Tomorrow morning, the Court hears McDonald v. City of Chicago, which asks whether the Second Amendment’s individual right to keep and bear arms is incorporated against the states through the Privileges or Immunities Clause or the Due Process Clause of the Fourteenth Amendment.
In other words, the 2010 Court may exhume the PI Clause, which the 1873 Court in The Slaughter-House Cases buried five years after the Reconstruction Congress ratified the Fourteenth Amendment. The Amendment’s Radical Republican framers, argues McDonald‘s lead counsel Alan Gura, intended for the PI Clause to protect American citizens’ fundamental rights both enumerated and unenumerated by the Constitution.
As such, F1@1F will be going all-in with McDonald for the next few days. All-in for a gun case, of course, requires more than most cases. Much more.
It’s going to be crazy out there. If I’m not first, at least I’ll get some great interviews with interesting people. Here’s what to expect:
- Keep an eye on F1@1F for photos and quick tweets.
- By Tuesday night, I hope to have my oral argument report up at ABA Journal, followed on Wednesday by my vox populi column.
- If I get enough people willing to go on camera, then I’ll have the first episode of Supreme Court Side Walk up here by Friday.
- Until then, give the case’s SCOTUSWiki page a look, especially the most recent media links towards the bottom.
Come on by today or tonight if you’re in town, and bring me some pizza while you’re at it. I’ll be the cold and hungry one without the gun.
…on second thought, bring enough pizza for everyone.
When I woke this morning at 2:40am, I thought that I had surely lost the first spot in line. After all, Holder v. Humanitarian Law Project is the Court’s first First Amendment case arising out of the past decade’s war on terror. But the winter cold and late night rains conspired against my contemplated competitors: when I power-walked up to the Court, no one else was there.
A few thoughts before I suit up and head back out:
- I have no idea how HLP will turn out. No idea at all. That makes this morning’s oral argument all the more exciting and will hopefully provide for a challenging, yet rewarding, write-up this afternoon. In the meantime, listen to my former boss‘s case preview.
- Opinions today. Expecting a few dogs, but if the Court hands down, say, Salazar v. Buono, Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, or United States v. Stevens, I’ll have some comment up this afternoon.
- The line didn’t really get going until closer to 7am. I am shocked at just how few people got to the Court before dawn. Those who did arrive, however, were all law students, and undergraduate aspiring lawyers. As such, although I had a great time getting to know everyone in line, I will not be writing a vox populi column from this morning’s experience. Instead, look for my report from yesterday’s Lewis v. City of Chicago line to be posted by tonight.
- I’ve started to strike up relationships with the Court’s night shift police officers. They’re friendly, talkative, and have great stories from their years serving at One First. Too bad they won’t go on the record…but I’ll keep trying.
- So very glad that tomorrow’s cases do not compel F1@1F coverage. I love being out there, but I do also love a good night’s sleep.
Shower time. More later today.
This morning’s line started off slow, but by the time we got our placeholders, the line had deepened. A few pre-game thoughts before I make myself presentable for the Courtroom:
- Great regional diversity in line: DC, NYC, Chicago, Indianapolis, San Francisco, London via Detroit, and Philadelphia all represented–and that was just the among the first 15 or so.
- Got some great interviews, including the founder of the African-American Firefighters League of Chicago
- Hearing how the justices consider how to mete out “Equal Justice Under Law” in Lewis will be fascinating, given the 500-pound gorilla and pink elephant in the Court.
I will try to get my oral argument report up here this afternoon, but I have class from 1pm-5:30pm. Regardless, the argument report and the vox populi column will be up before the night is over. Thanks for reading!
To get my updates from line and oral argument as I publish them, be sure to subscribe via email or RSS–see the buttons to the right of this post.
Finally, starting tomorrow night, my reports will be cross-posted at the ABA Journal website’s Supreme Court section. I give a big welcome to those future readers thumbing through F1@1F via abajournal.com.
Time to fit in a few hours of sleep. See you all tomorrow!
After such a big fuss was made about the Court’s overturning a six-year-old precedent in Citizens United, the Court decided the death of one young precedent based on changed Court composition was enough.
We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009).
