Tagged: Supreme Court

Posner
0

On Judicial Reputation: More Questions for Judge Posner

Successful people often are insecure (though they may hide their insecurity behind a facade of bluster); it is what drives them to success. – Richard Posner (1994)

We are experts in self-presentation, in acting a part to further our aims and interests. We have, all of us, a public relations strategy.  Richard Posner (May 5, 2011)

I have never yearned for greatness!  Richard Posner (November 26, 2014)

This is the eighth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, the sixth here, and the seventh one here.

In Judge Richard Posner’s The Essential Holmes, he echoed a line from Oliver Wendell Holmes concerning John Marshall. This is that line: “A great man represents a great ganglion in the nerves of society, or to vary the figure, a strategic point in the campaign of history, and part of his greatness consists in his being there.”

Holmes’s resort to the word “ganglion” (meaning a swelling, or mass of nerve cell bodies, or a nerve cell cluster) is rather opaque — his use of the term is not readily apparent. But to tease the Holmesian metaphor out a bit, part of a judge’s greatness depends on a willingness and ability to successfully affect or change the nerve center of a society. In other words, a true capacity to alter something central. The alternative Holmesian account of greatness hinges on a combination of strategy and timing (or one might say Fortuna). That is, judicial reputation depends on a special ability to seize the perfect moment and act boldly – the case of John Marshall, circa, 1803, comes immediately to mind.

Surprisingly, to talk with Richard Posner one might assume from what he says in his all-too-causal manner that he has little or no interest in greatness or judicial reputation as it pertains to him. Strange from a man who has written on book on judicial reputation (not to be confused, he tells us, with judicial greatness) and who in so many ways seems to have a will for greatness. But don’t believe it, he admonishes us emphatically: “I have never yearned for greatness!”  

According to Judge Posner, Cardozo was a highly reputed jurist and Holmes was a great jurist. But what of Posner? Silence. Apparently, he doesn’t care to discuss it. Why? Perhaps because as a maverick jurist (and he is surely that), he cannot appear to seek public approval. And yet, if one were to invoke his own criteria for measuring judicial reputation, Judge Posner would rank quite high. (See e.g., Ronald Collins & David O’Brien, “Gauging Reputations, National Law Journal, pp. 13-14, April 1, 1991, and Lawrence Cunningham, “Cardozo and Posner: A Study in Contracts,” William & Mary Law Review (1985).) Fine, he might say, brushing it off with a disinterested look. And what of his legal legacy? Of that he claims to care not: “I have absolutely no interest in my posthumous reputation,” he assures us.

So there you have him: a great jurist (or should I say a highly reputed jurist?) who really does not care a bit about being seen as great. Speaking of that subject, see Richard Posner, “The Hand Biography and the Question of Judicial Greatness,” 104 Yale Law Journal 511, (1994).

All that said, in what follows, Judge Posner says a few things about these matters in connection with various American jurists.

Note: Some of the links used below will open in Firefox and Chrome but not in Safari.

____________________________________

Max Lerner

Max Lerner

Question: In his book Nine Scorpions in a Bottle (1994), the late Max Lerner asserted: “There is no recipe for judicial greatness. Yet, if hard-pressed, I should settle for someone with a flexible mind, a compassion for the walking wounded, a refusal to be cowed by power, a capacity to live with the contradictions of life and to separate the permanent from the transient.” And then he added: “That is what I should call a passionately judicial temperament, and only a few have had it.” Before we turn to your own particular views on the subject, what is your opinion of Mr. Lerner’s recipe (albeit tentative) for judicial greatness?

Posner: [As for Lerner’s formula for greatness, I find it] a little puffed up. Forget greatness. A very good judge is a judge who is well educated and intelligent, hard working, willing to write his own opinions, curious about the real-world activities, transactions, and institutions out of which the cases he hears arise, collegial, and aware (so far as anyone can be aware) of his limitations and of the influences that play on him as a result of his upbringing, ideology, career, and temperament.

