Ilya Shapiro (Author at The Cato Institute)

McDonald v. City of Chicago (Legal Briefs)

Sat, 21 Nov 2009 00:00:00 EST

Last year, in District of Columbia v. Heller, the Supreme Court confirmed what most scholars and a substantial majority of Americans long believed: that the Second Amendment protects an individual right to keep and bear arms. Heller led to the current challenge to Chicago's handgun ban, which raises the question of whether the Fourteenth Amendment protects that right against infringement by state and local governments. The Seventh Circuit answered the question in the negative, finding itself foreclosed by 19th-century Supreme Court decisions. The Supreme Court has agreed to review the case and specifically consider whether the Fourteenth Amendment's Due Process Clause or its Privileges or Immunities Clause is the proper provision for incorporating the Second Amendment right to keep and bear arms as against the states. Cato, joined by the Pacific Legal Foundation, has filed a brief supporting those challenging the handgun ban—who are represented by Alan Gura, who successfully argued Heller—and calling for an overruling of the Slaughter-House Cases, which eviscerated the Privileges or Immunities Clause in 1873. Slaughter-House narrowly circumscribed the rights protected by the Privileges or Immunities Clause, contrary to the intentions of the Amendment's framers and in direct contradiction to the developments in legal theory that underlay its adoption. We also argue that in addition to ignoring the history surrounding the Fourteenth Amendment, the Slaughter-House majority violated basic rules of constitutional interpretation. Finally, restoring the Privileges or Immunities Clause would not result in the demise of substantive due process because the idea at the core of that doctrine—that the Due Process Clause imposes something more than mere procedural limits on government power—was widely accepted when the Fourteenth Amendment was enacted and its authors rightly believed that the Due Process and the Privileges or Immunities Clauses would provide separate but overlapping protections for individual rights.

Palmer v. Waxahachie Independent School District (Legal Briefs)

Thu, 05 Nov 2009 00:00:00 EST

School officials denied student Pete Palmer the right to wear a shirt supporting John Edwards's presidential campaign at his Dallas-area high school. They cited the district's dress code, which prohibited messages on student clothing except for those that supported school activities or district-approved organizations, clubs or teams. The Fifth Circuit agreed with the school district that this was a reasonable "time, place and manner" speech restriction. Applying the test from United States v. O'Brien, the court found that the dress code was content- and viewpoint-neutral, and served an important governmental purpose. Palmer now seeks Supreme Court review, citing seemingly contradictory precedents from the Second and Third Circuits and arguing that the regulation here flies in the face of the protection afforded to student speech by the famous case of Tinker v. Des Moines Independent Community School District. Cato, joined by the Institute for Justice, the Becket Fund for Religious Liberty, the Christian Legal Society, and the National Association of Evangelicals, filed an amicus brief supporting Palmer's petition and urging the continued use of Tinker. We argue that the Court should clarify its jurisprudence in this area to stop schools from applying broad restrictions in an attempt to avoid controversy and debate—and thereby threaten the very political and religious speech at the First Amendment's core. To prevent the chilling of student speech, the Court should solidify Tinker's central tenet, reaffirming that so long as speech doesn't "materially and substantially disrupt" the educational process, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

United States v. Comstock (Legal Briefs)

