Tagged: Supreme Court

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E-Book on McCutcheon Case Just Published

At the risk of being accused of shameful promotion, I am nonetheless delighted to say that my book with David Skover was released yesterday and is now available as an e-book on Amazon, Barnes & Noble, and Google Play. The book is titled When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment and was available 36 hours after the Court rendered its ruling in McCutcheon v. FEC. davidskoverThis is the first book to be released in the SCOTUS-Books-in-Brief series.

This is also my fifth book with David (going back to 1996) and the ride has been an incredible one. As a co-author he is all things wonderful and wondrous and none of those books would have been possible but for his incredible talents and work ethic. So, a BIG NOD to my co-author. One more thing: the book is dedicated to Nadine Strossen, “The First Lady of Liberty,” as we tag her. I can think of no one who has been a greater champion of liberty than Nadine. All that said, here is a dollop of yet more of shameless promotion:

Book Description

Top Five Books: Publication Date: April 2, 2014WMS-cover2

80,000 words, e-book: $2.99

“A brilliant discussion of campaign finance in America…a must for all who care about the American political system.” —Erwin Chemerinsky

“Thorough, dispassionate, and immensely readable.” —Floyd Abrams 

“A must read for anyone interested in constitutional law, free speech, or elections. An original and welcome brand of narrative scholarship.”  —Adam Winkler

“Informative. Reliable.  Accessible. This is the best book on the general topic. And a great read, too!” —David M. O’Brien

On April 2, 2014, the U.S. Supreme Court struck down aggregate limits on how much money individuals could contribute to political candidates, parties, and committees. The McCutcheon v. FEC decision fundamentally changes how people (and corporations, thanks to Citizens United) can fund campaigns, opening the floodgates for millions of dollars in new spending, which had been curtailed by campaign finance laws going back to the early 1970s.

WHEN MONEY SPEAKS is the first book to explain and dissect the Supreme Court’s controversial ruling in McCutcheon, including analysis of the tumultuous history of campaign finance law in the U.S. and the new legal and political repercussions likely to be felt from the Court’s decision. The book is cast in narrative form, replete with accounts of the players who made the case what it has become. Also included are photos of the key players — the lawyers, activists, and Shaun McCutcheon, too. The authors also did extensive interviews (up to and including the day of the ruling) with several of the key figures in the case.

McCutcheon has been billed as “the sequel to Citizens United,” the decision giving corporations the same rights as individuals to contribute to political campaigns. Lauded by the right as a victory for free speech, and condemned by the left as handing the keys to our government to the rich and powerful, the Court’s ruling has inflamed a debate that is not going to go away anytime soon, with calls for new laws and even a constitutional amendment on the left—while those on the right (including Justice Clarence Thomas in his concurring opinion) call for an end to all contribution limits. Two of the nation’s top First Amendment scholars—Ronald Collins and David Skover—have produced a highly engaging, incisive account of the case, including exclusive interviews with petitioner Scott McCutcheon and other key players, as well as an eye-opening history of campaign finance law in the U.S.

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Hypothetically Speaking: Justice Breyer’s Dialectical Propensities

220px-StephenBreyerIn July of 1994, Judge Stephen Breyer testified before the Senate Committee on the Judiciary in connection with his nomination to the Supreme Court. In responding to a question posed by Senator Howard Metzenbaum, Judge Breyer could not resist the temptation to respond by way of a hypothetical:

Let’s say—and I will use a hypothetical, I don’t like to use that here, because I know this isn’t a classroom and I know these are serious matters and I don’t like to be professorial, frankly, but I think in this instance, maybe thinking of, say, they turn this wheel around and they charged 8 cents for the electricity, and that might help. They then transmit it across a wire. They then sell it to them- selves, because they are in the retail operation, too. And they sold it, let us say, for 10 cents. So they make it for 8 cents and they sell it to themselves for 10 cents, and the price to the consumer is 10 cents. Now, the plaintiff in this case came along and said, you see, 8 cents is what we have to pay for it, because they sold a little bit to independent retailers, too, and that plaintiff was an independent retailer. And that independent retailer . . . .

