of state legislatures as determinative of the Constitution’s meaning, warping the broadly worded language that was meant to enshrine fundamental principles of liberty and equality in our national charter,” Gans observes. “This is a Court that insists it is following history and tradition where they lead, while cherry-picking the history it cares about to reach conservative results. These are damning moves for conservative justices who pride themselves on fidelity to the Constitution’s first principles.”
Gans tears apart the High Court’s ruling Dobbs v. Jackson Women’s Health Organization and its decision to overturn Roe v. Wadeafter 49 years. Alito argued that Roe was inconsistent with U.S. “history and tradition,” and Gans explains why his use of that concept is badly flawed.
READ MORE:**The Supreme Court’s nod to white Christian theocracy**
According to Gans, “Alito’s account of ‘history and tradition’ ignores the most salient aspect of the Fourteenth Amendment’s history: the horrific abuses that led the Framers of the Fourteenth Amendment to push through changes to the Constitution to broadly guarantee the protection of substantive fundamental rights…. Alito’s sweeping condemnation of unenumerated fundamental rights ignores the fact that the Fourteenth Amendment sought to guarantee rights to bodily integrity and to marry and raise a family, and the right to decide for oneself whether, when, and with whom to form a family…. In short, reproductive freedom is in the Constitution. Alito simply refuses to grapple with the Constitution’s true history.”
Gans writes that while Dobbs “deployed selective history to take away a fundamental right,” the 2022 Court’s 6-3 ruling in New York State Rifle & Pistol Association v. Bruen “deployed selective history to create one: a radically expansive right to be armed in public.” And Gans notes that “in this term’s religion cases, Carson v. Makin and Kennedy v. Bremerton School District, the 6-3 conservative majority dramatically expanded the protections of the free-exercise clause, without a whiff of attention to history and tradition, while whittling down the Establishment Clause in light of historical practice.”
When it comes to “history and tradition,” Gans stresses, the U.S. Supreme Court’s “originalists” are willing to ignore parts of U.S. history that don’t fit their narrative.
“As these examples illustrate, ‘history and tradition’ is the new calling card of a Supreme Court that is willing to upend our constitutional order in the name of traditionalism,” the author/legal expert laments. “Do not label the Roberts Court ‘originalist,’ if that term is to have the methodological meaning its supporters have been advertising for years. It is not. It is a deeply unprincipled conservative Court majority that manipulates both the Constitution and history to reach conservative results, reversing rights it despises and supercharging those it reveres.”
READ MORE:**The Supreme Court is laying the groundwork to pre-rig the 2024 election**
slate
DAVID H. GANS
NOV 02, 2022
1:59 PM
The Framers Were Big Fans of Liberty, Unlike Samuel Alito
DAVID H. GANS
MAY 18, 2022
The Mississippi Abortion Case Threatens the Right to Use Birth Control, Marry, and Even Make Choices About Sex
DAVID H. GANS
OCT 12, 2021
5:11 PM
The One Area Where Supreme Court Jurisprudence Is Actually Improving Thanks to Originalism
DAVID H. GANS
JULY 22, 2021
1:17 PM
The Supreme Court Bears Responsibility for George Floyd’s Death
DAVID H. GANS
MAY 25, 2021
9:37 AM
SCOTUS Will Consider Another Way to Gut the Voting Rights Act
DAVID H. GANS
MARCH 02, 2021
5:45 AM
The Supreme Court Must Choose Between Trump and the Constitution in the Census Case
DAVID H. GANS
NOV 30, 2020
5:50 AM
The Trump Plan for Legislatures to Appoint Electors Would Be a Blatant Attack on Democracy
DAVID H. GANS
OCT 29, 2020
3:07 PM
How John Roberts Quietly Made It Harder to Vote
DAVID H. GANS
OCT 02, 2020
2:46 PM
The Supreme Court Enabled Horrific Police Violence by Ignoring Constitutional History
DAVID H. GANS
JUNE 03, 2020
1:13 PM
The Fight Over the Affordable Care Act and Birth Control Is Back at the Supreme Court
DAVID H. GANS
MAY 04, 2020
5:45 AM
The Roberts Court Will Not Ensure the Constitution’s Most Fundamental Right
DAVID H. GANS
APRIL 07, 2020
5:36 PM
The Roberts Court Has Made the Looming Coronavirus Election Crisis So Much Worse
DAVID H. GANS
APRIL 03, 2020
1:14 PM
We Held an Election During the 1918 Flu Epidemic. We Can Hold an Election Now.
DAVID H. GANS
MARCH 18, 2020
4:59 PM
The Census Case Will Define the Roberts Court
DAVID H. GANS
APRIL 24, 2019
4:07 PM
If John Roberts Follows His Precedents, He Will Vote to Protect Gay Couples From Discriminatory Cake-Makers
DAVID H. GANS
NOV 08, 2017
2:29 PM
Why Have Corporations Refused to Support Hobby Lobby in the Contraception Mandate Challenge?
