Ilya Shapiro (Author at The Cato Institute)

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.

Boy Scouts of America v. Barnes-Wallace (Legal Briefs)

Tue, 05 May 2009 00:00:00 EDT

The City of San Diego leases portions of Balboa Park and Fiesta Island to the San Diego Boy Scouts, which use the land to operate a camp and aquatic center. The Boy Scouts use the leased areas for their own events but otherwise keep them open to the general public — and have spent millions of dollars to improve and maintain facilities on the properties, eliminating the need for taxpayer funding. While the Boy Scouts' membership policies exclude homosexuals and agnostics, the Scouts have not erected any religious symbols and do not discriminate in any way in administering the leased parklands. Nevertheless, a lesbian couple with a son and an agnostic couple with a daughter challenged the leases under the establishment clauses of the U.S. and California Constitutions. Although none of the plaintiffs have ever tried to use the parklands or otherwise had any contact with the Boy Scouts, the Ninth Circuit found they had standing to proceed with their lawsuit because they were offended at the idea of having to contact Boy Scout representatives to gain access to the facilities. The court denied en banc review over a scathing dissent by Judge Diarmuid O'Scannlain. The Boy Scouts have asked the Supreme Court to review the case — whose outcome conflicts with other federal courts of appeal — and Cato joined the Individual Rights Foundation in filing a brief supporting that petition. Cato's brief argues that the Ninth Circuit's decision dangerously confers standing on anybody wishing to challenge the internal policies of expressive associations having any business with local government; chills public/private partnerships of all kinds for reasons disconnected from the beneficial services civic organizations provide the public; and generally represents a radical extension of standing jurisprudence — opening the courthouse doors to anyone claiming to be subjectively offended by any action and manufacturing litigation out of political debates.

Souter: End of An Error (Scholar Comments)

Fri, 01 May 2009 00:00:00 EDT

You could call it "the end of an error."

David Souter, the "stealth justice" picked mainly to avoid a confirmation battle and who so disappointed conservatives, is finally free to return to his native New Hampshire.

Speculation now turns to possible replacements. President Obama is under great pressure to appoint a woman, and the three leading female candidates are new Solicitor General Elena Kagan, Second Circuit Judge Sonia Sotomayor, and Seventh Circuit Judge Diane Wood.

Kagan would be an almost-certain pick a year from now, but having been just confirmed to be the so-called Tenth Justice, she might be seen as too green for elevation.
Sotomayor is an appealing candidate. She is Hispanic, and despite a mixed judicial record was the odds-on favorite until the Court took up the employment discrimination case of Ricci v. DeStefano (argued just last week), an appeal of a bizarre opinion Sotomayor joined that denied the claims of firefighters who had been passed over for promotion because of their race.
Wood, a renowned authority on antitrust, international trade, and federal civil procedure. Wood offers a seriousness of purpose and no ideological ax to grind, thus making her the best nominee for supporters of constitutionalism. (Full disclosure: I took two classes from Judge Wood in law school.)

In terms of the nomination battle: Don't expect the wild Senate fisticuffs many observers are predicting quite yet. Obama will have other judicial picks to make. Look for him to play this first one relatively safe, and for Republicans to keep their powder dry for future nominations that Obama will use to appease his base and push the Court left.

What history writes about Justice Souter will be brief compared to his colleague justices: He has always been inscrutable, at first leaning right, shifting toward the middle in the landmark abortion case, Planned Parenthood v. Casey, and Lee v. Weisman (prayer at high school graduation), and ending up at the left end of the Court alongside Justices Stevens, Ginsburg and Breyer—all the while employing an unpredictable jurisprudential method. And he has always been reclusive, refusing reporters' and scholars' interview requests and being the biggest opponent of video cameras inside the Court. Perhaps most memorably, Souter gained notoriety after his vote in the infamous eminent domian case Kelo v.New London, where he allowed the taking of a private home for the benefit of real estate developers, which spurred property rights activists to petition for the use of eminent domain to turn Souter's farm into the "Lost Liberty Hotel."

Racial Preferences and Ricci (Daily Podcast)

Thu, 30 Apr 2009 00:00:00 EDT

IMS Health v. Ayotte (Legal Briefs)

Tue, 28 Apr 2009 00:00:00 EDT

New Hampshire passed a law prohibiting 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" (Cato Institute Policy Analysis No. 295). New Hampshire also engages in gross viewpoint discrimination: it exempts insurers' efforts to persuade doctors to use generic drugs, and runs an "academic detailing" program to discourage brand-name drug use. Remarkably, the First Circuit reversed a district court ruling that had invalidated the statute as unconstitutional, 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. Two companies that collect and sell health information and analysis filed a petition asking the Supreme Court to review the case. Cato, joining Washington Legal Foundation, Reason Foundation, and a group of current and former state officials, has filed a brief supporting that petition. Our brief argues that the Supreme Court should grant review because: 1) the speech at issue is worthy of First Amendment protection; 2) this case is a good vehicle for examining First Amendment issues attending state attempts to control health care costs (other states have passed similar laws); and 3) the lower court's holding that a state may restrict speech to "level the playing field" conflicts with the Court's precedent regarding both commercial speech and campaign finance regulation.

