Because I know next to nothing on the merits of patent law, my predictions for the now overlong-awaited Bilski decision will extend no further than this: Justice Stevens will be its author.
Two factors lead me to this conclusion. First, Stevens and Thomas are the only two justices yet to author a majority opinion from the November sitting. Given that Stevens–and not Thomas–has the history of landmark tech-oriented decisions. In fact, he has contributed one a decade:
- 1978: FCC v. Pacifica Foundation – Broadcast media and the First Amendment
- 1984: Sony Corp. v. Universal City Studios – Video cassette recorders and Copyright
- 1999: Reno v. ACLU – Internet and First Amendment
If you consider 2010 to be part of the first, rather than the second, decade of the 21st century, then it looks like Stevens is due one more swing for the ages.
One can assume Stevens will write for the liberals if Bilski has any left/right component to blame for causing the Court’s significant delay in releasing the opinion. I refuse, however, to make this assumption myself ever since I rightly predicted Justice Kennedy to author Salazar v. Buono, but ate my words about what side he’d come down on. Of course, Stevens may be more predictable than Kennedy, but I’m too spooked to hazard even the safest guess for this case in a very unfamiliar field. I’ll leave that to these guys.
If Stevens is not the author, I have a backup prediction: the long wait for this case means that he has crafted a lead dissent out of a majority opinion he lost in the drafting process.
Over at Above the Law, David Lat makes the case for Diane Wood as the natural pick for the next justice. In doing so, he echoes my thoughts as expressed on F1@1F’s first day of existence in late December, as well as in several other pieces I’ve posted since.
Lat’s piece, however, amplifies my thoughts tenfold with his own expertise, personal experience, and colorful commentary. Give it a read.
The Supreme Court today granted certiorari in Schwarzenegger v. Video Software Dealers Association, which asks whether a California regulation banning the sale to minors of violent video games must meet “strict scrutiny” to pass constitutional muster, if such a regulation is permitted at all under the First Amendment. The Court has been sitting on this petition since its first conference of the term back in September.
The Ninth Circuit struck down California’s law in February 2009:
Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State’s expressed interests. Additionally, we hold that the Act’s labeling requirement is unconstitutionally compelled
speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State’s controversial opinion.
California justified its law with an appeal to the Court’s obscenity jurisprudence, but the Ninth Circuit slapped this reasoning down, pointing out that the Seventh, Eighth, Second, and Sixth Circuits have all refused to expand obscenity beyond sexual expression into violent expression.
The Supreme Court has never spoken on this issue, but came close last week in U.S. v. Stevens, when it struck down a federal statute banning depictions of animal cruelty by trying to sweep such depictions inside the Court’s obscenity carve-out under the First Amendment.
But Stevens did not concern the sale of violent content to minors. Nevertheless, the Court has also been quite stingy in recent years on restrictions on indecent or obscene speech for minors, twice striking down federal regulations aimed at protecting children from such content on the Internet.
Despite what the New York Times might have said about the Ninth Circuit and its reputation for getting reversed by the Supreme Court, expect the Court to affirm its decision in Schwarzenegger v. Video Software Dealers Association next term.
Justice Kennedy is the only member of the Court yet to write an opinion from the October sitting. As of today, Salazar v. Buono remains the only case not yet decided from the October sitting.
The delay in Buono augurs a bitter split with lots of footnotes flying around. From the oral argument transcript, let me go out on a limb and say that Kennedy sided with the liberals on this one. Perhaps the conservatives–or, at least Scalia and Alito, by the write-ups–hoped the Court would rule more broadly than the standing issue that the rest of the justices ultimately focused upon. Or maybe the decision’s delay means that in Kennedy’s hands, the opinion did address the broader merits of whether Congress violated the Establishment Clause by transferring its ownership of a desert cross on government lands to a private entity so to avoid First Amendment suits.
Either way, perhaps the justices’ post-argument positioning triggered the Court’s December cert. grant to Christian Legal Society v. Martinez, which the justices had sat on since the spring. Wanting to make up for one (still totally conjectural) church-state loss with Buono, the conservative bloc may have sensed in CLS a big, broad win for the Free Exercise Clause.
