FIRST ONE @ ONE FIRST

CJ Roberts’s Concurrence

Posted in Case Reports by Mike Sacks on January 21, 2010

I just finished reading Chief Justice Roberts’s concurring opinion, joined by Justice Alito, in Citizens United.  It is a fascinating mix of ideological slime surrounded by institutional silver-lining.

The concurrence begins quite notably by insisting that if the majority could, it would have decided on narrower, statutory grounds, invoking NAMUDNO:

The majority’s step-by-step analysis accords with our standard practice of avoiding broad constitutional questions except when necessary to decide the case before us. The majority begins by addressing—and quite properly rejecting—Citizens United’s statutory claim that 2 U. S. C. §441b does not actually cover its production and distribution of Hillary: The Movie (hereinafter Hillary). If there were a valid basis for deciding this statutory claim in Citizens United’s favor (and thereby avoiding constitu- tional adjudication), it would be proper to do so. Indeed, that is precisely the approach the Court took just last Term in Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. ___ (2009), when eight Members of the Court agreed to decide the case on statutory grounds instead of reaching the appellant’s broader argument that the Voting Rights Act is unconstitutional. [...]

But there is something stinky in the Chief Justice’s subsequent analysis.  If the entire Court agreed that Citizens United’s statutory claims failed in the case’s original incarnation, then the Court could–and perhaps should–have issued an opinion last June in favor of the FEC and been done with this Hillary: The Movie business.  Instead, the Court scheduled a rehearing and asked the parties to brief and argue the constitutionality of Austin and McConnell.  And this is where the Chief Justice’s argument emits a peculiarly mendacious odor:

This is the first case in which we have been asked to overrule Austin, and thus it is also the first in which we have had reason to consider how much weight to give stare decisis in assessing its continued validity. [...] [emphasis added]

The Court was not asked the overrule Austin.  The Court asked Citizens United on reargument to ask the Court to overrule Austin.  I must confess that I’ve always had problems wrapping my head around the term, “begging the question,” in the abstract.  But now that I’ve seen an actual question very much begged, I don’t think its less concrete use will trip me up anymore.

Hoping no one will call him out on his recasting judicial prerogative to reach the constitutional question as an unavoidable judicial necessity, the Chief Justice goes on to give a very cogent and compelling defense of when a majority should depart from stare decisis.

[W]e must balance the importance of having constitutional questions decided against the importance of having them decided right. [...]

Because continued adherence to Austin threatens to subvert the “principled and intelligible” development of our First Amendment jurisprudence, Vasquez, 474 U. S., at 265, I support the Court’s determination to overrule that decision.

Roberts’s argument for the several pages between those lines will be of much use when the Court decides whether to overturn Slaughter-House in McDonald later this term.  But in McDonald, the petitioners actually presented the Court with the question, which is how our Supreme Court has historically done its business.  Yet after hearing Citizens United the first time around last term, the Court’s conservative bloc had not the patience to wait for an analogous case to come along that asked the five justices, in a manner consistent with the Court’s history and tradition, what they wanted to hear.

Indeed, only through the Court’s question-begging was the Chief Justice able to wax magnanimous in his concurrence’s conclusion:

We have had two rounds of briefing in this case, two oral arguments, and 54 amicus briefs to help us carry out our obligation to decide the necessary constitutional questions according to law. We have also had the benefit of a comprehensive dissent that has helped ensure that the Court has considered all the relevant issues. This careful consideration convinces me that Congress violates the First Amendment when it decrees that some speakers may not engage in political speech at election time, when it matters most.

The Chief Justice insults our intelligence by pretending that the second round of briefing, the reargument, and the nearly fifty-four amici did anything to aid this ready-made 5-4 decision.   Yet he knows that given the surrounding political climate, this case may have been a full liquidation of the Court’s scarce political capital.  Roberts seems to have written this opinion not only to justify such an expense, but also to defend the Court’s institutional legitimacy against what he knows will be the inevitable attacks against the Court’s naked activism.

For this reason, he referred to NAMUDNO to show that he will remain vigilant to guide the Court, when he “can,” towards similar holdings.  For this reason, he wrote at length on the Court’s sometime-need to depart from stare decisis.  For this reason, he expresses appreciation–even if it is less than sincere in the present case–for the comprehensive and persuasive nature of the parties’ briefs and his colleagues’ opinions.

As such, I stand by my assertion that the Supreme Court, under the leadership of Chief Justice Roberts, forms its docket and decide its cases with an eye towards public opinion and the surrounding political climate.  The Chief Justice’s concurrence signals that politically aggravating, if not counter-majoritarian, cases such as Citizens United will be rare.  That assurance, of course, doesn’t make today’s decision any less polarizing, dramatic, or outrageously results-oriented.  But it does signal the emergence of a more mature, responsive Roberts Court.

