FIRST ONE @ ONE FIRST

At Close Range

Posted in Case Reports by Mike Sacks on November 2, 2010

READER DISCRETION ADVISED:

THIS POST IS RATED “M” FOR MATURE.

FOR GRAPHIC DESCRIPTIONS OF VIOLENCE AND VISCERA.

First-time lawyers before the Supreme Court invariably comment about the close distance between their lectern and the justices’ bench.  How close?  For Zackery Morazzini, California’s Supervising Deputy Attorney General and the state’s advocate in this morning’s oral argument in Schwarzenegger v. Electronic Merchants Association, this close:

For half an hour, at least six justices appeared to be engaging in their own first-person shooter games, each directing his or her barrel down at Morazzini’s argument that ultra-violent videogames are not protected by the First Amendment.  And Morazzini was asking the Court to adopt an unprecedented expansion of its obscenity doctrine beyond its sex-based bounds, putting him so snugly within the justices’ sights that they didn’t even have to take aim to score their fatal shots.

Justice Antonin Scalia pursued Morazzini as if the lawyer had kidnapped the justice’s brother.  Like any game that can trace its roots back to Wolfenstein 3D–the father of first-person shooters–Scalia’s pursuit featured increased firepower with every deadly blow.  His first line of questions merely exposed the difficulty in cabining the principle behind California’s laws just to video games, setting up Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan each to empty their revolvers: are Grimm’s fairy tales too violent?  Comic books?  Movies?  Rap Music?  Bugs Bunny?

From sight unseen leapt Justice Stephen G. Breyer with a flak jacket for Morazzini.  If the shooters wanted a line drawn, he’d draw them a line: if the virtual gore is too violent for an 18-year-old, then it’s too violent for all minors, period.

But Breyer’s suggestion came just as Scalia and company were upgrading their weaponry.  Kagan stalked Morazzini into a corner, forcing him to admit that juries are responsible for determining what is and isn’t too violent for minors.  At this suggestion, Scalia brings out the shotgun: Cold Steel Originalism.  With almost caricatured irascibility, Scalia said, “You are asking us to create a — a whole new prohibition which the American people never – never ratified when they ratified the First Amendment.”

At that point, Justice Samuel A. Alito attempted a diversion. “Well,” he said, “I think what Justice Scalia wants to know is what James Madison thought about about video games.”  But the two conservative justices will have to save their internecine peppershot over the limits of originalism for the footnotes of this case’s ultimate opinions: pushing through the audience’s laughter–and we all know laughter heals lawyers’ bleeding, bullet-riddled craniums–Scalia insisted, “No, I want to know what James Madison thought about violence.”

Morazzini wasn’t destined to survive this onslaught.  Not with Sotomayor pointing a double-barrel point-blank at him, tersely demanding specific dates for specific statutes banning speech.  When he had no answer, he might as well have slumped down, lifeless, his skull fragments piercing the wooden bench before him.  Instead, Justices Scalia, Sotomayor, Kagan, and Ginsburg spent the remains of Morazzini’s time gleefully smearing themselves in his splattered bits of brain.

Chief Justice John G. Roberts stayed out of the game for nearly all of Morazzini’s argument.  But when Paul Smith of Jenner & Block stepped forward to argue against the California statute, the Chief pressed play.  Roberts wrote last term’s 8-1 opinion in United States v. Stevens, in which the Court refused to create a First Amendment carve-out for depictions of animal cruelty.  The Chief made clear today, however, that a child’s interactive destruction of virtual human life is far more nefarious than videos of real pit bulls mauling the jaws off of real wild hogs.

To make his point, the Chief lodged an entire clip of heavy metal deep into Smith’s argument that there is no American tradition of legally shielding children from violent expression.

Graphic violence. There is a difference.  We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they’ll beg with mercy, being merciless and decapitating them, shooting people in the leg so they fall down. I’m reading from the district court description:  Pour gasoline over them, set them on fire and urinate on them.  We do not have a tradition in this country.  We protect children from that.  We don’t actively expose them to that.

