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Tag: "Supreme Court"

Kennedy and the First Amendment

[ 19 ] March 29, 2011 |

Depressingly, it looks as if Kennedy will vote to strike down the Arizona campaign finance law.

Should he vote the way he seemed to be leaning at oral argument, a case worth pondering is Rust v. Sullivan. In that case, the Supreme Court upheld the first Bush administration’s reproductive freedom gag order, which prevented organizations and medical professionals who receive federal funding from providing any information to their patients about abortion. First of all, you’ll notice that whereas in the campaign finance case it’s not even clear exactly how speech is being suppressed, with respect to the gag order the suppression of speech is unequivocal: as Blackmun wrote in his dissent, it was “viewpoint-based suppression of speech solely because it is imposed on those dependent upon the Government for economic support.” Second, even if we accept Kennedy’s odd argument that public finances somehow suppresses the speech of some individual, it also expands speech for some who would otherwise lack access; there’s no such countervailing interest here. Indeed, the point of the Bush gag order was to restrict access women had to a fundamental right — the violation of liberty was compound rather than mitigated.

I think you can guess how Kennedy voted in Rust

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Today’s Supeme Court Scoreboard

[ 17 ] March 7, 2011 |

Due process 6, Texas-fried Catch-22s 3. The case is yet another reminder that Althouse and Stuart Taylor were right that Alito is no Scalia — he’s much, much worse.

…more here and here.

Court Properly Upholds First Amendment Rights of Hateful Speakers

[ 130 ] March 2, 2011 |

To its substantial credit, in an 8-1 ruling today the Court held that the civil suit against Fred Phelps violated the First Amendment. It’s hard to celebrate any victory for Phelps and his band of bigots, but that’s the point — you don’t need the First Amendment to defend popular speakers.

Appropriately enough — given her recent hypotheticals resting on the assumption that atheists expressing views in ways that aren’t sufficiently “solemn” for a public place is such an self-evidently intolerable outcome that preemptive attacks on other speech she finds ideologically objectionable are required — Althouse’s beloved statist reactionary Sam Alito was the only dissenter.   You’d think that this case would kill of his wholly unearned reputation for moderation, but it seems as durable as Newt Gingrich’s wholly unearned reputation as an intellectual.

…more from Liptak, ACSblog, and Jill.

Hopefully, Its Hurt Feelings Will Recover

[ 15 ] March 2, 2011 |

Even though I’ve always been immune to John Roberts’s purported charms, I have to agree with Lithwick that the concluding paragraph from FCC v. AT&T is a classic:

We reject the argument that because “person” is defined for purposes of FOIA to include a corporation, the phrase “personal privacy” in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.

It’s pretty impressive that AT&T managed to find a bad enough argument that they couldn’t get a single vote from the Roberts Court. You’d have to think some pink slips are about to be distributed within the legal department…

The Court Again Confronts the Confrontation Clause

[ 57 ] February 28, 2011 |

I arrived to my office having finished two lectures that spent a fair amount of time discussing the confrontation clause of the 6th Amendment. I did not expect to find out that the Supreme Court had issued a new ruling, but today in Michigan v. Bryant the Court carved out a significant exception, provoking a fierce dissent from Antonin Scalia.

A couple of the landmark confrontation clause cases are very tough ones, pitting constitutional liberties against potential psychological damage to vulnerable victims. In Coy v. Iowa, the Court held that a trial that partially screened two alleged 13 year-old victims of sexual assault from the accused violated the Sixth Amendment. In Maryland v. Craig, the Court (over strange-bedfellows dissent written by Scalia and joined by the liberal icons Marshall, Brennan, and Stevens) held that a trial that permitted a six-year-old alleged victim of child abuse to testify by closed circuit television did not violate the 6th Amendment. These are very difficult cases, but I’m generally inclined to share the view of the four Craig dissenters.

Today’s case concerned the question of whether hearsay elicited from a dying victim could be admitted, even though it had been elicited by police officers who were trying to investigate the crime and would not be subject to cross-examination.  (For further explanation, see here.)  A 76-2 Court, speaking through Justice Sotomayor, held that the evidence was admissible because the statements were a response to an emergency situation rather than “testimony.” Justice Scalia’s solo dissent (Ginsburg dissented separately) critiques the opinion with characteristic equanimity:

Today’s tale…is so transparently false that professing to believe it demeans this institution. But reaching a patently incorrect conclusion on the facts is a relatively benign judicial mischief; it affects, after all, only the case at hand. In its vain attempt to make the incredible plausible, however—or perhaps as an intended second goal—today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in a shambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort.

