FIRST ONE @ ONE FIRST

SOTU: POTUS v. SCOTUS

Posted in Justicespotting by Mike Sacks on January 27, 2010

Present at tonight’s State of the Union address: Chief Justice Roberts and Justices Kennedy, Alito, Ginsburg, Breyer, and Sotomayor–who put on her neck doily for the occasion.

But the big news belongs to Justice Alito’s reaction to the President’s taking the Court to task for Citizens United. Here’s what Obama said:

Last week, the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.

Moments after I took this photo, Justice Alito shook his head and mouthedNo, that’s not true,” becoming the only non-impassive face in among the robed.  Watch here at 48:35.

NYT’s The Caucus blog agreed with Alito:

But in his majority opinion in the case, Citizens United vs. the Federal Election Commission, Justice Anthony Kennedy specifically wrote that the opinion did not address the question of foreign companies. “We need not reach the question of whether the government has a compelling interesting in preventing foreign individuals or associations from influencing our Nation’s political process,” he wrote. The court held that the First Amendment protected the right of American corporations to spend money on independent political commercials for or against candidates. Some analysts or observers have warned that the principle could open the door to foreign corporations as well.

Here’s more from Politifact.com.  So let’s not be so fast to call this Alito’s “Joe Wilson Moment.”  Last year Wilson had no proof to shout that Obama lied.  Even if Alito broke from the justices’ traditional SOTU decorum, he certainly knows what Kennedy’s majority entailed and what it didn’t, however it may have been characterized by Stevens in his dissent.

For the Justices’ actual words on foreign companies’ contributions, see Kennedy’s opinion at pp. 46-47 and Stevens’s dissent at pp. 33-34.

UPDATE: Alito’s break with decorum made it to Wikipedia for a split second (h/t Scott Hechinger, NYU 3L):

During Barack Obama’s January 27, 2010 State of The Union Address, Justice Alito can be seen shaking his head in the negative and uttering the words “That’s Not True.”

Also, Ben Smith at Politico has the stand-alone scene.

New Federal Judge Nominee as Trial Balloon

Posted in Anticipation by Mike Sacks on January 21, 2010

Jonathan Adler at Volokh Conspiracy writes about Obama’s nomination of Prof. Goodwin Liu to sit on the Ninth Circuit Court of Appeals.  Liu is young and liberal.

How young?  He received his bachelor’s degree in 1991, which makes him 40 years old if he graduated at 21.  This should satisfy Obama’s critics on the left who have complained that his nominees thus far have been too old.

How liberal?  He is the current Chair of the Board of Directors at the American Constitution Society.  This should make Liu a trial balloon for the resistance to be faced by Obama’s chosen successor to Justice Stevens (if he does indeed retire).  Of course, there’s a big difference in Senatorial apoplexy between nominating a liberal to 1) a circuit court and 2) the Ninth Circuit; and nominating a liberal to the Supreme Court.

Conservative Convergence = Liberal Freakout, Cont’d

Posted in Anticipation, Clairvoyance by Mike Sacks on January 20, 2010

Lyle Denniston at SCOTUSBlog writes about how Brown’s election may indeed rattle the Executive Branch if Justice Stevens retires:

[W]hile most legislative observers will be watching for signs of trouble for health care reform and energy legislation, the processing of nominees to the federal courts will be another arena of likely difficulty.

And the next ten months, of course, is the time span during which a Supreme Court vacancy may well occur.  If bipartisanship has any meaning any longer in the Senate, perhaps the President could find nominees who may have some appeal with moderate Republicans.  That almost certainly would translate as nominees decidedly more moderate in their views than the President’s first choice for the Court, Justice Sonia Sotomayor, who has taken a place comfortably in the Court’s liberal wing.  It might even be doubtful that a nominee with views aligned closely with those of Justice Stevens could get confirmed.

With President Obama still having three years to go in his term, Republicans who might be bent on obstructing any Court nominees would probably not be able to hold out long enough to prevent a centrist nominee for the Court from finally getting through.   But a nominee with an identifiable liberal record may well be doomed (assuming that the White House has any lingering interest in that type of choice).

