FIRST ONE @ ONE FIRST

The Next Roberts Court: Affirmative Action

Posted in Clairvoyance, Law and Politics by Mike Sacks on August 23, 2010

Michael Kirkland of UPI wrote yesterday about Fisher v. University of Texas, the affirmative action case currently before the Fifth Circuit.  I noted this case in a link at the top of my last post, and had originally gone on to discuss it, but I decided to keep that post focused on the abortion laws in Nebraska.  Now’s as good a time as any to continue my thoughts on the hot buttons that may reach the Court in the next election cycle, and how the Court may handle them:

Affirmative action in higher education is the remaining hot-button issue on which Kennedy and O’Connor disagreed, but has yet to be tested since Alito joined the Court.  When O’Connor sided with the liberal bloc in determining that the University of Michigan Law School’s race-conscious admissions policy survived strict scrutiny in 2003’s Grutter v. Bollinger, Kennedy dissented.

Although Kennedy is not hostile to affirmative action itself, he believes the Grutter majority watered down the Court’s strict scrutiny standard formulated in Justice Powell’s concurrence in 1977’s Bakke, which approved of a narrowly tailored use of race to achieve the compelling state interest of holistically diverse student bodies in higher education. In other words, Kennedy approved of the use of race, but would give higher-ed affirmative action schemes more searching review than the Grutter majority had demonstrated.  As he concluded in his Grutter dissent:

If the Court abdicates its constitutional duty to give strict scrutiny to the use of race in university admissions, it negates my authority to approve the use of race in pursuit of student diversity. The Constitution cannot confer the right to classify on the basis of race even in this special context absent searching judicial review. For these reasons, though I reiterate my approval of giving appropriate consideration to race in this one context, I must dissent in the present case.

Whether or not Kennedy believes that UT’s consideration of race for applicants beneath its top-10% auto-admit program satisfies his application of strict scrutiny, what is certain is that his application of strict scrutiny will supersede Grutter as precedent.

If Kennedy rejects UT’s policy, he will be the limiting agent on the conservative bloc in the Roberts Court’s first foray into higher-ed affirmative action.  Dependent on Kennedy for the fifth vote to invalidate UT’s race-conscious admissions policy, the conservative bloc could not go the whole Thomas and strike down all consideration of race.  After all, Kennedy, in giving the conservative bloc its fifth vote in 2007’s Parents Involved, refused to sign onto Roberts’s opinion declaring that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  This maximalist statement was certainly not only meant for public high school admissions schemes.

Nevertheless, Kennedy’s accepting UT’s policy will have the same constitutional effect as his rejecting it.  In any scenario (assigning the majority opinion to himself and strong-arming the liberal bloc into joining him lest he change his vote; assigning the majority opinion to himself and losing his majority, thereby writing for himself in a 4-1-4 decision; assigning the majority opinion to a justice he believes to be simpatico who manages to keep him in the fold; assigning the majority opinion to another justice unwilling to revisit Grutter, compelling Kennedy to write for himself), Kennedy will bury–or, at the very least muddy–Grutter.

The justice to watch, then, will be the Chief.  In Parents Involved, he showed his hand.  He wrote more aggressively than he had written in Wisconsin Right to Life,  in which he refused to follow Kennedy, Scalia, and Thomas towards striking down the same provision of the McCain-Feingold Act that he ultimately voted to put out of its misery this past year in Citizens United.  By making his antipathy to affirmative action so clear in Parents Involved, then, the Chief does not leave himself the same room to backpedal on affirmative action as he had given himself to press onward with campaign finance.

Yet might he want to cast his lot with Kennedy in Fisher?   Roberts’s best case scenario for effectively ending affirmative action is to work with Kennedy to make its scrutiny impossibly restrictive rather than stand on the sidelines calling for affirmative action’s immediate demise.  Roberts can better retain control over his Court’s direction by placing himself in the position to put his own stamp on Kennedy-dominated jurisprudence and placing seeds of doubt within the opinion that at present will be within Kennedy’s boundaries but in the future could be used, should the Chief have a majority, to bring upon affirmative action’s demise.

But I don’t think this will happen.  I take the Chief’s position in Parents Involved at face value.  He will stand firm in his opposition to affirmative action, extending his antagonism to its use in higher education.  In doing so, he will be mindful of his own words in his Citizens United concurrence, where he stated that

if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.

