Scalias Worst Opinion

Scalias Worst Opinion

Smith is the well-known “Peyote Case,” in which Scalia, for a 5-4 majority, adopted the most narrow possible reading of the Free Exercise Clause of the Constitution, concluding that the First Amendment’s ban on laws “prohibiting” the “free exercise” of religion stated a non-discrimination rule only. Government could not target specific religious practices for prohibition, and could not prohibit conduct because it is engaged in for religious reasons. But if a “neutral” and “generally applicable” rule had the effect of banning religious practice or religiously motivated conduct, that was not a law prohibiting the free exercise of religion.

Scalia’s reading of the Free Exercise Clause was not entirely implausible: There is at least a colorable argument from the text (and history) that the Free Exercise Clause states a rule about the formal content of government’s rules — that government may not adopt a law that, by its terms, prohibits religious exercise. But the better conclusion (as I argue in today’s piece, and at greater length in my academic writing on the topic) is that the Free Exercise Clause confers an affirmative substantive right to the free exercise of religion, unimpaired by government’s laws, and that this sometimes may indeed confer an immunity, specifically for religious conduct, from government’s usual rules. (What was less plausible was Scalia’s manipulation in Smith of the Court’s prior Free Exercise Clause precedents, which Scalia refashioned into rather unprincipled, incoherent exceptions to his refashioned rule.)

I argue that Smith is a positively perverse reading of the Free Exercise Clause: As the sphere of government expands, the sphere of religious liberty contracts. And it has proved unqualifiedly pernicious in its consequences.

Employment Div. v. Smith. :: 494 U.S. 872 (1990) :: Justia U.S. Supreme Court Center

Employment Div. v. Smith. :: 494 U.S. 872 (1990) :: Justia U.S. Supreme Court Center

Free Speech Is Winning, Thanks to Citizens United

Free Speech Is Winning, Thanks to Citizens United

A new study, “The Business of American Democracy: Citizens United, Independent Spending and Elections,” analyzes state legislative elections that have occurred since the decision and finds that "Citizens United v. FEC was associated with a six percentage-point increase in the likelihood that a Republican candidate would win a state legislative race."

The authors are quick to attribute this Citizens United bump to corporations exercising their First Amendment rights and making expenditures that benefit Republicans, while unions have failed to increase their spending on behalf of Democrats. Don’t forget that for decades unions have had an ability to invest in elections, while corporations have been largely restricted. The Citizens United decision ensured that any speaker--whether an individual, small business, large corporation, or labor union--had a First Amendment right to engage in political speech.
Ultimately, this study shows that the liberals who have spent the past few years demonizing the decision and calling for constitutional amendments to curtail political speech have missed the point and missed the boat. I have no doubt that they’ll seize on this study as a reason to demand more regulation of speech. Certainly, as liberal senators like Chuck Schumer, Patrick Leahy, and Dick Durban plod forward with their short-sighted attempt to amend the Constitution, they will inevitably cite this study as evidence of the need to restrict the First Amendment.
I say to those liberals hell-bent on restricting speech: rather than trying to silence voices and viewpoints you disagree with, join the debate.

Who's the Real Hobby Lobby Bully? - Bloomberg View

Who's the Real Hobby Lobby Bully? - Bloomberg View

Cards on the table: I think that institutions Hobby Lobby and Little Sisters of the Poor are obviously correct -- they are being forced by the government to buy something that they don’t want to buy. We can argue about whether this is a good or a bad idea, but the fact that it is coercive seems indisputable. If it weren’t for state power, the Little Sisters of the Poor would be happily not facilitating the birth-control purchases of its employees; the Barack Obama administration has attempted to force them to do otherwise. The U.S. Supreme Court has ruled that this coercion violates the Religious Freedom Restoration Act, and it must therefore cease.

I think a few things are going on here. The first is that while the religious right views religion as a fundamental, and indeed essential, part of the human experience, the secular left views it as something more like a hobby, so for them it’s as if a major administrative rule was struck down because it unduly burdened model-train enthusiasts. That emotional disconnect makes it hard for the two sides to even debate; the emotional tenor quickly spirals into hysteria as one side says “Sacred!” and the other side says, essentially, “Seriously? Model trains?” That shows in Justice Ruth Bader Ginsburg’s dissent, where it seems to me that she takes a very narrow view of what role religious groups play in the lives of believers and society as a whole.
The second, and probably more important, problem is that the long compromise worked out between the state and religious groups -- do what you want within very broad limits, but don’t expect the state to promote it -- is breaking down in the face of a shift in the way we view rights and the role of the government in public life.

