FIRST ONE @ ONE FIRST

Jost on Cameras in the Courtroom

Posted in F1@1F Friends by Mike Sacks on January 24, 2011

Ken Jost, the Supreme Court editor at CQ Press, has put together a lengthy and comprehensive analysis on all things “Cameras in the Court” in a new report for CQ Researcher.  I’ve seen a copy–which includes a sidebar interview with me among its 20-plus pages–and the report really achieves the impossible by making the otherwise well-trod topic quite interesting by exploring its unnoticed nuances and taken-for-granted history.  An excerpt introducing the report is available at CQ Researcher’s blog:

[E]xcept for the working press, members of the Supreme Court bar and invited guests, all visitors to the Supreme Court face a time-consuming process in trying to see the justices in action. Would-be spectators typically line up hours in advance to claim one of the 250 seats available for the general public. At least 50 spectators are allowed to stay for an entire, hour-long argument, but others are ushered in for only a few minutes.

Camera-access advocates have been making their case over the past decade in large part by emphasizing the public’s limited access to the courtroom. “There is no reason why in the 21st century the American people should not be able to watch their democracy in action, and the Supreme Court should not be an exception,” says Nan Aron, president of the liberal Alliance for Justice. The alliance was part of a 46-group coalition led by the American Civil Liberties Union (ACLU) that urged the lame-duck Congress last year to pass legislation either requiring or calling on the Supreme Court to permit live TV coverage.

The pressure from Congress and outside groups has helped prompt the court to make audio recordings of arguments available sooner and more widely than in the past. But the justices have not allowed camera coverage of proceedings, whether live or delayed.

The three justices vocally opposed to cameras — Antonin Scalia, Anthony M. Kennedy and Clarence Thomas — warn that TV coverage could hurt collegiality on the court and endanger the justices’ personal security. Scalia has also complained that TV coverage would reduce the Supreme Court to “entertainment.”

This excerpt, however, hardly does justice to the breadth and depth of the full report, which you can purchase in print or electronic format at CQ Press.

My own take on the topic can be found here and here.

Scalia Returns to Form, Thomas Sucker Punches Scalia’s Prodigality

Posted in Case Reports by Mike Sacks on January 19, 2011

Today’s unanimous decision in NASA v. Nelson–see here for my oral argument recap from October–held that the government has the power to conduct full background checks despite the argument by employees of NASA’s Jet Propulsion Lab that parts of those checks violate their right to “informational privacy.”

Writing for six members of the Court, Justice Alito refused to address whether such a right actually exists, and instead assumed its existence for the sake of rejecting its application to the JPL employees’ claims.  Justices Scalia and Thomas, however, refused to go along with this compromise resolution.  Instead, Scalia, in a separate concurrence joined by Thomas, returned to form with a bruising critique of the Court’s “substantive due process” jurisprudence–the very jurisprudence he adopted to extend the Second Amendment to the states in last year’s oral argument and plurality opinion for McDonald v. City of Chicago.

Nevertheless, Justice Thomas wouldn’t let Scalia return to the fold without reminding Scalia of his last year’s prodigality from their bedrock principles.  I’ll let Josh Blackman take it from here:

Scalia’s opinion returns to his usual antagonism towards substantive due process. Not even a single citation to McDonald. No attempt to reconcile his aberrant opinion in the famed gun case. I suppose that McDonald will be the new Gonzales v. Raich, and we should “just get over it.” (that is Scalia’s common refrain when people ask him to reconcile Raich). As recently as last week, Scalia joined a Thomas dissent from denial of cert, other than a footnote that relied on Raich. As I have written at great length, Scalia’s opinion cannot be explained here. His position is at odds with two decades of jurisprudence, and he makes no effort to explain it. While Thomas cites to McDonald, Scalia ignores it. Scalia’s acquiescence to substantive due process in McDonald cannot be reconciled with his animosity towards that “plastic” standard.

Justice Thomas wrote his own curt one paragraph concurring opinion in judgment.

