Tag: Supreme Court

Kagan Nomination Launches Constitutional Debate

As expected, and despite an exhaustive review of shortlist candidates, dead-end leaks about Hillary Clinton, and other distractions, President Obama settled on the long-time prohibitive favorite to be his next Supreme Court nominee.  Elena Kagan became the justice-in-waiting the moment Sonia Sotomayor was confirmed, so you didn’t have to be Tom Goldstein to have predicted this.  The president wanted a highly credentialed non-judge who would serve for a long time and wouldn’t cost too much political capital.  He got a 50-year-old solicitor general and former dean of Harvard Law School – the first female in each post – whose record the Senate (and media, and activists) already examined in a confirmation process that put her into her current post.  That her appointment would put three women on the high court for the first time also doesn’t hurt.

Kagan is certainly not the worst possible nominee from among those in the potential pool – that would’ve been Harold Koh, had President Obama been most inclined to appoint the first Asian-American justice – but others would have been better in various ways.  Although all Democratic nominees would be expected to have similar views on hot-button “culture war” issues like abortion, gay rights and gun control, Diane Wood is a renowned expert on antitrust and complex commercial litigation, for example, and Merrick Garland would almost certainly bring a stronger understanding of administrative law.  Although some on the left are concerned that replacing Justice John Paul Stevens with Kagan “moves the Court to the right,” there is no indication that the solicitor general is anything but a standard modern liberal, with all the unfortunate views that entails on the scope of federal power.  Another concern is her mediocre performance in her current position – the choices of which legal arguments to make from those available to her in defending federal laws in Citizens United and United States v. Stevens, for example, were not strategically sound – though she may well be better suited to a judicial rather than advocacy role.

In any event, with Democrats still holding a 59-seat Senate majority, Elena Kagan’s confirmation is in no doubt whatsoever.  The more interesting aspect of the next couple of months, culminating in hearings before the Judiciary Committee, will be the debate over the meaning of the Constitution and what limits there are to government action.  In an election year when a highly unpopular and patently unconstitutional health care “reform” was rammed through Congress using every procedural gimmick imaginable, voters are more sensitive to constitutional discourse now than they have been in decades.  From bailing out the financial and auto industries to fining every man, woman and child who doesn’t buy a government-approved health insurance policy – and, coming soon, regulating carbon emissions – the Obama administration is taking over civil society at a rate that alarms Americans and fuels both Tea Party populism and interest in libertarian policy solutions (which Cato is happy to offer but wishes were implemented on the front end instead of being invoked as a response to destructive statism).  The Kagan nomination is the perfect vehicle for a public airing of these important issues.

Senators should thus ask questions about the meaning of the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause, to name but three provisions under which courts have ratified incredible assertions of federal power divorced from those the Constitution discretely enumerates.  If Elena Kagan refuses to answer such queries substantively – employing the usual dodge that she may be called upon to interpret these clauses as justice – we can rightfully hold that response against her, as she herself counseled in a law review article 15 years ago.

How the World of Campaign Finance Is Changing

Journalists are looking closely at the DISCLOSE bill, Congress’ response to Citizens UnitedCQ says DISCLOSE will loosen independent spending by the parties on their candidates.

Why is Congress liberalizing party spending? CQ explains:

According to one GOP attorney, opponents of the Supreme Court’s decision are realizing that they will have a difficult time challenging the constitutional right of outside groups to spend money, so this bill is a response to free up the parties to compete.

Mark that. Citizens United has altered the incentives regarding speech. In the past, Congress tried to suppress speech to win elections. Now leaders must liberalize in order to compete for votes.

A Contrarian Cheer for Twombly

My new article, Procedure’s Ambiguity (now up on SSRN and also available here) is a rare bird in the world legal scholarship: it defends the Supreme Court’s much-reviled pleading decisions, Bell Atlantic v. Twombly and Ashcroft v. Iqbal.

It is, in fact, a rare bird even in the small world of articles defending Twombly and Iqbal. Others claim these cases, by directing lower courts to dismiss implausible claims, will deter frivolous suits, save judicial resources, and the like. I find these defenses, while plausible, too speculative and take a very different tack–one that builds on the growing literature on so-called “pluralist” approaches to interpretation. Judicial pluralists favor interpreting ambiguous statutes in ways that mimic approaches to which interest groups would, hypothetically, agree. And Twombly and Iqbal, I argue, are cases after judicial pluralists’ own hearts: They reflect a fair compromise—one, I argue, that mimics the bargain different groups with a stake in procedural rulemaking would, if given the chance, reach among themselves.

