FIRST ONE @ ONE FIRST

CJ Roberts’s Concurrence

Posted in Case Reports by Mike Sacks on January 21, 2010

I just finished reading Chief Justice Roberts’s concurring opinion, joined by Justice Alito, in Citizens United.  It is a fascinating mix of ideological slime surrounded by institutional silver-lining.

The concurrence begins quite notably by insisting that if the majority could, it would have decided on narrower, statutory grounds, invoking NAMUDNO:

The majority’s step-by-step analysis accords with our standard practice of avoiding broad constitutional questions except when necessary to decide the case before us. The majority begins by addressing—and quite properly rejecting—Citizens United’s statutory claim that 2 U. S. C. §441b does not actually cover its production and distribution of Hillary: The Movie (hereinafter Hillary). If there were a valid basis for deciding this statutory claim in Citizens United’s favor (and thereby avoiding constitu- tional adjudication), it would be proper to do so. Indeed, that is precisely the approach the Court took just last Term in Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. ___ (2009), when eight Members of the Court agreed to decide the case on statutory grounds instead of reaching the appellant’s broader argument that the Voting Rights Act is unconstitutional. [...]

But there is something stinky in the Chief Justice’s subsequent analysis.  If the entire Court agreed that Citizens United’s statutory claims failed in the case’s original incarnation, then the Court could–and perhaps should–have issued an opinion last June in favor of the FEC and been done with this Hillary: The Movie business.  Instead, the Court scheduled a rehearing and asked the parties to brief and argue the constitutionality of Austin and McConnell.  And this is where the Chief Justice’s argument emits a peculiarly mendacious odor:

This is the first case in which we have been asked to overrule Austin, and thus it is also the first in which we have had reason to consider how much weight to give stare decisis in assessing its continued validity. [...] [emphasis added]

The Court was not asked the overrule Austin.  The Court asked Citizens United on reargument to ask the Court to overrule Austin.  I must confess that I’ve always had problems wrapping my head around the term, “begging the question,” in the abstract.  But now that I’ve seen an actual question very much begged, I don’t think its less concrete use will trip me up anymore.

Hoping no one will call him out on his recasting judicial prerogative to reach the constitutional question as an unavoidable judicial necessity, the Chief Justice goes on to give a very cogent and compelling defense of when a majority should depart from stare decisis.

[W]e must balance the importance of having constitutional questions decided against the importance of having them decided right. [...]

Because continued adherence to Austin threatens to subvert the “principled and intelligible” development of our First Amendment jurisprudence, Vasquez, 474 U. S., at 265, I support the Court’s determination to overrule that decision.

Roberts’s argument for the several pages between those lines will be of much use when the Court decides whether to overturn Slaughter-House in McDonald later this term.  But in McDonald, the petitioners actually presented the Court with the question, which is how our Supreme Court has historically done its business.  Yet after hearing Citizens United the first time around last term, the Court’s conservative bloc had not the patience to wait for an analogous case to come along that asked the five justices, in a manner consistent with the Court’s history and tradition, what they wanted to hear.

Indeed, only through the Court’s question-begging was the Chief Justice able to wax magnanimous in his concurrence’s conclusion:

We have had two rounds of briefing in this case, two oral arguments, and 54 amicus briefs to help us carry out our obligation to decide the necessary constitutional questions according to law. We have also had the benefit of a comprehensive dissent that has helped ensure that the Court has considered all the relevant issues. This careful consideration convinces me that Congress violates the First Amendment when it decrees that some speakers may not engage in political speech at election time, when it matters most.

The Chief Justice insults our intelligence by pretending that the second round of briefing, the reargument, and the nearly fifty-four amici did anything to aid this ready-made 5-4 decision.   Yet he knows that given the surrounding political climate, this case may have been a full liquidation of the Court’s scarce political capital.  Roberts seems to have written this opinion not only to justify such an expense, but also to defend the Court’s institutional legitimacy against what he knows will be the inevitable attacks against the Court’s naked activism.

For this reason, he referred to NAMUDNO to show that he will remain vigilant to guide the Court, when he “can,” towards similar holdings.  For this reason, he wrote at length on the Court’s sometime-need to depart from stare decisis.  For this reason, he expresses appreciation–even if it is less than sincere in the present case–for the comprehensive and persuasive nature of the parties’ briefs and his colleagues’ opinions.