As discussed in previous posts, it was a mystery why the Court even granted certiorari in Briscoe when its question–whether under the Confrontation Clause, lab technicians must appear at trial in person to testify about their forensic reports–had been decided in Melendez-Diaz only last term.
The most apparent answer was that the four Melendez-Diaz dissenters granted a “spite cert” on the bet that Justice Souter, who had voted in the five-justice majority, would be replaced by a justice that would come to the opposite conclusion.
If that guess was true, then perhaps Chief Justice Roberts and Justices Kennedy and Alito, who had been in the Melendez-Diaz dissent, figured that they had better conserve what remained of the Court’s institutional legitimacy after Citizens United. The Court has been under enough fire for overturning 2003’s McConnell v. FEC, which, according to Justice Stevens’s dissent,
The only relevant thing that has changed since Austin and McConnell is the composition of this Court. Today’s ruling thus strikes at the vitals of stare decisis, “the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion” that “permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals.”
Even if Sotomayor would have voted in Briscoe as Souter had in Melendez-Diaz, then why, at least, was there no dissent in Briscoe? I submit that Chief Justice Roberts, mindful of the Court’s political capital, looked at his Citizens United concurrence‘s discussion of stare decisis, and decided that aborting the Melendez-Diaz precedent in Briscoe was not worth the battle after all. Especially with McDonald approaching, in which the Court may very well euthanize an ancient precedent to incorporate the Second Amendment against the states.
Speaking of McDonald, the Court has granted the NRA time to argue in support of the petitioner in McDonald. This throws a wrinkle into just how strongly the Court is considering overturning 1873’s Slaughter-House Cases to revive the Privileges or Immunities Clause as the tool to incorporate the Second Amendment.
The NRA, afraid that the PI Clause will be a pandora’s box for all sorts of newly discovered liberal rights, is urging the Court to use the Due Process Clause to incorporate the Second Amendment. While using the Due Process Clause may follow existing Supreme Court incorporation precedent, conservative justices have loathed the Clause for nearly half a century. Indeed, I don’t see Justice Scalia, the author of Heller and likely the author of McDonald, swallowing back the years of bile he spewed towards “substantive due process” as the NRA will ask him to do.
My law school has lined up quite a day on Tuesday for the symposium, ““State Courts and U.S. Supreme Court Rulings: Will Caperton and Citizens United Change the Way States Pick Judges?” I have no classes on Tuesdays, so F1@1F will be there.
Justice O’Connor will be the keynote speaker. Since retiring from the Court, she has led the fight to eliminate state judicial elections as impediments to judicial independence.
Here’s the morning lineup:
9:15 – 10:15 am.
Panel 1: Caperon v. Massey Coal and the Recusal of State Court Judges
Bert Brandenburg, Executive Director, Justice at Stake Campaign
Carte Goodwin, Partner, Goodwin & Goodwin, PC and Chair, West Virginia Independent Commission on Judicial Reform
Pamela Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School
Roy Schotland, Professor Emeritus, Georgetown University Law Center
Moderator: Nina Totenberg, Legal Affairs Correspondent, NPR
10:20 – 11:20 a.m.
Panel 2: Citizens United and the Election of State Court Judges
Jan Baran, Partner, Wiley & Rein, LLP
Karl Sandstrom, Of Counsel, Perkins Coie
Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law, Capital University Law School
H. Thomas Wells, Jr., Immediate Past President, American Bar Association
Fred Wertheimer, President, Democracy 21
Moderator: Tony Mauro, Supreme Court Correspondent, National Law Journal
Some commentators have already noticed the not-so-easily reconcilable fact that Justice Kennedy wrote the majority opinions in both cases, each decided 5-4. In Caperton, he wrote for the liberal bloc in holding that the 14th Amendment’s Due Process Clause required an elected state supreme court judge recuse himself from judging a case in which one of the parties had previously donated $3 million to his judicial election campaign–and for whose side, “coincidentally,” the judge, once elected to the bench, ultimately gave the winning vote.
