This past Friday, the Supreme Court returned from its Christmas recess with the January arguments scheduled to begin on Monday. This time of year is a transition period on the Supreme Court calendar. Enough time has passed since the first arguments that the Supreme Court is beginning to issue opinions from the early arguments. On the other hand, on cases that the Supreme Court decides to hear, there is barely enough time between this month's orders accepting review and the April argument session to allow cases to be heard and decided this year. Starting in February, any cases accepted will be for the fall's argument dates with decisions likely to be issued in 2016.
The Supreme Court has already announced its argument schedule for January (10 arguments on five days) and February (11 argument on six days). Based on the grants before the Christmas recess (and the dismissal of one of those cases when the petition disappeared and did not file a brief), the Supreme Court has 10 cases that could be (probably will be)heard on the six days of the March argument session. On Friday, the Supreme Court rescheduled a case from earlier this year for a second round of briefing and argument (on an additional issue) and the rest of the April argument session will be filled by the cases that the Supreme Court decide to grant review on this month.
January has a lot of cases of moderate interest. First up is Reed vs. Town of Gilbert. The issue involves a the Town's regulations on temporary signs -- a regulation that favors certain categories of signs (political) over others (churches and other non-profits) -- and whether those categories are "content-neutral" or not (a fact determines what test should be applied to review of the ordinance with content-neutral ordinances normally being upheld). Next up is Mach Mining vs. Equal Employment Opportunity Commission. The issue involves the EEOC's duty to attempt to negotiate a settlement before filing suit against a company that discriminates based on race or gender. The company wants the Supreme Court to rule that courts can dismiss an otherwise valid claim of discrimination if the court believes that the EEOC did not act fairly in the pre-filing negotiations. During the second week of arguments, the Supreme Court will hear Williams-Yulee vs. Florida Bar. This case involves a rule barring judicial candidates from personally soliciting donations to their campaigns. Needless to say in a court that has been hostile to campaign finance regulations, those supporting this rule may face a very hostile court. Finally, in Texas Department of Housing and Community Affairs vs. Inclusive Communities Project, the Supreme Court will decide if the Fair Housing Act (like other anti-discrimination laws) allows a claim based on discriminatory impact (that the rules actually do discriminate against minorities) or whether the victims of discrimination must show that the rule or practice was intended to discriminate against minorities.
In February, the big case is King vs. Burwell -- the case on subsidies under the Affordable Care Act. In the latest attempt by conservatives to gut the bill, the petitioners are claiming that the proper way to interpret the statute is that the subsidies are only available for people who purchase insurance on a state-run exchange but that subsidies are not available in those states in which the federal government runs the exchange because the state has not established an exchange. Needless to say, as most states have not established an exchange, if the Supreme Court finds that the subsidy is only available on state-run exchanges, a significant number of people will lose the subsidy and will not be able to afford health insurance. Also in February, the Supreme Court will hear Arizona State Legislature vs. Arizona Independent Redistricting Commission. This case involves whether the U.S. Constitution requires that state legislatures draw congressional district lines or if that duty can be reassigned by the voters (or legislature) to an independent commission.
Looking at the likely March arguments, the big case is actually three consolidated cases challenging whether the EPA improperly gave insufficient weight to potential costs in enacting regulations on hazardous pollutants generated by electrical companies. Additionally, there is another significant First Amendment case, Walker vs. Texas Division, Sons of Confederate Veterans, concerning the ability of states to refuse to allow certain groups the ability to have a specialty license plate.
As we enter the last two or three weeks of the Supreme Court's session, court watchers turn to a guessing game of which Justice has which opinion. What drives the guessing game are the informal rules of the court and two key pieces of data.
For the purposes of the guessing game, there are two key informal rules. First, opinions are assigned by the senior Justice in the majority (with the Chief Just being automatically senior to the eight Associate Justices). Second, in making assignments, the Justices are conscious of the work load of each of the chamber and try to keep the assignments relatively balanced. Of course, the alignment of justices on individual cases can frustrate this second rule.
