Eight Justices Out

Much has been made since Justice Kagan’s nomination last year of her high recusal rate this term due to her participation as Solicitor General in many cases now before the Court.  This morning, however, the Court issued its latest order list that features an inversion of the usual recusal pattern for this term:

In this petition against Justice Thomas, I’m left wondering here why Justice Kagan was left the last justice standing.  After all, she has sat on the bench with Justice Thomas for the better part of a term now, and the other justices appear to have taken no part in considering this petition solely on the basis of potential collegial bias.*  Is there some arcane one-year rule in the Court’s internal procedures that was written for this very scenario?  What would have happened if the Court received this petition next term or the term thereafter?

As for the petition itself, Petitioner Kenneth L. Smith appears to be a serial pro se litigant on a mission to oust Article III judges for violations of their good behavior tenure.  This petition against Justice Thomas, then, came to the Court at an opportune time as Justice Thomas has been mired in ethics attacks for months.  While I cannot find his cert. petition in Smith v. Thomas, I have found another recent brief to the Tenth Circuit against Senior Judge Stephen H. Anderson.  In the brief, Smith colorfully presents his other cases against judges over the past decade:

*UPDATE: QED and Joe in the comments did the due diligence to dig up the docket listing for Smith v. Thomas at the D.C. Circuit.  Turns out Smith brought suit against every sitting justice in October 2009.  Therefore, the mass recusal today was not because of perceived bias in favor of the named defendant, Justice Thomas, but rather that all eight justices (and former Justice John Paul Stevens) were also defendants.

QED’s link didn’t work for me, so here’s a cached copy.  And here is the District Court’s order granting the justices’ motion to dismiss.  Turns out, as Joe points out below, that the suit was not an effort to remove the justices, but rather an effort to seek “a mandate from [the district court] requiring the Justices of the United States Supreme Court to hear all petitions brought to that body under a writ of error or in the alternative, a formal declaration that the Bill of Rights is null and void for want of meaningful enforcement.”

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Scalia Returns to Form, Thomas Sucker Punches Scalia’s Prodigality

Today’s unanimous decision in NASA v. Nelson–see here for my oral argument recap from October–held that the government has the power to conduct full background checks despite the argument by employees of NASA’s Jet Propulsion Lab that parts of those checks violate their right to “informational privacy.”

Writing for six members of the Court, Justice Alito refused to address whether such a right actually exists, and instead assumed its existence for the sake of rejecting its application to the JPL employees’ claims.  Justices Scalia and Thomas, however, refused to go along with this compromise resolution.  Instead, Scalia, in a separate concurrence joined by Thomas, returned to form with a bruising critique of the Court’s “substantive due process” jurisprudence–the very jurisprudence he adopted to extend the Second Amendment to the states in last year’s oral argument and plurality opinion for McDonald v. City of Chicago.

Nevertheless, Justice Thomas wouldn’t let Scalia return to the fold without reminding Scalia of his last year’s prodigality from their bedrock principles.  I’ll let Josh Blackman take it from here:

Scalia’s opinion returns to his usual antagonism towards substantive due process. Not even a single citation to McDonald. No attempt to reconcile his aberrant opinion in the famed gun case. I suppose that McDonald will be the new Gonzales v. Raich, and we should “just get over it.” (that is Scalia’s common refrain when people ask him to reconcile Raich). As recently as last week, Scalia joined a Thomas dissent from denial of cert, other than a footnote that relied on Raich. As I have written at great length, Scalia’s opinion cannot be explained here. His position is at odds with two decades of jurisprudence, and he makes no effort to explain it. While Thomas cites to McDonald, Scalia ignores it. Scalia’s acquiescence to substantive due process in McDonald cannot be reconciled with his animosity towards that “plastic” standard.

Justice Thomas wrote his own curt one paragraph concurring opinion in judgment.

“I agree with JUSTICE SCALIA that the Constitution does not protect a right to informational privacy. Ante, at 1 (opinion concurring in judgment). No provision in the Constitution mentions such a right. Cf. Lawrence v. Texas, 539 U. S. 558, 605–606 (2003) (THOMAS, J., dissent-ing) (“I can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy . . .” (internal quotation marks and brackets omitted)). And the notion that the Due Process Clause of the Fifth Amendment is a wellspring ofunenumerated rights against the Federal Government “strains credulity foreven the most casual user of words.” McDonald v. Chi-cago, 561 U. S. ___, ___ (2010) (THOMAS, J., concurring inpart and concurring in judgment) (slip op., at 7).”