Per Lyle’s forecast, however, Brown’s election could very well result for the GOP in a case of “be careful what you wish for” should Stevens step down this summer.

To be sure, without 60 guaranteed votes, Obama may move away from choosing a nominee with the liberal record of Judge Diane Wood of the Seventh Circuit.  But then again, if he chooses her–a natural heir to Justice Stevens–and the GOP as a result holds up a Supreme Court nomination through November, the Democrats will more potently than ever be able to paint the 41-person GOP minority as an obstructionist, nihilist, and extremist Party of No.

In other words, Obama may be wise to continue with his next nominee as planned–if indeed he planned to pick a proven liberal–just to show  that when given a high enough platform and just enough rope, today’s GOP will hang itself.

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.

The W.A.S.P. Seat

Posted in Clairvoyance by Mike Sacks on December 30, 2009

In my post below, I warn that not every name I bandied about in my quoted column should have been taken seriously.  One name that must be taken seriously, however, is Diane Wood.  For President Obama, Wood is the perfect successor to Justice John Paul Stevens, should his lagging clerk-hiring be an accurate predictor of his imminent retirement.

First, the basic qualifications: Wood is a well-known liberal judge on the Court of Appeals for the Seventh Circuit.  She was the first person President Obama interviewed for what is now Justice Sonia Sotomayor’s seat on the Supreme Court.  President Clinton nominated her to the Seventh Circuit in 1995 and she took her seat with the Senate’s unanimous confirmation.  She has since emerged as the Circuit’s most identifiable liberal voice amid her famously conservative colleagues, Judges Richard Posner and Frank Easterbrook.  That much had already been widely reported in the weeks following Justice Souter’s announcement of his retirement.

Now, what makes Wood the perfect fit for Stevens’s seat?

  • THE BEST WOMAN: President Obama will nominate a woman.  Period.  But Obama will not want to nominate just any political or legal star.  Unbound by any other identity concerns from his own political coalition, Obama will nominate the very best woman for the job: the woman that no man–or woman, for that matter–can plausibly contend is his inferior.
  • The W.A.S.P. Seat: Justice Stevens is the lone Protestant on a Court staffed by six Catholics and two Jews.  As critical mass has made “the Catholic seat” and “the Jewish seat” irrelevant, President Obama will find encouragement in the irony that by nominating Judge Wood, he is preserving a link to the Court’s–and the country’s–past.  In this sense, she’s a two-fer: the left’s traditional identity politickers can be satisfied with another step towards the Bench’s gender balance while the right’s neo-identity politickers–notably, the Senate Judiciary Committee’s W.A.S.P.s so perturbed by Sotomayor’s “wise Latina” remarks–can take a break from lamenting where their country has gone.
  • PRO-CHOICE: Judge Wood is unabashedly pro-choice.  In Planned Parenthood v. Casey, in which Justices O’Connor, Souter, and Kennedy affirmed a woman’s right to choose an abortion while narrowing Roe v. Wade‘s original protections, Justice Stevens argued that Roe needed no modification.  Judge Wood’s abortion jurisprudence has proven broader than Casey permits: when she creatively sidestepped the Court’s undue burden standard to find that an anti-abortion organization violated the Racketeer Influenced and Corrupt Organizations (RICO) Act through their protest activities, the Supreme Court reversed her, with only Justice Stevens dissenting.
  • A STRONG VOICE: The Court’s liberal bloc will lose its leader upon Justice Stevens’s retirement.  He has long served as a powerful counterweight to the Court’s conservative heavy-hitters.  Judge Wood will bring with her a decade and a half of sparring experience with Judges Posner and Easterbrook, whose intellectual reputations not only stand as tall as those of any of the Supreme Court’s conservative bloc, but also their forceful personalities rival even Justice Scalia’s.  Further, after nominating the prosaic Sotomayor, President Obama will want to put forward a “rock star of the written word,” who, as a Mother Jones reporter described, “Federalist Society members viewed—off the record, of course—as the left’s answer to John Roberts.”
  • NON-IVY LEAGUE: Judge Wood earned her undergraduate and law degrees from the University of Texas.  Currently, Justice Stevens, a Northwestern Law graduate, is the only member of the Court not to hold an Ivy League law degree.
  • UNIVERSITY OF CHICAGO LAW PROFESSOR: Judge Wood taught alongside President Obama on the faculty of the University of Chicago Law School.
  • SEVENTH CIRCUIT: Judge Wood sits on the Seventh Circuit, where then-Judge Stevens served prior to his confirmation to the Supreme Court.
  • AGE: As Joan Biskupic of USA Today noted on her blog today, Judge Wood’s age–she will be 60 this summer–may not be problematic, given that “President Obama has not been seeking younger candidates for the federal bench as GOP predecessors Ronald Reagan and George W. Bush did.”