As such, I stand by my assertion that the Supreme Court, under the leadership of Chief Justice Roberts, forms its docket and decide its cases with an eye towards public opinion and the surrounding political climate.  The Chief Justice’s concurrence signals that politically aggravating, if not counter-majoritarian, cases such as Citizens United will be rare.  That assurance, of course, doesn’t make today’s decision any less polarizing, dramatic, or outrageously results-oriented.  But it does signal the emergence of a more mature, responsive Roberts Court.

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UPDATE: Thanks to “Fact-checker” below for pointing out that Citizens United did, in fact, ask the Court to overrule Austin in the first merits brief.  However, the brief’s official questions presented to the Court do not explicitly ask for such an overruling and when the brief does ask for it, it is buried in the middle of Citizens United’s narrow, as-applied argument that “BCRA § 203 IS UNCONSTITUTIONAL AS TO THE DISTRIBUTION OF UNITED’S DOCUMENTARY FILM VIDEO ON DEMAND.”  This, of course, does not change the fact that Citizens United did raise the point in its brief, but the Court itself commanded rehearing on the constitutional issue.

UPDATE II: Related to the previous update, in her 1/29/10 NYT Opinionator column, Linda Greenhouse writes:

“In this case, we are asked to reconsider Austin,” Justice Anthony M. Kennedy wrote in the second paragraph of his 57-page majority opinion in Citizens United. Well, not exactly. It was the court itself that put Austin in play, with its surprise order on the final day of the last term. Rather than issue the expected decision, the justices told the lawyers to reargue the case and to address whether the court should overrule both Austin and the relevant portion of the 2003 decision that upheld the McCain-Feingold corporate speech limitations.

CITIZENS UNITED – Get Opinion Here!

Posted in Case Reports by Mike Sacks on January 21, 2010

5-4 overruling Austin v. Michigan and gutting McCain-Feingold.  Kennedy for the conservative majority; Stevens for liberal dissent.  To avoid the crashing at the Court’s official site, you can download the opinion here.

Back to class.  More later.  Go read SCOTUSBlog and the real reporters!

UPDATE: A bit of fracturing, but still very much 5-4:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined, in which THOMAS, J., joined as to all but Part IV, and in which STEVENS, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined as to Part IV. ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined. SCALIA, J., filed a concurring opin- ion, in which ALITO, J., joined, and in which THOMAS, J., joined in part. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part.

UPDATE II: 89 Year Old Stevens, for the dissenters, on page 90:

In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules. The majority’s rejection of this principle “elevate[s] corpora­ tions to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.” Bellotti, 435 U. S., at 817, n. 13 (White, J., dissenting). At bottom, the Court’s opinion is thus a rejection of the com­ mon sense of the American people, who have recognized a need to prevent corporations from undermining self­ government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

UPDATE III: Speaking of Stevens’s age and his dissent today, check out CBS’s Jan Crawford’s impressions from inside the Court.

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In Line, but Neither First One nor at One First

Posted in Anticipation, Clairvoyance by Mike Sacks on January 21, 2010

Citizens United looks super-likely to come down this morning, but this 6am, I sit in another line.

Student section tickets for next week’s Duke/Georgetown game here in DC are on sale to a limited number of G’town Law students.  Consider me this morning to be 11th One @ 600 New Jersey.

Meanwhile, I will be in class from 9am-11am.  Until I bolt out of class at the stroke of 11, I leave you with this prediction:

(Here’s Jess Bravin’s WSJ article)

I post that prediction with something less than certitude.  I made it a week after attending the oral argument, expecting the Court to hand its decision down as early as the first week of October.  But it’s now January and it’s apparent that the justices did not have a pre-written opinion on standby after all.

The delay suggests that we could see a late Rehnquist-era fractured opinion where a majority may hold for a certain principle, but falls into disarray over how to get there and what getting there may entail.  It does not suggest, however, a NAMUDNO-style pull-back to a broad consensus opinion with a narrow holding.

We will know soon enough.

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…But maybe Citizens United Tomorrow?

Posted in Anticipation by Mike Sacks on January 20, 2010

From SCOTUSBlog: “The Court has announced that it expects to issue one or more opinions in argued cases on Thursday.”

The Supreme Court will hold a special public session on Thursday at 10 a.m., the Court announced at the close of this morning’s oral arguments.  Although no purpose for the sitting was specified, no arguments are scheduled, so it almost certainly will be to release opinions — perhaps the long-awaited ruling on campaign finance regulation. Such sessions are highly unusual, but so is the campaign finance case, involving a major constitutional controversy.