“I agree with JUSTICE SCALIA that the Constitution does not protect a right to informational privacy. Ante, at 1 (opinion concurring in judgment). No provision in the Constitution mentions such a right. Cf. Lawrence v. Texas, 539 U. S. 558, 605–606 (2003) (THOMAS, J., dissent-ing) (“I can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy . . .” (internal quotation marks and brackets omitted)). And the notion that the Due Process Clause of the Fifth Amendment is a wellspring ofunenumerated rights against the Federal Government “strains credulity foreven the most casual user of words.” McDonald v. Chi-cago, 561 U. S. ___, ___ (2010) (THOMAS, J., concurring inpart and concurring in judgment) (slip op., at 7).

What does Thomas’ concurring opinion add? Thomas focuses on the fact that the due process clause does not protect unenumerated rights, suggesting that it can protect enumerated rights. Perhaps he is trying to provide cover to Scalia, who joined McDonald’s due process opinion. As I have theorized before, because the Second Amendment is actually enumerated, Scalia may find this approach palatable. I find this distinction unpersuasive. As I have argued before, whether the right is enumerated, or unenumerated, the Court still needs to rely on some nebulous notion of liberty. Thomas may be trying to explain Scalia’s opinion, where Scalia would not do so specifically. In my mind, its not effective. Regardless, not even Thomas would accede to relying on the due process clause to protect an enumerated right. To quote my good friend Mike Sacks, this concurring opinion can best be characterized as a “sucker punch.” Ouch.

The standoff continues.

Is the End Near for Affirmative Action?

Posted in Clairvoyance, Law and Politics by Mike Sacks on January 18, 2011

The Fifth Circuit has just handed down its opinion in Fisher v. University of Texas upholding UT-Austin’s race-conscious admissions for those not among the auto-admitted top ten percent of their high school classes.  I flagged this case some months ago and have been eagerly awaiting its result.  In August, I devoted an entire post to the prospect of the Roberts Court granting certiorari to Fisher‘s inevitable petition and, in turn, reversing precedent to rule higher education affirmative action unconstitutional.

Senior Judge Patrick Higginbotham‘s opinion depends entirely on the Supreme Court’s 2003 decision, Grutter v. Bollinger, in which Justice Sandra Day O’Connor, writing for herself and the Court’s liberal bloc, reaffirmed the constitutionality of affirmative action in higher education.  While Justice Samuel Alito has not faced a higher-ed affirmative action case since arriving on the Court, his vote in 2007’s Parents Involved and his generally conservative voting pattern overall strongly suggest that he will not vote in accord with his predecessor’s opinion in Grutter.

The Fisher decision notably includes Judge Emilio M. Garza‘s 30 page anti-Grutter broadside, more politely labeled as a “special concurrence.”  Judge Garza, a Reagan appointee to the district court, a George H.W. Bush appointee to the Fifth Circuit, and a runner-up to Justice Clarence Thomas for Justice Thurgood Marshall’s seat on the Supreme Court in 1991, apparently wrote his special concurrence specifically for the consumption of the current Court’s conservative bloc–including Justice Anthony Kennedy, who dissented in Grutter and concurred in Parents Involved.

Garza’s concurrence in Fisher begins:

Whenever a serious piece of judicial writing strays from fundamental principles of constitutional law, there is usually a portion of such writing where those principles are articulated, but not followed. So it goes in Grutter, where a majority of the Court acknowledged strict scrutiny as the appropriate level of review for race-based preferences in university admissions, but applied a level of scrutiny markedly less demanding. To be specific, race now matters in university admissions, where, if strict judicial scrutiny were properly applied, it should not.

Today, we follow Grutter’s lead in finding that the University of Texas’s race-conscious admissions program satisfies the Court’s unique application ofstrict scrutiny in the university admissions context. I concur in the majority opinion, because, despite my belief that Grutter represents a digression in the course of constitutional law, today’s opinion is a faithful, if unfortunate, application of that misstep. The Supreme Court has chosen this erroneous path and only the Court can rectify the error. In the meantime, I write separately to underscore this detour from constitutional first principles.