With Scalia, Ginsburg, Sotomayor, and Kagan sitting in gore-phoriac stupors from the first half-hour, Alito and Breyer grabbed the weapons and ran at Smith.  Alito first took another shot at Scalia’s originalism, then moved on, his voice thick with sarcasm, to “clarify” Smith’s position:

And you say there is no problem because 16-year-olds in California never have $50 available to go buy a video game, and because they never have TVs in their room and their parents are always home watching what they — they do with their video games, and the parents — and the video games have features that allow parents to block access to — to block the playing of violent video games, which can’t be overcome by a computer-savvy California 16-year-old, that’s why there is no problem, right?

Breyer then charged ahead, framing the issue not as one of creating a new category of expression unprotected by the First Amendment, but rather as one of traditional First Amendment analysis, in which the restriction on speech must be narrowly tailored to meet a compelling state interest.  Breyer’s bayonet caught Smith off-guard and soon Alito and Roberts were stabbing away.  Even Sotomayor, now roused, poked at Smith a bit, but her pokes largely served to startle Smith into a tactical concession so that he could return to his stronger defenses.

Ultimately, however, it was Justice Anthony M. Kennedy who lit the match that may, one day, burn this whole damn grindhouse to the ground.  The Court’s obscenity jurisprudence, upon which California’s chances live or die, has no place in the First Amendment, however unprotected appeals to the prurient interest may have been in America’s more puritanical past.  And Kennedy today took the Court’s first steps towards an outright rejection of its obscenity doctrine since Justices Hugo Black and William O. Douglas originally warred against its formulation fifty years ago.

The transcript, however, robs Kennedy of his intent so evident to those who watched him on the prowl this morning.  For instance, a reader could believe that Kennedy meant to endorse California’s law by repeatedly asking questions such as, “Why shouldn’t violence be treated the same as obscenity?”  But these questions were couched in his broader observations that “the Court struggled for many, many years and to some extent is still struggling with obscenity.”  These are words of condemnation, not of endorsement.  They recognize that Roth‘s edifice has rotted, if it wasn’t rotten from the very start.  And if California succeeds in housing its law in a rotten hellhole, so be it: sooner or later, the Court will make ashes of it all.

But Kennedy’s overtures will be left for another year, if any obscenity case ever manages to climb high enough to reach the Court.  Today, all that mattered was that more justices killed more of California’s law than they did its challengers.

Indeed, that Morazzini managed to reassemble his skull and its contents for his rebuttal only gave Sotomayor more ammo with which to re-splatter his brains all over the Chief Justice.  Said Sotomayor:

So what happens when the character gets maimed, head chopped off and immediately after it happens they spring back to life and they continue their battle.  Is that covered by your act? Because they haven’t been maimed and killed forever. Just temporarily.

Just temporarily is right.  Until the Court brings obscenity within the First Amendment’s protections, these cases will continue, like zombies and vampires, to rise from the dead, hungry to devour our brains and suck our blood even as we empty them of theirs over and over and over again.

The Pragmatics of Informational Privacy

Posted in Case Reports by Mike Sacks on October 5, 2010

The take-home from this morning’s oral arguments in NASA v. Nelson was simple: when the conservatives don’t buy into the right you’re asserting and your two most likely proponents can’t agree on how to agree with you, then you’re in trouble.

The issue was whether the Ninth Circuit erred in granting 28 employees of the Jet Propulsion Lab in Pasadena, CA, an injunction, based on a right to “informational privacy,” against the government’s use of open-ended questions as well as queries about drug treatment histories on standard background check forms introduced in 2005.

In the early minutes of oral argument it was apparent that both Justices Sonia Sotomayor and Ruth Bader Ginsburg were searching for ways to convince their colleagues to uphold the injunction.  Problem was, they clashed over strategy.