Kennedy had hotly contested the Court’s approval of campaign finance restrictions since he had joined the Court, refusing the entire way to give any weight to disagreeable precedent.  Ultimately, that resulted in the Court’s overturning not only 2003’s McConnell, the most recent facial affirmation of campaign finance rules, but also 1990’s Austin v. Michigan, the case of original sin for Kennedy and his Citizens United majority.

Having provided the justification for such principled intransigence on disagreeable lines of precedent, Roberts might rather dig his heels in and argue that the problem is not simply Grutter, as Kennedy will suggest, but Grutter‘s very root, Bakke.  This position will not prevail with the current court, but if elections work in Roberts’s favor, he will be able to cite his own hot contestation–in which he and Alito will have joined Scalia and Thomas’s decades of protest–in striking down affirmative action well before Justice O’Connor’s suggested 25-year sunset provision in Grutter.

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.

Someone Hasn’t Been Reading F1@1F…

Posted in Law and Politics by Mike Sacks on April 18, 2010

In today’s New York Times Week in Review section, Peter Baker writes of “Obama v. Roberts: The Struggle to Come“:

The urgency is greater this year since the Citizens United decision in January, in which the Roberts court threw out precedents to rule that corporations have First Amendment rights to spend money in election campaigns. Advisers said the ruling crystallized for Mr. Obama just how sweeping the chief justice was willing to be. Indeed, some around the president suspect that Chief Justice Roberts, after moving incrementally in his first few years on the bench, has taken a more assertive approach since Mr. Obama took office.

This assertion defies facts.  In fact, I began F1@1F to explore whether the opposite holds true–that Chief Justice Roberts has guided the Court more modestly under Democratic electoral dominance than he had at the start of his Chiefdom.  From F1@1F’s very first post:

  • During the 2006-07 term, the first full term in which both Chief Justice Roberts and Justice Alito served together, Republicans controlled the White House and both chambers of Congress.  Meanwhile, the Roberts Court aggressively pushed rightward on abortionstudent speechschool desegregation, gender discrimination, and campaign finance.
  • The Court’s 2007-08 term proceeded alongside a divided government with a Republican President and Democratic majorities in the House and Senate.  The Court reflected the division: President Bush, seeking a legacy, saw a conservative interpretation of the Second Amendment win out in Heller; the Democratic Congress, elected in a wave of anti-war sentiment, found its hostility to Bush’s war on terror policies reflected in the Court’s granting habeas corpus rights to Guantanamo detainees in Boumediene.
  • Last term, which straddled the Bush and Obama presidencies, found the Court taking a blockbuster case in in September 2008 that threatened to invalidate a key civil rights provision of the Voting Rights Act of 1965, but pulled back with an 8-1 decision in June 2009 upholding the provision.
  • This term, the first one fully operating alongside a Democratic Presidency and Congress, is progressing in an almost post-partisan fashion, as if the conservative Court has taken to heart President Obama’s overtures to the Right unwelcome among Congressional Republicans.  The Court is reckoning with one case that pits liberal values against liberal values, another in which two conservative values clash; further, McDonald v. City of Chicago may result in a grand bargain in which the conservative Heller majority can extend its interpretation of the Second Amendment to the states by breathing new life into a clause of the Fourteenth Amendment that could strengthen constitutional protection for liberal causes.  In fact, the only case that threatens a drastic shift to the right in a politically salient issue is Citizens United, the campaing finance case I camped out for in September.
  • Since I wrote that in December, Citizens United has emerged, as expected, as the Court’s one big rightward expenditure of its political capital this term.  And although the McDonald oral argument put to death my speculation of a grand bargain between the Court’s liberal and conservative blocs, its result–incorporation of the Second Amendment to the states–will not cause a national backlash and political firestorm.

    The OT09 docket’s conspicuous absence of any other red-hot button case is, in my opinion, hardly an accident. Roberts knows just how much–or little–political capital his Court possesses to achieve conservative gains under a Democratic electoral mandate, and he has picked his battles accordingly.  Baker’s sources are in plain error to use Citizens United as proof of a more aggressive, confrontational Roberts Court.

    Baker’s article was not a total wash, however.  Noting the Chief Justice and the President’s public colloquy of late, the article concludes:

    The debate between the men, by necessity, takes place in this way — indirectly, and soon through the confirmation hearing of a new nominee. Christopher Edley Jr., an Obama adviser and dean of the law school at the University of California at Berkeley, said it was a shame the two could not have at it one on one.

    “Televise this chief justice and this president on stage at the Kennedy Center for three hours talking about the role of government and the future of our polity,” Mr. Edley said. “This historic clash of intellectual titans would be the most powerful civics lesson since the Federalist Papers, and we could sure use it.”

