FIRST ONE @ ONE FIRST

The Second Amendment: Ramifications of Repeal

Posted in Law and Politics by Mike Sacks on January 10, 2011

The shooting of Representative Gabby Giffords in Arizona this weekend and the flurry of constitutional commentary upon the start of the 112th Congress–including talk of repealing or altering the 14th, 16th, and 17th Amendments and, thanks to Justice Scalia, a renewed call for an Equal Rights Amendment–has led me to think about what would happen if there was a push for a new constitutional amendment that would repeal the Second Amendment (2A).  Indeed, just a few of hours ago, Elie Mystal at Above the Law went there.  The more I think about it, the more it appears that such a repeal effort would paradoxically lead the most passionate gun rights advocates to embrace the dissenters’ views in Heller and McDonald in ways never anticipated by Justice Stevens et al.

The 2A, literally read, tethers gun ownership to militia membership, however hard the Heller majority tried to convince us otherwise by marginalizing the Amendment’s militia-speak as a “prefatory clause.”  Because we had no standing federal army at the time of the 2A’s ratification, and because states formed militias comprised of each state’s able-bodied men, individuals needed the right to own guns in case a tyrannical federal government did raise an army to invade the states.

But if we were to take Sharron Angle’s incendiary and irresponsible “Second Amendment remedies” quip from this summer in a charitably originalist manner, then those remedies mean the right of any people to rise up in revolution against a tyrannical government. This right is explicitly stated in our country’s Declaration of Independence and endorsed by Thomas Jefferson with his quote, “[t]he tree of liberty must be refreshed from time to time with the blood of patriots.”  And, unless an American revolutionary wants to wage guerrilla war or commit acts of terrorism, the accepted way to do this is to form militias, armed by individuals exercising their 2A rights, to engage in conventional warfare with the federal government.  Of course, just because the right to rise up in revolt exists doesn’t mean the cause is actually righteous or that the federal government cannot seek the perpetuation of its own just existence by putting down the revolt.  See, e.g., the Whiskey Rebellion or the Civil War.

Now, it’s currently unimaginable to think of Congress as currently situated ever passing a 2A repeal amendment, let alone finding 38 states willing to ratify it.  But if we can get past that hurdle of unimaginability, it’s absolutely imaginable that some states and certainly many individuals would consider Congressional passage of a 2A repeal amendment, whether or not it is ratified, to be a tyrannical act by the federal government that threatens to take away both a fundamental right to bear arms as interpreted by the Supreme Court as well as a mass taking of legally obtained property without just compensation.

And here comes the paradox: anti-repeal states could very well then vindicate liberals’ 2A interpretation by calling up “well-regulated militias” to “secure” their “free states” comprised of individuals who, in joining the militias, are exercising their “right of the people to keep and bear arms.”

In other words, an amendment to take away peoples’ guns could trigger the very scenario, in the eyes of Second Amendment supporters, that the framers imagined in drafting the Second Amendment.  In creating that scenario, then, gun owners would throw into relief through actual practice just how unoriginalist Scalia et al. were in their theory supporting the Heller majority.

I believe both components of this scenario–(a) the passage of a repeal amendment in Congress that (b) will trigger the mainstreaming of the militia movement–will never come to pass.  As an intellectual exercise, however, it’s worth thinking through possible consequences of our responses to heinous acts such as the one that took place this weekend in Arizona.

If the shooting inspires enough political momentum for Congress to re-up the statutory Federal Assault Weapons Ban and inspire state and local governments to strengthen their gun regulations, then it is worth looking to the Court for how politics has and will influence its shaping of the Second Amendment.

Heller could not have been decided the way it was had it not been for the rise in the last half-century of the “individualist” narrative.  Whether or not that narrative constituted “fraud,” as Chief Justice Burger stated from retirement in 1991, it became a tenet of modern conservatism and so mainstream a strain of American political thought that many Democratic politicians–including then-Senator Barack Obama, former Senator Russ Feingold, and Representative Gabby Giffords–supported Heller‘s result.  In essence, the conservative majority in Heller may have inflamed the half of the public rooting for the “collectivist”–or militia-based–interpretation, but the political winds had pushed the Court’s decision into safe harbor.

Had the liberal dissent prevailed in Heller, the country would have had a massive administrability problem that could have quickly descended into political chaos and violence.  Who gets to keep his or her guns?  What guns remain protected?  Can the federal government, finding militias anachronistic, ban guns altogether throughout the country?

While the Heller decision is often rightly explained in ideological terms, it still got the pragmatics right: it relieved the country of its polarized, zero-sum politics over gun rights on the side of least ideological and practical resistance, while defining the right so narrowly as to leave for later cases the true scope of reasonable regulations of the individual right to keep and bear arms for self-defense.

