My argument write-up on Christian Legal Society v. Martinez is now up at ABA Journal:
From the justices’ questions at oral argument this morning in Christian Legal Society v. Martinez, it appeared as if the Supreme Court intended to begin its final sitting of the term by gifting Justice Stevens, the Court’s newly minted nonagenarian and retiree-designate, the opportunity to control how this morning’s case will be decided.
Read the rest here. Check back tomorrow for my Vox Populi column from last night/this morning’s CLS line.
The New York Times reports that Nebraska has opened up a new front in the abortion wars:
Gov. Dave Heineman of Nebraska signed a law on Tuesday banning most abortions 20 weeks after conception or later on the theory that a fetus, by that stage in pregnancy, has the capacity to feel pain. The law, which appears nearly certain to set off legal and scientific debates, is the first in the nation to restrict abortions on the basis of fetal pain. [...]
The Nebraska law grew out of a battle over abortion waged in a far different forum. After an abortion opponent killed Dr. George R. Tiller, a leading late-term abortion provider in Wichita, Kan., last year, Dr. LeRoy H. Carhart, who sometimes worked with Dr. Tiller, said he would carry on his legacy by performing some later-term abortions in his clinic in Bellevue, Neb.
The Court’s most recent big abortion cases both had Dr. Carhart in the caption. 2000’s Stenberg v. Carhart struck down Nebraska’s partial birth abortion ban by a 5-4 vote, holding that the state law placed an undue burden on a woman’s right to an abortion because the law had no exception to allow the procedure when the mother’s life or health was threatened by her pregnancy. The Court changed course in 2007 with Gonzalez v. Carhart. Justice Alito cast the deciding fifth vote to uphold the federal ban on partial birth abortions, whereas his predecessor, Justice O’Connor, provided the fifth vote to strike down Nebraska’s similar law in Stenberg.
The partial birth abortion bans tested the undue burden standard late in a pregnancy, in which the Court in Roe and Casey both recognized the state’s compelling interest in protecting fetal life. This law is very different:
Lawmakers in Nebraska were outraged at the prospect of becoming, in the words of one of the state’s leading anti-abortion groups, the next “late-term abortion capital of the Midwest.” Early Tuesday, the state’s nonpartisan unicameral legislature passed the new measure overwhelmingly, 44 to 5. [...]
The law, which is to take effect Oct. 15, restricts abortion in Nebraska on several fronts. It will forbid abortions after 20 weeks’ gestation. The law it replaces, similar to those in many other states, banned abortions after a fetus reaches viability, or can survive outside the womb. This is determined case by case but is generally considered to come around 22 weeks at the earliest.
The new law grants exceptions only in cases of medical emergency, the pregnant woman’s imminent death, or a serious risk of “substantial and irreversible physical impairment of a major bodily function,” a provision experts interpreted as an effort to exclude an exception based on a woman’s mental health.
Casey‘s undue burden standard is the strictest for abortion regulations before the fetus is viable. By banning abortions of fetuses starting at twenty weeks old, Nebraska’s new law seeks to set a new bright line for fetal viability.
If this case gets to the Court as currently composed (assuming Justice Stevens’s successor will vote as he would have voted), Justice Kennedy will, as ever, be the deciding vote. Although he voted in both Stenberg and Gonzales to uphold the partial birth abortion bans, his vote is less certain for this law. A total ban on abortions of arguably pre-viable fetuses when the state’s regulatory power under Casey is at its nadir is very different from what Kennedy saw in Gonzales as a narrow ban on a particular abortion procedure that was performed when the state’s regulatory power under Casey was at its apex.
Further, if Casey did anything for an instinctual abortion foe such as Kennedy, it was to demolish Roe‘s rigid trimester framework and erect in its place a more fluid, regulation-friendly, assessment based upon fetal viability. The new Nebraska law puts back in place Roe‘s rigidity, even as it cuts away at the abortion right. In doing so, the law invites the Court’s steadfast abortion foes to keep approving of each states’ moving the viability goalposts ever closer to conception, thereby eviscerating the appeal of bright line rules while making a mockery of the serious viability assessments required under Casey.
Finally, one must not forget that Justice Kennedy will have the weight of Casey upon him as the sole remaining member of its majority of himself and Justices O’Connor, Souter, Stevens, and Blackmun. It is doubtful that Kennedy, a man very aware of his unique place on the Court, would vote to uphold a law that strikes at the very core of his career’s most courageous stand.