In the interest of brevity, I abbreviated my quotation of the Judge’s hypothetical.

As Court watchers well know, the hypothetical (typically long and complicated) is his signature move. What prompted my thoughts on Justice Breyer and his courtroom style were some recent comments (see also here and here) made about Justice Clarence Thomas and his courtroom style. That said, I thought I would share a few examples, albeit shorter ones, of Justice Breyer’s dialectical propensities.

During the course of oral arguments in FCC v. Nextwave Communications, Inc. (2002), a statutory interpretation case, Justice Breyer ventured to make a point by way of a hypothetical:

I learned the second year of law school–and obviously many of my colleagues don’t agree with me, but I learned the second year of law school that when you have a text which says “all,” that there are often implied, not-written exceptions. . . ‘No animals in the park’ doesn’t necessarily apply to a pet oyster . . . . 

Or consider another hypothetical Justice Breyer posed to Professor Randy Barnett, who represented the Respondents in Gonzales v. Raich (2004):

You know, he grows heroin, cocaine, tomatoes that are going to have genomes in them that could, at some point, lead to tomato children that will eventually affect Boston. … So you’re going to get around all those examples by saying what?

Of course, other examples might have been selected (say, Breyer’s hypotheticals in McCutcheon v. FEC), but that is an assignment for a more extended discussion. For now, it is enough to ask: How have Court watchers responded to the Justice Breyer’s style of questioning? Here are a few random samples of what I turned up in response to that question.

A former Harvard Law School professor, Breyer is the most verbose of the justices. He’s unleashed nearly 35,000 words during oral arguments since January, a transcript review shows. Repeatedly, he insists that lawyers imagine scenarios that are parallel to—or perhaps perpendicular to—the facts at hand. . . . When they work, hypothetical questions can reveal a contradiction or expose a fundamental legal principle. Of course, they don’t always work. — Michael Doyle, March 16, 2007

Breyer is the Court’s most frequent practitioner of the hypothetical question, a conjurer of images that are unusual and hyoccasionally bizarre. Mark Sherman, March 2, 2008

During Supreme Court arguments Wednesday in a case involving claims against high-ranking government officials over post-Sept. 11 detention practices, discussion frequently turned to an unusual hypothetical scenario posed by Justice Stephen Breyer: a lawsuit over a mouse found in a bottle of Coca-Cola. Though Chief Justice John Roberts Jr. at one point called the hypothetical “by its nature particularly absurd,” he and the other justices who adopted it seemed to find it quite instructive. Tony Mauro, December 11, 2008

Justice Breyer . . . occasionally runs the hypothetical too far out, and it becomes as complex as the underlying legal concept he is trying to make intelligible. Lyle Denniston, December 7, 2011

Justice Breyer is notorious for asking long-winded hypotheticals in which he can occasionally get lost, and unfortunately these hypotheticals may waste an advocate’s valuable time and may not be pertinent . . . . Ryan Malphurs, 2013

Justice Breyer offered one hypothetical and a view of the legal implications, then conceded he or his law clerk might have it wrong and would have to review the rules again. Bob Bauer, October 9, 2013

Justice Breyer . . . is the Talmudic scholar of hypotheticals. Art Lien, February 25, 2014

Stephen Breyer’s interminable law professor hypotheticals . . . are about drawing attention to themselves rather than helping the Court work through issues. Scott Lemiux, February 26, 2014

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SCOTUS-Books-in-Brief – Goodbye to the Sloooow Past!

Top Five Books has just announced a forthcoming series of e-books on Supreme Court cases. The series is titled “SCOTUS: Books-in-Brief.”  It is designed to provide readers – lay and scholarly alike – with a reliable, informative, and engaging narrative account of a significant Supreme Court ruling shortly after it comes down. Provided in e-book format, each work will be economically priced and accessible on multiple e-platforms.

Each e-book will be available within a week of the decision and will consist of an historical account of the general subject, a full statement of its facts, profiles of the parties, analyses of the lower court judgments, examination of the briefs filed and the oral arguments in the WMS-cover2Supreme Court, a discussion of the larger issues raised by the case, an analysis of the final judgment, and a comprehensive timeline – and all completed and ready for e-publication shortly after a Court ruling is rendered.