Justice Kennedy spoke to this very “misstep” in his Grutter dissent, arguing not that affirmative action is unconstitutional, but rather that the majority unlawfully loosened its own strict scrutiny standard for such race-conscious admissions programs.  Kennedy’s pivotal position is not lost on Garza, as evidenced in his explicit invocation of the justice:

After finding that racial diversity at the University of Michigan Law School (“Law School”) was a compelling governmental interest, the Court redefined the meaning of narrow tailoring. See Grutter, 539 U.S. at 387 (Kennedy, J., dissenting) (“The Court, however, does not apply strict scrutiny. By trying to say otherwise, it undermines both the test and its own controlling precedents.”); see generally Ian Ayres & Sydney Foster, Don’t Tell, Don’t Ask: Narrow Tailoring After Grutter and Gratz, 85 TEX. L. REV. 517 (2007). The Court replaced narrow tailoring’s conventional “least restrictive means” requirement with a regime that encourages opacity and is incapable of meaningful judicial review under any level of scrutiny.

Ultimately, Garza cites Kennedy five times despite Garza’s own more hardline opposition to affirmative action, which he spells out in conclusion:

My disagreement with Grutter is more fundamental, however. Grutter’s failing, in my view, is not only that it approved an affirmative action plan incapable of strict scrutiny, but more importantly, that it approved the use of race in university admissions as a compelling state interest at all. [...]

Yesterday’s racial discrimination was based on racial preference; today’s racial preference results in racial discrimination. Changing the color of the group discriminated against simply inverts, but does address, the fundamental problem: the Constitution prohibits all forms of government-sponsored racial discrimination. Grutter puts the Supreme Court’s imprimatur on such ruinous behavior and ensures that race will continue to be a divisive facet of American life for at least the next two generations. Like the plaintiffs and countless other college applicants denied admission based, in part, on government-sponsored racial discrimination, I await the Court’s return to constitutional first principles.

In so writing, Garza, who could have been the Court’s first Hispanic justice, makes sure to appeal not only to Justice Kennedy, but also to Justices Scalia and Thomas, the latter of whom has been a vocal opponent of affirmative action on and off the bench.  Neither Chief Justice Roberts nor Justice Alito have yet voiced their opinions on higher education affirmative action from their perches on the Supreme Court, but Roberts’s concluding aphorism in Parents Involved, which was joined by Justices Scalia, Thomas, and Alito, is instructive towards those seeking to divine the two George W. Bush appointees’ votes in Fisher.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice Roberts famously wrote in Parents Involved.  Justice Kennedy agreed to disagree with the statement’s simple certitude, filing his own concurrence in the judgment that put forward his more accepting–but still quite restrictive–take on race-conscious government measures.  As such, Judge Garza was smart in addressing the Court’s entire conservative bloc in his special concurrence: either way, Grutter‘s days are numbered.  Just as Citizens United reversed McConnell v. FEC and Gonzales v. Carhart all but wiped out Stenberg v. Carhart, Fisher will find the Roberts Court once again doing away with an O’Connor-backed, 5-4 precedent by the new 5-4 reality.

I’ve said it before and I’ll say it again: next term is going to be a doozy.

This piece is cross-posted at The CockleBur.

Friend of F1@1F Ryan Malphurs in WaPo

Posted in F1@1F Friends, Supreme Court Side Walk by Mike Sacks on January 17, 2011

In this morning’s Washington Post, Bob Barnes features Ryan Malphurs’s newly-published study on the effects of laughter in the Supreme Court:

The Texas litigation consultant studied all the notations of laughter during the court’s 2006-2007 term, and discovered a few more himself while listening to tapes.

He found that fewer than half the comments were directed to the lawyer in front of the justices, or even to the argument he or she was making.

The rest were self-referential, or about the court, or about some third party, such as Congress or government in general.

In scholarly fashion, Malphurs – who studied the court for his communications dissertation at Texas A&M – looked for deeper meaning:

“The justices’ laughter diminishes formal control and power barriers, facilitating communication amongst themselves, between the justices and advocates, and with the audience members as well.”

I met Ryan on the Supreme Court sidewalk before the first day of the term, where he gave me a preview of this study as we paced in front of the Court trying to keep warm.  He stayed in line for the rest of that first week and later, in a post for F1@1F, reflected on his night with the crowd for Snyder v. Phelps.

Congratulations on the great press, Dr. Malphurs, and keep up the great work!

UPDATE (1/24/11): Adam Liptak of the New York Times gives Malphurs’s study a look.

