Instrumental Use of the Courts
Amber asks “how anyone could have thought this law was going to get upheld,” and compares it to the also-voided Communications Decency Act. I think the answer can be seen in this article about the inevitable invalidation of the statute by the Supreme Court:
When President Bill Clinton signed the bill, he expressed reservations, prompted by the First Amendment, and instructed the Justice Department to limit prosecutions to “wanton cruelty to animals designed to appeal to a prurient interest in sex.”
It’s very likely, in other words, that Clinton signed the bill assuming — as I’m sure many members of Congress who voted for it also did — that the Court would strike it down. And I think that was even more true of the CDA — in theory, it would be desirable to have a president who vetoes obviously unconstitutional legislation, but when you know the courts will do it for you, why get tarred as a supporter of internet porn for children?
Questions about the democratic legitimacy of judicial review tend to assume a zero-sum struggle between the branches, whether in support (“only a politically insulated branch can protect unpopular minorities!”) or opposition (“nine unelected dictators in black robes!”) to the practice. But as it actually functions, judicial review usually involves some measure of collaboration with powerful forces in national politics, with judicial power being directed against now-defunct legislative coalitions, regional outliers, etc. A more relevant problem with judicial review is that it provides incentives for elected officials to ignore constitutional issues; a less severe problem than the traditional “countermajoritarian difficulty” but a real one nonetheless.
Probably true. Although it’s also worth considering that this Court has shown increased hostility to facial challenges. Yes, the First Amendment is a special case with its overbreadth doctrine, but it would not have been a crazy idea for Clinton to genuinely think that if prosecution was limited to what he ordered, then the Court would not entertain any facial challenge and would reject any as-applied challenge. (And remember, this prosecution was one that went well beyond Clinton’s limits.) Did Clinton actually think that? Who knows. But I don’t think it’s self-evident that he was just punting entirely.
But aren’t the Supreme much more likely to accept facial challenges in 1st Amendment cases?
This is not directly linked to the point of the post but I just got around to reading Stevens.
I thought Roberts did not persuasively distinguish Ferber. I don’t see how the market for child pornography is more “intrinsically linked” to the underlying illegal conduct than the market for animal cruelty videos.
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I wrote a 40 page analysis of the CDA issue in law school. My conclusion and those of any fair minded inividual who loked at the law would be “Yeah, they knew it was unconstitutional or perhaps they are incompetant.”