Sotomayor was the first to interrupt Acting Solicitor General Neal Katyal’s argument with a broad, aggressive attack on the government’s policy.

“Could you ask somebody, what’s your genetic makeup, because we don’t want people with a gene that is predisposed to cancer?” Sotomayor inquired.  When Katyal tried to duck the question, she cut to the point: “So what you are saying is, there is no limit?”

Before Katyal could wriggle out of reluctantly agreeing with Sotomayor, Ginsburg jumped in.  Having served with the boys on the bench much longer than Sotomayor, she thought a narrower approach necessary to win their votes.

“The only thing that’s in contention there is the question about treatment or counseling.  Nothing else.  So why are we talking about the universe of questions that might be asked?”  It was as if Ginsburg was telling Sotomayor to tone it down for fear of losing the Court’s right flank.

But the conservatives weren’t interested in narrowness or broadness.  Not yet.  They wanted to know a little more about this right of “informational privacy” thing.

Almost two decades ago, Justice Anthony M. Kennedy, the erstwhile savior of unenumerated privacy rights, famously wrote that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”  This morning, however, Kennedy found the JPL employees’ asserted right to informational privacy troublingly “ill-defined or undefined.”

Kennedy’s comment triggered a series of queries to Katyal, who was unwilling, to the frustration of Justices Antonin Scalia and Samuel A. Alito, to confirm or deny whether such a right exists.

So leave it up to Chief Justice John G. Roberts to successfully execute the bait and switch.  With a friendly voice, he asked if the challenged questions about a history of drug counseling were required for the good of the employee.  Katyal squarely answered in the affirmative, as if he was answering his former boss, Justice Stephen G. Breyer, who appeared this morning entirely sympathetic to such progressive paternalism.  Big mistake.

“Whenever the government comes and says, ‘This is for your own good,’ you have to be a little suspicious,” said Roberts, eliciting reflexive laughter from the entire courtroom.

And with that comment, Scalia was left behind derisively grumbling about substantive due process as Alito and Kennedy joined Roberts in attacking on pragmatic grounds half of the Ninth Circuit’s injunction.

If during Katyal’s argument a consensus emerged against the government’s drug counseling history questions, then Pasadena lawyer Dan Stormer’s argument established a majority’s approval of the similarly enjoined open-ended questions.

Stormer maintained that these questions were inappropriate for low-level employees such as snack bar workers or bus drivers who perform no sensitive activities at JPL.

But what if a snack bar worker “has a big sign on his lawn that says, ‘I hope the space shuttle blows up?’” asked Alito in one of his signature absurd hypotheticals.  When Stormer conceded that the government should know that information, Alito shot back.  If open-ended questions are forbidden, he asked, then how does the government get at that information?

“Do you have to have a specific question on the form?” wondered Alito.  One that, say, specifically asks, “Does this individual have a big sign on his front lawn that says, ‘I hope the space shuttle blows up?’”

Alito’s point was as funny as it was devastating.

Neck Doilies and Foot Pillows

Posted in Non-justiciable by Mike Sacks on September 16, 2010

As the first day of oral argument on October 4 draws near, the Court will reassemble for its annual “Long Conference” on September 27 and  the investiture of Elena Kagan on October 1.  Somewhere amid this preseason activity, the justices will pose for their class picture, taken only when a new justice joins the Court.

The Oyez Project has these photos going all the way back to the early Chase Court of 1865.  Through the class pictures, the Court’s institutional continuity is set before us in plainly human terms.  Young men and women share the stage with their elders, only to become elders themselves.  Sometimes a single justice links generations disappeared and developing, such as John Paul StevensWilliam J. Brennan, William O. DouglasOliver Wendell Holmes, and Stephen J. Field.

