Appetizers Today, Main Course on Monday

The Court finished its business today for all but the term’s most high profile cases.  Today’s decisions featured multiple heated concurrences and dissents, setting the mood for Monday’s decisions on major federalism, Second Amendment, and church-and-state cases, as well as a very long-awaited patent case that may fundamentally affect that field’s landscape.

Decided today were a trio of cases testing whether “honest services” statutes are unconstitutionally vague.  Justice Ginsburg, writing for the Court in the lead case, Skilling v. United States, defined the scope of the criminal statute to bribery and kickback schemes rather than simply invalidate it.  ”Skilling swims against our case law’s current,” she wrote, “which requires us, if we can, to construe, not condemn, Congress’ enactments.”

Justice Scalia, writing for Justices Kennedy and Thomas, dissented on this point, preferring instead to strike down the law instead of “strik[ing] a pose of judicial humility.”  Mocking the majority, Scalia finally introduced virtual shouting into his opinions, making explicit in all-caps the tone in which we’ve long implicitly understood his dissents were to be delivered:

Since the honest-services doctrine “had its genesis” in bribery prosecutions, and since several cases and counsel for Skilling referred to bribery and kickback schemes as “core” or “paradigm” or “typical” examples, or “[t]he most obvious form,” of honest-services fraud, ante, at 43–44 (internal quotation marks omitted), and since two cases and counsel for the Government say that they formed the “vast major­ity,” or “most” or at least “[t]he bulk” of honest-services cases, ante, at 43–44 (internal quotation marks omitted), THEREFORE it must be the case that they are all Congress meant by its reference to the honest-services doctrine.

Ginsburg’s opinion additionally determined that the notoriety of Jeffrey Skilling, the former Enron CEO, did not deprive him of a fair trial.  On this point, Justice Sotomayor dissented, joined by Justices Stevens and Breyer.

The Court also decided Doe v. Reed today, holding that disclosure requirements for referendum petitions do not generally violate the First Amendment.  Chief Justice Roberts, writing for an eight-justice majority, refused to strike down Washington State’s Public Records Act on its face, but left open the question of whether the plaintiffs–men and women who signed a petition supporting a ballot referendum to overturn the State’s recognition of benefits for same-sex domestic partnerships–would prevail by challenging the PRA’s constitutionality as specifically applied to their own experiences.

Justice Alito, in a concurrence, emphasized what he saw as the plaintiffs’ “strong argument” in an as-applied challenge, echoing his United States v. Stevens dissent.  As evidence, Alito found that “[t]he widespread harassment and intimidation suffered by supporters of California’s Proposition 8 provides strong support for an as-applied exemption in the present case”–an argument that went down in flames with most of the other justices, most notably Justice Scalia, at oral argument.

Justice Sotomayor, joined by Justices Stevens and Ginsburg, registered a concurrence on the other side of the ledger from Alito:

courts presented with an as-applied challenge to a regulation authorizing the disclosure of referendum petitions should be deeply skeptical of any assertion that the Constitution, which embraces political transparency, compels States to conceal the identity of persons who seek to participate in lawmaking through a state-created referendum process.

Justice Stevens, writing for himself and Justice Breyer, took a similar stance in opposition to Alito’s prediction:

For an as-applied chal- lenge to a law such as the PRA to succeed, there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures. Moreover, the character of the law challenged in a referendum does not, in itself, affect the analysis. Debates about tax policy and regula- tion of private property can become just as heated as debates about domestic partnerships. And as a general matter, it is very difficult to show that by later disclosing the names of petition signatories, individuals will be less willing to sign petitions. Just as we have in the past, I would demand strong evidence before concluding that an indirect and speculative chain of events imposes a sub-stantial burden on speech.