DAVID H. GANS
FEB 04, 2014
5:01 PM
Conservative Originalists Are Rethinking Their Narrow Reading of the 14th Amendment
https://www.theusconstitution.org/issues/corporate-accountability/
Constitution guarantees rights for “people” and “citizens,” never once referring to protections for “corporations.” CAC advocates on behalf of the workers, consumers, and others whose constitutional and statutory rights have been denied by corporations and big business interests.
View CAC’s long-term study: Corporations and the Supreme Court
Corporate Accountability in Brief
The text of our Constitution never mentions corporations. The framers wrote and the American people ratified the original articles and amendments to the Constitution to secure the inalienable rights of “We the People” — living human beings. CAC works in the courts and the public square to hold corporations accountable and protect the rights of people.
A Capitalist Joker: The Strange Origins, Disturbing Past and Uncertain Future of Corporate Personhood in American Law
Read More
QUICK TAKE: The Chamber of Commerce at the Supreme Court: 2020-2021
Read More
The Roberts Court and Corporations: The Numbers Tell the Story
Read More
Collins v. Mnuchin; Mnuchin v. Collins
Read More
Nestlé USA, Inc. v. John Doe I; Cargill, Inc. v. John Doe I
Read More
Featured Case
CORPORATE ACCOUNTABILITY
June 23, 2021
Collins v. Mnuchin; Mnuchin v. Collins
The effects of the 2008 housing crisis decimated the American economy. And at the height of the crisis, nearly half of the nation’s mortgage debt was owned or guaranteed by Fannie Mae and Freddie Mac. But to compete with Wall Street and increase profits, Fannie and Freddie had over-invested in risky mortgages and securities, ultimately requiring billions in federal bailouts. These practices were made possible by the lax oversight of a weak and politically dependent government regulator. To correct that problem, Congress established a new agency to oversee Fannie and Freddie, the Federal Housing Finance Agency (FHFA). Congress further provided...
A Capitalist Joker: The Strange Origins, Disturbing Past and Uncertain Future of Corporate Personhood in American Law
A Capitalist Joker builds on the scholarly research discussed in CAC’s amicus curiae brief in the Supreme Court case Citizens United v. FEC. The narrative examines a key issue that the Court addressed in the case: whether corporations have the same rights as individuals, particularly when it comes to influencing electoral politics.
Summary
On March 10, 2010, CAC released the third narrative in its Text and History Narrative Series at a hearing of the Senate Judiciary Committee on the Supreme Court case Citizens United v. FEC. Entitled A Capitalist Joker: The Strange Origins, Disturbing Past and Uncertain Future of Corporate Personhood in American Law, the narrative builds on the scholarly research discussed in CAC’s amicus curiae brief in Citizens United v. FEC. The narrative examines a key issue that the Court addressed in the case: whether corporations have the same rights as individuals, particularly when it comes to influencing electoral politics.
As the Joker explains, the text of our Constitution never mentions corporations. The framers wrote and the American people ratified the original Constitution, the Bill of Rights, and the three Civil War amendments — the Thirteenth, Fourteenth, and Fifteenth — to secure the inalienable rights of “We the People” — living human beings. Governments create corporations and give them special privileges to fuel economic growth, but with these special privileges come greater government oversight. The new narrative traces the Supreme Court’s treatment of corporations from the Founding era Supreme Court under John Marshall, through the Lochner era, the New Deal, and up through the Roberts Court today. It shows that while corporations have long enjoyed some protections under certain constitutional provisions, they have only been granted equal constitutional rights once – in a series of opinions in the infamous Lochner era. Today, those opinions have been repudiated by liberals and conservatives alike and have been dismissed by the Supreme Court as a “relic of a bygone era.”
AUTHORS
David H. Gans
Doug Kendall (1964-2015)
DATE PUBLISHED
March 10, 2010
ISSUE
Corporate Accountability
SUBTOPICS
Corporate Personhood
https://www.theusconstitution.org/wp-content/uploads/2017/12/A_Capitalist_Joker.pdf
78 pp
David is Director of the Human Rights, Civil Rights & Citizenship Program at CAC. He is an experienced constitutional litigator and scholar.
David is the co-author of Religious Liberties for Corporations?: Hobby Lobby, the Affordable Care Act, and the Constitution(Palgrave MacMillan, 2014), as well as the lead author of CAC’s Text and History Narrative Series, including, most recently, The Keystone of the Arch: The Text and History of Article III and the Constitution’s Promise of Access to Courts. His academic writings have appeared in the Yale Law Journal, the Boston University Law Review, the Emory Law Journal, the George Washington Law Review, and the John Marshall Law Review. David has also written commentary for the L.A. Times, USA Today, the New Republic and Slate, as well as numerous legal blogs, including Scotusblog, Balkinization, and ACS Blog.
David joined CAC after serving as Program Director of Cardozo Law School’s Floersheimer Center for Constitutional Democracy, and as an attorney with the Brennan Center for Justice at NYU School of Law, where he worked with Burt Neuborne on campaign finance and voting rights cases. Previously, David was an Acting Assistant Professor at NYU School of Law and practiced law at Emery Cuti Brinckerhoff & Abady, PC, where he litigated a wide range of constitutional and civil rights cases. He has also served as an attorney fellow for the Center for Reproductive Law and Policy and as a law clerk for the Hon. Rosemary Barkett on the U.S. Court of Appeals for the 11th Circuit.
