Tag: Supreme Court

Beach v. Florida

Cato Adjunct Scholar and Pacific Legal Foundation Senior Staff Attorney Tim Sandefur published an excellent op-ed in the National Law Journal this week on the upcoming Supreme Court case Stop the Beach Renourishment v. Florida Department of Environmental Protection:

The case involves a Florida statute determining the boundaries of oceanfront property. Under a 1961 law, the state drew a brand-new line separating public and private land on certain beaches, meaning that some land that would have been privately owned would belong instead to the state. A group of property owners filed suit, arguing that the law deprived them of property without just compensation, violating the state and federal constitutions.

Last December, Florida’s highest court rejected their arguments. It held that, while the new boundary gave the state ownership of the beach land, the former owners actually had no such right to begin with. Despite more than a century of Florida law to the contrary, the court announced that the owners actually only had a right to “access” the ocean, and because the state promised to allow them to keep crossing the land to reach the water, it actually hadn’t taken anything away when it seized the land itself.

Thus, by simply reinterpreting state property law, the court allowed the state to take property without compensation with a mere stroke of a pen. Yet the U.S. Constitution forbids states from confiscating property - even through legal legerdemain - without payment.

[.]

[T]he U.S. Constitution also guarantees every American’s right to due process of law and to protection of private property. If state judges can arbitrarily rewrite a state’s property laws, those guarantees would be meaningless. More than four decades ago, Justice Potter Stewart warned that, without a constitutional limit on the states’ power to determine the nature of property, states could “defeat the constitutional prohibition against taking property without due process of law by the simple device of asserting retroactively that the property it has taken never existed at all.”

It is well-worth a full read here.

Despite the dreadful decision in the Kelo case several years ago, the fight to maintain the fundamental right to private property continues in our courts and legislatures. Tim and PLF have been doing yeoman’s work in the fight for property rights, and I am proud to team Cato up with them and the NFIB Legal Center in filing an amicus brief on behalf of the rightful property owners in this case. You can download the PDF of the brief here.

Hillary: The Movie

The Supreme Court is soon to hear a case that may drastically roll back campaign finance regulation in the United States:

The case involves “Hillary: The Movie,” a mix of advocacy journalism and political commentary that is a relentlessly negative look at Mrs. Clinton’s character and career. The documentary was made by a conservative advocacy group called Citizens United, which lost a lawsuit against the Federal Election Commission seeking permission to distribute it on a video-on-demand service. The film is available on the Internet and on DVD. The issue was that the McCain-Feingold law bans corporate money being used for electioneering.

The right position for the Court is that McCain-Feingold, and all other campaign finance regulation, constitutes unconstitutional limitation on free speech. This means reversing the Court’s 1974 Buckley v. Valeo decision, which held that government limits on campaign spending were unconstitutional but limits on contributions were not.

This distinction is meaningless. If it is OK for a millionaire to spend his own money promoting his own campaign, why can he not give that money to someone else, who might be a more effective advocate for that millionaire’s views, so that this other person can run for office?

More broadly, campaign finance regulation is thought control: it takes a position on whether money should influence political outcomes. Whether or not one agrees, this is only one possible view, and freedom of speech is meant to prevent government from promoting or discouraging particular points of view.

It would be a brave step for Court to reverse Buckley, but it is the right thing to do.

For more background on the case, watch this:

C/P Libertarianism, from A to Z

Sotomayor Confirmed, Constitutional Debate Continues

All Americans should take pride in seeing our first Hispanic Supreme Court justice (not counting Benjamin Cardozo).  While this moment should have belonged to Miguel Estrada—who was denied even a vote by an unprecedented Democratic filibuster—we should nevertheless celebrate Sonia Sotomayor’s rise from very humble beginnings to reach the highest court in the land.  Although her selection represents the very worst of racial politics—she is not a leading light of the judiciary and would not have been considered had she not been a Hispanic woman—her career achievements show that the American Dream endures.

What makes the American Dream possible, however, is the rule of law, which in this country is ultimately guaranteed by the Constitution.  The Constitution provides for a very specific government structure, with checks on each branch’s powers designed to maximize liberty and eliminate arbitrary and capricious rule.  To that end, officers of the judicial branch—judges—are to make their decisions irrespective of the race, religion, or riches of those who come before them.  And judges are to interpret the Constitution as written text.  If they set aside the text and rule based on their own notions of fairness, then they act as unelected legislators or, worse, extra-constitutional amenders of our founding document.

Nominee Sotomayor knew all this, which is why the testimony she gave at her confirmation hearings disclaimed many of her previous speeches and writings, even going so far as to reject President Obama’s “empathy” standard—the idea that a judge applies the law differently when a litigant is sympathetic in some politically correct way.  While she was evasive most of the time—reason enough to vote against her—when she did say something about judicial philosophy, it was often indistinguishable from the words of John Roberts or Samuel Alito (as evidenced by the frustration of left-wing commentators).  And for good reason: in poll after poll, the American people overwhelmingly support a vision of the judicial role as one of enforcing the law as written, not of imposing their own policy preferences or vision of justice.

Kudos from this exercise go to those Republicans whose hard questions and thoughtful statements elevated the discussion of the Constitution beyond mere abstractions, so Americans could better understand the significance of ideological differences over the judicial role, or the use of foreign law in interpreting the Constitution, or property rights, or employment discrimination.  In walking away from so many controversial positions, Sonia Sotomayor established a new standard to which all future nominees will at least have to pay lip service.  While confirmation was almost a foregone conclusion from the start because of the Democrats’ strong Senate majority, the Republicans played well the cards they had been dealt by engaging in a serious discussion about constitutional interpretation and jurisprudential philosophy.

