I have two short articles in this week’s Christian Science Monitor. One, an info briefing on the states’ lawsuit against the PPACA, has just been posted online:
President Obama signed the Patient Protection and Affordable Care Act on March 23. Within minutes, 14 state attorneys general filed lawsuits in federal courts in Virginia and Florida challenging the constitutionality of the law’s “individual mandate,” which will require nearly every American to buy health insurance or face annual fines.
Although the individual mandate doesn’t kick in until 2014, legal challenges to the mandate have been met with some sympathy in court. As these cases move forward, it’s worth taking another look at the suits.
Among the fourteen cases the Supreme Court added to its docket today, FCC v. AT&T most caught my attention. The case asks whether corporations can claim personhood so to qualify for the Freedom of Information Act’s Exemption 7(C), which exempts from mandatory disclosure records collected for law enforcement purposes when such disclosure could “reasonably be expected to constitute an unwarranted invasion of personal privacy.”
The Third Circuit ruled that because the statute defined “person” as an “individual, partnership, corporation, association, or public or private organization other than an agency,” then corporations were entitled to 7(C)’s “personal privacy” exemption. The FCC’s petition for certiorari, signed by then-Solicitor General Elena Kagan–who will be recused for this case–argued that the Third Circuit’s ruling upset a thirty-five year understanding that the “personal privacy” exemption only applied to individuals.
To bolster their case, the FCC cited then-Professor Scalia’s 1981 testimony before Congress that Exemption 7 did not protect “associational or institutional” privacy from mandatory disclosure upon request.
Although this case will ultimately turn on statutory construction, it still hearkens back to last year’s Citizens United, which established that corporations are legal persons whose independent campaign expenditures cannot be limited under the First Amendment’s free speech protections.
What makes this case even more interesting is that next Tuesday, the Court will hear argument in NASA v. Nelson, which asks whether a government employee has a right to “informational privacy” that allows him to withhold information in government background checks. Specifically at issue is whether an employee, once established he has done drugs, may then refuse to disclose if he has obtained treatment for the drug use. Justice Kagan will also recuse herself in this case.
Informational privacy is hardly a deeply established fundamental right. Even if it were, and if the Court’s conservative bloc embraced it, drug-tinged cases tend to soften the justices’ principles. In Gonzales v. Raich, Justice Scalia voted to approve Congress’s Commerce Clause power to ban the personal cultivation of medical marijuana, despite his earlier votes to restrict the Commerce Clause’s scope and later votes to cabin the power of the Necessary and Proper Clause. And in Morse v. Frederick, Chief Justice Roberts, who takes a largely robust view of the First Amendment, found a high school student’s unfurled banner reading “BONG HiTS 4 JESUS” to be unprotected pro-drug speech under the Court’s First Amendment-for-students doctrines.
In contrast to AT&T, the issue in NASA is not statutory, but constitutional. Further, it is grounded in an individual’s Fifth Amendment Due Process rights, not in one’s First Amendment rights, which was the flashpoint of last year’s corporate personhood contest. Still, if the Court rejects an individual’s right to informational privacy, but embraces a corporation’s ability to withhold information under the personal privacy exemption, expect some commentators’ heads to explode.
The ABA Journal has just published on their website my feature essay, “By Dawn’s Light,” for the October 2010 print issue. The piece is a retrospective of my experiences on the Court’s sidewalk through this past winter and spring.
From my first morning on Jan. 11 until my final overnight on June 27, I witnessed relationships and communities being formed among men and women whose personal engagement with the American system of government transcended their political differences.
I wasn’t always first in line, despite my aspirational title (I was six for 10, for the record), but whether I was first in line, second, third, fifth or 34th, I found all around me new friends cutting through the cold by the warmth of each other’s company.
Loyal F1@1F readers will find some familiar tableaus in the story, but it serves as a good refresher on what’s to come this next term. I invite new readers clicking over from the essay to plumb F1@1F’s archives for my real-time reflections and photos on the days of my campouts.
As the first day of oral argument on October 4 draws near, the Court will reassemble for its annual “Long Conference” on September 27 and the investiture of Elena Kagan on October 1. Somewhere amid this preseason activity, the justices will pose for their class picture, taken only when a new justice joins the Court.
The Oyez Project has these photos going all the way back to the early Chase Court of 1865. Through the class pictures, the Court’s institutional continuity is set before us in plainly human terms. Young men and women share the stage with their elders, only to become elders themselves. Sometimes a single justice links generations disappeared and developing, such as John Paul Stevens, William J. Brennan, William O. Douglas, Oliver Wendell Holmes, and Stephen J. Field.
Naturally, all eyes will be on Justice Kagan for this year’s class photo, as they were on Justice Sotomayor for last year’s. But a question for both comes to mind: neck doily or no neck doily? For Sotomayor’s investiture and the class photo, she wore the neck doily–or jabot–that Justices Ruth Bader Ginsburg and Sandra Day O’Connor had long donned. Sotomayor kept the jabot on for Citizens United, her first oral argument, but when the Court reconvened a month later, she had done away with the doily for the unadorned black robe.
So will Sotomayor reapply the doily for this year’s class photo? And what about Kagan? Going without it is not without precedent: although O’Connor introduced the jabot, she went without it for every class picture until Ginsburg joined the Court. But surely neither Sotomayor nor Kagan will want to return Ginsburg to her lonely doilihood of the O’Connor-Sotomayor interregnum.
Speaking of Ginsburg, this year’s photo will be her first seated in the front row. Given her diminutive height, another question emerges. If her feet don’t touch the ground, will she bring back the Fuller Foot Pillow?
As F1@1F gears up for Justice Kagan’s debut, revealed rocket scientists, überviolent video games, fire-and-brimstone funeral picketers, Costco-wholesaled watches, California prison overcrowding, and death row DNA testing, please consider being my Blawg 100 Amici for the ABA Journal’s annual lawblog rankings. Here are the guidelines:
[T]ell us about a blawg—not your own—that you read regularly and think other lawyers should know about. If there is more than one blawg you want to support, feel free to send us more amici through the form. We’ll be including some of the best comments in our Blawg 100 coverage. But keep your remarks pithy—you have a 500-character limit.
So if you have enjoyed my reports from oral arguments, stories from the Supreme Court Side Walk, and general analysis of SCOTUS and SCOTUS-potential issues, click on over and give F1@1F 500 characters of love.
F1@1F has made Law.com columnist Robert Ambrogi’s list of 15 new legal blogs that “prove the blawgosphere is alive and kicking”:
Call me late to the party. Although this is my first time writing about this blog, it has already been mentioned in The New York Times and the ABA Journal and on National Public Radio, to name but a few places. Georgetown 3L Mike Sacks started it in January with this introduction: “This semester, I have no morning classes. As such, I will be taking advantage of living only minutes from the Supreme Court to pursue a rather unorthodox extracurricular activity: reporting from the court as the first one in line at One First Street.” This he did — and did well. Now, the semester is over, but the blog continues.
Thank you, Robert; and yes, the blog does continue, even if at a slower pace for the moment. But some big things are teed up for this coming term. More later.