All of us learned some version of “You have the right to your beliefs, but not to impose them on others” in civics class. It’s a classic negative right. And negative rights are easy to make reciprocal: You have a right to practice your religion without interference, and I have a right not to have your beliefs imposed on me.
This works very well in situations in which most of the other rights granted by society are negative rights, because negative rights don’t clash very often. Oh, sure, you’re going to get arguments about noise ordinances and other nuisance abatements, but unless your religious practices are extreme indeed, the odds that they will substantively violate someone else’s negative rights are pretty slim.
I’m not saying that America ever perfectly hewed to this sort of ideal. (Blue laws, anyone?) I’m just saying that the statement of this ideal was perfectly consistent with the broadly held conception of what government was for, which was to provide “public goods” in the classical economics sense,1 but otherwise mostly to keep other people from doing stuff to you, not to do things for you or force you to do them for other people.
In this context, “Do what you want, as long as you don’t try to force me to do it, too” works very well, which is why this verbal formula has had such a long life. But when you introduce positive rights into the picture, this abruptly stops working. You have a negative right not to have your religious practice interfered with, and say your church forbids the purchase or use of certain forms of birth control. If I have a negative right not to have my purchase of birth control interfered with, we can reach a perhaps uneasy truce where you don’t buy it and I do. But if I have a positive right to have birth control purchased for me, then suddenly our rights are directly opposed: You have a right not to buy birth control, and I have a right to have it bought for me, by you.
....
1 Public goods are not “goods provided by the government”; they’re goods that have to be provided by the government, because no one without taxing power can efficiently provide them. Police service is the classic public good because it is nonrivalrous (multiple people can enjoy it) and nonexclusive (you can’t keep other people from enjoying the benefits). If crime goes down, all of us enjoy lower crime, even if we don’t pay taxes. Defense of the borders is another classic public good, and other items such as roads and lighthouses are usually included.

MercatorNet: What the Supreme Court did (and didn’t do) to religious freedom last week

MercatorNet: What the Supreme Court did (and didn’t do) to religious freedom last week

In Hobby Lobby, the Court ruled that a federal law, the Religious Freedom Restoration Act (RFRA), applied to the case, and that it covered “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” The only question that government could consider was not the truth or reasonableness or centrality of the religious belief, but only whether the belief were sincere, which was not doubted in the case of these companies. Interestingly, RFRA had passed in 1993 by overwhelming majorities of both houses of Congress. This is because religious freedom, like free speech, is a vital part of our legal heritage and until recently, viewed as axiomatic.
The Court said that companies were legal persons within the meaning of RFRA, an unexceptional view dating back to the Middle Ages, when the Church, as the Body or Corpus of Christ, was viewed as a corporation with legal personality. Citing William Blackstone, the authoritative expounder of the common law at the time of the American founding, the Court recognized that there were two types of corporations, ecclesiastical and lay, and that lay corporations could also have eleemosynary and religious purposes. (The amicus brief I filed in support of Hobby Lobby for four non-profit corporations made the same point, also citing Blackstone.)
Because of the political firestorm that erupted several years ago when the Supreme Court ruled 5-4 in favor of corporate free-speech rights in the Citizens United case, which President Obama had denounced in his State of the Union address, this question of the First Amendment rights of corporations, and specifically whether for-profit corporations were legal persons, has become politicized. Even so, two of the liberal justices, Justice Stephen Breyer and Justice Elena Kagan, did not join that part of Ginsburg’s dissent that said that for-profit corporations were not legal persons.
As Justice Alito pointed out for the majority, “it is important to keep in mind that the purpose of this fiction [that corporations are legal ‘persons’] is to provide protection for human beings. A corporation is simply a form of organizations used by human beings to achieve desired ends … When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.”
Since corporations, or at least closely-held family-run companies, can claim to exercise religion, the law requires that if their religious exercise is substantially burdened, then the government must show both that it is seeking to achieve compelling government interests, and that it is doing so in the least religiously restrictive way possible: a demanding ends and means test. If the government passes the test, the matter belongs to Caesar. If not, then it belongs to God and the religious conscience of believers.
Justice Kennedy concurred by saying that while free contraceptives for women was a compelling government interest, the government had a lesser restrictive alternative in that it could either provide the contraceptive coverage itself or extend the accommodation HHS was already giving religions non-profits, to for-profit closely-held companies with religious objections. Because he was the swing vote, the majority had to assume for the sake of argument that there was a compelling interest in free contraceptives, though the prevalence of exceptions in the regulation for grandfathered companies, companies with less than 50 employees, and Churches and other religious organizations, makes that very questionable. If it’s so important to government, then why is it handing out exemptions like party favors to all those except for-profit companies with religious objections?
And so the majority ruled that the huge fines the families faced for not covering the abortifacient contraceptives did constitute a substantial burden on their religious practice, and that even assuming a compelling government interest in support of the regulation, the government had failed to show that cost-free access to these contraceptives was the least-restrictive means of achieving its desired goal. Either the government could assume the cost itself, or extend the accommodation it already was giving non-profit employers with religious objections to the mandate.
The Court went on to say that its ruling did not necessarily apply to vaccinations or blood transfusions, not did it provide a shield to employers illegally discriminating on religious grounds. Those matters will have to wait for another day.