The first book in the series (now virtually complete at 75,000 words save for commentary on the forthcoming ruling) is When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment. (See excerpt here.)

Writers Wanted!

If you are a good writer, have expertise in a certain area pertaining to a case before the Supreme Court, and can complete a 30,000-40,000 word manuscript (depending on the complexity of the case and subject matter) in a relatively short period of time, then contact us – we’d love to hear from you.

For more information about those on the advisory board and the series generally, click here.

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Have Presidents Gotten Better at Picking Ideologically-Compatible Justices?

Do Justices vote independently of all political forces surrounding their appointments? My earlier post discusses how, even in recent decades, Justices’ votes have been surprisingly independent of the ideologies of Senates to which they were nominated. Even so, it may be that presidents fared better than the Senate and recently enhanced their ability to appoint ideologically-compatible Justices.

History is rife with examples of Justices who disappointed their appointing presidents.   As recounted by Henry Abraham, Teddy Roosevelt complained vociferously about Justice Holmes’ ruling in Northern Securities, Truman called Justice Clark his “biggest mistake,” and Eisenhower also referred to Justices Warren and Brennan as “mistakes.”  My earlier study finds frequent grounds for presidential disappointment, based on voting records for eighty-nine Justices over a 172-year period. Just under half of these Justices voted with appointees of the other party most of the time. Still, of the last twelve Justices, only two, Stevens and Souter, aligned most often with appointees of the other party. This low number calls into question whether the frequency of presidential disappointments has diminished recently.

My recent paper identifies change over time using regression analysis and more nuanced measures of presidential ideology. The analysis shows ideologies of appointing presidents did not significantly predict Justices’ votes before the 1970s, but they gained significant predictive power thereafter. This enhanced success coincides with Presidents Nixon’s and Reagan’s efforts to prioritize ideology in appointments to the bench. While earlier presidents did not uniformly ignore nominees’ ideology, they lacked modern technological resources. By the Reagan administration, computerized databases allowed presidential aides to quickly assemble and analyze virtually all of a nominee’s past writings. The improved information may have enabled presidents to better anticipate nominees’ future rulings.

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The Senate’s Influence over Supreme Court Appointments

Thanks, Sarah, for the warm welcome. It is a pleasure to guest blog this month.

With pundits already speculating about President Obama’s next Supreme Court nominee, it seems a good time to discuss relationships between political forces surrounding Supreme Court appointments and Justices’ decisions. Justices sometimes disappoint their appointing presidents, and ideologically-distant Senates are often blamed for presidents’ “mistakes.” For example, David Souter and John Paul Stevens turned out to be far more liberal than the Republican presidents who appointed them (Bush I and Ford, respectively). These presidents both faced very liberal Senates when they selected Souter and Stevens.

Are nominees like Souter and Stevens anomalies or part of a larger pattern of senatorial constraint? My recent article in the Hastings Law Journal offers the first empirical analysis of the Senate’s role in constraining presidents’ choices of Supreme Court nominees over an extended period. It considers ideologies of Senates faced by nominating presidents and measures whether the ideologies of these Senates predict Justices’ voting behavior. The analysis substantially qualifies earlier understandings of senatorial constraint.

Earlier empirical studies consider only limited numbers of recent nominees (see article pp. 1235-39). They suggest that the Senate has constrained presidents’ choices, and many scholars theorize that the Senate has enhanced its role in the appointments process since the 1950s. Analysis of a larger group of nominees shows the Senate’s ideology has had significant predictive power over Justices’ votes in only two isolated historical periods. Senatorial ideology was last significant in the 1970s, shortly after the filibuster of Abe Fortas’s nomination to be Chief Justice, but then it actually lost significance after the Senate rejected Bork in 1987.

