Appetizers Today, Main Course on Monday

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.

CSM Cover Story!

My First Cover Story

This week’s edition of the Christian Science Monitor features my very first cover story!  When the piece goes live on the web, I’ll provide the link and a cross-posted excerpt here.

Court Breaks Its First Amendment Streak

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.

Cons Want it Both Ways in STBR

No Bilski this morning, but Thomas did write the other remaining November case, so Stevens remains the prime candidate for majority author.

The Court did release its opinion in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection.  Early in the life of F1@1F, I flagged this case because it pits federalism against property rights, two traditionally conservative causes.  Turns out the Court’s conservative bloc – Roberts, Scalia, Thomas, and Alito – found the two concerns, in this case at least, reconcilable.

Scalia announced the opinion of the Court that the Florida Supreme Court did not commit a taking when it approved of an erosion-control plan that the plaintiffs had argued diminished their beachfront property.  On this point, the Court was unanimous.

But Scalia continued, in parts joined only by the conservative bloc, to recognize the concept of a “judicial taking” that the plaintiff-petitioners put to the Court.  In 1994, Scalia had argued for the recognition of the concept that a court’s decision could amount to the government’s taking of property without just compensation in violation of the Fifth and Fourteenth Amendments.  It was no surprise, then, that he’d attempt to codify “judicial takings” in STBR.

Without five members signing onto this part of the decision, the true clash of conservative principles will have to wait another day.  Justice Kennedy, for his part, sided with the liberals who today–in fact, all term–were playing the role of the judicially restrained.  In two separate concurrences – Kennedy w/ Sotomayor and Breyer w/ Ginsburg – four justices agreed that this case presented no necessity to address, or even recognize, “judicial takings.”  Stevens, the owner of beachfront Florida property, recused himself from the case.

But at least now we know that property rights mean more than federalism for the members of the Court who traditionally champion both with full force.  What side the liberals will fall upon in the next Bush v. Gore of property rights is less certain, but if we were to combine their positions in Bush v. Gore itself (deferring to a state supreme court on matters of state law) and Kelo v. New London (robust interpretation of the takings clause), then I’d say that federalism will win their votes.  If Sotomayor and Kagan (if confirmed) will vote like their predecessors in this hypothetical future case, then Kennedy, as ever, will prove the deciding vote.

UPDATE: Scalia calls Breyer a woodchuck, Kennedy, Orwellian:

JUSTICE BREYER’s concurrence says that we need nei- ther (1) to decide whether the judiciary can ever effect a taking, nor (2) to establish the standard for determining whether it has done so. See post, at 1–2 (opinion concur- ring in part and concurring in judgment). The second part of this is surely incompatible with JUSTICE BREYER’s conclusion that the “Florida Supreme Court’s decision in this case did not amount to a ‘judicial taking.’” Post, at 3.  One cannot know whether a takings claim is invalid with- out knowing what standard it has failed to meet.6 Which means that JUSTICE BREYER must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the “unnecessary” constitutional question whether there is such a thing as a judicial taking.

…

In any case, our opinion does not trust judges with the relatively small power JUSTICE KENNEDY now objects to. It is we who propose setting aside judicial decisions that take private property; it is he who insists that judges cannot be so limited. Un- der his regime, the citizen whose property has been judi- cially redefined to belong to the State would presumably be given the Orwellian explanation: “The court did not take your property. Because it is neither politically ac- countable nor competent to make such a decision, it can- not take property.”

Scalia then goes on to seize back the mantle of judicial restraint from Kennedy the Usurper, Author of Lawrence:

Finally, we cannot avoid comment upon JUSTICE KENNEDY’s donning of the mantle of judicial restraint— his assertion that it is we, and not he, who would empower the courts and encourage their expropriation of private property. He warns that if judges know that their action is covered by the Takings Clause, they will issue “sweep- ing new rule[s] to adjust the rights of property owners,” comfortable in the knowledge that their innovations will be preserved upon payment by the State. Post, at 6. That is quite impossible. As we have said, if we were to hold that the Florida Supreme Court had effected an uncom- pensated taking in this case, we would not validate the taking by ordering Florida to pay compensation. We would simply reverse the Florida Supreme Court’s judg- ment that the Beach and Shore Preservation Act can be applied to the Members’ property. The power to effect a compensated taking would then reside, where it has al- ways resided, not in the Florida Supreme Court but in the Florida Legislature—which could either provide compen- sation or acquiesce in the invalidity of the offending fea- tures of the Act. Cf. Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 817–818 (1989). The only realistic incentive that subjection to the Takings Clause might provide to any court would be the incentive to get reversed, which in our experience few judges value.

