FIRST ONE @ ONE FIRST

Sotomayor @ SNL

Posted in Non-justiciable by Mike Sacks on January 31, 2010

Faux-Soto’s got a point: “Just imagine if I mouthed off like that!”

SOTU: POTUS v. SCOTUS

Posted in Justicespotting by Mike Sacks on January 27, 2010

Present at tonight’s State of the Union address: Chief Justice Roberts and Justices Kennedy, Alito, Ginsburg, Breyer, and Sotomayor–who put on her neck doily for the occasion.

But the big news belongs to Justice Alito’s reaction to the President’s taking the Court to task for Citizens United. Here’s what Obama said:

Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.

Moments after I took this photo, Justice Alito shook his head and mouthedNo, that’s not true,” becoming the only non-impassive face in among the robed.  Watch here at 48:35.

NYT’s The Caucus blog agreed with Alito:

But in his majority opinion in the case, Citizens United vs. the Federal Election Commission, Justice Anthony Kennedy specifically wrote that the opinion did not address the question of foreign companies. “We need not reach the question of whether the government has a compelling interesting in preventing foreign individuals or associations from influencing our Nation’s political process,” he wrote. The court held that the First Amendment protected the right of American corporations to spend money on independent political commercials for or against candidates. Some analysts or observers have warned that the principle could open the door to foreign corporations as well.

Here’s more from Politifact.com.  So let’s not be so fast to call this Alito’s “Joe Wilson Moment.”  Last year Wilson had no proof to shout that Obama lied.  Even if Alito broke from the justices’ traditional SOTU decorum, he certainly knows what Kennedy’s majority entailed and what it didn’t, however it may have been characterized by Stevens in his dissent.

For the Justices’ actual words on foreign companies’ contributions, see Kennedy’s opinion at pp. 46-47 and Stevens’s dissent at pp. 33-34.

UPDATE: Alito’s break with decorum made it to Wikipedia for a split second (h/t Scott Hechinger, NYU 3L):

During Barack Obama’s January 27, 2010 State of The Union Address, Justice Alito can be seen shaking his head in the negative and uttering the words “That’s Not True.”

Also, Ben Smith at Politico has the stand-alone scene.

SOC: More like me, please!

Posted in Justicespotting by Mike Sacks on January 26, 2010

After attending today’s O’Connor Project conference at Georgetown Law, I am convinced that Justice O’Connor’s aim is to fill the state judiciaries with little Justice O’Connors.  And that’s not necessarily a bad thing.

The conference asked, “Will Caperton and Citizens United Change the Way States Pick Judges?”  Panelists fretted over the influence of corporate money in state judicial elections as well as the right balance between a judge’s receptivity to and independence from public opinion and the political climate.  O’Connor’s recommendation of merit selection–a process she helped institute as a state legislator in Arizona–seems a more responsible, insulated hybrid of appointment and election processes.

Indeed, I got the sense that O’Connor believed merit selection would safely yield judges receptive to public opinion…but not too much; and judges independent from politics…but not too much.

On the whole, I find agreeable the idea of a judiciary made up of pragmatists like O’Connor who, as Barry Friedman and Dahlia Lithwick wrote yesterday, possess “a built-in barometer of the public mood.”  Perhaps the tiny dissenter in my head screaming “BUSH V. GORE!  BUSH V. GORE!” can be countered by the understanding that that was the rare case to generate so much heat as to malfunction O’Connor’s barometer.  And really, O’Connor’s vote was consistent with the weary public’s desire for an end to the election’s interminable indecision; her mistake was interpreting that weariness to require the Court to unilaterally declare a winner.

Nevertheless, O’Connor’s own blind spots during her Supreme Court career may yet prove that however a state chooses to balance a judicial candidate’s receptivity and insulation from politics, there will be no perfect reform.  The key is to minimize the variables that will adversely impact the balance.  And for its efforts to do so, the O’Connor Project deserves credit.

For a good write-up of O’Connor’s remarks, see Adam Liptak’s report on the NYT website.

SOC on CU: ‘If you

Posted in Uncategorized by Mike Sacks on January 26, 2010

SOC on CU: ‘If you want my legal opinion go read’ McConnell.

SOC @ GULC

Posted in Uncategorized by Mike Sacks on January 26, 2010

SOC on citizens united: ‘i step away for a few years and there’s no telling what will happen!’

Welcome Slate Readers!

Posted in Endorsements by Mike Sacks on January 25, 2010

Huge thanks to Barry Friedman and Dahlia Lithwick for linking to F1@1F!

