FIRST.

9:44pm.  Concrete throne reclaimed once more. But wouldn’t have gotten here this early for Monsanto had it not been for some enviro law buddies at gtown… Thanks guys. See you out here soon! And anyone else in DC come say hi.

First Amendment Carve-Out for Violent Video Games?

The Supreme Court today granted certiorari in Schwarzenegger v. Video Software Dealers Association, which asks whether a California regulation banning the sale to minors of violent video games must meet “strict scrutiny” to pass constitutional muster, if such a regulation is permitted at all under the First Amendment.  The Court has been sitting on this petition since its first conference of the term back in September.

The Ninth Circuit struck down California’s law in February 2009:

Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State’s expressed interests. Additionally, we hold that the Act’s labeling requirement is unconstitutionally compelled
speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State’s controversial opinion.

California justified its law with an appeal to the Court’s obscenity jurisprudence, but the Ninth Circuit slapped this reasoning down, pointing out that the Seventh, Eighth, Second, and Sixth Circuits have all refused to expand obscenity beyond sexual expression into violent expression.

The Supreme Court has never spoken on this issue, but came close last week in U.S. v. Stevens, when it struck down a federal statute banning depictions of animal cruelty by trying to sweep such depictions inside the Court’s obscenity carve-out under the First Amendment.

But Stevens did not concern the sale of violent content to minors.  Nevertheless, the Court has also been quite stingy in recent years on restrictions on indecent or obscene speech for minors, twice striking down federal regulations aimed at protecting children from such content on the Internet.

Despite what the New York Times might have said about the Ninth Circuit and its reputation for getting reversed by the Supreme Court, expect the Court to affirm its decision in Schwarzenegger v. Video Software Dealers Association next term.

Kennedy: The Buono-CLS Nexus?

Because today’s opinions were all dogs, let me entertain you with some rank speculation regarding this term’s two church-state cases.

Justice Kennedy is the only member of the Court yet to write an opinion from the October sitting.  As of today, Salazar v. Buono remains the only case not yet decided from the October sitting.

The delay in Buono augurs a bitter split with lots of footnotes flying around.  From the oral argument transcript, let me go out on a limb and say that Kennedy sided with the liberals on this one.  Perhaps the conservatives–or, at least Scalia and Alito, by the write-ups–hoped the Court would rule more broadly than the standing issue that the rest of the justices ultimately focused upon.  Or maybe the decision’s delay means that in Kennedy’s hands, the opinion did address the broader merits of whether Congress violated the Establishment Clause by transferring its ownership of a desert cross on government lands to a private entity so to avoid First Amendment suits.

Either way, perhaps the justices’ post-argument positioning triggered the Court’s December cert. grant to Christian Legal Society v. Martinez, which the justices had sat on since the spring.  Wanting to make up for one (still totally conjectural) church-state loss with Buono, the conservative bloc may have sensed in CLS a big, broad win for the Free Exercise Clause.

The Court heard CLS on Monday.  The justices fell to their familiar positions, but the conservatives’ (still totally speculative) gamble may have been for naught: Justice Kennedy didn’t seem at all convinced that the case’s facts had been sufficiently clarified to garner a ruling on the merits.

In the coming weeks and months, we’ll get the decisions.  But whether I’m spectacularly right or wrong on what when down behind the curtain may have to wait until Justice Stevens’s papers go public.  And for the sake of sating speculation, let’s hope Stevens will mimic Marshall and Blackmun‘s speedy release of their papers rather than follow Souter down the fifty-year memory hole.

Fortune from Miscalculation

My Vox Populi column from the Sunday night/Monday morning line is now up at ABA Journal:

Sometimes gross miscalculations can yield fortuitous results.

Jordan Salberg arrived at One First Street on Sunday afternoon to find a group of ten undergraduates from Eastern University in Pennsylvania fronting the general admission line for Monday’s oral arguments in Christian Legal Society v. Martinez.

Perfect, he thought: Salberg, a first-year at American University’s Washington College of Law, came to see City of Ontario v. Quon, Monday morning’s second argument.  The undergrads would exit the Court after CLS and leave him the best (unreserved) seat in the house.

Salberg felt so warmed by his fortunes that he lent his air mattress and quilt to unlucky #13, who showed up from Seattle to sleep on the sidewalk without any protection from the cold concrete and unseasonably wintry winds.

