FIRST ONE @ ONE FIRST

NYT End-of-Term Analysis

Posted in Law and Politics by Mike Sacks on June 29, 2010

Adam Liptak has a great recap of the just-completed 2009 term:

Chief Justice Roberts took control of his court this year, pushing hard on issues of core concern to him, including campaign finance, gun rights and criminal procedure, even as he found common ground with his colleagues on an array of other issues.

He was in the majority 92 percent of the time, more than any other justice. Last year that distinction went to Justice Anthony M. Kennedy, who is often regarded as the court’s swing vote.

“More than in any other year since he became chief justice, this has truly become the Roberts court,” said Gregory G. Garre, who served as solicitor general in the administration of George W. Bush and is now at Latham & Watkins.

This analysis is absolutely on point.  The intellectual underpinning of F1@1F has been my hypothesis, now apparently proven if the NYT analysis is a reliable source, that this term’s docket largely reflected the Chief Justice’s awareness of the Court’s available political capital to achieve conservative gains beside liberal elected branches.  The Court primed itself to move the law where they could and to leave for a later day those that would do more damage to the Court’s institutional legitimacy than their worth to the conservative legal movement.

For newer F1@1F readers, please give this post a read.

Most striking since I wrote the piece has been the Chief Justice’s ability to call upon the sort of “restrained activism,” introduced in NAMUDNO at the end of last term when he limited the scope of the Voting Rights Act of 1965 rather than strike it down as many expected.  This term, he has employed and endorsed such legislation from the bench so to get the kinds of politically acceptable results to make some of the Court’s pro-business decisions go down a bit easier.  Last week, he joined Justice Ginsburg’s Skilling decision to specifically limit and define federal honest services laws rather than strike them down–as urged by Scalia, Kennedy, and Thomas–so not to let Jeff Skilling walk free.  Yesterday, in Free Enterprise Fund v. PCAOB, the Chief Justice rewrote the Sarbanes-Oxley Act–created in the wake of Skilling’s Enron collapse–to force the Public Company Oversight Accounting Board into his vision of constitutionality rather than strike it down outright.

What we’ve had, as I suggested in the winter, is a Chief Justice that knew–and cared–that the Court had only one huge expenditure available to it, and spent it in Citizens United.  The rest of the docket was formed and decided accordingly, with the conservatives taking smaller, more under-the-radar steps while the liberals won what they could.

Whereas Justice Kennedy may be the limiting factor on the hot buttons of abortion and affirmative action, issues as the NYT piece noted were nowhere to be found this term, he’s firmly in the maximalist pro-business camp.  And for a Court operating in an economic downturn with Democrats in the political branches all too willing to cast it as the tool of an intemperate Tea Party, the Chief–often joined by Justice Alito–must serve as the prudent captain of his man of war‘s voyage towards economic liberty without crossing the Roosevelt Rubicon.

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.

Jeff Rosen’s Must-Read on CJ Roberts

Posted in Law and Politics, Supreme Conflict by Mike Sacks on February 17, 2010

Take the time to read Jeff Rosen’s latest piece in The New Republic.  Here’s the money quote, as far as F1@1F is concerned:

And then, there was last term’s voting-rights case, in which Roberts wrote an 8-1 decision rejecting a broad constitutional challenge to the Voting Rights Act and instead deciding the case on technical grounds. For those who wanted to believe that Roberts was a genuine conciliator, this was a powerful piece of evidence. Like others, I praised his performance in the case as an act of judicial statesmanship.

But, in retrospect, the ruling may have been less statesmanlike than it appeared. According to a source who was briefed on the deliberations in the case, Anthony Kennedy was initially ready to join Roberts and the other conservatives in issuing a sweeping 5-4 decision, striking down the Voting Rights Act on constitutional grounds. But the four liberal justices threatened to write a strong dissent that would have accused the majority of misconstruing landmark precedents about congressional power. What happened next is unclear, but the most likely possibilities are either that Kennedy got cold feet or that Roberts backed down. The Voting Rights Act survived, but what looked from the outside like an act of judicial statesmanship by Roberts may have in fact been a strategic retreat. Moreover, rather than following the principled alternative suggested by David Souter at the oral argument–holding that the people who were challenging the Voting Rights Act had no standing to bring the lawsuit–Roberts opted to rewrite the statute in a way that Congress never intended. That way, Roberts was still able to express his constitutional doubts about the law-as well as his doubts about landmark Supreme Court precedents from the civil rights era, which he mischaracterized and seemed ready to overrule.

