Williams College Law Journal, Volume V, Issue I

WILLIAMS COLLEGE LAW JOURNAL VOLUME V, ISSUE I Fall 2016

The WILLIAMS COLLEGE LAW JOURNAL is an interdisciplinary undergraduate publication comprised of student essays that is devoted to the scholarly discussion of legal subjects. The mission of this publication is to provide a place where undergraduate students can discuss and examine the law, its role, the effects of law and policy, and the relationships of law and justice, as well as their experiences preparing for law school, a legal education, or their involvement in a legal field.

We accept submissions covering a wide range of topics related to law, from any current undergraduate student around the nation, regardless of academic division, major, minor or year. If you are an alum, professor, or lawyer, you can also submit a short piece that is aimed at educating undergraduate students about careers, educations, or experiences in the legal field.

Essays can be submitted via email or our website http://www.williamscollegelawjournal.org/submit/ The Law Journal Committee would like to graciously acknowledge the following organizations for their generous support.

Williams College Law Society Williams College Council Williams College Dean’s Office Williams College Office of Student Life

Williams College Law Society Law Journal Committee c/o Office of Student Life 39 Chapin Hall Drive Williamstown, MA 01267

WilliamsCollegeLawJournal@gmail.com http://www.williamscollegelawjournal.org

COVER: Design by Gloria Joo i

WILLIAMS COLLEGE LAW JOURNAL Volume V Issue I Fall 2016

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Letter from the Editor

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Medellin v. Texas: A Case Study of Protecting State Rights against a Volatile Trump Administration Bum Shik Kim

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Judges and their Allies The Synergy between the Constitutional Court and Judicial Support Networks in Turkey Gyu Hyung Choi

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Interview with Arthur Levitt '66 Former Chairman of the Securities and Exchange Commission Henry Lu

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Two Systems of Human Rights A Literature Review of Human Rights and Guantanamo Bay Daniel Carey

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In Defense of the Electoral College Cooper Bramble

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Interview with Malcolm Stewart U.S. Deputy Solicitor General Henry Lu

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The Umpire on the Bench A Critical Analysis of Chief Justice John G. Robert’s Jurisprudence Neil Banerji

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LETTER FROM THE EDITOR Dear Reader, LAW JOURNAL EDITORIAL BOARD Editor-in-Chief Henry Lu Managing Online Editor Jenny Wheeler Managing Print Editor Bum Shik Kim Associate Online Editor Sarah Jensen Associate Print Editor Jad Hamdan Staff Writers Alan Louis Angela Yoon Cooper Bramble Fred Wang WILLIAMS COLLEGE LAW SOCIETY EXECUTIVE BOARD

I am honored to present Volume V of the Williams College Law Journal. This issue brings together articles from students at Williams College, as well as UC Berkeley, Siena College, and Knox College on topics from human rights, to Chief Justice Roberts, to Turkey’s Constitutional Court. You will also find in this issue interviews with Arthur Levitt '66, former Chairman of the Securities and Exchange Commission, and Malcolm Stewart, Deputy Solicitor General, about their roles and careers in government.

On behalf of the Williams College Law Journal, I would like to express our appreciation for the enduring support of the Williams College Law Society, Office of Student Life, and College Council, as well as our helpful staff advisors and alumni. I also thank our guest contributors and Williams writers for their hard work, and the editorial team for their dedication to this issue.

I hope you find the issue interesting and engaging, and as always, we welcome your feedback through email or our website: http://www.williamscollegelawjournal.org/contact-us/ Sincerely, Henry Lu '19 Editor-in-Chief

President Mary Beth Dato Secretary Marisol Sierra Treasurer Drew Fishman Events Director Angela Chang Editor-in-Chief Henry Lu Law Teams Director James Reed Sawyers

The Williams College Law Journal is published at least twice a year. Previous editions of the Law Journal can be found online on our website. The contents of this volume represent the opinions of the authors and not necessarily those of the editors, the Journal, the Williams College Law Society, or Williams College.

All rights reserved. No parts of this publication may be reproduced or transmitted without the Law Society’s written consent.

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Medellin v. Texas: A Case Study of Protecting State Rights against a Volatile Trump Administration Bum Shik Kim Williams College

This article is an opinion piece. As such, facts and legal concepts are simplified as much as possible, in order to focus on broad themes of the opinion. Readers interested in getting sources to specific quotes from court opinions or precedents cited in Medellin can contact the author directly at bsk3@williams.edu.

Introduction The election of Donald Trump as the 45th President of the United States has created much speculation and uncertainty for the future of United States policies in every way imaginable—from questions regarding free trade and the extent of financial regulation, to questions about President Trump’s taxes policies and positions on social issues.

A potentially greater issue of President Trump is his willingness to expand the executive branch’s powers.

In other words, his interviews, speeches, and actions have led news outlets, Obama cabinet officials, and political scientists to see a potential rise in authoritarian policies under President Trump.

Therefore, it becomes more important to re-examine case law surrounding separation of powers, and have reason to believe the USSC decisions will place some form of restraint on President Trump.

In order to better explain and simplify this point to the everyday news reader, I summarize and reexamine the impact of the USSC case Medellin v.

Texas (2008). Medellin has also been popularized by Senator Ted Cruz, who argued the case in the Supreme Court as then-Solicitor General of Texas.

The 6-3 decision in Medellin determined that a non self-executing treaty from the international community cannot be bound upon states as law unless signed by the U.S. Congress, reinforcing the limitation of international enforcement on U.S. laws.

At the same time, and potentially more relevant to the Trump Administration, the executive power has no constitutional power to enforce a said treaty on the states unless it had congressional passing of the

treaty. This indicates an affirmation of protecting states’ rights while highlighting the limitations of the president’s own agenda on policies. I conclude by speculating how Medellin may prove to be unfavorable to some of Trump’s potential policy implementation, exemplifying the ever increasing importance of how the least public-facing branch of government may significantly impact the legacy of the next President’s policies.

Summary of the Case1,2 The facts of Medellin v. Texas involved Jose Medellin, a citizen of Mexico. Medellin was sentenced to the death penalty following his conviction for the rape and murder of two underage girls in Houston, Texas. However, he appealed that his individual right to contact his national consulate had been violated under the Vienna Convention—an international treaty the US had signed onto. He reinforced this argument by the International Court of Justice’s (ICJ) ruling that Medellin, along with 50 other Mexican nationals had their rights violated under the Vienna Convention and should have their convictions reconsidered. Furthermore, the Bush Administration issued a Presidential Memorandum claiming the power of the executive branch to make state courts including Texas comply with the treaty. A successful appeal of this nature would mean the reconsideration of the 51 nationals’ cases who were all not given a chance to contact their respective consulates. Medellin's argument relied upon the executive branch’s power and directive to enforce international treaties at the state level. In this case, a successful Medellin argument would result in the Bush Memorandum enforcing the Vienna Convention rules upon the state of Texas, giving Medellin a reconsideration of his death penalty.

The 6-3 majority opinion of the case, however, concluded against Medellin’s argument. First, a non self-executing treaty, defined as a treaty judicially enforceable only through the implementation of legislation cannot extend to the states without passage of the law in the U.S. Congress.3 This included the provisions included in the Vienna Convention. The

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Medellin v. Texas (March 25, 2008).

Chicago-Kent College of Law at Illinois Tech. "Medellin v. Texas." Oyez. https://www.oyez.org/cases/2007/06-984.

3 "Self Executing Treaty." Legal Information Institute. https://www.law.cornell.edu/wex/self_executing_treaty.

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Medellin v. Texas: A Case Study of Protecting State Rights against as Volatile Trump Administration laws in the Vienna Convention were viewed more as a framework of diplomatic relations without intention to be self-executing. Thus, even though the US signed onto a treaty, the lack of evidence indicating it to be self-executing meant that any enforcement of the international agreement imposed on the states must be passed by Congress. The President’s Memorandum was then viewed as nothing more than a way to circumvent the need of congressional legislation in the case of a non self-executing treaty. The Roberts court had effectively limited executive power under his appointer, George W. Bush, while defending states’ rights from international treaties which are non self-executing.

Then Solicitor-General Cruz commented about the President’s Memorandum as an example of lawlessness which “exemplifies executive overreach.”4 Senator Cruz had won the case for the states in what he had viewed to be “an opportunity to take the federal government to court.”5 Discussion: Medellin will help limit any extreme and/or authoritative policies of a Trump Administration through both the legislative and (mainly) judicial branch One of the main takeaways from Medellin is that the case can symbolize the power of the states against international agreements and the federal government, specifically with regards to the President of the United States.

Perhaps those anxious about President Trump’s potential authoritarianism should breathe a sigh of relief. Whether it be claims that President Trump is authoritarian, as indicated by his close support for Russia, which has known authoritative policies in place, threatening to sue journalists, or declaring that Secretary Hillary Clinton would be thrown into jail, any of the federal policies he may try to impose on

the states will first be limited by cases like Medellin.6 Without congressional support for policies, which include Republicans who may be skeptical of President Trump on major issues, the President’s only alternative then may be to rely on sole executive powers which brings up further constitutional challenges and questions of their own.

“Any of the federal policies he may try to impose on the states will first be limited by cases like Medellin.”

For example, President Trump has made the deportation of illegal immigrants, without regard for any exception, a major theme of his political campaign. At the same time, it is uncertain that such an extreme measure to deport all illegals, based on values, resources, and time required to do so would ever have a realistic chance of passing Congress.

Members of the President’s party, such as Senator Marco Rubio or Governor John Kasich have expressed their doubts over the practicality of any full deportation measure.7 The President’s only alternative then becomes to issue an executive order on states to carry out deportations, or some form of special executive privilege which bypasses the lack of congressional support. Immediately, Medellin can be referred to as the example which protects state powers against a loose, power hungry executive branch. Medellin can effectively preserve the Congress as the source of any lawmaking.

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Liptak, Adam, and Matt Flegenheimer. "After a Rocky Start, Ted Cruz Had Success Before Supreme Court." The New York Times, February 16, 2016. https://www.nytimes.com/2016/02/17/us/politics/after-a-rocky-start-ted-cruz-built-a-connectionto-the-supreme-court.html?_r=1.

5 Mahler , Jonathan. "Ted Cruz Promoted Himself and Conservative Causes as Texas’ Solicitor General." The New York Times, March 4, 2016. https://www.nytimes.com/2016/03/05/us/politics/ted-cruz-promoted-himself-and-conservative-causesas-texas-solicitor-general.html.

6 Kirk, Chris, Ian Prasad Philbrick, and Gabriel Roth. "230 Things Donald Trump Has Said and Done That Make Him Unfit to Be President."Slate.com, November 7, 2016. http://www.slate.com/articles/news_and_politics/cover_story/2016/07/donald_trump_is_unfit_to_be_president_here_are_141 _reasons_why.html.

7 Wright, Bruce . "John Kasich On Immigration, Apple, Religious Liberty Policies: Ohio Gov Differs From Trump, Cruz, Rubio." Ibtimes.com. February 25, 2016. http://www.ibtimes.com/john-kasich-immigration-apple-religious-liberty-policiesohio-gov-differs-trump-cruz-2324323.

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Judges and their Allies The Synergy between the Constitutional Court and Judicial Support Networks in Turkey Gyu Hyung Choi University of California, Berkeley

Abstract Authoritarian regimes create and empower courts in anticipation of various regime-supporting functions of courts such as sidelining political opponents and establishing legitimacy for the government. Recently, however, many courts in authoritarian regimes around the globe have defied their expected roles as regimesupporting pawns, and instead began to challenge the interests of their creators. The Constitutional Court of Turkey (CCT) testifies to such trend. As Turkey gradually evolved to an authoritarian state under Erdoğan’s rule, the CCT has been on the front line in the battle against the Erdoğan government in moderating state power, especially from 2010 to 2014 when the government threatened individual rights and independence of the judiciary. However, the battle between the Court and the government was shortlived when the Court suddenly changed its behavior and remained acquiescent to the government after 2015. What can explain the changes in behavior of the CCT in recent years? What are the sources and conditions that pushed the Court to be active from 2010 to 2014 but passive since 2015? Collecting evidence through academic publications, civil society reports, court cases, and online news articles, this paper finds that the ability of an apex court to engage in conflict with an authoritarian regime depends largely on the mobilization of “judicial support networks,” which are composed of opposition parties, legal professionals and civil society organizations.

Introduction With the rise of the Justice and Development Party (Adalet ve Kalkınma Partisi or “AKP”) in 2002, Turkey has increasingly deviated from a liberal polity and moved to an authoritarian state. During its 14 years in rule, the AKP and its leader Recep Tayyip Erdoğan, the former Prime Minister (2003 to 2014) and current President, have ferociously secured

control over all aspects of the Turkish political and social system, often threatening the three key elements of political liberalism identified by Halliday, Karpik, and Feeley: the independence of the judiciary, the protection of human rights, and the autonomy of civil society.1 Until recently, the Constitutional Court of Turkey (“CCT”) has been on the front line in the battle against the AKP government in moderating state power, especially from 2010 to 2014 when the AKP passed several laws and amendments designed to undermine the independence of the judiciary. For example, when the AKP-dominated Grand National Assembly of Turkey (“GNAT” or “Parliament”) passed in 2014 Law No. 2802—one of many laws in the package reform called the “Law on Judges and Prosecutors”—that would have given the Ministry of Justice far-reaching control over the appointment and dismissal of judges and prosecutors, the Constitutional Court ruled in the same year that the law was unconstitutional as it violates the separation of powers between the judiciary and the executive.2 Beginning roughly in 2015, however, the Court gradually became deferential to the government, particularly on cases dealing with the “core interest”3 of the regime—that is, the continued AKP dominance in the government. In December 2015, for instance, the Court rejected an appeal against Law No. 6572, also passed in 2014 as part of the Law on Judges and Prosecutors, that allows a judge, at the request of prosecutors (who are essentially the agents of the regime), to restrict defense attorneys’ access to case files in criminal investigations when such access may “endanger” the state’s purpose of the investigation.4 It is only within a year that the Court’s ruling on the same package law changed dramatically.