Senate Panel Endorses Sotomayor

The judiciary committee’s vote to endorse Sonia Sotomayor is not surprising. None of the Democrats are from red states and so have little to fear from voters, while the quixotic Lindsey Graham—in what can only be described as a triumph of hope over experience—was the only Republican to have set aside legitimate qualms and voted for the “wise Latina.” But voting on a Supreme Court nomination is more than a matter of deciding whether a nominee is “qualified”—even if Sonia Sotomayor had been a leading light of the judiciary rather than just the best available Hispanic woman—or deferring to the president. Instead, Senator Dick Durbin had it right when he said during John Roberts’s confirmation hearings that “no one has a right to sit on the Supreme Court” and that the “burden of proof for a Supreme Court justice is on the nominee.”

Given Sotomayor’s repeated rejection of the idea that law is or should be objective or discernible from written text, her inability in oral and written testimony to even state a position on important cases and legal doctrine beyond an acceptance of precedent—by which she would no longer be bound in her new role—leaves me with an abiding concern about the damage she could do to the rule of law in this country. I am similarly hard-pressed to accept hearing-seat conversions that contradict over 15 years of speeches and articles: most notably on the idea that judges’ ethnic backgrounds—and even “physiological differences”—should affect their rulings and on using foreign law to inform constitutional interpretation. Because of her evasion, obfuscation, and doubletalk, I like Sotomayor less now than when she was first nominated.

And so, in following the “burden of proof” paradigm and also respecting the logic of Senator Arlen Specter, who curiously evoked Scottish law at President Clinton’s impeachment trial to vote “not proven,” I would vote that the case for confirming Sonia Sotomayor to the Supreme Court is “not proven”—under American law.

Message to the International Community: There’s Separation of Powers in Honduras

Roberto Michelleti, the interim president of Honduras, has an op-ed in today’s Wall Street Journal that should be read by members of the international community that continue to push for the immediate restoration of Manuel Zelaya to the presidency.

Michelletti states that

“The Honduran people must have confidence that their Congress is a co-equal branch of government. They must be assured that the rule of law in Honduras applies to everyone, even their president, and that their Supreme Court’s orders will not be dismissed and swept aside by other nations as inconvenient obstacles.”

The message is clear: there’s separation of powers in Honduras, and the country’s authorities cannot simply ignore the rulings of both Congress and the Supreme Court in order to reach an agreement. The international community, which is supposedly acting on behalf of democracy, should know that.

Sotomayor Doesn’t Deserve a Supreme Court Seat

Having sat through the entire gavel-to-gavel coverage of last week’s confirmation hearings, I still don’t know if I would vote to confirm Sonia Sotomayor if I were a senator, I really don’t. Deciding how to vote on this is more than a simple matter of deciding whether she is “qualified” to sit on the Supreme Court—which is hard enough given there is no fixed qualification standard.

It also has to include how much deference you want to give the president, in general terms but also taking into account that Sotomayor will likely be confirmed and you want to position yourself politically for the next nominee. And it has to include, of course, how your constituents feel; while it’s cowardly to follow opinion polls blindly, you are accountable to those who sent you to Washington. There are many other considerations, both political and legal.

But I’m not a senator—or even a senator’s aide—so I don’t have to make that decision. As a constitutional lawyer, however, I can say that—even as most of Sotomayor’s opinions are uncontroversial—it is impossible to overlook the short thrift the judge gave to the judicial process in Ricci v. DeStefano and Didden v. Port Chester. I am similarly hard-pressed to accept hearing-seat conversions that contradict over 15 years of speeches and articles: most notably against the idea that judges’ ethnic backgrounds—and even “physiological differences”—should affect their rulings.

Given Sotomayor’s repeated past rejection of the idea that law is or should be objective, stable, or discernible from written text, her inability during her testimony to explain her judicial philosophy—or even state her position on important cases and issues beyond an acceptance of precedent (by which she would no longer be bound in her new role)—leaves me with an abiding concern about the damage she could do to the rule of law in this country. Because of the nominee’s evasion, obfuscation, and doubletalk, I like her less now than I did before the hearings.

And so, on second thought, I do know how I would vote. During John Roberts’s confirmation hearings, Sen. Dick Durbin said that “no one has a right to sit on the Supreme Court” and that the “burden of proof for a Supreme Court justice is on the nominee.” I will follow this very apt “burden of proof” paradigm and respect the logic of Sen. Arlen Specter, the Republican-turned-Democrat former judiciary committee chairman who at President Clinton’s impeachment trial curiously evoked Scottish law to vote “not proven.” Given the impropriety of citing foreign law (another issue on which the nominee failed to explain her “conversion” in hearing testimony), I would vote that the case for confirming Sonia Sotomayor to the Supreme Court is “not proven”—under American law.

Sotomayor Playing Out the Clock

As she began to do more and more yesterday, the nominee has started today’s hearings with a series of painfully drawn-out non-answers to Senator Kyl’s questions.

Kyl is pointing out the conflict between Sotomayor’s claim that in Ricci she was simply following precedent and the Supreme Court’s finding that there was no precedent on point—and so Sotomayor’s panel summary disposition was improper.

Sotomayor’s responses have ranged from explaining again the procedural posture of the case, to references to irrelevant background cases (not binding precedent), to recounting en banc voting procedures in the Second Circuit. It is clear that, even as the Republicans reload and regroup at every break and recess, Sotomayor has been counseled to talk and talk—again, in an excruciatingly slow rate—without really saying anything.

CP Townhall