The Fifth Circuit has just handed down its opinion in Fisher v. University of Texas upholding UT-Austin’s race-conscious admissions for those not among the auto-admitted top ten percent of their high school classes. I flagged this case some months ago and have been eagerly awaiting its result. In August, I devoted an entire post to the prospect of the Roberts Court granting certiorari to Fisher‘s inevitable petition and, in turn, reversing precedent to rule higher education affirmative action unconstitutional.
Senior Judge Patrick Higginbotham‘s opinion depends entirely on the Supreme Court’s 2003 decision, Grutter v. Bollinger, in which Justice Sandra Day O’Connor, writing for herself and the Court’s liberal bloc, reaffirmed the constitutionality of affirmative action in higher education. While Justice Samuel Alito has not faced a higher-ed affirmative action case since arriving on the Court, his vote in 2007’s Parents Involved and his generally conservative voting pattern overall strongly suggest that he will not vote in accord with his predecessor’s opinion in Grutter.
The Fisher decision notably includes Judge Emilio M. Garza‘s 30 page anti-Grutter broadside, more politely labeled as a “special concurrence.” Judge Garza, a Reagan appointee to the district court, a George H.W. Bush appointee to the Fifth Circuit, and a runner-up to Justice Clarence Thomas for Justice Thurgood Marshall’s seat on the Supreme Court in 1991, apparently wrote his special concurrence specifically for the consumption of the current Court’s conservative bloc–including Justice Anthony Kennedy, who dissented in Grutter and concurred in Parents Involved.
Garza’s concurrence in Fisher begins:
Whenever a serious piece of judicial writing strays from fundamental principles of constitutional law, there is usually a portion of such writing where those principles are articulated, but not followed. So it goes in Grutter, where a majority of the Court acknowledged strict scrutiny as the appropriate level of review for race-based preferences in university admissions, but applied a level of scrutiny markedly less demanding. To be specific, race now matters in university admissions, where, if strict judicial scrutiny were properly applied, it should not.
Today, we follow Grutter’s lead in finding that the University of Texas’s race-conscious admissions program satisfies the Court’s unique application ofstrict scrutiny in the university admissions context. I concur in the majority opinion, because, despite my belief that Grutter represents a digression in the course of constitutional law, today’s opinion is a faithful, if unfortunate, application of that misstep. The Supreme Court has chosen this erroneous path and only the Court can rectify the error. In the meantime, I write separately to underscore this detour from constitutional first principles.
Justice Kennedy spoke to this very “misstep” in his Grutter dissent, arguing not that affirmative action is unconstitutional, but rather that the majority unlawfully loosened its own strict scrutiny standard for such race-conscious admissions programs. Kennedy’s pivotal position is not lost on Garza, as evidenced in his explicit invocation of the justice:
After finding that racial diversity at the University of Michigan Law School (“Law School”) was a compelling governmental interest, the Court redefined the meaning of narrow tailoring. See Grutter, 539 U.S. at 387 (Kennedy, J., dissenting) (“The Court, however, does not apply strict scrutiny. By trying to say otherwise, it undermines both the test and its own controlling precedents.”); see generally Ian Ayres & Sydney Foster, Don’t Tell, Don’t Ask: Narrow Tailoring After Grutter and Gratz, 85 TEX. L. REV. 517 (2007). The Court replaced narrow tailoring’s conventional “least restrictive means” requirement with a regime that encourages opacity and is incapable of meaningful judicial review under any level of scrutiny.
Ultimately, Garza cites Kennedy five times despite Garza’s own more hardline opposition to affirmative action, which he spells out in conclusion:
My disagreement with Grutter is more fundamental, however. Grutter’s failing, in my view, is not only that it approved an affirmative action plan incapable of strict scrutiny, but more importantly, that it approved the use of race in university admissions as a compelling state interest at all. [...]
Yesterday’s racial discrimination was based on racial preference; today’s racial preference results in racial discrimination. Changing the color of the group discriminated against simply inverts, but does address, the fundamental problem: the Constitution prohibits all forms of government-sponsored racial discrimination. Grutter puts the Supreme Court’s imprimatur on such ruinous behavior and ensures that race will continue to be a divisive facet of American life for at least the next two generations. Like the plaintiffs and countless other college applicants denied admission based, in part, on government-sponsored racial discrimination, I await the Court’s return to constitutional first principles.