The examples on the Law on Judges and Prosecutors are reflective of the overall changing levels of “judicial independence”—defined in this paper as the Court’s ability and willingness to rule

Terence C. Halliday, Lucien Karpik, and Malcolm Feeley, “The Legal Complex in Struggles for Political Liberalism,” in Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism, ed. Terence C. Halliday, Lucien Karpik, and Malcolm M. Feeley. (Oxford: Hart, 2007), 10-11.

2 Wendy Zeldin, “Turkey: New Amendments to Laws on Judiciary,” Library of Congress, March 10, 2014, accessed May 1, 2016, http://www.loc.gov/law/foreign-news/article/turkey-new-amendments-to-laws-on-judiciary/.

3 Tamir Moustafa, “Law versus the State: The Judicialization of Politics in Egypt,” Law & Social Inquiry 28, no. 4 (2003): 904, accessed February 10, 2016, doi: 10.1111/j.1747-4469.2003.tb00826.x.

4 Wendy Zeldin, “Turkey: Constitutional Court Rulings on “Reasonable Suspicion” in Criminal Procedure Code and on 2014 Changes to Internet Law,” Library of Congress, December 30, 2015, accessed May 1, 2016, http://www.loc.gov/law/foreignnews/article/turkey-constitutional-court-rulings-on-reasonable-suspicion-in-criminal-procedure-code-and-on-2014-changesto-internet-law/.

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Judges and their Allies against the interests of the ruling government—in contemporary Turkey, where the Constitutional Court’s judicial independence remained relatively high from 2010 to 2014 but decreased beginning in 2015. What can explain the rise and decline of judicial independence of the Constitutional Court of Turkey in recent years? What are the sources and conditions that enabled the Court to be active from 2010 to 2014? More importantly, what has changed in 2015 that has led to the decline of judicial independence? This paper unfolds the puzzling behavior of the Constitution Court of Turkey by explicating the sources and conditions that are behind the varying degrees of judicial independence in Turkey.

In what follows, I argue that the active (or passive) legal mobilization on the part of judicial support networks—comprised of opposition parties, legal professionals and civil society organizations—is what drives the rise (or decline) of judicial independence in Turkey. The first section overviews the puzzling changes in the level of judicial independence in Turkey with a focus on the Constitutional Court’s increasing deference to the AKP government in recent years. The second section places Turkey in the larger theoretical framework of courts in authoritarian regimes. I also address the existing literature on the Constitutional Court of Turkey, which has been centered on the ideational model, and argue that the ideational model does not provide a satisfactory explanation for the varying degrees of judicial independence of the CCT in recent years. The third section closely analyzes the causal relationship between judicial independence and legal mobilization of judicial support networks in Turkey.

The paper concludes with a general discussion of the implications of the Turkish case on the wider context of the relationship between the courts and judicial support networks in hybrid regimes.

Changing Levels of Judicial Independence in Turkey The conflicting decisions on the Law on Judges and Prosecutors in 2014 and 2015 reflect the overall changing levels of judicial independence of the CCT. It is indeed incredible to observe that the Court has ruled in vastly different ways for cases dealing with the very legislation that could determine the ability of

the judiciary to act independently from the government. The Court struck down Law No. 2802, which would have given the Ministry of Justice farreaching control over the appointment and dismissal of judges and prosecutors, but that same Court refused to rule on the legality of Law No. 6572, which puts the entire justice system into question by giving prosecutors the authority to restrict defense attorneys’ access to case files in criminal investigations.

These decisions are only part of the picture.

Between 2010 and 2014, the Constitutional Court has engaged in several conflicts with the AKP government, often ruling against the government’s interests, whether it is annulling the maximum imprisonment term for crimes involving terrorism5 or overturning a law allowing the prosecution of military personnel in civilian courts.6 The Court was also responsible for releasing high-profile detainees who had been sentenced to extremely long prison terms for their alleged relations with the Ergenekon coup plot that purportedly exists to overthrow the Erdoğan government. In these cases, the Court argued that detainees have suffered from unlawful detention and violation of the right to a fair trial, and concluded that the prison terms themselves were unreasonable and unlawful.

On the other hand, since 2015 the Court has become increasingly deferential to the Erdoğan government and its core interests. The Court’s reversed behavior is most notably evidenced by the its refusal to lower the ten percent electoral threshold for parliamentary representation, which has traditionally served to sideline small minority parties in favor of the AKP domination.7 In another instance, when the AKP-majority parliament temporarily suspended immunity for members of the parliament in May 2016 as a way of prosecuting the opposition party members for their alleged ties with the Kurdish movement, the Court rejected the petition to strike the immunity bill.8 Overall, the Court has avoided direct conflict with the Erdoğan government by either rejecting individual applications on cases challenging the government’s core interests or ruling in favor of the government when it decided to place a case on the docket. In sum, the level of the Turkish Constitutional Court’s judicial independence, defined as the Court’s

Wendy Zeldin, “Turkey: Constitutional Court Rules on Reasonable Period of Imprisonment for Certain Crimes,” Library of Congress, November 4, 2013, accessed May 1, 2016, http://www.loc.gov/law/foreign-news/article/turkey-constitutionalcourt-rules-on-reasonable-period-of-imprisonment-for-certain-crimes/.

6 “Turkish High Court Overturned Civil Prosecution of Military Personnel,” Jurist, January 21, 2011, accessed April 29, 2016, http://www.jurist.org/thisday/2011/01/21/turkish-high-court-overturned-civil-prosecution-of-military-personnel.php.

7 Asli Kandemir, “Turkey’s Top Court Declines to Lower 10 Percent Electoral Threshold,” Reuters, January 6, 2015, accessed April 26, 2016, http://www.reuters.com/article/us-turkey-election-threshold-idUSKBN0KF1DJ20150106.

8 Mark Casper, “Turkish Constitutional Court Rejects Petition to Strike Down Immunity Bill,” Jurist, June 2016, accessed June 5, 2016, http://www.jurist.org/paperchase/2016/06/turkish-constitutional-court-rejects-petition-to-strike-downimmunity-bill.php.

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Gyu Hyung Choi ability and willingness to rule against the interests of the ruling government, remained high from 2010 to 2014 but decreased beginning in 2015. Unpacking the dynamics behind these varying degrees of judicial independence would help unpack the increasingly prominent roles courts play even in authoritarian regimes, and more generally, the determinants of judicial independence. Under which circumstances do courts in authoritarian regimes become important sites of political resistance? What are the sources that secure judicial independence in the inhospitable conditions of authoritarian states?

Theoretical Framework: Courts in Authoritarian Regimes Until recently, courts in authoritarian states were generally regarded as nothing more than pawns of their regimes that lack any meaningful influence in political life.9 However, the surge of new research on the judiciary in authoritarian regimes in the past two decades have challenged this longstanding presumption, documenting the important and complex roles courts play in authoritarian regimes.10 Indeed, the above discussion of the varying degrees of judicial independence in Turkey is one of many examples in which the courts, especially the apex courts, can and do play important roles in authoritarian politics, sometimes as a site of political resistance against the ruling government (e.g. the CCT from 2010 to 2014) and others as an institution submissive to authoritarian rule (e.g. the CCT since 2015). Hence, the vastly different behaviors displayed by the Constitutional Court of Turkey beg the question: what can explain the changing levels of judicial independence of the CCT, a court functioning in an authoritarian regime? To answer this question, I

begin by looking at the general framework used to study the unique nature of courts in authoritarian states.

Moustafa and Ginsburg provide what is arguably the most useful framework for understanding the complex roles of courts in authoritarian regimes.11 According to Moustafa and Ginsburg, five basic functions of courts can be articulated in authoritarian regimes: (1) establishing social control and sidelining political opponents,12 (2) legitimizing authoritarian regimes,13 (3) disciplining administrative agents within state institutions,14 (4) facilitating trade and investment,15 and (5) delegating controversial policy measures to judicial institutions.16 In short, authoritarian regimes use courts to advance their interests under the pretext of law.

Ironically, however, it is the need of these regime-supporting functions of courts that transforms courts into an important site of political resistance, precisely because the success of these regimesupporting functions of courts in authoritarian regimes depends on real judicial autonomy. For example, a government’s promise to keep its hands off private property is not credible unless neutral judicial institutions have real powers to hold the government accountable for breaking its promise.17 Likewise, the mere existence of courts would not help an authoritarian regime to claim legitimacy for its rule unless courts are truly perceived to be independent from government control.18 As such, once authoritarian states empower courts for the sake of using them for regime-supporting functions, courts often become a “double-edged sword” that open new avenues for activists to challenge the regime.19 This study places contemporary Turkey in the

Tamir Moustafa, “Law and Courts in Authoritarian Regimes,” Annual Review of Law and Social Science 10 (2014): 282, accessed February 10, 2016, doi: 10.1146/annurev-lawsocsci-110413-030532.

10 See Robert Barros, Constitutionalism and Dictatorship: Pinochet, the Junta, and the 1980 Constitution (Cambridge: Cambridge University Press, 2002); Elisabeth Hilbink, Judges beyond Politics in Democracy and Dictatorship: Lessons from Chile (New York: Cambridge University Press, 2007); Moustafa, “Law versus the State,” 883-930; Tamir Moustafa, “Law and Resistance in Authoritarian States: The Judicialization of Politics in Egypt,” in Rule by Law: The Politics of Courts in Authoritarian Regimes, ed. Tom Ginsburg and Tamir Moustafa. (Cambridge: Cambridge University Press, 2008); Mark Osiel, “Dialogue with Dictators: Judicial Resistance in Argentina and Brazil,” Law & Social Inquiry 20, no. 2 (1995): 481560, accessed March 8, 2016, doi: 10.1111/j.1747-4469.1995.tb01069.x; C. Neal Tate and Stacia L. Haynie, “Authoritarianism and the Functions of Courts: A Time Series Analysis of the Philippine Supreme court, 1961-1987,” Law & Society Review 27, no. 4 (1993): 707-740.

11 Tamir Moustafa and Tom Ginsburg, Rule by Law: The Politics of Courts in Authoritarian Regimes, ed. Tom Ginsburg and Tamir Moustafa. (Cambridge: Cambridge University Press, 2008) 12 Tamir Moustafa and Tom Ginsburg, “Introduction: The Functions of Courts in Authoritarian Regimes,” in Rule by Law: The Politics of Courts in Authoritarian Regimes, ed. Tom Ginsburg and Tamir Moustafa. (Cambridge: Cambridge University Press, 2008), 4-5; Shoaib Ghias, “Miscarriage of Chief Justice: Judicial Power and the Legal Complex in Pakistan under Musharraf,” Law & Social Inquiry 35 no. 4 (2010): 988, accessed February 26, 2016, doi: 10.1111/j.17474469.2010.01211.x.

13 Moustafa and Ginsburg, “Introduction,” 7.

14 Ibid.

15 Moustafa and Ginsburg, “Introduction,” 8-9; 16 Moustafa and Ginsburg, “Introduction,” 10.

17 Moustafa, “Law versus the State,” 892.

18 Moustafa and Ginsburg, “Introduction,” 13.

19 Moustafa and Ginsburg, “Introduction,” 11.

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Judges and their Allies above theoretical framework, specifically looking at the extent to which the Constitutional Court defied expectations about the first and foremost function of courts in authoritarian regimes—i.e. establishing social control and sidelining political opponents. The puzzle lies in that the CCT refused to aid the AKP regime in consolidating power by establishing social control and sidelining political opponents from 2010 to 2014, but generally shied away from helping opposition parties since 2015. While this puzzle is something Moustafa and Ginsburg acknowledge in the potential use of courts as a “double-edged sword,” the existing framework does not fully explain exactly how and why the CCT exhibited different levels of judicial independence in such short timespan. Hence, a reappraisal of the sources and conditions of judicial independence in Turkey is in order.

The Ideational Model: Judges as Advocates of Kemalism According to the ideational model, judges’ willingness (or lack thereof) to assert their authority against political actors is best explained by judges’ own professional role conceptions—that is, judges’ attitudes and ideas about the judicial role in a democratic system.20 While the exact nature of judges’ professional role conceptions and ideologies can vary significantly across time and space, judges can generally be identified as either deferential judges or activist judges. Deferential judges believe that their professional role is not to engage in conflicts with the executive and legislative branches but rather to defer to political actors in cases involving public law and to adjudicate only on private law matters.21 Activist judges perceive that their role is to question the decisions of political actors and engage in constitutional adjudication in favor of individual rights.22 The existing literature on the Turkish judiciary has exclusively, albeit implicitly, relied on the

ideational model in explaining everything about the Constitutional Court. This is particularly true in regards to portraying judges as advocates of Kemalism, the founding ideology of Turkey that includes the principles of secularism and national unity.23 Scholars studying the CCT have argued that judges share the motive to protect the regime and preserve the status quo by deferring to political actors.24 In other words, judges of the CCT share a deferential professional role conception and ideology.

According to these scholars, the Court has regularly considered whether the predefined regime under the principles of Kemalism was under threat, and responded by making decisions to ensure the sustenance of the regime. For example, Belge demonstrates that the CCT has banned dozens of minor political parties to preserve the ideological and political hegemony of the Kemalist elites.25 In a few cases when the Court was active, it had been so because the core interest of the regime was not at stake.26 Cakmak and Dinc similarly argue that the Court has served to advance the benefits of the state, even by ignoring democratic standards on some occasions.27 However, I argue that the ideational model does not explain why the levels of judicial independence have differed in recent years. It does seem logical at first to expect that sitting judges of the CCT between 2010 and 2016 should have continued the past tradition of judicial deference, based on the composition of the Court heavily influenced by the AKP. Until 2010, the composition of judges of the Court has been in favor of minority parties, with the majority of sitting judges appointed by Presidents Ozal, Demirel, or Sezer, who were not members of the AKP. In September 2010, however, the AKP successfully pushed a constitutional referendum, which increased the number of judges of the CCT from 11 to 17, of which the president would appoint

Javier Couso and Lisa Hilbink, “From Quietism to Incipient Activism: The Institutional and Ideological roots of Rights Adjudication in Chile,” in Courts in Latin America, ed. Gretchen Helmke and Julio Rios-Figueroa. (Cambridge: Cambridge University Press, 2011); Lisa Hilbink, “The Origins of Positive Judicial Independence,” World Politics 64, no.4 (2012): 587621.