One of the defining features of the John Roberts Court is how rarely it’s accused of being tone-deaf. With a handful of exceptions, the conservative majority on the court has chipped, sanded, and whittled away at the law without need of a drop cloth. With a toolbox that includes judicial minimalism and constitutional avoidance, a penchant for overruling old cases without explicitly saying so, and an uncanny sense of just how much activism the public will tolerate, the Roberts Court has done a remarkable job of conforming its behavior to the prevailing public mood, resisting the impulse to go too far.

That second link?  Yeah.  Rock!

Citizens United Fallout: Briscoe’s Retreat

Posted in Anticipation, Case Reports by Mike Sacks on January 25, 2010

After such a big fuss was made about the Court’s overturning a six-year-old precedent in Citizens United, the Court decided the death of one young precedent based on changed Court composition was enough.

The Supreme Court just issued a per curiam opinion for Briscoe v. Virginia.  It reads in its entirety:

We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009).

As discussed in previous posts, it was a mystery why the Court even granted certiorari in Briscoe when its question–whether under the Confrontation Clause, lab technicians must appear at trial in person to testify about their forensic reports–had been decided in Melendez-Diaz only last term.

The most apparent answer was that the four Melendez-Diaz dissenters granted a “spite cert” on the bet that Justice Souter, who had voted in the five-justice majority, would be replaced by a justice that would come to the opposite conclusion.

If that guess was true, then perhaps Chief Justice Roberts and Justices Kennedy and Alito, who had been in the Melendez-Diaz dissent, figured that they had better conserve what remained of the Court’s institutional legitimacy after Citizens United.  The Court has been under enough fire for overturning 2003’s McConnell v. FEC, which, according to Justice Stevens’s dissent,

The only relevant thing that has changed since Austin and McConnell is the composition of this Court. Today’s ruling thus strikes at the vitals of stare decisis, “the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion” that “permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals.”

Even if Sotomayor would have voted in Briscoe as Souter had in Melendez-Diaz, then why, at least, was there no dissent in Briscoe?  I submit that Chief Justice Roberts, mindful of the Court’s political capital, looked at his Citizens United concurrence‘s discussion of stare decisis, and decided that aborting the Melendez-Diaz precedent in Briscoe was not worth the battle after all. Especially with McDonald approaching, in which the Court may very well euthanize an ancient precedent to incorporate the Second Amendment against the states.

Speaking of McDonald, the Court has granted the NRA time to argue in support of the petitioner in McDonald.  This throws a wrinkle into just how strongly the Court is considering overturning 1873’s Slaughter-House Cases to revive the Privileges or Immunities Clause as the tool to incorporate the Second Amendment.

The NRA, afraid that the PI Clause will be a pandora’s box for all sorts of newly discovered liberal rights, is urging the Court to use the Due Process Clause to incorporate the Second Amendment.  While using the Due Process Clause may follow existing Supreme Court incorporation precedent, conservative justices have loathed the Clause for nearly half a century.  Indeed, I don’t see Justice Scalia, the author of Heller and likely the author of McDonald, swallowing back the years of bile he spewed towardssubstantive due process” as the NRA will ask him to do.

Citizens United/Caperton Symposium @ GULC

Posted in Anticipation by Mike Sacks on January 22, 2010

My law school has lined up quite a day on Tuesday for the symposium, ““State Courts and U.S. Supreme Court Rulings: Will Caperton and Citizens United Change the Way States Pick Judges?” I have no classes on Tuesdays, so F1@1F will be there.

Justice O’Connor will be the keynote speaker.  Since retiring from the Court, she has led the fight to eliminate state judicial elections as impediments to judicial independence.

Here’s the morning lineup:

9:15 – 10:15 am.

Panel 1: Caperon v. Massey Coal and the Recusal of State Court Judges

Bert Brandenburg, Executive Director, Justice at Stake Campaign

Carte Goodwin, Partner, Goodwin & Goodwin, PC and Chair, West Virginia Independent Commission on Judicial Reform

Pamela Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School

Roy Schotland, Professor Emeritus, Georgetown University Law Center

Moderator: Nina Totenberg, Legal Affairs Correspondent, NPR

10:20 – 11:20 a.m.

Panel 2: Citizens United and the Election of State Court Judges

Jan Baran, Partner, Wiley & Rein, LLP

Karl Sandstrom, Of Counsel, Perkins Coie

Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law, Capital University Law School

H. Thomas Wells, Jr., Immediate Past President, American Bar Association

Fred Wertheimer, President, Democracy 21

Moderator: Tony Mauro, Supreme Court Correspondent, National Law Journal

Some commentators have already noticed the not-so-easily reconcilable fact that Justice Kennedy wrote the majority opinions in both cases, each decided 5-4.  In Caperton, he wrote for the liberal bloc in holding that the 14th Amendment’s Due Process Clause required an elected state supreme court judge recuse himself from judging a case in which one of the parties had previously donated $3 million to his judicial election campaign–and for whose side, “coincidentally,” the judge, once elected to the bench, ultimately gave the winning vote.