If the Court is planning to issue the ruling in Citizens United v. Federal Election Commission (08-205), it presumably will be doing so to make some gesture to satisfy Congress’s mandate that cases testing the constitutionality of campaign finance laws are to be given expedited treatment.

On the one day I have a morning class…gah!

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No Citizens United Today…

Posted in Case Reports by Mike Sacks on January 20, 2010

…but Justice Sotomayor did pen her second majority opinion in Wood v. Allen.

Also, in South Carolina v. North Carolina, the Court came down unanimously in the result, but had a heartwarmingly mishmashed 5-4 split on the reasoning, with Chief Justice Roberts dissenting in part for himself and Justices Thomas, Ginsburg, and Sotomayor.

The final decision of the day was Kucana v. Holder.  Justice Ginsburg wrote for the Court with Justice Alito concurring in the result.

Thank you, SCOTUS, for giving me the time to prepare for class today!

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UPDATE: Professor Jerry Goldman, director/curator/mastermind of the indispensable Oyez Project writes in to give a more accurate and authoritative take on SC v. NC:

My reading of this exception differs from yours. Roberts dissents from the report of the special master on a key point regarding who can intervene. And while he concurs in the judgment regarding two of the intervenors, he is fundamentally opposed to the nonstate party intervention. Seems to read like a dissent, not a concurrence. So for me, this one tilts 5-4.

Chief Justice Roberts’s opening and closing comments in his separate opinion do, indeed, read more like a dissent than a concurrence:

The Court correctly rejects the Special Master’s formulation of a new test for intervention in original actions, and correctly denies the city of Charlotte leave to inter- vene. The majority goes on, however, to misapply our established test in granting intervention to Duke Energy Carolinas, LLC (Duke Energy), and the Catawba River Water Supply Project (CRWSP).
The result is literally unprecedented: Even though equitable apportionment actions are a significant part of our original docket, this Court has never before granted intervention in such a case to an entity other than a State, the United States, or an Indian tribe. Never. That is because the apportionment of an interstate waterway is a sovereign dispute, and the key to intervention in such an action is just that—sovereignty. The Court’s decision to permit nonsovereigns to intervene in this case has the potential to alter in a fundamental way the nature of our original jurisdiction, transforming it from a means of resolving high disputes between sovereigns into a forum for airing private interests. Given the importance of maintaining the proper limits on that jurisdiction, I respectfully dissent. [...]
Our original jurisdiction over actions between States is concerned with disputes so serious that they would be grounds for war if the States were truly sovereign….A dispute between States over rights to water fits that bill; a squabble among private entities within a State over how to divvy up that State’s share does not. A judgment in an equitable apportionment action binds the States; it is not binding with respect to particular uses asserted by private entities. Allowing intervention by such entities would vastly complicate and delay already complicated and lengthy actions. And the benefits private entities might bring can be read- ily secured, as has typically been done, by their participation as amici curiae.
In light of all this, it is difficult to understand why the Court grants nonsovereign entities leave to intervene in this equitable apportionment action, and easy to under- stand why the Court has never before done so in such a case.
I would grant South Carolina’s exceptions, and deny the motions to intervene.

Conservative Convergence = Liberal Freak-Out?

Posted in Anticipation, Clairvoyance by Mike Sacks on January 19, 2010

Tom Goldstein at SCOTUSBlog predicts that Citizens United will come down either tomorrow or Monday morning:

As we have previously noted, the Court will issue opinions tomorrow.  The next opinion day is Monday, January 25.  After that, the Court is not scheduled to issue opinions until Tuesday, February 23.  The month-long gap results from the break between the Court’s January and February sittings.

The Court could add an additional opinion date.  That would have been extremely unlikely under Chief Justice Rehnquist.  But in a variety of small ways, the Roberts Court has taken a more pragmatic approach that deviates from certain traditions.

Nonetheless, the Court is an institution that does rest on tradition, and it will have a strong institutional preference for sticking to its usual calendar.  The Court is also well aware of the public interest in having the campaign finance case decided, as illustrated by the fact that it held oral argument in late summer, outside the usual argument calendar.

If Goldstein is right, and if the Court holds to its expected 5-4 conservative victory despite doubts created by the decision’s delay, expect a left-wing freak-out.