What does Thomas’ concurring opinion add? Thomas focuses on the fact that the due process clause does not protect unenumerated rights, suggesting that it can protect enumerated rights. Perhaps he is trying to provide cover to Scalia, who joined McDonald’s due process opinion. As I have theorized before, because the Second Amendment is actually enumerated, Scalia may find this approach palatable. I find this distinction unpersuasive. As I have argued before, whether the right is enumerated, or unenumerated, the Court still needs to rely on some nebulous notion of liberty. Thomas may be trying to explain Scalia’s opinion, where Scalia would not do so specifically. In my mind, its not effective. Regardless, not even Thomas would accede to relying on the due process clause to protect an enumerated right. To quote my good friend Mike Sacks, this concurring opinion can best be characterized as a “sucker punch.” Ouch.

The standoff continues.

Television Indecency!

I wrote last night of internet obscenity.  Today, the Second Circuit handed down its opinion in Fox v. FCC, declaring unconstitutional the FCC’s indecency policy of fining network television stations for broadcasting fleeting expletives.

The Second Circuit heard this case on remand from the Supreme Court, which last term upheld the FCC’s regulation as a matter of administrative law by a 5-4 vote.  The Court refused to address the constitutional question of whether the policy violated the First Amendment – the issue the Second Circuit answered in the affirmative today.

Justice Thomas concurred in last year’s conservative majority, expressing his willingness to strike down the regulation on constitutional grounds even though he did not believe it to be impermissibly arbitrary or capricious under the Administrative Procedure Act.  Thomas advocated for overturning precedents that gave less First Amendment protection to broadcast speech than otherwise given to utterances in printed media or cable television.  “Red Lion and Pacifica,” he wrote, “were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity.”

Thomas has made a career out of similar separate opinions calling for breaks from incorrect precedents.  While commentators may debate the long-term influence of Thomas’s lone cry in McDonald this term to overturn over a century of precedent so to exhume the Privileges or Immunities Clause of the Fourteenth Amendment, they may find more immediate satisfaction if FCC v. Fox (captioned Fox v. FCC in today’s Second Circuit opinion) gets back to the Court on the constitutional issue.

Here’s the money quote from Judge Pooler’s opinion, which echoes Thomas’s concurrence:

The Networks argue that the world has changed since Pacifica and the reasons underlying the decision are no longer valid. Indeed, we face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed a “uniquely pervasive presence in the lives of all Americans.” Pacifica, 438 U.S. at 748.

The same cannot be said today. The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast – almost 87 percent of households subscribe to a cable or satellite service – and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control. See In re Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, 24 FCC Rcd. 542, at ¶ 8 (2009). The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs. […]

Moreover, technological changes have given parents the ability to decide which programs they will permit their children to watch. […] In short, there now exists a way to block programs that contain indecent speech in a way that was not possible in 1978. In fact, the existence of technology that allowed for household-by-household blocking of “unwanted” cable channels was one of the principle distinctions between cable television and broadcast media drawn by the Supreme Court in Playboy. The Court explained:

The option to block reduces the likelihood, so concerning to the Court in Pacifica, that traditional First Amendment scrutiny would deprive the Government of all authority to address this sort of problem. The corollary, of course, is that targeted blocking enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners – listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt.

We can think of no reason why this rationale for applying strict scrutiny in the case of cable television would not apply with equal force to broadcast television in light of the V-chip technology that is now available.

Nevertheless, Pooler refused to defy Supreme Court precedent and instead struck down the regulation as an impermissibly vague restriction on speech:

We agree with the Networks that the indecency policy is impermissibly vague. The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not. Omnibus Order, 21 F.C.C. Rcd 2664, at ¶¶ 127-128. Other expletives such as “pissed off,” up yours,” “kiss my ass,” and “wiping his ass” were also not found to be patently offensive. Id. at ¶ 197. The Commission argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word “bullshit” is indecent because it is “vulgar, graphic and explicit” while the words “dickhead” was not indecent because it was “not sufficiently vulgar, explicit, or graphic.” This hardly gives broadcasters notice of how the Commission will apply the factors in the future. […]

[T]he absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature. Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all “patently offensive” references to sex, sexual organs, and excretion without giving adequate guidance as to what “patently offensive” means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.

What seems certain from last year’s vote is that the Supreme Court, should it grant certiorari in this case, will affirm the Second Circuit’s judgment.  If the four liberals–Stevens, Souter, Breyer, and Ginsburg–would have invalidated the policy on administrative law grounds, they would likely strike it down on constitutional grounds as well.  And Thomas would surely provide a fifth vote, given his concurrence.  Because no other member of the Court’s Fox majority joined Thomas’s concurrence, I question whether Roberts, Scalia, or Alito will side with the dissenters on the constitutional question, though I fall back on conventional wisdom in thinking that Kennedy is up for grabs.