The High Court and the Fourth Amendment in 2009 (Daily Podcast)

Fri, 24 Apr 2009 00:00:00 EDT

When the Government Takes Your Money, It Takes Your Property (Commentary)

Thu, 23 Apr 2009 00:00:00 EDT

Over a decade ago, Daniel and Andrea McClung tried to realize their American dream. They planned to construct a new building that could house a small business on their property in Sumner, Washington. But when they submitted their application for a development permit, their dream turned into a nigh...

Supremes Should Find 'Reverse Discrimination' in Ricci v. DeStefano (Scholar Comments)

Wed, 22 Apr 2009 00:00:00 EDT

Today the Supreme Court heard argument in Ricci v. DeStefano, the "reverse discrimination" case where the city of New Haven refused to certify the results of a race-neutral promotion exam whose objective results would have required, under civil service rules, the promotion of only white and Hispanic (but no black) firefighters. The firefighters who were thus denied promotions sued the city, claiming racial discrimination under Title VII of the Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment. Remarkably, a panel of the Second Circuit Court of Appeals—including oft-mentioned Supreme Court contender Sonia Sotomayor—summarily affirmed the district court's ruling against the firefighters, though Judge José Cabranes (a Clinton appointee) later excoriated the panel for not grappling with the serious constitutional issues raised by the case.

The Cato Institute filed a brief, joined by the Reason Foundation and the Individual Rights Foundation, pointing out the absurd incentives at play: if the lower court's ruling stands, employers will throw out the results of exams (or other criteria) that produce racial disparity, even if those exams are race-neutral, entirely valid, and extremely important to the employer and (as in this case) the public.

Today the Court seemed starkly divided. The "liberal" justices hinted that an employer should be allowed to be "race conscious" to avoid Title VII lawsuits alleging "disparate impact" against minorities in hiring and promotions. The "conservatives" were disturbed that the only reason the firefighters weren't promoted was their race. Nobody seemed persuaded by the government's request—really an attempt to avoid taking a firm stand on a controversial issue—that the judgment be vacated and the case remanded for further factual development and legal rulings by the lower courts. Justice Kennedy will likely be the swing vote, and I predict that he will side with the conservatives, albeit narrowly in a separate concurrence as he did in Parents Involved in Community Schools v. Seattle School District No.1, the race-based school assignment case from 2007.

It was in Parents Involved that Chief Justice Roberts wrote: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Quite so. The Supreme Court should thus reverse the Second Circuit, establishing that an employer can only discount test results when there is a "strong basis in evidence" that the test is somehow biased against a particular racial group.

Safford Unified School District No.1 v. Redding (Legal Briefs)

Thu, 02 Apr 2009 00:00:00 EDT

A middle-school student who was caught red-handed with prescription-strength ibuprofen (in violation of the school's drug policy) implicated another 13-year-old girl, Savana Redding. On the sole basis of this accusation, school officials searched Savana's backpack, finding no evidence of drug use, drug possession, or any other illegal or improper conduct. They then took the girl to the nurse's office and ordered her to undress. Not finding any pills in Savana's pants or shirt, the officials ordered the girl to pull out her bra and panties and move them to the side. The observation of Savana's genital area and breasts also failed to reveal any contraband. Savana's mother, whom Savana had not been permitted to call before or during the strip search, sued the school district and officials for violating her daughter's Fourth Amendment rights to be protected from unreasonable search and seizure. The trial court and a panel of the Ninth Circuit ruled against her, but the en banc Ninth Circuit reversed, finding the search unjustified and unreasonable in scope, and therefore unconstitutional. The Supreme Court granted the school district's petition for review. Cato, joined by the Rutherford Institute and Goldwater Institute, filed a brief supporting the Reddings' suit, arguing that strip searches, particularly of students, are subject to a higher level of scrutiny than other kinds of searches. Such searches are reasonable only when school officials have highly credible evidence showing that (1) the student is in possession of objects posing a significant danger to the school and (2) the student has secreted the objects in a place only a strip search will uncover. In this case, there was insufficient factual basis for the strip search and the search was not reasonably related and disproportionate to the school officials' investigation. The Supreme Court should thus affirm the Ninth Circuit and establish that such searches may be undertaken only when compelling evidence suggests a strip search is necessary to preserve school safety and health.