It remains easy to imagine that a Democratic nominee to Justices Kennedy’s or Scalia’s seat could lead to a reversal of Heller or so broad an acceptance of reasonable regulations as to limit Heller to its specific facts.  But now that this country’s steady stream of massacres has finally flooded into Congress and the Judiciary with the shooting of Rep. Giffords and the slaying of Chief Judge John Roll, perhaps the Court as presently constituted will be inspired by Justice Breyer’s Heller dissent to look more kindly upon state, local, and federal gun regulations than they would have had such violence remained for them a political and legal abstraction.

UPDATE: Josh Blackman responds.

UPDATE II: Michael Doyle of McClatchy has an article headlined, “Arizona shootings unlikely to change federal gun laws.” (h/t How Appealing)

UPDATE III: Jo Becker & Michael Luo of the New York Times posit Tucson’s gun culture against federal regulatory efforts.

UPDATE IV: Patrick J. Charles responds at his site, The Charles Law & History Blog.

Reflections on My Chat with Justice Stevens re: Cameras in the Court

Posted in Justicespotting, Non-justiciable by Mike Sacks on October 8, 2010

This morning at Georgetown Law’s symposium in celebration of Justice Stevens, I had the good fortune–and great honor–of speaking with the Justice himself for a few minutes.  Upon my introducing myself, I was surprised–and greatly honored–to learn that he was familiar with my work.  So as I handed him a printed copy of my article recounting his final oral argument, he asked if it was the one he saw in the post the other day.

“The Post?” I asked.  “I’ve written for the ABA Journal and Christian Science Monitor, but never the Washington Post.” [Note: This conversation has been reconstructed from my memory; the quotations are accurate portrayals of our discussion, but not of the exact words spoken.]

“No, I received something of yours in the post.”

He opened the envelope and looked at the first few sentences of the story.

“This is not the same one,” Justice Stevens said, as he thanked me for the new reading material.  And whoever mailed the justice one of my columns, I thank you.

He then asked my opinion on cameras in the Court, perhaps implying that the article he had already seen was the one from June’s final day of the last term.

I told him that I am fully in favor of televised proceedings.  He mentioned that there could be some adverse consequences.  I responded that his former colleagues could be trusted to smack down any grandstanding lawyers, as they have always done.

“And what about the justices themselves?”

“The Daily Show can keep them in check,” I suggested.  By his knowing laugh, I submit that the Justice agreed with me.

I had the feeling that Stevens trotted out the commonly voiced concerns about cameras in the Court not because he believed in them, but rather because he wanted to hear how easily a young Court watcher could swat them away.  It is disappointing that the Court’s reluctance to televise its oral arguments stems from its lack of faith in the Bench and Bar to behave themselves in front of the cameras.

As the event began and the panelists began recounting their stories of Justice Stevens’s “humble, devastating, and kind” demeanor from the bench, as former Solicitor General Paul Clement aptly described it, I kept thinking how tragic it is that the vast majority of Americans never had a chance to see Justice Stevens in action.

At the end of each oral argument week, starting today, the Court is releasing the audio recordings of the week’s proceedings.  These recordings invite listeners to listen for themselves to how the Court deals with the country’s thorniest legal issues.  But as exciting as it is to hear Justice Kagan’s first question of her career, Justice Scalia do his best “Sh*t My Dad Says” impression with his various curmudgeonly comments, Justice Ginsburg re-upping her feminist cred, or Justice Alito unwinding his increasingly compelling hypotheticals, we are many years removed from the radio days of Justice Stevens’s youth.

For every argument that the justices will spin out of control and play to the cameras, there are forceful answers in return.  First, some justices already play to the portion of the public that can attend, so what’s the damage if the rest of America sees their antics?  The law should be engaging, not forbidding, and there’s much to be said for Chief Justice Roberts’s more relaxed, laugh-tracked regime, even if a few commentators here and there will take some hypotheticals out of context.

Second, televised proceedings will allow more Americans to know the names and faces of Supreme Court justices.  As public servants who now undergo major media blitzes upon their nominations to the bench, the justices should not feel entitled to perpetual anonymity.  And really, most Americans, though valuing the opportunity to watch the Court in action, will not commit themselves to C-Span three days a week so to better track the justices down in their Northern Virginia supermarkets.