21 Couso and Hilbink, “From Quietism to Incipient Activism,” 100.

22 Ibid.

23 Hootan Shambayati, “Courts in Semi-Democratic/Authoritarian Regimes: The Judicialization of Turkish (and Iranian) Politics,” in Rule by Law: The Politics of Courts in Authoritarian Regimes, ed. Tom Ginsburg and Tamir Moustafa.

(Cambridge: Cambridge University Press, 2008), 296.

24 See Ceren Belge, “Friends of the Court: The Republican Alliance and Selective Activism of the Constitutional Court of Turkey,” Law and Society Review 40, no. 3 (2006): 653-692.; Cenap Cakmak and Cengiz Dinc, “Constitutional Court: Its Limits to Shape Turkish Politics,” Insight Turkey 12, no. 4 (2010): 69-92; Ergun Ozbudun, “Party Prohibition Cases: Different Approaches by the Turkish Constitutional Court and the European Court of Human Rights,” Democratization 17, no. 1 (2010): 125-142, accessed April 15, 2016, doi: 10.1080/13510340903453807; Shambayati, “Courts in SemiDemocratic/Authoritarian Regimes.”

25 Belge, “Friends of the Court.”

26 Ibid.

27 Cakmak and Dinc, “Constitutional Court: Its Limits to Shape Turkish Politics” 20

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Gyu Hyung Choi 14 judges and the GNAT would appoint three judges. democratic and authoritarian regimes.

As a result, President Gül, a member of the AKP, was While I rely on the legal complex model to able to appoint six additional judges to the Court in explain judicial independence of the CCT, I take a 2011, significantly altering the balance of the bench step further and examine how legal professionals in favor of the AKP. Ever since then, the number of cooperated with opposition parties and civil society AKP appointments, either by the president or the organizations to counter the increasing authoritarian Parliament, has continuously increased (see Table 1). tendencies of the AKP government. Indeed, when As such, if the existing explanation about the legal professionals mobilize for polit CCT’s shared ideology to protect the regime is cal liberalism, they establish or join social correct, judges of the CCT should have displayed a networks to not only strengthen the social movement low level of judicial independence over the years for political liberalism but also protect judges from since 2011. However, the Court has done the quite regime backlash.29 Following Moustafa, I collectively opposite, as it has remained active from 2010 to 2014, refer legal professionals, opposition parties, and civil frequently ruling against the AKP government’s society organizations as “judicial support networks,” interests. Of course, it may be that the newly which actively use courts as an avenue for appointed judges since 2011 were exceptions to the contestation against the government by initiating Kemalist (or more accurately, deferential) ideology litigation, and bolster judicial independence by and perceived their role as activists who should curb defending judicial institutions if they come under excessive state power. Yet if these judges have indeed attack.30 held activist ideology, and chose to behave solely Given the important role judicial support based on their activist ideology without restraint from networks play in utilizing the Court and protecting external factors, the sudden reversal in the course of the judges, the degree of judicial independence the CCT’s behavior in 2015 without a significant depends on the depth and breadth of judicial support change in the overall composition of the Court needs networks and the strength of legal mobilization of to be explained. I offer an alternative, and more these networks. For example, Epp demonstrates that a fulfilling, explanation to the puzzling behavior of the necessary condition for a “rights revolution” is the Court. ability of judicial support structures to initiate The Legal Complex Model: Agents of Political efficient and repeated litigation campaigns for rights demands.31 Though Epp’s study is concerned with Resistance The legal complex model suggests that a key “rights revolutions” in democratic regimes, it can also variable that determines the role of courts in be applied to understanding “judicial independence” moderating state power is “the system of relations in authoritarian regimes. Just as rights revolutions among judicial institutions, legal occupations and rely on the ability of judicial support structures to legal academics.”28 The legal complex is centered on engage in rights litigation, judicial independence lawyers and judges, but may extend to all legally- relies on the capacity of judicial support networks to trained professionals practicing as private lawyers, mobilize and use courts as a site of political judges, civil servants, legal academics, and the bar resistance, protecting judges from regime backlash. associations. Together, these legal professionals can Because of the interdependent nature of judicial work to bolster judicial independence in both independence and support network mobilization, it Table 1: Composition of Judges of the Constitutional Court of Turkey (Source: http://www.constitutionalcourt.gov.tr) Year Number of sitting judges appointed by: Total number of AKP Ozal, Demirel, or Gül Erdoğan GNAT appointments Sezer 2010 7 4 0 0 4 2011 7 10 0 0 10 2012 6 11 0 0 11 2013 6 11 0 0 11 2014 6 10 0 1 11 2015 4 10 1 2 13 2016 3 10 1 3 14 Halliday, Karpik, and Feeley, “The Legal Complex,” 6.

Onur Bakiner, “Judges Discover Politics: Sources of Judges’ Off-Bench Mobilization in Turkey,” Journal of Law and Courts 4, no. 1 (2016): 137.

30 Moustafa, “Law versus the State,” 886.

31 Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective, Chicago: University of Chicago Press, 1998.

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Judges and their Allies can be expected that the more active the legal mobilization of support networks, the higher the judicial independence.

Turkey: The Target of Government Attack Matters As the AKP regime consolidated the government’s control over all aspects of the Turkish political and social system, the Constitutional Court remained as one of the last institutions for the government to conquer. Beginning with the constitutional referendum of 2010 that changed the size of the CCT, the government strived to decrease the independence of the judiciary through a series of political and institutional attacks on the Court. One notable change was a complete restructuring of the Supreme Board of Judges and Prosecutors (Hâkimler ve Savcılar Yüksek Kurulu or “HSYK”), which approves the nomination of new judges and state prosecutors as well as oversees their promotion, dismissal, and investigation. The government increased the number of HSYK members from seven to 22, four of whom, including the president of the Board, were to be directly appointed by the president.

The amendment also opened the possibility that the Ministry of Justice, controlled by the president, could freely investigate the members of the HSYK. In addition, the size of the Constitutional Court was expanded from eleven judges to 17 judges, allowing AKP President Gül to pack the court.

Perhaps unsurprisingly, the constitutional amendments spurred a wide opposition from the Court, opposition parties and the legal community.

The AKP claimed that the amendments were attempts to bring Turkey closer to European Union standards, but opponents of the AKP and the judiciary criticized the amendments for indirectly securing more power for the AKP over state institutions. Justice Gerceker, for example, publicly stated in an interview that these provisions threatened the separation of powers and judicial independence.32 More importantly, the antiAKP union of judges known as the Judges and Prosecutors Association (YARSAV) engaged in an off-bench mobilization to appeal to the legal community to support the Constitutional Court against the AKP government and the rival pro-AKP association of judges and prosecutors known as

Demokrat Yargı.33 In turn, bar associations and legal academics began to initiate litigation campaigns to demand political reforms, filing an influx of court cases dealing with basic legal and political freedoms. The Court ruled on these cases against the government’s interests primarily between 2013 and 2014, most notably in the area of individual rights. For example, opposition parties, lawyers, and civil society organizations played an important role in helping the Court to address unreasonably lengthy detentions and imprisonment terms. When a lower court sentenced the main opposition Republican People’s Party (Cumhuriyet Halk Partisi or “CHP”) deputy Mustafa Balbay for charges related to the Ergenekon coup plot (the alleged clandestine movement of political dissidents to overthrow the government), diverse actors of the judicial support network including The Shift is Ours Platform, Union of Turkish Bar Associations, and lawmakers from the CHP not only appealed the Constitutional Court to invalidate the imprisonment but also protested in the streets against the government.34 In late 2013, the Court eventually overruled a lower court’s decision on the grounds of unlawful detention, violation of the right to a fair trial, and violation of Balbay’s constitutional immunity right as an elected deputy.35 The judicial support networks further pushed their agenda to repeal GNAT’s new stringent imprisonment laws targeted against political opponents. Lawyers from the Turkish Bar Association challenged Law No. 6352, which allows courts to sentence life imprisonment terms for crimes involving terrorism or organized crime. Lawyers argued that the law was designed to target Kurdish dissidents and political opponents, violating Articles 10 and 13 of the Constitution on equality before law and restriction of fundamental rights.36 The Court agreed, stating that life imprisonment was unreasonable for the crimes concerned. Using the Court’s decision as basis, bar associations moved on to challenge the life imprisonment of former general Ilker Basbug, who was also charged with his role in the Ergenekon coup plot. Metin Feyzioglu, the head of the Turkish Bar Association, had appeared on CNN Turk to criticize the government for depriving

Wendy Zeldin, “Turkey: Controversial Amendments to Constitution Proposed by Ruling Party,” Library of Congress, March 29, 2010, accessed May 1, 2016, http://www.loc.gov/law/foreign-news/article/turkey-controversial-amendments-toconstitution-proposed-by-ruling-party/.

33 Bakiner, “Judges Discover Politics,” 147.

34 Semih Idiz, “Turkey’s Highest Court Boosts Credibility by Watershed Ruling,” Al-Monitor, December 3, 2013, accessed May 10, 2016, http://www.al-monitor.com/pulse/originals/2013/12/turkey-sledgehammer-verdict-journalist-akp-chpergenekon.html.

35 “Turkey’s Constitutional Court Rules Long Imprisonment of CHP MP as ‘Violation of Rights,” Hurriyet Daily News, December 4, 2013, accessed April 29, 2016, http://www.hurriyetdailynews.com/turkeys-constitutional-court-rules-longimprisonment-of-chp-mp-as-violation-of-rights.aspx?pageID=238&nID=59020&NewsCatID=339.

36 Zeldin, “Turkey: Constitutional Court Rules…”

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Gyu Hyung Choi Basbug, who was also charged with his role in the Ergenekon coup plot. Metin Feyzioglu, the head of the Turkish Bar Association, had appeared on CNN Turk to criticize the government for depriving Basbug of fair trial and freedom and called on the Court to reverse the sentence.37 The Court finally ordered a release of Basbug in March 2014, to which the government reluctantly complied.

Meanwhile in February 2014, the government again attempted to attack the Court by passing an omnibus law (Law No. 2802 as part of the Law on Judges and Prosecutors) that would have given the Minister of Justice the authority to have direct control over all three chambers of the HSYK and freely initiate an investigation against the members.38 Perceiving the threatened independence of the judiciary, judicial support networks quickly and vigorously mobilized to protect the Court. The Nationalist Movement Party (Milliyetçi Hareket Partisi or “MHP”), as well as bar associations and professors joined the CHP’s movement to repeal the law. For example, Professor Mehmet Altan, a prominent academic and journalist of Istanbul University publicly criticized the law as an additional movement of the AKP to turn Turkey into a security state.39 Furthermore, various bar associations published on their websites a statement criticizing the omnibus law, publicizing the potential dangers the law impose to the Turkish democracy.40 On March 2, 2014, the CHP filed suit at the Court for the annulment of this omnibus law. The Court, supported by the networks, quickly responded to the suit and decided in April that the law is unconstitutional for it attempts to undermine the independence of the judiciary with respect to the executive.41 In sum, the government’s attacks on the judiciary ignited judicial support network activism because opposition parties, legal professionals and civil society organizations perceived the Constitutional Court as one of the few avenues available to

challenge the AKP regime. Backed by the support networks, the Court did not fear to rule against the government’s interests, even on sensitive issues dealing with the Ergenekon coup plot or the Law on Judges and Prosecutors. In essence, the result was the emergence of a synergy between the Court and its support networks where the Court provides the support networks with a meaningful site of political resistance and the support networks defend the Court from regime backlash.

Roughly beginning in 2015, however, this synergy started to diminish as the government shifted the target of its attacks from the Court to the support network itself. Understanding that opposition parties, legal professionals and civil society organizations could empower the Court to rule against its interest, the AKP government began to incapacitate the support networks. The AKP majority of the Parliament passed a security law in March 2015 to broaden police powers, allowing the police to use firearms against demonstrators.42 In June 2015, when demonstrators began shouting slogans criticizing Erdoğan during an annual LGBT pride parade, the police fired water cannon and rubber pellets at the protestors. The rallying has been held over the past 13 years without police intervention, but the new security law enabled the police to restrict protest activities through the use of force.43 Thereafter, the government has frequently used police force to crush protests against the government.

The government also focused on constraining the activities of legal professionals by attacking the bar associations. For instance, in January 2015 a prosecutor successfully convicted the Tunceli Bar Association head Ugur Yesiltepe to six years in jail on terrorism charges, making Yesiltepe the first chair of a Turkish bar association to be sentenced to prison since the 1980 military coup.44 Then in May, Tahir Elci, the president of Diyarbakir Bar Association, was also detained for allegedly spreading PKK

“Turkey’s Former Chief of Staff Ilker Basbug Released from Jail After Top Court Ruling,” Hurriyet Daily News, March 7, 2014, accessed April 29, 2016, http://www.hurriyetdailynews.com/turkeys-former-chief-of-staff-ilker-basbug-released-fromjail-after-top-court-ruling.aspx?pageID=238&nID=63321&NewsCatID=338 38 Zeldin, “Turkey: New Amendments to Laws…”

39 Faheim Tastekin, “Is Turkey Reverting to a ‘Muhaberat’ State?” Al-Monitor, April 17, 2014, accessed April 29, 2016, http://www.al-monitor.com/pulse/originals/2014/04/erdogan-mit-interference-authoritarian.html.

40 “Civic Freedom Monitor: Turkey,” International Center for Not-for-Profit Law, December 17, 2015, accessed April 29, 2016, http://www.icnl.org/research/monitor/turkey.html.