McClung v. City of Sumner (Legal Briefs)

Wed, 01 Apr 2009 00:00:00 EDT

When Daniel and Andrea McClung applied for a permit to build a small business on their property, the City of Sumner, Washington, charged them nearly $50,000 to pay for improvements to the City's entire storm drainage system. The McClungs sued the City under the Fifth Amendment to the Constitution, whose Takings Clause prohibits the government from "taking" private property for public use without just compensation. They argue that the City cannot force them to pay fees for off-site pipes absent proof that their development would have a specific detrimental effect on the existing drainage system—and without any evidence that the impact was worth $50,000. The Ninth Circuit ruled in favor of the City, reasoning that money is not property (so there could be no unconstitutional taking) and that because the fees were imposed by ordinance (so the City's determination that the pipes needed upgrading was justification enough for the fees). The McClungs have now asked the Supreme Court to review their case. Cato, joined by the Pacific Legal Foundation and the Building Industry Association of Washington, argues that this case is a perfect vehicle for the Court to revisit the scope of Fifth Amendment protections. Our brief highlights the deep divisions among state and federal courts over several important issues, such as whether the Takings Clause applies to legislative (as opposed to bureaucratic) exactions and whether it applies to monetary exactions (not just burdens on land use). The Court should take this case to ensure that the standard for reviewing development conditions is uniform across the country and make clear that property right protections do not depend on ill-defined distinctions such as the form of property demanded by the government or the manner in which a condition is imposed.

No Taxation without Representation? I'll Take No Taxation (Commentary)

Thu, 05 Mar 2009 00:00:00 EST

Last week the Senate passed legislation granting the District of Columbia full voting representation in the House of Representatives. As with several previous iterations of the District of Columbia House Voting Rights Act, the bill also adds a second new House seat and awards it to Utah, which na...

Empress Casino v. Giannoulias (Legal Briefs)

Fri, 27 Feb 2009 00:00:00 EST

In Empress Casino v. Giannoulias, the Illinois Supreme Court upheld a statute transferring money from private riverboat casinos to private horseracing tracks, finding that the Fifth Amendment's Takings Clause does not apply to exactions of money from private entities. The casinos are seeking review of that decision in the U.S. Supreme Court. Cato's brief argues that the Court should grant certiorari for yet another reason: The Illinois statute (which coincidentally appeared in the transcript of the Blagojevich sting) is in clear violation of the Takings Clause's "public use" requirement, impermissibly eroding protections for private property even under Kelo v. New London's (flawed) standard. The statute does nothing more than rob Peter to pay Paul, a result that cannot be squared with the Fifth Amendment, which permits government takings only for public use, and then only if just compensation is paid. It is instead a naked transfer of the casinos' revenues to the racetracks, with no meaningful restriction on how the racetracks use those funds — and does not remotely resemble any public use approved by the Supreme Court. Permitting such a statute to stand will only encourage federal, state, and local governments to exact funds from one private actor for the exclusive benefit of another, transgressing the property rights and economic liberties at the core of the Fifth Amendment.

Ricci v. DeStefano (Legal Briefs)

Wed, 25 Feb 2009 00:00:00 EST
In Ricci v. DeStefano, the City of New Haven, Connecticut developed an exam for firefighters seeking promotion to command positions. The City went out of its way to ensure that the exam was race-neutral and tested only relevant skills and abilities. When the exam results came down, however, white candidates had done better than their African-American and Hispanic peers. Given the few command positions available and the City's rule that the highest scorers on an exam be promoted first, few minority firefighters would thus have been eligible for promotion. After a series of meetings and political machinations, the City refused to certify the results of the exam and promote anyone. Several of the firefighters who would have been eligible for promotion filed a lawsuit, claiming racial discrimination under Title VII. The district court, affirmed by the court of appeals, granted summary judgment for the defendants, holding that the City's alleged fear of an adverse impact claim (a different type of racial discrimination claim under Title VII) -- based merely on the fact that the exam results yielded a racial disparity -- was a legitimate reason for its decision not to certify the exams. Cato's brief, joined by Reason Foundation and the Individual Rights Foundation, points out the absurd incentives at play: if the lower court's ruling stands, employers will throw out the results of exams (or other criteria) that produce racial disparity, even if those exams are race-neutral, entirely valid, and extremely important to the employer and (as in this case) the public.

What's Left for SCOTUS This Term? (Daily Podcast)

Fri, 06 Feb 2009 00:00:00 EST

Citizens United v. Federal Election Commission (Legal Briefs)

Wed, 14 Jan 2009 00:00:00 EST
Testing the bounds of the Supreme Court's landmark decision in Wisconsin Right to Life II (WRTL II), the Federal Election Commission recently sought to apply certain prohibitions and disclosure requirements of the Bipartisan Campaign Reform Act of 2002 to advocacy group Citizens United's political documentary, Hillary: The Movie, and to the group's broadcast advertisements for the film. Though the FEC conceded that the ads, at least, are not the functional equivalent of express campaign advocacy, as defined in WRTL II, it nevertheless determined that Citizens United must disclose the identities of its contributors. Cato's brief argues that BCRA violates the First Amendment freedom of association belonging to those contributors, which freedom includes the right to associate anonymously and to control the group's character and message free from government intervention. For groups engaging in political speech, compelled disclosure of contributors' identities infringes their freedom of private expressive association, a burden often no less severe than direct restraint of the group's speech. This type of government action must be subject to strict constitutional scrutiny—a level of scrutiny that in practice is almost always fatal. The district court failed to afford sufficient value to associational rights and so failed to scrutinize appropriately the BCRA disclosure provisions' unjustified infringement on those rights.