The question now is whether the Court would follow Thomas’s suggestion and remove the constitutional distinctions between broadcast and other mediums, thereby submitting all speech restrictions to strict scrutiny.  We don’t know how Sotomayor or Kagan would look towards uprooting precedent, especially one of Kagan’s (assuming she gets confirmed) predecessor’s landmark rulings.  Stevens himself intimated in his Fox dissent that “Justice Thomas and I disagree about the continued wisdom of Pacifica,” implying that he would follow the Second Circuit’s void-for-vagueness ruling rather than overturn himself.

Justice Ginsburg, however, signaled her openness to joining Thomas by citing Justice Brennan’s Pacifica dissent:

The Pacifica decision, however it might fare on reassessment, see ante,at 6 (Thomas, J., concurring), was tightly cabined, and for good reason. In dissent, Justice Brennan observed that the Government should take care before enjoining the broadcast of words or expressions spoken by many “in our land of cultural pluralism.” 438 U. S., at 775. That comment, fitting in the 1970’s, is even more potent today. If the reserved constitutional question reaches this Court, see ante, at 26 (majority opinion), we should be mindful that words unpalatable to some may be “commonplace” for others, “the stuff of everyday conversations.” 438 U. S., at 776 (Brennan, J., dissenting).

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.

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.

Justice Stevens’s Valedictory Question

My write-up from this morning’s oral argument in Doe v. Reed is now up at the ABA Journal:

Today marked Justice John Paul Stevens’s final oral argument of his nearly thirty-five year career as an Associate Justice of the United States Supreme Court.  Although Stevens has two more months of opinion announcements to get in a few more words as an active justice, his sole question during this morning’s argument in Doe v. Reed might as well have been his valedictory address to the Court and the country.

For nearly thirty minutes, Justice Stevens listened to the petitioners’ lawyer, Jim Bopp, argue that men and women who signed a petition to place an anti-gay rights referendum on the state ballot had a First Amendment right to privacy in their political associations that protected them against harassment from those with opposing political views.  Accordingly, Bopp maintained, Washington State had no compelling justification to release, pursuant to the state’s Public Records Act, the signers’ name and information.

Then, as the white warning light turned on upon Bopp’s lectern to signal that his half-hour was almost up, Justice Stevens leaned forward and spoke into his microphone.

Read the rest here.

Vox Populi – The Lewis Line

My column highlighting my experience out in line this past week is now up at the ABA Journal:

In November 1968, Jet magazine ran an item called “Black Chicago Firemen Organize Own League.” Co-founder Jim Winbush, then 27 years old, said that “the prime goal” of what’s now the African American Firefighters League of Chicago “is to increase the number of Negroes employed by the fire department.”

On Monday morning, Jim Winbush, now retired, stood in line outside the Supreme Court of the United States to support a younger generation of black Chicago firefighters in the fight that he began over 41 years ago.

Read the rest here.

Scalia Legislates from the Bench

Today’s opinion in Maryland v. Shatzer holds that

Because Shatzer experienced a break in Miranda custody lasting more than two weeks between the first and second attempts at interrogation, Edwards does not mandate suppression of his 2006 statements.

Seems equitable enough until one notices that Justice Scalia, writing for the Court, actually codified that specific number–14 days–as the bright-line expiry date of Miranda rights.

Isn’t this the very kind of specificity that conservative advocates claim made illegitimate Miranda‘s mandated “you have the right to remain silent” speech and Roe‘s trimester framework?  In other words, shouldn’t Scalia himself have claimed that his 14-day limitation was better left to legislative judgment after extensive findings?  Or are Miranda cases different because the Court created and occupied the field four decades ago?

Justice Thomas caught this inconsistency and called the Court out (citations omitted):

This ipse dixit does not explain why extending the Edwards presumption for 14 days following a break in custody—as opposed to 0, 10, or 100 days—provides the “closest possible fit” with the Self-Incrimination Clause.  Nor does it explain how the benefits of a prophylactic 14-day rule (either on its own terms or compared with other possible rules) “outweigh its costs” (which would include the loss of law enforcement information as well as the exclusion of confessions that are in fact voluntary).

To be sure, the Court’s rule has the benefit of providing a bright line.  But bright-line rules are not necessary to prevent Fifth Amendment violations, as the Court has made clear when refusing to adopt such rules in cases involving other Miranda rights. And an otherwise arbitrary rule is not justifiable merely because it gives clear instruction to law enforcement officers.