Posner on the Criteria for Judicial Greatness

For one thing the criteria of judicial greatness are contested. Some might insist that a judge’s greatness consists in the “rightness” of his decisions as judged by the test of time. I think that this is too demanding a standard. Most judicial decisions, even of the agreed-to-be-the-greatest judges, like most scientific discoveries, even of the universally acknowledged greatest scientists, usually are superseded and in that sense eventually proved “wrong.” I believe that the test of greatness for the substance of judicial decisions, therefore, should be, as in the case of science, the contribution that the decisions make to the development of legal rules and principles rather than whether the decision is a “classic” having the permanence and perfection of a work of art. . . Creativity is .  . . one possible criterion ofjudicial greatness. Another . . . . is the gift of verbal facility that enables a familiar proposition to be expressed memorably, arrestingly, thus enforcing attention, facilitating comprehension, and, often, stimulating new thought (in which case the expressive dimension of judicial greatness merges with the creative). [Source here]

Question: Almost a quarter-century ago you called on scholars to pay considerably more attention to “critical judicial study” by way of quantitative analysis of judicial reputation, influence, and achievement. Do you think that call has been heeded?

Posner: A little, not a great deal.

UnknownQuestion: The quantitative analysis you employed in Cardozo: A Study in Reputation (1990) turned largely, and understandably so, on a judge’s reputation within the legal community. But greatness surely extends beyond the confines of that domain and into the larger public realm. How is judicial reputation to be gauged at that macro level? And how does that pursuit of greatness differ, if at all, from one confined to the legal community?

Posner: No one outside the legal profession (with the intermittent exception of politicians) is interested in judges other than Supreme Court Justices. I don’t think it’s healthy for judges to worry about what lay people think of them.

Question: Most judges, you contend, “would rather be regarded as sound than as original, as appliers of the law rather than inventors of it. Judges find it politic to pretend that they are the slaves of the law, never its masters and the competitors of legislators.” If a judge takes that creed of moderation seriously, is such a jurist likely to be heralded as great?

Posner: As I said earlier, forget greatness. The judges who adopt the pretense will be respected by many other judges and applauded by legislators, who don’t like the idea of judges making law, though judges to make a great deal of law.

Question: You have suggested that “rhetorical power may be a more important attribute of judicial excellence than analytical power.” Why? And should that be so?

Posner: The analytical issues presented by cases are rarely complex or difficult, though lawyers and judges and law professors try to make them seem so. The insights of the excellent judges tend to be the result of intuition, experience, and temperament rather than of analysis, and the rhetorical power in which they are expressed are important to the persuasiveness and reception of the insights.

None of the [current Justices] has any empirical, technical background. They’re just humanities majors. Richard Posner, Oct. 23, 2014, University of Chicago Law School remarks.

Question: In terms of his position in American law, what single trait do you think best helps to explain Chief Justice John Marshall’s revered and lasting reputation?

Posner: He had a great deal of common sense and government experience, and he wrote forcefully and lucidly.

Justice Joseph Story

Justice Joseph Story

Question: By the time he died in 1845, Justice Joseph Story published twenty-one books after his three-volume Commentaries on the Constitution of the United States, which was a major legal work for its time and long afterwards. And he authored some important opinions such as Martin v. Hunter’s Lessee (1816), Swift v. Tyson (1842), and Prigg v. Pennsylvania (1842). And yet, today the man and his work seem to be largely forgotten. Why do you suppose that is?

Posner: I don’t know. I’ve never read anything by him. Prompted by your question, I read his opinion in Swift v. Tyson. I thought it was well written, though not as well written as Marshall’s opinions.

[RC: Consider Bernard Schwartz, “Supreme Court Superstars: The Ten Greatest Justices” (1995) (ranking Story as second greatest Justice.]

Question: I was struck by how much the reputational stock of some of the judges and scholars you listed in Tables 1-4 of your Cardozo book has dropped since you published that work in 1990. Is judicial reputation thus akin, at least in some general way, to the rise-and-fall celebrity stardom of, say, the Michael Jackson variety? If so, how does a judge best secure a reputation that lasts over generational time?

Posner: The decline is experienced by almost all judges, simply because law changes as society changes, and the old cases cease to have any relevance. Well-written opinions have the best survival chances, because the quality of the writing is independent of the currency or importance of the issues.