Naturally, all eyes will be on Justice Kagan for this year’s class photo, as they were on Justice Sotomayor for last year’s.  But a question for both comes to mind: neck doily or no neck doily?  For Sotomayor’s investiture and the class photo, she wore the neck doily–or jabot–that Justices Ruth Bader Ginsburg and Sandra Day O’Connor had long donned.  Sotomayor kept the jabot on for Citizens United, her first oral argument, but when the Court reconvened a month later, she had done away with the doily for the unadorned black robe.

So will Sotomayor reapply the doily for this year’s class photo?  And what about Kagan?  Going without it is not without precedent: although O’Connor introduced the jabot, she went without it for every class picture until Ginsburg joined the Court.  But surely neither Sotomayor nor Kagan will want to return Ginsburg to her lonely doilihood of the O’Connor-Sotomayor interregnum.

Speaking of Ginsburg, this year’s photo will be her first seated in the front row.  Given her diminutive height, another question emerges.  If her feet don’t touch the ground, will she bring back the Fuller Foot Pillow?

Television Indecency!

Posted in Case Reports, Clairvoyance by Mike Sacks on July 13, 2010

I wrote last night of internet obscenity.  Today, the Second Circuit handed down its opinion in Fox v. FCC, declaring unconstitutional the FCC’s indecency policy of fining network television stations for broadcasting fleeting expletives.

The Second Circuit heard this case on remand from the Supreme Court, which last term upheld the FCC’s regulation as a matter of administrative law by a 5-4 vote.  The Court refused to address the constitutional question of whether the policy violated the First Amendment – the issue the Second Circuit answered in the affirmative today.

Justice Thomas concurred in last year’s conservative majority, expressing his willingness to strike down the regulation on constitutional grounds even though he did not believe it to be impermissibly arbitrary or capricious under the Administrative Procedure Act.  Thomas advocated for overturning precedents that gave less First Amendment protection to broadcast speech than otherwise given to utterances in printed media or cable television.  “Red Lion and Pacifica,” he wrote, “were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity.”

Thomas has made a career out of similar separate opinions calling for breaks from incorrect precedents.  While commentators may debate the long-term influence of Thomas’s lone cry in McDonald this term to overturn over a century of precedent so to exhume the Privileges or Immunities Clause of the Fourteenth Amendment, they may find more immediate satisfaction if FCC v. Fox (captioned Fox v. FCC in today’s Second Circuit opinion) gets back to the Court on the constitutional issue.

Here’s the money quote from Judge Pooler’s opinion, which echoes Thomas’s concurrence:

The Networks argue that the world has changed since Pacifica and the reasons underlying the decision are no longer valid. Indeed, we face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed a “uniquely pervasive presence in the lives of all Americans.” Pacifica, 438 U.S. at 748.

The same cannot be said today. The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast – almost 87 percent of households subscribe to a cable or satellite service – and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control. See In re Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, 24 FCC Rcd. 542, at ¶ 8 (2009). The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs. [...]

Moreover, technological changes have given parents the ability to decide which programs they will permit their children to watch. [...] In short, there now exists a way to block programs that contain indecent speech in a way that was not possible in 1978. In fact, the existence of technology that allowed for household-by-household blocking of “unwanted” cable channels was one of the principle distinctions between cable television and broadcast media drawn by the Supreme Court in Playboy. The Court explained:

The option to block reduces the likelihood, so concerning to the Court in Pacifica, that traditional First Amendment scrutiny would deprive the Government of all authority to address this sort of problem. The corollary, of course, is that targeted blocking enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners – listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt.

We can think of no reason why this rationale for applying strict scrutiny in the case of cable television would not apply with equal force to broadcast television in light of the V-chip technology that is now available.

Nevertheless, Pooler refused to defy Supreme Court precedent and instead struck down the regulation as an impermissibly vague restriction on speech:

We agree with the Networks that the indecency policy is impermissibly vague. The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not. Omnibus Order, 21 F.C.C. Rcd 2664, at ¶¶ 127-128. Other expletives such as “pissed off,” up yours,” “kiss my ass,” and “wiping his ass” were also not found to be patently offensive. Id. at ¶ 197. The Commission argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word “bullshit” is indecent because it is “vulgar, graphic and explicit” while the words “dickhead” was not indecent because it was “not sufficiently vulgar, explicit, or graphic.” This hardly gives broadcasters notice of how the Commission will apply the factors in the future. [...]