The oral argument in Holder v. Humanitarian Law Project did little to clarify where the justices themselves stood on the constitutionality of the Patriot Act’s criminalizing HLP’s (hopes of) providing designated terrorist groups with peacemaking advice and international law advocacy training.
Justice Scalia provided the morning’s biggest laugh by referring to the notion of “Mohammed Atta & His Harmonica Quartet” touring the nation–I’ll give that comment’s context in my argument report.
But the most salient statement today fittingly belonged to Justice Kennedy, when he simply stated, “This is a difficult case for me.” As goes Kennedy…
Come back or subscribe to F1@1F to get the full write-up later this afternoon.
Via Ben Smith @ Politico, Justice Scalia believes that the Civil War settled the constitutional question of secession:
[T]he answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. (Hence, in the Pledge of Allegiance, “one Nation, indivisible.”)
The screenwriter that posed the secession question to Scalia may have found better luck if he inquired about something a little closer and ostensibly less soaked in blood. Something like, say, the constitutionality of affirmative action.
Indeed, a Michigan-based pro-affirmative action group, By Any Means Necessary, has filed a class action lawsuit against California’s Prop 209, which upon its 1996 passage amended California’s constitution to bar affirmative action in the University of California system.
There is no guarantee that this suit will move forward. But BAMN appears emboldened by two factors: 1) the current Prop 8 challenge in a California federal district court, and 2) the Roberts Court’s hostility to race-based policies and initiatives.
Yet just because a federal court proceeded with trial in the Prop 8 case, and that case seems destined to go to a Supreme Court that has issued rulings favorable to gay rights, does not mean that Prop 209 will get the same treatment. First, the Ninth Circuit unanimously smacked down a challenge to the amendment in 1997. Second, Justice Kennedy, who may or may not be favorable to gay rights when it comes to marriage, is absolutely and unequivocally against affirmative action: he dissented Metro Broadcasting, was in the majority in Adarand, dissented in Grutter, was in the Gratz majority, was Parents Involved‘s fifth vote, and penned Ricci.
Justice O’Connor in Grutter upheld affirmative action. Justice Alito will have no such sympathies. Unless Kennedy has a Casey moment and steps back from the brink of overturning another liberal, Burger Court era precedent, BAMN should count the votes and fire its counsel for malpractice: if this case goes to the Supreme Court, it will find five justices who will not hesitate in ending affirmative action once and for all. And they will almost certainly use Chief Justice Roberts’s concurrence in Citizens United to justify reversing Grutter within a decade of the decision.
Kennedy voted against his previous voting record and upheld abortion in Casey because O’Connor’s investment in the law and Souter’s fealty to stare decisis convinced Kennedy that Roe should not be entirely felled. With neither O’Connor nor Souter remaining on the bench, I see no way affirmative action will survive Kennedy’s longstanding antipathy to race-conscious laws. In fact, we may sooner see the justices rule that secession passes constitutional muster. And even Scalia, with his famously alienating pen, could write an opinion that holds a nine-member majority on its unconstitutionality.
My law school has lined up quite a day on Tuesday for the symposium, ““State Courts and U.S. Supreme Court Rulings: Will Caperton and Citizens United Change the Way States Pick Judges?” I have no classes on Tuesdays, so F1@1F will be there.
Justice O’Connor will be the keynote speaker. Since retiring from the Court, she has led the fight to eliminate state judicial elections as impediments to judicial independence.
Here’s the morning lineup:
9:15 – 10:15 am.
Panel 1: Caperon v. Massey Coal and the Recusal of State Court Judges
Bert Brandenburg, Executive Director, Justice at Stake Campaign
Carte Goodwin, Partner, Goodwin & Goodwin, PC and Chair, West Virginia Independent Commission on Judicial Reform
Pamela Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School
Roy Schotland, Professor Emeritus, Georgetown University Law Center
Moderator: Nina Totenberg, Legal Affairs Correspondent, NPR
10:20 – 11:20 a.m.
Panel 2: Citizens United and the Election of State Court Judges
Jan Baran, Partner, Wiley & Rein, LLP
Karl Sandstrom, Of Counsel, Perkins Coie
Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law, Capital University Law School
H. Thomas Wells, Jr., Immediate Past President, American Bar Association
Fred Wertheimer, President, Democracy 21
Moderator: Tony Mauro, Supreme Court Correspondent, National Law Journal
Some commentators have already noticed the not-so-easily reconcilable fact that Justice Kennedy wrote the majority opinions in both cases, each decided 5-4. In Caperton, he wrote for the liberal bloc in holding that the 14th Amendment’s Due Process Clause required an elected state supreme court judge recuse himself from judging a case in which one of the parties had previously donated $3 million to his judicial election campaign–and for whose side, “coincidentally,” the judge, once elected to the bench, ultimately gave the winning vote.