41 Tulin Daloglu, “Turkey’s Top Court Upholds Separation of Powers,” Al-Monitor, April 11, 2014, accessed April 29, 2016, http://www.al-monitor.com/pulse/originals/2014/04/turkey-courts-power-separation-justice-akp-erdogan.html.

42 Johnny Hogg and Gulsen Solaker, “Turkey Passes Tough New Security Law, Raising Fears of Election Crackdowns,” Reuters, March 27, 2015, accessed April 28, 2016, http://www.reuters.com/article/us-turkey-parliament-securityidUSKBN0MN0WD20150327.

43 “Water Canon Used to Disperse Istanbul Gay Pride Parade,” Al Jazeera, June 28, 2015, accessed April 28, 2016, http://www.aljazeera.com/news/2015/06/water-cannon-disperse-istanbul-gay-pride-parade-150628150318097.html.

44 Ismail Saymaz, “Bar Head Sentenced to Six Years for Participation in Rallies,” Hurriyet Daily News, January 20, 2015, accessed April 29, 2016, http://www.hurriyetdailynews.com/bar-head-sentenced-to-six-years-for-participation-inrallies.aspx?pageID=238&nID=77175&NewsCatID=341.

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Judges and their Allies propaganda until he was released in October and assassinated in November.45 When Elci was sentenced, a group of 50 lawyers, including human rights lawyers Pervin Buldan and Levent Tuzel, appeared at the courthouse to protest, but suffered from police harassment.46 Moreover, the government tightened its grip on the legal academy. In late 2015, new laws on higher education were adopted to give the Council of Higher Education (Yükseköğretim Kurulu or “YÖK”) the authority to close private universities that become a focal point for activities against the state’s “indivisible integrity.”47 The law was indeed effective in undermining the ability of legal academics to speak its voice against the government. For instance, Professor Laciner from Mart University was removed from his post as the rector for criticizing the government. Also, when a group of scholars calling themselves “Academics for Peace” signed a letter calling on the government to end its violence in Kurdish provinces, the YÖK threatened university rectors to commence disciplinary investigations or that university affiliated with the Academics for Peace would be shut down.48 Numerous suspensions, dismissals and imprisonments of professors have followed thereafter.

The most serious blow to support networks came in the area of freedom of speech and press. It is a story now well known that the government banned the AKP’s largest opposition newspaper Today’s Zaman in March 2016. Even after the Constitutional Court nullified the provisions of the so-called “Internet Law” that require content providers to deliver data to the Telecommunication Transmission Directorate, the government has a de facto ban on popular social media including YouTube and Twitter.49 A Report on Twitter censorship from Statistica shows that out of 1,003 requests from government agencies to remove content from Twitter in 2015, a whopping 72% of them came from Turkey,

while only 7% (the second most) came from Russia.50 Turkish judge Isli Karakas, who was recently elected as the Vice President of the European Court of Human Rights, correctly points out that Turkey’s most serious problem is no longer illegal detention or torture practices, but the threat to the freedom of press without which all aspects of political liberalism would diminish.51 Until 2014, judicial support networks were able to help the Court in addressing illegal detention or torture practices, but they seem powerless in protecting the media, which had publicized government wrongdoings in the past.

In this context, incapacitated judicial support networks became unable to protect judicial independence of the Court. While illustrating the passivity of networks is more difficult than showing activeness, precisely because passivity means “no activity” (hence no evidence of activity) on the part of judicial support networks, a few examples suggest that government attacks on various aspects of the support networks have undermined judicial independence. For example, when the Court rejected an appeal against the Law on Judges and Prosecutors allowing courts and prosecutors to deny access to case files to defense attorneys, only the CHP actively pursued the appeal while major bar associations like the Ankara Bar or the Turkish Bar remained silent.

Similarly, even when a People’s Democratic Party (Halkların Demokratik Partisi or “HDP”) member of the National Assembly filed a petition to the Court against the newly imposed curfews in the eastern and southeastern parts of the country, bar associations and civil society organizations were noticeably absent from the fight. The Court rejected the HDP’s appeal, simply stating that the applicant, resident of the capital city of Ankara, was not affected by the curfew in other parts of the country.52 Most notably, the Court has avoided impinging on the core interest of the AKP regime—that is, the continued dominance of the AKP—by refusing to

“Turkey: Human Rights Lawyer Murdered,” Human Rights Watch, November 28, 2015, accessed May 3, 2016, https://www.hrw.org/news/2015/11/28/turkey-human-rights-lawyer-murdered.

46 “Turkish Bar Association Head Released in Istanbul,” Anadolu Agency, October 20, 2015, accessed April 28, 2016, http://aa.com.tr/en/turkey/turkish-bar-association-head-released-in-istanbul/448407.

47 “New YÖK Regulation to Pave Way for Arbitrary Closure of Universities,” Today’s Zaman, November 27, 2015, accessed May 3, 2016, http://www.todayszaman.com/anasayfa_new-YOK-regulation-to-pave-way-for-arbitrary-closure-ofuniversities_404913.html.

48 Mehmet Ugur, “Academic Freedom Under Threat in Turkey,” Times Higher Education, April 14, 2016, accessed May 3, 2016, https://www.timeshighereducation.com/features/academic-freedom-under-threat-in-turkey.

49 Zeldin, “Turkey: Constitutional Court Rules…”

50 “Turkey Dominates Global Twitter Censorship,” Statistica, August 14, 2015, accessed May 7, 2016. https://www.statista.com/chart/3727/share-of-all-twitter-content-removal-requests/.

51 Ipek Yezdani, “Turkey’s Key Problem Now Freedom of Press Instead of Torture, Judge Says,” Hurriyet Daily News, September 28, 2015, accessed May 3, 2016, http://www.hurriyetdailynews.com/turkeys-key-problem-now-freedom-of-pressinstead-of-torture-judge-says.aspx?pageID=238&nid=89052&NewsCatID=339.

52 “Turkey’s Top Court Refuses HDP MP’s Appeal Against Curfews in East, Southeast,” Hurriyet Daily News, December 23, 2015, accessed May 3, 2016, http://www.hurriyetdailynews.com/turkeys-top-court-refuses-hdp-mps-appeal-against-curfewsin-east-southeast.aspx?pageID=238&nID=92912&NewsCatID=341.

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Gyu Hyung Choi lower the ten percent threshold for political parties to enter the parliament with 14 out of 17 judges voting against to lower the threshold. Minority parties, whose votes hover around the threshold, have consistently called for the lowering of the threshold.

If a party fails to reach the threshold, their votes are redistributed proportionally meaning that the AKP would almost certainly remain as the majority (if not the supermajority) party in parliament.53 The decision came less than a week after the Chief Justice said in an interview that members of the Court were under “intense pressure.”54 Again, while opposition parties including the CHP and the HDP initiated the litigation to lower the threshold, given the increasing inhospitable environment for protests or public criticism of the government, there was a lack of visible mobilization on the part of the general legal community and the academy. Without such mobilization, judges under “intense pressure” succumbed to the government, allowing the AKP to remain as the dominant party.

With the legal professionals and civil society organizations debilitated by police oppression and media censorship, the AKP fired a final blow to the judicial support networks by targeting their most fervent actors—the opposition parties. In May 2016, the AKP-majority parliament passed two amendments designed to suspend immunity for members of the parliament as a way of removing opposition party members from the assembly.55 As previously discussed, the Court had ordered in 2014 a release of CHP deputy Mustafa Balbay who was charged with his alleged role in the Ergenekon coup plot, stating that Balbay’s constitutional immunity right as an elected deputy had been violated.56 But in June 2016, when the political climate was clear that the Court was without backup from much of the judicial support networks, the Court rejected the CHP’s petition to strike the immunity amendments passed in May 2016.57 Shortly after the amendments passed, the state prosecutors have pursued an investigation of 138 deputies in the 550seat GNAT.58 Not surprisingly, 101 of those were against opposition parties—the HDP and the CHP,

suggesting that the amendments were undeniably crafted for the purpose of reducing the number of political opponents from the parliament.59 The Court’s decision to reject the petition can be construed as a strategy. The core interest of the AKP is to maintain its dominance, and the Court understood that the amendments were a convenient tool for the AKP to further its core interest. Aware that the ability of its allies—namely legal professionals and civil society organizations—to engage in an extensive, public campaign against the government had weakened, the Court decided to avoid challenging the government’s core interest for the sake of its own survival in the political arena.

Ironically, it was this strategic decision to allow the AKP to attack the opposition parties that eventually enabled the AKP to renew its attacks on the entire judiciary. Shortly after the amendments to strip deputies of the parliament of their legislative immunity passed, the HSYK issued a decree that reshuffled the positions of more than 3,700 sitting judges and prosecutors.60 The decree was primarily, if not entirely, used to punish judges who have had ruled against the AKP and to reward prosecutors who have joined the AKP’s push for consolidation of powers. For example, the head of the Sixth Ankara Heavy Penal Court who had ruled that the Gendermarie Intelligence Organization (a government intelligence agency) was responsible for the assassination of Kuridsh dissident and political activist Musa Anter, was demoted from his position to a local magistracy.61 On the other hand, Prosecutor Mehmet Demir, who had subpoenaed the main opposition CHP leader Kemal Kılıçdaroğlu to testify in a case involving the AKP was promoted as the deputy chief prosecutor in Istanbul.62 Beyond the reshuffling of positions of judges and prosecutors, the decree went as far as exiling some of the most respected judges. For example, Judge Murat Aydın, who made several rulings against the AKP during his tenure and had once appealed to the Constitutional Court for the annulment of controversial Article 299 of the Turkish Penal Code—the article that made the act of making statements insulting the president

Kandemir, “Turkey’s Top Court Declines…”

Ibid.

55 Casper, “Turkish Constitutional Court Rejects Petition…”

56 “Turkey’s Constitutional Court Rules Long Imprisonment…”, Hurriyet Daily News.

57 Casper, “Turkish Constitutional Court Rejects Petition…”

58 Gulsen Solaker and Humeyra Pamuk, “Turkish Parliament Strips MPs of Immunity in Blow to Kurdish Opposition,” Reuters, May 20, 2016, accessed May 27, 2016. http://www.reuters.com/article/us-turkey-politics-immunityidUSKCN0YB0VC. 59 Ibid.

60 Oya Armutcu, “Turkish Gov’t Shakes Up Judiciary with Decree Shifting More than 3,700 Judges and Prosecutors,” Hurriyet Daily News, June 7, 2016, accessed June 8, 2016, http://www.hurriyetdailynews.com/turkish-govt-shakes-upjudiciary-with-decree-shifting-more-than-3700-judges-prosecutors.aspx?pageID=238&nID=100164&NewsCatID=338.

61 Ibid.

62 Ibid.

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Judges and their Allies crime—was exiled from the bench to the administrative Trabzon Office of Judges.63 This politics-driven reorganization of the judiciary signaled that Erdoğan, having successfully undermined the mobilization and power of the judicial support networks, was ready to refocus his attack on the judiciary—the only bulwark left for Erdoğan to conquer.

In summation, the government has incapacitated the judicial support networks through a series of attacks, including the new security law allowing police force to crush protests, harassment and imprisonment of bar association leaders and lawyers, suppression of the legal academy and the media, and removal of opposition parties from power. By actively monitoring, intimidating, and suppressing various aspects of judicial support networks that are critical determinants of judicial independence, the AKP-government has effectively re-launched its attack against the judiciary, ultimately bludgeoning the Constitutional Court into submission.

Conclusion This paper analyzes the complex roles courts and their judicial support networks play in authoritarian regimes. Over the past few years, the Turkish Constitutional Court has displayed vastly different levels of judicial independence—that is, the Court’s ability and willingness to rule against the interests of the ruling government. A look at the composition of the Court reveals that the ideational model fails to explain the variance in the Court’s judicial independence, because (1) most of the appointments of the Court were made by the AKP regime and (2) the same Court displayed different behaviors in the period between 2010 and 2016. An external factor other than judges’ ideology is influencing the Court’s behavior. I argue that the active (or passive) legal mobilization on the part of judicial support networks—comprised of opposition parties, legal professionals and civil society organizations—is what drives the rise (or decline) of judicial independence in Turkey.

When the AKP regime attempted to consolidate power and perceived the Court as a threat, the government strived to decrease the independence of the judiciary through a series of political and institutional attacks on the Court. Ironically, these attacks on the Court galvanized judicial support networks to mobilize in order to protect judicial independence. With active opposition parties, legal professionals, and civil society organizations backing

63 64

the Court, judges were able to rule against the government’s interests between 2010 and 2014.

However, the ability of judicial support networks in defending judicial independence began to decrease in 2015 when the AKP government shifted the target of its attacks from the Court to the judicial support networks. In order to sever the synergy between the Court and the judicial support networks, Erdoğan launched a crusade of media censorship, excessive use of police force, restriction of freedom of speech and association, and illegal detention practices. As a result, judicial support networks became unable to actively mobilize to protect judicial independence, leading to a decrease in judicial independence.

The interplay between the Court and judicial support networks leads to several implications. Given the potential use of courts as a site of contestation against the government, authoritarian regimes must find ways to capitalize on the regime-supporting functions of courts while minimizing the chance that courts will serve to advance political opposition.64 However, when the government attacks the Court, which is an important political arena for opposition parties, legal professionals, and civil society organizations to resist authoritarian rule, judicial support networks thrive to protect their apex court because an attack on the court makes it harder for them to achieve political liberalism in authoritarian regimes.

In contrast, when judicial support networks themselves are attacked, the Court suffers from a gradual loss of judicial independence because it finds itself without a crucial determinant of judicial power—that is, mobilization of judicial support networks. Hence, it seems though a lesson for an authoritarian government seeking to bring courts into submission is to incapacitate judicial support networks rather than directly attacking the Court.

Only this way can an authoritarian government keep the benefits of courts while reducing the costs courts could bring to the regime’s interests. Conversely, a lesson for a court in an authoritarian context (assuming that the court’s goal is to move its regime toward political liberalism) is to fight the government most fiercely when it attempts to attack the court’s allies. Precisely for this reason, the most serious conflicts between courts and authoritarian regimes would be concerning the laws targeted against judicial support networks, as is the case in Turkey since 2015.