Question: The filaments of Holmes’ thought, you maintain, included “Nietzschean vitalism.” Tell us more about that and why you think it important. Read More

3

RBG revises opinion after professor flags error

How often does it happen that a law professor flags a factual error in a Supreme Court opinion and the Justice thereafter changes that opinion to correct the error? Answer: not that often.

So when it happens, some of us think that credit should be given. Okay? So, onto the story, albeit the brief version.

In a post on his Election Law Blog yesterday, Professor Rick Hasen wrote:

In Justice Ginsburg’s 6-page dissent in the Texas voter id case, she writes: “Nor will Texas accept photo ID cards issued by the U. S. Department of Veterans’ Affairs.”

A few people have pointed me to material from Texas which seems to suggest that these cards would be acceptable as a form of military identification. Veterans ID cards do not expire, and therefore they seem to meet the Texas requirement: “a United States military identification card that contains the person’s photograph that has not expired or that expired no earlier than 60 days before the date of presentation.” (my emphasis)

By way of an update, he added: The Texas Secretary of State’s office has responded via Twitter: “Veterans Affairs ID cards are an acceptable form of photo ID in TX.

In response, Justice Ginsburg revised her dissent, as noted by Lyle Denniston over at SCOTUSblog:

In ticking off her objections, Ginsburg wrote that Texas would not even accept “photo ID cards issued by the U.S. Department of Veterans’ Affairs.”  On Wednesday, the Justice conceded that that comment was incorrect.  That kind of ID card, she said through the Court’s public information office, is “an acceptable form of photo identification for voting in Texas.”  So she simply deleted the sentence, and reissued the opinion.  The Court also said that she had made “small stylistic changes” on two pages of her opinion, and that the corrected version could be read on the Court’s website.

Nothing groundbreaking, but noteworthy nonetheless. Meanwhile, kudos to Professor Hasen (and his tipsters) for helping to get the official record straight.

Re correcting the official record, see: Adam Liptak, “Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing,” New York Times, May 24, 2014 (“The Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include ‘truly substantive changes in factual statements and legal reasoning,’ said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.”).

0

Marian Anderson & Justice Black, April 9, 1939

Harold Ickes & Marian Anderson

Harold Ickes & Marian Anderson

I was just watching a WETA segment on our national parks when I came upon the Marian Anderson story and how the Daughters of the American Revolution refused to let her perform at Constitution Hall, which they owned.

Upset by the incident, Eleanor Roosevelt urged Harold Ickes (the former president of the Chicago NAACP & then Secretary of the Interior) to arrange for the opera singer to perform at the Lincoln Memorial. Ms. Anderson performed there on Easter Sunday, April 9, 1939, to a crowd of 75,000 admiring onlookers. The event was also broadcast on national radio.

Of course, all of this and more are well known. What is far less known is that invitations were sent out to the all of the Justices of the Supreme Court.  (See Gerald T. Dunne, Hugo Black & the Judicial Revolution 304 (1977)). One Justice accepted, which brings me back to my public television story.

Justice Hugo Black, 9 April 1939

Justice Hugo Black, 9 April 1939

If you go to the YouTube clip of the Anderson concert, you will see Justice Black in the audience (1 minute & 19 seconds into it).

By that time in 1939 Justice Black had been on the Court for some 20 months — this 15 years before Brown. Most likely, word of Justice Hugo Black’s solo appearance made its way to Alabama, his home state. And yet, he was there (see pic) and the newsreels captured it all, too.

For an account of the concert and its historical significance, see Raymond Arsenault, The Sound of Freedom: Marian Anderson, the Lincoln Memorial, & the Concert that Awakened America (2009).

 

 

2

Need an alternative to the third party doctrine? Look backwards, not forward. (Part I)

500px-Folder_home.svg

In light of the renewed discussion on the future of the third party doctrine on this blog and elsewhere (much of it attributable to Riley), I’d like to focus my next couple of posts on the oft-criticized rule, with the aim of exploring a few questions that will hopefully be interesting* to readers. For the purpose of these posts, I’m assuming readers are familiar with the third party doctrine and the arguments for and against it.

I’ll start with the following question: Let’s assume the Supreme Court decides to scale back the third party doctrine.  Where in the Court’s Fourth Amendment jurisprudence should the Justices look for an alternative approach?  I think this is an interesting and important question in light of the serious debate, both in academia and on the Supreme Court, about the third party doctrine’s effect on privacy in the information age.

