Leon today ruled that the prosecution, led by Criminal Division trial attorneys Pamela Satterfield and Bonnie Hannan, failed to give enough evidence to jurors to prove that any one defendant, including Stagliano, violated the law. On the original indictment, Stagliano faced up to 32 years in prison.
By granting the defendant’s motion to dismiss the case for lack of evidence, Leon likely short-circuited any future Supreme Court case resolving the circuit split over internet obscenity. The Stagliano case may be the last live Bush-era obscenity prosecution, and neither sets of counsel from the Ninth or Eleventh Circuit cases sought certiorari to hash out whether national or local community standards should apply in a jury’s assessment of obscenity sent over the internet.
Meanwhile, the grounds for appeal in the Stagliano case to the DC Circuit would appear to rest not on any First Amendment issue, but rather on Leon’s procedural and evidentiary judgment. However, I question whether there would even be an appeal in this case, given the Obama administration’s apparent return to more lax Clinton-era enforcement of federal obscenity law.
UPDATE: The Washington Post provides some stats:
“The government said, ‘We have been getting convictions on the most extreme stuff, so we can be a little more aggressive and put pressure on the entire industry,’ ” Richards said. “This case was the tail end of Bush administration obscenity prosecutions. Now it remains to be seen whether the Obama administration makes enforcement a priority.”
Justice Department statistics show prosecutors charged 361 defendants with obscenity violations during President George W. Bush’s years in office, nearly twice as many as under President Bill Clinton. In 2009, 20 defendants were charged, compared with 54 the previous year.
UPDATE II: Politico’s Josh Gerstein notes that “the judge’s ruling cannot be appealed.”
I wrote last night of internet obscenity. Today, the Second Circuit handed down its opinion in Fox v. FCC, declaring unconstitutional the FCC’s indecency policy of fining network television stations for broadcasting fleeting expletives.
The Second Circuit heard this case on remand from the Supreme Court, which last term upheld the FCC’s regulation as a matter of administrative law by a 5-4 vote. The Court refused to address the constitutional question of whether the policy violated the First Amendment – the issue the Second Circuit answered in the affirmative today.
Justice Thomas concurred in last year’s conservative majority, expressing his willingness to strike down the regulation on constitutional grounds even though he did not believe it to be impermissibly arbitrary or capricious under the Administrative Procedure Act. Thomas advocated for overturning precedents that gave less First Amendment protection to broadcast speech than otherwise given to utterances in printed media or cable television. “Red Lion and Pacifica,” he wrote, “were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity.”
Thomas has made a career out of similar separate opinions calling for breaks from incorrect precedents. While commentators may debate the long-term influence of Thomas’s lone cry in McDonald this term to overturn over a century of precedent so to exhume the Privileges or Immunities Clause of the Fourteenth Amendment, they may find more immediate satisfaction if FCC v. Fox (captioned Fox v. FCC in today’s Second Circuit opinion) gets back to the Court on the constitutional issue.
Here’s the money quote from Judge Pooler’s opinion, which echoes Thomas’s concurrence:
The Networks argue that the world has changed since Pacifica and the reasons underlying the decision are no longer valid. Indeed, we face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed a “uniquely pervasive presence in the lives of all Americans.” Pacifica, 438 U.S. at 748.
The same cannot be said today. The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast – almost 87 percent of households subscribe to a cable or satellite service – and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control. See In re Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, 24 FCC Rcd. 542, at ¶ 8 (2009). The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs. [...]
Moreover, technological changes have given parents the ability to decide which programs they will permit their children to watch. [...] In short, there now exists a way to block programs that contain indecent speech in a way that was not possible in 1978. In fact, the existence of technology that allowed for household-by-household blocking of “unwanted” cable channels was one of the principle distinctions between cable television and broadcast media drawn by the Supreme Court in Playboy. The Court explained:
The option to block reduces the likelihood, so concerning to the Court in Pacifica, that traditional First Amendment scrutiny would deprive the Government of all authority to address this sort of problem. The corollary, of course, is that targeted blocking enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners – listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt.
We can think of no reason why this rationale for applying strict scrutiny in the case of cable television would not apply with equal force to broadcast television in light of the V-chip technology that is now available.