First, a Republican takes Ted Kennedy’s Senate seat tonight, destroying the Democrats’ filibuster-proof majority and perhaps with it Kennedy’s dream of health care reform.

Next, should the Court strike down McCain-Feingold‘s restrictions on corporate campaign expenditures, expect liberal commentators to reveal doomsday visions of insurance companies emptying their coffers in the 2010 campaign on a multimedia effort to smear all incumbents supportive of health care reform as fascists, socialists, and communists.

That’s a vicious one-two punch from our Legislative and Judicial branches.  But should that combination come to pass, expect the Executive Branch to stay cool, adjust to the circumstances, and move ahead.   There will be neither war nor implosion.

Conspiracy!

Posted in Anticipation, Endorsements by Mike Sacks on January 18, 2010

Welcome Volokh Conspiracy readers!  While you’re here, give the below “weekend reading” a look – I know many of you will surely have strong opinions about my observations.

Thanks to Professor Randy Barnett for the VC shout.  I just finished reading the first part of his book-to-be, Fundamental Rights in the Constitution and very much enjoyed his exploration of the Ninth Amendment‘s original public meaning.

Also, over the weekend, Professor Orin Kerr, another prominent Conspirator, suggested that I supply some information on how early one must arrive in line at the Court to get a decent chance of getting inside to hear an argument.  Here are my preliminary thoughts:

  • Be Before 50th: The Court reserves at least fifty seats for the general admission line.
  • The “Dogs”: From my experience, if you get in line between 7 and 8 for the “dogs”–the technical cases without any newspaper coverage–you’ll get in.  By “experience,” I mean the first oral argument I ever attended, Danforth v. Minnnesota, for which my father and I got in line around 8am, received numbers around 50, and were among the final ones seated inside the Court.  Of course, despite no major awareness of Danforth in the news or general public, the case, like all SCOTUS cases, was still massively important for its area of law.  Indeed, Prof. Kerr noted Danforth‘s major legal importance for criminal law and procedure over at VC in November 2007.  This week’s cases, as far as I can tell, haven’t touched any public nerve, so I am taking this week off from the line.  I leave it up to the Klingensmiths to tell me otherwise.  Still, keep your eyes trained on F1@1F at the 10am hour should Wednesday see the release of Citizens United.
  • The “Mid-Majors”: Get in line by 6am.  Last week’s cases exemplify the “mid-major” cases: issues that attract the public’s attention without creating a frenzy.  Briscoe mattered not as much for its subject matter, but rather for Sotomayor’s centrality in the fate of a year-old precedent.  Comstock dealt with sex offenders (and, of course, the scope of the Necessary & Proper Clause of the Constitution), who are always interesting subject matter.  American Needle fought against the NFL, which sounds cool regardless of the more mind-numbing aspects of antitrust law that really animated the case.
  • The “Blockbusters”: Get in line before 4am…and that probably won’t be good enough.  I got in line for the rehearing of Citizens United, also Justice Sotomayor’s first oral argument, at 11pm, thinking that there would already be a line at least a dozen people long.  There wasn’t.  I was first.  The next batch of people didn’t show up until 3:45am.  That said, for the super-blockbusters, prepare to eat your previous night’s dinner on the First Street sidewalk: friends of mine got in line at 4:30pm on Heller‘s Eve…they were around 40th.  This term’s blockbusters–McDonald, Kiyemba, Christian Legal Society, Doe v. Reedwill likely draw its earliest linegoers at varying hours of which I am not yet qualified to predict.

Once again, thank you for coming by F1@1F.  Although I will not be reporting from line this week, I will endeavor to keep the content flowing!

The Post-Partisan Court?

Posted in Anticipation, Weekend Reading by Mike Sacks on January 16, 2010

As F1@1F weekend reading, I am posting below a longer piece–previewed in my first post–that I wrote in early December on the Roberts Court’s seemingly “post-partisan” posture in this new Obama era.

This hypothesis is by no means proven – it is merely culled from observations about the Court’s docket this term as related to its decisions of the previous three terms.  The hypothesis’s true test will come as the Court continues to hand down its decisions.

Please keep your disagreements civil in the comments and keep coming back to F1@1F as the term goes on for follow-up analysis.

Enjoy!