    We sure could.

    UPDATE: Meanwhile, in The New Republic, Barry Friedman and Jeff Rosen support what I’ve written here several times over (or the other way around – as they are law professors who write books, not blogs):

    How will the Supreme Court respond to these attempts to enlist it in a war with the president and Congress? If history is any predictor, the justices won’t be interested in a sustained assault. As both of us have written in recent books, on the big issues, over time, the Court tends to come into line with public opinion. Think here of gay rights, women’s rights, and abortion. And when the Court has wandered outside the mainstream–on issues like the death penalty or economic regulation–it has quickly retreated after encountering resistance from the public, Congress, or the president. The Court, in other words, is very sensitive to the possibility of backlash against its actions; and if anything, the heated reaction to its recent decision striking down campaign finance restrictions on corporations is only likely to make it more so.

    [...]

    Which brings us to the Roberts Court. Is it likely to stand in the way of Obama and the Democrats’ agenda? What will happen, in particular, with health care?

    We aren’t seers, and a lot can happen before any of this makes its way to the Court. But nothing we’ve seen—including January’s decision in Citizens United—leads us to believe that the Court is likely to behave differently in the future than it has in the past.

    Which means that the Court is going to be hesitant to launch a sustained challenge to the core of the Democratic agenda. And in the unlikely (but not impossible) event that it does decide to launch a sustained challenge, the justices will find themselves under attack in return as long as the Democrats still have popular support. If that happens, history suggests that such attacks on the Court will eventually precipitate some kind of judicial retreat.

    The Roosevelt Rubicon

    Posted in Clairvoyance, Law and Politics by Mike Sacks on March 24, 2010

    Per the latest round of constitutional attacks on the now-passed Patient Protection and Affordable Care Act (PPACA), my original post from early January still holds.

    The Roberts Court knows not to backpedal across the Roosevelt Rubicon.  Striking down the PPACA will be today’s equivalent of the pre-1937 Hughes Court’s sustained attack on New Deal legislation.

    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.

    A Difficult Case, Indeed

    Posted in Case Reports by Mike Sacks on February 23, 2010

    This report is cross-posted at the ABA Journal’s website.  Read here, read there, comment and share everywhere!

    Early in this morning’s oral argument in Holder v. Humanitarian Law Project, Justice Anthony Kennedy plainly remarked, “this is a difficult case for me.”  The issue was whether a 1996 federal law banning “material support” to designated terrorist organizations infringed on the First Amendment rights of a group seeking to train Turkey’s Kurdistan Workers’ Party (PKK) and Sri Lanka’s now-defeated Tamil Tigers in international law advocacy and peacemaking.

    But Kennedy’s pondering the disputed law’s ephemeral distinction between proscribable conduct and protected speech appeared to come to an abrupt halt when Solicitor General Elena Kagan conceded to Justice Kennedy that the law could ban lawyers from submitting amicus briefs on behalf of designated terrorist organizations.  Here was the government telling attorneys who they could and could not represent in a court of law–not a winning argument before a tribunal of, well, attorneys.

    The Court’s liberal bloc–Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor–had already displayed their skepticism towards the government’s asserted ability to criminalize speech meant to assist a terrorist organization’s legal activities.  Sotomayor even suggested that “[u]nder the definition of this statute, teaching these members to play the harmonica would be unlawful.”

    In response Kagan quipped, “I think the first thing I would say is there are not a whole lot of people going around trying to teach Al-Qaeda how to play harmonicas.”  Justice Antonin Scalia, the lone vocal supporter of the government’s argument, saved the Court further talk of harmonicas by shoving Sotomayor’s hypothetical into an absurd vision of chief 9/11 hijacker “Mohammed Atta and his harmonica quartet” touring the country to “make a lot of money.”

    Meanwhile, Justice Clarence Thomas just this week marked his streak of silence’s fourth anniversary, but one could assume he’d ally with Scalia in this case, given his previous willingness to prohibit intensely disfavored expressive activity by casting it as pure conduct.

    If Kagan’s amicus-ban assertion seemed to crystallize for Kennedy the infirmity of the law in question, Justice Alito may have fallen off the government’s wagon when Kagan explained that Congress did not intend to criminalize one’s meeting with or joining a designated terrorist organization.  Queried Alito:

    Could you explain how someone could be a member of one of these organizations without providing a service to the organization? Simply by lending one’s name as a member; that might be regarded as a service. If you attended a meeting and you helped to arrange the chairs in advance or clean up afterwards, you would be providing a service to the organization.