Nevertheless, Pooler refused to defy Supreme Court precedent and instead struck down the regulation as an impermissibly vague restriction on speech:
We agree with the Networks that the indecency policy is impermissibly vague. The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not. Omnibus Order, 21 F.C.C. Rcd 2664, at ¶¶ 127-128. Other expletives such as “pissed off,” up yours,” “kiss my ass,” and “wiping his ass” were also not found to be patently offensive. Id. at ¶ 197. The Commission argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word “bullshit” is indecent because it is “vulgar, graphic and explicit” while the words “dickhead” was not indecent because it was “not sufficiently vulgar, explicit, or graphic.” This hardly gives broadcasters notice of how the Commission will apply the factors in the future. [...]
[T]he absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature. Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all “patently offensive” references to sex, sexual organs, and excretion without giving adequate guidance as to what “patently offensive” means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.
What seems certain from last year’s vote is that the Supreme Court, should it grant certiorari in this case, will affirm the Second Circuit’s judgment. If the four liberals–Stevens, Souter, Breyer, and Ginsburg–would have invalidated the policy on administrative law grounds, they would likely strike it down on constitutional grounds as well. And Thomas would surely provide a fifth vote, given his concurrence. Because no other member of the Court’s Fox majority joined Thomas’s concurrence, I question whether Roberts, Scalia, or Alito will side with the dissenters on the constitutional question, though I fall back on conventional wisdom in thinking that Kennedy is up for grabs.
The question now is whether the Court would follow Thomas’s suggestion and remove the constitutional distinctions between broadcast and other mediums, thereby submitting all speech restrictions to strict scrutiny. We don’t know how Sotomayor or Kagan would look towards uprooting precedent, especially one of Kagan’s (assuming she gets confirmed) predecessor’s landmark rulings. Stevens himself intimated in his Fox dissent that “Justice Thomas and I disagree about the continued wisdom of Pacifica,” implying that he would follow the Second Circuit’s void-for-vagueness ruling rather than overturn himself.
Justice Ginsburg, however, signaled her openness to joining Thomas by citing Justice Brennan’s Pacifica dissent:
The Pacifica decision, however it might fare on reassessment, see ante,at 6 (Thomas, J., concurring), was tightly cabined, and for good reason. In dissent, Justice Brennan observed that the Government should take care before enjoining the broadcast of words or expressions spoken by many “in our land of cultural pluralism.” 438 U. S., at 775. That comment, fitting in the 1970’s, is even more potent today. If the reserved constitutional question reaches this Court, see ante, at 26 (majority opinion), we should be mindful that words unpalatable to some may be “commonplace” for others, “the stuff of everyday conversations.” 438 U. S., at 776 (Brennan, J., dissenting).
My latest–and final–ABA Journal online column from the Court’s 2009-10 term is now live:
Solicitor General Elena Kagan’s first unabashedly straight answer of her confirmation hearings to become a Supreme Court justice came early in her 17 hours of questioning by the Senate Judiciary Committee this week. Ninety minutes into Kagan’s interrogation, Sen. Herb Kohl, D-Wisc., asked her for her opinion on cameras in the Supreme Court.
“I think it would be a terrific thing to have cameras in the courtroom,” said Kagan (Video). “When you see what happens there, it’s an inspiring sight…It would be a great thing for the court and a great thing for the American people.”
Twenty-four hours earlier, I was sitting inside the court witnessing its final session of the term. Like a dozen times before, I had sat through the night on the pavement outside to be among the few who would catch a glimpse of the inspiring sight to which Kagan, by virtue of her office, had a front row seat all this year.
But on Monday morning, I would have traded all of my own fond memories of new friends made and stories told over the past six months for the whole country to have seen the same moving scenes I saw.
Read the rest here.
Four 5-4 decisions, three dissents from the bench, and very touching reflections upon the life of Marty Ginsburg and the career of Justice John Paul Stevens. Really an amazing experience inside the Court this morning.
Rushing off to Kagan Hearings now. First, a few quick thoughts:
- McDonald: 5-4 result as expected for full incorporation with Thomas concurring for PI Clause and Breyer registering a protest dissent from Heller. Contra my prediction, Stevens and Sotomayor dissented from incorporation, with the former writing for himself and the latter joining Breyer’s dissent along with Ginsburg.
- Bilski: Stevens lost his majority, which explains the long delay. Kennedy wrote the majority, signaling that perhaps he had changed his vote. Stevens read his concurrence (which was really a dissent) from the bench.
- PCAOB: The Roberts Court is really getting in the habit of rewriting federal statutes by judicial fiat. With NAMUDNO last year, and Skilling and PCAOB this year, lots of legislating from the bench, albeit for apparently varying motivations that I will explore at some point this week.