Wed, 04 Nov 2009 00:00:00 EST

In 2006, Congress passed the Adam Walsh Child Protection and Safety Act, one provision of which authorizes the federal government to civilly commit anyone in the custody of the Bureau of Prisons whom the Attorney General certifies to be "sexually dangerous." The effect of such an action is to continue the certified person's confinement after the expiration of his prison term, without proof of a new criminal violation. Six days before the scheduled release of Graydon Comstock—who had been sentenced to 37 months in jail for receiving child pornography—the Attorney General certified Comstock as sexually dangerous. Three years later, Comstock thus remains confined in a medium security prison, as do more than 60 other similarly situated men in the Eastern District of North Carolina alone. He and several others challenged their confinements as going beyond Congress's constitutional authority and won in both the district and appellate courts. The United States successfully petitioned the Supreme Court to review the case. Cato, joined by Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a brief opposing the government. We argue that the use of federal power here is unconstitutional because it is not tied to any of Congress's limited and enumerated powers. The government's reliance on the Necessary and Proper Clause of Article I, Section 8, is misplaced because that clause grants no independent power but merely "carries into execution" the powers enumerated elsewhere in that section. The commitment of prisoners after their terms simply is not one of the enumerated powers. While the government justifies its actions by invoking its implied power "to establish a federal penal system"—itself a necessary and proper auxiliary to certain enumerated powers—civil commitment is unrelated to creating or maintaining a penal system (let alone any enumerated power). Nor can the law at issue fall under the Commerce Clause, because civil commitment involves non-economic intrastate activity. As the Supreme Court recognized almost 150 years ago in Ex Parte Milligan, "[n]o graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole," than the government's unconstitutional assertion of power against its own citizens. In this spirit, the Court should affirm the Fourth Circuit's rejection of this blatant government overreach.

First Amendment at SCOTUS (Daily Podcast)

Fri, 16 Oct 2009 00:00:00 EDT

Indiana State Police Pension Trust v. Chrysler LLC (Legal Briefs)

Tue, 06 Oct 2009 00:00:00 EDT

In January 2009, Chrysler stood on the brink of insolvency. Purporting to act under the Emergency Economic Stabilization Act, the Treasury extended Chrysler a $4 billion loan using funds from the Troubled Asset Relief Program (TARP). Still in a bad financial situation, Chrysler initially proposed an out-of-court reorganization plan that would fully repay all of Chrysler's secured debt. The Treasury rejected this proposal and instead insisted on a plan that would completely eradicate Chrysler's secured debt, hinging billions of dollars in additional TARP funding on Chrysler's acquiescence. When Chrysler's first lien lenders refused to waive their secured rights without full payment, the Treasury devised a scheme by which Chrysler, instead of reorganizing under a chapter 11 plan, would sell its assets free of all secured interests to a shell company, the New Chrysler. Chrysler was thus able to avoid the "absolute priority rule," which provides that a court should not approve a bankruptcy plan unless it is "fair and equitable" to all classes of creditors. Cato joined the Washington Legal Foundation, the Allied Educational Foundation, and George Mason law professor Todd Zywicki on a brief supporting the creditors' petition asking the Supreme Court to review the transaction's validity. We argue that the forced reorganization amounted to the Treasury redistributing value from senior, secured creditors to debtors and junior, unsecured creditors. The government should not be allowed, through its own self-dealing, to hand-pick certain creditors for favorable treatment at the expense of others who would otherwise enjoy first lien priority. Further, a lack of predictability and consistency with regard to creditors' expectations in bankruptcy will result in a destabilization of existing and future credit markets.

Independence Institute v. Buescher (Legal Briefs)

Mon, 05 Oct 2009 00:00:00 EDT

Article XXVIII of the Colorado Constitution requires any group supporting or opposing a ballot initiative to register as an "issue committee" and comply with many regulations, such as disclosing the identity of anyone who has donated more than $20. Or, should the state find that a group of citizens has as its major purpose supporting or opposing such a ballot issue, state law imposes registration and compliance requirements, including contribution limits. In 2005, political opponents filed a complaint against the Independence Institute for not complying with such regulations when it spoke against a ballot initiative. Although the think tank eventually beat back this challenge, the litigation proved expensive and time-consuming—so the Institute decided to challenge the law as an unconstitutional abridgement of its free speech rights. The Colorado courts rejected those claims, and the Independence Institute, represented by the Institute for Justice, now wants the U.S. Supreme Court to review those decisions. Cato has joined the Wyoming Liberty Group, the Center for Competitive Politics, the Sam Adams Alliance, the Montana Policy Institute, and the Goldwater Institute on a brief supporting the Independence Institute. We argue that Colorado's ballot campaign regulations run roughshod over constitutional protections for political speech and association, which lie at the very heart of the First Amendment—particularly for think tanks and other organizations that regularly comment on public policy matters. Loss of these First Amendment protections will chill think tanks' future attempts to educate the public about issues that are the subject of ballot campaigns. The Court should thus review this case and ensure that citizens maintain their associational rights—including the right to remain anonymous when donating to non-profits—and associations their freedom of expression.