Students Have the Right to Free Speech, Too

A northern Texas school district attempted to banish all religious expression from its schools by prohibiting virtually all non-verbal student speech in any school-related context.  Officials used this broad policy to promote an anti-religious orthodoxy and root out any and all religious speech. The Supreme Court made clear, however, in its seminal school speech case, Tinker v. Des Moines Independent Community School District, that students enjoy First Amendment rights, and that core political and religious speech cannot be suppressed without showing that the speech will “materially and substantially disrupt” the educational process.

Here, the Fifth Circuit upheld all of the district’s regulations and found that Tinker did not supply the relevant legal standard.  It instead applied the intermediate scrutiny “time, place, and manner” test of United States v. O’Brien. At issue is whether the school district’s speech policy should be evaluated under Tinker’s “substantial disruption” standard or under O’Brien’s intermediate scrutiny.

Cato, joined by three groups that promote religious liberty, filed a brief asking the Supreme Court to take up the case because the Fifth Circuit’s approach permits schools to enforce sweeping speech codes by which virtually all speech may be prohibited.  Permitting a wholesale content- and viewpoint-neutral ban on all speech or a form of speech as an alternative to the Tinker standard will result in the erosion and eventual elimination of student speech rights.

The name of the case is Morgan v. Plano Independent School District; the Court will likely decide by the end of June whether to hear the case this fall.


‘Taking the Rest of His Life Away’

Upon sentencing a 24 year old to 27 years in federal prison on a drug charge, the Federal Judge Alan Bloch lamented, “I was basically taking the rest of his life away.”

Go here to read about that case, which is coming before the Supreme Court for review.  For related Cato scholarship on sentencing, go here and here (pdf).  For Cato work on the drug war, go here.

George Will on Judicial Activism

George Will offers conservatives a useful reminder about “judicial activism” and what the Supreme Court ought to be doing:

Conservatives spoiling for a fight should watch their language. The recent decision most dismaying to them was Kelo (2005), wherein the court upheld the constitutionality of a city government using its eminent domain power to seize property for the spurious “public use” of transferring it to wealthier interests who will pay higher taxes to the seizing government. Conservatives wish the court had been less deferential to elected local governments. (Stevens later expressed regret for his part in the Kelo ruling.)

The recent decision most pleasing to conservatives was this year’s Citizens United, wherein the court overturned part of the McCain-Feingold campaign finance law. The four liberal justices deplored the conservatives’ refusal to defer to Congress’s expertise in regulating political speech.

So conservatives should rethink their rhetoric about “judicial activism.” The proper question is: Will the nominee be actively enough engaged in protecting liberty from depredations perpetrated by popular sovereignty?

Is The Washington Post Mocking Justice Stevens?

Justice John Paul Stevens has announced that he will retire from the Supreme Court this summer.

My Cato colleagues are weighing in on his “checkered” tenure.   Tim Lee writes, “if you enjoy your iPod and your uncensored Internet access, you have Justice Stevens to thank.”  I certainly appreciate Stevens’ contributions in that area.

On the other hand, Ilya Shapiro laments “the errant jurisprudential path that Justice Stevens blazed so honorably,” and charges that “Stevens admittedly and unabashedly asserted his own policy preferences instead of following the law.”  

When I picked up Saturday’s Washington Post, I wondered if its staff was trying to make the same point.  The front page contains excerpts from three opinions Stevens wrote while on the Court.  (I could not find them on the Post’s web site, so I can’t furnish a link.)  The first is from Bush v. Gore (2000):

Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.  I respectfully dissent.

The second is from Baze v. Rees (2008):

[The death penalty is] becoming more and more anachronisitic… I have relied on my own experience in reaching the conclusion that the imposition of the death penalty “represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.”

And finally, from Citizens United v. FEC (2010):

While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

The first excerpt decries judges who decide cases based on their personal preferences, rather than what the law says.  The other two excerpts show Stevens incorporating his personal preferences into his rulings.

So we must consider the possibility that someone at The Washington Post subtly wanted to poke fun at Justice Stevens.  Unless it was inadvertent, which would make it even more amusing.