    However, Alito may have asked this question simply to get Kagan to walk back her distinction between simple membership and criminal service-providing so that he could more easily side with the government.  After all, he was the sole supporter of the government’s position in United States v. Stevens, in which the Court is likely to rule a federal ban on depictions of animal cruelty to be an unconstitutionally overbroad restriction on speech.  But walk it back Kagan did not.

    Even if Alito still finds a way to join Scalia, even if the loquacious Kennedy forgets that lawyers may be silenced, and even if silent Thomas sides at conference with Sotomayor, Chief Justice Roberts signaled an openness to killing the law as applied to HLP.  That is, as long as the Court got no government blood on its hands.

    During HLP counsel David D. Cole‘s rebuttal, Roberts asked, “why don’t we remand it to the lower courts to apply strict scrutiny if we agree with you that” the law does, in fact, prohibit pure speech as opposed to conduct that incidentally touches speech?

    Cole quickly endorsed this plan, knowing that strict scrutiny is nearly always “strict in theory, but fatal in fact.”

    But just as soon as Chief Justice Roberts offered up a pleasing resolution for this “difficult” case, Justice Sotomayor jumped in to close the morning with the argument that if money is speech–as the Court strongly affirmed in Citizens United–then Congress could have been onto something after all when it found that money is so fungible that “if you give [terrorist groups] money for legitimate means…it’s going to be syphoned off and used for illegitimate means.”  Such a justification for a ban on money-as-speech, Sotomayor suggested, could be “enough under strict scrutiny or under a lesser standard, reasonable fit standard.”

    Perhaps Sotomayor believed this, perhaps she was trying to impress upon her conservative colleagues the duty they owed to HLP if they were to remain fully faithful to the First Amendment principles they forcefully articulated in Citizens United.

    Either way, Sotomayor’s mixed signals forced the Court to submit HLP the same way it entered: a difficult case, indeed.

    Jeff Rosen’s Must-Read on CJ Roberts

    Posted in Law and Politics, Supreme Conflict by Mike Sacks on February 17, 2010

    Take the time to read Jeff Rosen’s latest piece in The New Republic.  Here’s the money quote, as far as F1@1F is concerned:

    And then, there was last term’s voting-rights case, in which Roberts wrote an 8-1 decision rejecting a broad constitutional challenge to the Voting Rights Act and instead deciding the case on technical grounds. For those who wanted to believe that Roberts was a genuine conciliator, this was a powerful piece of evidence. Like others, I praised his performance in the case as an act of judicial statesmanship.

    But, in retrospect, the ruling may have been less statesmanlike than it appeared. According to a source who was briefed on the deliberations in the case, Anthony Kennedy was initially ready to join Roberts and the other conservatives in issuing a sweeping 5-4 decision, striking down the Voting Rights Act on constitutional grounds. But the four liberal justices threatened to write a strong dissent that would have accused the majority of misconstruing landmark precedents about congressional power. What happened next is unclear, but the most likely possibilities are either that Kennedy got cold feet or that Roberts backed down. The Voting Rights Act survived, but what looked from the outside like an act of judicial statesmanship by Roberts may have in fact been a strategic retreat. Moreover, rather than following the principled alternative suggested by David Souter at the oral argument–holding that the people who were challenging the Voting Rights Act had no standing to bring the lawsuit–Roberts opted to rewrite the statute in a way that Congress never intended. That way, Roberts was still able to express his constitutional doubts about the law-as well as his doubts about landmark Supreme Court precedents from the civil rights era, which he mischaracterized and seemed ready to overrule.

    The voting-rights case may help explain why Roberts didn’t take a similarly conciliatory posture in Citizens United. After all, one was certainly available. Just as Roberts had implausibly but strategically held in the voting-rights case that Congress intended to let election districts bail out of federal supervision, he could have held–far more plausibly–in Citizens United that Congress never intended to regulate video-on-demand or groups with minimal corporate funding. As with the voting-rights case, judicial creativity could have been justified in the name of judicial restraint.

    There is, of course, a charitable explanation for why Roberts took the conciliatory approach in one case but not the other: namely, that he felt the principles involved in Citizens United were somehow more important and therefore less amenable to compromise. As he told me in our 2006 interview, he has strong views that he, like his hero John Marshall, is not willing to bargain away. Marshall, Roberts said, “was not going to compromise his principles, and I don’t think there’s any example of his doing that in his jurisprudence.”