Cato on Upcoming Supreme Court Cases (Scholar Comments)

Fri, 02 Oct 2009 00:00:00 EDT

Continuing its trend from this past term, the Court has further front-loaded its caseload with 56 arguments on its docket before the term has even started. Fortunately, unlike last year, we'll see many blockbuster cases, including:

The applicability of the Second Amendment to the States;
First Amendment challenges to national park monuments and a statute criminalizing the depiction of animal cruelty;
an Eighth Amendment challenge to life sentences for juveniles;
a potential revisiting of Miranda rights;
federalism concerns over legislation regarding the civil commitment of "sexually dangerous" persons;
a separation-of-powers dispute concerning the agency enforcing Sarbanes-Oxley;
judicial takings of beachfront property;
the "reasonableness" of mutual fund managers' compensation.

Perhaps more importantly, we also have a new justice and, as Justice White often said, a new justice makes a new Court. While Sonia Sotomayor's confirmation was never in any serious doubt, she faced strong criticism on issues ranging from property rights and the use of foreign law in constitutional interpretation to the Ricci firefighters case and the "wise Latina" speeches that led people to question her commitment to judicial objectivity. Only time will tell what kind of justice Sotomayor will be now that she is unfettered from higher court precedent and the first term is not necessarily indicative. Key questions for the new Court's dynamics are whether Sotomayor will challenge Justice Scalia intellectually and whether she will antagonize Justice Kennedy and thus push him to the right. We've already seen her make waves at the Citizens United, campaign finance reargumen by questioning the scope of corporations' constitutional rights, so it could be that she will decline to follow Justice Alito's example and jump right into the Court's rhetorical battles.

Pottawattamie County v. McGhee (Legal Briefs)

Fri, 18 Sep 2009 00:00:00 EDT

In 1977, county attorney David Richter and assistant county attorney Joseph Hrvol worked side by side with police to investigate and "solve" the notorious murder of a former police officer in Pottawattamie County, Iowa. The prosecutors fabricated evidence and used it to charge and convict Curtis McGhee and Terry Harrington, sending them to prison for 25 years. After the convictions were overturned for prosecutorial misconduct, McGhee and Harrington sued the county and prosecutors. The defendants in that civil suit invoked the absolute immunity generally afforded prosecutors to try to escape liability. After the Eighth Circuit ruled against them, the Supreme Court agreed to review the case. Cato joined the National Association of Criminal Defense Lawyers and the ACLU on a brief supporting the men unjustly imprisoned. We argue that prosecutors should be responsible for their role in manufacturing a false "case," just as police officers would be under the same circumstances. As the Court has held, prosecutors enjoy absolute immunity only during the prosecutorial phase of a case, not its investigatory phase. Were prosecutors to receive absolute immunity here, citizens would have no protection from or recourse against prosecutors who frame the innocent by fabricating evidence and then using that evidence to convict them.

Graham v. Florida; Sullivan v. Florida (Legal Briefs)

Fri, 18 Sep 2009 00:00:00 EDT

These two cases involve an Eighth Amendment challenge to juvenile sentences of life without parole. Taking no position on the constitutionality (or wisdom) of this type of sentence, Cato joined the Solidarity Center for Law and Justice, the Sovereignty Network, and 10 other groups to urge the Supreme Court not to consider non-binding provisions of international human rights treaties and customary international law in its analysis. Our brief argues that 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 -- in the way the Court has set out in cases such as Medellin v. Texas. It further contends that if the Court believes this is one of the rare cases where international norms are relevant, it should follow the test it laid out in Sosa v. Alvarez Machain, which addressed the (unrelated) Alien Tort Statute: The relevant norm must be widely accepted by the civilized world and as clearly defined as the historic "law of nations" norms regarding safe conduct permits, ambassadorial rights, and piracy on the high seas. The brief also cautions that reliance on non-binding and indefinite international norms will undermine the democratic process and rule of law, casting considerable uncertainty over many U.S. laws.