Kagan’s First Opinion; Scalia cites Foreign Law

Posted in Case Reports by Mike Sacks on January 11, 2011

Just a few quick thoughts before I get back to bar studies:

  • Justice Kagan’s first opinion is in the first case she heard on the Supreme Court.  True to tradition, it’s a dog of a case.
  • Justice Scalia is the lone dissent, breaking from the tradition of unanimity for a new justice’s first opinion.  Last year, Justice Thomas concurred in part in Justice Sotomayor’s first opinion.  Does two years away from the tradition mean it’s no longer a tradition?
  • Kagan wasted no time getting into a footnote scuffle with Scalia over the textual relevance of consulting the IRS’s “Collection Financial Standards”:
    • Kagan, fn7 – “Because the dissent appears to misunderstand our use of the Collection Financial Standards, and because it may be important for future cases to  be clear on this point, we emphasize again that the statute does not “incorporat[e]” or otherwise “impor[t]” the IRS’s guidance. Post, at 1, 4 (opinion of SCALIA, J.).  The dissent questions what possible basis except incorporation could justify our consulting  the IRS’s view, post, at 4, n.,  but we think that basis obvious: The IRS creates the National and Local Standards referenced in the statute, revises them as it deems necessary, and uses them every day.  The agency might,therefore, have something insightful and persuasive (albeit not controlling) to say about them.
    • Scalia, fn* – “The Court protests that I misunderstand its use of the Collection Financial Standards.   Its opinion does not, it says, find them to beincorporated  by the Bankruptcy Code; they simply “reinforc[e] our conclusion that . . . a debtor seeking to claim this deduction must makesome loan or lease payments.”  Ante, at 10.  True enough, the opinionsays that the Bankruptcy Code “does not incorporate the IRS’s guidelines,” but it immediately continues that “courts may consult this material in interpreting the National and Local Standards” so long as itis not  “at odds with the  statutory language.”   Ibid.  In the presentcontext, the  real-world difference between finding  the guidelines incorporated  and finding it appropriate to consult them escapes me, since I can imagine no basis for consulting them unless Congress meant them to be consulted, which would mean they are incorporated.  And without incorporation, they  are  at odds  with the statutory language, which otherwise contains no hint that eligibility for a Car Ownership deduction requires anything other than ownership of a car.”
  • Does citing midcentury UK law count as a dreaded citation to foreign law?  Scalia: “The canon against superfluity is not a canon against verbosity.When a thought could have  been expressed more concisely, one  does not always have to cast about for someadditional meaning to the word or phrase that could havebeen dispensed with.  This has always been understood.  A House of Lords opinion holds, for example, that in  the phrase “ ‘in addition to and not in derogation of ’ ” the last part adds nothing but emphasis.  Davies v. Powell Duffryn Associated Collieries, Ltd., [1942] A. C. 601, 607.”

Back to the barstuffs.

The Second Amendment: Ramifications of Repeal

Posted in Law and Politics by Mike Sacks on January 10, 2011

The shooting of Representative Gabby Giffords in Arizona this weekend and the flurry of constitutional commentary upon the start of the 112th Congress–including talk of repealing or altering the 14th, 16th, and 17th Amendments and, thanks to Justice Scalia, a renewed call for an Equal Rights Amendment–has led me to think about what would happen if there was a push for a new constitutional amendment that would repeal the Second Amendment (2A).  Indeed, just a few of hours ago, Elie Mystal at Above the Law went there.  The more I think about it, the more it appears that such a repeal effort would paradoxically lead the most passionate gun rights advocates to embrace the dissenters’ views in Heller and McDonald in ways never anticipated by Justice Stevens et al.

The 2A, literally read, tethers gun ownership to militia membership, however hard the Heller majority tried to convince us otherwise by marginalizing the Amendment’s militia-speak as a “prefatory clause.”  Because we had no standing federal army at the time of the 2A’s ratification, and because states formed militias comprised of each state’s able-bodied men, individuals needed the right to own guns in case a tyrannical federal government did raise an army to invade the states.