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Every year, the Supreme Court hears several cases that inflame public passions, prompting Americans to line up on opposite sides of predictable partisan divides.  The Court from Reagan to Bush II could be counted on to divide 5-4 on most any politically salient subjects such as abortion, affirmative action, separation of church and state, right to die, gay rights, and even the outcome of a Presidential election.  Under the Roberts Court, the American public has come to expect the predictable configuration of justices on hot-button issues: Roberts, Alito, Thomas, and Scalia on the Right; Stevens, Ginsburg, Breyer, Souter (and now, presumably, Sotomayor) on the Left; and Kennedy going to whichever side his peculiar vision of individual liberties happens to fall.

Yet a funny thing happened on the way to the Obama era: the Court seems to be flirting with post-partisanship. When Chief Justice Roberts stood on the Capitol steps, his fellow justices bundled up behind him, and administered the Oath of Office to Obama, they overlooked the National Mall crammed with more than million freezing onlookers.  The two representatives of their respective branches worked in concert, but not without momentarily tripping over each other’s words.  That scene may prove to be a metaphor for the interaction between our current political and judicial branches.

In the summer of 2007, at the end of the Roberts Court’s first term with both Bush II appointees on the bench, Justice Breyer seethed that “[i]t is not often in the law that so few have so quickly changed so much.”  The Supreme Court had taken an aggressively rightward tack on abortionstudent speechschool desegregation, gender discrimination, and campaign finance, enabled by the replacement of arch-moderate Justice O’Connor with the solidly conservative Justice Alito, and given political cover by a sympathetic President and Congress.

The following year found the two wings similarly uncompromising, going tit-for-tat over the war on terror and gun rights, as if to imitate the dynamics between the newly elected Democratic Congress and the legacy-seeking Republican Executive.  In Boumediene v. Bush, Justice Kennedy swung into the liberal camp to pen its final victory over the Bush administration’s detentions and prosecutions of enemy combatants held in Guantanamo.  Justice Scalia, in a vituperative dissent, warned that the five-member majority’s decision to grant habeas corpus rights to Guantanamo detainees “will almost certainly cause more Americans to be killed.”

Two weeks later, Scalia triumphantly announced the majority opinion in District of Columbia v. Heller, in which Kennedy provided the fifth conservative vote, striking down D.C.’s handgun ban by defining the Second Amendment as securing an individual right to keep and bear arms.  Justice Stevens, writing on behalf of the four liberals, condemned the majority as the very opposite of “genuine” judicial conservatives: results-driven activists.  Indeed, some Court watchers wondered how the dissenters resisted using Scalia’s inflammatory words in Boumediene against him in their argument for the importance of the myriad gun control laws Heller now called into question.

Fast-forward to this term, which officially began on Monday, October 5.  Although the Court has yet to release any decisions, the high profile cases on its docket reflect the promises and pitfalls of the Obama era’s post-partisan rhetoric.  The Democratic Party, now controlling Congress and the Presidency, is struggling to reconcile the realities of big-tent governance with the demands of competing grassroots ideals.  Meanwhile, United States v. Stevens, which the Court heard in early October, pits liberal values against liberal values in a contest between free expression and animal rights.  And as the Republicans decide which bits of right-wing ideology to embrace or reject as they rebuild from the rubble of 2008, conservative concerns collided at the Court in early December’s Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, when the Court considered whether to abandon principles of federalism in favor of property rights.  Finally, Obama’s overtures to his opponents in pursuing his agenda have their analogue in the Court’s blockbuster of the term: McDonald v. City of Chicago may very well result in a political quid pro quo 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.

Of course, these three cases may not be so indicative of a new day rising at the Court.  Justice Kennedy’s vote remains the putative fifth vote in Graham v. Florida and Sullivan v. Florida, which questions whether the life imprisonment without parole of a juvenile for a non-homicidal crime violates the constitution’s ban on cruel and unusual punishment, and in Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, which could find the Sarbanes-Oxley Act’s creation of the PCAOB in violation of separation of powers principles.