In so writing, Garza, who could have been the Court’s first Hispanic justice, makes sure to appeal not only to Justice Kennedy, but also to Justices Scalia and Thomas, the latter of whom has been a vocal opponent of affirmative action on and off the bench. Neither Chief Justice Roberts nor Justice Alito have yet voiced their opinions on higher education affirmative action from their perches on the Supreme Court, but Roberts’s concluding aphorism in Parents Involved, which was joined by Justices Scalia, Thomas, and Alito, is instructive towards those seeking to divine the two George W. Bush appointees’ votes in Fisher.
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice Roberts famously wrote in Parents Involved. Justice Kennedy agreed to disagree with the statement’s simple certitude, filing his own concurrence in the judgment that put forward his more accepting–but still quite restrictive–take on race-conscious government measures. As such, Judge Garza was smart in addressing the Court’s entire conservative bloc in his special concurrence: either way, Grutter‘s days are numbered. Just as Citizens United reversed McConnell v. FEC and Gonzales v. Carhart all but wiped out Stenberg v. Carhart, Fisher will find the Roberts Court once again doing away with an O’Connor-backed, 5-4 precedent by the new 5-4 reality.
I’ve said it before and I’ll say it again: next term is going to be a doozy.
This piece is cross-posted at The CockleBur.
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 Stevens, William J. Brennan, William O. Douglas, Oliver 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?
Michael Kirkland of UPI wrote yesterday about Fisher v. University of Texas, the affirmative action case currently before the Fifth Circuit. I noted this case in a link at the top of my last post, and had originally gone on to discuss it, but I decided to keep that post focused on the abortion laws in Nebraska. Now’s as good a time as any to continue my thoughts on the hot buttons that may reach the Court in the next election cycle, and how the Court may handle them:
Affirmative action in higher education is the remaining hot-button issue on which Kennedy and O’Connor disagreed, but has yet to be tested since Alito joined the Court. When O’Connor sided with the liberal bloc in determining that the University of Michigan Law School’s race-conscious admissions policy survived strict scrutiny in 2003’s Grutter v. Bollinger, Kennedy dissented.
Although Kennedy is not hostile to affirmative action itself, he believes the Grutter majority watered down the Court’s strict scrutiny standard formulated in Justice Powell’s concurrence in 1977’s Bakke, which approved of a narrowly tailored use of race to achieve the compelling state interest of holistically diverse student bodies in higher education. In other words, Kennedy approved of the use of race, but would give higher-ed affirmative action schemes more searching review than the Grutter majority had demonstrated. As he concluded in his Grutter dissent:
If the Court abdicates its constitutional duty to give strict scrutiny to the use of race in university admissions, it negates my authority to approve the use of race in pursuit of student diversity. The Constitution cannot confer the right to classify on the basis of race even in this special context absent searching judicial review. For these reasons, though I reiterate my approval of giving appropriate consideration to race in this one context, I must dissent in the present case.
Whether or not Kennedy believes that UT’s consideration of race for applicants beneath its top-10% auto-admit program satisfies his application of strict scrutiny, what is certain is that his application of strict scrutiny will supersede Grutter as precedent.
If Kennedy rejects UT’s policy, he will be the limiting agent on the conservative bloc in the Roberts Court’s first foray into higher-ed affirmative action. Dependent on Kennedy for the fifth vote to invalidate UT’s race-conscious admissions policy, the conservative bloc could not go the whole Thomas and strike down all consideration of race. After all, Kennedy, in giving the conservative bloc its fifth vote in 2007’s Parents Involved, refused to sign onto Roberts’s opinion declaring that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This maximalist statement was certainly not only meant for public high school admissions schemes.
Nevertheless, Kennedy’s accepting UT’s policy will have the same constitutional effect as his rejecting it. In any scenario (assigning the majority opinion to himself and strong-arming the liberal bloc into joining him lest he change his vote; assigning the majority opinion to himself and losing his majority, thereby writing for himself in a 4-1-4 decision; assigning the majority opinion to a justice he believes to be simpatico who manages to keep him in the fold; assigning the majority opinion to another justice unwilling to revisit Grutter, compelling Kennedy to write for himself), Kennedy will bury–or, at the very least muddy–Grutter.