JUSTICE KENNEDY, however, while dismissive of the Takings Clause, places no other constraints on judicial action. He puts forward some extremely vague applica- tions of Substantive Due Process, and does not even say that they (whatever they are) will for sure apply. (“It is thus natural to read the Due Process Clause as limiting the power of courts to eliminate or change established property rights,” post, at 3; “courts . . . may not have the power to eliminate established property rights by judicial decision,” post, at 4; “the Due Process Clause would likely prevent a State from doing by judicial decree what the Takings Clause forbids it to do by legislative fiat,” post, at 4–5 (internal quotation marks omitted); we must defer applying the Takings Clause until “[i]f and when future cases show that the usual principles, including constitu- tional principles that constrain the judiciary like due process, are somehow inadequate to protect property owners,” post, at 10.)

Moreover, and more importantly, JUSTICE KENNEDY places no constraints whatever upon this Court. Not only does his concurrence only think about applying Substantive Due Process; but because Substantive Due Process is such a wonderfully malleable concept, see, e.g., Lawrence v. Texas, 539 U. S. 558, 562 (2003) (referring to “liberty of the person both in its spatial and in its more transcendent dimensions”), even a firm commitment to apply it would be a firm commitment to nothing in particular. JUSTICE KENNEDY’s desire to substitute Substantive Due Process for the Takings Clause suggests, and the rest of what he writes confirms, that what holds him back from giving the Takings Clause its natural meaning is not the intrusive- ness of applying it to judicial action, but the definiteness of doing so; not a concern to preserve the powers of the States’ political branches, but a concern to preserve this Court’s discretion to say that property may be taken, or may not be taken, as in the Court’s view the circumstances suggest. We must not say that we are bound by the Con- stitution never to sanction judicial elimination of clearly established property rights. Where the power of this Court is concerned, one must never say never. See, e.g., Vieth v. Jubelirer, 541 U. S. 267, 302–305 (2004) (plurality opinion); Sosa v. Alvarez-Machain, 542 U. S. 692, 750–751 (2004) (SCALIA, J., concurring in part and concurring in judgment). The great attraction of Substantive Due Proc- ess as a substitute for more specific constitutional guaran- tees is that it never means never—because it never means anything precise.

How Scalia’s takedown of Substantive Due Process here will play with the decision in McDonald v. City of Chicago, in which he accepted SDP’s legitimacy over the PI Clause at oral argument, is to be determined.  But he does give hints in STBR on why he thwarted Alan Gura’s argument in McDonald: Gura was gunning, through guns, for a libertarian legal resurrection that Scalia wants to keep buried:

[W]e have held for many years (logically or not) that the “liberties” protected by Substantive Due Process do not include economic liber- ties. See, e.g., Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U. S. 525, 536 (1949). JUSTICE KENNEDY’s language (“If a judicial decision . . . eliminates an established property right, the judgment could be set aside as a deprivation of property without due process of law,” post, at 3) propels us back to what is referred to (usually deprecatingly) as “the Lochner era.” See Lochner v. New York, 198 U. S 45, 56–58 (1905). That is a step of much greater novelty, and much more unpredictable effect, than merely applying the Takings Clause to judicial action.

Retired Justices as Subs for Recusals

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.

Stevens writing Bilski?

Because I know next to nothing on the merits of patent law, my predictions for the now overlong-awaited Bilski decision will extend no further than this: Justice Stevens will be its author.

Two factors lead me to this conclusion.  First, Stevens and Thomas are the only two justices yet to author a majority opinion from the November sitting.  Given that Stevens–and not Thomas–has the history of landmark tech-oriented decisions.  In fact, he has contributed one a decade:

• 1978: FCC v. Pacifica Foundation – Broadcast media and the First Amendment
• 1984: Sony Corp. v. Universal City Studios – Video cassette recorders and Copyright
• 1999: Reno v. ACLU – Internet and First Amendment

If you consider 2010 to be part of the first, rather than the second, decade of the 21st century, then it looks like Stevens is due one more swing for the ages.

One can assume Stevens will write for the liberals if Bilski has any left/right component to blame for causing the Court’s significant delay in releasing the opinion.  I refuse, however, to make this assumption myself ever since I rightly predicted Justice Kennedy to author Salazar v. Buono, but ate my words about what side he’d come down on.  Of course, Stevens may be more predictable than Kennedy, but I’m too spooked to hazard even the safest guess for this case in a very unfamiliar field.  I’ll leave that to these guys.

If Stevens is not the author, I have a backup prediction: the long wait for this case means that he has crafted a lead dissent out of a majority opinion he lost in the drafting process.