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UPDATE: Thanks to “Fact-checker” below for pointing out that Citizens United did, in fact, ask the Court to overrule Austin in the first merits brief.  However, the brief’s official questions presented to the Court do not explicitly ask for such an overruling and when the brief does ask for it, it is buried in the middle of Citizens United’s narrow, as-applied argument that “BCRA § 203 IS UNCONSTITUTIONAL AS TO THE DISTRIBUTION OF UNITED’S DOCUMENTARY FILM VIDEO ON DEMAND.”  This, of course, does not change the fact that Citizens United did raise the point in its brief, but the Court itself commanded rehearing on the constitutional issue.

UPDATE II: Related to the previous update, in her 1/29/10 NYT Opinionator column, Linda Greenhouse writes:

“In this case, we are asked to reconsider Austin,” Justice Anthony M. Kennedy wrote in the second paragraph of his 57-page majority opinion in Citizens United. Well, not exactly. It was the court itself that put Austin in play, with its surprise order on the final day of the last term. Rather than issue the expected decision, the justices told the lawyers to reargue the case and to address whether the court should overrule both Austin and the relevant portion of the 2003 decision that upheld the McCain-Feingold corporate speech limitations.

CITIZENS UNITED – Get Opinion Here!

Posted in Case Reports by Mike Sacks on January 21, 2010

5-4 overruling Austin v. Michigan and gutting McCain-Feingold.  Kennedy for the conservative majority; Stevens for liberal dissent.  To avoid the crashing at the Court’s official site, you can download the opinion here.

Back to class.  More later.  Go read SCOTUSBlog and the real reporters!

UPDATE: A bit of fracturing, but still very much 5-4:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined, in which THOMAS, J., joined as to all but Part IV, and in which STEVENS, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined as to Part IV. ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined. SCALIA, J., filed a concurring opin- ion, in which ALITO, J., joined, and in which THOMAS, J., joined in part. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part.

UPDATE II: 89 Year Old Stevens, for the dissenters, on page 90:

In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules. The majority’s rejection of this principle “elevate[s] corpora­ tions to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.” Bellotti, 435 U. S., at 817, n. 13 (White, J., dissenting). At bottom, the Court’s opinion is thus a rejection of the com­ mon sense of the American people, who have recognized a need to prevent corporations from undermining self­ government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

UPDATE III: Speaking of Stevens’s age and his dissent today, check out CBS’s Jan Crawford’s impressions from inside the Court.

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In Line, but Neither First One nor at One First

Posted in Anticipation, Clairvoyance by Mike Sacks on January 21, 2010

Citizens United looks super-likely to come down this morning, but this 6am, I sit in another line.

Student section tickets for next week’s Duke/Georgetown game here in DC are on sale to a limited number of G’town Law students.  Consider me this morning to be 11th One @ 600 New Jersey.

Meanwhile, I will be in class from 9am-11am.  Until I bolt out of class at the stroke of 11, I leave you with this prediction:

(Here’s Jess Bravin’s WSJ article)

I post that prediction with something less than certitude.  I made it a week after attending the oral argument, expecting the Court to hand its decision down as early as the first week of October.  But it’s now January and it’s apparent that the justices did not have a pre-written opinion on standby after all.

The delay suggests that we could see a late Rehnquist-era fractured opinion where a majority may hold for a certain principle, but falls into disarray over how to get there and what getting there may entail.  It does not suggest, however, a NAMUDNO-style pull-back to a broad consensus opinion with a narrow holding.

We will know soon enough.

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…But maybe Citizens United Tomorrow?

Posted in Anticipation by Mike Sacks on January 20, 2010

From SCOTUSBlog: “The Court has announced that it expects to issue one or more opinions in argued cases on Thursday.”

The Supreme Court will hold a special public session on Thursday at 10 a.m., the Court announced at the close of this morning’s oral arguments.  Although no purpose for the sitting was specified, no arguments are scheduled, so it almost certainly will be to release opinions — perhaps the long-awaited ruling on campaign finance regulation. Such sessions are highly unusual, but so is the campaign finance case, involving a major constitutional controversy.

If the Court is planning to issue the ruling in Citizens United v. Federal Election Commission (08-205), it presumably will be doing so to make some gesture to satisfy Congress’s mandate that cases testing the constitutionality of campaign finance laws are to be given expedited treatment.

On the one day I have a morning class…gah!

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No Citizens United Today…

Posted in Case Reports by Mike Sacks on January 20, 2010

…but Justice Sotomayor did pen her second majority opinion in Wood v. Allen.

Also, in South Carolina v. North Carolina, the Court came down unanimously in the result, but had a heartwarmingly mishmashed 5-4 split on the reasoning, with Chief Justice Roberts dissenting in part for himself and Justices Thomas, Ginsburg, and Sotomayor.