In Citizens United, as we all know know, Justice Kennedy wrote for the conservative bloc in holding that the same corporations that he felt under the Due Process Clause unconstitutionally sleazed up judges elected to state courts could, under the First Amendment, constitutionally spend all they wanted in local, state, and federal elections. On page 51 of Kennedy’s opinion, he offers a distinction between the two cases:
The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate. See Buckley, supra, at 46. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. This is inconsistent with any suggestion that the elector- ate will refuse “‘to take part in democratic governance’” because of additional political speech made by a corpora- tion or any other speaker. McConnell, supra, at 144 (quot- ing Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 390 (2000)).Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009), is not to the contrary. Caperton held that a judge was required to recuse himself “when a person with a personal stake in a particular case had a significant and dispropor- tionate influence in placing the judge on the case by rais- ing funds or directing the judge’s election campaign when the case was pending or imminent.” Id., at ___ (slip op., at 14). The remedy of recusal was based on a litigant’s due process right to a fair trial before an unbiased judge. See Withrow v. Larkin, 421 U. S. 35, 46 (1975). Caperton’s holding was limited to the rule that the judge must be recused, not that the litigant’s political speech could be banned.The McConnell record was “over 100,000 pages” long, McConnell I, 251 F. Supp. 2d, at 209, yet it “does not have any direct examples of votes being exchanged for . . . ex- penditures,” id., at 560 (opinion of Kollar-Kotelly, J.). This confirms Buckley’s reasoning that independent expendi- tures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate. See 251 F. Supp. 2d, at 555–557 (opinion of Kollar-Kotelly, J.). Ingratiation and access, in any event, are not corruption. The BCRA record establishes that certain donations to political parties, called “soft money,” were made to gain access to elected officials. McConnell, supra, at 125, 130– 131, 146–152; see McConnell I, 251 F. Supp. 2d, at 471– 481, 491–506 (opinion of Kollar-Kotelly, J.); id., at 842– 843, 858–859 (opinion of Leon, J.). This case, however, is about independent expenditures, not soft money. When Congress finds that a problem exists, we must give that finding due deference; but Congress may not choose an unconstitutional remedy. If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expe- diency before principle, then surely there is cause for concern. We must give weight to attempts by Congress to seek to dispel either the appearance or the reality of these influences. The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical preelection period is not a permissible remedy. Here Congress has created categorical bans on speech that are asymmetrical to preventing quid pro quo corruption.
Stevens’s spends pages 67-70 of his dissent on why Kennedy’s two opinions are at odds:
The insight that even technically independent expenditures can be corrupting in much the same way as direct contributions is bolstered by our decision last year in Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009). In that case, Don Blankenship, the chief executive officer of a corporation with a lawsuit pending before the West Vir ginia high court, spent large sums on behalf of a particular candidate, Brent Benjamin, running for a seat on that court. “In addition to contributing the $1,000 statutory maximum to Benjamin’s campaign committee, Blankenship donated almost $2.5 million to ‘And For The Sake Of The Kids,’” a §527 corporation that ran ads tar geting Benjamin’s opponent. Id., at ___ (slip op., at 2). “This was not all. Blankenship spent, in addition, just over $500,000 on independent expenditures . . . ‘ “to sup port . . . Brent Benjamin.” ’ ” Id., at ___ (slip op., at 2–3) (second alteration in original). Applying its common sense, this Court accepted petitioners’ argument that Blankenship’s “pivotal role in getting Justice Benjamin elected created a constitutionally intolerable probability of actual bias” when Benjamin later declined to recuse him self from the appeal by Blankenship’s corporation. Id., at ___ (slip op., at 11). “Though n[o] . . . bribe or criminal influence” was involved, we recognized that “Justice Ben jamin would nevertheless feel a debt of gratitude to Blankenship for his extraordinary efforts to get him elected.” Ibid. “The difficulties of inquiring into actual bias,” we further noted, “simply underscore the need for objective rules,” id., at ___ (slip op., at 13)—rules which will perforce turn on the appearance of bias rather than its actual existence.