    But a less charitable explanation for the difference between the two cases is that Roberts didn’t compromise on Citizens United because, this time, he simply didn’t have to.

    Setting aside Rosen’s brief and remarkable peek into the NAMUDNO deliberations, this passage also has echoes of F1@1F’s main thesis: the Court is guided by a Chief Justice who picks his battles wisely, preserving the Court’s political capital only for the cases most near to movement conservatism’s heart.  Rosen takes this point, but wavers in conclusion:

    It’s impossible, at the moment, to tell whether the reaction to Citizens United will be the beginning of a torrential backlash or will fade into the ether. But John Roberts is now entering politically hazardous territory. Without being confident either way, I still hope that he has enough political savvy and historical perspective to recognize and avoid the shoals ahead. There’s little doubt, however, that the success or failure of his tenure will turn on his ability to align his promises of restraint with the reality of his performance. Roberts may feel just as confident that he knows the “right” answer in cases like Peek-a-Boo as he did in Citizens United. But political backlashes are hard to predict, contested constitutional visions can’t be successfully imposed by 5-4 majorities, and challenging the president and Congress on matters they care intensely about is a dangerous game. We’ve seen wellintentioned but unrestrained chief justices overplay their hands in the past–and it always ends badly for the Court.

    I believe Roberts has the political sense to avoid an all-out clash with the elected branches and that the Court has formed its docket and made its decisions accordingly.  F1@1F’s mission is to test that hypothesis through oral argument and opinion analysis as well as interviews with those interested enough to get in the Court’s general admission line.  Given the expected longevity of the Roberts Court, this term alone, even set against the trend of the previous three terms, will hardly be determinative.  But it will be informative.

    WaPo-ABC Poll: Citizens United against Citizens United

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

    Dan Eggen of the Washington Post writes about the results of a new WaPo-ABC poll:

    Americans of both parties overwhelmingly oppose a Supreme Court ruling that allows corporations and unions to spend as much as they want on political campaigns, and most favor new limits on such spending, according to a new Washington Post-ABC News poll.

    Eight in 10 poll respondents say they oppose the high court’s Jan. 21 decision to allow unfettered corporate political spending, with 65 percent “strongly” opposed. Nearly as many backed congressional action to curb the ruling, with 72 percent in favor of reinstating limits.

    The poll reveals relatively little difference of opinion on the issue among Democrats (85 percent opposed to the ruling), Republicans (76 percent) and independents (81 percent).

    The results suggest a strong reservoir of bipartisan support on the issue for President Obama and congressional Democrats, who are in the midst of crafting legislation aimed at limiting the impact of the high court’s decision. Likely proposals include banning participation in U.S. elections by government contractors, bank bailout recipients or companies with more than 20 percent foreign ownership.

    But Senate Minority Leader Mitch McConnell (Ky.) and other Republican lawmakers have praised the ruling as a victory for free speech and have signaled their intent to oppose any legislation intended to blunt the impact of the court’s decision.

    This massive disagreement with the Court’s decision and the partisan disconnect in Congress with the voting public show two things:

    1. The Court wisely kicked its Citizens United decision into this term, which has no other fever-pitched case of public concern on its docket.  One deeply unpopular decision a term will allow the Roberts Court as currently constituted to steer right against today’s left-leaning political winds without spending all its political capital and destroying its institutional legitimacy.
    2. Republican voters haven’t gotten the memo…yet.  If Democratic responses move beyond a State of the Union slap and some wonky Congressional bills, and into campaign fodder this summer and fall, the GOP will get the message out to its voters that disagreeing with Citizens United is for liberals–and these days, conservatives can be thrown out of the Republican party for agreeing with liberals on issues of great impact.  Campaign finance is an issue of great impact, but campaign finance legislation makes peoples’ eyes glass over.  As such, expect some terse, lockstep messaging–the GOP’s specialty when communicating to its constituency–coming from on high.  “Corporate Personhood” and “Money is Speech” can and likely will be enthusiastically absorbed into the Republican voters’ canon within months.  Do not count on this “strong reservoir” of bipartisan disagreement with the Court’s decision to last.