Ibid.

Moustafa and Ginsburg, “Introduction,” 18.

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Financial Regulation Interview with Former SEC Chairman Arthur Levitt ’52 Henry Lu Williams College Arthur Levitt was the twenty-fifth and longestserving Chairman of the Securities and Exchange Commission (1993-2001). Levitt previously served as Chairman of the New York City Economic Development Corporation (1989-1993) and Chairman of the American Stock Exchange (19781989). After his tenure at the SEC, Levitt became an advisor for Carlyle, Goldman Sachs, and more recently, for a variety of FinTech firms such as BitPay and SoFi. In this interview, Levitt describes financial regulation for the present and the future, covering topics ranging from Glass-Steagall and Wells Fargo, to Bitcoin and the fiduciary standard for robo-advisors and brokers. The interview took place in the fall of 2016, prior to the U.S. Presidential Election.

A persistent challenge for regulators is balancing between overregulation and under-regulation. In an interview last year, you said: “financial institutions in the state of New York are probably overregulated.” In what ways are they overregulated?

In New York State in particular, the financial services industry has a multiplicity of regulators.

They have the SEC, the New York State attorney general, the district attorney of New York, and the New York State financial services committee, so that’s four regulatory bodies just to begin with. That’s too much. There really should be a division of responsibility with respect to financial services.

Unfortunately, what’s happened is that the states have taken on financial regulation as a great way to accumulate political power and raise money for the state coffers. I don’t think the multiplicity of regulation in New York State necessarily works to investors’ advantages. It’s been very costly for financial services, it’s been time-consuming, and all too often it’s used as leverage to raise money rather than to protect investors.

Conversely, you’ve also said that agencies like the SEC are underfunded and have become too politicized to be effective. In what ways has this led to aspects of Wall Street becoming underregulated?

The oversight committees of Congress have held a leash on major financial service regulators because corporations and public companies that really don’t want regulation have been major contributors to politicians, so that’s kind of muzzled the ability of regulators to do a complete job. The SEC for one is under-resourced, unable to hire and retain some of their most talented people, because Congress has constantly held back on their budgets.

Despite regulation, banks that were “too-big-tofail” before 2008 have become even bigger. In this election, you have Bernie Sanders and the Republican platform calling for a revival of GlassSteagall, and you have Hillary Clinton promising to break up financial firms that are “too big.” In your view, is it advisable to break up the biggest banks?

I think a very careful look has to be extended to the banks and the banking community to determine whether any of them are undertaking too much and unable to control themselves. We recently had Wells Fargo accused of egregious behavior with respect to opening non-existent accounts. That tells me there is significant bad behavior and inadequate management.

The chairman and CEO of the bank resigned as a result of that scandal. I don’t think that goes far enough. I think the very inner workings of that bank should be re-examined to see whether they’re able to handle the variety of services that they’ve put forward as their calling card.

But I couldn’t generalize. I think other banks do a pretty good job of managing a variety of services. I think JP Morgan does a particularly good job, and it varies from bank to bank. If financial regulators find that banks are not able to manage themselves and are running a risk with public investors, I think those banks must seriously consider disgorging themselves of certain services. That doesn’t mean in my judgement reinstating Glass-Stegall. I think every rule is a function of the times in which it was enacted.

That particular rule came at a time in history where things were going on and behavior was really outrageous. I don’t think that times today are the same, and while I think there are rules and regulations that might be reconsidered, they’re different than Glass-Steagall. They’re more in the accounting area.

They’re more concerning rating agencies. Not GlassSteagall.

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Financial Regulation Speaking of a change in the times, the “fintech revolution” is bringing both tremendous opportunity and regulatory challenges. In August, you wrote an article expressing strong optimism in Bitcoin. If you had a name a risk of Bitcoin, however, what worries you most?

Overregulation probably worries me more than anything. I don’t know whether Bitcoin represents the future compared to some other form of cryptocurrency. But I think that’s here to stay. Bitcoin might fail, there might be bad behavior, but I think our existing regulatory institutions are well-able to deal with the issues raised by Bitcoin. I’m not concerned about under-regulation of Bitcoin. The various states that Bitcoin is active in have state agencies that have taken a pretty careful look at Bitcoin. Even though there have been problems, I think the state of oversight is better today than ever before. In particular, New York State has developed a BitLicense, which could be a model for other states.

If Bitcoin gets widespread adoption, would it undermine traditional banks?

I don’t think so. Really shrewd banks are taking a careful look at Bitcoin, and indeed embracing different kinds of Bitcoin projects themselves. I think the smartest banks recognize that cryptocurrency is something that’s going to be here, and they’re going to embrace it in one form or another.

Bitcoin is classified in the United States as a commodity rather than a currency. Do you agree with this classification or do you think it should change in the future?

It should change, and I think it will change. I don’t know exactly how that change would come about, but I am persuaded that more and more people are looking on Bitcoin as a legitimate currency.

Turning to investments: there is a trend of emerging low-expense, exchange traded funds (ETFs), such as the Vanguard funds created by John Bogle. Could ETFs get widespread adoption?

It’s happening, more and more of it is happening today…more and more and more. The second chapter of my book [Take on the Street (2002)] is “Fire Your Broker.” I don’t believe in brokers; I think that investors should buy into low-expense ratio funds, and I am a great believer in the Bogle dictum, the Bogle mandate.

If everybody moved to ETFs, would that reduce market efficiency? Would it deprive small, emerging, or evolving firms of capital?

I don’t think it would. Smaller, non-public companies are not bound by the same rules that public companies are. If you’re talking about venture firms, they really aren’t accountable in the same way that publically traded firms are. I don’t think that they’d be affected by that at all.

A related trend is of so-called “robo-advisors,” or internet algorithms, replacing traditional investment advisors. Traditional advisors are held to a fiduciary standard, so they must put their clients’ interests first. Could robo-advisors, could algorithms, be held to a fiduciary standard?

I think they are held to a fiduciary standard. I could be mistaken, but I think that they have to be authorized by the NASD. I’m involved with one robo-advisor called Motif, and I think that roboadvisors should be held to a fiduciary standard.

Dipping into a major current controversy, you have expressed strong support for applying a fiduciary standard to brokers. Could you explain the situation and your rationale?

All registered investment advisors are held to a fiduciary standard. Stock brokers, on the theory that they’re not giving advice, that they’re just executing orders, haven’t been held to a fiduciary standard. But the Department of Labor recently put through a proposal that held brokers and advisors to the same standard, the theory being that a broker rarely just accepts an order. If I’m the broker, you’re my customer, and you call me and you order a thousand shares of IBM, usually as a broker I’d say: “Why?” Once I say “why,” that drifts into the area of advice.

So I think both brokers and advisors should be bound by a fiduciary standard.

Are you concerned about the argument that such a high standard would make brokers less willing to offer service to smaller clients and lead to fewer or less diverse products?

I’ve been a broker. I’ve managed ten thousand brokers. I know a broker’s mentality—there’ll be just as many brokers, better brokers, with a fiduciary standard than without.

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Two Systems of Human Rights A Literature Review on Human Rights and Guantanamo Bay Daniel Carey Siena College

Debate over two main systems of human rights have only intensified in the years following 9/11 as various terror attacks and other similar atrocities against civilian populations are committed by alQaeda, and more recently the Islamic State, throughout the world. These discussions are rooted in arguments related to constructivism, which argues that elements of international relations are socially constructed based upon values or norms of a group or society, rather than inherent in nature. Based on this theory, two primary schools of thought have emerged out of debates over global jurisdiction of human rights—universalism and cultural relativism.

Proponents of a universalistic ideal of human rights affirm that all individuals, regardless of their historical background or cultural identities, are afforded a basic set of human rights that transcend or side-step an individual’s social context. Cultural relativists, by contrast, dispute this universal, allencompassing aspect of human rights and instead content that an individual’s rights are rooted in their cultural context and their specific role in a society.1 Common to the ideal of universalism in relation to human rights is the argument that there exists a standard set of rights and privileges that can apply to any individual, regardless of their particular circumstances in regards to social role or culture.

Pollis and Schwab assert that “…universalism presupposes the individual as the basic social unit, whose inalienable rights are civil and political, including the right to private property.”2 They also note that universalism has developed primarily through a lens of Western thought and philosophy.

Thus, there is more of an emphasis on civil or political rights, rather than basic economic and social rights for individuals. “For many Western liberal states such issues as starvation remain primarily a humanitarian matter… In other words, economic and social rights remain a second order of priority.”3 This can lead to human rights violations, even within universalistic systems of government when certain

types of rights are valued more than others.

Cultural relativists argue that the application of human rights must be firmly grounded within a specific culture’s or society’s traditional norms and values. Under this point of view, it is up to the individual government or state to decide what will be considered as a standard set of principles for the establishment of that country’s rights and freedoms for its people. States that adhere to this school of thought, however, can violate human rights because as Kao notes: “those who were intent on preserving a strong sense of state sovereignty would have strong incentives to avoid…the range of goods and liberties that would be counted as genuine human rights.”4 In essence, countries who wished to maintain control over their practices and definitions of what constitute human rights can simply avoid adhering to any generally agreed upon set of human rights and freedoms. When asked to justify or explain their decisions on a particular violations of human rights, countries practicing cultural relativism can point to the fact that their own norms and traditions do not, and should not have to, follow a human rights system developed and based in Western traditions.

Daum accurately portrays an example of this difference between cultures, noting that “it is often said that the loss a mother experiences when she loses her child must be the same in every culture. Yet in many societies the value placed on life is different from that of Western society.”5 In this particular instance, the value in question, such as determining the worth of life, can be interpreted differently depending upon a culture’s traditions or norms that has been practiced and developed throughout history.

These differences can be explained largely in part due to the opposing mindsets of universalism and cultural relativism; with an emphasis on the individual in universalistic societies and that of the collective in culturally relativistic societies. Daum succulently illustrates this point by stating “for a man to die in the Arab world or in Africa is different, not only because of religion, but also because he is part of a much larger community that will survive.”6 Within this context, Daum effectively illustrates the differences

“Cultural Relativism v. Universalism,” Global Policy Forum, last accessed 15 April 2016, https://www.globalpolicy.org/home/163-general/29441.html.

2 Adamantia Pollis and Peter Schwab, Human Rights: New Perspectives, New Realities (Boulder: Lynne Rienner Publishers, Inc., 2000), 10.

3 Pollis and Schwab, Human Rights, 14.

4 Grace Y. Kao, Grounding Human Rights in a Pluralist World (Washington: Georgetown University Press, 2011), 57.

5 Werner Daum, “Universalism and the West: An Agenda for Understanding,” Harvard International Review 23 (2001): 21.

6 Ibid.

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Two Systems of Human Rights in cultural values and norms that are present in Western versus non-Western societies or cultures, and how these values shape the interactions of these different societies.

This difference in value on an individual’s worth and existence can lead to controversial actions taken by repressive governments, as Pollis and Schwab note while discussing cultural relativism: “Under the rubric of ‘Asian values’ Singapore, China, and Malaysia…have argued that they have a distinctive historical and cultural legacy and, as a consequence, their values diverge from Westerns notions of democracy and human rights.”7 Critics have discussed the negative implications of governments adopting such viewpoints. Symonides argues that “cultural diversity and plurality of cultures have to be seen a positive factors leading to intercultural dialogue. In the modern world, cultures are not isolated.”8 This critique points at the interconnected nature of the globalized world today, and seeks to reconcile these differences through establishing cultural values and norms as intrinsically important and tied to international discussions on human rights, rather than a point of contention between nations.

With highly and well-publicized reports of human rights violations being committed by or with aid of the United States, there has been increasing pushback against the U.S. historical and modern-day claim of being both a theoretical promoter and actual practitioner of a human rights system based in universalism. Greenberg notes this hypocritical American behavior, stating “This sense that America is both a beacon of freedom and the bearer of human rights to the world is…difficult to reconcile with the…connections we maintain with…regimes which… rank among the worst violators of human rights in the contemporary world.”9 One need only browse through an American history book to see examples of this behavior throughout the world, in particular the U.S. support of dictators and despotic regimes like General Pinochet in Chile, the backing of Saddam Hussein in the Iran-Iraq war, and the illegal sale of arms and weapons in the Iran-Contra affair to support the Contras in Nicaragua. More recently, however, there have been increasing concerns over U.S. violations of human rights as a byproduct of America’s War on Terror. Abu Ghraib

is considered one example in which US military committed human rights atrocities in Iraq by sexual and physically abusing detainees within the prison.10 Bederman explains this type of behavior by drawing a distinction between the “professed position of the State… [and] the empirical evidence of its actual conduct.”11 This practice, Bederman argues, can be applied specifically in the instance of torture.

“States, for example, overwhelmingly voted in the General Assembly for resolutions condemning Statesponsored torture, yet…some of these same States actually engage in the torture of their own citizens.”12 In this example, U.S. leaders are both able to sign such non-binding resolutions claiming support for such laws, while in practice doing those same actions that they pledged to not commit. In the specific instance of the United States, Ignatieff explains the paradox of US policies towards human rights through the use of exceptionalism. The U.S. performs three main acts of “(1) exempting itself from the provisions of human rights treaties, (2) excusing its allies’ abuses while highlighting… those of its enemies, and (3) insulating its domestic legal institutions…from contamination by international human rights norms.”13 Ignatieff thus argues that the United States is able to protect its status as a proponent for a system of universalistic human rights, while at the same time positioning itself in such a way that allows it to act as more of a culturally relative system that can bypass traditionally agreed upon standards when it is beneficial, or in the best interest of the state.

Issues of legality and jurisprudence of the U.S. to correctly and justly prosecute suspected or captured terrorists and the means by which they may do so, are brought to attention in two major Supreme Court cases related to GITMO detainees— Hamdan v.