[T]he absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature. Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all “patently offensive” references to sex, sexual organs, and excretion without giving adequate guidance as to what “patently offensive” means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.

What seems certain from last year’s vote is that the Supreme Court, should it grant certiorari in this case, will affirm the Second Circuit’s judgment.  If the four liberals–Stevens, Souter, Breyer, and Ginsburg–would have invalidated the policy on administrative law grounds, they would likely strike it down on constitutional grounds as well.  And Thomas would surely provide a fifth vote, given his concurrence.  Because no other member of the Court’s Fox majority joined Thomas’s concurrence, I question whether Roberts, Scalia, or Alito will side with the dissenters on the constitutional question, though I fall back on conventional wisdom in thinking that Kennedy is up for grabs.

The question now is whether the Court would follow Thomas’s suggestion and remove the constitutional distinctions between broadcast and other mediums, thereby submitting all speech restrictions to strict scrutiny.  We don’t know how Sotomayor or Kagan would look towards uprooting precedent, especially one of Kagan’s (assuming she gets confirmed) predecessor’s landmark rulings.  Stevens himself intimated in his Fox dissent that “Justice Thomas and I disagree about the continued wisdom of Pacifica,” implying that he would follow the Second Circuit’s void-for-vagueness ruling rather than overturn himself.

Justice Ginsburg, however, signaled her openness to joining Thomas by citing Justice Brennan’s Pacifica dissent:

The Pacifica decision, however it might fare on reassessment, see ante,at 6 (Thomas, J., concurring), was tightly cabined, and for good reason. In dissent, Justice Brennan observed that the Government should take care before enjoining the broadcast of words or expressions spoken by many “in our land of cultural pluralism.” 438 U. S., at 775. That comment, fitting in the 1970’s, is even more potent today. If the reserved constitutional question reaches this Court, see ante, at 26 (majority opinion), we should be mindful that words unpalatable to some may be “commonplace” for others, “the stuff of everyday conversations.” 438 U. S., at 776 (Brennan, J., dissenting).

Nina Totenberg on Marty Ginsburg

Posted in Non-justiciable by Mike Sacks on July 3, 2010

My former boss, NPR’s Nina Totenberg, has written a short and sweet story about Marty and Ruth Bader Ginsburg:

On the last day of the Supreme Court term, less than 24 hours after her husband had died, an ashen-faced Justice Ruth Bader Ginsburg announced her opinion for the court in one of the term’s major cases. She was on the bench, she told colleagues, because “Marty would have wanted it this way.”

This piece is not just the work of a reporter, but also of a friend.  Nina has been close with the Ginsburgs dating back over three decades to Justice Ginsburg’s days as a pioneering lawyer for gender equality at the ACLU.

An Inspiring Sight for All

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

My latest–and final–ABA Journal online column from the Court’s 2009-10 term is now live:

Solicitor General Elena Kagan’s first unabashedly straight answer of her confirmation hearings to become a Supreme Court justice came early in her 17 hours of questioning by the Senate Judiciary Committee this week. Ninety minutes into Kagan’s interrogation, Sen. Herb Kohl, D-Wisc., asked her for her opinion on cameras in the Supreme Court.

“I think it would be a terrific thing to have cameras in the courtroom,” said Kagan (Video). “When you see what happens there, it’s an inspiring sight…It would be a great thing for the court and a great thing for the American people.”

Twenty-four hours earlier, I was sitting inside the court witnessing its final session of the term. Like a dozen times before, I had sat through the night on the pavement outside to be among the few who would catch a glimpse of the inspiring sight to which Kagan, by virtue of her office, had a front row seat all this year.