The two key pieces of data are the opinions already issued by the justices and the number of cases argued (both for each sitting and the entire term). Not considering the two cases that were dismissed after argument, the Supreme Court heard 68 cases this year. Based on that number, each Justice should have seven or eight majority opinions. Furthermore, through January, there were 44 cases requiring opinions (with 24 between February and April). One would expect each Justice to have five opinions through January (one should have four) and two or three for the remainder of the term (and most likely to have two opinions from March and April given that there were 17 cases in those two months).
At the present time, Justice Kennedy has issued eight opinions. Based on the above, he should be done for the year (or at most have one more). There is also the quirk that, notwithstanding the above, Scalia actually had six opinions through January.
Looking at January, with four cases outstanding, three Justices do not have an opinion from January -- Justice Breyer (three total through December), Justice Alito, and Justice Kagan (both with four total through December). Two other Justices have four total through January (the Chief Justice and Justice Sotomayor). Based on the above, I think that the Chief Justice is most likely to have the Noel Canning (recess appointment) case. Since becoming Chief Justice, Justice Roberts has tended to keep the biggest cases for himself. Of the other three cases, I can see Justice Breyer getting McCullen (the abortion protester case), especially if there is a consensus that the Massachusetts law was just a bit too restrictive. My hunch says that Justice Alito is likely to get Harris (the home health care provider unionization case).
In February, with two cases outstanding, the three strongest candidates to have the opinions are the Chief Justice, Justice Thomas, and Justice Ginsburg. My hunch says that the Chief Justice has the Climate Change cases. The other case (involving Haliburton) involves the basic theory of security fraud. If the Supreme Court is not making a major change, Justice Ginsburg will have the opinion (which will be her eighth of the term). If the Supreme Court is making a major change, Justice Thomas will have the opinion.
There are still too many undecided cases from March and April (11 total remaining with six opinions issued) to make any firm guesses (other than Kennedy not having any and Ginsburg or Sotomayor -- both already at seven opinions -- maybe not having any). For the reasons noted above, my hunch says that the Chief Justice will have kept Hobby Lobby (contraceptive coverage) for himself.
This past week, the United States Supreme Court, by a 5-4 vote inMcCutcheon vs. Federal Election Commission, struck down the law imposing an "aggregate" limit on the amount that one individual can give to all candidates and party committees in a single election.
A mere eleven years ago, by a 5-4 vote, the Supreme Court upheld a significant portion, but not all, of the Bipartisan Campaign Reform Act (better known as McCain-Feingold) in McConnell vs. Federal Election Commission. In this opinion, the swing vote was Justice Sandra Day O'Connor with Justices Stevens, Souter, Breyer, and Ginsburg also joining in that opinion. On the other side were Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas. A key part of the opinions upholding parts of McCain-Feingold was the recognition of the potential appearance of corruption from large scale expenditures (especially by corporations) even if not direct contributions to candidates.
In 2006 Justice O'Connor retired and Justice Samuel Alito took her seat. In that same term, Chief Justice Rehnquist died and was replaced by Chief Justice Roberts.
In 2007, in Federal Elections Commission vs. Wisconsin Right to Life, the Supreme Court decided by a 5-4, with Justice Alito and Chief Justice Roberts joining the McConnell dissenters, that "issue" ads run on the eve of an election were not election spending subject to FEC regulation (despite the clear intent of McCain-Feingold to regulate such ads). (An "issue" ad is an ad run by a group that typically criticizes a politician for stands on certain issues. The main difference between an issue ad and an a "campaign" ad is that the issue ad does not expressly request a vote for or against any candidate -- even though it is not hard to read between the lines and get the message as to how the ad wants the person to vote.
In 2010, in Citizens United v. Federal Election Commission, the same 5-4 majority struck down a long-time restriction on corporations using their money for independent expenditures on campaign ads. When combined with Wisconsin Right to Life, the Supreme Court essentially held that corporations (i.e. groups organized outside of campaign finance laws and thus exempt from campaign finance disclosure requirements) could spend unlimited amounts of money -- regardless of whether they phrased their ad as a mere issue ad or went the next step of asking for a vote for or against a specific candidate.