    Whitehouse.gov Gets Obama’s Back in SCOTUS Spat

    Posted in Supreme Conflict by Mike Sacks on February 1, 2010

    Norm Eisen, Obama’s Special Counsel for Ethics and Government Reform, counters Alito’s “not true” regarding foreign corporate money in American elections:

    We noted with interest reports that subsidiaries of foreign corporations from across the globe have launched a lobbying campaign in Washington to protect their newfound power to influence American elections under theCitizens United case.  About 160 of these U.S. subsidiaries of foreign-owned or controlled corporations are involved in a lobbying group trying to stop President Obama and Congress from enacting limits on their spending in political campaigns.  Worse still, the lobbyist leading the effort refused to disclose all the companies involved in the lobbying campaign.  But it appears that the group of companies has the potential to spend hundreds of millions of dollars to influence American elections. [...]

    Some have argued that Citizens United will not increase foreign influence, but they are mistaken.  The four Justice dissent, authored by Justice Stevens, specifically pinpoints the fact that the majority opinion opens the door to foreign influence — see page 33 and page 75.   The majority openly acknowledged that foreign influence could pose a potential issue here, as did the lawyer for Citizens United. [...]

    Others assert that subsidiaries of foreign companies already spend millions on independent expenditures and so the Citizens United decision will make no difference.  That misses the point.  The electioneering communications law that was struck down restricted corporate ads naming elected officials in the crucial 60 days before general elections and 30 days before primary elections.  Now those corporations can spend freely on those ads during the most critical periods in elections and the express message can be to vote for or against a named candidate.  That constitutes an enormous expansion of corporate power to influence elections.

    Others claim existing law is sufficient to protect against foreign influence in our elections. That too is wrong.  Although the Federal Election Commission (FEC) restricts foreign nationals from spending or directing spending in American elections, it does not prohibit corporations in which foreign nationals are shareholders or hold significant sway or de facto control from making such expenditures.  For example, foreign-controlled corporations making independent expenditures cannot be relied upon to make decisions contrary to the political interests or preferences of their owners.  Before Citizens United, these problems did not exist at the federal level since the corporations themselves were limited in what they could do regardless of whose money or influence was behind them.  But now that restriction is no more.  Accordingly, because of these realities of how foreign control can operate, a stronger rule is needed to protect our domestic politics from foreign influence.

    Citizens United Fallout: Briscoe’s Retreat

    Posted in Anticipation, Case Reports by Mike Sacks on January 25, 2010

    After such a big fuss was made about the Court’s overturning a six-year-old precedent in Citizens United, the Court decided the death of one young precedent based on changed Court composition was enough.

    The Supreme Court just issued a per curiam opinion for Briscoe v. Virginia.  It reads in its entirety:

    We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009).

    As discussed in previous posts, it was a mystery why the Court even granted certiorari in Briscoe when its question–whether under the Confrontation Clause, lab technicians must appear at trial in person to testify about their forensic reports–had been decided in Melendez-Diaz only last term.

    The most apparent answer was that the four Melendez-Diaz dissenters granted a “spite cert” on the bet that Justice Souter, who had voted in the five-justice majority, would be replaced by a justice that would come to the opposite conclusion.

    If that guess was true, then perhaps Chief Justice Roberts and Justices Kennedy and Alito, who had been in the Melendez-Diaz dissent, figured that they had better conserve what remained of the Court’s institutional legitimacy after Citizens United.  The Court has been under enough fire for overturning 2003’s McConnell v. FEC, which, according to Justice Stevens’s dissent,

    The only relevant thing that has changed since Austin and McConnell is the composition of this Court. Today’s ruling thus strikes at the vitals of stare decisis, “the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion” that “permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals.”

    Even if Sotomayor would have voted in Briscoe as Souter had in Melendez-Diaz, then why, at least, was there no dissent in Briscoe?  I submit that Chief Justice Roberts, mindful of the Court’s political capital, looked at his Citizens United concurrence‘s discussion of stare decisis, and decided that aborting the Melendez-Diaz precedent in Briscoe was not worth the battle after all. Especially with McDonald approaching, in which the Court may very well euthanize an ancient precedent to incorporate the Second Amendment against the states.

    Speaking of McDonald, the Court has granted the NRA time to argue in support of the petitioner in McDonald.  This throws a wrinkle into just how strongly the Court is considering overturning 1873’s Slaughter-House Cases to revive the Privileges or Immunities Clause as the tool to incorporate the Second Amendment.

    The NRA, afraid that the PI Clause will be a pandora’s box for all sorts of newly discovered liberal rights, is urging the Court to use the Due Process Clause to incorporate the Second Amendment.  While using the Due Process Clause may follow existing Supreme Court incorporation precedent, conservative justices have loathed the Clause for nearly half a century.  Indeed, I don’t see Justice Scalia, the author of Heller and likely the author of McDonald, swallowing back the years of bile he spewed towardssubstantive due process” as the NRA will ask him to do.