The final decision of the day was Kucana v. Holder.  Justice Ginsburg wrote for the Court with Justice Alito concurring in the result.

Thank you, SCOTUS, for giving me the time to prepare for class today!

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UPDATE: Professor Jerry Goldman, director/curator/mastermind of the indispensable Oyez Project writes in to give a more accurate and authoritative take on SC v. NC:

My reading of this exception differs from yours. Roberts dissents from the report of the special master on a key point regarding who can intervene. And while he concurs in the judgment regarding two of the intervenors, he is fundamentally opposed to the nonstate party intervention. Seems to read like a dissent, not a concurrence. So for me, this one tilts 5-4.

Chief Justice Roberts’s opening and closing comments in his separate opinion do, indeed, read more like a dissent than a concurrence:

The Court correctly rejects the Special Master’s formulation of a new test for intervention in original actions, and correctly denies the city of Charlotte leave to inter- vene. The majority goes on, however, to misapply our established test in granting intervention to Duke Energy Carolinas, LLC (Duke Energy), and the Catawba River Water Supply Project (CRWSP).
The result is literally unprecedented: Even though equitable apportionment actions are a significant part of our original docket, this Court has never before granted intervention in such a case to an entity other than a State, the United States, or an Indian tribe. Never. That is because the apportionment of an interstate waterway is a sovereign dispute, and the key to intervention in such an action is just that—sovereignty. The Court’s decision to permit nonsovereigns to intervene in this case has the potential to alter in a fundamental way the nature of our original jurisdiction, transforming it from a means of resolving high disputes between sovereigns into a forum for airing private interests. Given the importance of maintaining the proper limits on that jurisdiction, I respectfully dissent. [...]
Our original jurisdiction over actions between States is concerned with disputes so serious that they would be grounds for war if the States were truly sovereign….A dispute between States over rights to water fits that bill; a squabble among private entities within a State over how to divvy up that State’s share does not. A judgment in an equitable apportionment action binds the States; it is not binding with respect to particular uses asserted by private entities. Allowing intervention by such entities would vastly complicate and delay already complicated and lengthy actions. And the benefits private entities might bring can be read- ily secured, as has typically been done, by their participation as amici curiae.
In light of all this, it is difficult to understand why the Court grants nonsovereign entities leave to intervene in this equitable apportionment action, and easy to under- stand why the Court has never before done so in such a case.
I would grant South Carolina’s exceptions, and deny the motions to intervene.

Conservative Convergence = Liberal Freakout, Cont’d

Posted in Anticipation, Clairvoyance by Mike Sacks on January 20, 2010

Lyle Denniston at SCOTUSBlog writes about how Brown’s election may indeed rattle the Executive Branch if Justice Stevens retires:

[W]hile most legislative observers will be watching for signs of trouble for health care reform and energy legislation, the processing of nominees to the federal courts will be another arena of likely difficulty.

And the next ten months, of course, is the time span during which a Supreme Court vacancy may well occur.  If bipartisanship has any meaning any longer in the Senate, perhaps the President could find nominees who may have some appeal with moderate Republicans.  That almost certainly would translate as nominees decidedly more moderate in their views than the President’s first choice for the Court, Justice Sonia Sotomayor, who has taken a place comfortably in the Court’s liberal wing.  It might even be doubtful that a nominee with views aligned closely with those of Justice Stevens could get confirmed.

With President Obama still having three years to go in his term, Republicans who might be bent on obstructing any Court nominees would probably not be able to hold out long enough to prevent a centrist nominee for the Court from finally getting through.   But a nominee with an identifiable liberal record may well be doomed (assuming that the White House has any lingering interest in that type of choice).

Per Lyle’s forecast, however, Brown’s election could very well result for the GOP in a case of “be careful what you wish for” should Stevens step down this summer.

To be sure, without 60 guaranteed votes, Obama may move away from choosing a nominee with the liberal record of Judge Diane Wood of the Seventh Circuit.  But then again, if he chooses her–a natural heir to Justice Stevens–and the GOP as a result holds up a Supreme Court nomination through November, the Democrats will more potently than ever be able to paint the 41-person GOP minority as an obstructionist, nihilist, and extremist Party of No.

In other words, Obama may be wise to continue with his next nominee as planned–if indeed he planned to pick a proven liberal–just to show  that when given a high enough platform and just enough rope, today’s GOP will hang itself.

Conservative Convergence = Liberal Freak-Out?

Posted in Anticipation, Clairvoyance by Mike Sacks on January 19, 2010

Tom Goldstein at SCOTUSBlog predicts that Citizens United will come down either tomorrow or Monday morning:

As we have previously noted, the Court will issue opinions tomorrow.  The next opinion day is Monday, January 25.  After that, the Court is not scheduled to issue opinions until Tuesday, February 23.  The month-long gap results from the break between the Court’s January and February sittings.