- Christian Legal Society: No one would have blamed Justice Ginsburg for skipping today, but in she came to read her majority opinion.
Also, it appears that Justice Breyer took this morning to be his coming out party as the liberal bloc’s new leader. His two dissents from the bench were lengthy and passionate, and I got a palpable sense that he had seized the torch from Stevens, whether or not it had actually been passed to him.
The Court finished its business today for all but the term’s most high profile cases. Today’s decisions featured multiple heated concurrences and dissents, setting the mood for Monday’s decisions on major federalism, Second Amendment, and church-and-state cases, as well as a very long-awaited patent case that may fundamentally affect that field’s landscape.
Decided today were a trio of cases testing whether “honest services” statutes are unconstitutionally vague. Justice Ginsburg, writing for the Court in the lead case, Skilling v. United States, defined the scope of the criminal statute to bribery and kickback schemes rather than simply invalidate it. “Skilling swims against our case law’s current,” she wrote, “which requires us, if we can, to construe, not condemn, Congress’ enactments.”
Justice Scalia, writing for Justices Kennedy and Thomas, dissented on this point, preferring instead to strike down the law instead of “strik[ing] a pose of judicial humility.” Mocking the majority, Scalia finally introduced virtual shouting into his opinions, making explicit in all-caps the tone in which we’ve long implicitly understood his dissents were to be delivered:
Since the honest-services doctrine “had its genesis” in bribery prosecutions, and since several cases and counsel for Skilling referred to bribery and kickback schemes as “core” or “paradigm” or “typical” examples, or “[t]he most obvious form,” of honest-services fraud, ante, at 43–44 (internal quotation marks omitted), and since two cases and counsel for the Government say that they formed the “vast majority,” or “most” or at least “[t]he bulk” of honest-services cases, ante, at 43–44 (internal quotation marks omitted), THEREFORE it must be the case that they are all Congress meant by its reference to the honest-services doctrine.
Ginsburg’s opinion additionally determined that the notoriety of Jeffrey Skilling, the former Enron CEO, did not deprive him of a fair trial. On this point, Justice Sotomayor dissented, joined by Justices Stevens and Breyer.
The Court also decided Doe v. Reed today, holding that disclosure requirements for referendum petitions do not generally violate the First Amendment. Chief Justice Roberts, writing for an eight-justice majority, refused to strike down Washington State’s Public Records Act on its face, but left open the question of whether the plaintiffs–men and women who signed a petition supporting a ballot referendum to overturn the State’s recognition of benefits for same-sex domestic partnerships–would prevail by challenging the PRA’s constitutionality as specifically applied to their own experiences.
Justice Alito, in a concurrence, emphasized what he saw as the plaintiffs’ “strong argument” in an as-applied challenge, echoing his United States v. Stevens dissent. As evidence, Alito found that “[t]he widespread harassment and intimidation suffered by supporters of California’s Proposition 8 provides strong support for an as-applied exemption in the present case”–an argument that went down in flames with most of the other justices, most notably Justice Scalia, at oral argument.
Justice Sotomayor, joined by Justices Stevens and Ginsburg, registered a concurrence on the other side of the ledger from Alito:
courts presented with an as-applied challenge to a regulation authorizing the disclosure of referendum petitions should be deeply skeptical of any assertion that the Constitution, which embraces political transparency, compels States to conceal the identity of persons who seek to participate in lawmaking through a state-created referendum process.
Justice Stevens, writing for himself and Justice Breyer, took a similar stance in opposition to Alito’s prediction:
For an as-applied chal- lenge to a law such as the PRA to succeed, there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures. Moreover, the character of the law challenged in a referendum does not, in itself, affect the analysis. Debates about tax policy and regula- tion of private property can become just as heated as debates about domestic partnerships. And as a general matter, it is very difficult to show that by later disclosing the names of petition signatories, individuals will be less willing to sign petitions. Just as we have in the past, I would demand strong evidence before concluding that an indirect and speculative chain of events imposes a sub-stantial burden on speech.