Now, the Supreme Court has gone the next step and struck down the aggregate contribution limits. The law recognizes four "base" limits on contributions to a single candidate or committee. First, a donor can only give a candidate $2,600 per election (effectively $5,200 for the two-year cycle, $2,600 for the primary and $2,600 for the general). Second, a donor can give $32,400 per year to a national party committee. Third, a donor can give per year $10,000 in federal money to a state committee. Fourth, a donor can give a federal political action committee $5,000 per year in federal money (noting, of course, that these restrictions do not apply to donations to non-PACs that make "independent expenditures"). Besides these limits on donations to a single candidate or committee, before Wednesday, the law contained three limits on aggregate or total contributions to all candidates/committees. First, a donor could only give a total of $48,600 for a two-year cycle to all federal candidates (state candidates being outside the jurisdiction of the FEC). Second, a donor could only give a total of $48,600 per two-year cycle in federal money to state and local parties and PACs (again noting that these limits do not apply to non-PACs, e.g. Americans For Prosperity). Finally, a donor could only give a total of $74,600 per two-year cycle in federal money to non-candidate committees (including national political parties).
In its decision on Wednesday, the Supreme Court found that these aggregate limits could not be based on the appearance of corruption (the reason used to uphold the base and aggregate limits in 1976 and 2003). Limitations on aggregate donation were invalid in the absence of proof of actual bribery. While the majority is technically correct that there decision on Wednesday leaves intact the base limits (and the bar on direct donations by corporations), that is simply a matter of the limits of this case. Under the reasoning of the majority, neither the base limits nor the limits on corporate donations can be justified. The most that can be justified are reporting requirements to assure that there is no "bribery" of candidates. As such, the only thing keeping the rest of current campaign finance laws in place is that the current five-Justice group is not yet ready to take the next logical step. However, until one of them retires, all campaign finance laws are at risk of being struck down at any time.
As the dissent notes, the claim that the base limits are enough is simply not accurate. Without the aggregate limits, a person can form unlimited PACs and use each of those PACs to give additional money to the same candidate without limits. The giving of money to committees with the understanding that the money is to be spent on a specific race is already a problem that is difficult to police. This new ruling makes it even harder to enforce the restriction on targeted donations. Furthermore, the ruling undermines the entire justification for the base limits. It is hard to tell what will happen next. As noted above, there is no indication in the majority opinion of any substantial basis for distinguishing what is left in campaign finance law from what has already been struck down.
Congress had imposed two conditions on recipients. The first condition banned the use of the funds provided by the US government to advocate for the legalization of prostitution. The second condition required that the recipients have a policy opposing the legalization of prostitution. The Supreme Court in line with previous opinions noted that the first condition -- directly governing the use of the funds provided by the US was a valid condition even if it might somehow impair the preferences of the organization. However, the court found that the second condition (restricting what the organization could do with its own funds) was an unconstitutional condition.
This decision is potentially significant for two reasons. First, it puts more teeth into the concept of unconstitutional conditions on government spending programs. Before last year's health care decision, the concept that there was a limit on the strings that the government could place on grants was more an academic theory than a meaningful legal argument. It's hard to predict the next area where this issue will arise, but some of the states trying to ban Planned Parenthood from getting any government funding may want to closely read this decision.
Second, it reflects a continued pro-Free Speech trend from this Court. Whether dealing with corporate campaign spending, the making of violent video games, the desire of extremists to turn private funeral services into a political event, the Roberts Court has almost always sided with those claiming that their Free Speech rights have been infringed. (There are some exceptions, but the norm has been to favor those wishing to speak over those trying to impose restrictions, however reasonable, on that speech. With more campaign finance laws already scheduled to be reviewed in the next term, the continuation of the Free Speech tendency of the Roberts Court is a strong indication that Citizen United is not the end of the elimination of long-standing restrictions found in current campaign finance laws.
This past Tuesday, the Supreme Court handed down its orders from last Friday's Conference. In that order, they agreed to full briefing (probably for argument next fall) in McCutcheon v. Federal Election Commission. (The technical entry on the order is "probably jurisdiction noted.") While this type of case is one that the Supreme Court technically has to hear, typically, the Supreme Court will rule these cases on the initial submissions without full briefing and argument (handing down the decision at the same time that it agrees that it is supposed to hear the case.)