Rumsfeld (2006) and Boumediene v. Bush (2008).

These cases address the nature of international law as it relates to the legality or illegality of actions taken by the United States regarding GTMO detainees, as well as defining American norms and values in regards to these human rights violations. Boumediene v. Bush involved detainees at Guantanamo Bay who were not allowed the writ of habeas corpus (seeking relief from unlawful detainment) or, in other words, an effective means to challenge their current position at Guantanamo. Neuman explains that the case is “a

7

Pollis and Schwab, Human Rights, 12.

Janusz Symonides, Human Rights: New Dimensions and Challenges (Aldershot: Dartmouth Publishing Company Limited, 1998), 25.

9 Edward Greenberg, in Human Rights and American Foreign Policy (Gambier: Public Affairs Conference Center, 1982), 40.

10 Richard J. Payne, Global Issues (Illinois State University: Pearson Education, Inc., 2013), 62.

11 David J. Bederman, International Law Framework, 2nd Edition (New York: Foundation Press, 2006), 45.

12 Ibid.

13 Michael Ignatieff, in Human Rights and the Negotiation of American Power (Philadelphia: University of Pennsylvania 14 Gerald L. Neuman, “The Habeas Corpus Suspension Clause After Boumediene v. Bush,” Columbia Law Review 110 (2010): 539.

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Daniel Carey seminal decision about the constitutional law of habeas corpus, and its ramifications within U.S. borders greatly exceed its effects overseas.”14 The Supreme Court would go onto state that the suspension Clause not only regulates temporary suspension of the privilege of the writ, but permanently requires a right to habeas corpus, with a certain minimum content, when the writ has not been suspended.”15 The Court further held that the Suspension Clause protects Aliens as well as Citizens—Neuman elaborates by stating that “Boumediene confirmed and held that the Suspension Clause constitutionally guarantees habeas corpus to noncitizens, including noncitizens who are suspected of engaging in armed conflict against the United States.”16 In essence then, Boumediene established that the detainees at Guantanamo Bay had the right of Habeas Corpus, regardless of whether or not they were U.S. citizens.

In Hamdan v. Rumsfeld (2006), similar issues of the rights of detainees at Guantanamo were at stake.

As Phillips explains in regards to the courts set up for the detainees’ trials, “most notably, accused terrorists would not, of right, be permitted to see all the

evidence against them. Furthermore, hearsay evidence, unsworn testimony and evidence obtained through coercion were all permitted and, in extreme cases and for 'national security' reasons, the defendant might not even be allowed to be present at his own trial.”!7 The case went through the process of appellate courts before being heard by the Supreme Court on June 29, 2006.18 The majority opinion delivered by Justice Stevens stated that the GTMO tribunal “arguably is without any basis in law and operates free from many of the procedural rules prescribed by Congress for courts-martial.”19 The Court also held that these tribunals violated international law with regards to the Common Article Three of the 1949 Geneva Conventions which were put in place to “set a minimum standard that prisoners of war and individuals who found themselves in Hamdan's position be tried by ‘a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.’”20 powers of the executive branch to form these military tribunals, and sought to grant GTMO prisoners a fair and equal trial in accord with both American and international law.

15

Ibid, 541.

Ibid, 545.

17 Dennis Philips, “Hamdan v. Rumsfeld: The Bush Administration and the Rule of Law,” Australasian Journal of American Studies 25 (2006): 41.

18 Ibid, 41-42.

19 Ibid, 42.

20 Ibid, 43.

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In Defense of the Electoral College Cooper Bramble Williams College

While rarely the recipient of much praise, in recent weeks, the Electoral College has become a popular target for those discontented by the outcome of the presidential election. Former Attorney General Eric Holder, and past Democrat nominee for president Michael Dukakis are just two of the many voices to join the chorus deriding the “anachronistic Electoral College system.”1 This heated rhetoric has brought our attention to an interesting issue, but it has also surround that issue with fallacies and misconceptions. Like many Americans, I have always been a bit perplexed by incongruous nature of the Electoral College in a nation takes pride in its democratic tradition. In this article, I will attempt to shed light on the College by explaining first how it came to be and why it benefits our democracy.

Creation Four years after the original 13 states won their independence from Britain, delegates from 12 states (Delaware chose not to participate) descended on Philadelphia to revise the Articles of Confederation.

The task laid before them was daunting. The Articles of Confederation, which had been hastily ratified by the states in 1781, were proving to be an ineffective framework for national government. With only the shadow of a central authority that could neither levy taxes nor enforce its own laws,2 individual states squabbled over every issue from interstate commerce to foreign policy.3 Additionally, because the states were not in a position to put up a united front, they feared that “if we do not come to some agreement among ourselves, some foreign sword will probably do the work for us”.4 These concerns would have dogged delegates as they filed into Philadelphia.

However, what started out as a convention of revision soon became one of creation. Persuaded by Madison and Hamilton, delegates decided to abandon the Articles and craft an entirely new government instead.5 However, this new project was even more formidable that the one it replaced. As a result, it was

not long before tempers began to flare. While delegates from large states clamored for their fair share of representation in the new government, small state delegates voiced fears that their interests would be overlooked in a national government dominated by large, populous states. At times, the prospect of success looked so bleak that one Maryland delegate noted that “we were on the verge of dissolution, scarce held together by the strength of a hair.”6 Yet, despite these conflicting interests, the delegates understood the necessity of their work and agreed to compromise. The Great Compromise, as it came to be known, resolved a number of disputes, but most importantly, it settled the question of how states would be represented in Congress. While the delegates created a House of Representatives where seats were awarded proportional to population, small states were granted the concession of a powerful, onestate-one-vote Senate.

After coming to an accord on representation in the Legislative Branch, the delegates turned their attention to the Executive. Early on, Madison proposed a direct vote as a means of electing the president. This was voted down 1-9.7 As before, small states feared a direct vote would result in their unique interests being blotted out by the interests of larger, populous states. As a result, the delegates took the same tack as they had with the legislature. Just as a compromise between large and small states dictated how representation would be awarded in that branch, the executive would be elected through a similar system that “insure[ed] that no area or group shall obtain too much power.”8 The story of the Constitutional Convention is one of extraordinary compromise made under difficult circumstances. At many points during the convention, small states, fearing alienation, threatened to walk out. This retreat would have doomed the convention and destroyed delegates’ hopes for union.9 However, the small states did not withdraw and instead a compromise was reached and nation was born. It would have been difficult for this compromise to go forward without the establishment of the Electoral College.

1

http://www.politico.com/story/2016/11/michael-dukakis-electoral-college-231298 The Blackwell encyclopedia of the American Revolution, 293.

3 Ibid, 449.

4 Robert Hardaway, The Electoral College and the Constitution, 79.

5 Ibid, 77.

6 Ibid, 79.

7 Ibid, 156.

8 James Buckley, Freedom at Risk: Reflections on Politics, Liberty, and the State, 311.

9 Robert Hardaway, 79.

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Cooper Bramble Virtues of the College As the product of a compromise that made American democracy possible, the Electoral College has an important place in our nation’s political history. Without the concessions made by the individual states at the convention, our collective union would have remained a distant dream.

However, while the Electoral College helped opened the doors to American democracy in 1787, it has an important role in keeping them open today. While by no means an exhaustive list, I see the following four virtues as the strongest points that can be made for the Electoral College.

First, our singular means of electing a president makes it possible, in most cases, to name a clear victor on election night. As popular vote advocates Neal Peirce and Lawrence Longley admitted in their book The People’s President, “many states are unable to report an official account [of results] until several weeks after Election Day.”10 Michigan and New Hampshire evidenced this situation in the last election. However, while definitive results on a popular vote could take days if not weeks to compile, the Electoral College allows us to work around this issue. Although popular vote results remained close and uncertain for days after the 2016 election, thanks to his Electoral College landslide, Trump was easily declared the winner on election night. Alternatively, in a popular vote situation, close elections could result in lengthy recounts which would produce unrest and could potentially lead to a constitutional crisis if the election was not settled before the scheduled inauguration.

Second, by incentivizing candidates to campaign all across the country, the Electoral College encourages candidates to make appeals to unique regional interests. As political scientist Michael Uhlmann noted, the Electoral College creates a system where “no candidate can win without a broad national coalition, assembled state by state yet compelled to transcend narrow geographic, economic, and social interests.”11 For instance, while Al Gore won the popular vote, his success was confined the west coast, the North East and a few Mid-Western population centers, thus losing the Electoral College.

While increasing globalization can lead us to believe that regional interests have become indistinguishable from national interests, recent events suggest otherwise. Trump was propelled to victory in part by

rust-belt voters disillusioned by the principles of freetrade promoted by the big city finance-minded elites.

The Electoral College takes regional interests into account and encourages candidates to do the same.

Third, the Electoral College encourages candidates to campaign in a diverse, ever changing group of swing states. A direct vote, on the other hand, would draw most the candidate’s attention to large urban populations. While proponents of pure democracy would not be bothered by this development, it would have a profound impact on presidential politics. Because big states like California and Texas typically do not see dramatic declines in their populations, in a direct vote election, presidential candidates would focus on appealing to these same regional interests election after election.

As a result, less populous regions would be written off as inconsequential and their voters would be ignored. Fortunately, however, the Electoral College system, incentivises candidates to campaign in an evolving collection of both large and small swing states. While Pennsylvania, Michigan and Wisconsin had long been considered a part of the ‘blue wall,’ last election, due to changing circumstances, they were pulled into the swing state category.12 Additionally, despite their small populations, swing states Iowa and New Hampshire received a fair amount of attention. Finally, while today we consider California and Texas solidly blue and red respectively, Republican George H.W. Bush won California ‘8813 and Democrat Jimmy Carter won Texas in ‘76. 14 By focusing elections on swing states, just as the framers planned, the Electoral College ensures that certain regions of the country will not come to dominate presidential politics.

Lastly, the Electoral College helps preserve the idea of balanced federalism. In Federalist 46, Madison tells us, “the federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes.”15 Because the states are themselves separate entities participating in one union, when it comes time to elect a president for that union, each state ought to have its own say.

Defending this principle, Kennedy wrote “I should hate to see the abolition of state lines… The Presidential election is determined on the basis of 48 separate units. I think the election should be decided in each one of them.”16 This gets at the heart of the

Neal Peirce and Lawrence Longley, The People’s President: The Electoral College in American History and the Direct Vote Alternative, 158.

11 Uhlmann, Michael M. "The old (electoral) college cheer: why we have it; why we need it." National Review, 8 Nov. 2004, p. 28. U.S. History in Context.

12 http://www.forbes.com/sites/chrisladd/2016/11/21/how-the-blue-wall-cracked/#41d47f6c7c26 13 http://www.270towin.com/states/California 14 http://www.270towin.com/states/Texas 15 James Madison, Federalist 46, 239 16 Neal Peirce and Lawrence Longley, 165.

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In Defense of the Electoral College idea behind the Electoral College and, for that matter, much of our federalist government. We do not live in a pure democracy, and thank goodness for that. The Senate, Supreme Court, federal bureaucracy and, of course, the Electoral College are inherently undemocratic and yet, these are the institutions that make American democracy possible. While the House of Representatives serves as a voice for the popular will, the Senate and other branches of government check this power. These undemocratic elements of our government protect minorities from

the heavy hand of majority rule. We have every reason to be thankful for this feature of our government.

Despite its many critics, the Electoral College has stood the test of time. The College’s creation made American democracy acceptable to a diverse and divided group of states. Since then, the Electoral College has kept our democracy viable. While the College may seem incongruous with democracy, we could not have the virtues of the latter without the vices of the former.

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Interview with Malcolm Stewart U.S. Deputy Solicitor General Henry Lu Williams College Malcolm Stewart is a U.S. Deputy Solicitor General, the highest rank for a career attorney. He received his A.B. from Princeton and law degree from Yale Law School. Stewart clerked for Harry Blackmun in the 1989 Supreme Court term and has served since 1993 in the Solicitor General’s office, which represents the U.S. federal government in front of the Supreme Court. In this interview, Stewart offers insights into his past cases and the broader work of the Solicitor General’s office.

Could you describe your career path—how you first became interested in law, what legal areas appealed to you, and how you eventually found your way to the Office of the Solicitor General?

My father had been a lawyer, at least for a part of his life, and so it was kind of in my mind as something I might be interested in. I worked from one thing to another in junior high and high school thinking about what I might want to do. I decided during college that I wanted to go to law school. I took some time off between college and law school, and it was really during that period that I found out about the Solicitor General’s office, which is where I work now. I had it in my mind that this was something that I’d like to do; I thought I’d like the public service aspect of working for the government, and I thought I’d like working on appellate law specifically.

Could you share a particularly memorable case you’ve argued before the Supreme Court?

Citizens United was certainly one, although I argued it the first time but not the second. I think some of the cases that I look back on and have been proudest of were very technical cases, where it wasn’t something you would read about in the newspapers, but it took a lot of study and I felt proud that I had gotten a command of it.

One that I argued a couple years ago was a case called Actavis, which was at the intersection of patent and antitrust law—very technical, but I had done a fair amount of work both in patent and antitrust, so it was especially interesting to deal with a case at the intersection of those two fields.

How would you describe the significance and impact of Actavis for the public?

There are people in other parts of government who have a more precise sense of that. It dealt with settlements and patent litigation, mostly over pharmaceutical patents. We were representing the Federal Trade Commission, which had brought the enforcement action. Certainly their perspective was that this was a case that had the potential to lower drug prices to consumers by a significant degree. I really haven’t done the kind of empirical study to evaluate that, but part of the reason that we have a lot of interaction with other parts of the government is that we can bring their expertise to bear, and so we were representing their perspective. They’re very diligent; they had certainly investigated this thoroughly.

In terms of coordinating with different offices in government, have you had an experience in which different departments had disagreements over how you should approach a case, and how did you go about addressing that?