But that was before Salberg decided to move his car at 6:45am.  When he returned shortly after 7am, the Court police had moved the line up from the sidewalk to the plaza and handed out numbered placeholders.  Salberg’s guaranteed #11 disappeared; as far as the line was now concerned, his fifteen-hour wait never happened.

Read the rest here.  I’ll post some Supreme Court Side Walk  footage later this week.

Happy Birthday, JPS – From Art Lien

Copyright Art Lien 2010 - Use including, but not limited to, posting on a website, publishing in a newsletter, or even printing on a personal greeting card is strictly forbidden without Lien's written permission.

More great stuff available at Lien’s website, CourtArtist.com.

U.S. v. Stevens Finally Decided

The Court has held by an 8-1 vote that a federal law criminalizing depictions of animal cruelty is “substantially overbroad,” therefore violating the First Amendment.  The opinion was written by Chief Justice Roberts; Alito dissented.

That’s the second Congressional law that the Court has struck down this term on First Amendment grounds.  The first was Citizens United.  This one, however, will be far less controversial.  In fact, this case pitted liberal value vs. liberal value: anti-restrictions on violent or obscene speech vs. animal rights protections.

This term’s big conservative value vs. conservative value case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, which pits federalism concerns against property rights, remains to be decided.

Fun, gloating fact: I attended both Stevens and Citizens United before I started F1@1F!

A Gift for Mr. Justice Stevens

My argument write-up on Christian Legal Society v. Martinez is now up at ABA Journal:

The justices might as well have emerged from behind the red curtains this morning singing “Happy Birthday (and Retirement)” to Justice John Paul Stevens.

From the justices’ questions at oral argument this morning in Christian Legal Society v. Martinez, it appeared as if the Supreme Court intended to begin its final sitting of the term by gifting Justice Stevens, the Court’s newly minted nonagenarian and retiree-designate, the opportunity to control how this morning’s case will be decided.

Read the rest here.  Check back tomorrow for my Vox Populi column from last night/this morning’s CLS line.

Pre-CLSQuoning

FAIL@1F

Excitement’s high for this morning’s cases, Christian Legal Society v. Martinez and City of Ontario v. Quon.

Back home now for a few thoughts, a warm shower, a quick eat, and a cheap suit.

• Man, I really miscalculated on this one.  My plan was to get out to the Court at 11pm so to beat the lone wolves that I expected would show up around 1am.  But around 7:45pm last night, while the First Lady of First One @ One First and I were cooking dinner and watching an episode of The Wire, Josh Blackman sends me a text message telling me that he heard about 30 people had already lined up on the First Street sidewalk.  Per this intelligence, the FLOF1@1F and I expedited our evening so to get me to the Court at 9pm.  The intelligence proved accurate.  I ultimately took placeholder #34.
• The first ones in line were a group of ten undergraduates from a constitutional law course at Eastern University in Radnor, PA.  They arrived at noon.  A few lone wolf law students from American University arrived a few hours later, followed at 6:30pm by a pack of Christian Legal Society members from across the country.  By dawn, the line wrapped around East Capitol.
• I got some good interviews for the Vox Populi column and a few decent videos for the next episodes of Supreme Court Side Walk.
• The sprinklers that terrorized me during my overnight for the Citizens United rehearing in September made their return at 1:23 this morning.  I only got a modest misting this time around.  The same can’t be said for those who dethroned me.
• It’s always too cold out there, no matter how warm it gets relative to January’s deepest freeze.

I’ll have my reports from inside and outside of the Court up at the ABA Journal tonight and tomorrow.  Stay connected to F1@1F for the links.

FAIL@1F

9pm and 30something in line for CLS and Quon. First group got here at noon.

Someone Hasn’t Been Reading F1@1F…

In today’s New York Times Week in Review section, Peter Baker writes of “Obama v. Roberts: The Struggle to Come“:

The urgency is greater this year since the Citizens United decision in January, in which the Roberts court threw out precedents to rule that corporations have First Amendment rights to spend money in election campaigns. Advisers said the ruling crystallized for Mr. Obama just how sweeping the chief justice was willing to be. Indeed, some around the president suspect that Chief Justice Roberts, after moving incrementally in his first few years on the bench, has taken a more assertive approach since Mr. Obama took office.