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The Varying Use of Legal Scholarship by the U.S. Supreme Court across Issues

While patent law is my core area of scholarly interest, I have also studied the use of legal scholarship by the courts. My co-author Lee Petherbridge from Loyola-LA and I have conducted several comprehensive empirical studies using large datasets on the issue. More precisely, we have analyzed how often federal courts cite to law review articles in their decisions. We have empirically analyzed the issue from a variety of angles. We have studied the use of legal scholarship by the U.S. Supreme Court (available here), by the regional U.S. Courts of Appeals (study available here), and by the Federal Circuit (available here). I won’t recount the finding of those studies here. Instead, I will report some new information and ask readers for potential explanations of the data.

Read More

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Stanford Law Review Online: Anticipating Patentable Subject Matter

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Dan L. Burk entitled Anticipating Patentable Subject Matter. Professor Burk argues that the fact that something might be found in nature should not necessarily preclude its patentability:

The Supreme Court has added to its upcoming docket Association for Molecular Pathology v. Myriad Genetics, Inc., to consider the question: “Are human genes patentable?” This question implicates patent law’s “products of nature” doctrine, which excludes from patentability naturally occurring materials. The Supreme Court has previously recognized that “anything under the sun that is made by man” falls within patentable subject matter, implying that things under the sun not made by man do not fall within patentable subject matter.

One of the recurring arguments for classifying genes as products of nature has been that these materials, even if created in the laboratory, could sometimes instead have been located by scouring the contents of human cells. But virtually the same argument has been advanced and rejected in another area of patent law: the novelty of patented inventions. The rule in that context has been that we reward the inventor who provides us with access to the materials, even if in hindsight they might have already been present in the prior art. As a matter of doctrine and policy, the rule for patentable subject matter should be the same.

He concludes:

“I can find the invention somewhere in nature once an inventor has shown it to me” is clearly the wrong standard for a patent system that hopes to promote progress in the useful arts. The fact that a version of the invention may have previously existed, unrecognized, unavailable, and unappreciated, should be irrelevant to patentability under either novelty or subject matter. The proper question is: did the inventor make available to humankind something we didn’t have available before? On this standard, the reverse transcribed molecules created by the inventors in Myriad are clearly patentable subject matter.

Read the full article, Anticipating Patentable Subject Matter at the Stanford Law Review Online.

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The Stanford Law Review Online: Defending DOMA in Court

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Matthew I. Hall entitled How Congress Could Defend DOMA in Court (and Why the BLAG Cannot). Professor Hall argues that the Bipartisan Legal Advisory Group lacks standing to defend DOMA:

In one of the most closely watched litigation matters in recent years, the Supreme Court will soon consider Edith Windsor’s challenge to the Defense of Marriage Act (DOMA). The Court surprised many observers by granting certiorari, not only on the merits of Windsor’s equal protection and due process claims, but also on the question whether the defendants—the United States and the Bipartisan Legal Advisory Group of the House of Representatives (the BLAG)—have Article III standing to defend DOMA. The United States has agreed with plaintiffs that DOMA is unconstitutional, prompting the BLAG to intervene for the purpose of defending DOMA’s constitutionality. No lower court has yet addressed whether the BLAG has standing, so the Supreme Court will have the first crack at the issue. But it turns out that the answer is straightforward: Under settled precedent, the BLAG lacks authority to represent either the United States or Congress, and having claimed no interest of its own, it therefore lacks Article III standing.

He concludes:

Congress could solve these problems by statute or resolution, but until it does so the BLAG is a mere bystander, with no stake in defending DOMA. This lack of standing may play a decisive role in the Windsor litigation. Both the BLAG and the executive branch defendants appealed the District Court’s judgment to the Second Circuit, and petitioned the Supreme Court for certiorari. If the BLAG lacks standing, however, then it had no authority to appeal or to seek Supreme Court review, and the Court’s jurisdiction must turn on whether the United States, which has agreed with the plaintiff that DOMA is unconstitutional, has standing to proceed with the case. Interestingly, the BLAG itself has argued that no such standing exists—a controversial position that is beyond the scope of this short piece. But if the BLAG is correct, then there is no case or controversy before the Court, and the Court will have to dismiss for lack of jurisdiction. The widespread expectation that Windsor will be a significant decision appears to be well-founded. But it remains to be seen whether its significance will lie in the area of individual rights or in the areas of federal court jurisdiction and the separation of powers.

