FIRST ONE @ ONE FIRST

One Year @ First One @ One First

Posted in Non-justiciable by Mike Sacks on December 30, 2010

In a sleepless frenzy one year and twentyish hours ago, I created First One @ One First.  I had no idea what to expect except for the inevitable freezing cold awaiting me a week and a half later on the Supreme Court sidewalk.

What a difference a year makes.  I’ve learned that I could endure those freezing cold mornings, made many new friends, been given some fantastic encouragement from rockstars of the SCOTUS press and bar, became a freelance print reporter, finished law school, and, well:

All this and more has made 2010 a hell of a thrilling year.  But none of it, except for that inevitable freezing cold, would have been possible without the support and feedback of my readers, mentors, family, and the FLOF1@1F.  Thank you for visiting, subscribing, commenting, linking, correcting, and emailing out here in the ether.  And thank you for meeting, speaking, freezing, enduring, debating, and exulting with me out there on the sidewalk.  All of these contacts with you have been my true pleasure.

While my bar studies may keep me from the sidewalk over the next two months, I hope to spend whatever breaks I take providing commentary–both mine and yours, if you are so generous–on arguments and decisions.  Further, I will be happy to post any reports, photos, and videos from those who do attend certain arguments that are of interest to F1@1F.

Once again, my deepest thanks to everyone who has dropped by this year.  Here’s to 2011!

Bond and The Bar

Posted in Anticipation, Law and Politics by Mike Sacks on December 29, 2010

On February 22, while I’ll be locked in a lecture hall taking the bar exam, the Supreme Court will be hearing oral argument in what may be the most salacious suit of the term.  Bond v. United States appears so factually, legally, and politically wild that it almost makes me question my taking that term off during my 2L year: had I stayed at Georgetown rather than go to ABC News, I would have graduated in May, taken the bar in July, and been able to be at the Court in February to hear the lawyers tell the tale of a scorned woman seeking solicitude for her hell-fury under the protection of the Tenth Amendment.

In his brief for Carol Anne Bond, Paul Clement tells the story:

In 1995, petitioner moved with her mother and sister to the United States, where she became very close friends with Myrlinda Haynes, a woman who was also a Barbados native.  Haynes owned a home in nearby Norristown, and petitioner came to consider and treat Haynes as a sister.

In 2006, Haynes announced that she was pregnant.  Unable to bear a child of her own, petitioner was excited for her closest friend.  Her excitement did not last, however, for petitioner soon discovered that her own husband was the child’s father.  This double betrayal brought back painful memories of her own father’s infidelities and caused petitioner to suffer an emotional breakdown…

In the midst of this emotional breakdown, petitioner became fixated on punishing Haynes for her betrayal. Petitioner took a bottle of 10-cholo-10H-phenoxarsine (an arsenic-based chemical) from her employer, the chemical manufacturer Rohm & Haas, and she purchased a vial of potassium dichromate through Amazon.com from a photography equipment supplier.  Petitioner knew that the chemicals were irritants and believed that, if Haynes touched them, she would develop an uncomfortable rash.  Both chemicals are toxic and, if ingested or exposed to the skin at sufficiently high doses, can be lethal.

According to the government, petitioner went to Haynes’s home on several occasions between November 2006 and June 2007 and spread chemicals on Haynes’s car door handle, mailbox, and apartment doorknob.

These facts alone are enough to send reporters rushing to the Court, but the love triangle and poisonous revenge are backed up by crazy law and strange meta-bedfellows.

Rather than be subjected to a state charge of assault, Bond’s use of toxic chemicals against her now-former best friend got the Feds involved.  They charged her with a violation of a federal statute that Congress passed in obligation to an international treaty entitled, “Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction.”  A grand jury indicted her under the statute’s sweeping plain language – the chemicals fit the law’s definition of banned substances “not intended by defendant Bond to be used for a peaceful purpose” – and she pled guilty after the federal judge rejected her constitutional claims against the law as applied to her.

And it gets weirder.  The scorned woman turned terrorist-in-law invoked her Tenth Amendment rights, something that’s only recently come back in vogue with the rise of the Tea Party and the Affordable Care Act.  Bond argued to the Third Circuit that the federal criminal law used to convict her was beyond Congress’s Article I authority and therefore invaded the province of rights reserved to the states and the people.  The appeals court did not reach the merits, ruling instead that Bond, as an individual, did not have standing to bring her Tenth Amendment claim absent the state or its officials as parties to her suit.

By the time Bond petitioned the Court for review, however, the United States switched sides, officially telling the justices to let her sue.  The Solicitor General urged the Court to GVR–grant, vacate, remand–the case without oral argument.  The Court disagreed and ordered oral argument.

With the Tenth Amendment and Article I limits swirling in the air these days, it is striking to see the SG in this case on the same side as Bond’s other amici: Alabama, Colorado, Florida, South Carolina, Texas, and Utah (all parties to the health care challenge awaiting decision in Florida); CATO Institute; Gun Owners of America; and the Eagle Forum.