There are three basic limits contained in the various campaign finance laws. First, there is the limit on what an individual can give to an individual candidate committee for an individual election. These limits have been upheld as avoiding the appearance of corruption that could come from one individual giving a large donation to a candidate's committee. Second, there is a limit on what an individual can give to non-candidate committees, such as party committees, over a two-year election cycle. Third, there is an overall limit on what an individual can donate to all federal committees over a two-year election cycle. (The limit is slightly under $200,000.00.; so 99% of U.S. citizens couldn't even come close to giving the limit.)
The challenge in McCutcheon is to the last limit (although the initial submissions indicate that if the court feels it can't strike down the overall limit without striking down the individual limits, going that extra step will not bother the plaintiffs). The basic preliminary gist of the argument is that the court has held that it is unconstitutional to limit spending. According to the plaintiffs, while the limits on a donation to an individual candidate might be justified (or might not) by the desire to avoid corruption, the overall limit does not aid that purpose and is merely an attempt to put a limit on the ability of donors to spend their money.
Another potential concern is Danielczyk v. United States, a case asking for the Supreme Court to strike down the ban on corporate contributions to political campaigns. The Supreme Court merely passed this case to a later docket and may still reject it, but coming the same week as McCutcheon has to make you speculate about what is going on in the Justice's chambers.
While it is too soon to run around shouting the sky is falling, the past several years have seen a series of mortal wounds (of which Citizen United might be the least significant) to the very concept of a system in which donations are both limited and publicly disclosed. The current trend is heading to the GOP's preferred system of unlimited contributions with limited disclosure. We will see this time next year if the Supreme Court is going to take that next big step toward getting pesky good government folks out of the way of the best government that money can buy.
Some Supreme Court cases are front page news. Others involve technical issues only of interest to attorneys and those in the industry covered by the law (and perhaps consumers). Others have potential to be significant, but get lost behind other cases that have more immediate interest.
This post is about one of those latter cases. With a lot of other cases involving significant issues of public policy coming at the end of the term, a significant decision regarding how campaigns are funded got lost in the shuffle. That case is Knox v. SEIU.
By way of background, in some states, "closed-shop" laws can make belonging to a union (or at least paying union dues) a condition of employment if the workers have opted to join together for collective bargaining purposes. Other laws regulating certain professions (e.g. law) require members of that profession to join an organization representing all members of that profession. In the 1970s and 1980s, the Supreme Court recognized that those represented by these unions and organizations could be assessed and required to pay dues for the core operations of these organizations, members should not be forced to pay dues for any political speech that these organizations wished to engage in. The procedure ultimately established in these cases required that these organizations give members annual notice of the proposed dues, including how those dues would be divided between core expenses and political expenses, and give members the opportunity to opt out of paying the political portion of the dues.
Knox specifically involved a local of the Service Employee's Union in California which represented some public employees. In June 2005, this local sent out its annual notices. Shortly after the annual notices were mailed out, the Republican Governor called for a special election on multiple ballot issues -- two of which would have significantly impacted public employees (by giving the Governor the ability to reduce state appropriations, potentially leading to layoffs or pay cuts) and public sector unions (by replacing the opt-out rules with opt-in rules).
In light of these proposed ballot issues, shortly after the opt-out period had ended for regular dues, the local proposed a special assessment to fund the local's share of the expenses of a coalition of unions opposing these two propositions. While notice of the new assesment was sent to union members, there was no provision allowing members to object to the additional expenditure or opt-out from this additional assessment.
Originally, the District Court found that the local was required to give members notice and the opportunity to opt out of the full amount of the additional assessment. A panel of the Ninth Circuit found that there was nothing wrong with the new assessment and that even employees who had filed an objection to the original notice could be forced to pay a share of the additional assessment (based on the percentages in the original assessment).
Decisions to come shortly on three cases. As decisions come in revese order of seniority, the Health Care cases are expected to be last. How long it takes to reach them will depend on how long the comments from the bench (both by the author and by any dissenters who wish to comment from the bench) take.
Besides the Health Care cases, the other major opinion left outstanding is the Stolen Valor Act -- criminaliing the making of false representations about military honors received. The Roberts Court is developing a reputation for taking a broad view of the Free Speech Clause and a narrow view of traditional exceptions to that clause (and not just in campaign finance cases). I will have more on that in a week or so after I have digested the last two weeks of opinions. This case could confirm that reputation.