One answer, which may represent the conventional wisdom, is that there simply is nothing in the Supreme Court’s existing precedent that supports a departure from the Court’s all or nothing approach to Fourth Amendment rights in Smith and Miller.  According to this answer, the Court’s only choice if it wishes to “reconsider” the third party doctrine is to create new, technology specific rules that address the problems of the day.  (I’ve argued elsewhere that existing Fourth Amendment doctrine doesn’t bind the Court to rigid applications of its existing rules in the face of new technologies.)

A closer look at the Court’s Fourth Amendment jurisprudence suggests another option, however. The Supreme Court has not applied the underlying rationale from its third party doctrine cases to all forms of government intrusion.  Indeed, for almost a century the Supreme Court has been willing to depart from the all or nothing approach in another Fourth Amendment context: government searches of dwellings and homes.  As I’ll discuss below, the Supreme Court has used various tools—including the implied license rule in last year’s Jardines, the standard of “common understandings,” and the scope of consent rules in co-habitant cases—to allow homeowners, cohabitants, tenants, hotel-guests, overnight guests, and the like maintain Fourth Amendment rights against the government even though they have given third parties access to the same space.

In other words, it is both common sense and black letter law that a person can provide third parties access to his home for a particular purpose without losing all Fourth Amendment rights against government intrusion. Letting the landlord or the maid into your home for a limited purpose doesn’t necessarily give the police a license to enter without a warrant—even if the police persuade the landlord or the maid to let them in. Yet the Court has abandoned that type of nuance in the context of informational privacy, holding that sharing information with a third party means forgoing all Fourth Amendment rights against government access to that information (a principle that has eloquently been described as the “secrecy paradigm”). As many have noted, this rule has had a corrosive effect on Fourth Amendment rights in a world where sensitive information is regularly shared with third parties as a matter of course.

Why has the Court applied such a nuanced approach to Fourth Amendment rights when it comes to real property and the home, but not when it comes to informational privacy?  And have changes in technology undermined some of the rationale justifying this divergence? These are questions I’ll explore further in Part II of this post; in the meantime I’d love to hear what readers think about them. I’ll spend the rest of this post providing some additional background on the Court’s approach to privacy in the context of real property searches.

More after the jump.

Read More

stairway-to-heaven-1319562-m
0

FAN 21 (First Amendment News) — Looking Back on the 2013-2014 Term & on The Roberts Court’s Overall Free Speech Record

What a term it has been for the Roberts Court and free speech – Election campaign laws, union dues, government employee speech, abortion clinic buffer zones, and a presidential protest case. Also set out below are some related First Amendment events that occurred this Court Term along with a list of new books on free speech. Further down are some facts and figures concerning the Roberts Court’s overall record on free speech.

Disorder in the Court: Recall, too, that back in May there was a disruption inside the Court: “I arise on behalf of the vast majority of the people of the United States who believe that money is not speech,” the protester said, “corporations are not people and that our democracy should not be for sale to the highest bidder.” Before he was arrested, Noah Newkirk of Los Angeles also got in a few more words of protest: “overturn Citizens United” and “the people demand democracy.” Even more incredible, it was captured on video and released on the Web.

35 Cases: This Term the Roberts Court decided five First Amendment free expression cases along with three related free speech cases. The Justices also denied review in a campaign finance case while granting review in “true threats” case. All in all, the Roberts Court has now decided 35 free speech cases on First Amendment grounds.

→ “In Group Bias”: And then there was the empirical study by Professors Lee EpsteinChristopher M. Parker, & Jeffrey A. Sega entitled “Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment.”

Amending the 1st?: While much of this was going on, Justice John Paul Stevens released a book urging, among other things, that the First Amendment be amended. In the same vein, a Senate subcommittee first heard and then voted in favor of an amendment to the First Amendment.