Ultimately, this case is about Bond’s standing to bring her Tenth Amendment challenge, not the merits of that challenge.  Still, this case is a thorny thicket of jurisprudential themes.  Textually, the law does apply to Bond.  But will the patent absurdity of this law’s use against Bond compel the Court’s more textualist justices to put aside their interpretive principles?  Perhaps because this question is embedded in a contest between conservative values–deference to federal law and order efforts versus the commitment to a limited federal government–the Court’s right flank may with an easier conscience forego the letter of the law for its more equitable spirit towards Bond.

The oral argument itself may simply be a formality so that someone may argue for the wisdom of the position that the United States has since abandoned rather than GVR the case without the dignity of a proper adversarial process.  That someone who the justices assigned to adopt the orphaned argument for the Government is Stephen R. McAllister, former state solicitor general of Kansas and dean of the the University of Kansas’s law school.  Accordingly the advocates, like the arguments they will be making, will embody a clash of legal conservatism: McAllister and Clement launched their careers from clerkships in the chambers of Justices Thomas and Scalia, respectively.

Bond brings layer upon layer of exciting stuff, from its own facts and law to its place in the moment’s larger legal-political milieu.  I guess in lieu of attending the oral argument, I will just have to inspire myself with Bond’s focused rage and sophisticated legal arguments so to unleash the fury on the bar exam.

F1@1F Featured on Newsy.com

Posted in Endorsements by Mike Sacks on December 28, 2010

Newsy, which puts together video news reports based on trending stories over print, broadcast, and the internet, has included F1@1F in its clip, “Liberal Voices Dominating Debate in U.S. Supreme Court.”  Give it a watch above (F1@1F’s mention starts at 1:35) and be sure to visit the site to see Newsy’s good work across all areas of interest.

Tagged with:

F1@1F in New York Times, Green Bag

Posted in Endorsements by Mike Sacks on December 27, 2010

The First Lady of First One @ One First and I just returned home after a day at the National Museum of American History to find the Internet bearing two holiday gifts for F1@1F:

  • For the third time this year, F1@1F will be in the pages of the New York Times.  Adam Liptak’s Sidebar column for tomorrow’s paper, in which he writes about Sotomayor’s spreading her liberal wings this term, concludes with references to this “amusing and astute post.”  Thank you for all of your support this year, Adam!
  • In addition, my ABA Journal column from the final day of the 2009-10 term is among the “Recommended Reading” in this year’s edition of the Green Bag Almanac and Reader (see page 9).  I’m quite humbled and honored to be listed among some giants in Supreme Court reporting, and only hope my luck continues into 2011.

Thanks to all of my readers for making 2010 an extraordinary year.  Keep your eye on the site later this week for a post commemorating F1@1F’s one year anniversary.

Greenhouse & The Roosevelt Rubicon, Redux

Posted in Clairvoyance, Law and Politics by Mike Sacks on December 17, 2010

Linda Greenhouse has a compelling Opinionator column today at the New York Times that concludes that Chief Justice Roberts, not Justice Kennedy, may be the key vote in the individual mandate cases that will ultimately come before the Court.  Thus continues the Great 2010 F1@1F-Greenhouse Mind-Meld.

Reminding readers that Roberts’s mentor and predecessor, Chief Justice Rehnquist, aborted his own “federalism revolution” in 2003’s Nevada Department of Human Resources v. Hibbs, Greenhouse goes on to examine Roberts’s own role as the fifth vote to last year’s broad, Breyer-written federalism case, United States v. Comstock.  She concludes:

In his decision this week, Judge Hudson also mentioned the Comstock case, endeavoring to show why it didn’t save the statute. In my view, his effort to wish the case away was unpersuasive, but my view is not the one that matters. The view that ultimately may count the most is that of Chief Justice Roberts. As everyone knows, he was once William Rehnquist’s law clerk. So my question, as the health care debate continues on its path to the Supreme Court, is this: When John Roberts thinks about his former boss and mentor, which Rehnquist does he see? The one who started the federalism revolution, or the one who ended it?

Without my gunning for her attention (a/k/a “the Greenhouse Effect) and surely without her looking to F1@1F, Greenhouse and I have been on the same wavelength, absent reference to Rehnquist’s ghost, for nearly a year now.

F1@1F in January:

For any challenge to the health care legislation, at least one of the current Court’s conservatives–my guess is Roberts himself–will recognize that the political moment, at least in terms of an individual mandate for all Americans to have health insurance, is not ripe for restoring the reign of the Constitution in Exile.

Greenhouse in March:

John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.