Jones v. Harris Associates (Legal Briefs)

Fri, 04 Sep 2009 00:00:00 EDT

The Investment Company Act of 1940 places on investment advisers a fiduciary duty with respect to the compensation they receive for the services they provide their clients. In this case, shareholders in various mutual funds contend that their adviser's fees were excessive and violated the ICA. The Seventh Circuit affirmed the judgment of the district court that the fees were not excessive but also expressly disapproved of the Second Circuit's methodology for evaluating such claims. Judge Frank Easterbrook's opinion explains that the ICA creates a fiduciary duty but does not act as a rate regulator, and that judicial price-setting does not accompany fiduciary duties. Judge Richard Posner, writing for five judges, dissented from the denial of an en banc rehearing. The Supreme Court agreed to review case to settle the circuit split. Cato filed an amicus brief in support of the investment adviser. Our brief makes three arguments: 1) All persons have a fundamental human right to whatever compensation their contracting partners freely and honestly choose to pay them; 2) courts have no power to second-guess the reasonableness of any salary or compensation agreement honestly and freely signed by both contracting parties; and 3) the ICA's fiduciary duty requires only fair dealing, not any particular outcome.

Perdue v. Kenny A. (Legal Briefs)

Mon, 31 Aug 2009 00:00:00 EDT

In order to enforce civil rights guarantees, Congress had two choices: either to expand the Department of Justice to cover all civil rights cases, or privatize the system and allow free market principles to encourage private attorneys to prosecute violations. Congress chose the latter, creating a system of market incentives to encourage private attorneys to enforce civil rights and hold elected representatives responsible for the waste of taxpayer dollars lost in the defense of legitimate civil rights violations and repayment of "reasonable" attorney fees. Here a group of attorneys won an important case for foster children in Georgia, and the court awarded them $6 million in fees based on prevailing hourly rates — the "lodestar" method — and an additional $4.5 million enhancement for the exceptional quality of work and results achieved. At Georgia's request, the U.S. Supreme Court decided to review the case and determine whether quality of work and results are appropriately considered components of a reasonable fee. Cato, joining six other public interest legal organizations, filed an amicus brief supporting the attorneys. We argue that the enhancement in this case is necessary to preserve incentives in the privatized market. Not only does it encourage attorneys to pursue civil rights abuses, but it provides a powerful disincentive for governments to draw out litigation in the hopes that attorneys will no longer be able to afford pursue it. In addition, quality of performance and attained results are rightly considered as part of the attorney fee calculus. The enhancement here helps to promote the free market of privatized civil rights prosecutions and encourages governments to resolve civil rights cases quickly.

Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (Legal Briefs)

Wed, 19 Aug 2009 00:00:00 EDT

Seeking to restore beaches damaged by hurricanes, the Florida Department of Environmental Protection began dredging sand from the Gulf of Mexico ocean floor and transporting it to Florida's gulf coast. The expanded area of the beach became state property, depriving beachfront landowners of their littoral rights. In reviewing the landowners' lawsuit against the state, the Florida Supreme Court departed from long-established state law principles protecting littoral property rights and held that littoral rights are an ancillary concept subsumed by the right of access. In so doing, the court discarded 100 years of property law and rewrote the definition of property. The U.S. Supreme Court agreed to review the case. The Court has never formally addressed whether state court rulings eliminating formerly established property rights can effect a taking, or violate an owner's due process rights, under the Fifth and Fourteenth Amendments to the U.S. Constitution. Cato joined the National Federation of Independent Business Small Business Legal Center and the Pacific Legal Foundation on a brief supporting the landowners. We argue that the realities of modern property law, including the authority of state courts to define background principles of property law, necessitate that property owners be protected, via the judicial takings doctrine, against state court decisions that abrogate constitutional rights. Without such protection, states are free to effect takings of private property without compensation by having their judiciaries redefine property rights and thus bypass long-established constitutional protections.