The voting-rights case may help explain why Roberts didn’t take a similarly conciliatory posture in Citizens United. After all, one was certainly available. Just as Roberts had implausibly but strategically held in the voting-rights case that Congress intended to let election districts bail out of federal supervision, he could have held–far more plausibly–in Citizens United that Congress never intended to regulate video-on-demand or groups with minimal corporate funding. As with the voting-rights case, judicial creativity could have been justified in the name of judicial restraint.

There is, of course, a charitable explanation for why Roberts took the conciliatory approach in one case but not the other: namely, that he felt the principles involved in Citizens United were somehow more important and therefore less amenable to compromise. As he told me in our 2006 interview, he has strong views that he, like his hero John Marshall, is not willing to bargain away. Marshall, Roberts said, “was not going to compromise his principles, and I don’t think there’s any example of his doing that in his jurisprudence.”

But a less charitable explanation for the difference between the two cases is that Roberts didn’t compromise on Citizens United because, this time, he simply didn’t have to.

Setting aside Rosen’s brief and remarkable peek into the NAMUDNO deliberations, this passage also has echoes of F1@1F’s main thesis: the Court is guided by a Chief Justice who picks his battles wisely, preserving the Court’s political capital only for the cases most near to movement conservatism’s heart.  Rosen takes this point, but wavers in conclusion:

It’s impossible, at the moment, to tell whether the reaction to Citizens United will be the beginning of a torrential backlash or will fade into the ether. But John Roberts is now entering politically hazardous territory. Without being confident either way, I still hope that he has enough political savvy and historical perspective to recognize and avoid the shoals ahead. There’s little doubt, however, that the success or failure of his tenure will turn on his ability to align his promises of restraint with the reality of his performance. Roberts may feel just as confident that he knows the “right” answer in cases like Peek-a-Boo as he did in Citizens United. But political backlashes are hard to predict, contested constitutional visions can’t be successfully imposed by 5-4 majorities, and challenging the president and Congress on matters they care intensely about is a dangerous game. We’ve seen wellintentioned but unrestrained chief justices overplay their hands in the past–and it always ends badly for the Court.

I believe Roberts has the political sense to avoid an all-out clash with the elected branches and that the Court has formed its docket and made its decisions accordingly.  F1@1F’s mission is to test that hypothesis through oral argument and opinion analysis as well as interviews with those interested enough to get in the Court’s general admission line.  Given the expected longevity of the Roberts Court, this term alone, even set against the trend of the previous three terms, will hardly be determinative.  But it will be informative.

The Post-Partisan Court?

Posted in Anticipation, Weekend Reading by Mike Sacks on January 16, 2010

As F1@1F weekend reading, I am posting below a longer piece–previewed in my first post–that I wrote in early December on the Roberts Court’s seemingly “post-partisan” posture in this new Obama era.

This hypothesis is by no means proven – it is merely culled from observations about the Court’s docket this term as related to its decisions of the previous three terms.  The hypothesis’s true test will come as the Court continues to hand down its decisions.

Please keep your disagreements civil in the comments and keep coming back to F1@1F as the term goes on for follow-up analysis.

Enjoy!

—-

Every year, the Supreme Court hears several cases that inflame public passions, prompting Americans to line up on opposite sides of predictable partisan divides.  The Court from Reagan to Bush II could be counted on to divide 5-4 on most any politically salient subjects such as abortion, affirmative action, separation of church and state, right to die, gay rights, and even the outcome of a Presidential election.  Under the Roberts Court, the American public has come to expect the predictable configuration of justices on hot-button issues: Roberts, Alito, Thomas, and Scalia on the Right; Stevens, Ginsburg, Breyer, Souter (and now, presumably, Sotomayor) on the Left; and Kennedy going to whichever side his peculiar vision of individual liberties happens to fall.