I was struck by how over-the-top much reaction to the Hobby Lobby case was, as if, all of a sudden, applying a law intended to protect religious freedom to the facts of a particular case were a threat to civil liberties.
Justice Ginsburg, for example, calls it a “decision of startling breadth,” and demonstrates that she is opposed to RFRA, in spite of the careful hedging of the majority’s opinion. In front of the Supreme Court building the Monday that the decision was issued, there were contending demonstrators. The pro-government contingent had a slogan, “My birth control is none of your business.” Precisely. That’s what the companies were saying: Get your hand out of my pocket.
As James Taranto of the Wall Street Journal pointed out, the Freedom from Religion Foundation’s full-page ad in the New York Times asserted, quoting retired Justice John Paul Stevens, “Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.” Taranto retorted: “Then shut up.” But of course corporations, like the people who comprise them, can be hypocritical too.

No, the Supreme Court’s Hobby Lobby decision is not based upon a scientific mistake - The Washington Post

No, the Supreme Court’s <em>Hobby Lobby</em> decision is not based upon a scientific mistake - The Washington Post

There are reasonable arguments to be made against the Supreme Court’s Hobby Lobby decision, but the charge that the decision is based on science fiction is not among them.  The scientific soundness of a religious objector’s beliefs is not at issue in religious liberty cases and, even if it were, there was a reasonable (if not uncontroversial) basis for the specific factual claims upon which Hobby Lobby’s claim was based.

In Hobby Lobby, the Greens and the Hahns (the owners of Hobby Lobby and Conestoga Wood, respectively) claimed that providing insurance coverage for four forms of contraception would violate their religious beliefs.  They claimed that this is because they believe the four forms of contraception at issue (“Plan B,” Ella, and two types of IUD) are capable of terminating a pregnancy.  In making this claim, the Greens and the Hahns embraced the view that a pregnancy begins at conception, rather than at implantation (which is how pregnancy is defined by most medical authorities and under federal law).  This is not relevant, however.  They could have also claimed that pregnancy begins when a woman is visited by the Flying Spaghetti Monster, and that the challenged forms of contraception chase the Spaghetti Monster away.  Under RFRA, a religious adherent’s beliefs are taken as a given precisely because many religious claims will strike non-believers as strange or incredible.  There’s no scientific evidence for transubstantiation, but that would hardly matter to a RFRA claim that imposed a substantial burden on those who wish to partake in communion.

As Bagley notes further, the federal government accepted the plaintiffs’ characterization of the scientific evidence, if not their conclusion that preventing implantation of an egg is the equivalent of an abortion.  The Food & Drug Administration’s website notes that all four forms of disputed contraception may prevent implantation, as do the FDA-approved labels (as noted in footnote 4 of the government’s brief).  An amicus brief submitted at the certiorari stage on behalf of medical organizations disputes whether it is proper to label these contraceptive methods as “abortifacients,” insofar as they all act before the start of a pregnancy (implantation). Yet, as Ed Whelan notes, the brief also concedes the possibility that these contraceptive methods may prevent implantation.
Assuming, as the weight of current scientific evidence suggests, that it is exceedingly rare for any of these methods to prevent implantation or otherwise cause the termination of a fertilized egg, it is not unscientific to adopt a more precautionary position due to religious or moral concerns, and it is hardly “anti-science” for the courts to accept such a religious belief when evaluating a RFRA claim.  The plaintiffs in Hobby Lobby advanced a claim based on religious belief, and that is how all nine justices on the Court treated it.
Science retains substantial authority in our political discourse.  This makes it appealing to tar one’s political opponents with an “anti-science” brush. Yet in their zeal to affix the “anti-science” label to the Supreme Court, Hobby Lobby critics have gotten ahead of themselves.  Whatever the merits of other critiques of the Hobby Lobby opinion, this one falls apart.

Hobby Lobby wins before the Supreme Court - The Washington Post

Hobby Lobby wins before the Supreme Court - The Washington Post

Text of the decision

Hobby Lobby: The Left Is Weeping Hot, Bitter Tears, and It Should | National Review Online

Hobby Lobby: The Left Is Weeping Hot, Bitter Tears, and It Should | National Review Online

Andrew’s and Molly’s post reflecting the hysterical reaction on the Left to theHobby Lobby decision makes for both entertaining and instructive reading. It’s entertaining because — regarding the issue they claim to care most about, access to contraceptives — the decision blocks exactly no one from obtaining the drugs they choose to purchase. There’s just slightly less free stuff on the market. This is hardlyHandmaid’s Tale territory.
It’s instructive because it demonstrates the extent to which the Left is emotionally and ideologically committed to the power of the regulatory state. For some time, the Left has been selling the public and the courts on the notion that somehow the act of forming a corporation and opening for business operates as an effective waiver of your most basic liberties, including free speech, free exercise of religion, and virtually the entire panoply of property rights. In effect, your business is not “your” business at all, but instead all aspects of its operations exist at the whim of the state, and if the state wants to draft you into its child-killing abortion crusade — or wants to muzzle you during political campaigns – then you best salute and fall in line.
By holding that RFRA protects closely-held businesses, the Supreme Court upheld not just the plain meaning of federal statutes but also common sense.