    Citizens United/Caperton Symposium @ GULC

    Posted in Anticipation by Mike Sacks on January 22, 2010

    My law school has lined up quite a day on Tuesday for the symposium, ““State Courts and U.S. Supreme Court Rulings: Will Caperton and Citizens United Change the Way States Pick Judges?” I have no classes on Tuesdays, so F1@1F will be there.

    Justice O’Connor will be the keynote speaker.  Since retiring from the Court, she has led the fight to eliminate state judicial elections as impediments to judicial independence.

    Here’s the morning lineup:

    9:15 – 10:15 am.

    Panel 1: Caperon v. Massey Coal and the Recusal of State Court Judges

    Bert Brandenburg, Executive Director, Justice at Stake Campaign

    Carte Goodwin, Partner, Goodwin & Goodwin, PC and Chair, West Virginia Independent Commission on Judicial Reform

    Pamela Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School

    Roy Schotland, Professor Emeritus, Georgetown University Law Center

    Moderator: Nina Totenberg, Legal Affairs Correspondent, NPR

    10:20 – 11:20 a.m.

    Panel 2: Citizens United and the Election of State Court Judges

    Jan Baran, Partner, Wiley & Rein, LLP

    Karl Sandstrom, Of Counsel, Perkins Coie

    Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law, Capital University Law School

    H. Thomas Wells, Jr., Immediate Past President, American Bar Association

    Fred Wertheimer, President, Democracy 21

    Moderator: Tony Mauro, Supreme Court Correspondent, National Law Journal

    Some commentators have already noticed the not-so-easily reconcilable fact that Justice Kennedy wrote the majority opinions in both cases, each decided 5-4.  In Caperton, he wrote for the liberal bloc in holding that the 14th Amendment’s Due Process Clause required an elected state supreme court judge recuse himself from judging a case in which one of the parties had previously donated $3 million to his judicial election campaign–and for whose side, “coincidentally,” the judge, once elected to the bench, ultimately gave the winning vote.

    In Citizens United, as we all know know, Justice Kennedy wrote for the conservative bloc in holding that the same corporations that he felt under the Due Process Clause unconstitutionally sleazed up judges elected to state courts could, under the First Amendment, constitutionally spend all they wanted in local, state, and federal elections.  On page 51 of Kennedy’s opinion, he offers a distinction between the two cases:

    The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate. See Buckley, supra, at 46. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. This is inconsistent with any suggestion that the elector- ate will refuse “‘to take part in democratic governance’” because of additional political speech made by a corpora- tion or any other speaker. McConnell, supra, at 144 (quot- ing Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 390 (2000)).
    Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009), is not to the contrary. Caperton held that a judge was required to recuse himself “when a person with a personal stake in a particular case had a significant and dispropor- tionate influence in placing the judge on the case by rais- ing funds or directing the judge’s election campaign when the case was pending or imminent.” Id., at ___ (slip op., at 14). The remedy of recusal was based on a litigant’s due process right to a fair trial before an unbiased judge. See Withrow v. Larkin, 421 U. S. 35, 46 (1975). Caperton’s holding was limited to the rule that the judge must be recused, not that the litigant’s political speech could be banned.
    The McConnell record was “over 100,000 pages” long, McConnell I, 251 F. Supp. 2d, at 209, yet it “does not have any direct examples of votes being exchanged for . . . ex- penditures,” id., at 560 (opinion of Kollar-Kotelly, J.). This confirms Buckley’s reasoning that independent expendi- tures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate. See 251 F. Supp. 2d, at 555–557 (opinion of Kollar-Kotelly, J.). Ingratiation and access, in any event, are not corruption. The BCRA record establishes that certain donations to political parties, called “soft money,” were made to gain access to elected officials. McConnell, supra, at 125, 130– 131, 146–152; see McConnell I, 251 F. Supp. 2d, at 471– 481, 491–506 (opinion of Kollar-Kotelly, J.); id., at 842– 843, 858–859 (opinion of Leon, J.). This case, however, is about independent expenditures, not soft money. When Congress finds that a problem exists, we must give that finding due deference; but Congress may not choose an unconstitutional remedy. If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expe- diency before principle, then surely there is cause for concern. We must give weight to attempts by Congress to seek to dispel either the appearance or the reality of these influences. The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical preelection period is not a permissible remedy. Here Congress has created categorical bans on speech that are asymmetrical to preventing quid pro quo corruption.