Yes, we’ve definitely had cases in which multiple agencies would be involved in our deliberations and sometimes they take different positions. We generally get a lot of memos, written products from agencies making recommendations. We’ll often have meetings, especially in cases where there’s not uniformity within the government. It’s always the Solicitor General who’s making the decision at the end, but I’m making a recommendation of my own and he’s taking that into account. We attach weight to a variety of factors, some of it is: “Is there a particular agency with primary responsibility in this area, and if so, what does it think?” We’re also reaching our judgement about how strong the legal arguments are on different sides of the case.

For patent law, which you mentioned you specialize in, a lot cases may relate to the trade treaties that the United States has with other countries. How often does international law come into play?

Not very often. We do enter into international agreements that deal with intellectual property protections, but I haven’t had a case in which the actual issue has been the interpretation of an international trade agreement like that. There have been cases in which our view of what domestic patent

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Interview with Malcolm Stewart law requires is influenced at least to a degree by what sort of international commitments we’ve made.

For technical cases like those, how often do you seek outside legal expertise, perhaps in some area for which your office did not have that experience?

We’re often getting guidance from other parts of the government. If we’re thinking of coming into a case where we’re not a party already, generally we’ll have the lawyers for the two sides come in and make presentations to us, and they’ll each give their pitch.

Then we’ll have our own internal deliberation, where the private lawyers will not be present. So we do hear from kind of people outside the government in that fashion. The bulk of our deliberations are within the government, but it’s obviously a big executive branch, and so you have lots of different kinds of expertise within the government itself. If you have a question about patent law, we’ve got the Patent and Trademark Office, which is a federal agency. In Actavis, the case I was describing previously, we had the people at the Federal Trade Commission who had really studied this issue and had expertise in the likely practical effects of allowing certain types of agreements to be negotiated. Our office is small, and we’re constantly in search of outside expertise, but it’s usually expertise from within other parts of the government, rather than from outside the government altogether.

Some federal regulatory agencies have said they’re short on manpower, that they need more lawyers, more people. Is that something that you feel is the case for your office?

We do have a fairly small staff, but I think we are at an advantage in the sense that usually when a case makes it to the Supreme Court, if we need expertise from other parts of the government, those agencies would make it a priority, because there aren’t that many Supreme Court cases. So we don’t have to worry about them saying, “we’re too busy to let you know what we think about the Supreme Court case,” whereas I can understand how when they’re worried about covering the whole docket in the lower courts, they might be strapped and not have enough resources to go around. The Supreme Court cases tend to be treated as priorities.

For almost a year, the Supreme Court has only had eight justices. How has this impacted the work of your office? Did it affect the kinds of cases that the court took up?

In terms of whether they’re denying review in some cases because they have only eight, I can only speculate. I think that’s something that only they know. I don’t think we, in our office, do things any differently because it’s an eight-member court.

There’s always an understanding that it’s possible that the case could be divided four-four and you won’t get an opinion, but there’s nothing we can do about that. I think we’re pretty much doing our jobs the same way that we have been.

Certainly the eight-member Supreme Court has increased the importance of lower court decisions.

Has that impacted your office’s strategy?

I don’t think so. I mean, maybe if it were an eight-member court for a long period of time, we’d figure out long term strategies, but it’s only been for a short period and I just don’t know what we could do differently even if we wanted to engage in some kind of “gaming” or some kind of deep-thinking strategy.

We sort of make the arguments that we make, and we hope to persuade as many people as possible. The fact that there are only eight may change the outcome in some cases, but it doesn’t really affect the way that we approach our job.

Finally, if you were to give a word of advice to college students for discovering if they’re interested in law and in what areas, how would you suggest they go about doing it?

This won’t tell you too much about the full range of legal opportunities, but for people who are specifically interested in the Supreme Court, the internet has really made available a lot of resources that weren’t available to me when I was in law school. For instance, there’s a website where you can get all the briefs filed in Supreme Court cases. If you go to the court’s website, you can listen to the taperecording of an oral argument just two or three days after the argument actually occurs. There’s a new generation of “Supreme Court junkies,” and maybe they’re more law students than undergraduates, but undergraduates can do it too. So if you wanted to pick a Supreme Court case that seemed interesting and read the briefs and ask yourself, “what questions would I ask if I were at oral argument,” then you can actually listen to the tape on the Supreme Court’s website and keep track of it almost in real-time. It’s made the court much less mysterious than it was in prior days when you didn’t have such quick access to such a great range of information.

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The Umpire on the Bench A Critical Analysis of Chief Justice John G. Robert’s Jurisprudence Neil Banerji Knox College Abstract The purpose of this paper is to analyze the jurisprudence of Chief Justice John G. Roberts, who has been an enigma in American politics and in legal academia while he has led the Court through a great deal of partisan backlash. For example, Roberts’ decisions in the summer of 2015 may be puzzling to liberals and conservatives alike; while the Chief Justice saved the Affordable Care Act for the second time in King v. Burwell, he authored a dissenting opinion against the Court’s legalization of same-sex marriage in Obergefell v. Hodges. Roberts’ judicial opinions may be confusing to a partisan spectator, but I argue that he has actively applied his consistent jurisprudence on the bench. When Roberts’ opinions and his leadership of the Court are viewed through a non-partisan lens, his decisions as Chief Justice are not surprising since his jurisprudence urges judicial deference to Congress and a limited role for the judiciary. Although partisan spectators on both sides argue that Roberts’ opinions are informed by his political beliefs, he actually looks to his understanding of the Constitution to justify his reasoning in cases. Despite popular perception, there is a uniform jurisprudence that underlies Roberts’ opinions and his leadership of the Court.

Introduction In response to questions regarding his historical legacy at the Supreme Court, Chief Justice John Roberts simply replied, “I would like people to think that I was a good judge.”1 More tellingly, the Chief Justice likened presiding over the Court to calling “balls and strikes” as a baseball umpire.2 Through this rather apt metaphor, Roberts put forth the notion that his goal as Chief Justice was to interpret and apply the law rather than to create it. More importantly, Roberts’ deference to Congress is marked by his willingness to reinterpret congressional statutes which are textually ambiguous in legislative intent to help them work more efficiently as laws and to uphold

their constitutionality. Although he maintains a judicial philosophy based the Court’s deference to Congress, Roberts’ overarching jurisprudence remains somewhat of a mystery. Even though he was overwhelmingly supported by conservatives in his nomination to the Court, Roberts has become an enigma in American politics in his overarching goal to maintain the Court as a non-partisan institution.

Roberts’ aim in this respect has largely been affected by his jurisprudence, which indicates that he is unwilling to assume the leadership position of a single ideological movement. In both ACA cases, National Federation of Independent Business v.

Sebelius and King v. Burwell, Roberts was touted as a traitor to the conservative cause even as he was lambasted by liberals for his opinions in other cases (ex. Citizens United v. FEC and Obergefell v.

Hodges), which he deemed were in strict accordance with an originalist interpretation of the Constitution’s text. Along with his judicial philosophy on the importance of judicial restraint, Roberts’ nonideological decisions on the bench, his thoughts on different forms of constitutional interpretation, and his managerial concerns for promoting the Court as a non-partisan institution illustrate the critical elements of his jurisprudence.

Roberts’ Judicial Philosophy on Judicial Restraint Since he leads the Court by deferring to the will of Congress, Roberts holds a judicial philosophy that is based on judicial restraint. Roberts’ belief in the limited role of the judiciary ensures that the Court does not take on purely political questions; also, they are responsible for his non-ideological decisions on the bench since he voted on whether the issues discussed in those cases had the legislative backing and proper standing to appear before the Court. In the Court’s unanimous decision in Rumsfeld v. Forum for Academic and Institutional Rights Inc., Roberts wrote the opinion that upheld the constitutionality of the Solomon Amendment, which Congress enacted to deny federal funding to law schools that prevented military recruitment on their campuses (since they

Adam J, White. 2015. “Judging Roberts.” The Weekly Standard. November 23rd. http://www.weeklystandard.com/judgingroberts/article/1063131 2 United States Senate Committee on the Judiciary (2003). "Confirmation Hearings on Federal Appointments". Government Printing Office. Retrieved February 15, 2015.

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The Umpire on the Bench opposed the government’s ban on homosexuality in military).3 In his concurring opinion for Rapanos v.

United States, Roberts expressed his dismay that the Court had failed to “read Congress’ limits on the reach of the Clean War Act.”4 In these two Court cases, Roberts’ opinions lend insight into his ultimate belief that the Court should interpret and defer to the will of Congress to properly apply the rule of law. In regard to judicial review of Congressional acts, Roberts observed “the deference that is due to legislative judgments” by the Court.5 At a Senate hearing, he also stated that the judiciary’s main task is to maintain the balance between overly involving itself in political affairs as an unelected institution and completely abdicating its responsibility to assess the constitutionality of congressional acts.6 Roberts places great importance on whether the issues discussed in cases meet the Article III case or controversy requirement since it keeps the judiciary from assuming too much power as an unelected institution in a democratic form of government.

Roberts’ Willingness to Save Congressional Statutes Roberts’ deference to Congress is best exemplified by his willingness to save congressional statutes that are subject to alternative interpretations by reinterpreting them to uphold the statute’s constitutionality. On the other hand, he stops short of allowing the Court to judge the constitutionality of acts of Congress if there is another means by which the case can be decided. In the second 2014 Bond v.

United States case, Roberts recited “the wellestablished principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.”7 When the congressional statute that enforced the treaty, the CWC (Chemical Weapons Convention), did not indicate as to whether it would infringe on state powers to deal with local crimes of chemical misuse, Roberts authored the majority opinion that reinterpreted the statute to state that such crimes would not fall under the statute’s jurisdiction.

The Court’s majority opinion was logical in that a statute enforcing the international provisions of a

treaty would not be as effective if its breadth were as sweeping as to apply to domestic chemical misuse in the United States. As Roberts noted, the “global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon.”8 If Roberts had not reinterpreted the statute in this manner, the Court would have struck it down (as Scalia noted in his concurring opinion) since Congress cannot infringe on state authority by federalizing local crimes.9 Rather than declare acts of Congress unconstitutional, Roberts reinterprets statutes that are textually ambiguous in legislative intent to uphold their constitutionality (as illustrated in the other two ACA cases).

Roberts’ Focus on Standing Requirements Roberts’ deference to Congress is also illustrated by his focus on the standing requirements that a case must meet so that the Court may strictly concern itself with legal matters. Furthermore, Roberts is generally unwilling to engage questions of a political nature unless the Court must absolutely review the constitutionality of Congressional acts. As evidenced by his 1993 journal article on Article III Limits on Statutory Standing in the Duke Law Journal, Roberts adheres to the strict Article III and prudential standing requirements that a case must meet in order to be properly decided by the Court.10 In DaimlerChrysler Corp v. Cuno, Roberts wrote for a unanimous Court in dismissing the Ohio taxpayer’s Commerce Clause claim against in-state tax credits for a corporation, because the issue at hand was a political grievance rather than an actual injury that could be settled by the law.11 The Court observed that the petitioners had the burden of establishing their standing since they had to meet the Article III case or controversy requirement for the Court to review their case. The petitioners’ argument that they had standing because they were taxpayers possessed no merit because they had a political grievance. Their claims of injury, causation, and redressability were entirely based on hypothetical scenarios of how the legislature would negatively respond to taxpayers due to the loss of revenue (from originally granting these credits).12

3

Rumsfeld v. Fair, 547 US 47 (2006), 1-21.

Rapanos v. United States, 126 S. Ct. 2208 (2006), 2.

5 Hearings before the Committee on the Judiciary, United States Senate, 108th Congress, 1st Session, U.S. Government Printing Office. Retrieved April 12, 2010.

6 Ibid.

7 Bond v. United States., 572 U.S. ___ (2014), Robert’s concurring opinion. 9.

8 Ibid, 20-21.

9 Bond v. United States., 572 U.S. ___ (2014), (Scalia’s concurring opinion) 1-17.

10 John G. Roberts. "Article III Limits on Statutory Standing". Duke Law Journal 42: 1219. 1993. doi:10.2307/1372783.

11 Daimler Chrysler Corp. v. Cuno 547 US 332 (2006) 12 Ibid.

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Neil Banerji In Massachusetts v. EPA, Roberts wrote a dissenting opinion that dismissed the states’ position against the EPA on the grounds of a lack of standing even though Roberts is viewed as a firm supporter of states’ rights.13 In Roberts’ view, there was not enough scientific evidence to support the alleged injury that Massachusetts claimed it suffered, and there was a lack of causation between the EPA’s refusal to enforce emission standards and the injuries that the petitioners endured. Since he observed that countries like India and China are also responsible for the majority of greenhouse gas emissions, Roberts could not establish the redressability of the petitioners’ injuries. The Chief Justice has demonstrated his strict adherence to following the Court’s standing requirements and his reluctance to involve the USSC in reviewing the constitutionality of acts of Congress.

The Impartiality of Roberts’ Jurisprudence Roberts’ jurisprudence prizes impartiality on the bench, and he looks to an originalist interpretation of the Constitution and a textualist interpretation of legislative statues. In Massachusetts vs. EPA, Roberts went directly against his conservative background since his views on judicial restraint took precedence over his political outlook on states’ rights when he ultimately ruled.14 Even while he was a judge on the United States Court of Appeals for the District of Columbia Circuit, Roberts ruled on whether the issues discussed in the case followed an originalist understanding of the Constitution, which foreshadowed his outlook on Court cases. In Hedgepeth v. Washington Metropolitan Area Transit Authority, Roberts upheld the constitutionality of the detention of a 12 year old girl for violating a zerotolerance, no eating policy since the policy did not violate the Fourth and Fifth Amendments, regardless of how unsound the law was.15 While the Chief Justice is considered a moderate in comparison to Justice Thomas, Justice Alito, and the former Justice Scalia, he still retains conservative views in regard to political matters such as states’ rights. In his Senate confirmation hearings, Roberts noted that the government often proposes and implements uniform federal laws to address widespread policy problems afflicting different states. Furthermore, Roberts stated that the “fact of the matter is [that] conditions are different in different states, and state laws can be

more relevant” to the diverse, local issues affecting these states.16 Also, Roberts has a conservative background as he worked in the Justice Department under the Reagan and Bush administrations with some brief stints in private practice.!7 Nevertheless, these personal opinions do not fundamentally affect Roberts’ actions on the bench since he approaches his judicial duties with an impartial jurisprudence that is based on judicial restraint and deference to the legislature. While partisans may argue that some of Roberts’ opinions are inherently activist since they are conservative in nature, Roberts’ opinions are primarily focused on assessing the constitutionality of acts of Congress, maintaining a limited role for the judicial branch, and primarily understanding the Constitution through the originalist and textualist forms of interpretation.