Concurring in the judgment, Justice Scalia continued to press for “political courage,” as he had at oral argument, by rejecting the very notion that “the First Amendment accords a right to anonymity in the performance of an act with governmental effect.” To prove his point, he noted Kentucky’s and Virginia’s early history of viva voce voting, among other examples from American history. In conclusion, he crescendoes:
Plaintiffs raise concerns that the disclosure of petition signatures may lead to threats and intimidation. Of course nothing prevents the people of Washington from keeping petition signatures secret to avoid that—just as nothing prevented the States from moving to the secret ballot. But there is no constitutional basis for this Court to impose that course upon the States—or to insist (as today’s opinion does) that it can only be avoided by the demonstration of a “sufficiently important governmental interest,” ante, at 7 (internal quotation marks omitted). And it may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self- governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, cam- paigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.
Justice Thomas was Doe‘s lone dissenter arguing that disclosure requirements are unconstitutional, a space he similarly occupied in Citizens United‘s less-controversial holding.
The Supreme Court broke its streak of pro-First Amendment decisions in today’s decision in Holder v. Humanitarian Law Project. This “very difficult case,” as Justice Kennedy described it at oral argument, was decided by a 6-3 vote in an opinion written by Chief Justice Roberts. Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor.
The opinion held that the First Amendment does not bar the criminal prosecution of the Humanitarian Law Project (HLP) under a federal statute criminalizing “material support” to groups designated as terrorist organizations by the United States government. HLP provided lessons on international law and non-violence to groups such as the Kurdistan Workers’ Party (PKK) and the Tamil Tigers. The majority refused, however, to determine whether the federal statute would be constitutional as applied to “more difficult cases” that could arise in the future.
This opinion comes on the heels of two prior cases in which the Court came out with robust pronouncements of First Amendment freedoms. In Citizens United, Justice Kennedy wrote for the conservative bloc striking down significant portions of the McCain-Feingold campaign finance reform act as violating the First Amendment. In United States v. Stevens, the Chief Justice wrote for an eight-justice majority deeming unconstitutional a federal statute that criminalized depictions of animal cruelty.
The case’s national security element may have colored the conservative bloc’s opinion, but it does not account for the votes of Justices Stevens and Kennedy, both authors of landmark cases striking down former President George W. Bush’s enemy combatant policies in Guantanamo Bay. Their fingerprints may be seen in the passages urging moderation:
We next consider whether the material-support statute, as applied to plaintiffs, violates the freedom of speech guaranteed by the First Amendment. Both plaintiffs and the Government take extreme positions on this question. Plaintiffs claim that Congress has banned their “pure political speech.” …For its part, the Government takes the foregoing too far, claiming that the only thing truly at issue in this litigation is conduct, not speech or impose any sanction on them for doing so.” Id., at 60. …The First Amendment issue before us is more refined than either plaintiffs or the Government would have it. It is not whether the Government may prohibit pure political speech, or may prohibit material support in the form of conduct. It is instead whether the Government may pro hibit what plaintiffs want to do—provide material support to the PKK and LTTE in the form of speech.
As we explained in Texas v. Johnson: “If the [Government’s] regulation is not related to expression, then the less strin gent standard we announced in United States v. O’Brien for regulations of noncommunicative conduct controls. If it is, then we are outside of O’Brien’s test, and we must [apply] a more demanding standard.”For its part, the Government takes the foregoing too far, claiming that the only thing truly at issue in this litigation is conduct, not speech or impose any sanction on them for doing so.” Id., at 60. …
Stevens dissented in Texas v. Johnson, writing that he would have allowed the criminal law against flag burning to stand where the five-justice majority–in which Justices Scalia and Kennedy joined the liberal bloc of Brennan, Marshall, and Blackmun–applied a maximalist view of the First Amendment to strike down the Texas law.
Indeed, today’s case displays Stevens’s deep precedent-bound pragmatism. He not only signed onto an opinion that cited a case from which he dissented, but he also continued his less-than-absolute take on the First Amendment while also showing that he is not an unyielding civil libertarian when it comes to the war on terror.
Justice Breyer read his dissent from the bench today, stating that the federal statute could not survive strict scrutiny. Breyer, however, is no First Amendment maximalist himself, despite this morning’s oral dissent. Today’s decision, when compared with this term’s earlier First Amendment decisions, is a reminder that on the Roberts Court there is no unyielding free speech champion. Instead, the justices use the First Amendment as an ancillary issue to be used to their advantage on cases that touch their greater concerns, be they national security or campaign finance.
Breyer’s oral announcement of his dissent marked the second time this term a justice has done so. Justice Stevens spoke for 20 minutes to protest Citizens United back in January. There may be others yet, as a few more charged cases remain for the Court’s Thursday and Monday sessions.