However, whereas recent history augurs a Kennedy-penned liberal win in Graham and Sullivan, the Court showed only last term in Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, Attorney General, et al. (NAMUDNO) that it is willing to stop short of the type of ideologically-driven holding that Free Enterprise could bring.  When the Court agreed to hear NAMUDNO, political liberals quivered in fear.  At issue was the constitutionality of Congress’s 2002 vote to extend for another twenty-five years Section Five of the Voting Rights Act of 1965, which required districts with histories of voting rights violations to obtain “preclearance” from the Justice Department for any changes in a covered district’s election procedures.  NAMUDNO presented the conservative justices with its most sweeping opportunity yet to declare the work of the Civil Rights era complete and more fully institute colorblind law.  This was, after all, the same Roberts Court that closed its 2006 term with a 5-4 decision that cited Brown v. Board of Education, the legendary case from 1954 that struck down public school segregation, to hold unconstitutional voluntary, race-conscious public school re-integration programs.

Yet the Court shocked observers when it handed down an 8-1 decision upholding Section Five’s constitutionality.  Chief Justice Roberts, the same man who three years earlier refused a remedy for de facto segregation by stating that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” stopped short in his NAMUDNO decision from judicially willing this country’s history of racial discrimination into obsolescence.  Indeed, faced with the magnitude of exercising judicial review—the most powerful tool the Supreme Court wields over its co-equal branches—against a landmark Act of Congress, the conservatives blinked.  Roberts corralled the conservatives and the liberals under his narrow holding while dispatching Justice Thomas to argue in dissent what ostensibly would have been the conservative majority opinion had Roberts not pulled his right-leaning brethren back from the brink of a certain political firestorm.

But why did the justices determine that NAMUDNO, which roared into the Court’s docket like a lion, should go out like a lamb?  After all, Roberts seldom before let his oft-professed ideal to guide the Court towards broad consensus and narrow holdings take precedence over his demonstrated commitment to conservative ideology.  The Court, however, is not deaf to public opinion.  The term began with a Republican President and a Democratic majority in Congress; the term ended with a Democratic President and a Democratic supermajority in Congress.  Roberts was well aware that the last Court that mounted active resistance to the dominant political will of the American people and their representatives in government now rests in historical infamy.

In order to further a conservative agenda alongside a Democratic executive and legislature, the Court must jealously protect its legitimacy.  The early Roberts Court’s halcyon days of Republican political dominance is over: the conservative bloc, when Justice Kennedy agrees with them, must pick their battles carefully.  That certainly seemed to be their strategy for last term’s potential conservative victories: by balking on NAMUDNO, the Court had enough political capital for a smaller victory in Ricci v. DeStefano, in which the five-member majority held that New Haven discriminated against white firefighters when the city threw out the results of a promotion exam in which disproportionally less black firefighters qualified.  Meanwhile, as if to tell the liberal wing not to get too optimistic over the NAMUDNO compromise, the Court ordered reargument in Citizens United v. Federal Election Commission and presented a new question to the parties that suggested that the conservatives were itching to invalidate federal election laws limiting corporate expenditures during Presidential and Congressional campaigns.

The Court’s decision to schedule a rare September hearing for Citizens United made strategic sense for the Court’s conservative wing in a manner that mirrors President Obama’s own sly “post-partisanship.”  Just as the Right does not trust Obama’s overtures as he pursues even moderately liberal policies, neither should the Left be lulled by NAMUDNO or the absence on this term’s official docket of politically resonant Left vs. Right cases that the conservatives are likely to win.  Indeed, even the potential partisan 5-4 cases are muted: juveniles sentenced to life without parole is hardly as galvanizing as challenges to the death penalty, and claims against administrative agencies do not have the same explosiveness as clashes between Congress and the President.  By placing Citizens United among this term’s cases, the Court, intentionally or not, now possesses the political capital where none existed last term for the conservative majority to open the floodgates for corporate cash in campaigns.

Nevertheless, even if our executive and judicial branches are deploying post-partisan strategy for ideological gain, the strategy significantly slows the traumatic political polarization that would—and did—occur when the branches enable or antagonize the other’s agenda without restraint.  I hope to test this hypothesis as the decisions come down this term and beyond…that is, until the Gay Marriage case hits the Supreme Court. Then it’s back to judicial politics as usual.

First Post @ First One @ One First

Posted in Introduction by Mike Sacks on December 30, 2009

My name is Mike Sacks.  I am a third-year law student at Georgetown interested in legal journalism and the intersection of law and politics.  This semester, I have no morning classes.  As such, I will be taking advantage of living only minutes from the Supreme Court to pursue a rather unorthodox extracurricular activity: reporting from the Court as the first one in line at One First Street.