Concurring in the judgment, Justice Scalia continued to press for “political courage,” as he had at oral argument, by rejecting the very notion that “the First Amendment accords a right to anonymity in the performance of an act with governmental effect.”  To prove his point, he noted Kentucky’s and Virginia’s early history of viva voce voting, among other examples from American history.  In conclusion, he crescendoes:

Plaintiffs raise concerns that the disclosure of petition signatures may lead to threats and intimidation. Of course nothing prevents the people of Washington from keeping petition signatures secret to avoid that—just as nothing prevented the States from moving to the secret ballot. But there is no constitutional basis for this Court to impose that course upon the States—or to insist (as today’s opinion does) that it can only be avoided by the demonstration of a “sufficiently important governmental interest,” ante, at 7 (internal quotation marks omitted). And it may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self- governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, cam- paigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

Justice Thomas was Doe‘s lone dissenter arguing that disclosure requirements are unconstitutional, a space he similarly occupied in Citizens United‘s less-controversial holding.

Send Me Your Doorstuffs

Now that F1@1F has made it into the NYT and the BLT regarding the SCOTUS door closure, I’m taking it upon myself to collect stories, photos, and videos of readers’ experiences approaching and entering the Court’s bronze doors.  Please send me what you have.  If I get enough by this time next week, I will post them all here on the site.

Also, Steve de Man, a friend I met in line at Doe v. Reed and CLS, has started a Facebook group, “Supreme Court: please reopen your steps.”  I encourage those who have walked through the doors, hope one day to walk through the doors, or simply value the experience’s availability to American citizens, to join up.  The Court isn’t likely to change its position, especially because it spent so much time and treasure creating the new entrances to the visitor center, but it’s worth registering your dissents.

Here’s Steve and his friend Patrick O’Donnell talking shop at dawn in the Doe line:

Finally, Lawrence Hurley at Washington Briefs has posted a glimpse at the steps’ new, dismal scene.  Too bad we likely will have to wait for an even more dismal scene (skip to 20:00, watch through 24:00) before anyone else–spare perhaps the next justice–may walk through those doors again.

The General Republic

Waiting Out the Sprinklers, 1:18am

My Vox Populi column from the Doe v. Reed line is now up at the ABA Journal:

Those of us dozing in the Doe v. Reed line at half past five on Tuesday morning received a rude awakening from a homeless man ranting at us about the interrelation of President Nixon, G. Gordon Liddy, axe murderers, and Internet privacy.

“Just don’t call him Jay Jay–he hates that!” concluded the man, referring to Liddy, as I fumbled for my glasses.  By the time I could see anything, however, he was gone.

The trouble with pulling overnights on First Street is that the natural sleep hours invariably fall between three and six in the morning–the primetime arrival hours for most other would-be SCOTUS spectators on blockbuster case days.  So while bits of the man’s rant seeped into my half-conscious dreamscape, many others stood fresh-faced and wide-awake with this scene as their introduction to life on the Supreme Court Side Walk.

But those of us who had been sitting outside since sundown saw another side of the story.

Read the rest here.

Justice Stevens’s Valedictory Question

My write-up from this morning’s oral argument in Doe v. Reed is now up at the ABA Journal:

Today marked Justice John Paul Stevens’s final oral argument of his nearly thirty-five year career as an Associate Justice of the United States Supreme Court.  Although Stevens has two more months of opinion announcements to get in a few more words as an active justice, his sole question during this morning’s argument in Doe v. Reed might as well have been his valedictory address to the Court and the country.

For nearly thirty minutes, Justice Stevens listened to the petitioners’ lawyer, Jim Bopp, argue that men and women who signed a petition to place an anti-gay rights referendum on the state ballot had a First Amendment right to privacy in their political associations that protected them against harassment from those with opposing political views.  Accordingly, Bopp maintained, Washington State had no compelling justification to release, pursuant to the state’s Public Records Act, the signers’ name and information.

Then, as the white warning light turned on upon Bopp’s lectern to signal that his half-hour was almost up, Justice Stevens leaned forward and spoke into his microphone.

Read the rest here.

“The Story” w/ Dick Gordon Interview

I just got back from Doe v. Reed.  A really great bout to end this term’s oral arguments.  I’ll have my ABA Journal piece up later today.

In the meantime, check out my interview on American Public Media’s “The Story” with Dick Gordon.  The segment begins at 31:00.  If you’d rather go terrestrial, click here to find airtimes for “The Story” on your local NPR affiliate.

