Tag: Supreme Court

The Sotomayor Hearings

judgesotomayorNothing has changed in the six short weeks since Sonia Sotomayor was nominated to the Supreme Court: she remains a symbol of the racial politics she embraces. While we celebrate her story and professional achievements, we must realize that she – an average federal judge with a passel of unimpressive decisions – would not even be part of the conversation if she weren’t a Hispanic woman.

As Americans increasingly call for the abolition of affirmative action, Sotomayor supports racial preferences. As poll after poll shows that Americans demand that judges apply the law as written, the “wise Latina” denies that this is ever an objective exercise and urges judges to view cases through ethnic and gender lenses.

At next week’s hearings, Sotomayor will have to answer substantively for these and other controversial views – and for outrageous rulings on employment discrimination, property rights, and the Second Amendment. To earn confirmation, she must satisfy the American people that, despite her speeches and writings, she plans to be a judge, not a post-modern ethnic activist. After all, a jurisprudence of empathy is the antithesis of the rule of law.

The Roberts Revolution to Come

As I mentioned yesterday, the U.S. Supreme Court surprised many people by ordering a reargument in the case of Citizens United v. Federal Election Commission. Specifically, the Court called for the parties to the case to address the question of overruling Austin v. Michigan Chamber of Commerce.

The Court decided Austin v. Michigan Chamber of Commerce in 1989.  The state of Michigan had prohibited corporations from spending money on electoral speech. In the case in question, the Chamber of Commerce wished to pay for an advertisement backing a candidate for the House of Representatives. The Chamber took this action on its own and not in tandem with the candidate or his party.  Paying for the ad was a felony under Michigan law.

A majority of the Court in 1989 said the Michigan law did not violate the First Amendment. However, the majority had a problem. Previous cases permitted limits on funding electoral speech only in pursuit of a compelling state interest: the prevention of quid pro quo corruption or its appearance. The Court had also ruled that independent spending by groups could not corrupt candidates.

So the majority needed a novel rationale for approving Michigan’s suppression of speech. The majority concluded that speech funded by corporations would distort the democratic process and that the state could prohibits such outlays to prevent harms done by “immense wealth.” In other words, the Austin majority tried to redefine “corruption” as “inequality of influence.” That revision had its own set of problems. Buckely v. Valeo, the Ur-decision in campaign finance, had excluded equality as a compelling state interest justifying regulation of campaign finance.

It is easy to see why the Buckley Court had rejected equality of influence as a reason for restricting political speech. Imagine Congress could prohibit speech that had “too much influence.” But how could that be determined? A majority in Congress would be tempted to suppress speech that threatened the power of that majority.  Paradoxically, the equality rationale would strengthen those who already held power while vitiating representative government. The First Amendment tries to prevent that outcome.

In last year’s decision in Davis v. FEC, the Court again rejected the equality rationale for campaign finance laws.  More and more the Austin decision is looking like bad law.

Justices Kennedy and Scalia, both current members of the Court, wrote dissents in Austin. Justice Thomas has called for Austin to be overruled in other contexts.  Neither Justices Roberts nor Alito is likely to vote to uphold Austin (or the relevant parts of McConnell v. FEC for that matter). But it would seem that either or both of them were unwilling to strike down a precedent without a formal hearing. That hearing will come on September 9 with a decision expected by Thanksgiving.

Almost six years after the Court utterly refused to defend free speech in McConnell v. FEC, the Roberts Court may be ready to vindicate the First Amendment against its accusers in Congress and elsewhere.

Citizens United Case to Be Reargued in Supreme Court

The U.S. Supreme Court has decided not to decide in its current term the campaign finance case, Citizens United v. Federal Election Commission. Instead, the Court issued an order that the case should be reargued. The parties in the reargument should address the question of whether the Court should overrule two of its earlier decisions. In the Austin v. Michigan Chamber of Commerce, the Court held that state legislatures may prohibit spending by businesses on electoral speech. In McConnell v. Federal Election Commission, the Court validated limitations on electoral speech in McCain-Feingold.