The justice to watch, then, will be the Chief. In Parents Involved, he showed his hand. He wrote more aggressively than he had written in Wisconsin Right to Life, in which he refused to follow Kennedy, Scalia, and Thomas towards striking down the same provision of the McCain-Feingold Act that he ultimately voted to put out of its misery this past year in Citizens United. By making his antipathy to affirmative action so clear in Parents Involved, then, the Chief does not leave himself the same room to backpedal on affirmative action as he had given himself to press onward with campaign finance.
Yet might he want to cast his lot with Kennedy in Fisher? Roberts’s best case scenario for effectively ending affirmative action is to work with Kennedy to make its scrutiny impossibly restrictive rather than stand on the sidelines calling for affirmative action’s immediate demise. Roberts can better retain control over his Court’s direction by placing himself in the position to put his own stamp on Kennedy-dominated jurisprudence and placing seeds of doubt within the opinion that at present will be within Kennedy’s boundaries but in the future could be used, should the Chief have a majority, to bring upon affirmative action’s demise.
But I don’t think this will happen. I take the Chief’s position in Parents Involved at face value. He will stand firm in his opposition to affirmative action, extending his antagonism to its use in higher education. In doing so, he will be mindful of his own words in his Citizens United concurrence, where he stated that
if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.
Kennedy had hotly contested the Court’s approval of campaign finance restrictions since he had joined the Court, refusing the entire way to give any weight to disagreeable precedent. Ultimately, that resulted in the Court’s overturning not only 2003’s McConnell, the most recent facial affirmation of campaign finance rules, but also 1990’s Austin v. Michigan, the case of original sin for Kennedy and his Citizens United majority.
Having provided the justification for such principled intransigence on disagreeable lines of precedent, Roberts might rather dig his heels in and argue that the problem is not simply Grutter, as Kennedy will suggest, but Grutter‘s very root, Bakke. This position will not prevail with the current court, but if elections work in Roberts’s favor, he will be able to cite his own hot contestation–in which he and Alito will have joined Scalia and Thomas’s decades of protest–in striking down affirmative action well before Justice O’Connor’s suggested 25-year sunset provision in Grutter.
David Ingram of the National Law Journal is reporting that Patrick Leahy may push for retired justices to sit for cases in which other justices recuse themselves.
According to the article, Justice Stevens made this recommendation to Leahy (D-VT), the Chair of the Senate Judiciary Committee.
This seems to me a politically loaded suggestion. There has already been much talk about Kagan’s potentially high recusal rate over the next few terms as the Court continues to hear cases that her office had briefed in the lower courts. On divisive issues, Kagan’s absence would lead to 5-3 victories for conservatives or ideological deadlocks at 4-4.
I cannot imagine that the GOP members of the Judiciary Committee will agree to this plan. If Kagan does not recuse herself on a case in which a conservative may be obligated to do so, two of the substitutes–Souter and Stevens–would be a fifth vote on the left. It is not inconceivable that these two retired ringers could cut away at the Roberts Court’s business-friendly precedents, as the Court sometimes goes shorthanded on cases concerning corporations in which justices may own stock.
O’Connor, too, exited the Court to the left of Anthony Kennedy on campaign finance, church-and-state, abortion, and affirmative action cases – all issues that have been cut back since Alito succeeded her. However, recusals on these cases are less likely. That is, unless some advocacy group somehow finds a not-too-distant relative of Justice Scalia who is an abortion doctor in Nebraska that is willing to be a named plaintiff in a federal case.
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 Court’s obscenity jurisprudence has stood largely frozen and rigid since 1973, when, in Miller v. California, it resolved its previous fifteen years of doctrinal disarray into a three part test to determine whether material is obscene:
The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest [citation omitted]; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The Miller test’s first prong has since been interpreted as requiring juries to apply local community standards. Although this test was more conservative than the Court’s pre-1973 obscenity jurisprudence–see, e.g., Justice Potter Stewart’s “I know it when I see it” test–it was tailored to the times: a pornographer would send a film reel or a magazine by the mails to a particular recipient in a particular district.