For every politically salient case from January through April, I will attempt to be at the head of the general admission line.  This is no mean feat: for the September rehearing of Citizens United v. FEC–also Justice Sotomayor’s first appearance on the Bench–much of the line started forming around 4am.  How do I know this?  Because I claimed my first ever “First One @ One First” ticket by spreading my blanket on the sidewalk at 11pm the previous night.

As a Duke University graduate, I should have ample camping-out experience.  But in my four years as an undergraduate, I actively sought to–and succeeded in–securing my admission into the Duke-UNC games without once suffering through wintry nights in a flimsy tent perched on the soggy soil of Krzyzewskiville.  Indeed, as a former “Nina Totintern,” I once enjoyed a similar evasion of the elements at the Supreme Court.  But those halcyon days of press-passed entrances are over.  Now I must rough it.

Camping out at the Court in winter’s nadir will not be easy.  Tents are forbidden.  The concrete sidewalk makes for an unforgiving bed.  Sprinklers spring up in the still of the night.  Challenging climate be damned, however; when the next person arrives, excited to be first, he or she will find me, with my cracked lips and frozen fingers, sardonically asking how it feels to be second and seriously inquiring why he or she is crazy enough to get in line so early.

And that question–”why are you here?”–is what I set out to explore.  Every Supreme Court reporter tells us what goes on inside the Court at argument and in its opinions.  Every Supreme Court reporter gets insight and analysis from expert academics and practitioners.  Sometimes Supreme Court reporters even interview a party in the case to expose the human element often lost in the rarefied air of high court’s legal abstraction.  But no Supreme Court reporters ever ask the Courtroom’s spectators why they have congregated inside the Temple of our Civil Religion.

Our citizenry who have come to witness the Court first-hand surely have something to say, whether when waiting in line before the Court opens or spilling out onto the steps after the Chief Justice’s gavel bangs closed the day’s session.  Perhaps no one ever asks them because our judiciary is supposed to function independent of public passions.  But only the most dogmatic adherents to the mythology of an insulated Court will maintain that our Third Branch is apolitical.  Look to the anti-abortion protesters who spend every day standing silent in front of the Court or the grandstanding Senators asking stonewalling judicial nominees for their views on the day’s hot-button political issues.  Look at the Court’s history in matters of racesexPresidential power,economic policylaw enforcementsexual orientation, to name only a handful, to find the Court inexorably intertwined with the era’s political climate.  Look even at the Court itself: justices are labeled for their fidelity to liberalism or conservatismhowever epochally defined.

The Court is responsive to politics.  Consequentially, the vox populi should matter for those interested in the Court.  What does the person in line at 5am hope to see in this case?  Why is the family that shows up at 9am hoping to get in?  How many of those waiting for the doors to open are lawyers invested in the litigation or legal issues at play or professionals or citizens who will be impacted by how the Court may rule?  How many people exiting the Court even understood what they just saw and heard?  Do they care or were they just there to be there?  All of these people represent the American public.  How they vote is impacted by how they perceive our country’s system of governance.  Their experience with the Court–whether from the position of knowledge or ignorance, veneration or cynicism, all of the above, or somewhere in between–helps shape our political dialogue that informs who we elect to represent us in the Executive and Legislative Branches.  These branches, in turn, shape the judiciary through nominations and confirmations; and the judiciary, thus shaped, passes judgment on the political choices made by earlier–and sometimes contemporary–Presidents and Congresses.

Accordingly, my other aim for this project is to test my hypothesis that the Roberts Court has been quite responsive to its surrounding, and shifting, political climate.  I have a forthcoming piece detailing my thoughts, but I will preview my evidence:

  • 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.  And not only is that case officially part of last term, but also the fact that no opinion has come down yet has led some to speculate that it may not be the cut-and-dry 5-4 conservative opinion most expect.  But more on that case, and how it fits into my hypothesis, when the decision actually comes down.

Finally, I will use this site to post other thoughts on the Court that I haven’t yet read anywhere else.  Given that the legal and political blogs tend to express every possible sentiment existing in this world and parallel universes, these entries will likely be rare and in the shape of wild conjecture.  When another site says something I’m thinking, almost always much better than I can express it myself, I will post it here.  Further, when another site says something exceedingly compelling that I have not yet thought or I could have never come up with by myself, I will post it here.  And if another site says something exceedingly objectionable and I have something to contribute to it, I will post it here.

Thank you for reading.  If this introduction has gained your interest–and if you’re this far, I hope it has–please subscribe and share!

Rock.

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