No Bilski this morning, but Thomas did write the other remaining November case, so Stevens remains the prime candidate for majority author.
The Court did release its opinion in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. Early in the life of F1@1F, I flagged this case because it pits federalism against property rights, two traditionally conservative causes. Turns out the Court’s conservative bloc – Roberts, Scalia, Thomas, and Alito – found the two concerns, in this case at least, reconcilable.
Scalia announced the opinion of the Court that the Florida Supreme Court did not commit a taking when it approved of an erosion-control plan that the plaintiffs had argued diminished their beachfront property. On this point, the Court was unanimous.
But Scalia continued, in parts joined only by the conservative bloc, to recognize the concept of a “judicial taking” that the plaintiff-petitioners put to the Court. In 1994, Scalia had argued for the recognition of the concept that a court’s decision could amount to the government’s taking of property without just compensation in violation of the Fifth and Fourteenth Amendments. It was no surprise, then, that he’d attempt to codify “judicial takings” in STBR.
Without five members signing onto this part of the decision, the true clash of conservative principles will have to wait another day. Justice Kennedy, for his part, sided with the liberals who today–in fact, all term–were playing the role of the judicially restrained. In two separate concurrences – Kennedy w/ Sotomayor and Breyer w/ Ginsburg – four justices agreed that this case presented no necessity to address, or even recognize, “judicial takings.” Stevens, the owner of beachfront Florida property, recused himself from the case.
But at least now we know that property rights mean more than federalism for the members of the Court who traditionally champion both with full force. What side the liberals will fall upon in the next Bush v. Gore of property rights is less certain, but if we were to combine their positions in Bush v. Gore itself (deferring to a state supreme court on matters of state law) and Kelo v. New London (robust interpretation of the takings clause), then I’d say that federalism will win their votes. If Sotomayor and Kagan (if confirmed) will vote like their predecessors in this hypothetical future case, then Kennedy, as ever, will prove the deciding vote.
UPDATE: Scalia calls Breyer a woodchuck, Kennedy, Orwellian:
JUSTICE BREYER’s concurrence says that we need nei- ther (1) to decide whether the judiciary can ever effect a taking, nor (2) to establish the standard for determining whether it has done so. See post, at 1–2 (opinion concur- ring in part and concurring in judgment). The second part of this is surely incompatible with JUSTICE BREYER’s conclusion that the “Florida Supreme Court’s decision in this case did not amount to a ‘judicial taking.’” Post, at 3. One cannot know whether a takings claim is invalid with- out knowing what standard it has failed to meet.6 Which means that JUSTICE BREYER must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the “unnecessary” constitutional question whether there is such a thing as a judicial taking.
In any case, our opinion does not trust judges with the relatively small power JUSTICE KENNEDY now objects to. It is we who propose setting aside judicial decisions that take private property; it is he who insists that judges cannot be so limited. Un- der his regime, the citizen whose property has been judi- cially redefined to belong to the State would presumably be given the Orwellian explanation: “The court did not take your property. Because it is neither politically ac- countable nor competent to make such a decision, it can- not take property.”
Scalia then goes on to seize back the mantle of judicial restraint from Kennedy the Usurper, Author of Lawrence:
Finally, we cannot avoid comment upon JUSTICE KENNEDY’s donning of the mantle of judicial restraint— his assertion that it is we, and not he, who would empower the courts and encourage their expropriation of private property. He warns that if judges know that their action is covered by the Takings Clause, they will issue “sweep- ing new rule[s] to adjust the rights of property owners,” comfortable in the knowledge that their innovations will be preserved upon payment by the State. Post, at 6. That is quite impossible. As we have said, if we were to hold that the Florida Supreme Court had effected an uncom- pensated taking in this case, we would not validate the taking by ordering Florida to pay compensation. We would simply reverse the Florida Supreme Court’s judg- ment that the Beach and Shore Preservation Act can be applied to the Members’ property. The power to effect a compensated taking would then reside, where it has al- ways resided, not in the Florida Supreme Court but in the Florida Legislature—which could either provide compen- sation or acquiesce in the invalidity of the offending fea- tures of the Act. Cf. Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 817–818 (1989). The only realistic incentive that subjection to the Takings Clause might provide to any court would be the incentive to get reversed, which in our experience few judges value.JUSTICE KENNEDY, however, while dismissive of the Takings Clause, places no other constraints on judicial action. He puts forward some extremely vague applica- tions of Substantive Due Process, and does not even say that they (whatever they are) will for sure apply. (“It is thus natural to read the Due Process Clause as limiting the power of courts to eliminate or change established property rights,” post, at 3; “courts . . . may not have the power to eliminate established property rights by judicial decision,” post, at 4; “the Due Process Clause would likely prevent a State from doing by judicial decree what the Takings Clause forbids it to do by legislative fiat,” post, at 4–5 (internal quotation marks omitted); we must defer applying the Takings Clause until “[i]f and when future cases show that the usual principles, including constitu- tional principles that constrain the judiciary like due process, are somehow inadequate to protect property owners,” post, at 10.)Moreover, and more importantly, JUSTICE KENNEDY places no constraints whatever upon this Court. Not only does his concurrence only think about applying Substantive Due Process; but because Substantive Due Process is such a wonderfully malleable concept, see, e.g., Lawrence v. Texas, 539 U. S. 558, 562 (2003) (referring to “liberty of the person both in its spatial and in its more transcendent dimensions”), even a firm commitment to apply it would be a firm commitment to nothing in particular. JUSTICE KENNEDY’s desire to substitute Substantive Due Process for the Takings Clause suggests, and the rest of what he writes confirms, that what holds him back from giving the Takings Clause its natural meaning is not the intrusive- ness of applying it to judicial action, but the definiteness of doing so; not a concern to preserve the powers of the States’ political branches, but a concern to preserve this Court’s discretion to say that property may be taken, or may not be taken, as in the Court’s view the circumstances suggest. We must not say that we are bound by the Con- stitution never to sanction judicial elimination of clearly established property rights. Where the power of this Court is concerned, one must never say never. See, e.g., Vieth v. Jubelirer, 541 U. S. 267, 302–305 (2004) (plurality opinion); Sosa v. Alvarez-Machain, 542 U. S. 692, 750–751 (2004) (SCALIA, J., concurring in part and concurring in judgment). The great attraction of Substantive Due Proc- ess as a substitute for more specific constitutional guaran- tees is that it never means never—because it never means anything precise.
[W]e have held for many years (logically or not) that the “liberties” protected by Substantive Due Process do not include economic liber- ties. See, e.g., Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U. S. 525, 536 (1949). JUSTICE KENNEDY’s language (“If a judicial decision . . . eliminates an established property right, the judgment could be set aside as a deprivation of property without due process of law,” post, at 3) propels us back to what is referred to (usually deprecatingly) as “the Lochner era.” See Lochner v. New York, 198 U. S 45, 56–58 (1905). That is a step of much greater novelty, and much more unpredictable effect, than merely applying the Takings Clause to judicial action.
F1@1F has from its inception been animated by my hypothesis that the Roberts Court’s docket and decisions have been shaped the Chief Justice’s sensitivity to the Court’s surrounding political climate. As such, Citizens United represented less an act of war against the Democratic-controlled White House and Congress, and more a picked battle strategically placed to cause minimal institutional harm to a conservative Court with diminished political capital. Now that oral arguments are over and the politically salient cases are finally being decided, F1@1F will focus more fully on whether this term’s opinions support or disprove the hypothesis.
Last week’s opinions in Graham v. Florida and United States v. Comstock found Chief Justice Roberts unexpectedly siding with the Court’s liberal wing on ideologically divisive questions of law and politics.
In Graham, six members of the Court voted to vacate a juvenile’s sentence of life without parole for a non-homicide crime. Justice Kennedy’s five-member majority opinion, joined by the Court’s liberal bloc, declared that all such sentences categorically violate the Eighth Amendment.
Concurring in the judgment, Chief Justice Roberts hedged with an as-applied analysis rather than categorically endorse Kennedy’s expansive Eighth Amendment jurisprudence. Yet Roberts also refused to sign onto Thomas’s categorical denial of relief, despite his joining the dissent in Kennedy v. Louisiana, which outlawed the death penalty for child rape.
In a way, the Chief’s vote seems to recognize the public ambivalence towards life without parole (LWOP) for juveniles convicted of non-homicide crimes. As he saw it, people are either confortable enough in theory with the laws as written that allow LWOP, but are loath in practice to trust trial judges to fairly wield such awesome power; or they are uncomfortable in theory with LWOP for juveniles, but wish the death penalty still applied when confronted with particularly heinous crimes committed by almost-adults. It was for the latter type who, like the majority, reject even the theory of LWOP for juveniles, that Roberts juxtaposed Graham, who received LWOP for armed robbery with assault or battery, with a 17-year-old who “beat and raped an 8-year-old girl before leaving her to die under 197 pounds of rock in a recycling bin in a remote landfill” and two juveniles “who together with their friends gang-raped a woman and forced her to perform oral sex on her 12-year-old son.”