CT in 2012?

As I continue to toil away on some outside writing projects (you’ll find out about them soon…), give a read to this Washington Post op/ed by David Lat and Kashmir Hill of Above the Law.

Entitled, “Justice Clarence Thomas seems bored. Why doesn’t he run for president in 2012?”, Lat and Hill go on to make an argument that should make any Court watcher and student of law and politics wonder, “Why haven’t I thought of this before?”  That is no slight – this article is refreshingly provocative and plausible.  There’s no better kind of commentary.  Here’s a sample:

The Republican Party is in disarray, with no clear message — as shown in last week’s primaries — and with no obvious candidate to challenge President Obama in 2012. Thomas could be the GOP’s new standard-bearer. He has enviable name recognition, both as a long-serving justice and as the author of the bestselling 2007 autobiography “My Grandfather’s Son.” And he has already survived the nasty political attacks that marked his 1991 confirmation hearings.

No matter what one thinks of Justice Thomas, I think there’s a little something for everyone in Lat and Hill’s proposal.

This is Awesome

For some exceedingly brief weekend reading, check out this letter to and from Justice Sotomayor.  While you’re at it, see who won a reply-race between Presidents Clinton and G.H.W. Bush.

Souter Flurry

Last week, I published a run-down of Justice Souter’s speech at Harvard, in which he offered a strong rebuttal to the textualist/originalist approach that has come to dominate our confirmation hearing debates.  This week, there has been a flurry of commentary on the speech from Linda Greenhouse of the New York Times, Joan Biskupic of USA Today, and E.J. Dionne of the Washington Post.

This speech, however, was not only meant to address today’s public and Souter’s former colleagues.  As I wrote two months ago, Souter is taking the long view towards restoring a balanced approach to judging thrown off-kilter by the Warren and Burger Courts’ liberal overreach and the Rehnquist and Roberts Courts’ conservative overcorrection.  Souter’s speech, then, may be taken in tandem with his valedictory Osborne dissent from last term, in which he advocated for the the law’s restrained evolution–something that was common sense to liberals and conservatives several generations ago but today seems downright paradoxical compared to our current choice of calcification or activism.

Here’s the relevant part of the dissent in full:

As for determining the right moment for a court to decide whether substantive due process requires recognition of an individual right unsanctioned by tradition (or the invalidation of traditional law), I certainly agree with the Court that the beginning of wisdom is to go slow. Substantive due process expresses the conception that the liberty it protects is a freedom from arbitrary government action, from restraints lacking any reasonable justification and a substantive due process claim requires attention to two closely related elements that call for great care on the part of a court. It is crucial, first, to be clear about whose understanding it is that is being taken as the touchstone of what is arbitrary and outside the sphere of reasonable judgment. And it is just as essential to recognize how much time society needs in order to work through a given issue before it makes sense to ask whether a law or practice on the subject is beyond the pale of reasonable choice, and subject to being struck down as violating due process.

It goes without saying that the conception of the reasonable looks to the prevailing understanding of the broad society, not to individual notions that a judge may entertain for himself alone, and in applying a national constitution the society of reference is the nation. On specific issues, widely shared understandings within the national society can change as interests claimed under the rubric of liberty evolve into recognition, see Griswold v. Connecticut, 381 U. S. 479 (1965) (personal privacy);Lawrence v. Texas, 539 U. S. 558 (2003) (sexual intimacy), see also Washington v.Glucksberg, 521 U. S. 702, 752 (1997) (Souter, J., concurring in judgment), or are recast in light of experience and accumulated knowledge, compare Roe v. Wade, 410 U. S. 113 (1973), with Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833(1992) (joint opinion of O’Connor, Kennedy and Souter, JJ.).

Changes in societal understanding of the fundamental reasonableness of government actions work out in much the same way that individuals reconsider issues of fundamental belief. We can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally. Just as attachment to the familiar and the limits of experience affect the capacity of an individual to see the potential legitimacy of a moral position, the broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to declare unsympathetic state or national laws arbitrary to the point of being unconstitutional. The time required is a matter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a substantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of reasonable political judgment.

Catching up…

Apologies for the slowed-down schedule here despite my last week’s promise to return to more regular posting.  This weekend, I’ve been doing double-duty: when the First Lady of First One @ One First and I haven’t been moving apartments from one end of the neighborhood to the other, I’ve been out on assignment for an ABA Journal piece set to run in the magazine this summer.

Nevertheless, I was at the Court this morning for the opinion announcements.  I’ll post my take in the next few days, once I catch my breath.  For now, I’m just happy to have an Internet connection again.

Thanks for your patience!