Problem is, in the Internet age, speakers post their thoughts on the Web and then relinquish control over where the material is delivered. Yet under Miller‘s extant local community standards prong, prosecutors may charge Internet pornographers in federal courts in districts where communities are more likely to rule indecent material criminally obscene.
The Bush Administration took full advantage of such forum selection when it chose to resurrect federal obscenity prosecutions after two terms of Clinton-era desuetude. There have been four big cases to rise out of the Bush-era prosecutions. One recently yielded a guilty plea after protracted litigation in the Third Circuit. Another may be coming to trial in the D.C. Circuit. The Ninth and Eleventh Circuits, however, have made their decisions, forcing a circuit split over community standards for the Internet–a topic to which the Supreme Court in 2002 signaled its receptivity.
In late October, the Ninth Circuit, in United States v. Kilbride, held that juries must apply national standards when assessing Internet obscenity, even for the sexually explicit spam emails sent by the defendants. To reach this determination, the panel relied on the separate opinions of six justices in the Supreme Court’s 2002 Ashcroft v. ACLU decision. In dicta, Justices O’Connor, Breyer, Kennedy (joined by Souter and Ginsburg), and Stevens all took turns expressing their doubts about the constitutionality of requiring juries to apply local community standards. O’Connor and Breyer went so far as to endorse the use of national standards. Here’s O’Connor:
To be sure, the Court in Miller also stated that a national standard might be “unascertainable,” 413 U.S., at 31, and “[un]realistic,” id., at 32. But where speech on the Internet is concerned, I do not share that skepticism. It is true that our Nation is diverse, but many local communities encompass a similar diversity. For instance, in Miller itself, the jury was instructed to consider the standards of the entire State of California, a large (today, it has a population of greater than 33 million people, see U.S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 23 (120th ed. 2000) (Table 20)) and diverse State that includes both Berkeley and Bakersfield. If the Miller Court believed generalizations about the standards of the people of California were possible, and that jurors would be capable of assessing them, it is difficult to believe that similar generalizations are not also possible for the Nation as a whole. Moreover, the existence of the Internet, and its facilitation of national dialogue, has itself made jurors more aware of the views of adults in other parts of the United States. Although jurors asked to evaluate the obscenity of speech based on a national standard will inevitably base their assessments to some extent on their experience of their local communities, I agree with Justice Breyer that the lesser degree of variation that would result is inherent in the jury system and does not necessarily pose a First Amendment problem. See post, at 2. In my view, a national standard is not only constitutionally permissible, but also reasonable.
The Ninth Circuit determined that Ashcroft‘s concurring and dissenting justices’ dicta on community standards were enough guidance to blaze new constitutional ground.
Today, however, in United States v. Little, the 11th Circuit disagreed:
Appellants argue that the district court should have applied a national or Internet community standard rather than the local community standard of the Middle District of Florida. In support of this argument, Appellants rely heavily on the concurrences and dissent in Ashcroft, 535 U.S. 564, 586-612, 122 S. Ct. 1700, 1714-1728 (2002). Recently, the Ninth Circuit interpreted Ashcroft in such a way as to mandate a national community standard for Internet-based material. United States v. Kilbride, 584 F.3d 1240, 1252-54 (9th Cir. 2009). We decline to follow the reasoning of Kilbride in this Circuit. The portions of the Ashcroft opinion and concurrences that advocated a national community standard were dicta, not the ruling of the Court.
As a result, the Miller contemporary community standard remains the standard by which the Supreme Court has directed us to judge obscenity, on the Internet and elsewhere. The district court did not err when it instructed the jury to judge the materials on the basis of how “the average person of the community as a whole—the Middle District of Florida—would view the material.”
With the split now wide open, one could safely assume that at least four of the still-sitting, separately-writing Ashcroft justices would vote to grant certiorari so to align the Court’s obscenity doctrine with the times. Still, even if the Court would grant certiorari and resolve the split in favor of the Ninth Circuit’s national community standards for Internet obscenity, it is not at all fait accompli that the Court will endorse the Ninth Circuit’s reasoning. The panel employed what may be considered overzealous methodology in gleaning conclusive guidance out of concurring and dissenting dicta. Further, the panel lumped email, which is sent by specific distribution analogous to that of Miller‘s time, into Ashcroft‘s concern about the Web’s indiscriminate dissemination.
