Tag: Supreme Court

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.

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.