Read the full article, How Congress Could Defend DOMA in Court (and Why the BLAG Cannot) at the Stanford Law Review Online.

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Stanford Law Review Online: Politicizing the Supreme Court

Stanford Law Review

The Stanford Law Review Online has just published a Note by Eric Hamilton entitled Politicizing the Supreme Court. Hamilton writes that the Framers carefully constructed a Supreme Court independent from the political branches of government:

To state the obvious, Americans do not trust the federal government, and that includes the Supreme Court. Americans believe politics played “too great a role” in the recent health care cases by a greater than two-to-one margin. Only thirty-seven percent of Americans express more than some confidence in the Supreme Court. Academics continue to debate how much politics actually influences the Court, but Americans are excessively skeptical. They do not know that almost half of the cases this Term were decided unanimously, and the Justices’ voting pattern split by the political party of the president to whom they owe their appointment in fewer than seven percent of cases. Why the mistrust? When the Court is front-page, above-the-fold news after the rare landmark decision or during infrequent U.S. Senate confirmation proceedings, political rhetoric from the President and Congress drowns out the Court. Public perceptions of the Court are shaped by politicians’ arguments “for” or “against” the ruling or the nominee, which usually fall along partisan lines and sometimes are based on misleading premises that ignore the Court’s special, nonpolitical responsibilities.

He concludes:

The health care law’s closely watched journey through the three branches of government concluded in the Supreme Court, a rare opportunity in the sun for the Court. What would have been a shining moment for the Constitution in a vacuum was instead validation of the Framers’ apprehensions. Our Constitution is the longest-lasting in the world because of Americans’ enduring reverence for it. But when elected officials exploit Americans’ patriotism to score political points, they jeopardize the Framers’ carefully constructed balance of power. Instead, honest public discourse on the Constitution and the Court is the surest security for our government.

Read the full article, Politicizing the Supreme Court by Eric Hamilton, at the Stanford Law Review Online.

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Starting to work beneath the surface of the Medicaid holding

Ok, folks, you read it here first.  In December, I stated that I thought the Court would be inclined to solidify the coercion doctrine but would be likely to uphold the Medicaid expansion.  I am still parsing the way in which the Court performed this legal novelty, because, as I noted yesterday, even though there were seven votes holding the Medicaid expansion to be coercive, five votes upheld Congress’s power to create the expansion but basically severed the remedy for noncompliance, thus effectively upholding the expansion while also expanding the coercion cause of action.  Though I was surprised at which justices were willing to agree that Tenth Amendment limits exist on conditional spending (Breyer? Kagan?), I was not surprised that the Court expressed its federalism project through the vehicle of Medicaid’s expansion.

Although this was the first time the Court has struck down federal spending legislation as coercive, the Court still has not given us a theory to understand how it will decide future coercion cases.  The Court refused to define coercion beyond assessing the Medicaid expansion as being “beyond the line” where “persuasion becomes coercion.”  (p. 55)   We do have two points of clarification, though.  First, Florida’s brief was clearly persuasive to the Chief Justice, because he bought the states’ argument that too much money could be taken away if the states do not comply with the Medicaid expansion.  This clarifies an aspect of South Dakota v. Dole’s coercion dicta, which could be read to mean either that Congress has offered too much money or that Congress threatened to take away too much money.  Here, the Court accepted that Congress can offer the money for the Medicaid expansion, but it took issue with the fact that the Medicaid Act gives HHS the power to take away all Medicaid funding.  So, Congress can offer a lot, it just can’t threaten to take it all away.

The second point of clarification is that the Court is willing to apply the Tenth Amendment as a limiting principle to conditional spending legislation under this newly solidified coercion doctrine based on the New York v. U.S. notion of “political accountability” (which I highlighted during oral arguments).  But, the opinion relies on prior federalism opinions such as New York and Printz, which are heavy on dual sovereignty and light on cooperative federalism.  Political accountability does not provide a framework for understanding how future coercion claims might play out.[more after the jump]   Read More