Tag: Justice Stevens

Another New Supreme Court Term, Another New Justice

Today is the first Monday in October, the traditional start of the Supreme Court term.  While we have yet to see as many blockbuster constitutional cases on the docket as we did last term—which, despite the high profile 5-4 splits in McDonald v. Chicago and Citizens United actually produced fewer dissents than any in recent memory—we do look forward to:

  • Two big free speech challenges, one over a statute prohibiting the sale of violent video games to minors, another the offensive protesting of a fallen soldier’s funeral;
  • An Establishment Clause lawsuit against Arizona’s tax credit for private tuition funds (an alternative to educational voucher programs);
  • Regulatory federalism (or “preemption”) cases involving:
    • safety standards for seatbelts;
    • an Arizona statute regarding the hiring of illegal aliens; and
    • the forbidding of class-arbitration waivers as unconscionable components of arbitration agreements;
  • Important ERISA and copyright cases;
  • A case examining privacy concerns attending the federal government’s background checks for contractors; and
  • A criminal procedure dispute regarding access to DNA testing that may support a claim of innocence.

Cato has filed amicus briefs in several of these cases—and in various others which the Court may decide to review later this year—so I will be paying extra-close attention.

Perhaps more importantly, we again have a new justice—and, as Justice White often said, a new justice makes a new Court.  While her confirmation was never in any serious doubt, Elena Kagan faced strong criticism (including from me) on a variety of issues—most importantly on her refusal to “grade” past Court decisions or identify any specific limits to government power.  The 37 votes against Kagan were the most ever for a successful Democratic nominee, which is emblematic of a turbulent political environment in which the Constitution and the basic question of where government derives its power figure prominently.  

Given Kagan’s political and professional background, it is safe to assume that she’s not the second coming of Clarence Thomas.  And because she replaces the “liberal lion” Justice Stevens, her elevation from “tenth justice” (as the solicitor general is known) to ninth is unlikely to cause an immediate change in issues that most divide the Court—particularly because she is recused from nearly half the cases this term.  She could, however, add an interesting and nuanced perspective on a variety of lower-profile issues.  Only time will tell what kind of justice Kagan will be now that she is, seemingly for the first time in her ambitious life, unconstrained to speak her mind.

Here’s to another interesting, varied, and (hopefully) liberty-enhancing year!

Today’s Other Big Bad Supreme Court Opinion

As Wally points out in his Supreme Court/Kagan roundup, the Court did further damage to principled constitutional interpretation in citing foreign law as support for its holding that life-without-parole (LWOP) sentences are unconstitutional as applied to juveniles committing non-homicide crimes.  As I blogged when we filed a brief in the case, Graham v. Florida, “Cato takes no position on the wisdom of these types of sentences, but when evaluating their constitutionality the Court should only consider American law.”

That is, regardless of the criminological or moral merits of juvenile LWOP sentences, the Court ought not consider non-binding provisions of international human rights treaties, other countries’ laws, or customary international law in its analysis (as it unfortunately has in several death penalty cases).  The Court should leave to the political branches the decision of whether to transform international norms into domestic law and only allow duly ratified international agreements to override domestic law — as I’ve also described in the Cato Supreme Court Review. Reliance on indefinite international norms undermines both the democratic process and the rule of law, casting considerable uncertainty over many U.S. laws.  Although looking to international example is prudent when designing constitutions and drafting legislation, it is simply not relevant to interpreting the nation’s founding document.

There are other problems with Justice Kennedy’s opinion.  For example, apparently the fact that 37 states plus the District of Columbia allow juvenile LWOP sentences does not mean that there is a national consensus.  This is so even though a similar number of states did constitute a consensus against the death penalty for an adult’s rape of a child in Kennedy v. Louisiana (which Roger discussed in the pages of the Supreme Court Review) – even though there the federal government itself had recently passed a law authorizing the death penalty for such an offense!  The point is that the whole idea of “consensus”-based constitutional interpretation is flawed.  As Josh Blackman and I wrote in our Privileges or Immunities Pandora’s Box article:

If the Supreme Court could not properly analyze the extent of the consensus among state laws governing the sentencing of child rapists, an area that any first-year law student could understand with the proper Lexis search, how can we expect judges to understand consensuses on nebulous and polarizing social issues – on which public opinion ebbs and flows – such as the right to health care, the right to education, or reproductive rights?