The Court heard CLS on Monday. The justices fell to their familiar positions, but the conservatives’ (still totally speculative) gamble may have been for naught: Justice Kennedy didn’t seem at all convinced that the case’s facts had been sufficiently clarified to garner a ruling on the merits.
In the coming weeks and months, we’ll get the decisions. But whether I’m spectacularly right or wrong on what when down behind the curtain may have to wait until Justice Stevens’s papers go public. And for the sake of sating speculation, let’s hope Stevens will mimic Marshall and Blackmun‘s speedy release of their papers rather than follow Souter down the fifty-year memory hole.
The New York Times reports that Nebraska has opened up a new front in the abortion wars:
Gov. Dave Heineman of Nebraska signed a law on Tuesday banning most abortions 20 weeks after conception or later on the theory that a fetus, by that stage in pregnancy, has the capacity to feel pain. The law, which appears nearly certain to set off legal and scientific debates, is the first in the nation to restrict abortions on the basis of fetal pain. [...]
The Nebraska law grew out of a battle over abortion waged in a far different forum. After an abortion opponent killed Dr. George R. Tiller, a leading late-term abortion provider in Wichita, Kan., last year, Dr. LeRoy H. Carhart, who sometimes worked with Dr. Tiller, said he would carry on his legacy by performing some later-term abortions in his clinic in Bellevue, Neb.
The Court’s most recent big abortion cases both had Dr. Carhart in the caption. 2000’s Stenberg v. Carhart struck down Nebraska’s partial birth abortion ban by a 5-4 vote, holding that the state law placed an undue burden on a woman’s right to an abortion because the law had no exception to allow the procedure when the mother’s life or health was threatened by her pregnancy. The Court changed course in 2007 with Gonzalez v. Carhart. Justice Alito cast the deciding fifth vote to uphold the federal ban on partial birth abortions, whereas his predecessor, Justice O’Connor, provided the fifth vote to strike down Nebraska’s similar law in Stenberg.
The partial birth abortion bans tested the undue burden standard late in a pregnancy, in which the Court in Roe and Casey both recognized the state’s compelling interest in protecting fetal life. This law is very different:
Lawmakers in Nebraska were outraged at the prospect of becoming, in the words of one of the state’s leading anti-abortion groups, the next “late-term abortion capital of the Midwest.” Early Tuesday, the state’s nonpartisan unicameral legislature passed the new measure overwhelmingly, 44 to 5. [...]
The law, which is to take effect Oct. 15, restricts abortion in Nebraska on several fronts. It will forbid abortions after 20 weeks’ gestation. The law it replaces, similar to those in many other states, banned abortions after a fetus reaches viability, or can survive outside the womb. This is determined case by case but is generally considered to come around 22 weeks at the earliest.
The new law grants exceptions only in cases of medical emergency, the pregnant woman’s imminent death, or a serious risk of “substantial and irreversible physical impairment of a major bodily function,” a provision experts interpreted as an effort to exclude an exception based on a woman’s mental health.
Casey‘s undue burden standard is the strictest for abortion regulations before the fetus is viable. By banning abortions of fetuses starting at twenty weeks old, Nebraska’s new law seeks to set a new bright line for fetal viability.
If this case gets to the Court as currently composed (assuming Justice Stevens’s successor will vote as he would have voted), Justice Kennedy will, as ever, be the deciding vote. Although he voted in both Stenberg and Gonzales to uphold the partial birth abortion bans, his vote is less certain for this law. A total ban on abortions of arguably pre-viable fetuses when the state’s regulatory power under Casey is at its nadir is very different from what Kennedy saw in Gonzales as a narrow ban on a particular abortion procedure that was performed when the state’s regulatory power under Casey was at its apex.
Further, if Casey did anything for an instinctual abortion foe such as Kennedy, it was to demolish Roe‘s rigid trimester framework and erect in its place a more fluid, regulation-friendly, assessment based upon fetal viability. The new Nebraska law puts back in place Roe‘s rigidity, even as it cuts away at the abortion right. In doing so, the law invites the Court’s steadfast abortion foes to keep approving of each states’ moving the viability goalposts ever closer to conception, thereby eviscerating the appeal of bright line rules while making a mockery of the serious viability assessments required under Casey.