The Sotomayor Vote (Commentary)

Tue, 11 Aug 2009 00:00:00 EDT

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 Sot...

Alvarez v. Smith (Legal Briefs)

Tue, 04 Aug 2009 00:00:00 EDT

The State of Illinois, like most states and the federal government, authorizes police officers to seize property involved in certain drug crimes. Illinois' forfeiture law allows the State to wait as long as six months before having to prove the legitimacy of the seizure, which proceeding may then be delayed indefinitely for "good cause." The six plaintiffs in this case — three of whom were never charged with a crime — had their cars or money seized without a warrant for months or years without any judicial hearing, and sued the state and city authorities for violating their rights to due process. The Seventh Circuit found the Illinois law to be unconstitutional because of the delay between the seizure and the forfeiture proceeding and ruled that the plaintiffs must be afforded an informal hearing to determine whether there is probable cause to detain the property. The Supreme Court agreed to review the case at the request of the Cook County State Attorney. Cato, joined by the Goldwater Institute and Reason Foundation, filed a brief supporting the individuals whose property was seized. Written by David B. Smith, who previously supervised all forfeiture litigation for the Department of Justice and is now the nation's leading authority on civil and criminal forfeiture, the brief makes three arguments: 1) Because the Illinois law, unlike the federal Civil Asset Forfeiture Reform Act of 2000, is stacked in favor of law enforcement agencies and lacks protections for innocent property owners, the Court should apply the due process analysis from Mathews v. Eldridge, rather than the more lenient test the State proposes; 2) What has become known as a Krimstock hearing has proven to be an effective and not overly burdensome means of preventing government delay and a meaningful opportunity to contest seizure; and 3) the State's comparison of the time limits in CAFRA with those in its own law is misleading.

Free Enterprise Fund v. PCAOB (Legal Briefs)

Tue, 04 Aug 2009 00:00:00 EDT

Passed with scant deliberation amid a stock market panic, the Sarbanes-Oxley Act of 2002 vastly expanded the federal government's role in regulating corporate governance and the accounting industry. As part of that effort, Congress created a new agency to "audit the auditors." Known as the Public Company Accounting Oversight Board, the agency has broad rulemaking and enforcement powers to set accounting standards, investigate accounting firms, punish criminal violations, and make whatever rules "may be necessary or appropriate in the public interest or for the protection of investors." Remarkably, the PCAOB (pronounced "peek-a-boo") also has the power to fund its own budget by levying taxes on publicly traded companies. Despite giving the PCAOB all this power, however, Congress insulated it entirely from presidential oversight. Unlike with an ordinary "independent agency," the president has no power whatsoever to appoint or remove PCAOB officials. Those officials may be removed only "for cause" by the SEC, not the president; and SEC officials may themselves be removed only for cause. The Free Enterprise Fund challenged the constitutionality of the PCAOB and appealed to the Supreme Court. Cato's supporting brief focuses on the PCAOB's practical policy consequences, illustrating how the PCAOB's unconstitutional structure has created incentives for out-of-control spending, agency aggrandizement, and lack of coordination between regulators. Our brief also highlights the PCAOB's efforts to impose American accounting standards abroad, which has caused confusion and invited retaliation from foreign regulators.