The Court could have decided Citizens United on relatively narrow grounds. Instead, it has explicitly drawn into question two of its precedents upholding limitations on political speech. It seems likely that five members of the Court are prepared to overrule both precedents, but at least one justice was unwilling to do so without a formal argument.

We appear to be on the brink of a significant liberalization of campaign finance law.

For more on this important case, see below:

The Ricci Ruling: A Victory for Merit over Racial Politics

Ricci is a victory for merit over racial politics—which is appropriate given that the ruling overturns a lower court panel that included Sonia Sotomayor.

In the blockbuster decision we’d been awaiting all term, the Court reached the correct result: The government can’t make employment decisions based on race. While the city’s desire to get more blacks into leadership positions at the fire department is commendable, it cannot pursue this goal by denying promotions simply because those who earned them happen to have an inconvenient skin color.

This ruling is the latest in a series of steps the Court has taken to strike down race-conscious actions that violate individual rights—and thus is a blow both to the Obama administration (which sided with the city in Ricci) and to the nomination of Judge Sotomayor. Those who bring cases before the courts deserve much more than empathy or even “sympathy”—the word Justice Ginsburg uses in her dissent—they deserve equal treatment under the law.

Supreme Court Rules on Ricci v. DeStefano

In its opinion today in Ricci v. DeStefano, the Supreme Court came down solidly for upholding the equal protection of the law.

The political implications of this decision for the Sotomayor nomination are several, but her refusal to wrestle with the important issues at stake and to side summarily with the city, together with her many statements off the bench about “identity politics,” should make for very interesting confirmation hearings just two weeks ahead.

The Court reversed the decision of the Second Circuit panel on which Judge Sonya Sotomayor sat, which had upheld, summarily, the lower court’s decision to allow the city of New Haven to throw out the results of a racially neutral promotion exam for city firefighters after whites did better than blacks on the exam.

As the Court said, all the evidence suggests that the city rejected the test results because the higher scoring candidates were white. The city’s rationale for engaging in this intentional discrimination was to avoid a suit by black firefighters. But the city could take the position it did only if there were strong evidence that its test was racially biased or not job related or that there was some other equally valid non-discriminatory test that the city refused to administer. There was no such evidence, the Court concluded. Had the city been sued by the black firefighters, it would have won.

Thus, it’s rationale for throwing out the test results will not withstand scrutiny. The city engaged in outright intentional discrimination.

One Year After Heller

One year ago today, the Supreme Court handed down its decision in District of Columbia et al. v. Heller. The decision affirmed the Second Amendment as protecting an individual right to keep and bear arms and invalidated the District of Columbia’s draconian gun control regime.

The case generated a storm of media attention. The Cato Institute filed an amicus brief, one of nearly four dozen in the case.

The Cato Institute held a forum for Brian Doherty’s book chronicling this victory for liberty, Gun Control on Trial: Inside the Supreme Court Battle Over the Second Amendment. The Heller case also figured prominently in Cato multimedia from Robert A. Levy and Clark Neily.

Heller did not settle all of the questions related to the right to keep and bear arms. The incorporation of the Second Amendment against state bans and regulations is currently being litigated across the country. A three-judge panel in the Court of Appeals for the Ninth Circuit held that the Second Amendment is incorporated against the states. The Seventh Circuit and Second Circuit disagreed. Supreme Court nominee Sonia Sotomayor was on the Second Circuit panel that declined to incorporate the Second Amendment, and Roger Pilon notes that this may play into her confirmation hearings. The circuit split on incorporation sets the stage for a further appeal to the Supreme Court, and Alan Gura and the National Rifle Association have both filed petitions for a writ of certiorari. Robert A. Levy discusses this in his recent Cato podcast.

It will be interesting to see what the next year brings for the Second Amendment.