Finally, one must not forget that Justice Kennedy will have the weight of Casey upon him as the sole remaining member of its majority of himself and Justices O’Connor, Souter, Stevens, and Blackmun. It is doubtful that Kennedy, a man very aware of his unique place on the Court, would vote to uphold a law that strikes at the very core of his career’s most courageous stand.
The trifecta of recent Justice Stevens interviews has pushed to the fore speculation about his successor. Such speculation has been going on for quite a while–F1@1F has been at it since its first day of existence. This weekend, two members of the Senate Judiciary Committee, responded to the interviews with their own thoughts.
From FOXNews.com yesterday:
Senate Minority Whip Jon Kyl, R-Ariz., speaking on “Fox News Sunday,” warned President Obama not to try nominating anyone “overly ideological” to replace Stevens, who is known as the leader of the liberal wing of the court.
He suggested the party did not want anyone so outspoken as Sonia Sotomayor, who was picked to replace former Justice David Souter last year, and said the decision on whether the GOP will filibuster will “all depend” on who the next nominee is.
“I think the president will nominate a qualified person. I hope, however, he does not nominate an overly ideological person. That will be the test,” Kyl said. “And if he doesn’t nominate someone who is overly ideological, I don’t think — you may see Republicans voting against the nominee, but I don’t think you’ll see them engage in a filibuster.”
He said Republicans would only filibuster under “extraordinary circumstances,” the standard agreed to after a series of clashes in Congress over judicial nominees under former President George W. Bush.
At least one Democrat is taking Kyl’s threats seriously.
Stevens told The Washington Post he “will surely” retire while Obama is still president. But Sen. Arlen Specter, D-Pa., told “Fox News Sunday” he hopes Stevens will wait until next year to do it, when the politics in Congress would potentially be a bit less toxic.
“I think the gridlock in the Senate might well produce a filibuster, which would tie up the Senate on a Supreme Court nominee,” Specter said. “I think if a year passes there’s a much better chance we can come to a consensus.”
Back in January, immediately after Scott Brown’s Senate win, I wrote that President Obama may be able to use Republican apoplectic overconfidence to his advantage:
Brown’s election could very well result for the GOP in a case of “be careful what you wish for” should Stevens step down this summer.
To be sure, without 60 guaranteed votes, Obama may move away from choosing a nominee with the liberal record of Judge Diane Wood of the Seventh Circuit. But then again, if he chooses her–a natural heir to Justice Stevens–and the GOP as a result holds up a Supreme Court nomination through November, the Democrats will more potently than ever be able to paint the 41-person GOP minority as an obstructionist, nihilist, and extremist Party of No.
In other words, Obama may be wise to continue with his next nominee as planned–if indeed he planned to pick a proven liberal–just to show that when given a high enough platform and just enough rope, today’s GOP will hang itself.
With Republicans resolving to run on repealing and replacing the PPACA, expect some commentators to reflect Senator Specter’s squeamishness in the face of Senator Kyl’s threats. They will clutch Massachusetts ballots and wave the Court’s Citizens United opinion so to reveal doomsday visions of insurance companies emptying their freshly unchained coffers into the 2010 campaign on a multimedia effort to smear all incumbents who voted for health care reform as fascists, socialists, and communists.
In response to the GOP’s resolution, Obama told them to “go for it.” He might as well have been speaking about Republicans’ including any of his possible judicial nominees in their Party of No platform for the midterm election.
Specifically, Obama must understand that if the GOP filibusters or stalls his next Supreme Court nominee into the fall, then the Republicans will be the ones that suffer come the first Monday in October. If Justice Stevens conditions his resignation upon the confirmation of his successor, then Obama will be able to paint the GOP as a group of blackhearts gleefully depriving a 90-year-old man of his hard-earned retirement. And if Stevens unconditionally steps down, then a Congressional minority will be held responsible for keeping the Court from operating at full capacity at the start of next term.