Updates will follow as opinions are released and posted.
Update 1: Justice Kennedy has the judgment and plurality opinion in United States v. Alvarez. By a 6-3 vote, the current version of the Stolen Valor Act is unconstitutional. Justice Breyer and Kagan concur suggesting that the problem is the current language in the Stolen Valor Act, implying that a revised version might not violate the First Amendment.
Update 2: Second case (First American dealing with mortgage fees was dismissed). Health Care opinion, per Chief Justice Roberts, finds that individual mandate survives under the Tax and Spend Clause. Medicaid provision apparently "limited." Bottom line appears to be that full Affordable Care Act is constitutional, but may be some restrictions on ability to terminate states from participation in the Medicaid program.
As is not unusual, it is taking a bit of time for opinions to post properly, so will be back around 11:00 a.m. EDT with links to the opinions added in, and a little more clarity on the ACA decision.
Update 3: Justice Roberts issued the opinon of the Court only with respect to the anti-tax injunction and the tax and spend clause. He speaks for himself on the Commerce Clause and Necessary and Proper Clause, and for himself, Justice Breyer, and Justice Kagan on the Medicaid Expansion.
Justice Ginsburg writing for herself and Justice Sotomayor on the Medicaid Expansion finding it fully valid, but agrees with Justice Roberts that Congress would have wanted the penalty provision (cutting off funding from states that did not want to join the expansion) severed if that provision was found unconstitutional. Justice Ginsburg writing for herself, Justice Sotomayor, Justice Breyer, and Justice Kagan would find the mandate consitutional under the Commerce Clause.
A joint opinin for the four dissenters (Scalia, Kennedy, Thomas, and Alito) would find that the individual mandate is not justified by either the Commerce Clause or the Tax and Spend Clause. They would find that the size of the Medicaid program makes it per se coercive. (Note: Their reasoning would arguably invalidate the existing program, not just the expansion.) They would also reject any request for severability.
Justice Thomas also writes separately to suggest that the test of "affecting commerce" is an inappropriate Commerce Clause Test.
Bottom Lines: 9-0 that Anti-Tax Injunction does not apply; 5-4 that the individual mandate violates Commerce Clause (but that finding might be non-binding dicta as); 5-4 that the individual mandate is authorized by the Tax and Spend Clause; 7-2 that the penalty provision of the Medicaid Expansion is an unconstitutional condition but 5-4 that the penalty provision is severable giving states an option to participate in Old Medicaid or New Medicaid.
American Traditions Partnership v. Bullock (son of Citizen's United) is summarily reversed 5-4.
Certiorari granted on 10 cases (meaning December will probably only have five argument days instead of 6).
Opinions in three of the six outstanding cases. Two of the cases are the juvenile life without parole cases which resulted in one opinion written by Justice Kagan (5-4 decision).
The remaining opinion is by Justice Kennedy in Arizona v. United States (SB 1070). Three of the four challenged provisions in Arizona law (the provision making it a crime for an undocument alien being employed, the provision making it a state crime for an undocument alien to be present in Arizona, and the provision allowing the arrest of probable cause of being deportable) are pre-empted by federal law. The provision permitting a check of immigration status during an otherwise valid detention is not pre-empted, as it could be narrowly interpreted to forbid extending the detention for the sole purpose of conducting such a status check. Decision was 8-0 (Justice Kagan recused) on the record check provision; 6-2 on the crime for being an undocument worker, and 5-3 on the other two provisions.
In making his statement regarding his dissent in the Arizona case, Justice Scalia commented on President Obama's announcement regarding suspending deportations of non-criminal undocumented aliens who had been brought here as juveniles.
The U.S. Supreme Court handed down four opinions today, leaving six cases for next week. They have not yet announced if there will be a second date for issuing opinions next week or if all will be handed down on Monday. Among the outstanding cases are the Health Care and Immigration cases.
Two significant cases First Amendment cases were issued today.