Of course, these factors only speak to why Obama will nominate her, not to why the Republicans will support her.  They won’t.  Not even if she preserves the W.A.S.P. seat and would, however unlikely, vote less liberally than Stevens.  The Republican Party in the summer of 2010 will see Wood’s nomination as an opportunity to feed raw meat to their pro-life base in anticipation of the mid-term elections.

However, if Sotomayor was Obama’s pick for expanding the Court’s diversity, Wood will be Obama’s pick for bolstering the Court’s progressivism.  After the Republicans put up a near-united front for Sotomayor and Health Care, Obama surely recognizes that the days of gaining a broad consensus vote will not be returning anytime soon.  No matter who he nominates next, the vote will be nearly party line.  And with the specter of losing a sliver of his Senate majority next November, this summer may be Obama’s only opportunity to nominate the perfect successor to Justice Stevens.  Judge Wood’s time has come.

Fun with the Future

Posted in Clairvoyance by Mike Sacks on December 30, 2009

A few months back, Washington Post ran a contest called, “America’s Next Great Pundit.”  I entered.  But rather than do as prompted and write about the issues currently before us, I decided to have fun with the future.  I got rejected.

Take some of the cast of characters with a grain of salt.  But as to the other characters, turn over your hourglass and pay heed to how the grain of salt turns into a sturdy pile of sand.

July 2021

Justice Antonin Scalia, the 85-year-old senior member of the Supreme Court, held a press conference yesterday to announce his retirement.  Stooped over and weakened by three heart-attacks, he symbolized the conservative Court’s decline.

The iconic jurist had hoped to retire upon the election of Senator Eric Cantor (R-Va) to the Presidency.  The votes, however, weren’t there.

“Now I know how [former Justice] Bill Brennan felt,” the Justice chuckled, alluding to the liberal lion Scalia often battled during his early years on the Court.  Thirty years ago, the elderly Brennan suffered a stroke and promptly sent his letter of resignation to a President on the opposite end of the political spectrum.

Sources close to President Cory Booker report that he will make good on the campaign promise to nominate Barack Obama to the first vacancy on the Supreme Court.  Booker’s declaration relegated his Democratic Primary competitors to meek “me too’s” and helped catapult the former New Jersey Governor over incumbent President Biden at the polls.

At a dinner in Tehran with former Iranian President Mousavi commemorating the tenth anniversary of the fall of Ayatollah Khamenei, Obama told reporters that after five years of democracy promotion abroad, he’s ready to return to Washington for a new challenge should Booker nominate him.

“Iran is our ally and has helped make Iraq and Afghanistan the stable states they are today. Global nukes are approaching zero.  Israel and Palestine are partners in peace. We’ve gotten a lot done.  But look, the law is my first love.  And I’ve got a legacy to protect back home.”

But those hoping Obama will unite with Justice Diane Wood, his second Court appointment, to reconstitute the long-lost, full-throated liberal wing of the court will be disappointed.

“My health care legislation has been turned into a money pit.  My Wall Street regulations have turned into financial straitjackets.  After Justice Kennedy retired, my economic-based affirmative action reforms and abortion-control legislation have been in danger.”

Cantor’s quixotic campaign and its landslide defeat finally nailed the coffin on Scalia’s brand of conservatism, but the contested Democratic nomination points to Booker and Obama as the new vanguard of restraint against the Biden administration’s excesses.

If Obama can get his Tehran comments past the progressive members of the Senate Judiciary Committee, Scalia can satisfy himself with the irony that the liberal messiah of 2008 will be resurrected as the figurehead of new conservatism.

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