→ New Books: Here are some of the new books that were published during this Court Term:

  1. Lee Levine & Stephen Wermiel, The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan
  2. Ronald Collins & David Skover, When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment
  3. Shaun McCutcheon, Outsider Inside the Supreme Court: A Decisive First Amendment Battle
  4. Robert Post, Citizens Divided: Campaign Finance Reform and the Constitution
  5. Robert E. Mutch, Buying the Vote: A History of Campaign Finance Reform (2014)
  6. Richard Fossey & Todd A. DeMitchell, Student Dress Codes and the First Amendment: Legal Challenges and Policy Issues (2014)
  7. Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court & The Constitution (2014)

→ Law Review: A Harvard Law Review Symposium on free speech was published recently.

→ Flashback: Cass Sunstein on the 50th Anniversary of NYT v. Sullivan

“[A]mid the justified celebration, we should pay close attention to the dark side of New York Times vs. Sullivan. While it has granted indispensable breathing space for speakers, it has also created a continuing problem for public civility and for democratic self-government. . . . False accusations are hardly new. But New York Times vs. Sullivan can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S.” [Source: here]

→ The Play’s the Thing: Arguendo, a play about Barnes v. Glen Theatre, Inc. was performed earlier this year. 

Remember: This year we also lost a noted First Amendment figure with the passing of Professor George Anastaplo.

Supreme_Court_US_20102013-14 Term: First Amendment Cases

  1. [JR: 5-4]          McCutcheon v. FEC
  2. [RBG: 9-0]      Woods v Moss
  3. [SS: 9-0]         Lane v. Franks (commentary)
  4. [JR: 9-0]         McCullen v. Coakley
  5. [SA: 5-4]         Harris v. Quinn (symposium)

→ Here is the lineup of Justices writing majority opinions this term in First Amendment free expression cases:

  • Chief Justice Roberts             McCutcheon v. FEC   (vote: 5-4) &
  •                                                McCullen v. Coakley   (vote: 9-0)
  • Justice Ginsburg                    Wood v. Moss              (vote: 9-0)
  • Justice Sotomayor                 Lane v. Franks            (vote: 9-0)
  • Justice Alito                           Harris v. Quinn            (vote: 5-4)

Read More

0

FAN 20.1 (First Amendment News) – Supreme Court Hands Down Abortion Buffer Zone Case (9-0)

Thursday, June 29, 10:28 a.m.: The Supreme Court just handed down its decision in McCullen v. Coakley (9-0).

→ The opinion can be found here.

→ Yet another First Amendment majority opinion by the Chief Justice (that makes 12).

Commentary by Tom Goldstein at SCOTUSblog: The abortion protests ruling is relatively narrow. The Court makes clear that states can pass laws that specifically ensure access to clinics. It holds that states cannot more broadly prohibit speech on public streets and sidewalks. It also notably rejects the protesters’ broadest arguments that such restrictions require strict constitutional scrutiny and are viewpoint based. A state can go beyond narrow laws that block obstructions to clinics, and more broadly ban abortion protests, only if it builds a record showing that the narrower measures don’t work. The S. Ct. majority says nothing about its prior buffer zone ruling in Hill, the validity of which now seems in real question. 

→ Harris v. Quinn (opinion to be handed down this Monday).

Review still pending in Minority Television Project, Inc. v. Federal Communications Commission, which involves a federal law that prohibits public radio and television stations from transmitting paid advertisements for for-profit entities, issues of public importance or interest, and political candidates. The 9th Circuit, sitting en banc, ruled against the broadcasters. Chief Judge Alex Kozinski (joined by Judge John Noonan) dissented, and Judge Consuelo Callahan concurred in part and dissented in part.

fce54ef58f5b9d01480f6a7067000873

Petitioner: Eleanor McCullen (pic by Steven Senne)

The Abortion Clinic Buffer Zone Case: McCullen v. Coakley

Facts: “Three of the plaintiffs regularly engage in ‘sidewalk counseling’ at the Boston clinic. McCullen parks her car on Commonwealth Avenue and festoons it with pro-life signage; Zarrella sometimes prays aloud; and Cadin from time to time holds aloft a large pro-life sign. A fourth plaintiff, Smith, has demonstrated outside the Boston clinic for many years. He has displayed a crucifix, sung religious hymns, and prayed aloud. His prayers are meant to be heard by passersby in hopes of persuading them to opt against abortion. He sometimes brings a loudspeaker to amplify group prayers that occur outside the clinic on the second Saturday of every-month and on Good Friday.” (Source: 1st Cir. opinion)

A Massachusetts law provided for a fixed 35-foot buffer zone around the entrances, exits, and driveways of abortion clinics.

