FIRST ONE @ ONE FIRST

Interview @ Concurring Opinions

Posted in Endorsements, Law and Politics by Mike Sacks on July 8, 2010

Over at Concurring Opinions, Brandon Bartels has posted an interview with me about F1@1F for the legal blog’s “Bright Ideas” series.  Here’s a sample:

What unique insights have your experiences over the past term given you about the Supreme Court and the justices?

Chief Justice Roberts is a superb political strategist.  He’s steering a right-of-center Court through a left-of-center government and knows which storms his ship can handle and which it cannot.  I wrote prospectively about this back in December, Jeff Rosen of The New Republic wrote about it in February, and Adam Liptak of the New York Times wrote about it just the other day.

What we’ve seen this year is the birth of John Roberts’ Court.  It will always, to a degree, remain the Anthony Kennedy Court as well, until he leaves the bench or one of the conservatives is replaced by a liberal.  But Roberts took control this year in the Court’s decisionmaking that we haven’t yet seen.  The next interesting thing to look out for is what issues beyond Miranda, guns, arbitration, and campaign finance the Chief believes are ripe for conservative gains as the Congress and the Presidency remain in Democratic hands.

Read the rest here.

I should note that Prof. Bartels and I have a history.  We met in the Comstock line on January 12 around 5am.  He was third and I was still nursing my wounds from being second on my second morning on the project.

And then, for the very last day of oral arguments, two of his political science students at GW usurped me.  But I forgive the professor and his acolytes–they’re all very good people.

Check out Prof. Bartels’s scholarship on the Court and judicial politics over at his website.

An Inspiring Sight for All

Posted in Case Reports, Kagan Nomination, Law and Politics by Mike Sacks on July 1, 2010

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.

Rosen on Brandeis in TNR

Posted in Kagan Nomination, Law and Politics by Mike Sacks on June 29, 2010

Jeffrey Rosen has a very long, but very good, essay/review in The New Republic of Melvin Urofsky’s Brandeis biography.  Entitled “Why Brandeis Matters,” the piece begins with an examination of Brandeis’s crusade against corporate and governmental bigness as applied to the Roberts Court’s reflection of today’s current economic and political climate and ends with an account of his Zionism as symbolic of his devotion to cultural pluralism.

In between these sections, Rosen provides a timely passage for the Kagan hearings:

In addition to combining judicial restraint with passionate anti-corporate progressivism, Brandeis’s Liggett dissent exemplified a third aspect of his judicial philosophy: his commitment to interpreting the ideals of the Founders in light of the entire range of constitutional history. In this sense, Brandeis provides an inspiring model for citizens today who are searching for an alternative to the rigid originalism championed by some Roberts Court conservatives, and also for an alternative to the untethered “living constitutionalism” of some Warren Court liberals. Brandeis combines elements of originalism and living constitutionalism into an approach that might be called living originalism.

Brandeis believed that the values of the Founders were immutable, but had to be translated into a very different world in light of dramatic changes in society, technology, and economics. He believed in constitutional change—in a talk called “The Living Law,” he charged that the law had “not kept pace with the rapid development of our political, economic, and social ideals” and said “the challenge of legal justice [was] to conform to our contemporary conceptions of social justice.” But Brandeis insisted that efforts to render constitutional values in a contemporary vocabulary always had to be rooted in the text and in the broad unchanging ideals of the Framers. By interpreting the values of the Framers in light of progressive movements across the range of American history, Brandeis believed they could be preserved in a way that served the needs of citizens in the here and now—which is, after all, what the Constitution was written to do.

This “living originalism”–not to be confused with the “restrained activism” I discussed in the post below–was on display today as Solicitor General Kagan sought to bust the originalist/activist binary.

NYT End-of-Term Analysis

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

Adam Liptak has a great recap of the just-completed 2009 term:

Chief Justice Roberts took control of his court this year, pushing hard on issues of core concern to him, including campaign finance, gun rights and criminal procedure, even as he found common ground with his colleagues on an array of other issues.

He was in the majority 92 percent of the time, more than any other justice. Last year that distinction went to Justice Anthony M. Kennedy, who is often regarded as the court’s swing vote.

“More than in any other year since he became chief justice, this has truly become the Roberts court,” said Gregory G. Garre, who served as solicitor general in the administration of George W. Bush and is now at Latham & Watkins.

This analysis is absolutely on point.  The intellectual underpinning of F1@1F has been my hypothesis, now apparently proven if the NYT analysis is a reliable source, that this term’s docket largely reflected the Chief Justice’s awareness of the Court’s available political capital to achieve conservative gains beside liberal elected branches.  The Court primed itself to move the law where they could and to leave for a later day those that would do more damage to the Court’s institutional legitimacy than their worth to the conservative legal movement.

For newer F1@1F readers, please give this post a read.

Most striking since I wrote the piece has been the Chief Justice’s ability to call upon the sort of “restrained activism,” introduced in NAMUDNO at the end of last term when he limited the scope of the Voting Rights Act of 1965 rather than strike it down as many expected.  This term, he has employed and endorsed such legislation from the bench so to get the kinds of politically acceptable results to make some of the Court’s pro-business decisions go down a bit easier.  Last week, he joined Justice Ginsburg’s Skilling decision to specifically limit and define federal honest services laws rather than strike them down–as urged by Scalia, Kennedy, and Thomas–so not to let Jeff Skilling walk free.  Yesterday, in Free Enterprise Fund v. PCAOB, the Chief Justice rewrote the Sarbanes-Oxley Act–created in the wake of Skilling’s Enron collapse–to force the Public Company Oversight Accounting Board into his vision of constitutionality rather than strike it down outright.