Finally, part of the in-the-flesh experience of Supreme Court arguments is not only watching the justices speak, but also watching them listen.  Several panelists at today’s symposium expressed their deep appreciation of Stevens’s ability to listen patiently and politely to the arguments as the other justices’ seemed preoccupied with internally formulating their next questions.  These scenes cannot be conveyed over audio.  From Justice Thomas’s brief-thumbing to Justice Ginsburg’s trained stare at the advocates, the justices’ listening styles may speak as loudly as their amplified voices about their commitment to the case before them.

Until that day arrives when we can watch the justices go about their business, however, today’s footage from their class photo session will have to suffice.

Let’s hope that these nine men and women, all of whom, like Justice Stevens, are or will be national treasures by the time their tenures have expired, will soon show enough faith in themselves and the public to finally put cameras in the Court.

This piece has been cross-posted at The CockleBur.

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?

Retired Justices as Recusal Subs, Redux

Posted in Law and Politics by Mike Sacks on August 9, 2010

Bob Barnes of the Washington Post revisits the possibility of rotating retired justices onto the Court when an active one recuses him- or herself:

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) is pondering whether a change is needed. He’s considering legislation that would allow a retired member of the Supreme Court to replace a justice who has recused himself — or herself — in a particular case.

This would avoid the court potentially splitting 4 to 4 on a case and, Leahy hopes, encourage justices to recuse themselves more often when there is an appearance of partiality.

This idea was first publicized by the National Law Journal soon after Justice Stevens, upon announcing his retirement, suggested the idea to Leahy.  I wrote then about the possible political motivations and jurisprudential consequences:

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 financechurch-and-stateabortion, andaffirmative 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.

Barnes’s article today echoes my sentiments:

at some point, theory steps aside and reality sets in. “It’s an interesting idea,” said James Sample, a Hofstra law professor who has specialized in studying judicial recusals. “The challenge is that it’s so difficult to divorce discussion of the proposal from the individual justices who might end up replacing the recused justices.”

In other words, the bench currently consists of Stevens, O’Connor and retired justice David H. Souter, all of whom are to the left of the court’s dominant conservatives.

It is as unlikely to think Republicans would think it is a good idea to put them back in the lineup, Sample said, as it is to think Leahy would be as keen on the idea if the available replacements were, say, former chief justices William H. Rehnquist or Warren E. Burger.

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).

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.

Pre-EndOfTerming

Posted in Anticipation by Mike Sacks on June 28, 2010

We Can Be Friends

Back home for a shower and a suit-up.  A few thoughts:

  • How wonderful it is to come home sweating rather than freezing.
  • The fifth person in line was the Phantom First from McDonald – the oral argument was on a Tuesday, but he arrived at 7am on the Sunday prior.  I discovered him that day while I was on an afternoon run with the First Lady of First One @ One First.  Later that evening, I went back to talk to him.  Once there, another two people showed up to scope out the line.  The Phantom First was packing his things up after a day in the cold when he realized that his brother, for whom he was keeping a second seat in line, was not coming.  He said he’d be back the next morning (Monday) at 4am.  I had no interest in competing with that, but the other two were appropriately spooked and got to the Court at 5:30am on Monday morning…with the Phantom First nowhere to be found.  Those two–Rob and Larken–became the first ones at One First for McDonald.  Last night, then, I was pleased to see the Phantom First return with his brother to claim fourth and fifth in line.
  • The best and worst part about this blog is having readers inspired enough to beat me to the Court.
  • A largely lawyer/law student crowd this morning, but Dick Heller and Otis McDonald also got in line to see their gun rights cases extended and won, respectively.
  • Around 1:30am, we were regaled to some tales, whether true or tall is undetermined, by a man from Noname, Alaska trying to find Union Station.  He spoke of white moose and face-licking grizzlies while catcalling the Court police officer on duty.

Gotta get moving to get back to the Court on time for Stevens’s last day and the final four decisions.  I’ll have something more expository about the campout and the decisions later tonight or tomorrow.

Until then, enjoy my 12:30pm liveblog of the Elena Kagan hearings!

MONDAY MONDAY MONDAY!

Posted in Anticipation, Kagan Nomination, Supreme Court Side Walk by Mike Sacks on June 25, 2010

Monday’s going to be a doozy.  Last day of the term.  Stevens’s last day ever.  Decisions on Guns and God (Gays was decided yesterday), as well as a bit of man v. machine and what may be the financial industry’s own Citizens United.

But that’s not all!

About two hours after the Court lets out for its summer recess, the Senate starts its preseason tryouts with Elena Kagan.

I plan on being in the Courtroom and the hearing room.  And my liveblogging the latter will hopefully be made more colorful by my sleepless Sunday night on the Supreme Court Side Walk.