Moreover, what constitutes a national consensus?  Half the population? Two thirds?  Ninety percent?  To paraphrase Justice Brennan’s quip, why not whatever five duly confirmed justices think?  Should the Court commission its own Gallup Poll?  What standard should the consensus be based on?  How long should it exist?  These are inherently subjective determinations, not reducible to judicially or legislatively manageable standards.

Finally, Eugene Volokh points out the judicial policy-making (the imposition of a judge’s own views) inherent in Justice Stevens’s concurring opinion – likely the senior associate justice’s last pronouncement on the death penalty.  And for more on the case generally, see Lyle Denniston’s write-up at SCOTUSblog.

In short, this is a dog’s breakfast of a case – again, regardless of what one thinks about the underlying criminological/moral issues – and truly an unfortunate day for principled jurisprudence and constitutional limits on power (in Graham’s case, judicial power).

John Paul Stevens, Defender of High-Tech Freedom

I’m saddened to hear of the retirement of Justice John Paul Stevens. Whatever you might say about his jurisprudence in other areas, one place where Justice Stevens really shined was in his defense of high-tech freedom.

Justice Stevens wrote the majority opinion in some of the most important high-tech cases of the last four decades. In other cases, he wrote important (and in some cases prescient) dissents. Through it all, he was a consistent voice for freedom of expression and the freedom to innovate. His accomplishments include:

  • Free speech: Justice Stevens wrote the majority decision in ACLU v. Reno, the decision that struck down the infamous Communications Decency Act and clearly established that the First Amendment applies to the Internet. In the 13 years since then, the courts have repeatedly beat back attacks on free speech online. For example, Justice Stevens was in the majority in ACLU v. Ashcroft, the 2004 decision that struck down another attempt to censor the Internet in the name of protecting children.
  • Copyright: Justice Stevens wrote the majority opinion in the 1984 case of Sony v. Universal, the case in which the Supreme Court upheld the legality of the VCR by a 5-4 vote. The decision, which today is known as the “Betamax decision” after the Sony VCR brand, made possible the explosion of digital media innovation that followed. When the recording industry tried to stop the introduction of the MP3 player in 1997, the Ninth Circuit cited the Betamax precedent in holding that “space shifting” with your MP3 player is permitted under copyright’s fair use doctrine. The iPod as we know it today probably wouldn’t exist if Sony had lost the Betamax case. Justice Stevens also wrote an important dissent in the 2003 decision of Eldred v. Ashcroft, in which he (like the Cato Institute) argued that the Constitution’s “limited times” provision precluded Congress from retroactively extending copyright terms.
  • Patents: The explosion of software patents is one of the biggest threats to innovation in the software industry, and Justice Stevens saw this threat coming almost three decades ago. Stevens wrote the majority decision in the 1978 case of Parker v. Flook, which clearly disallowed patents in the software industry. Three years later, Stevens dissented in the 1981 case of Diamond v. Diehr, which allowed a patent on a software-controlled rubber-curing machine. Although the majority decision didn’t explicitly permit patents on software, Stevens warned that the majority’s muddled decision would effectively open the door to software patents. And he has been proven right. In the three decades that followed, the patent-friendly U.S. Court of Appeals for the Federal Circuit has effectively dismantled limits on software patents. And the result has been a disaster, with high-tech firms being forced to spend large sums on litigation rather than innovation.

So if you enjoy your iPod and your uncensored Internet access, you have Justice Stevens to thank. Best wishes for a long, comfortable, and well-deserved retirement.

Stevens Retirement Ill-timed for Dems

The retirement of Justice John Paul Stevens at the end of the Supreme Court’s current term, and the coming nomination and confirmation process, will doubtless further complicate and delay the Obama administration’s already complicated agenda during this mid-term election year. And the timing cannot be good news for Democrats running for reelection, because the process will serve to highlight their understanding of the Constitution as a document authorizing all but unlimited government in a year in which, thanks to the Tea Party movement, the Constitution is likely to have a prominent place in reelection debates.

Regarding a replacement for Justice Stevens, the nominee will almost certainly come from the Democratic Party’s liberal ranks. As a result, the ideological complexion of the Court is not likely to change, since Justice Stevens, especially in recent years, has been the most reliable liberal vote on the Court, whether on abortion, campaign finance, gun rights, affirmative action, or several other hot-button issues. As the press reviews those decisions over the coming weeks and months, therefore, controversy over the Court will be in the air, adding to what already promises to be a very political year.