Even though Roberts’ Court may seem to maintain a conservative leaning to a partisan observer, Roberts’ political outlook does not determine his opinions; in fact, he usually rules on whether the issues discussed in the case follow an originalist understanding of the Constitution. In Citizens United v. FEC, Roberts wrote a concurring opinion with Justice Alito that supported the Court’s decision to strike down government bans on independent political expenditure by non-profit corporations due to violations of the First Amendment. Although congressional legislation had previously restricted campaign donations by corporations, Roberts did not demonstrate his usual respect for stare decisis since he believed that the previous legislation had violated the First Amendment.18 Even though it primarily champions liberal causes, the ACLU produced an amicus brief for the appellant and stated that it would oppose any constitutional amendment that would reverse the decision.19 Pamela Karlan, a professor at Stanford Law School and a former lawyer in the Obama Justice Department, stated “decision itself had little to do with money in politics, and reversing it would do little or nothing to remove money in politics.”20 Furthermore, she noted that “Citizens United has nothing to do with the huge amount of money, the dark money that is being spent by rich individuals to influence campaigns and public opinion. In our system, there’s basically nothing you can do to stop the Koch brothers from independent spending in

Massachusetts v. EPA, 549 US 467 (2007) (Robert’s dissenting opinion) Ibid.

15 Hedgepeth v. Washington Metropolitan Area Transit Authority, DC 03-7149 (United States District Court for the District of Columbia 2004).

16 "COMMITTEE ON THE JUDICIARY UNITED STATES SENATE" (PDF). Access.gpo.gov. Retrieved May 21, 2015.

17 Purdum, Todd S.; Jodi Wilgoren; Pam Belluck (July 21, 2005). "Court Nominee's Life Is Rooted in Faith and Respect for Law". The New York Times. Retrieved December 5, 2008.

18 Citizens United v. FEC. 558 US _ (2010). (Robert’s concurring opinion). 1-14.

19 https://www.aclu.org/other/aclu-and-citizens-united. Retrieved on December 9, 2016 20 Jeffrey Toobin. “THE SUPREME COURT AFTER SCALIA.” The New Yorker. Retrieved February 9, 2016.

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The Umpire on the Bench elections. That’s their right under the First Amendment.”21 Karlan notes that people “use ‘Citizens United’ as shorthand for all the problems of money in politics.”22 However, contrary to popular perception, the “notion that corporations have First Amendment rights, which is central to the decision, has had little to do with the role of money in political campaigns.”23 Finally, Roberts’ concurring opinion in Citizens United v. FEC did not legally support the use of black money for individual Republican candidates in elections as partisans suggest; however, it did preserve a corporation’s right to free speech through spending under the First Amendment.

Roberts also demonstrates his affinity for understanding the Constitution through an originalist form of constitutional interpretation in school integration cases. In Parents Involved in Community Schools v. Seattle School District No. 1, Roberts wrote the Court’s majority opinion in which he held that policies promoting racial diversity by using race as a factor in their analysis were themselves a form of discrimination in clear violation of the Constitution’s Equal Protection Clause.24 Furthermore, he cites Brown v. Board of Education to justify his approach, noting that it “was not the inequality of the facilities but the fact of legally separating children based on race on which the Court relied to find a constitutional violation in that case.”25 In other words, Roberts relied on the Court’s historic majority opinion in Brown v. Board of Education, a decision that was widely hailed as liberal, to establish that policies that separate students on the basis of race (even if they promote racial diversity) are violations of the Fourteenth Amendment. More tellingly, the Court’s majority opinion in Brown v. Board of Education also relied on an originalist interpretation of the Fourteenth Amendment.26 More importantly, Roberts’ opinions in both cases and others are not instances of judicial activism since Roberts directly turned to an originalist interpretation of the Constitution to justify his reasoning.

Roberts’ Non-Ideological Decisions on the Bench Roberts’ conservative political outlook does not cloud his judgment in delivering non-ideological decisions on certain cases before the bench since his judicial philosophy (a focus on standing and deference to the legislature) takes precedence over his political outlook when he ultimately rules. One of the cornerstones of Roberts’ jurisprudence is that a judge

must interpret and apply the law rather than push his own political ideology forward. He has followed this belief in practice as demonstrated by his rulings in the landmark healthcare cases before the Court in 2012 and 2015. In National Federation of Independent Business v. Sebelius, the Court, in a 5-4 vote, upheld the congressional power to implement most of the provisions of the Patient Protection and Affordable Care Act (ACA). Roberts wrote the majority opinion which upheld the constitutionality of the federal statute’s individual mandate that required individuals to buy health insurance or pay a penalty. While the Court held that the individual mandate did not fall under the Constitution’s Commerce Clause or Necessary and Proper Clause, it was still constitutional since the Court construed the penalty that the mandate imposed on those who did not buy the insurance as a tax. Even though Roberts stated that some of the provisions constituted an unnecessary and unprecedented expansion of federal power under the Commerce Clause, he nonetheless held that the statute was valid since Congress has the right to tax and spend as indicated in the Taxing and Spending clause.27 Despite the support of the Republican Party that nominated him and his own strongly conservative background, Roberts did not allow his political underpinnings to dictate how he ruled on this case and King v. Burwell. As indicated in both ACA cases, Roberts’ deference to Congress is marked by his willingness to save statutes (whether they are liberal or conservative in design) that are textually ambiguous by reinterpreting them in a manner that ensures their constitutionality.

In the second 2015 Supreme Court case concerned with the ACA, King v. Burwell, Roberts authored the majority opinion that upheld the constitutionality of the ACA. In King, he reinterpreted a portion of the statute again to ensure its feasibility despite extreme conservative opposition. The petitioners argued that Congress had exceeded its authority by regulating that the IRS could only provide premium tax credits to individuals who resided in states with state-established exchanges. The Court disagreed, and it reinterpreted the statute to state that the provisions enabling the outlay of premium tax credits must apply in every state to meet the nationwide issue and community rating requirements. To ensure that the disputed provision of the statute was “compatible with the rest of the law” when it was originally ambiguous in

21

Ibid.

Ibid.

23 Ibid.

24 Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (U.S. 2007) 5-6.

25 Ibid, 5-6.

26 Ibid, 5-6 27 National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012).

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Neil Banerji legislative intent, Roberts wrote that “those requirements only work when combined with the coverage requirement and tax credits. So it stands to reason that Congress meant for those provisions to apply in every State as well."28 Roberts’ belief in judicial restraint also informed his majority opinion since he wrote that the Court “must respect the role of the legislature, and take care not to undo what it has done.”29 In respect to his firm emphasis on a textualist interpretation of a congressional statute, he observed that a “fair reading of legislation demands a fair understanding of the legislative plan.”30 Even though conservatives were vehemently opposed to the ACA, Roberts’ impartial judicial philosophy on the limited role of the judiciary and its deference to the legislative branch took precedence over his political leanings, casting the deciding vote and reinterpreting the law to save it twice.

Roberts’ Thoughts on Different Forms of Constitutional Interpretation As indicated in his Senate confirmation hearings, Roberts does not adhere to a single form of constitutional interpretation; in fact, he does “not think beginning with an all-encompassing approach to constitutional interpretation is the best way to faithfully construe the document.”31 Although Roberts’ opinions generally demonstrate a strong interest in an originalist interpretation of the Constitution and textualist readings of legislative statues, Roberts does not discount the importance and validity of other interpretations.

Roberts even dismisses the use of an originalist interpretation of the Constitution when he feels that it does not properly apply to certain cases before the Court. In Graham v. Florida, Roberts wrote a concurring opinion that rejected a narrow interpretation of the Eighth Amendment, which is based in an originalist form of constitutional interpretation.32 In direct contrast to the conservative orientation of his predecessor, Chief Justice Rehnquist, and his former colleague, Associate Justice Scalia, Roberts concurred with the Court in that imposing a life sentence without the possibility of parole on a juvenile offender for a non-homicide

crime violated the Eighth Amendment’s ban on cruel and unusual punishment.33 Roberts even held that such a sentence in the case before the Court violated the Eighth Amendment “because it contravened the narrow proportionality requirement established in the Court’s earlier cases.”34 Conclusively, Roberts turns to other forms of constitutional interpretation if they are better qualified in understanding certain cases before the Court.

In another example of his willingness to consider other forms of constitutional interpretation, Roberts once stated that little to no credence should be given to the use of foreign law in the Court’s consideration of cases in his Senate confirmation hearings.35 However, Roberts engaged in both direct and indirect dialogue with the International Court of Justice and foreign legal systems when the Court took the case of Sanchez-Llamas v. Oregon. In Sanchez-Llamas, a Mexican national was convicted for crimes in the U.S., even though the government did not inform the defendant of his right to notify the Mexican consulate that was in violation of Article 36 of the Vienna Convention.36 Roberts’ actions in Sanchez-Llamas v.

Oregon illustrate his practical outlook in recognizing other forms of constitutional interpretation when circumstances deem as necessary.

Furthermore, Roberts adheres to the principle of stare decisis unless there is a compelling reason for why the preceding laws that are followed by the judiciary are fundamentally wrong. As Roberts observed in regard to stare decisis on Brown v. Board of Education, "the Court in that case, of course, overruled a prior decision. I don't think that constitutes judicial activism because obviously if the decision is wrong, it should be overruled. That's not activism. That's applying the law correctly."37 When questioned on his stance towards abortion by the Senate, Roberts stated that he would respect the principle of stare decisis since “"Roe v. Wade is the settled law of the land” despite what political pundits may have wanted him to support.38 During the oral arguments in McDonald v. City of Chicago, Roberts questioned the petitioner’s strategy to persuade the Court to incorporate the right to bear arms for selfdefence through the Privilege and Immunities Clause

28

King v. Burwell, 576 US _ (2015)., 17-18.

17-18.

30 Ibid, 21.

31 United States Senate Committee on the Judiciary (2003). "Confirmation Hearings on Federal Appointments". Government Printing Office. Retrieved February 15, 2015.

32 Graham v. Florida., 560 U.S._2010, (Robert’s concurring opinion). 1-12 33 John P. Stevens. Five Chiefs, New York: Little Brown and Company, 2011. 221-222.

34 Ibid, 222.

35. United States Senate Committee on the Judiciary (2003). "Confirmation Hearings on Federal Appointments". Government Printing Office. Retrieved February 15, 2015.

36 Melissa A. Waters. 11 Lewis& Clark L. Review.89. (2007). 93.

37 United States Senate Committee on the Judiciary (2003). "Confirmation Hearings on Federal Appointments". Government Printing Office. Retrieved February 15, 2015.

38 Ibid.

29 Ibid,

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The Umpire on the Bench to the states since it would overturn 140 years of precedent since the Slaughterhouse Cases.39 Although Roberts places prime importance on textualist readings of statutes, an originalist interpretation of the Constitution, and stare decisis, he has also considered other forms of constitutional interpretation or disregarded precedent (Citizens United v. FEC) while on the bench.

Roberts’ Leadership of the Court Roberts’ first and foremost goal as an effective manager of the Court’s affairs is to publicly maintain and promote the institution as a non-partisan entity.

Despite the President’s criticism of the Court’s decision in Citizens United v. FEC, Roberts still attended the 2011 State of the Union address to promote the public view of the Court as an impartial institution that interprets the law. In private conferences, Robert’s leadership style is very inclusive in that he listens to opinions proposed by his ideological opponents. More tellingly, Roberts is willing to consider any opinions based on merit since he is dedicated to maintaining the Court as a nonpartisan institution.40 Furthermore, Roberts publicly criticized and noted the recent trend in which justices are subject to partisan disputes when they are nominated and confirmed before the Senate strictly on the basis of party lines. Roberts stated that the practice of nominating and selecting justices for political reasons has undermined the Court’s institutional authority and legitimacy to address strictly legal questions and matters. He also observed that “the Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that

process.”41 Even though his leadership of the Court has been challenged by elected officials on both side of the political spectrum, Roberts promotes the Court as a non-partisan institution in the public’s eye to preserve its legitimacy in the face of partisanship.

Conclusion As the Chief Justice, John G. Roberts certainly fulfills his role as the “umpire” on the Court’s bench in his determination to keep the Court on a nonpartisan path in its judicial and non-judicial functions.

Roberts’ thoughts on different forms of constitutional interpretation, his non-ideological decisions on the bench, and his judicial philosophy on the importance of judicial restraint all constitute the critical elements of his jurisprudence. Furthermore, Roberts has demonstrated consistency in applying his jurisprudence to Court cases since he adheres to his own fundamental belief that a judge should interpret the law and defer to the legislature rather than create it based on personal political ideology. Roberts is enigmatic only because the majority of Americans perceive his actions through partisan biases to label him as a conservative or a traitor to the conservative cause. Despite initial appearances and popular perception, Roberts’ conservative outlook and background do not cloud his ability to deliver nonideological decisions in cases before the bench since he rules based on a more nuanced judicial philosophy that urges judicial deference to the legislature. Even though he is an enigma to many people due to the nature of the opinions that he has authored and his leadership of the Court, Roberts has proven himself to be a capable umpire in the Court’s legal game by actively applying his jurisprudence in his duties as Chief Justice.

39

https://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1521.pdf Stevens, 203-222.

41 United States Senate Committee on the Judiciary (2003). "Confirmation Hearings on Federal Appointments".

Government Printing Office. Retrieved February 15, 2015.

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