In Citizens United, as we all know know, Justice Kennedy wrote for the conservative bloc in holding that the same corporations that he felt under the Due Process Clause unconstitutionally sleazed up judges elected to state courts could, under the First Amendment, constitutionally spend all they wanted in local, state, and federal elections.  On page 51 of Kennedy’s opinion, he offers a distinction between the two cases:

The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate. See Buckley, supra, at 46. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. This is inconsistent with any suggestion that the elector- ate will refuse “‘to take part in democratic governance’” because of additional political speech made by a corpora- tion or any other speaker. McConnell, supra, at 144 (quot- ing Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 390 (2000)).
Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009), is not to the contrary. Caperton held that a judge was required to recuse himself “when a person with a personal stake in a particular case had a significant and dispropor- tionate influence in placing the judge on the case by rais- ing funds or directing the judge’s election campaign when the case was pending or imminent.” Id., at ___ (slip op., at 14). The remedy of recusal was based on a litigant’s due process right to a fair trial before an unbiased judge. See Withrow v. Larkin, 421 U. S. 35, 46 (1975). Caperton’s holding was limited to the rule that the judge must be recused, not that the litigant’s political speech could be banned.
The McConnell record was “over 100,000 pages” long, McConnell I, 251 F. Supp. 2d, at 209, yet it “does not have any direct examples of votes being exchanged for . . . ex- penditures,” id., at 560 (opinion of Kollar-Kotelly, J.). This confirms Buckley’s reasoning that independent expendi- tures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate. See 251 F. Supp. 2d, at 555–557 (opinion of Kollar-Kotelly, J.). Ingratiation and access, in any event, are not corruption. The BCRA record establishes that certain donations to political parties, called “soft money,” were made to gain access to elected officials. McConnell, supra, at 125, 130– 131, 146–152; see McConnell I, 251 F. Supp. 2d, at 471– 481, 491–506 (opinion of Kollar-Kotelly, J.); id., at 842– 843, 858–859 (opinion of Leon, J.). This case, however, is about independent expenditures, not soft money. When Congress finds that a problem exists, we must give that finding due deference; but Congress may not choose an unconstitutional remedy. If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expe- diency before principle, then surely there is cause for concern. We must give weight to attempts by Congress to seek to dispel either the appearance or the reality of these influences. The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical preelection period is not a permissible remedy. Here Congress has created categorical bans on speech that are asymmetrical to preventing quid pro quo corruption.

Stevens’s spends pages 67-70 of his dissent on why Kennedy’s two opinions are at odds:

The insight that even technically independent expenditures can be corrupting in much the same way as direct contributions is bolstered by our decision last year in Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009). In that case, Don Blankenship, the chief executive officer of a corporation with a lawsuit pending before the West Vir­ ginia high court, spent large sums on behalf of a particular candidate, Brent Benjamin, running for a seat on that court. “In addition to contributing the $1,000 statutory maximum to Benjamin’s campaign committee, Blankenship donated almost $2.5 million to ‘And For The Sake Of The Kids,’” a §527 corporation that ran ads tar­ geting Benjamin’s opponent. Id., at ___ (slip op., at 2). “This was not all. Blankenship spent, in addition, just over $500,000 on independent expenditures . . . ‘ “to sup­ port . . . Brent Benjamin.” ’ ” Id., at ___ (slip op., at 2–3) (second alteration in original). Applying its common sense, this Court accepted petitioners’ argument that Blankenship’s “pivotal role in getting Justice Benjamin elected created a constitutionally intolerable probability of actual bias” when Benjamin later declined to recuse him­ self from the appeal by Blankenship’s corporation. Id., at ___ (slip op., at 11). “Though n[o] . . . bribe or criminal influence” was involved, we recognized that “Justice Ben­ jamin would nevertheless feel a debt of gratitude to Blankenship for his extraordinary efforts to get him elected.” Ibid. “The difficulties of inquiring into actual bias,” we further noted, “simply underscore the need for objective rules,” id., at ___ (slip op., at 13)—rules which will perforce turn on the appearance of bias rather than its actual existence.