This assertion defies facts.  In fact, I began F1@1F to explore whether the opposite holds true–that Chief Justice Roberts has guided the Court more modestly under Democratic electoral dominance than he had at the start of his Chiefdom.  From F1@1F’s very first post:

During the 2006-07 term, the first full term in which both Chief Justice Roberts and Justice Alito served together, Republicans controlled the White House and both chambers of Congress.  Meanwhile, the Roberts Court aggressively pushed rightward on abortion, student speech, school desegregation, gender discrimination, and campaign finance.

The Court’s 2007-08 term proceeded alongside a divided government with a Republican President and Democratic majorities in the House and Senate.  The Court reflected the division: President Bush, seeking a legacy, saw a conservative interpretation of the Second Amendment win out in Heller; the Democratic Congress, elected in a wave of anti-war sentiment, found its hostility to Bush’s war on terror policies reflected in the Court’s granting habeas corpus rights to Guantanamo detainees in Boumediene.

Last term, which straddled the Bush and Obama presidencies, found the Court taking a blockbuster case in in September 2008 that threatened to invalidate a key civil rights provision of the Voting Rights Act of 1965, but pulled back with an 8-1 decision in June 2009 upholding the provision.

This term, the first one fully operating alongside a Democratic Presidency and Congress, is progressing in an almost post-partisan fashion, as if the conservative Court has taken to heart President Obama’s overtures to the Right unwelcome among Congressional Republicans.  The Court is reckoning with one case that pits liberal values against liberal values, another in which two conservative values clash; further, McDonald v. City of Chicago may result in a grand bargain in which the conservative Heller majority can extend its interpretation of the Second Amendment to the states by breathing new life into a clause of the Fourteenth Amendment that could strengthen constitutional protection for liberal causes.  In fact, the only case that threatens a drastic shift to the right in a politically salient issue is Citizens United, the campaing finance case I camped out for in September.

Since I wrote that in December, Citizens United has emerged, as expected, as the Court’s one big rightward expenditure of its political capital this term.  And although the McDonald oral argument put to death my speculation of a grand bargain between the Court’s liberal and conservative blocs, its result–incorporation of the Second Amendment to the states–will not cause a national backlash and political firestorm.

The OT09 docket’s conspicuous absence of any other red-hot button case is, in my opinion, hardly an accident. Roberts knows just how much–or little–political capital his Court possesses to achieve conservative gains under a Democratic electoral mandate, and he has picked his battles accordingly.  Baker’s sources are in plain error to use Citizens United as proof of a more aggressive, confrontational Roberts Court.

Baker’s article was not a total wash, however.  Noting the Chief Justice and the President’s public colloquy of late, the article concludes:

The debate between the men, by necessity, takes place in this way — indirectly, and soon through the confirmation hearing of a new nominee. Christopher Edley Jr., an Obama adviser and dean of the law school at the University of California at Berkeley, said it was a shame the two could not have at it one on one.

“Televise this chief justice and this president on stage at the Kennedy Center for three hours talking about the role of government and the future of our polity,” Mr. Edley said. “This historic clash of intellectual titans would be the most powerful civics lesson since the Federalist Papers, and we could sure use it.”

We sure could.

UPDATE: Meanwhile, in The New Republic, Barry Friedman and Jeff Rosen support what I’ve written here several times over (or the other way around – as they are law professors who write books, not blogs):

How will the Supreme Court respond to these attempts to enlist it in a war with the president and Congress? If history is any predictor, the justices won’t be interested in a sustained assault. As both of us have written in recent books, on the big issues, over time, the Court tends to come into line with public opinion. Think here of gay rights, women’s rights, and abortion. And when the Court has wandered outside the mainstream–on issues like the death penalty or economic regulation–it has quickly retreated after encountering resistance from the public, Congress, or the president. The Court, in other words, is very sensitive to the possibility of backlash against its actions; and if anything, the heated reaction to its recent decision striking down campaign finance restrictions on corporations is only likely to make it more so.

[...]

Which brings us to the Roberts Court. Is it likely to stand in the way of Obama and the Democrats’ agenda? What will happen, in particular, with health care?

We aren’t seers, and a lot can happen before any of this makes its way to the Court. But nothing we’ve seen—including January’s decision in Citizens United—leads us to believe that the Court is likely to behave differently in the future than it has in the past.

Which means that the Court is going to be hesitant to launch a sustained challenge to the core of the Democratic agenda. And in the unlikely (but not impossible) event that it does decide to launch a sustained challenge, the justices will find themselves under attack in return as long as the Democrats still have popular support. If that happens, history suggests that such attacks on the Court will eventually precipitate some kind of judicial retreat.