Citizens United v. FEC

Text of the ruling
http://www.supremecourt.gov/opinions/09pdf/08-205.pdf


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Major limits on the Congress’s powers, in an opinion worthy of John Marshall : SCOTUSblog

Link: http://www.scotusblog.com/2012/06/major-limits-on-the-congresss-powers-in-an-opinion-worthy-of-john-marshall/ (via shareaholic.com)

“The States are separate and independent sovereigns.” So affirms the Court today by a 7-2 vote, in the most important decision ever defining the limits of Congress’s power under the Spending Clause.

While the constitutional implications are tremendous, the practical effect on state budgets may be even greater. Today (and from now on!), states do not need to provide Medicaid to able-bodied childless adults. Likewise, states today have discretion about whether to provide Medicaid to middle-class parents. Undoubtedly, some states will choose to participate in the ACA’s massive expansion of medical welfare, but fiscally responsible states now have the choice not to.

Descent

Descent

via the Air Vent by Jeff Condon on 6/28/12

Today's supreme court "
health sickness care" ruling is an enormous blow to Americans. Our past successes have been created by a governmental philosophy of 'the people know best'. Today we are told that in fact, 'government knows best'. They flat stated, "You will buy OUR soup! or we will Tax you!" As a business owner, I can't even begin to list the horrors which will now extend from this "Constitutional" interpretation even well after the law is struck down. It is very hard to understand how the single most successful culture in world history requires such a radical and truly violent change to what made us successful. Conservative American thoughts become even more incredulous when we consider that most of our health care troubles were created by government in the first place. It is, however, very easy to understand the sales angle – free stuff for those who don't work hard.
As Europe watches, they have been saturated with endless media mis-portraying the US health care system as one which does not provide to those whom cannot pay. The misrepresentation of reality by the global media corporations could not be more disingenuous. In reality, "We the People" GIVE more to the poor more money than ANY country on actual dollar basis. We could do this in the past because we were allowed to own and create wealth at will. What is often forgotten is that America also created the majority of the industrial and medical advances in the world despite our small population (popular disadvantage). A common theme of this blog that shouldn't surprise regular readers is that we all MUST question our information sources a little more vigorously.
NO I am not America centric. I am capitalist centric. America certainly cannot be accused of having the best breeding, best intelligence, finest minds. What we
havehad was a system which allowed people to gain individually for their own efforts. The freedom to express our opinions without oppression. The freedom to make money and not have it stolen by those who haven't even tried to work. In the past, if you built the better mouse trap, you could make a hell of a lot of personal wealth in exchange for your efforts. You still can, but the hidden truth is that the probability of success with your mousetrap is being dramatically reduced. The feedback of recent economically negative forcing will have decades of true lag time.
I am certain that much of Europe is watching America gradually make the transition to the European/Russian/third world government system with an odd feeling of satisfaction. Watching us self-destruct in the same haze they experienced, can give them comfort, but America's future has more than mild global consequences. What is happening now to our country is not a local problem. Europeans should realize that the destruction of the American system is the ruination of what is obviously the best hope for governance of mankind.
That though, is not the point of this post.
Capitalism is a math problem. To me it is of the same family as Mannian multivariate regression using noisy predictors. If you have noisy data (every person has their own unique mind) and you fit it to a predicatand (what everyone wants), by probability, you are guaranteed to maximize the popular result to which we all naturally seek. Despite my present discouragement, few will deny that it is an indisputable societal fact that in all cases, the average of a group of individuals will seek the position to their best advantage.
This leads me to an oxymoron of Republican thought – A capitalist who doesn't believe in evolution. The concept is beyond resolution for me.
So rhetorically speaking, what happens when Americans have free health care, food, and housing handed to them if they can demonstrate that they are poor (unemployed) enough?
I have to tell you, I'm tired of working 15 hour days as a business owner simply to pay massive taxes that are multiples of my pay while listening to lazy, over-payed, government bureaucrats blather that they think WE should pay more for their wonderful service.
Simple math folks. Whether you believe this law is devastating (as I do) or simply another minor step, the math is at a minimum guaranteed to shift some portion of the functionally capable population away from effort.

We Blame George W. Bush - WSJ.com

Link: http://online.wsj.com/article/SB10001424052702304058404577494622616505142.html?mod=djemBestOfTheWeb_h

The second difference is that the result in this decision is likely to be hated by people who aren't immersed in politics. The left hated Bush v. Gore for partisan reasons and hates Citizens United for ideological ones. People who aren't particularly partisan or ideological had no reason to care about either of those rulings. But this one will affect their health care, and a large majority of the public has long been hostile, and rightly so, to ObamaCare.
What's more, Roberts's opinion has made a liar of President Obama, who in a 2009 interview with ABC News insisted that the mandate "is absolutely not a tax increase." He even lectured the network's George Stephanopoulos, who had cited the dictionary definition of tax: "George, the fact that you looked up Merriam's Dictionary, the definition of tax increase, indicates to me that you're stretching a little bit right now. Otherwise, you wouldn't have gone to the dictionary to check on the definition."
In 2008, Obama promised not to raise taxes on middle-class taxpayers. Oops. Maybe he can win back swing voters by telling them the word gullible isn't in the dictionary.