In either situation, the Court could become a big issue for the final month before Election Day. Don’t be surprised if the Chief Justice, facing a massive stack of cert. petitions awaiting the justices for their late September conference, extends his public colloquy with Obama to join him in admonishing the Senate minority to cease playing politics with the Court.
UPDATE: Just as I posted this, Dahlia Lithwick’s latest, “Short Shrift: The Supreme Court Shortlist as Political Anthropology,” popped up in my reader:
As an anthropological document, the Bloomberg News list [of Wood, Kagan, and Garland] reveals a good deal about the general fatigue of the court-watchers. We’ve become so reliant upon the old scripts about “activists” and “umpires” and abortion and religion that we prefer them to experimenting with new ones.
I believe that this latest round will be the last to follow the old scripts, and even then, it may depart from them.
- Garland will be the only nominee of the three that needn’t depart by choice or force from the old script. He’s a moderate, and the Republicans will not push hard against him if he’s nominated.
- Kagan’s nomination will be novel only because she is not, nor has she ever been, a federal judge. Historically, however, Solicitors General have been commonly put forward for the Court: the last SG to have been nominated was Bork, the last to have been confirmed was Thurgood Marshall. Still, if you thought that Sotomayor reached a certain kind of performance art perfection in her confirmation hearing stonewall, Kagan’s may be even more fantastically opaque.
- While Wood is a federal appeals judge, she will be the first full-fledged liberal nominee to the Court since Thurgood Marshall, even if her liberal jurisprudence would have been deemed only slightly left of center in his time. Further, with her extensive paper trail and Congress’s Democratic majority, Wood may even break the post-Bork spell on fearful, know-nothing confirmation hearings. If she can finally kill off that bit of the old script, then Obama and future presidents of either party may begin diversifying their Supreme Court shortlists to include other capable nominees, judges or not, who can be confirmed for what they say, not for what they don’t say.
UPDATE II: Newsy.com has compiled a video roundup of the recent Stevens hubbub:
The public colloquy between President Obama and Chief Justice Roberts continues, but this time they have acted in concert rather than at loggerheads.
At Tuesday’s oral argument in New Process Steel v. National Labor Relations Board, the Court considered whether the five-seat NLRB could command a quorum of three when only two members actually sat on the board. The Government argued that two board members could, in fact, constitute a quorum for NLRB deliberations in the face of Senatorial obstruction to the President’s three nominees to the NLRB.
After Justices Kennedy, Scalia, and Ginsburg grilled Deputy Solicitor General Katyal over the broken nomination and confirmation process, Chief Justice Roberts lobbed a final, “why are we even here?” question: “And the recess appointment power doesn’t work why?”
Today the President demonstrated that he heard the Chief Justice’s suggestion and used his recess appointment power to place two of his NLRB nominees, both Democrats, in their posts. Obama left unappointed his third nominee, a Republican.
Whether Obama’s move will compel a majority of the Roberts Court to dismiss the case as moot remains uncertain. Like Kiyemba, the facts of the case before the Court have so changed as to seemingly unmoor the legal question. For this reason, the Court may “G…VR” the case for consideration by the newly quorum’ed NLRB.
Nevertheless, New Process Steel’s claim remains grounded in the fact that a statutorily questionable two-member NLRB rendered a decision against the company; indeed, there stand many NLRB decisions made by its two members whose statutory legitimacy would remain questionable without the Court’s ruling.
Further, even with the four members now sitting on the NLRB, simple math and recess appointment rules suggest that the Court would do well to clarify matters: first, one NLRB member is set to retire this summer; second, the two members appointed today may not receive Senate confirmation at the end of the next session of Congress–and at least one has faced significant opposition. Four minus one minus one or two. That’s back to below three NLRB members.
The concrete grievances over the legitimacy of past two-member NLRB decisions such as the one against New Process Steel are far more persuasive reasons why the Court should address the merits of this case than the fear of some future moment when the NLRB dips back down below three members. But that fear of the future will surely affect the Court’s reasoning if it does choose to decide the case so to retroactively (and therefore prospectively) bless or condemn the two-member decisions.
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.