Citizens United v. Federal Election Commission (Legal Briefs)

Fri, 31 Jul 2009 00:00:00 EDT

At the March 24 argument in Citizens United v. Federal Election Commission, the U.S. government argued that Section 203 of the Bipartisan Campaign Reform Act of 2002 (otherwise known as McCain-Feingold) permits the FEC to ban corporations, including ideological nonprofits like Citizens United, from making independent expenditures on films, books, or even "a sign held up in Lafayette Park." The jurisprudential justification for this extraordinary and shockingly expansive view of the government's power to suppress political speech traces to the Supreme Court's 1990 decision in Austin v. Michigan Chamber of Commerce. In Austin, the Court held that Michigan had a compelling state interest in banning political speech funded with wealth accumulated using the corporate form. Though the Court contended that such speech, because it bears little correlation to public support for the political ideas expressed, constituted a "different type of corruption," in reality it upheld Michigan's statute as a "counterbalance" to the "distorting" and "unfair" influence corporate funds could have on the outcome of elections. This relative-equality rationale — suppressing disfavored speakers to enhance the voice of other government-favored speakers — is antithetical to core First Amendment protections and elsewhere has been expressly rejected by the Court (in Buckley v. Valeo and, more recently, in Davis v. FEC). Accordingly, to decide Citizens United's appeal, the Court ordered rebriefing and reargument on Austin's continuing validity. Cato's brief, the second it has filed in the case, argues that Austin, and the part of McConnell v. FEC that upheld Section 203's facial validity, are not entitled to stare decisis deference and should thus be overturned. These relatively recent decisions are poorly reasoned, have engendered no reliance interests (no one relies on less freedom of speech), and have spawned an unworkable and irrational campaign finance system in which the government rations different levels of permissible political speech to otherwise equally situated speakers. The case will be reargued September 9.

Sonia Sotomayor Has Not Met Her Burden of Proof (Scholar Comments)

Tue, 28 Jul 2009 00:00:00 EDT

The judiciary committee's vote 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.

United States v. Stevens (Legal Briefs)

Tue, 28 Jul 2009 00:00:00 EDT

Although many states have passed laws outlawing acts of animal cruelty, Congress in 1999 for the first time made it a federal crime simply to depict those acts. Under that statute, the government convicted Robert Stevens of selling documentary films containing footage of dog fighting—even though Stevens, a pit bull enthusiast, was opposed to dog fighting and had not engaged in it himself. Seeking to preserve its conviction against a First Amendment challenge, the government took a broad view in the Supreme Court of its power to suppress speech. The government maintained that the "strict scrutiny" test usually applied to content-based speech prohibitions need not apply where speech can be characterized as "unprotected." And although some narrow categories of speech have long been recognized as "unprotected" by the First Amendment (e.g., fighting words, incitement, defamation, obscenity), the government proposed a balancing test that would allow new categories of speech to be carved out from First Amendment protection any time the "societal costs" of the speech are deemed to outweigh its "value." Cato filed a brief supporting Stevens, arguing that the government's position was a dangerous and unprecedented encroachment on the freedom of speech. Our brief canvasses the Court's doctrine to show how inventing a new category of previously unrecognized "unprotected" speech would entail a radical shift in the Court's jurisprudence. Our brief also illustrates how the absence of a limiting principle in the government's proposed balancing test could be used in future cases to impose a host of new speech restrictions—from laws prohibiting "defamation" of religion and hate speech to laws prohibiting the depiction of drug use.

Sotomayor Speaks (Daily Podcast)

Wed, 15 Jul 2009 00:00:00 EDT

IMS Health v. Sorrell (Legal Briefs)

Tue, 14 Jul 2009 00:00:00 EDT

Vermont passed a law prohibiting the exchange of a variety of socially important information. Most notably, the law outlaws the transfer of doctors' prescription history to facilitate drug companies' one-on-one marketing — a practice known as "detailing" — because it believes detailing drives up brand-name drug sales and, in turn, health care costs. The state knew that the First Amendment prevented it from banning detailing itself, so it made the practice more difficult indirectly. Yet data collection and transfer is protected speech — think academic research, or the phone book — and government efforts to regulate this type of speech also runs afoul of the First Amendment. See, e.g., Solveig Singleton, "Privacy as Censorship: A Skeptical View of Proposals to Regulate Privacy in the Private Sector". The First Circuit had earlier upheld a similar New Hampshire law, somehow finding that the statute regulates conduct rather than speech and that, in any event, the judiciary should defer to the legislative branch's judgment. When the Supreme Court declined to review that case (which cert petition Cato supported), Cato joined Pacific Legal Foundation, the Progress & Freedom Foundation, and two trade associations on a brief asking the Second Circuit to split with its First Circuit brethren and reject this dangerous narrowing of protection for free expression. Our brief argues that the Second Circuit should strike the Vermont law for three reasons: 1) the law regulates speech, not conduct, and thus is worthy of First Amendment protection; 2) the law abridges a range of expression that is not "commercial" speech — which, by Supreme Court precedent, is not fully protected; and 3) even if the law regulates "commercial" speech, that speech merits protection under the Court's Central Hudson test.