Whatever one’s opinion of Scalia’s tone, I have to agree with him on the merits here. It’s always tempting to put a large thumb on the scale when violent crime is involved, but neither the majority opinion nor Thomas’s concurrence mount arguments that I find convincing.   The idea that five successive officers tried to get information from a victim who was not in immediate further danger but were not trying to elicit testimony is highly implausible.

In terms of the bigger picture, this provides yet more evidence that if you care about civil liberties, you’ll take Scalia over Alito without hesitation. Since Ginsburg was the only liberal in dissent, one also has to wonder again if Justice Steven’s departure will leave a substantial void. Sotomayor’s record has been encouraging so far, so I hope this is a “hard cases make bad law” exception.

I Have A Better Idea!

[ 29 ] February 28, 2011 |

Clarence Thomas believes that criticizing him undermines the ability of the Court to protect “liberty.” If he wants to do something to help the Court, I suggest that he resign and persuade Alito to come with him.

Standing, Federalism, and the Tenth Amendment

[ 8 ] February 23, 2011 |

Dahlia Lithwick and Adam Liptak have good articles about yesterday’s oral argument in Bond v. U.S. The substantive issue of the case is whether a law implementing the 1993 Chemical Weapons convention can be used to bring federal charges against a woman who poisoned a woman who was impregnated by her husband.   Like most people, I don’t much care about “federalism”; unlike many people, I’m candid about it.    But even to me, this is an exceptionally dubious exercise of federal authority, stretching the meaning of a federal statute to reach criminal activity that’s within the purview and competence of the states without any relationship to a larger regulatory objective.   While the law itself isn’t problematic — actual trafficking in chemical weapons could require federal intervention — it’s hard to justify its application in this particular case.   Certainly, it’s a much better example of federal “overreach” than the ACA.

The Court may not reach the substantive issue, however, because the 3rd Circuit ruled that Bond did not have the standing to challenge her conviction, because only states can raise 10th Amendment claims.   While I would normally agree with Lithwick “standing doctrine is where all interestingness goes to die,” in this case I think it is of some interest — because the lower court holding strikes me as nutty.   This doesn’t mean, I should add, that the fault lies with the 3rd Circuit, which was arguably bound by a New Deal-era precedent arguing that a utility lacked the standing to bring a 10th Amendment challenge.   But the point of standing doctrine is to ensure that the courts only resolve concrete cases, and as Clement says “it is hard to imagine an injury more particularized or concrete than six years in federal prison.”   The argument that Bond lacks standing to challenge the constitutionality of a law that could result in her being sent to jail is bizarre, and it looks as if the Court will sensibly agree and either distinguish or overrule the precedent.

One final point is that I don’t understand the distinction between “10th Amendment claims” and claims that Congress exceeded its Article I powers that several justices apparently discussed. As the Court correctly argued seven decades ago (“The amendment states but a truism that all is retained which has not been surrendered”), by definition if Congress is acting within its authority there’s no 10th Amendment violation, and if Congress exceeds its Article I authority it violates the 10th Amendment. I remain puzzled by what else the 10th Amendment could mean.

More Great Documentary Filmmaking

[ 7 ] February 16, 2011 |

Another neglected masterpiece of American cinema deals with a second landmark case that has returned to the center of constitutional discussion:

Alas, the high production values cannot hide the fact that the film simply does not meet contemporary Tea Party standards of accuracy; among other things, Michele Bachmann’s point that John Calhoun and William Day were founding fathers and Alexander Hamilton was not has been neglected. Obviously, we need a Pajamas TV remake that will present a more “originalist” version. I’ll script the climactic scene:

GOVERNOR OF MARYLAND (Trace Adkins) and CHIEF JUSTICE MARSHALL (Kelsey Grammer) approach JAMES McCULLOCH (played by the creepiest looking actor not currently playing a D.A. in a David Kelley series.)

MARSHALL: “It is necessary and proper…for subordinate federal officials to kiss the sovereign state of Maryland’s ass. [Cocks rifle.] Consider your federal charter revoked!

McCULLOCH: “Dammit Marshall!”

GOVERNOR: “You fail to understand that were your suit to succeed, we may face the worst tyranny ever known to mankind: federal regulation of the health insurance market!”

McCULLOCH: [Turns white] “Well, perhaps we must lose the battle to win the war.”

MARSHALL: “Most excellent! [Pats governor on back.] Remember, should a similar situation in the future, state officials should feel free to block the enforcement of federal law on their whim.”