First, and very significant to this blog, is Knox v. SEIU (the union dues case). The normal rule in closed-shop states is that, when the annual dues notice is sent, the union must notify what portion of the dues is for union expenses and what portion is for lobbying-type expenses. Union members must then affirmatively opt-out of paying the lobbying portion. In this case, after the initial assessment, the union decided it needed an emergency assessment to respond to two ballot issues. By a 6 (5-1)-3 7(5-2)-2 vote, the Supreme Court found that, for such 100% political emergency assessments, that union members had to opt-in rather than opt out.
The second case is FCC v. Fox(the fleeting obscenities case). This case involved fines issued for "fleeting obscenities" on live broadcasts by Fox and ABC when those obscenieties occurred prior to the FCC issuing a rule clarifying that fines could be imposed for such fleeting obscenities. In an 8(7-1)-0 ruling, the Supreme Court held that it would violate due process to fine Fox and ABC for conduct occurring before the rule was clarified on the grounds that the prior rule was too vague. By making this ruling, the Supreme Court eliminated the need to address whether the current rule penalizing fleeting obscenities violates the First Amendment.
Congress shall make no law respecting an establishment of religion
But hey, this is Pennsylvania. Using Rule 35, the Pennsylvania Assembly said that House Resolution 535 was not controversial, and passed it pretty quickly. Unanimously. A step back: This is part of Rule 35: (full text here)
House resolutions deemed noncontroversial, including, but not limited to, condolence and congratulatory resolutions, shall be considered under the proper order of business on the same day as introduced or within two legislative days thereafter without being referred to committee.
This is the salient part of House Resolution 535, with the full text after the jump.
A RESOLUTION Declaring 2012 as the "Year of the Bible" in Pennsylvania.
Really? Is that not the EXACT thing prohibited by the First Amendment?
I am appalled. And that takes a lot.
I'm not opposed to religion: you want to believe? Fine. Want to not believe? Fine too. But there needs to be a separation of church and state. While to many Christians and Jews, it seems okay to align with Judea-Christian ethics and writings, it's a slippery slope. Once "religion" is allowed as the defining force of a country's government, you end up with Saudi Arabia, Iran, Iraq, Afghanistan, Indonesia, etc., etc., etc. The sole religious country that's okay with me is Vatican City because it's fundamentally non-political. A good question raised in an article is:
One should wager that if Pennsylvania lawmakers were to pass a resolution calling 2012 “The Year of the Koran” noting that the Koran was 'holy scripture' that was the word of Allah, such a resolution would be problematic. Why not, then, concerning the Bible?
“Christianity neither is, nor ever was a part of the common law.” ~ Thomas Jefferson in an 1814 letter to Dr. Thomas Cooper.
“The Government of the United States is not in any sense founded upon the Christian religion.”- George Washington, as stated in the signed Treaty of Tripoli in 1797.
“In no instance have the churches been guardians of the liberties of the people.” ~James Madison
“The purpose of separation of church and state is to keep forever from these shores the ceaseless strife that has soaked the soil of Europe with blood for centuries.” ~James Madison
“I almost shudder at the thought of alluding to the most fatal example of the abuses of grief which the history of mankind has preserved — the Cross. Consider what calamities that engine of grief has produced!” ~John Adams
Even Pennsylvanian sage Benjamin Franklin didn’t think religion was useful in government:
“A Firehouse is more useful than a church.” ~Benjamin Franklin
I am at a loss for words that would fully express my horror at this legislation. In Pennsylvania 88,000 kids were thrown off of Medicaid last fall. The Chester-Upland school district is in bad financial straits, and it's likely that Philadelphia, Allentown and a few other towns are soon to follow Chester-Upland into insolvency. PA has adopted (to start this spring) means testing for Food Stamps, meaning that anyone with $2,001 in assets cannot collect, unlike the 35 states that specifically repudiated means testing for Food Stamps. Fracking is so destroying the northernmost part of the state that it actually causes earthquakes in Ohio, not to mention the decimation of water throughout the state. Pennsylvania has real problems that demand serious legislators and employees dedicated to solving them, and instead, we get a violation of the most fundamental document of America. Again, appalling.