But if we were to take Sharron Angle’s incendiary and irresponsible “Second Amendment remedies” quip from this summer in a charitably originalist manner, then those remedies mean the right of any people to rise up in revolution against a tyrannical government. This right is explicitly stated in our country’s Declaration of Independence and endorsed by Thomas Jefferson with his quote, “[t]he tree of liberty must be refreshed from time to time with the blood of patriots.”  And, unless an American revolutionary wants to wage guerrilla war or commit acts of terrorism, the accepted way to do this is to form militias, armed by individuals exercising their 2A rights, to engage in conventional warfare with the federal government.  Of course, just because the right to rise up in revolt exists doesn’t mean the cause is actually righteous or that the federal government cannot seek the perpetuation of its own just existence by putting down the revolt.  See, e.g., the Whiskey Rebellion or the Civil War.

Now, it’s currently unimaginable to think of Congress as currently situated ever passing a 2A repeal amendment, let alone finding 38 states willing to ratify it.  But if we can get past that hurdle of unimaginability, it’s absolutely imaginable that some states and certainly many individuals would consider Congressional passage of a 2A repeal amendment, whether or not it is ratified, to be a tyrannical act by the federal government that threatens to take away both a fundamental right to bear arms as interpreted by the Supreme Court as well as a mass taking of legally obtained property without just compensation.

And here comes the paradox: anti-repeal states could very well then vindicate liberals’ 2A interpretation by calling up “well-regulated militias” to “secure” their “free states” comprised of individuals who, in joining the militias, are exercising their “right of the people to keep and bear arms.”

In other words, an amendment to take away peoples’ guns could trigger the very scenario, in the eyes of Second Amendment supporters, that the framers imagined in drafting the Second Amendment.  In creating that scenario, then, gun owners would throw into relief through actual practice just how unoriginalist Scalia et al. were in their theory supporting the Heller majority.

I believe both components of this scenario–(a) the passage of a repeal amendment in Congress that (b) will trigger the mainstreaming of the militia movement–will never come to pass.  As an intellectual exercise, however, it’s worth thinking through possible consequences of our responses to heinous acts such as the one that took place this weekend in Arizona.

If the shooting inspires enough political momentum for Congress to re-up the statutory Federal Assault Weapons Ban and inspire state and local governments to strengthen their gun regulations, then it is worth looking to the Court for how politics has and will influence its shaping of the Second Amendment.

Heller could not have been decided the way it was had it not been for the rise in the last half-century of the “individualist” narrative.  Whether or not that narrative constituted “fraud,” as Chief Justice Burger stated from retirement in 1991, it became a tenet of modern conservatism and so mainstream a strain of American political thought that many Democratic politicians–including then-Senator Barack Obama, former Senator Russ Feingold, and Representative Gabby Giffords–supported Heller‘s result.  In essence, the conservative majority in Heller may have inflamed the half of the public rooting for the “collectivist”–or militia-based–interpretation, but the political winds had pushed the Court’s decision into safe harbor.

Had the liberal dissent prevailed in Heller, the country would have had a massive administrability problem that could have quickly descended into political chaos and violence.  Who gets to keep his or her guns?  What guns remain protected?  Can the federal government, finding militias anachronistic, ban guns altogether throughout the country?

While the Heller decision is often rightly explained in ideological terms, it still got the pragmatics right: it relieved the country of its polarized, zero-sum politics over gun rights on the side of least ideological and practical resistance, while defining the right so narrowly as to leave for later cases the true scope of reasonable regulations of the individual right to keep and bear arms for self-defense.

It remains easy to imagine that a Democratic nominee to Justices Kennedy’s or Scalia’s seat could lead to a reversal of Heller or so broad an acceptance of reasonable regulations as to limit Heller to its specific facts.  But now that this country’s steady stream of massacres has finally flooded into Congress and the Judiciary with the shooting of Rep. Giffords and the slaying of Chief Judge John Roll, perhaps the Court as presently constituted will be inspired by Justice Breyer’s Heller dissent to look more kindly upon state, local, and federal gun regulations than they would have had such violence remained for them a political and legal abstraction.

UPDATE: Josh Blackman responds.

UPDATE II: Michael Doyle of McClatchy has an article headlined, “Arizona shootings unlikely to change federal gun laws.” (h/t How Appealing)

UPDATE III: Jo Becker & Michael Luo of the New York Times posit Tucson’s gun culture against federal regulatory efforts.

UPDATE IV: Patrick J. Charles responds at his site, The Charles Law & History Blog.

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