What we’ve had, as I suggested in the winter, is a Chief Justice that knew–and cared–that the Court had only one huge expenditure available to it, and spent it in Citizens United.  The rest of the docket was formed and decided accordingly, with the conservatives taking smaller, more under-the-radar steps while the liberals won what they could.

Whereas Justice Kennedy may be the limiting factor on the hot buttons of abortion and affirmative action, issues as the NYT piece noted were nowhere to be found this term, he’s firmly in the maximalist pro-business camp.  And for a Court operating in an economic downturn with Democrats in the political branches all too willing to cast it as the tool of an intemperate Tea Party, the Chief–often joined by Justice Alito–must serve as the prudent captain of his man of war‘s voyage towards economic liberty without crossing the Roosevelt Rubicon.

Epic Morning

Posted in Case Reports, Law and Politics by Mike Sacks on June 28, 2010

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.

Off to Hart.

JLWOP Weekend Reading

Posted in Law and Politics by Mike Sacks on June 26, 2010

Just because a case has been decided doesn’t mean all issues surrounding it have been resolved.  We will be reminded of this on Monday afternoon when Elena Kagan will begin her confirmation hearings by listening to what surely will be more than a few Senatorial earfuls over whether she agrees with the decisions in any of the four big cases the Court will have handed down just that morning.

But there will be other cases from this term that will continue to make hay in our courts and at the ballot box.  The Court’s 5-4 opinion in Graham v. Florida invalidating life sentences without parole for juveniles convicted of non-homicide crimes is one such case.  Graham has triggered changes–and with changes, challenges–to the criminal law’s political and legal landscape.

For those interested in some compelling post-Graham analysis, please check out Scott Hechinger’s article in the forthcoming issue of the NYU Review of Law & Social Change, now available on SSRN.  Scott is a newly-credentialed NYU Law graduate, the 2010-11 Sinsheimer Children’s Rights Fellow, and very good friend of mine.  This article is loaded with smart analysis and debatable positions that F1@1F readers will surely enjoy.

Court Breaks Its First Amendment Streak

Posted in Case Reports, Law and Politics by Mike Sacks on June 21, 2010

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.
Interestingly, the Court cites its 1989 opinion in Texas v. Johnson–the famous flag burning case–for the proposition of strictly scrutinizing the material support law:
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.

Cons Want it Both Ways in STBR

Posted in Case Reports, Law and Politics by Mike Sacks on June 17, 2010

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.
How Scalia’s takedown of Substantive Due Process here will play with the decision in McDonald v. City of Chicago, in which he accepted SDP’s legitimacy over the PI Clause at oral argument, is to be determined.  But he does give hints in STBR on why he thwarted Alan Gura’s argument in McDonald: Gura was gunning, through guns, for a libertarian legal resurrection that Scalia wants to keep buried:
[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.

Retired Justices as Subs for Recusals

Posted in Kagan Nomination, Law and Politics by Mike Sacks on June 16, 2010

David Ingram of the National Law Journal is reporting that Patrick Leahy may push for retired justices to sit for cases in which other justices recuse themselves.

According to the article, Justice Stevens made this recommendation to Leahy (D-VT), the Chair of the Senate Judiciary Committee.

This seems to me a politically loaded suggestion.  There has already been much talk about Kagan’s potentially high recusal rate over the next few terms as the Court continues to hear cases that her office had briefed in the lower courts.  On divisive issues, Kagan’s absence would lead to 5-3 victories for conservatives or ideological deadlocks at 4-4.

I cannot imagine that the GOP members of the Judiciary Committee will agree to this plan.  If Kagan does not recuse herself on a case in which a conservative may be obligated to do so, two of the substitutes–Souter and Stevens–would be a fifth vote on the left.  It is not inconceivable that these two retired ringers could cut away at the Roberts Court’s business-friendly precedents, as the Court sometimes goes shorthanded on cases concerning corporations in which justices may own stock.

O’Connor, too, exited the Court to the left of Anthony Kennedy on campaign finance, church-and-state, abortion, and affirmative action cases – all issues that have been cut back since Alito succeeded her.  However, recusals on these cases are less likely.  That is, unless some advocacy group somehow finds a not-too-distant relative of Justice Scalia who is an abortion doctor in Nebraska that is willing to be a named plaintiff in a federal case.

CT in 2012?

Posted in Law and Politics, Weekend Reading by Mike Sacks on June 11, 2010

As I continue to toil away on some outside writing projects (you’ll find out about them soon…), give a read to this Washington Post op/ed by David Lat and Kashmir Hill of Above the Law.

Entitled, “Justice Clarence Thomas seems bored. Why doesn’t he run for president in 2012?”, Lat and Hill go on to make an argument that should make any Court watcher and student of law and politics wonder, “Why haven’t I thought of this before?”  That is no slight – this article is refreshingly provocative and plausible.  There’s no better kind of commentary.  Here’s a sample:

The Republican Party is in disarray, with no clear message — as shown in last week’s primaries — and with no obvious candidate to challenge President Obama in 2012. Thomas could be the GOP’s new standard-bearer. He has enviable name recognition, both as a long-serving justice and as the author of the bestselling 2007 autobiography “My Grandfather’s Son.” And he has already survived the nasty political attacks that marked his 1991 confirmation hearings.

No matter what one thinks of Justice Thomas, I think there’s a little something for everyone in Lat and Hill’s proposal.

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