In Caperton, then, we accepted the premise that, at least in some circumstances, independent expenditures on candidate elections will raise an intolerable specter of quid pro quo corruption. Indeed, this premise struck the Court as so intuitive that it repeatedly referred to Blankenship’s spending on behalf of Benjamin—spending that consisted of 99.97% independent expenditures ($3 million) and 0.03% direct contributions ($1,000)—as a “contribution.” See, e.g., id., at ___ (slip op., at 1) (“The basis for the [recusal] motion was that the justice had received cam paign contributions in an extraordinary amount from” Blankenship); id., at ___ (slip op., at 3) (referencing “Blankenship’s $3 million in contributions”); id., at ___ (slip op., at 14) (“Blankenship contributed some $3 million to unseat the incumbent and replace him with Benjamin”); id., at ___ (slip op., at 15) (“Blankenship’s campaign con tributions . . . had a significant and disproportionate influence on the electoral outcome”). The reason the Court so thoroughly conflated expenditures and contributions, one assumes, is that it realized that some expenditures may be functionally equivalent to contributions in the way they influence the outcome of a race, the way they are interpreted by the candidates and the public, and the way they taint the decisions that the officeholder thereafter takes.
Caperton is illuminating in several additional respects. It underscores the old insight that, on account of the ex treme difficulty of proving corruption, “prophylactic meas ures, reaching some [campaign spending] not corrupt in purpose or effect, [may be] nonetheless required to guard against corruption.” Buckley, 424 U. S., at 30; see also Shrink Missouri, 528 U. S., at 392, n. 5. It underscores that “certain restrictions on corporate electoral involve ment” may likewise be needed to “hedge against circum vention of valid contribution limits.” McConnell, 540 U.S., at 205 (internal quotation marks and brackets omitted); see also Colorado II, 533 U. S., at 456 (“[A]ll Members of the Court agree that circumvention is a valid theory of corruption”). It underscores that for-profit cor porations associated with electioneering communications will often prefer to use nonprofit conduits with “mislead ing names,” such as And For The Sake Of The Kids, “to conceal their identity” as the sponsor of those communica tions, thereby frustrating the utility of disclosure laws. McConnell, 540 U. S., at 128; see also id., at 196–197.
And it underscores that the consequences of today’s holding will not be limited to the legislative or executive context. The majority of the States select their judges through popular elections. At a time when concerns about the conduct of judicial elections have reached a fever pitch, see, e.g., O’Connor, Justice for Sale, Wall St. Journal, Nov. 15, 2007, p. A25; Brief for Justice at Stake et al. as Amici Curiae 2, the Court today unleashes the floodgates of corporate and union general treasury spending in these races. Perhaps “Caperton motions” will catch some of the worst abuses. This will be small comfort to those States that, after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integ rity of their judicial systems.
The Court just issued its first party-line, 5-4 opinion of the term, staying the broadcast of the Prop. 8 trial underway in California to federal courthouses in San Francisco, Seattle, Portland, Brooklyn, and Pasadena.* Read SCOTUSBlog’s write-up and download the opinion here.
The majority paints its decision in procedural terms, though I find it difficult to believe that the vote would break down similarly if the potentially broadcasted case’s substance was, say, tax evasion. In such a case containing no hyper-charged political pretext, we could have very well seen a nearly-unanimous vote one way or the other.
Also, note Sotomayor’s vote with the dissent. If Souter’s distaste for Supreme Courtroom cameras extended on down to the district court level, perhaps he would have voted with the majority, lending the decision a modicum of integrity.
Finally, I am intrigued as to whether this opinion says anything about Kennedy’s potential vote should (when, really) Perry v. Schwarzenegger comes up to the Court. While one can be fairly certain that the other eight justices voted their policy preferences for Perry‘s underlying issue, something tells me that Kennedy remains eminently swingable.
On the other hand, Kennedy’s vote with the majority today could mirror his abortion jurisprudence. That is, just as he upheld abortion rights in Casey only to limit its reach in Gonzales v. Carhart, so too could marriage exist beyond the bounds of Kennedy’s gay rights rulings.
*Thanks to commenter Mark for correcting my original statement that the Court stayed the YouTube broadcast. They didn’t. But the Court’s temporary stay may be the functional equivalent of a permanent stay on all broadcasting, writes Linda Hirschman for NPR/The Nation:
As a technical matter, the temporary stay is only good until the Court addresses a formal appeal for a permanent stay. But the standard for extending the temporary stay includes the requirement that the court thinks a majority of its members would vote in favor of making the stay permanent. So this 5-4 division looks like the ball game.