THE END. Closing credits, Ray Stevens [feat. Victoria Jackson], “States’ Rights Are Right!”

Balkin on the Commerce Clause

[ 34 ] February 15, 2011 |

I cited it in my Prospect piece yesterday, but for people interested in the history of the Commerce Clause, I strongly recommend Jack Balkin’s forthcoming article. I would add the caveat that I don’t think that Balkin’s liberal originalism overcomes the objections I have to originalism (in whatever variant). I don’t believe his evidence is sufficient to establish that there was an uniform “original meaning” of the commerce clause. There is, as Paul has argued several times recently, no technical legal answer to whether the individual mandate is unconstitutional. (And I don’t think that Balkin would disagree.)

However, in context, his debunking of conservative attempts to establish an alternative original meaning are more than sufficient. Some conservatives would like to portray the debate as one between “federalists” who are bound by the Constitution and defenders of the constitutionality of the ACA, who are merely being expedient. But the very narrow conception of the Commerce Clause that the Supreme Court adopted in the late 19th and early 20th centuries was not the dominant view at the time of the founding. Marshall’s approach in Gibbons v. Ogden was, if anything, more prevalent at the time of the founding. And I certainly agree with Balkin that seeing the central purpose of the Commerce Clause as giving “Congress power to legislate in all cases where states are separately incompetent or where the interests of the nation might be undermined by unilateral or conflicting state action” is both more normatively attractive and provides a better explanation for the Court’s actual jurisprudence than alternative approaches do. And under this standard, the constitutionality of the mandate is an easy case: the regulation is essential to a legitimate broader regulatory regime and solves am obvious “free rider” problem.

Great Moments in Sexist Conservative Paternalism

[ 63 ] February 13, 2011 |

There seems to be some confusion in comments here about what “putting women on a pedestal” in the pejorative sense means. This, for instance, isn’t that.   For an actual example, we’ll need to turn to Associate Justice Anthony M. Kennedy, whose majority opinion in Carhart II was faithful enough to cutting-edge anti-choice rhetoric to be an instant classic of the genre:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow. [Emphasis of particularly relevant part mine.]

You see, the state needs to protect irrational women from making choices they might regret. And this can be accomplished through legislation that forces women to use medical procedures that pose greater medical risks without being rationally connected to any legitimate state interest whatsoever.

In summary, “protecting” women by threatening women’s health is paternalism in the bad sense. Citing the physical burdens of pregnancy as a reason to protect women’s reproductive freedom is not. See the difference?

…since we have a claim in comments that bans on D&X abortion are about protecting fetal life, I guess I have to quote John Paul Stevens again:

Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of “potential life” than the equally gruesome procedure Nebraska claims it still allows. Justice Ginsburg and Judge Posner have, I believe, correctly diagnosed the underlying reason for the enactment of this legislation–a reason that also explains much of the Court’s rhetoric directed at an objective that extends well beyond the narrow issue that this case presents. The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of Roe v. Wade has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holding–that the word “liberty” in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision–makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraska’s law must fall. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational. See U.S. Const., Amdt. 14.

I also note that at oral arguments in Carhart II Bush’s Solicitor General conceded that the statute would not protect fetal life.

Judgifying I Don’t Like

[ 8 ] February 9, 2011 |

Shorter Daily Tucker:  “Too many people are trying to shift the definition of ‘judicial activism’ away from its true meaning: judicial decisions that entail policy outcomes conservatives disagree with.”

My favorite part:

Words mean things, and the power “to regulate commerce…among the several states” does not mean the power to tell Americans what they must buy.

Words, indeed, mean things. Selling health insurance is “commerce” by its most obvious definition (and long-standing Supreme Court definition), clearly the market for health care is “interstate,” and even Vinson (however indavertently) concedes that the mandate is integral to this set of regulations of interstate commerce. So I’m afraid you’re going to have to do better than that…

How Will the Supremes Vote on ACA?

[ 14 ] February 4, 2011 |

Having discussed the limitations of positivist political science, I attempt to figure it out using my highly sophisticated “educated guess” method. Although it’s a “sovereign immunity” case and not a commerce clause case, I think that Hibbs is a better guide to Scalia’s vote than Raich.  Upholding a law that’s about federal hippie-punching is one thing.   Actual progressive legislation is another, and of course to conservatives the individual mandate might be even more oppressive tyranny than the Family and Medical Leave Act.    Even so, my gut says that Kennedy won’t go along, at least fully.   As long as he doesn’t vote to strike the whole act, I can live with it.

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