Predictions for 2010

I was just listening to the December CatoAudio interview with Tom Palmer and Ian Vasquez about the fall of the Soviet empire 20 years ago, and Tom mentioned that even as late as October 7, 1989, when the East German government held a gala celebration of its 40th year in power, no one anticipated that within a month the Wall would open and communism would come to an abrupt end in eastern Europe.

And then I looked at the predictions of various scholars and pundits at Politico’s Arena one year ago today and noticed how wrong most of them were – Terry McAuliffe would be elected governor of Virginia, Rod Blagojevich would still be governor in April, Iran would test a nuclear weapon, several Republican members of Congress would switch to the Democratic Party (!), Justice Stevens would retire. No one predicted the surge of small-government, anti-spending sentiment, which was arguably the top political story of 2009.

And then, looking up who said “Nobody knows anything” (screenwriter William Goldman, about Hollywood), I stumbled on this blog post from October 2008:

I pulled from my desk drawer a copy of the Wall Street Journal from Wednesday, May 23, 2007.

It was not a particularly notable day.  The bull market was in force, and the Dow was hitting new highs … even though gasoline prices were at record levels.  But here at Cabot we had been noting a growing divergence in the market; both the NYSE Advance-Decline Line and the Nasdaq had failed to confirm the Dow’s high.  Also, we detected a high level of optimism among both investors and the general media.  So I saved The Wall Street Journal, in part because of the lead article that announced, “Why Market Optimists Say This Bull Has Legs.”

The subhead of the article followed with, “They See Decade of Gain Fed by Global Growth; Skeptics Cite Big Doubts.”…

So I reread the article and what did I find?  Fundamental talk about global growth, low interest rates and a technology revolution that would boost productivity.  [One bull] even had the courage to utter the phrase that makes an experienced investor quail, ” … it really is different this time.”

Also given ink were the detractors, who claimed that reversion to the mean was inevitable, that low interest rates couldn’t last, and that the weak dollar and above-average P/E ratios would eventually pull the market down.

But here’s what I found interesting (in hindsight):  Not once in the entire article did anyone mention credit!!!

Today, we know from our rearview mirror that credit was the culprit of a decline that has crushed the global financial system.  But just 17 months ago, a reporter looking for reasons the bull might not last found no one mentioning credit!

All of which is to explain why you’re not going to find any predictions for 2010 in this post.

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Supreme Court Wastes Time, Money, and Opportunity to Protect Property Rights and Due Process

Yesterday the Supreme Court released its first four opinions in cases argued this term, the latest first-opinion release in recent history.  The only one that interests me – and it’s not Justice Sotomayor’s maiden effort – is the civil forfeiture case, Alvarez v. Smith.

Civil forfeiture, the practice in which the police seize cars, money and other kinds of property that they say has some connection to crime, can raise various legal and policy issues — from property rights to due process.  The question in Alvarez was the basic one of whether people seeking to get their property back are entitled to a prompt hearing before a judge.

I blogged about the case here, and Cato adjunct scholar Ilya Somin wrote about it here. Cato’s also filed a brief in the case supporting the individuals whose property was seized.

Unfortunately, because all underlying disputes had been resolved by the time of oral argument – cars had been returned and the individuals have either forfeited their cash or accepted the state’s return of some of it – the Court determined the case to be moot.  It thus vacated the lower court’s opinion and remanded with instructions for that court to dismiss the case.

And that’s a shame.  While the dispute does seem to be moot with respect to the particular petitioners, this is obviously a situation “capable of repetition” but “evading review” – along the lines of that little-known case of Roe v. Wade.  That is, just like the case of a pregnant woman is moot within nine months, disputes over civil forfeiture get resolved one way or the other long before the slow turn of litigation reaches the Supreme Court.  By avoiding the merits of this case, the Court guarantees that the important constitutional questions presented by this case remain perpetually unresolved.

What is more, by vacating the Seventh Circuit’s opinion – an extraordinary remedy – the Court deprives Illinoisans of a well-reasoned and just ruling that could be used as precedent in future cases.  It also – and this is no small matter – wastes the time, effort, and resources of the parties and their attorneys, taxpayers (who obviously paid for the petitioners’ legal work here, as well as that of the judiciary), and, of course, amici (including Cato).

Justice Stevens was correct in his partial dissent: if the Court disagrees with the argument I made in the preceding paragraph, it should have applied the general rule against vacating judgments that have become moot because the parties settled.  The proper disposition here would have been to DIG the case – dismiss the writ of certiorari as improvidently granted (which allows the lower court ruling to remain on the books undisturbed).