The issues in the case were:

(1) Whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; and

(2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.

The First Circuit rejected the Plaintiff’s First Amendment claims. The Supreme Court reversed.

Vote: 9-0

Majority Opinion: Chief Justice Roberts

Concurring Opinion: Justice Scalia (joined by Justices Kennedy and Thomas) concurs in judgment. Justice Alito wrote a separate opinion, concurring in the judgment.

Justice Scalia argues that Hill v. Colorado  should be overruled, which today’s opinion does not formally do.

Counsel

  • Mark L. Rienzi for Petitioners
  • Jennifer Grace Miller for Respondents
  • Ian H. Gershengorn for United States (amicus curiae for Respondents)

Amicus Briefs

Among those filing amicus briefs were the following:

  • Cato Institute (Ilya Shapiro) for Petitioners
  • American Center for Law & Justice (Jay Sekulow) for Petitioners
  • Rutherford Institute (John W. Whitehead) for Petitioners
  • Michigan & 11 other States (Bill Schuette) for Petitioners
  • ACLU (Steven R. Shapiro) for Neither Party
  • New York State, et  al (Eric T. Schneiderman) for Respondents
  • Planned Parenthood (Walter Dellinger) for Respondents
  • American College of Obstetricians and Gynecologists, et al (Jack R. Bierig) for Respondents
  • National League of Cities, et al (Mary Jean Dolan) for Respondents
  • Anti-Defamation League, et al (Jeffrey S. Robbins) for Respondents
  • National Abortion Federation, et al (Maria T. Vullo) for Respondents

Hat tip to SCOTUSblog for its remarkable real-time coverage of today’s decisions.

NOTE: My next scheduled FAN column will provided detailed information re the Roberts Court’s overall record in First Amendment freedom of expression cases. It will also include facts and figure re the Court’s 1-A work this term.

stairway-to-heaven-1319562-m-720x340
0

FAN 20 (First Amendment News) — New Book, New Legislation, New Study & More News

No First Amendment cases from the Supreme Court today. Most likely tomorrow (perhaps Monday?).

→ What’s left? The only First Amendment free expression cases left to be decided this Term are:

  1. McCullen v. Coakley
  2. Harris v. Quinn

New Book — Tribe & Matz on Roberts Court & Free Speech 

Laurence Tribe

Laurence Tribe

In May of 2013 I profiled a forthcoming book, which has just been released. “Forty-five years after the publication of his first book (Technology: Process of Assessment and Choice), Laurence Tribe is preparing to release another book, tentatively titled Uncertain Justice (2014).” I wrote that in SCOTUSblog. “This forthcoming offering,” I added, “will come out six years after Tribe’s last book (The Invisible Constitution). The book will be the Harvard Law professor’s sixteenth. Like a few of his other works, Uncertain Justice will be co-authored – this time Joshua Matz is his literary partner on this work on the Roberts Court.” Well, wait no more; here it is: Uncertain Justice: The Roberts Court & The Constitution (Henry Holt, 2014). Mr. Matz is a Harvard law graduate who clerked for Judge Stephen Reinhardt and will soon clerk for Justice Anthony Kennedy.

Joshua Matz

Joshua Matz

While Uncertain Justice has received some early favorable reviews, my focus here is on only two chapters in the book: Chapter 3 (“Campaign Finance: Follow the Money”) and Chapter 4  (“Freedom of Speech: Sex, Lies & Video Games”). Together, these chapters consume 165 of the book’s 320 pages of text.

↓→ Campaign Finance

“The truth is somewhere in the middle.”

In a galvanized world of frenzied litmus-test beliefs over the role of money in our electoral system, Tribe and Matz (T&M) can be refreshingly open-minded: “It is easy to lose sight of the fact that Citizens United posed incredibly difficult questions about free speech, popular sovereignty, and political equality,” they write. “Deciding when Congress can ban certain disfavored speakers from the marketplace of ideas or limit how much they can speak is no easy task. It certainly isn’t outlandish to conclude, as the Court did, that free speech rights must prevail over hard-to-document fears that corporate wealth will distort public discourse or corrupt politicians.”