Any invocations of, say, Citizens United in fear (or support) of the notion that the Roberts Court will not hesitate to strike down the law are overheated. We may expect the conservative bloc and Kennedy to chart rightward on conservative-libertarian issues, but as long as the Democrats hold at least one of the elected branches, the Court will invalidate neither landmark New Deal and Great Society legislation nor core components of the Obama agenda.
I cast the same suspicion over arguments citing Bush v. Gore as historical, if not legal, precedent for the Court’s capacity for rash, political meddling. Challenges to the PPACA will simply lack the blinding immediacy of a Presidential election left unresolved a month before Inauguration Day.
Finally, all of this hand-wringing may be for naught: I think the circuit courts will uniformly uphold the law’s constitutionality against attacks, and without a circuit split, I doubt the Court will even grant certiorari. And if there is a circuit split and the Court does hear the case, then I think we’re likely to see a near-unanimous upholding of the law.
In contrast, the Court will more likely reserve its blockbuster 5-4 decision to affirm or reverse whatever the Ninth Circuit will hold on the gay marriage case, an issue of grave importance to movement conservatives without the imprimatur of historical inviolability implicitly grandfathered into the PPACA from its LBJ- and FDR-era ancestors.
Back when I started up F1@1F, Kiyemba v. Obama stood to be argued this morning as the next installment of the Court’s Guantanamo cases, following 2008’s landmark ruling in Boumediene v. Bush. The case asked whether a federal judge had the power to relocate into the United States the few remaining Uighurs held at Guantanamo after they were determined not to have been enemy combatants.
But then the Swiss agreed in early February to resettle the remaining Uighurs just before the Government’s brief was due to the Court. Despite some arguing that the Court should still hear the case for the legal issues presented, the Court remanded the case for further review, stating that “[n]o court has yet ruled in this case in light of the new facts, and we decline to be the first to do so.” Five of the Uighurs remain in Guantanamo after refusing multiple relocation offers from countries without established Uighur communities.
Without Kiyemba on the docket, this week has held little promise for F1@1F. I thought about going to this morning’s remaining case, New Process Steel v. National Labor Relations Board, just to see what the line would be like for a case asking whether two people equals three people (really!). But my alarm this morning also woke in me some bleary-eyed clarity: the Court could be handing down major opinions from its October sitting this morning and I would be attending a lunch talk by Judge Diane Wood. I could very well be writing about these things through the afternoon and evening, so I chose to get a few more hours of sleep rather than watch the justices themselves pass out during an argument about an NLRB quorum.
Without writing material from the Court, I went off to see Judge Wood speak at an ACS lunch discussion. Whether she was in DC solely for this event, or if she had some more important matters in DC, no one said. In fact, her talk and the accompanying Q&A focused almost exclusively on Seventh Circuit practice.
The only noteworthy quotes came from Tom Goldstein of SCOTUSBlog, who, in introducing Judge Wood, recognized the “undeniable subtext” of why I and nearly all of the Supreme Court press corps was in attendance: “if the stars align and the Left shows some guts, Diane Wood should be on the Supreme Court.”
It was a necessarily glowing, but no less sincere, introduction from the man who predicted last month that President Obama would pass over Wood for the younger, more confirmable Elena Kagan. F1@1F, however, continues to maintain that Wood will be the next justice should Justice Stevens retire at the end of this term.
Even though I left the talk without a story, it was good to have a potential before-she-was-a-justice moment. Still, here’s to a more fruitful next week for F1@1F.
Finally, two bits of miscellaneous debris from yesterday:
- ABC’s Ariane de Vogue wrote yesterday about Goodwin Liu’s nomination to the Ninth Circuit, with a sub-headline of, “Contentious Hearing for Lower Court Nominee to Foreshadow High Court Battles to Come.” The article reports out and builds upon what I observed here in January.
- The Atlantic’s Marc Ambinder has a “you heard it here first” post about Ben Mizer, Ohio’s Solicitor General. Ambinder seems to suggest deeply between the lines that Mizer, who argued before the Court yesterday, stands a chance well down the line of becoming a Justice.
UPDATE: Dahlia Lithwick makes me wish I went to this morning’s case after all…