In Caperton, then, we accepted the premise that, at least in some circumstances, independent expenditures on candidate elections will raise an intolerable specter of quid pro quo corruption. Indeed, this premise struck the Court as so intuitive that it repeatedly referred to Blankenship’s spending on behalf of Benjamin—spending that consisted of 99.97% independent expenditures ($3 million) and 0.03% direct contributions ($1,000)—as a “contribution.” See, e.g., id., at ___ (slip op., at 1) (“The basis for the [recusal] motion was that the justice had received cam­ paign contributions in an extraordinary amount from” Blankenship); id., at ___ (slip op., at 3) (referencing “Blankenship’s $3 million in contributions”); id., at ___ (slip op., at 14) (“Blankenship contributed some $3 million to unseat the incumbent and replace him with Benjamin”); id., at ___ (slip op., at 15) (“Blankenship’s campaign con­ tributions . . . had a significant and disproportionate influence on the electoral outcome”). The reason the Court so thoroughly conflated expenditures and contributions, one assumes, is that it realized that some expenditures may be functionally equivalent to contributions in the way they influence the outcome of a race, the way they are interpreted by the candidates and the public, and the way they taint the decisions that the officeholder thereafter takes.

Caperton is illuminating in several additional respects. It underscores the old insight that, on account of the ex­ treme difficulty of proving corruption, “prophylactic meas­ ures, reaching some [campaign spending] not corrupt in purpose or effect, [may be] nonetheless required to guard against corruption.” Buckley, 424 U. S., at 30; see also Shrink Missouri, 528 U. S., at 392, n. 5. It underscores that “certain restrictions on corporate electoral involve­ ment” may likewise be needed to “hedge against circum­ vention of valid contribution limits.” McConnell, 540 U.S., at 205 (internal quotation marks and brackets omitted); see also Colorado II, 533 U. S., at 456 (“[A]ll Members of the Court agree that circumvention is a valid theory of corruption”). It underscores that for-profit cor­ porations associated with electioneering communications will often prefer to use nonprofit conduits with “mislead­ ing names,” such as And For The Sake Of The Kids, “to conceal their identity” as the sponsor of those communica­ tions, thereby frustrating the utility of disclosure laws. McConnell, 540 U. S., at 128; see also id., at 196–197.

And it underscores that the consequences of today’s holding will not be limited to the legislative or executive context. The majority of the States select their judges through popular elections. At a time when concerns about the conduct of judicial elections have reached a fever pitch, see, e.g., O’Connor, Justice for Sale, Wall St. Journal, Nov. 15, 2007, p. A25; Brief for Justice at Stake et al. as Amici Curiae 2, the Court today unleashes the floodgates of corporate and union general treasury spending in these races. Perhaps “Caperton motions” will catch some of the worst abuses. This will be small comfort to those States that, after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integ­ rity of their judicial systems.

Kentucky Flyin’ Tefillin

Posted in Non-justiciable by Mike Sacks on January 22, 2010

The NYT reports “Jewish Teenager’s Tefillin Diverts a US Airways Flight” to Louisville, KY.  Somewhere, Justice Brandeis–a Louisville-born, ardently secular Jew–doesn’t know whether to laugh or cry:

The plane, a 50-seat regional aircraft that was less than a third full when it took off from La Guardia Airport, had been climbing through the early-morning sky for about 25 minutes. A 17-year-old passenger in a whitish sweater took out something he had carried onboard, and strapped it onto his wrist and his head.

To some people in New York, that is a relatively common sight: an observant Jew beginning the ritual of morning prayer. But to at least one person on US Airways Express Flight 3079 on Thursday — the flight attendant — it looked ominous, as if the young man were wrapping himself in cables or wires. [...]

The pilot decided to divert the Kentucky-bound plane to Philadelphia. In less than 30 minutes it was on the ground, police officers were swarming through the passenger cabin, and the Transportation Security Administration was using terms like “disruptive passenger” and “suspicious passenger” to describe the boy.

An hour or so after that, Lt. Frank Vanore, a spokesman for the Philadelphia police, had another explanation.

“It was unfamiliarity that caused this,” he said.

He said the flight crew had never seen tefillin, small leather boxes attached to leather straps that observant Jews wear during morning prayers. The flight crew “didn’t understand what it was,” he said, and the pilot “erred on the side of caution and decided to radio that in and to divert the flight.”

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New Federal Judge Nominee as Trial Balloon

Posted in Anticipation by Mike Sacks on January 21, 2010

Jonathan Adler at Volokh Conspiracy writes about Obama’s nomination of Prof. Goodwin Liu to sit on the Ninth Circuit Court of Appeals.  Liu is young and liberal.

How young?  He received his bachelor’s degree in 1991, which makes him 40 years old if he graduated at 21.  This should satisfy Obama’s critics on the left who have complained that his nominees thus far have been too old.

How liberal?  He is the current Chair of the Board of Directors at the American Constitution Society.  This should make Liu a trial balloon for the resistance to be faced by Obama’s chosen successor to Justice Stevens (if he does indeed retire).  Of course, there’s a big difference in Senatorial apoplexy between nominating a liberal to 1) a circuit court and 2) the Ninth Circuit; and nominating a liberal to the Supreme Court.

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