Then again, they do speak of the “Roberts Court’s broader agenda of deregulating campaign finance” reforms.  On that score, they maintain that by “reshaping the architecture of money, influence, and political organization, the Roberts Court is transforming how America conducts — and funds — politics.” In an endnote (p. 342, n. 64) they state: “While we do not purport to identify specific instances in which electoral outcomes shifted because of trends triggered by Citizens United, it seems to us highly likely that this has occurred in at least some races.”

While the authors freely offer the views of the “many critics of Citizens United,” they also concede that “Citizens United was a hard case because the Court faced a choice among evils.” With welcome objectivity and nuance, they add: “it’s extremely hard to determine whether any given campaign finance rule has a big enough impact to survive judicial scrutiny.  Judges have long implemented the First Amendment by requiring — among other things — that  restrictions on speech demonstrably achieve a legitimate goal. The causes of political corruption in America,” they stress, “and the reasons why politicians act the way they do . . . are many and complex.  Money in politics is only part of that story . . . .”

On the one hand, T&M understand how the Roberts Court’s narrow definition of corruption might be viewed as necessary in order to foster a “workable” body of First Amendment law sensitive to the concerns of free speech. On the other hand, they think that the Citizens United Court might have resorted to a “more modest” course of action that would “have left more room for politicians to use campaign finance laws, carefully reviewed by courts, as one tool among many in their efforts to restore public confidence in government integrity.” In other words, they tread cautiously in this ideological minefield.

So what should reformers do? In an endnote, Professor Tribe discloses that he “assisted Representative Adam Schiff of California in drafting a proposed [constitutional] amendment that was introduced in the 112th Congress.” That said, no defense of such radical constitutional surgery is offered in the book. In fact, the authors skip quickly past calls for constitutional amendments. Instead, they counsel that “critics of Citizens United would be well served to move past issues like corporate personhood and money’s status as speech. Instead, they might aim to ensure greater transparency in our brave new world of Super PACs and 501(c) organizations.” {See DISCLOSE Act item below}

If there were ever to be a national forum on the First Amendment and campaign finance reform, the organizers would be wise to invite Messrs. Tribe and Matz, if only to add some light in an otherwise overheated universe.

Note: Since Uncertain Justice was completed in “early 2014,” the Court’s April 2014 ruling in McCutcheon v. FEC (2014) is not discussed.

 Sex, Lies & Video Games Read More

0

SCOTUSblog’s Sisyphean Stone

UnknownMore troubling news for SCOTUSblog:

“This was a morning of ironies.  At 9:30 a.m., six members of the blog staff were live-blogging the Supreme Court’s orders, followed by opinions at 10 a.m.  There were 10,000 readers.  The Standing Committee of Correspondents chose that time to release its ruling denying our appeal of its revocation of our press credential.  We learned about it from Twitter.”

“Today, it settled on the fact that practicing lawyers publish and write for the blog.  The Committee takes the view that the blog is not editorially independent from my law firm or from other lawyers who write for the blog.  As a consequence, the Committee found, the blog violates two independent requirements under the Committee’s Rules: any credentialed publication must be editorially independent from an organization that (i) “lobbies the federal government”; or (ii) ‘is not principally a general news organization.'”

“Notably, the Committee finds that no editorial policy can establish editorial independence.  The publication’s own rules cannot overcome the taint created by its personnel.  So the Committee recognizes our rules forbidding any staff member from being involved in the coverage of any case in which the law firm is involved.  But because the firm and the publication are not “separate” in terms of who works for each, the former has the capacity to “influenc[e] editorial content.”  The Committee explains that it would reconsider its decision only if the blog were “to separate itself from Goldstein & Russell and any other lawyer or law firm who is arguing before the Supreme Court” (emphasis added) — Tom Goldstein

Bottom line: “The next step is for us to appeal the Committee’s decision to the Senate Rules Committee.  We do not know how long that will take.” (see link above for full statement)

Disclosure: I am the book editor for SCOTUSblog.  I have not, however, discussed this post or any other with anyone from SCOTUSblog.