Another Supreme Court term is now mostly in the history books. (Technically, the term ends when the new term begins on the first Monday in October, and the Court could schedule an emergency argument if circumstances warranted, but the regularly scheduled arguments have now all been resolved.)
The numbers for the term (with thanks to the folks at the SCOTUS blog who track most of these things): The Supreme Court decided 82 cases this past term. Seventy-five case had an actual decision after oral argument. Another two cases ended in a 4-4 tie. Five cases were decided summarily without argument (mostly habeas cases from the Ninth Circuit). Justice Kennedy was the key Justice this term in two ways: 1) He wrote the most majority opinions (11 of the 75, with Justice Scalia in second at 10); 2) He was the swing vote in many of the 5-4 cases.
Of the 82 cases, 38 cases were unanimous (20 decided 9-0 and another 18 decided 8-0). There were 22 cases with only one or two dissenters (6 decided 8-1, 4 decided 7-1, 7 decided 7-2, and 5 decided 6-2). There were 4 cases decided by a 6-3 vote, leaving thirteen 5-4 decisisions, three 5-3 decisions and the 2 that were an even 4-4 split. Of those 32 recusals that resulted in 8 justices hearing the case, 29 involved Justice Kagan and 2 involved Justice Sotomayor (not unusual given their prior positions and their time on court) with the remaining recusal being Chief Justice Roberts in the Microsoft case.
Of those 5-4/5-3 splits, fourteen involved Kennedy as the tie-breaker between the four Democratic appointees and the other four Republican appointees. In these 14 cases, Kennedy went with the Republican group 10 times and the Democratic group 4 times. The two other 5-4 involved Scalia or Scalia and Thomas joining the Democrats (or 3 of the 4 Democrats).
With one more day of opinions still to come, and there is sure to be a good one or two to talk about in the morning batch, there is one more from last week that deserves a little bit of comment. That decision was Doe vs. Reed.
This case involved the requirement under Washington state law that referendum petitions are public records and the names of people who sign those petitions to have measures placed on the ballot are open for inspection and copying by any member of the public. Some of the supporters of the recent ballot measure to repeal the state statute giving some rights to domestic partners filed a suit claiming that this provision was unconsitutional. They raised a "facial challenge" which in plain English means that it is unconstitutional in all circumstances. Their basic theory was that the potential that supporters of a ballot measure might have some personal consequences if their neighbors disapproved of their politics could scare them away from signing a petition.
The theory on which this argument was based goes back to the 1950s when the Supreme Court found that, due to the potential for violent actions, the NAACP did not have to disclose the names of its members to the State of Alabama.
In typical U.S. Supreme Court fashion, you had a very divided court. By 8-1, the Supreme Court rejected the facial challenge. The only Justice who find that the mere possibility of a public negative response to a petition made disclosure a per se violation of associational rights was Justice Thomas. The other eight judges split over langauge of how serious the threat of reprisal had to be to support an "as applied" challenge -- one which asserts that the party is entitled to an exemption from a statute because the application of that statute to them would violate their constitutional rights. Six Justices joined the majority opinion (with Scalia and Stevens separately concurring in the judgment). However, of those six, four joined other concurring opinions (basically explaining how they interpreted the majority opinion).
We reported a couple weeks ago that South Carolina Attorney General Henry McMaster told craigslist to remove certain content from their site.
Now, craigslist has filed suit in Federal Court against McMaster, et al. From the blog of Jim Buckmaster, CEO or craigslist:
craigslist has filed suit against SC AG Henry McMaster in federal court in South Carolina, seeking declaratory relief and a restraining order with respect to criminal charges he has repeatedly threatened against craigslist and its executives. [...]
In addition to being unwarranted by the facts, legal experts agree that the charges threatened represent an unconstitutional prior restraint on free speech, and are clearly barred by federal law (sec 230 CDA).
Interestingly, if you read Mr McMaster’s ultimatum carefully, you’ll note that the only way to definitively comply with it is to take down the craigslist sites for South Carolina in their entirety. The open architecture of craigslist, quintessential to the value it provides for users, simply does not allow for the absolute prevention of solicitation or pornography, with respect to any of its categories and functions.