The Court could add an additional opinion date.  That would have been extremely unlikely under Chief Justice Rehnquist.  But in a variety of small ways, the Roberts Court has taken a more pragmatic approach that deviates from certain traditions.

Nonetheless, the Court is an institution that does rest on tradition, and it will have a strong institutional preference for sticking to its usual calendar.  The Court is also well aware of the public interest in having the campaign finance case decided, as illustrated by the fact that it held oral argument in late summer, outside the usual argument calendar.

If Goldstein is right, and if the Court holds to its expected 5-4 conservative victory despite doubts created by the decision’s delay, expect a left-wing freak-out.

First, a Republican takes Ted Kennedy’s Senate seat tonight, destroying the Democrats’ filibuster-proof majority and perhaps with it Kennedy’s dream of health care reform.

Next, should the Court strike down McCain-Feingold‘s restrictions on corporate campaign expenditures, expect liberal commentators to reveal doomsday visions of insurance companies emptying their coffers in the 2010 campaign on a multimedia effort to smear all incumbents supportive of health care reform as fascists, socialists, and communists.

That’s a vicious one-two punch from our Legislative and Judicial branches.  But should that combination come to pass, expect the Executive Branch to stay cool, adjust to the circumstances, and move ahead.   There will be neither war nor implosion.

Welcome Business Insider Readers!

Posted in Endorsements by Mike Sacks on January 19, 2010

Q&A courtesy of Lauren Streib at The Business Insider’s Law Review.  Enjoy!

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Welcome Legal Blog Watch Readers!

Posted in Endorsements by Mike Sacks on January 19, 2010

Law.com’s Legal Blog Watch writes up F1@1F.  Thanks for the shout!  LBW readers, enjoy your stay and come back often.

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Meat v. Beans

Posted in Justicespotting by Mike Sacks on January 19, 2010

USA Today’s Joan Biskupic writes today on the ideological and stylistic differences of Justices Scalia and Breyer:

They appear at law schools together to discuss their competing views of the Constitution. They take ideological aim at each other in rulings. And their differences are increasingly playing out in testy fashion on the bench.

No two justices seem to drive each other so nuts during oral arguments. That was clear during the first session of the new year, as Justices Antonin Scalia and Stephen Breyer squabbled in a series of cases last week.

Scalia is conservative and Breyer liberal. Yet their differences on the bench are ones of both substance and style. As Breyer begins a long, hypothetical question, Scalia — a fast-speaking, get-to-the-point guy — often slaps his hands up to the sides of his head.

Breyer doesn’t exude irritation as much as frustration. A pragmatist, he is irked when Scalia interrupts his interest on how a ruling might affect real life.

As Biskupic illustrates her point with the justices’ behavior during last week’s American Needle argument, her article reminds me of my own brief Scalia-and-Breyer story that similarly exemplifies their differences.

Sometime during our stay here in DC, my girlfriend and I found ourselves wildly out of place at a party with many well-established Washington-types.  One glance around the room would make any mortal quake under the power on display.  We had two choices: stand in the corner with eyes averted or swallow our fears and engage.  We went with the latter and made towards the buffet table.

As we both stepped up to the plate–literally, dinner plates–we hit yet another obstacle.  For me, big slabs of beef with no knives in sight; for my girlfriend, on the opposite end of the table, giant beans she had never seen.  I didn’t know how to properly eat what I so wanted, she didn’t want to eat what she didn’t know.

I stood there staring at the forks and meat on the table, imagining to myself just how I could carnivorate without making a scene.  Should I aggressively saw the meat with the side of my fork?  Should I stuff the whole thing into my mouth?  Should I just tear it with my hands?

Then I looked to my left and found Justice Scalia making for the meat.  How appropriate!

Me: Justice Scalia, how do you eat the meat without a knife?

AS: Well, you take this bread [he takes bread from the breadbasket on the table], you fold the meat on top of it, and you eat it!

Me: You just gnaw on it?

AS: Yes, that’s how you eat it.

I was so excited to be getting meat-eating lessons, however curt, from Justice Scalia that I looked across the table to see if my girlfriend was taking it in.  But instead I found myself witnessing the very study in contrasts Biskupic writes of today: Justice Breyer was very intently introducing my girlfriend to the wonder of fava beans.

Now, whenever my girlfriend and I find ourselves at fancy parties with buffets featuring slabs of beef sans knives and giant fava beans, we take care to seek out our own overwhelmed peers–easily spottable by their uneasy eating–and impart to them the lessons we learned from those old adversaries, Justices Scalia and Breyer.

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