In Citizens United, as we all know know, Justice Kennedy wrote for the conservative bloc in holding that the same corporations that he felt under the Due Process Clause unconstitutionally sleazed up judges elected to state courts could, under the First Amendment, constitutionally spend all they wanted in local, state, and federal elections. On page 51 of Kennedy’s opinion, he offers a distinction between the two cases:
The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate. See Buckley, supra, at 46. The fact that a corporation, or any other speaker, is willing to spend money to try to persuade voters presupposes that the people have the ultimate influence over elected officials. This is inconsistent with any suggestion that the elector- ate will refuse “‘to take part in democratic governance’” because of additional political speech made by a corpora- tion or any other speaker. McConnell, supra, at 144 (quot- ing Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 390 (2000)).Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009), is not to the contrary. Caperton held that a judge was required to recuse himself “when a person with a personal stake in a particular case had a significant and dispropor- tionate influence in placing the judge on the case by rais- ing funds or directing the judge’s election campaign when the case was pending or imminent.” Id., at ___ (slip op., at 14). The remedy of recusal was based on a litigant’s due process right to a fair trial before an unbiased judge. See Withrow v. Larkin, 421 U. S. 35, 46 (1975). Caperton’s holding was limited to the rule that the judge must be recused, not that the litigant’s political speech could be banned.The McConnell record was “over 100,000 pages” long, McConnell I, 251 F. Supp. 2d, at 209, yet it “does not have any direct examples of votes being exchanged for . . . ex- penditures,” id., at 560 (opinion of Kollar-Kotelly, J.). This confirms Buckley’s reasoning that independent expendi- tures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate. See 251 F. Supp. 2d, at 555–557 (opinion of Kollar-Kotelly, J.). Ingratiation and access, in any event, are not corruption. The BCRA record establishes that certain donations to political parties, called “soft money,” were made to gain access to elected officials. McConnell, supra, at 125, 130– 131, 146–152; see McConnell I, 251 F. Supp. 2d, at 471– 481, 491–506 (opinion of Kollar-Kotelly, J.); id., at 842– 843, 858–859 (opinion of Leon, J.). This case, however, is about independent expenditures, not soft money. When Congress finds that a problem exists, we must give that finding due deference; but Congress may not choose an unconstitutional remedy. If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expe- diency before principle, then surely there is cause for concern. We must give weight to attempts by Congress to seek to dispel either the appearance or the reality of these influences. The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule. An outright ban on corporate political speech during the critical preelection period is not a permissible remedy. Here Congress has created categorical bans on speech that are asymmetrical to preventing quid pro quo corruption.
Stevens’s spends pages 67-70 of his dissent on why Kennedy’s two opinions are at odds:
The insight that even technically independent expenditures can be corrupting in much the same way as direct contributions is bolstered by our decision last year in Caperton v. A. T. Massey Coal Co., 556 U. S. ___ (2009). In that case, Don Blankenship, the chief executive officer of a corporation with a lawsuit pending before the West Vir ginia high court, spent large sums on behalf of a particular candidate, Brent Benjamin, running for a seat on that court. “In addition to contributing the $1,000 statutory maximum to Benjamin’s campaign committee, Blankenship donated almost $2.5 million to ‘And For The Sake Of The Kids,’” a §527 corporation that ran ads tar geting Benjamin’s opponent. Id., at ___ (slip op., at 2). “This was not all. Blankenship spent, in addition, just over $500,000 on independent expenditures . . . ‘ “to sup port . . . Brent Benjamin.” ’ ” Id., at ___ (slip op., at 2–3) (second alteration in original). Applying its common sense, this Court accepted petitioners’ argument that Blankenship’s “pivotal role in getting Justice Benjamin elected created a constitutionally intolerable probability of actual bias” when Benjamin later declined to recuse him self from the appeal by Blankenship’s corporation. Id., at ___ (slip op., at 11). “Though n[o] . . . bribe or criminal influence” was involved, we recognized that “Justice Ben jamin would nevertheless feel a debt of gratitude to Blankenship for his extraordinary efforts to get him elected.” Ibid. “The difficulties of inquiring into actual bias,” we further noted, “simply underscore the need for objective rules,” id., at ___ (slip op., at 13)—rules which will perforce turn on the appearance of bias rather than its actual existence.