Ricci and Sotomayor (Daily Podcast)

Wed, 08 Jul 2009 00:00:00 EDT

National Rifle Association v. City of Chicago; McDonald v. City of Chicago (Legal Briefs)

Mon, 06 Jul 2009 00:00:00 EDT

Last summer, in District of Columbia v. Heller, the Supreme Court confirmed what the Framers, most scholars, and a substantial majority of Americans believe: that the Second Amendment protects an individual right to keep and bear arms. Heller led to lawsuits raising the question of whether the Fourteenth Amendment protects that right against infringement by state and local governments. In a consolidated case involving a challenge to Chicago's handgun ban, the Seventh Circuit answered that question in the negative, finding itself foreclosed by 19th-century Supreme Court decisions. Cato, joining with the Institute for Justice, filed an amicus brief supporting requests for the Supreme Court to review that line of precedent. We argue that the Court's initial encounters with the Fourteenth Amendment yielded a profound misreading of its Privileges or Immunities Clause that has haunted the Court's rights jurisprudence ever since. The Chicago petitions present the Court with an unprecedented opportunity to reach back to the very source of that misreading, the 1873 Slaughter-House Cases, and there are three compelling reasons why the Court should do so: 1) the only disagreement among circuit courts in the wake of Heller is whether they are bound by the Court's decisions refusing to apply the right to keep and bear arms against the states; 2) case law and scholarly commentary together form a kind of constitutional conversation, which has arrived at a clear consensus about Slaughter-House that merits the Court's consideration; and 3) the Constitution is not merely a blueprint for government, but a charter of liberty. Accurately placing the Fourteenth Amendment within that tradition would be a virtue in itself and would sharpen the national dialogue regarding the source, nature, and limits of our rights.

Five Questions for Sotomayor (Commentary)

Tue, 09 Jun 2009 00:00:00 EDT

GOP senators should probe her views on key Supreme Court decisions. Whether the Republicans will muster strong opposition to the president's Supreme Court pick is beside the point. The minority on the Senate Judiciary Committee has the opportunity — and the responsibility — to educ...

Sotomayor Pick Not Based on Merit (Commentary)

Wed, 27 May 2009 00:00:00 EDT

In picking Sonia Sotomayor, President Obama has confirmed that identity politics matter to him more than merit. While Judge Sotomayor exemplifies the American Dream, she would not have even been on the short list if she were not Hispanic. She is not one of the leading lights of the federal judici...

Cato Scholars Comment on Obama Supreme Court Nominee Sonia Sotomayor (Scholar Comments)

Tue, 26 May 2009 00:00:00 EDT

In picking Sonia Sotomayor, President Obama has confirmed that identity politics matter to him more than merit.

Judge Sotomayor is not one of the leading lights of the federal judiciary and would not even have been on the shortlist if she were not Hispanic.

She has a mixed reputation, with a questionable temperament and no particularly important opinions in over 10 years on the Second Circuit. Most notably, she was part of the panel that summarily affirmed the dismissal of Ricci v. DeStefano, where the City of New Haven denied firefighter promotions based on an admittedly race-neutral exam whose results did not yield the "correct" racial mix of successful candidates. Sotomayor's colleague José Cabranes—a liberal Democrat—excoriated the panel's actions and the Supreme Court will likely reverse the ruling next month.

If this is the kind of "empathy" the president wants from his judges, we are in for a long summer—and more bitter confirmation battles in the future.