Given Defendant McMaster‘s persistent and continuing public threats, craigslist is presently faced with the untenable choice of either completely shutting down all portions of its website that are directed at South Carolina or else putting itself and its management at risk of imminent criminal prosecution by Defendant McMaster.
In addition to the suit itself, craiglist has asked the court for a temporary restraining order and a preliminary injunction so that they can keep the site active as the case moves through the legal system.
It will be interesting as this is a true free speech case. Like the Nazis marching on Skokie: do you defend the action even if you vehemently disagree with the position?
I read two articles recently that made me think about this topic. The first one is about a 2004 case in the Seventh Circuit, written by Judge Ann Williams, and joined in by Judge Diane Wood. The latter is on many of the SCOTUS short lists, and the former is on some lists. (Yes, the speculation...). Here is their finding:
John Doe was banned for life from all park property in the City of Lafayette, Indiana — including a golf course, sports stadium, and city pools. The City did not provide notice or a hearing before instituting the ban, nor did it allow Doe to appeal its decision. Doe filed suit against the City, arguing that the ban violates his First Amendment right to freedom of thought and a fundamental right under the Fourteenth Amendment to loiter in public parks. The district court granted summary judgment in favor of the City. We reverse, finding the ban violates the First Amendment.
So, we're not even up to "free speech", we're thinking about "free thought."
For the record, the case was reheard en banc by the Seventh Circuit, and Williams' ruling was reversed 8 - 3.
Confused? Here's what you probably don't know:
John Doe is a convicted sex offender. His criminal history includes convictions for child molestation, voyeurism, exhibitionism, and window peeping. His last conviction was in 1991, ten years before this litigation. Doe's crimes were committed in schools, a convenience store, and outside private residences, and he claims that his urges are triggered by emotional vulnerability, typically in the late evening. As a result of these criminal convictions, Doe has been hospitalized, imprisoned, under house arrest, and on probation. He has been in active psychological treatment since 1986, and voluntarily attends a self-help group for sex offenders. Doe admits he still has fantasies about children, and his psychologist opines that he will likely have these urges for the rest of his life, although he recently began taking medication to control his sexual urges.
In January 2000, Doe was driving home from work and began to have sexual thoughts about children. He drove to a City of Lafayette parkand watched several youths in their early teens playing on a baseball diamond. Doe admits that, while observing them, he thought about having sexual contact with the children. After watching them for 15-30 minutes, and without having any contact with them, Doe left the park. Because he was upset about the incident, Doe contacted his psychologist to report the incident. He also reported the incident to his self-help group.
Now the question, which is more important: the First Amendment, or keeping a sexual predator away from "temptation"?
The case concerned the F.C.C.'s rule regarding "fleeting expletives."
The essential facts were that, after the 1970 decision involving Pacifica Foundation and a telecast of George Carlin's bit on "filthy words" the FCC drafted a policy based on its understanding of what that case allowed them to regulate. In 2004, after an incident at the Golden Globes at which Bono used the phrase "f***ing brilliant", the FCC issued an order clarifying that it could penalize even the single use of an expletive. At the time of the Golden Globe order, there were two pending complaints involving award shows on Fox. One involved the 2002 Billboard Music Awards in which Cher described her response to critics who kept on saying that her career was over as "f*** em." The following year at the 2003 Billboard Music Awards in a little of that sparkling self-promoting chatter from the presenters prior to introducing the next act or announcing the award, Nicole Ritchie and Paris Hilton describing their reality show, The Simple Life, stated "Have you ever tried to get cow s*** out of a Prada purse. It's not so f***ing simple." Rather than wait around for potential fines from the FCC, Fox and other parties challenged the finding that those statements subjected Fox to sanctions.
The Second Circuit found for Fox on the basis of the Administrative Procedure Act (a statute governing the making of rules and regulations). In particular, it found that the FCC did not provide sufficient factual support for the change in policy. In doing so, the Second Circuit avoided any direct constitutional issue.
Today, by a 5-4 decision, the Supreme Court found that the Second Circuit had imposed too high a burden on the FCC. They found that under the facts of the case that the stricter approach to such fleeting expletives was sufficiently justified. The story behind the story, however, is what the opinions said about an issue that was not directly in front of the court, the First Amendment and regulation of broadcast tv.