Jeffrey Toobin on Citizens United

Jeffrey Toobin on Citizens United

via The Volokh Conspiracy by Jonathan H. Adler on 5/14/12

(Jonathan H. Adler)
The latest New Yorker has an extensive excerpt of Jeffrey Toobin's forthcoming book, The Oath: The Obama White House vs. the Supreme Court, focusing on the Supreme Court's Citizens United decision. The story, "Money Unlimited: How Chief Justice John Roberts orchestrated the Citizens United decision," is everything you'd expect from a Toobin piece. It's engaging and informative, with exclusive behind-the-scenes reporting of how the decision came to be. This stuff is catnip for court watchers. Yet the article also contains plenty of subtle (and not-so-subtle) spin in service of Toobin's broader narrative of an out-of-control conservative court. As a consequence, Toobin paints a somewhat misleading picture of the case and the Court.

The heart of Toobin's article tells the story of how Citizens United metastasized from a narrow case about the application of federal campaign finance law to an obscure conservative documentary to a significant decision vindicating the First Amendment rights of corporations. As Toobin tells the tale, after the case was first argued Chief Justice Roberts drafted a narrow opinion that would have held for Citizens United on statutory grounds, but leaving the statutory regime intact. The vote would still have been 5-4, but it would have been a far less significant case. Justice Kennedy was not happy with this result, however, and authored a concurrence calling for a broader holding that would rest on First Amendment grounds. Kennedy's concurrence apparently swayed enough of the court's conservatives that Roberts initially acquiesced. Such a broad ruling would be improper, the court's liberals complained, as the broader First Amendment questions had not been briefed and were not properly before the Court. Yet as there was no interest in a narrower holding, the Court ordered a reargument with supplemental briefing that would place the First Amendment question front and center.

Toobin dwells on Justice Stevens' complaint that the Court's broad holding in Citizens United was unnecesary, as the Court could have held for the petitioners on narrower, statutory grounds. Yet as Toobin's own reporting confirms, no one other than Chief Justice Roberts had any interest in resolving the case on such grounds. Even when the case was first argued, not a single liberal justice was prepared to side with Citizens United, in no small part because the statutory argument was so weak.
Toobin criticizes the Deputy Solicitor General Malcolm Stewart for a concession at the first oral argument that may have sealed the government's fate.

Since McCain-Feingold forbade the broadcast of "electronic communications" shortly before elections, this was a case about movies and television commercials. What else might the law regulate? "Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?" Alito said. Could the law limit a corporation from "providing the same thing in a book? Would the Constitution permit the restriction of all those as well?"

Yes, Stewart said: "Those could have been applied to additional media as well."

The Justices leaned forward. It was one thing for the government to regulate television commercials. That had been done for years. But a book? Could the government regulate the content of a book?

"That's pretty incredible," Alito responded. "You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?"

"I'm not saying it could be banned," Stewart replied, trying to recover. "I'm saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its—" But clearly Stewart was saying that Citizens United, or any company or nonprofit like it, could not publish a partisan book during a Presidential campaign. . . .

Stewart was wrong. Congress could not ban a book. McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment.

Yet here it is Toobin who is wrong, not Stewart. The statutory provision at issue was limited to broadcast, cable and satellite communications, and the film at issue was to be shown as a cable on-demand program, but the government never sought to defend the law on the basis that it was limited to electronic media. After all, the point of the was to limit the role of money in campaigns, not limit television advertising. The position the government was defending was that Congress could limit corporate expenditures related to campaigns, not that it could regulate TV. Under this theory, a corporate-funded book with impermissible campaign-related content would receive no more First Amendment protection than a corporate-funded video or film, just as Stewart said. If this is an incredible proposition, that says more about the position the government sought to advance than it does Stewart's oral argument. Campaign finance activist Fred Wertheimer made the same concession when pressed by the NYT. It's true that Solicitor General Elena Kagan would back away from this position when it was her turn to argue the case at the second oral argument, but not without first acknowledging that the statute's language could apply to "full-length books" and that there would, in the government's view, be no problem with banning corporate-funded pamphlets.
Like many of the decision's critics, Toobin suggests Citizens United is best seen as the product of the "aggressive conservative judicial activism" of Chief Justice Roberts and the court's conservative majority.