In Caperton, then, we accepted the premise that, at least in some circumstances, independent expenditures on candidate elections will raise an intolerable specter of quid pro quo corruption. Indeed, this premise struck the Court as so intuitive that it repeatedly referred to Blankenship’s spending on behalf of Benjamin—spending that consisted of 99.97% independent expenditures ($3 million) and 0.03% direct contributions ($1,000)—as a “contribution.” See, e.g., id., at ___ (slip op., at 1) (“The basis for the [recusal] motion was that the justice had received cam paign contributions in an extraordinary amount from” Blankenship); id., at ___ (slip op., at 3) (referencing “Blankenship’s $3 million in contributions”); id., at ___ (slip op., at 14) (“Blankenship contributed some $3 million to unseat the incumbent and replace him with Benjamin”); id., at ___ (slip op., at 15) (“Blankenship’s campaign con tributions . . . had a significant and disproportionate influence on the electoral outcome”). The reason the Court so thoroughly conflated expenditures and contributions, one assumes, is that it realized that some expenditures may be functionally equivalent to contributions in the way they influence the outcome of a race, the way they are interpreted by the candidates and the public, and the way they taint the decisions that the officeholder thereafter takes.
Caperton is illuminating in several additional respects. It underscores the old insight that, on account of the ex treme difficulty of proving corruption, “prophylactic meas ures, reaching some [campaign spending] not corrupt in purpose or effect, [may be] nonetheless required to guard against corruption.” Buckley, 424 U. S., at 30; see also Shrink Missouri, 528 U. S., at 392, n. 5. It underscores that “certain restrictions on corporate electoral involve ment” may likewise be needed to “hedge against circum vention of valid contribution limits.” McConnell, 540 U.S., at 205 (internal quotation marks and brackets omitted); see also Colorado II, 533 U. S., at 456 (“[A]ll Members of the Court agree that circumvention is a valid theory of corruption”). It underscores that for-profit cor porations associated with electioneering communications will often prefer to use nonprofit conduits with “mislead ing names,” such as And For The Sake Of The Kids, “to conceal their identity” as the sponsor of those communica tions, thereby frustrating the utility of disclosure laws. McConnell, 540 U. S., at 128; see also id., at 196–197.
And it underscores that the consequences of today’s holding will not be limited to the legislative or executive context. The majority of the States select their judges through popular elections. At a time when concerns about the conduct of judicial elections have reached a fever pitch, see, e.g., O’Connor, Justice for Sale, Wall St. Journal, Nov. 15, 2007, p. A25; Brief for Justice at Stake et al. as Amici Curiae 2, the Court today unleashes the floodgates of corporate and union general treasury spending in these races. Perhaps “Caperton motions” will catch some of the worst abuses. This will be small comfort to those States that, after today, may no longer have the ability to place modest limits on corporate electioneering even if they believe such limits to be critical to maintaining the integ rity of their judicial systems.
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.
Citizens United looks super-likely to come down this morning, but this 6am, I sit in another line.
Meanwhile, I will be in class from 9am-11am. Until I bolt out of class at the stroke of 11, I leave you with this prediction:
I post that prediction with something less than certitude. I made it a week after attending the oral argument, expecting the Court to hand its decision down as early as the first week of October. But it’s now January and it’s apparent that the justices did not have a pre-written opinion on standby after all.
The delay suggests that we could see a late Rehnquist-era fractured opinion where a majority may hold for a certain principle, but falls into disarray over how to get there and what getting there may entail. It does not suggest, however, a NAMUDNO-style pull-back to a broad consensus opinion with a narrow holding.
We will know soon enough.
The Supreme Court will hold a special public session on Thursday at 10 a.m., the Court announced at the close of this morning’s oral arguments. Although no purpose for the sitting was specified, no arguments are scheduled, so it almost certainly will be to release opinions — perhaps the long-awaited ruling on campaign finance regulation. Such sessions are highly unusual, but so is the campaign finance case, involving a major constitutional controversy.
If the Court is planning to issue the ruling in Citizens United v. Federal Election Commission (08-205), it presumably will be doing so to make some gesture to satisfy Congress’s mandate that cases testing the constitutionality of campaign finance laws are to be given expedited treatment.
On the one day I have a morning class…gah!