Judging by his Graham concurrence and his joining the Kennedy dissent, Roberts’s own Eighth Amendment jurisprudence is more pragmatic and politically responsive than that of his eight colleagues. In undertaking a proportionality analysis, Roberts’s views are apparently guided by the shock of the crime rather than the severity of the punishment. Particular punishments are never categorically beyond the pale; only certain crimes are.
In Comstock, Roberts joined Justice Breyer’s opinion without any hedging whatsoever, thereby restoring a seemingly more expansive view of Congress’s Article I power than the Rehnquist Court would have allowed, at least before Raich. He could have joined Kennedy’s or Alito’s narrower concurrences in the judgment and thwarted a majority. Instead, he gave a fifth vote to a mode of reasoning that may dim the hopes of those challenging the Affordable Care Act.
The Chief Justice may have felt compelled to join Breyer’s opinion, which also included the rest of the liberal bloc, so to secure for the parties and future litigants a clear holding. I have difficulty believing that if the votes at conference were the same as they were at decision–7-2 to uphold as within Congress’s power a federal statute allowing for the civil commitment of sex offenders after their federal prison sentences have ended–the Chief would have delegated the majority opinion to Justice Breyer. This case had serious federalism implications, after all, and Breyer’s penchant for multi-factor balancing tests and general hostility to narrower readings of Congress’s Article I powers promised an opinion that would not sit well with the Court’s conservatives.
Two scenarios, then, come to mind. Roberts may have originally been with Thomas and Scalia in dissent, believing that Congress’s legislative powers go no further than those specifically enumerated in Article I of the Constitution. Justice Stevens, as the senior justice in the majority, could have assigned the opinion to Breyer as a reward for Breyer’s fever-pitch dissent in Lopez protesting the start of the Rehnquist Court’s ultimately incomplete federalism revolution. When Breyer’s opinion failed to attract five votes, Roberts may have switched his own, finding the opinion’s mushy language eminently manipulable to more conservative results in more important future cases.
The same pattern holds for a second scenario in which Roberts, unable to countenance freed sex offenders for the sake of federalism principles, may have voted at conference with Kennedy or, more likely, Alito. If the conference counted the votes based on reasoning rather than results, then Stevens still would have been the assigning justice.
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.
Together, Graham and Comstock reveal a Chief Justice acutely aware of the country’s political climate and unwilling to sacrifice the Court’s institutional legitimacy for across-the-board conservative gain. There remain a handful of major cases yet to be decided, however, that could reveal a Chief Justice ready to gamble what remains of his Court’s post-Citizens United political capital on a few more battles.
I was at the Court today for its announcement of six brief opinions. While there, I was lucky enough to see a Breyer Blooper.
Two of the decisions–American Needle v. NFL and Lewis v. City of Chicago–were unanimous. Per my oral argument report from Lewis, Justice Scalia’s opinion today in favor of the black firefighters’ disparate impact claim against the City of Chicago was hardly surprising. Still, Justice Scalia’s distaste for disparate impact law was palpable as he read a particularly long summary of a particularly brief opinion. It was almost as if he was punishing us for his not only having to continue considering disparate impact cases, but also that he found it necessary to rule in favor of the plaintiffs in this case.
A quick recap of the case: the EEOC filed suit on behalf of a class of black firefighters in Chicago claiming that the City’s use of a particular test to determine fire department hirings was discriminatory in its impact. The district court agreed, awarding backpay and ordering the fire department to hire to 132 class members. The Seventh Circuit reversed, holding that the firefighters’ suit was time-barred. Today, the Court held that the black firefighters’ disparate impact claims were not time-barred, thereby sending the case back to the Seventh Circuit to determine whether or not to modify the District Court’s original relief.
As for American Needle, the Court sided with Drew Brees by holding that National Football League Properties’ decision to grant exclusive intellectual property licenses is covered by §1 of the Sherman Antitrust Act, which makes illegal contracts or combinations made in restraint of trade. The Court, however, did not decide whether NFLP acted illegally; rather, it rejected one standard–“single entity theory”–in favor of another–“Rule of Reason”–for the lower courts to use on remand in determining illegality.