But on Monday morning, I would have traded all of my own fond memories of new friends made and stories told over the past six months for the whole country to have seen the same moving scenes I saw.

Read the rest here.

Marty Ginsburg and Georgetown Law

Posted in Non-justiciable by Mike Sacks on June 27, 2010

Marty Ginsburg, Georgetown Law’s legendary tax professor and husband of Justice Ruth Bader Ginsburg, has died at age 78 of complications from cancer.

I had been intending to take Professor Ginsburg’s Tax I class this coming fall as a capstone to my legal education.  When I went to register and saw that his name was nowhere to be found, I figured he might have just taken the term off from teaching, as tenured titans may do from time to time.  Turns out his absence was because of a much more serious reason.

A small anecdote: during my first year at Georgetown, I spotted H. Ross Perot’s name etched into the wall inside the entrance of McDonough Hall, the school’s main law building.  I did some asking around to find out why he’d be a GULC benefactor.  The answer?  The Texas billionaire and former presidential candidate wanted to express his appreciation to Marty Ginsburg, his tax lawyer, for a job well done over the years.

My condolences to Justice Ginsburg and her family.  I’ll be sitting shiva as I sit on the sidewalk tonight, convinced that Prof. Ginsburg is out there treating his friends old and new to a heavenly meal.

Appetizers Today, Main Course on Monday

Posted in Case Reports by Mike Sacks on June 24, 2010

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.

Into the Weeds

Posted in Case Reports by Mike Sacks on April 27, 2010

My oral argument write-up for Monsanto is now up at the ABA Journal:

The Supreme Court today was slated to consider in Monsanto Co. v. Geertson Seed Farms how nigh the organic alfalfa apocalypse must be to justify a federal district court’s nationwide injunction against the use of an agricultural giant’s genetically modified alfalfa seed.

But the Court this morning proved as resistant to the parties’ arguments as Monsanto’s alfalfa is to Roundup weed-killer.  Instead of assessing, as expected, what degree of likelihood of environmental harm must be considered in order for a court to issue an injunction under the National Environmental Protection Act (NEPA), the justices spent the hour snarling at this case as if it were an unwanted weed growing in the Marble Temple.

Read the rest here.

I’m off to the Court now to be not first for tomorrow morning’s argument in Doe v. Reedthe final argument of the Court’s term and Justice Stevens’s career.  Keep your eye on my twitter feed, where I’ll be updating on the line’s progress through the night.

SCOTUSReligion

Posted in Clairvoyance, Law and Politics by Mike Sacks on March 8, 2010

Bob Barnes at the Washington Post has a column today that discusses whether the days of the Court’s religiously-reserved seats are over:

Here’s the kind of question that might violate the rules you learned about proper dinner conversation: Does President Obama’s next Supreme Court nominee need to be a Protestant?

If Justice John Paul Stevens decides to call it a career after he turns 90 next month, the Supreme Court would for the first time in its history be without a justice belonging to America’s largest religious affiliations.

Turns out I’ve violated dinner conversation etiquette several times since I started F1@1F in December.

As I stated on F1@1F’s first day, I believe Obama will nominate Judge Diane Wood to preserve what has now become “the W.A.S.P. seat” when Stevens retires.   For this reason (though not only this reason) I disagree with Tom Goldstein’s prediction at SCOTUSBlog that Solicitor General Elena Kagan will be Stevens’s successor.

In fact, Kagan may have time yet before she gets her much-expected nomination to the bench.  I think Justice Ginsburg’s successor will be a person of color from a yet-to-be represented ethnic group.  Only when Justice Breyer retires will the President seek to preserve the Jewish seat.

By then, however, Kagan’s window may be closed by age or the President’s party affiliation.  And no amount of goodwill Kagan built up among the conservative legal professoriate during her Harvard Law deanship will compel a GOP President to nominate her.

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