David is a graduate of Yale Law School, where he served as an editor on the Yale Law Review. Before receiving his law degree, David worked as a paralegal for the American Civil Liberties Union, where he helped Kathryn Kolbert prepare the briefs and argument in Planned Parenthood v. Casey. In 1993, David and Ms. Kolbert co-authored an article in the Temple Law Review titled “Responding to Planned Parenthood v. Casey: Establishing Neutrality Principles in State Constitutional Law.”
David received his undergraduate degree from Columbia University.
Doug Kendall, Constitutional Accountability Center’s Founder and first President, passed away on September 26, 2015. To read CAC’s statement on Doug’s life and work, click here.
Doug was a litigator, author, activist, and non-profit entrepreneur. Before he founded CAC, Doug founded Community Rights Counsel (CRC) and directed CRC for more than a decade before CAC’s launch. In 2011, the National Law Journal recognized Doug as a “legal visionary” for CAC’s success in “reclaiming the Constitution for the legal left.”
Doug represented clients in state and federal appellate courts around the country and co-authored more than four dozen briefs filed before the U.S. Supreme Court, representing clients including the National Governors Association, the National League of Cities, the League of Women Voters, the American Judicature Society, and many of the nation’s preeminent constitutional scholars.
Doug was regularly called on to speak as an expert on a wide range of legal topics. He was quoted in more than 500 national news stories, appeared on television dozens of times, and been an on-air guest on NPR more than a dozen times. His commentary ran in The New Republic, Slate, and dozens of major papers, including The Washington Post, USA Today, and The Los Angeles Times. Doug contributed regularly to Huffington Post, where his commentary on legal developments was regularly featured on the site’s homepage. Doug was the co-author of three books, and the lead author of numerous book chapters, reports, and studies. His academic writings appeared in scholarly journals, including the Virginia Law Review.
Doug received his undergraduate and law degrees from the University of Virginia.
Our Vision
Constitutional Accountability Center envisions a future in which judges, policymakers, academics, non-profit organizations, and the public understand the Constitution, in its most vital respects, to be a progressive document, and always apply the text, history, and values of the whole Constitution to resolve disputes over its meaning.
Our Mission
Constitutional Accountability Center (CAC) is athink tank, law firm, and action center dedicated to fulfilling the progressive promise of our Constitution’s text and history. We work in our courts, through our government, and with legal scholars to preserve the rights and freedoms of all in America and to protect our judiciary from politics and special interests.
Our Commitment
At Constitutional Accountability Center, we view the Constitution as an inherently progressive document—amended over the generations to become more just, equitable, and inclusive. To make real the promises of our national charter, we must honor and celebrate different ideas, perspectives, and backgrounds, and especially the contributions of historically marginalized communities. As an organization, we make every effort to live by these ideals and help create the conditions that will allow all individuals and communities to thrive.
We are committed to the recruitment, development, and retention of talented and diverse staff who believe in true justice and equality for all people. CAC is an equal opportunity employer, and we particularly encourage people who identify as Black, Indigenous, Latino/Latina or Latinx, Asian American or Pacific Islander, and from other underrepresented communities to join us.
On November 14, 2018, President Donald Trump nominated Neomi J. Rao to the United States Court of Appeals for the District of Columbia Circuit to fill the seat vacated by Supreme Court Justice Brett M. Kavanaugh. On February 5, 2019, the Senate Judiciary Committee held a confirmation hearing for Rao and subsequently voted her out of committee on February 28, 2019. Ultimately, the Senate confirmed her on March 13, 2019 on a party-line vote.
Constitutional Accountability Center scrutinized Rao’s record and testimony closely and found that they both demonstrate her disregard for settled legal rules and protections. She would likely jettison major aspects of the so-called administrative state and give the courts new power to second-guess agency action. Moreover, while she grounds her views on the administrative state in her commitment to liberty, her record is in many respects hostile to the protection of individual liberty and dignity, which have long been safeguarded by Supreme Court precedent protecting the rights of women and LGBTQ persons. Her record suggests she will not be faithful to the Constitution’s text, history, and values, or longstanding Supreme Court precedent. As a result of her record and testimony at her confirmation hearing, CAC opposed her confirmation on February 11, 2019.
Below is a sampling of CAC’s work examining Neomi Rao’s record.
Letter
February 28, 2019
Letter
February 11, 2019
Board of Directors
Elizabeth B. Wydra
President
Andrew J. Pincus
Board Chair
Harry Litman
Eleanor D. "Eldie" Acheson
Peter C. Erichsen
Sean Mahoney
Vivek H. Maru
Molly Moran
Elliot Williams
Advisors
Jack M. Balkin
Walter Dellinger
Former Staff
Doug Kendall (1964-2015)
Founder and CAC's first President