The Court also dismissed as improvidently granted Robertson v. United States ex rel. Watson over a vigorous dissent by Chief Justice Roberts and joined by Justices Scalia, Kennedy, and Sotomayor. The Court left in place a ruling by the court of appeal that a private person may bring an action for criminal contempt rather than in the name of the United States. The dissenters would have held that the “terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought on behalf of the government.” In other words, any action that makes this aspect of criminal law less scary is unconstitutional. Our Lockean social contract, wrote Roberts, takes “the sword of justice, to be used to smite those who violate the criminal laws, [...] out of private hands and turn it over to an organized government, acting on behalf of all the people.”
Justice Sotomayor, joined by Justice Kennedy, added her own brief dissent to clarify her “understanding that the narrow holding [Roberts's dissent] proposes does not address civil contempt proceedings or consider more generally the legitimacy of existing regimes for the enforcement of restraining orders” similar to the one Watson secured against–and was repeatedly violated by–Robertson. Regardless of her more modest dissent, Sotomayor may have shown herself to be, as predicted, to the right of Justice Souter in her criminal law jurisprudence. A few more years and a dozen more opinions are required for that observation to become a conclusion, however.
Justice Stevens was today’s busiest man. He wrote the unanimous opinion in American Needle, concurrences in United States v. O’Brien and Hardt v. Reliance Standard Life Insurance, and a dissent in United States v. Marcus.
In addition to its decisions in argued cases, the Court GVR’d (granted, vacated, and remanded) Jefferson v. Upton, requiring the lower federal courts to consider whether it erred in accepting a state court’s findings that the attorneys for the petitioner, who is now on death row for murdering a co-worker on a fishing trip, should have investigated the mental effects of having his head run over by a car when he was two years old. Justice Scalia, joined by Justice Thomas, dissented.
The Court also granted certiorari in six cases to be heard next term. Two of these cases, Arizona Christian School Tuition Board v. Winn and Garriott v. Winn will be consolidated into a single oral argument testing the constitutionality of a tax credit scheme in which taxpayers choose to direct more contributions to religious organizations than nonreligious ones.
Another case, Skinner v. Switzer, asks whether under a federal civil rights statute a death row prisoner may obtain access to DNA testing that was not performed at trial. In last term’s District Attorney’s Office for the Third Judicial District v. Osborne, the Court rejected a constitutional right to potentially exonerating DNA evidence when the state has denied access to it, but left open the question of statutory relief at issue in Skinner.
And one more for the blooper reel: Justice Breyer jumped the gavel today, emerging from behind the curtain before the Marshal began her “oyez, oyez, oyez” chant. Sotomayor came out smiling wide and laughing hard while Roberts amusedly shook his head and Stevens smirked.
Today Justice Kennedy extended his Eighth Amendment legacy as the author of the majority opinion in Graham v. Florida. The Court invalidated sentences of life without parole for juveniles convicted of non-homicide crimes. His opinion was joined by Justices Stevens, Ginsburg, Breyer, and Sotomayor.
Justice Roberts added his vote to the majority’s judgment that Graham’s sentence should be overturned, but refused to follow the majority’s broad determination that all sentences like Graham’s facially violate the Eighth Amendment’s ban on cruel and unusual punishment.
Justice Thomas, in a dissent joined by Justices Scalia and partially by Alito, wrote that the Court has rejected “the judgments of…legislatures, judges, and juries regarding what the Court describes as the ‘moral’ question of whether this sentence can ever be ‘proportionat[e]‘ when applied to the category of offenders at issue here.”
In addition, Thomas struck at the return of Justice Kennedy’s famous citations to foreign law at the close of the majority opinion. Unwilling to dignify such references with a rebuttal in the body of the dissent, Thomas “confine[d] to a footnote the Court’s discussion of foreign laws and sentencing practices because past opinions explain at length why such factors are irrelevant to the meaning of our Constitution or the Court’s discernment of any longstanding tradition in this Nation.”
Justice Alito, writing for himself, added a short dissent noting that courts could still sentence juveniles to very long sentences without parole, as long as the sentences were not for life.
In two-paragraph concurring opinion, retiring Justice Stevens, joined by Justices Ginsburg and Sotomayor, attacked Justice Thomas’s dissent as too “rigid” an interpretation of the “evolving standards of decency” doctrine that has guided the Court’s Eighth Amendment jurisprudence since 1910. Stevens wrote:
Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commit- ment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete.
While JUSTICE THOMAS would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.