F1@1F in May, post-Comstock:

Of course, Roberts may have simply agreed from the start with Breyer and the liberals.  But even if such a thought was ideologically plausible prior to the announcement of Comstock, it just doesn’t make strategic sense for the Chief to entrust the opinion to Breyer.  However, if the Chief was in the majority and did assign the opinion to Breyer, it could have been to send a message to those hoping the Court will strike down Obamacare: abandon all hope ye who enter here, for the Roberts Court will not cross the Roosevelt Rubicon.

After Schwarzenegger v. EMA, I’m no longer as confident in Comstock as dispositive of the Chief’s vote on the individual mandate.  Before oral argument in EMA, no one could see any daylight between Roberts’s robust First Amendment opinion for the Court in Stevens and the similar violence-as-obscenity facts in EMA, but Roberts made clear from the bench that he believed that Stevens, however sweeping in its language striking down Congress’s ban on depictions of animal cruelty, did not touch the constitutionality of California’s ban on the sale of violent video games to minors.  Accordingly, in the health care cases, Roberts already has a blueprint in Judge Hudson’s decision for distinguishing Comstock away, however apposite Comstock might seem.

Still, history and politics will be sitting like massive gorillas in the room–indeed, every room: chambers, conference, court–when this case finally reaches the Court.  Not only would a decision against the mandate mark the Court’s deepest incursion into pre-1937 territory since, well, 1936, but it would also come during a Presidential Election year.  A conservative majority ruling against the liberal incumbent’s signature first-term legislation will be an inter-branch collision not seen since, you guessed it, 1936.  The decision itself will fast become campaign fodder for Obama to cast the Court as unprincipled political actors hell-bent in their conservative activism to collide with the elected branches and stand athwart the forward march of history screaming “NO!”

How unseemly it all could be.

And let’s not forget that unlike Citizens United, which sat alone on last term’s docket among a bunch of less-than-massive cases, the health care cases may very well reside on the same docket as the Prop 8 case, the University of Texas affirmative action case, the Arizona immigration case, and maybe a Nebraska abortion case.  The Court will have to pick its hot button to push in a deeply political moment, and I can’t see the Chief selecting the one that reduces to rubble a cornerstone of modern American jurisprudence.

The Future is Here

Posted in Clairvoyance, Law and Politics by Mike Sacks on December 13, 2010

This morning C-SPAN released a few choice clips from its interview with Justice Kagan in anticipation of its airing the full interview this coming Sunday night.  In the above clip, Justice Kagan speaks about her respect for Chief Justice Roberts.

Meanwhile, if you go over to the Supreme Court’s page for this term’s opinions related to orders of the Court, you’ll see this:

Either Justice Alito or Justice Sotomayor has been a part, if not an author, in every one of those opinions, all but one dissents from denials of certiorari.

This term, I’ve been thinking quite a lot about these two pairings–Chief Justice Roberts and Justice Kagan, Justice Alito and Justice Sotomayor.  At oral argument as well as in the few opinions of this term, it has become clear that they are developing doppelgänger demeanors.

Roberts and Kagan conduct themselves like suave assassins, devastating advocates without compromising their gentility.  They apprenticed at the feet of the Court’s then arch-partisans–he, Justice Rehnquist; she, Justice Marshall–and now possess those two men’s collegiality without their more prickly public personas.  Indeed, Roberts and Kagan, both bred for leadership at Harvard Law, are public creatures: the Chief and the Dean.  Firm but polished, one can see these two in twenty years as gracefully grayed totems of conservative and liberal jurisprudence.

Alito and Sotomayor, on the other hand, are their sides’ enforcers.  Appearing rough around the edges, they send clear, aggressive messages, often on behalf of their comrades, but sometimes alone on principle.  In their self assurance that comes from years of practice in the lower courts, they seem not to have much interest in institutional niceties when the law is disobeyed or justice is disregarded.  Both Princeton and Yale Law grads, they took active roles in their institutions’ internal battles over coeducation and affirmative action.  Rather than skirt controversy and stay quiet to maintain squeaky clean public records, they took stands over the identity politics of their days that have continued into 21st century America.  It is no wonder, then, that Alito and Sotomayor have had no hesitance going on record to dissent from denials of certiorari, even if such opinions were once seen as rare peeks behind the curtain saved only for a justice’s irrepressible outrage.

The massive cases about health care, gay marriage, affirmative action, and abortion bubbling up to the Supreme Court in the next few years will mark the final overlap between the old Court and the new: the septuagenarians–Ginsburg, Scalia, Kennedy, and Breyer–will have as much time remaining in their twilight on the bench as Roberts, Alito, Sotomayor, and Kagan will have spent so far on it.   For those cases, we will rightly focus on Justice Kennedy for the bottom-line prognostication and ultimate pronouncements.  But we should absolutely save some of our peripheral vision for how our four youngest justices conduct themselves at argument and in print, as those cases will be the crucibles upon which their careers will be characterized for the next generation.

This piece is cross-posted at The CockleBur.

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