Yet a funny thing happened on the way to the Obama era: the Court seems to be flirting with post-partisanship. When Chief Justice Roberts stood on the Capitol steps, his fellow justices bundled up behind him, and administered the Oath of Office to Obama, they overlooked the National Mall crammed with more than million freezing onlookers.  The two representatives of their respective branches worked in concert, but not without momentarily tripping over each other’s words.  That scene may prove to be a metaphor for the interaction between our current political and judicial branches.

In the summer of 2007, at the end of the Roberts Court’s first term with both Bush II appointees on the bench, Justice Breyer seethed that “[i]t is not often in the law that so few have so quickly changed so much.”  The Supreme Court had taken an aggressively rightward tack on abortionstudent speechschool desegregation, gender discrimination, and campaign finance, enabled by the replacement of arch-moderate Justice O’Connor with the solidly conservative Justice Alito, and given political cover by a sympathetic President and Congress.

The following year found the two wings similarly uncompromising, going tit-for-tat over the war on terror and gun rights, as if to imitate the dynamics between the newly elected Democratic Congress and the legacy-seeking Republican Executive.  In Boumediene v. Bush, Justice Kennedy swung into the liberal camp to pen its final victory over the Bush administration’s detentions and prosecutions of enemy combatants held in Guantanamo.  Justice Scalia, in a vituperative dissent, warned that the five-member majority’s decision to grant habeas corpus rights to Guantanamo detainees “will almost certainly cause more Americans to be killed.”

Two weeks later, Scalia triumphantly announced the majority opinion in District of Columbia v. Heller, in which Kennedy provided the fifth conservative vote, striking down D.C.’s handgun ban by defining the Second Amendment as securing an individual right to keep and bear arms.  Justice Stevens, writing on behalf of the four liberals, condemned the majority as the very opposite of “genuine” judicial conservatives: results-driven activists.  Indeed, some Court watchers wondered how the dissenters resisted using Scalia’s inflammatory words in Boumediene against him in their argument for the importance of the myriad gun control laws Heller now called into question.

Fast-forward to this term, which officially began on Monday, October 5.  Although the Court has yet to release any decisions, the high profile cases on its docket reflect the promises and pitfalls of the Obama era’s post-partisan rhetoric.  The Democratic Party, now controlling Congress and the Presidency, is struggling to reconcile the realities of big-tent governance with the demands of competing grassroots ideals.  Meanwhile, United States v. Stevens, which the Court heard in early October, pits liberal values against liberal values in a contest between free expression and animal rights.  And as the Republicans decide which bits of right-wing ideology to embrace or reject as they rebuild from the rubble of 2008, conservative concerns collided at the Court in early December’s Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, when the Court considered whether to abandon principles of federalism in favor of property rights.  Finally, Obama’s overtures to his opponents in pursuing his agenda have their analogue in the Court’s blockbuster of the term: McDonald v. City of Chicago may very well result in a political quid pro quo in which the conservative Heller majority can extend its interpretation of the Second Amendment to the states by breathing new life into a clause of the Fourteenth Amendment that could strengthen constitutional protection for liberal causes.

Of course, these three cases may not be so indicative of a new day rising at the Court.  Justice Kennedy’s vote remains the putative fifth vote in Graham v. Florida and Sullivan v. Florida, which questions whether the life imprisonment without parole of a juvenile for a non-homicidal crime violates the constitution’s ban on cruel and unusual punishment, and in Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, which could find the Sarbanes-Oxley Act’s creation of the PCAOB in violation of separation of powers principles.