Citizens United is a distinctive product of the Roberts Court. The decision followed a lengthy and bitter behind-the-scenes struggle among the Justices that produced both secret unpublished opinions and a rare reargument of a case. The case, too, reflects the aggressive conservative judicial activism of the Roberts Court. It was once liberals who were associated with using the courts to overturn the work of the democratically elected branches of government, but the current Court has matched contempt for Congress with a disdain for many of the Court's own precedents. When the Court announced its final ruling on Citizens United, on January 21, 2010, the vote was five to four and the majority opinion was written by Anthony Kennedy. Above all, though, the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.

As Toobin tells the tale, Citizens United is emblematic of the current Court's assault on precedent and the prerogatives of the political branches. It's a nice story, but it's not true. "Judicial activism" is a notoriously malleable charge, but if "judicial activism" is shorthand for striking down federal statutes and overturning judicial precedents, the Roberts Court is the least "activist" court of the post-war period. As a New York Times analysis showed, the Roberts Court strikes down statutes and overturns Court precedents at a slower rate than any of is post-war predecessors, and it's not even close. "Activism" is also a peculiar charge to make about this case, as the dissenting justices were just as reluctant to embrace a narrow statutory holding and were just as willing to overturn precedent as those in the majority. They just sought to move the law in the opposite direction. If Citizens United is supposed to be evidence of unprecedented "activism," it's not clear what "activism" means.

The most interesting parts of Toobin's article are those that disclose how Citizens United was handled inside the Court. This is great stuff, and testament to Toobin's skill as a reporter, but I still have some misgivings. We don't know the identities of Toobin's sources, and some of his claims are difficult to check. His story may reflect how some justices or clerks saw the case, but there may well be another side, and we won't know until such time as the relevant court documents are released. I also cannot help but wonder whether some of Toobin's sources, such as former Supreme Court clerks, may have violated their own ethical obligations in disclosing portions of the Court's internal deliberations. Even if Toobin's sources were sitting or former justices, there is something unseemly about the selective disclosure of what went on inside the Court on such a recent case.

In any event, the article is still worth reading — as I am sure Toobin's book will be as well. Some portions will just go down better with a healthy dose of salt.

UPDATE: Tom Goldstein has a similar reaction to Toobin's narrative about Chief Justice Roberts:

The theme of the piece is that Chief Justice Roberts orchestrated the case's metamorphosis from a narrow ruling about statutory construction to a much broader constitutional decision with sweeping implications for campaign finance.

I should disclose that I am naturally inclined towards that reading of the history. I think that the Chief Justice is quite conservative and a brilliant tactician, including in undoing significant pieces of the legacy of the Court's O'Connor era. I also disagree with the Citizens United decision.

But despite that, while the article is a fascinating and full accounting of the case and the background of the Court's rapid movement to the right, the facts reported by Toobin don't seem to support his conclusions about the Chief Justice.