    Stevens’s spends pages 67-70 of his dissent on why Kennedy’s two opinions are at odds:

    The insight that even technically independent expenditures can be corrupting in much the same way as direct contributions is bolstered by our decision last year in Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009). In that case, Don Blankenship, the chief executive officer of a corporation with a lawsuit pending before the West Vir­ ginia high court, spent large sums on behalf of a particular candidate, Brent Benjamin, running for a seat on that court. “In addition to contributing the $1,000 statutory maximum to Benjamin’s campaign committee, Blankenship donated almost $2.5 million to ‘And For The Sake Of The Kids,’” a §527 corporation that ran ads tar­ geting Benjamin’s opponent. Id., at ___ (slip op., at 2). “This was not all. Blankenship spent, in addition, just over $500,000 on independent expenditures . . . ‘ “to sup­ port . . . Brent Benjamin.” ’ ” Id., at ___ (slip op., at 2–3) (second alteration in original). Applying its common sense, this Court accepted petitioners’ argument that Blankenship’s “pivotal role in getting Justice Benjamin elected created a constitutionally intolerable probability of actual bias” when Benjamin later declined to recuse him­ self from the appeal by Blankenship’s corporation. Id., at ___ (slip op., at 11). “Though n[o] . . . bribe or criminal influence” was involved, we recognized that “Justice Ben­ jamin would nevertheless feel a debt of gratitude to Blankenship for his extraordinary efforts to get him elected.” Ibid. “The difficulties of inquiring into actual bias,” we further noted, “simply underscore the need for objective rules,” id., at ___ (slip op., at 13)—rules which will perforce turn on the appearance of bias rather than its actual existence.

    In Caperton, then, we accepted the premise that, at least in some circumstances, independent expenditures on candidate elections will raise an intolerable specter of quid pro quo corruption. Indeed, this premise struck the Court as so intuitive that it repeatedly referred to Blankenship’s spending on behalf of Benjamin—spending that consisted of 99.97% independent expenditures ($3 million) and 0.03% direct contributions ($1,000)—as a “contribution.” See, e.g., id., at ___ (slip op., at 1) (“The basis for the [recusal] motion was that the justice had received cam­ paign contributions in an extraordinary amount from” Blankenship); id., at ___ (slip op., at 3) (referencing “Blankenship’s $3 million in contributions”); id., at ___ (slip op., at 14) (“Blankenship contributed some $3 million to unseat the incumbent and replace him with Benjamin”); id., at ___ (slip op., at 15) (“Blankenship’s campaign con­ tributions . . . had a significant and disproportionate influence on the electoral outcome”). The reason the Court so thoroughly conflated expenditures and contributions, one assumes, is that it realized that some expenditures may be functionally equivalent to contributions in the way they influence the outcome of a race, the way they are interpreted by the candidates and the public, and the way they taint the decisions that the officeholder thereafter takes.

    Caperton is illuminating in several additional respects. It underscores the old insight that, on account of the ex­ treme difficulty of proving corruption, “prophylactic meas­ ures, reaching some [campaign spending] not corrupt in purpose or effect, [may be] nonetheless required to guard against corruption.” Buckley, 424 U. S., at 30; see also Shrink Missouri, 528 U. S., at 392, n. 5. It underscores that “certain restrictions on corporate electoral involve­ ment” may likewise be needed to “hedge against circum­ vention of valid contribution limits.” McConnell, 540 U.S., at 205 (internal quotation marks and brackets omitted); see also Colorado II, 533 U. S., at 456 (“[A]ll Members of the Court agree that circumvention is a valid theory of corruption”). It underscores that for-profit cor­ porations associated with electioneering communications will often prefer to use nonprofit conduits with “mislead­ ing names,” such as And For The Sake Of The Kids, “to conceal their identity” as the sponsor of those communica­ tions, thereby frustrating the utility of disclosure laws. McConnell, 540 U. S., at 128; see also id., at 196–197.

    And it underscores that the consequences of today’s holding will not be limited to the legislative or executive context. The majority of the States select their judges through popular elections. At a time when concerns about the conduct of judicial elections have reached a fever pitch, see, e.g., O’Connor, Justice for Sale, Wall St. Journal, Nov. 15, 2007, p. A25; Brief for Justice at Stake et al. as Amici Curiae 2, the Court today unleashes the floodgates of corporate and union general treasury spending in these races. Perhaps “Caperton motions” will catch some of the worst abuses. This will be small comfort to those States that, after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integ­ rity of their judicial systems.

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