Finally, Justice Kennedy made me eat my words with his opinion in in Salazar v. Buono. No time to do an opinion analysis on it right now, other than to note how fractured the majority coalition was:

KENNEDY, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., joined, and in which ALITO, J., joined in part. ROBERTS, C. J., filed a concurring opinion. ALITO, J., filed an opinion concurring in part and concurring in the judgment. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. BREYER, J., filed a dissenting opinion.

For more on Buono, check out Josh Blackman’s instant analysis.

Pre-Doeing

I'll Take It.

Final wait of the season completed.  Home to thaw.  A few thoughts on the Doe v. Reed line:

• I woke up this morning to a man ranting about G. Gordon Liddy to all in line.  Fitting to bring back Watergate as Justice Stevens, the President Ford’s post-Watergate pick, hears his final oral argument.
• Speaking of Stevens’s final oral argument, one admirer in line showed up wearing a commemorative bowtie.
• The line was shockingly short given the high profile of Doe, its gay marriage undertones, and (again) Justice Stevens’s final oral argument.
• People from Poland, California, Bangladesh, Rhode Island, and Wisconsin out there last night/this morning.  Got some good video interviews for Supreme Court Side Walk.
• Sunday night was warm and rainy.  Last night was cold and dry.  And now that the Court is done with oral arguments later this morning, what’s it like for the rest of this week?  Dry and warm.  April, you disappoint me.

Time for my final trek up First Street for an oral argument this term.  It’s been fun.  Thanks to all who brave the elements with me, even those who beat me to the front of the line.  From the Court to East Capitol and around the corner, you all rock.

Come back later today for the argument recap and tomorrow for my Vox Populi column.

SCSW III: Doe v. Reed

Interview with my usurpers:

More footage from tonight and tomorrow morning later this week.

I Curse You, Monsanto

Dear Monsanto v. Geertson Farms,

I knew you were bad news.

First you require me to do a campout despite your mid-major status.  Then, for all that waiting, you compel me to write up your oral argument despite its otherwise opaque, technical nature.  Now, as I am writing, you destroy my chances at going out on top this term:

"We're Waiting For You" - 2:56pm

The fact that I’m told “the guy in the picture likes what you’re doing so much he will relinquish the #1 ticket to you,” doesn’t soothe the pain you’ve caused me.  #1 deserves to be #1, even if I’d be out there already if it weren’t for you.

I curse you, Monsanto.  I curse you.

-Mike

Conspiracy!

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. Reed–will 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!

…Here We Go.

If the Court dipped its toes into the gay marriage debate through its ruling against the videostreaming of the Prop. 8 case, then the Court will step into the shallow end in April to hear Doe No. 1, et al., v. Reed, et al., a case arising from a petition to get an anti-domestic partnership referendum onto a Washington State ballot.

Here’s Lyle Denniston from SCOTUSBlog:

The Court’s vote to hear the case of Doe No. 1, et al., v. Reed, et al. (09-559) marked the second time this week that the Court opted to act on controversies involving opponents of gay rights’ claims that publicity about their political activity has led to threats and even some violence against them.  On Wednesday, the Court shut down a plan to televise the federal court trial challenging California’s ban on same-sex marriage, displaying concern for the potential effect on supporters of that ban when they appear as witnesses at the trial.

The new case involves an effort to bring out in public the identities of individuals in Washington State who signed petitions to put on the state election ballot a referendum that would overturn a new state law extending the benefits of marriage (but not marriage itself) to couples registered as “domestic partners.”  (That referendum failed, and the law remains in effect; voters approved the new law by a 53-47 percent margin last November.)

In taking the Washington case to the Court, the petition-signers’ lawyer said the confidentiality issue “is arising with great frequency across the country as changes in technology have made it possible for individuals and groups seeking to prevent public debate from occurring to obtain the names and contact information of petition signers and post that information online to encourage harassment and intimidation.”  One group, the filing said, has posted on its web site information about gay marriage petition-signers in Arkansas, Florida, Massachusetts and Oregon.