Nevertheless, I predict that these cases are ripe for Supreme Court review. Now which one of you Supreme Court advocates needs help with the cert petition?
UPDATE: Aw shucks. The Eleventh Circuit’s opinion possesses the header that “This case was not selected for publication in the Federal Reporter.” Boooo! If the Eleventh Circuit was trying to dodge the cert process, there still remains hope. The Ninth Circuit may still find itself sufficiently split with 2005’s Extreme Associates in the Third Circuit, 1996’s United States v. Thomas in the Sixth Circuit, or perhaps the pending case at the D.C. District Court if it makes its way up to the D.C. Circuit.
[I]t seems odd that the Eleventh Circuit’s opinion — which apparently considered this argument for the first time in that circuit, and which expressly rejected the reasoning of the one precedent on the subject from another circuit — was unpublished.
Unpublished opinions deliberately lack binding precedential value, and are generally intended to limit their own value as persuasive precedent as well (though the ultimate estimation of such persuasive value is of course in the eyes of a future court). It seems to me that they should be reserved for areas where more precedent is unhelpful, chiefly because there already is plenty of precedent in the jurisdiction on the subject. So it’s hard for me to see why this opinion, which is certainly quite detailed should be unpublished.
Note that there won’t be a cert petition from the government challenging the Ninth Circuit’s national-standard holding in Kilbride, since the conviction there was affirmed on harmless error grounds. The government won on the bottom line, and thus can’t petition for certiorari, even if it dislikes the court’s reasoning. (It could have petitioned for rehearing en banc, but despite two requests for extension of time to file a petition for rehearing, the government ultimately decided not to petition.)
There might well be a cert petition in the Eleventh Circuit case, though. I wonder to what extent the Court will see this case as practically involving a circuit split, even though technically there is no disagreement between the precedent in the two cases. Supreme Court Rule 10(a), for what it’s worth, notes that one important factor in favor of granting certiorari is that “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.”
UPDATE III: Scott Gant, partner at Boies Schiller and author of We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age, passed along a 2006 Boston College Law Review article he wrote on unpublished circuit court opinions. On page 729, he writes of Supreme Court review:
One might also expect unpublished opinions rarely, if ever, to be the subject of Supreme Court review. Yet the Court has elected to review dozens of unpublished appeals court opinions, in many cases reversing the court’s decision. Still other cases involve circuit splits, where at least one of the court of appeals decisions addressing the disputed issue was unpublished.
In his footnotes to the above text, he lists twelve cases, many of which from the past ten years, to support his assertion. So my offer is back on: any Supreme Court advocates want some help writing a killer cert petition?
After attending today’s O’Connor Project conference at Georgetown Law, I am convinced that Justice O’Connor’s aim is to fill the state judiciaries with little Justice O’Connors. And that’s not necessarily a bad thing.
The conference asked, “Will Caperton and Citizens United Change the Way States Pick Judges?” Panelists fretted over the influence of corporate money in state judicial elections as well as the right balance between a judge’s receptivity to and independence from public opinion and the political climate. O’Connor’s recommendation of merit selection–a process she helped institute as a state legislator in Arizona–seems a more responsible, insulated hybrid of appointment and election processes.
On the whole, I find agreeable the idea of a judiciary made up of pragmatists like O’Connor who, as Barry Friedman and Dahlia Lithwick wrote yesterday, possess “a built-in barometer of the public mood.” Perhaps the tiny dissenter in my head screaming “BUSH V. GORE! BUSH V. GORE!” can be countered by the understanding that that was the rare case to generate so much heat as to malfunction O’Connor’s barometer. And really, O’Connor’s vote was consistent with the weary public’s desire for an end to the election’s interminable indecision; her mistake was interpreting that weariness to require the Court to unilaterally declare a winner.
Nevertheless, O’Connor’s own blind spots during her Supreme Court career may yet prove that however a state chooses to balance a judicial candidate’s receptivity and insulation from politics, there will be no perfect reform. The key is to minimize the variables that will adversely impact the balance. And for its efforts to do so, the O’Connor Project deserves credit.
For a good write-up of O’Connor’s remarks, see Adam Liptak’s report on the NYT website.
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.