The Movement: The Left's War on the First Amendment

The Movement: The Left's War on the First Amendment

via Breitbart Feed on 4/28/12

During this Congress, there have been at least 11 resolutions filed by Democrat lawmakers calling to amend the Constitution because of the Supreme Court's decision in Citizens United v. The Federal Election Commission. All of these amendments will chill free speech and would make the Founders cringe. As President of Citizens United, I find it quite disappointing how none of these lawmakers have a clue what the United States Supreme Court actually decided in Citizens United.
Last week, you had Nancy Pelosi saying that with Citizens United, "the Supreme Court had unleashed a predator that was oozing slime into the political system, and that, indeed, is not an exaggeration." Oozing slime – really, Nancy? Having more speech, not less, in the political process is paramount to our democracy. Without robust free speech in political discourse, incumbents have an inherent advantage. That is why President Obama and Democrats in Congress tried so hard to pass an incumbent protection bill, aka the DISCLOSE Act, back in 2010. They failed, and Nancy Pelosi was fired as Speaker of the House.
Then you have former White House Chief of Staff and now Mayor of Chicago Rahm Emanuel spouting off about the Citizens United case on MSNBC this week. Emanuel called the decision "one of the single worst decisions by a court" and said, "It will be a blemish on all of their records for allowing this decision." I'm not surprised to see Rahm Emanuel lash out against Citizens United. Quite frankly, I was a bit disappointed that in the days following our decision the ever-so-subtle Rahm did not send a dead fish or horse head to our offices.
While Rahm has singled out Citizens United, his liberal colleague Senator Charles Schumer took this assault on our decision and the Supreme Court a step further, declaring , "It is the worst decision since Plessy v. Ferguson – I believe that – of the United States Supreme Court."
The Court has made mistakes in the past. Plessy v. Ferguson and Dred Scott v. Sanford certainly stand out. But can one really argue with a straight face that Citizens United, which restored the First Amendment protection of political speech, is the modern equivalent of Plessy or Dred Scott? Bombastic statements like this are proof that liberals do not understand the fundamentals of the Citizens United case and are not interested in knowing the truth about the case.
In 2007, Citizens United sought to promote and broadcast via video-on-demand a film critical of then-presidential candidate Hillary Clinton. Under the speech-stifling provisions of McCain-Feingold, if Citizens United had broadcast "Hillary The Movie"  or run advertisements promoting the film, its officers could have been subject to prosecution and potential imprisonment for up to five years. This means I could have gone to jail for doing the very same thing Michael Moore had done back in 2004 with "Fahrenheit 9/11."   The Supreme Court struck down this piece of the McCain-Feingold law and stated in the opinion for the majority that it's "stranger than fiction for our Government to make... political speech a crime."
That is why it is so disturbing to see 11 constitutional amendments and counting trying to take away free speech. These amendments have been proposed to curtail the right to political speech that was restored by the Supreme Court in Citizens United v. FEC. These proposed amendments take one of two forms --amendments that would deny First Amendment protections to all except "natural persons" and amendments that explicitly grant Congress and the States the power to regulate, limit, or prohibit political contributions and expenditures.
Both forms of amendments, whether seeking to rewrite the First Amendment or seeking to expand the power of incumbents to regulate their challengers, are aimed at chilling political speech and reducing the number of speakers in the political arena. It is always a slippery slope when the government can decide what is free speech. When Barack Obama, Nancy Pelosi, Rahm Emanuel, Chuck Schumer, and others of the crazed left make it their high mission to defeat Citizens United, I know I've struck a chord.
It's no surprise to see liberal incumbents fighting to silence voices of dissent. It's also no surprise that a chorus of liberal special interest groups have joined their fight. Robert Weissman of Public Citizen, Fred Wertheimer of Democracy 21, and even former Republican nominee to the FEC Trevor Potter have utilized their non-profit corporations to fight to overturn Citizens United. I personally don't agree with their crusades to silence the freedom of speech, but as a staunch defender of the First Amendment, I'll fight to my dying day for them to be able to use corporate assets to voice their opinions.
I am sure in the coming weeks and months you will hear a lot of falsehoods about the Citizens United decision. The left's war will only intensify if President Obama loses in the fall, because they will need a scapegoat for their failed liberal agenda. I will wear it as a badge of honor if the Citizens United case is used as a foil by the left. In the end, we won because Citizens United was on the right side of the First Amendment.

Do the Right Thing - WSJ.com

Link: http://online.wsj.com/article/SB10001424052702303816504577319691519829240.html?mod=djemBestOfTheWeb_h

Will Obamacare be upheld by the Supreme Court?  Amazingly, it's not a slam-dunk.
(Amazing to whom?  Well...)

CBS's Mark Knoller tweets the following paraphrase of a related remark: "Pres Obama confident health care law willl [sic] be upheld. Says that view shared by 'a whole lot' of law profs, academics and judges."
This may be the first-ever (if unwitting) presidential acknowledgment of the Taranto Principle, which holds that the liberal media work against the interests of liberal politicians by misleading them into thinking that "everybody" (or "all thinking people") sees the world the way they do. The principle was very much in evidence in the commentary late last week about the left's shocked reaction to the Supreme Court's taking the arguments against ObamaCare seriously

Citizens United: Two Years of Free Speech

Citizens United: Two Years of Free Speech

via Big Government by David Bossie on 1/20/12

Two years ago the United States Supreme Court decided the landmark case of Citizens United v. FEC.  The Court reversed an anomaly in campaign finance law by restoring the First Amendment protection of political speech.

Over the past two years Citizens United's victory has been the subject of countless attacks. It has inspired some members of Congress to attempt to pass legislation to chill political speech, caused the President to chastise the Supreme Court during the State of the Union, and even led to irrational demands that we amend the Constitution to curtail the Freedom of Speech.
Despite the heated rhetoric, little in politics has changed.  Before Citizens United, candidates, independent groups and political parties ran political ads.  Shockingly, the same is true after Citizens United.  Some lament the amount of money spent on political speech, but as George Will has noted, Americans will spend more money on Easter candy than they spend electing a President.
The liberal drumbeat against the decision seems to be led by a group of leftist non-profit organizations.  These groups, with such good governance names as Democracy Unlimited, Democracy 21, Public Citizen, and Common Cause, are fighting to overturn the First Amendment.

One such non-profit organization, Democracy Unlimited, has launched the Move to Amend campaign.  Their campaign hopes to pass a constitutional amendment to curtail the First Amendment.  This group plans to celebrate the second anniversary of the Citizens United decision by staging "Occupy the Courts" protests across the country.  While the corporate-owned press will praise these protests, I have little doubt that if a conservative non-profit employed a similar tactic it would be dismissed as "Astroturf" lobbying, rather than heralded as a populist uprising.  Of course the anti-corporate speech protest is paid for and sponsored by Democracy Unlimited.
When I sued the FEC I was fighting to protect the freedom of speech.  I'm glad to see these liberals and their corporate sponsors exercising that right.