That’s right: I will be conducting a my own final F1@1F campout for the term.  I suspect it will be a fun one, as the Guns and God oral arguments had the earliest and most enthusiastic lines of the term – and Monday’s certainty of those decisions and the drastically warmer weather (plus the prospect of a stately nonagenarian screaming, “I’m Outta Here!” to a captive audience, tossing reams of paper into the air in a sign of aged defiance) point to a big turnout.

I’d love to see some F1@1F readers out there, too.  If you’re planning on coming to the sidewalk, please do let me know.

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.

Court Breaks Its First Amendment Streak

Posted in Case Reports, Law and Politics by Mike Sacks on June 21, 2010

The Supreme Court broke its streak of pro-First Amendment decisions in today’s decision in Holder v. Humanitarian Law Project.  This “very difficult case,” as Justice Kennedy described it at oral argument, was decided by a 6-3 vote in an opinion written by Chief Justice Roberts.  Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor.

The opinion held that the First Amendment does not bar the criminal prosecution of the Humanitarian Law Project (HLP) under a federal statute criminalizing “material support” to groups designated as terrorist organizations by the United States government.  HLP provided lessons on international law and non-violence to groups such as the Kurdistan Workers’ Party (PKK) and the Tamil Tigers.  The majority refused, however, to determine whether the federal statute would be constitutional as applied to “more difficult cases” that could arise in the future.

This opinion comes on the heels of two prior cases in which the Court came out with robust pronouncements of First Amendment freedoms.  In Citizens United, Justice Kennedy wrote for the conservative bloc striking down significant portions of the McCain-Feingold campaign finance reform act as violating the First Amendment.  In United States v. Stevens, the Chief Justice wrote for an eight-justice majority deeming unconstitutional a federal statute that criminalized depictions of animal cruelty.

The case’s national security element may have colored the conservative bloc’s opinion, but it does not account for the votes of Justices Stevens and Kennedy, both authors of landmark cases striking down former President George W. Bush’s enemy combatant policies in Guantanamo Bay.  Their fingerprints may be seen in the passages urging moderation:

We next consider whether the material-support statute, as applied to plaintiffs, violates the freedom of speech guaranteed by the First Amendment. Both plaintiffs and the Government take extreme positions on this question. Plaintiffs claim that Congress has banned their “pure political speech.” …

For its part, the Government takes the foregoing too far, claiming that the only thing truly at issue in this litigation is conduct, not speech or impose any sanction on them for doing so.” Id., at 60. …
The First Amendment issue before us is more refined than either plaintiffs or the Government would have it. It is not whether the Government may prohibit pure political speech, or may prohibit material support in the form of conduct. It is instead whether the Government may pro  hibit what plaintiffs want to do—provide material support to the PKK and LTTE in the form of speech.
Interestingly, the Court cites its 1989 opinion in Texas v. Johnson–the famous flag burning case–for the proposition of strictly scrutinizing the material support law:
As we explained in Texas v. Johnson: “If the [Government’s] regulation is not related to expression, then the less strin  gent standard we announced in United States v. O’Brien for regulations of noncommunicative conduct controls. If it is, then we are outside of O’Brien’s test, and we must [apply] a more demanding standard.”
For its part, the Government takes the foregoing too far, claiming that the only thing truly at issue in this litigation is conduct, not speech or impose any sanction on them for doing so.” Id., at 60. …

Stevens dissented in Texas v. Johnson, writing that he would have allowed the criminal law against flag burning to stand where the five-justice majority–in which Justices Scalia and Kennedy joined the liberal bloc of Brennan, Marshall, and Blackmun–applied a maximalist view of the First Amendment to strike down the Texas law.

Indeed, today’s case displays Stevens’s deep precedent-bound pragmatism.  He not only signed onto an opinion that cited a case from which he dissented, but he also continued his less-than-absolute take on the First Amendment while also showing that he is not an unyielding civil libertarian when it comes to the war on terror.

Justice Breyer read his dissent from the bench today, stating that the federal statute could not survive strict scrutiny.  Breyer, however, is no First Amendment maximalist himself, despite this morning’s oral dissent.  Today’s decision, when compared with this term’s earlier First Amendment decisions, is a reminder that on the Roberts Court there is no unyielding free speech champion.  Instead, the justices use the First Amendment as an ancillary issue to be used to their advantage on cases that touch their greater concerns, be they national security or campaign finance.

Breyer’s oral announcement of his dissent marked the second time this term a justice has done so.  Justice Stevens spoke for 20 minutes to protest Citizens United back in January.  There may be others yet, as a few more charged cases remain for the Court’s Thursday and Monday sessions.

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