However, whereas recent history augurs a Kennedy-penned liberal win in Graham and Sullivan, the Court showed only last term in Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, Attorney General, et al. (NAMUDNO) that it is willing to stop short of the type of ideologically-driven holding that Free Enterprise could bring.  When the Court agreed to hear NAMUDNO, political liberals quivered in fear.  At issue was the constitutionality of Congress’s 2002 vote to extend for another twenty-five years Section Five of the Voting Rights Act of 1965, which required districts with histories of voting rights violations to obtain “preclearance” from the Justice Department for any changes in a covered district’s election procedures.  NAMUDNO presented the conservative justices with its most sweeping opportunity yet to declare the work of the Civil Rights era complete and more fully institute colorblind law.  This was, after all, the same Roberts Court that closed its 2006 term with a 5-4 decision that cited Brown v. Board of Education, the legendary case from 1954 that struck down public school segregation, to hold unconstitutional voluntary, race-conscious public school re-integration programs.

Yet the Court shocked observers when it handed down an 8-1 decision upholding Section Five’s constitutionality.  Chief Justice Roberts, the same man who three years earlier refused a remedy for de facto segregation by stating that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” stopped short in his NAMUDNO decision from judicially willing this country’s history of racial discrimination into obsolescence.  Indeed, faced with the magnitude of exercising judicial review—the most powerful tool the Supreme Court wields over its co-equal branches—against a landmark Act of Congress, the conservatives blinked.  Roberts corralled the conservatives and the liberals under his narrow holding while dispatching Justice Thomas to argue in dissent what ostensibly would have been the conservative majority opinion had Roberts not pulled his right-leaning brethren back from the brink of a certain political firestorm.

But why did the justices determine that NAMUDNO, which roared into the Court’s docket like a lion, should go out like a lamb?  After all, Roberts seldom before let his oft-professed ideal to guide the Court towards broad consensus and narrow holdings take precedence over his demonstrated commitment to conservative ideology.  The Court, however, is not deaf to public opinion.  The term began with a Republican President and a Democratic majority in Congress; the term ended with a Democratic President and a Democratic supermajority in Congress.  Roberts was well aware that the last Court that mounted active resistance to the dominant political will of the American people and their representatives in government now rests in historical infamy.

In order to further a conservative agenda alongside a Democratic executive and legislature, the Court must jealously protect its legitimacy.  The early Roberts Court’s halcyon days of Republican political dominance is over: the conservative bloc, when Justice Kennedy agrees with them, must pick their battles carefully.  That certainly seemed to be their strategy for last term’s potential conservative victories: by balking on NAMUDNO, the Court had enough political capital for a smaller victory in Ricci v. DeStefano, in which the five-member majority held that New Haven discriminated against white firefighters when the city threw out the results of a promotion exam in which disproportionally less black firefighters qualified.  Meanwhile, as if to tell the liberal wing not to get too optimistic over the NAMUDNO compromise, the Court ordered reargument in Citizens United v. Federal Election Commission and presented a new question to the parties that suggested that the conservatives were itching to invalidate federal election laws limiting corporate expenditures during Presidential and Congressional campaigns.

The Court’s decision to schedule a rare September hearing for Citizens United made strategic sense for the Court’s conservative wing in a manner that mirrors President Obama’s own sly “post-partisanship.”  Just as the Right does not trust Obama’s overtures as he pursues even moderately liberal policies, neither should the Left be lulled by NAMUDNO or the absence on this term’s official docket of politically resonant Left vs. Right cases that the conservatives are likely to win.  Indeed, even the potential partisan 5-4 cases are muted: juveniles sentenced to life without parole is hardly as galvanizing as challenges to the death penalty, and claims against administrative agencies do not have the same explosiveness as clashes between Congress and the President.  By placing Citizens United among this term’s cases, the Court, intentionally or not, now possesses the political capital where none existed last term for the conservative majority to open the floodgates for corporate cash in campaigns.

Nevertheless, even if our executive and judicial branches are deploying post-partisan strategy for ideological gain, the strategy significantly slows the traumatic political polarization that would—and did—occur when the branches enable or antagonize the other’s agenda without restraint.  I hope to test this hypothesis as the decisions come down this term and beyond…that is, until the Gay Marriage case hits the Supreme Court. Then it’s back to judicial politics as usual.

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