Andrew Sullivan Is Wrong About the Supreme Court and Guns

Andrew Sullivan Is Wrong About the Supreme Court and Guns

via Hit & Run by Damon W. Root on 11/9/11

In a long post titled "The Tea Party's Fatal Delusion," Daily Beast blogger Andrew Sullivan takes aim at the "spasm of ideological abstraction and purism" which he says has gripped the American right since 2008 and manifested itself in all sorts of regrettable ways, from "draconian anti-illegal-immigration initiatives" to "the total denial of climate change." I agree with some of Sullivan's criticisms of the modern conservative agenda and disagree with others, but when it comes to his take on the Supreme Court and the Second Amendment he couldn't be more wrong. According to Sullivan, the right's current "spasm" has included "a Supreme Court happy to find radical new interpretations of the Constitution" such as "turning the Second Amendment into something more radical than anything previously contemplated."
Sullivan refers here to District of Columbia v. Heller, the 2008 decision where the Court held that the Second Amendment protects an individual right—not a collective one—to keep and bear arms. For an allegedly radical piece of conservatism, the individual rights interpretation of the Second Amendment has a curiously distinguished list of liberal admirers. Among them are Harvard law professor Laurence Tribe, a longtime friend and adviser to Barack Obama, whose influential legal textbook American Constitutional Law was revised back in 2000 to endorse the individual rights interpretation of the Second Amendment. The two previous editions, published in 1978 and 1988, respectively, had argued that the Second Amendment protected only a collective right, but subsequent legal scholarship prompted Tribe to change his mind. "My conclusion came as something of a surprise to me, and an unwelcome surprise," Tribe later admitted to The New York Times. "I have always supported as a matter of policy very comprehensive gun control." Not exactly the words of a deranged Tea Party extremist.
Other liberal supporters of the "radical" individual rights interpretation include Yale law professor Akhil Reed Amar, one of the most respected progressive legal historians at work today, who has argued that the Second Amendment secures a "core right to self-protection," and University of Texas law professor Sanford Levinson, whose pioneering 1989 Yale Law Journal article "The Embarrassing Second Amendment" argued that it was time for liberals to take the entire Bill of Rights seriously.
In other words, several decades worth of legal scholarship and activism by players of all political stripes helped create the intellectual consensus that culminated in the Heller decision. It was no right-wing "spasm."
Finally, in regards to Sullivan's dubious assertion that Heller turned "the Second Amendment into something more radical than anything previously contemplated," I submit these decidedly non-radical words from Justice Antonin Scalia's opinion for the Heller majority:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Justice Ginsberg - bad and good news

Bad news:  Justice Ruth Bader Ginsberg has been diagnosed with pancreatic cancer -- a nasty cancer.

Good news: It was caught early, and with luck, they'll have got it all in the surgery.  Keep fingers crossed.

 

Although there are no good ways to go, pancreatic cancer is one of the bad ones.  The only point in its favor is it's usually pretty quick.  But I really hope, for her sake and for her family's sake, they got it all.

 

Besides, I'd like her to hang on until after Obama's term so her replacement can be nominated by a Republican.  :-)

Supreme court filibusters

On NRO today is [Ed Whelan's] essay “The Next Supreme Court Vacancy: There’s plenty of room to confirm another strong justice.” Among other things, the essay discusses the long-established Senate practice of affording every Supreme Court nominee an up-or-down vote on the Senate floor and explores the lone exception to that practice over the past 130 years—the broadly bipartisan filibuster in 1968 of Abe Fortas’s nomination as Chief Justice.

In short, the only filibuster of a Senate floor vote on a Supreme Court nomination was not only bipartisan, it was a broad-gauged opposition for the best of reasons. Fortas simply lacked the personal probity for service on the highest court in the land. Our best historian of Supreme Court nominations, Henry Abraham, calls Fortas's behavior "ill-conceived, arrogantly thoughtless, [and] downright stupid," accounting for his downfall as caused in part by his "personal greed." (These quotes are from Abraham's Justices, Presidents, and Senators, coming out in a new edition this fall.) source

What have Kennedy and Kerry wrought?

Ed Whelan notes that by forcing a vote on cloture, the Democrats have done three things.

1. Absent the filibuster effort, lots of attention would mistakenly have been focused on whether Judge Alito would reach the filibuster-proof level of 60 votes on final confirmation. If he were to fall short of that, the media would proclaim that the vote level sends a warning shot that another nominee like Alito could be filibustered. By forcing an actual vote on cloture, Kerry and Kennedy have deprived the Left of this pretend-filibuster argument.

2. Kerry and Kennedy have turned the wrath of the Left against those 19 Democrats (nearly half the caucus) who voted for cloture.

3. By using the filibuster weapon against a nominee whom the public rightly recognizes to be superbly qualified, Kerry and Kennedy have undermined Democrats’ future use of that weapon.

If you doubt that those 29 Democrats are the subject of anyone's wrath, may I call your attention this post? Terry Karney names "those sonsabitches" in his tirade and recommends his readers give them large pieces of their minds.