June 25, 2010
Kagan Confirmation Hearing: Material from the Senate Judiciary Committee
The confirmation hearing of Elena Kagan to be an Associate Justice of the United States Supreme Court begins Monday, June 28, 2010, at 12.30pm.
The Senate Judiciary Committee has released the witness list:
American Bar Association Witnesses
Kim Askew, Chair of Standing Committee
William J. Kayatta, Jr., First Circuit Representative
Professor Robert C. Clark, Harvard University Distinguished Service Professor, Austin Wakeman Scott Professor of Law, and former Dean, Harvard Law School
Justice Fernande "Nan" Duffly, Associate Justice, Massachusetts Court of Appeals, on behalf of the National Association of Women Judges
Greg Garre, Partner, Lathan & Watkins, former Solicitor General of the United States
Jennifer Gibbins, Executive Director, Prince William Soundkeeper
Professor Jack Goldsmith, Professor of Law, Harvard University
Marcia Greenberger, Founder and Co-President, National Women's Law Center
Jack Gross, plaintiff, Gross v. FBL Financial Services Inc.
Lilly Ledbetter, plaintiff, Ledbetter v. Goodyear Tire
Professor Ronald Sullivan, Edward R. Johnston Lecturer on Law, Director of the Criminal Justice Institute, Harvard law School
Kurt White, President, Harvard Law Armed Forces Association
Robert Alt, Senior Fellow and Deputy Director, Center for Legal and Judicial Studies, The Heritage Foundation
Lt. Gen. William "Jerry" Boykin, United States Army (ret.)
Capt. Pete Hegseth, Army National Guard
Commissioner Peter Kirsanow, Benesch Law Firm
David Kopel, Esq., Research Director, Independence Institute
Colonel Thomas N. Moe, United States Air Force (ret.)
David Norcross, Esq., Blank Rome
William J. Olson, Esq., William J. Olson, P.C.
Tony Perkins, President, Family Research Council
Stephen Presser, Raoul Berger Professor of Legal History, Northwestern University School of Law
Ronald Rotunda, The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University School of Law
Ed Whelan, President, Ethics and Public Policy Center
Dr. Charmaine Yoest, President & CEO, Americans United for Life
Capt. Flagg Youngblood, United States Army
In addition to its "noteworthy" sidebar (above right) making it clear that Kagan would be the fourth woman to serve on the Supreme Court if she is confirmed, the Senate Judiciary Committee website also includes the following materials relevant to the Kagan nomination and hearing:
Nomination and Hearing Materials, Information and Guidance
June 24, 2010
Doe v. Reed Opinion Analysis: No Right to be Anonymous on a Ballot Initiative Petition?
In Doe v. Reed, the Court today rejected a facial First Amendment challenge to the disclosure of names on a petition seeking a ballot initiative. Chief Justice Roberts wrote the Opinion for the Court; only Thomas dissented, although there are several concurring opinions: Breyer, Alito, Sotomayor (joined by Stevens and Ginsburg), Stevens (joined by Breyer), and Scalia.
As we discussed in our post on the oral argument here, the background facts are bit confusing, as the situation involves the state of Washington's ballot initiative to negate SB 5688 (the "everything but marriage" for same-sex couples law) and the Washington Public Records Act (PRA), RCW 42.56 that governs the disclosure of public records including petitions seeking a ballot initiative.
The Court's rather brief opinion - - - 13 pages - - - concluded that signing a petition for a ballot initiative is expressive political activity. (There was some discussion at oral argument that merely signing a petition doesn't really "express" anything). The Court then noted two relevant considerations: that the setting is an electoral one and that the state law is a disclosure requirement rather than a prohibition (citing Citizens United).
The Court articulated an "exacting scrutiny" standard:
requiring a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.” To withstand this scrutiny, “the strength of the governmental interest must reflect the seriousness of the actual burden on First Amendment rights.”
(Opinion at 7, citations omitted). The Court found that the State's interest in "preserving the integrity of the electoral process by combating fraud, detecting invalid signatures, and fostering government transparency and accountability" sufficed to defeat the First Amendment challenge to disclosure of referendum signatures. The Court therefore did not reach the State's other asserted interest, the so-called "informational interest."
Concurring, Scalia echoes some of his statements from oral argument and proclaims: "Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed," adding that "This does not resemble the Home of the Brave." (Scalia, at 10).Thomas, dissenting, takes the opposite view, arguing that the disclosure of referendum petitions chills citizen participation in the process.
The Court did not reach the "narrower challenge" of the plaintiffs that remains pending before the federal district court. That challenge is an as-applied challenge contesting the disclosure of the names on this particular petition because it involves the controversial issue of same-sex marriage and relying on incidents in California. (As the Court noted, however, the First Amendment challenge that the Court did reach might also be termed an "as-applied challenge" because it involves the application of the state's general public records act to the particular situation of ballot initiatives; the Court applied the standard for facial challenges because "plaintiffs’ claim and the relief that would follow— an injunction barring the secretary of state 'from making referendum petitions available to the public,'" — reach beyond the particular circumstances of these plaintiffs." (Opinion at 5).
However, two concurring justices commented on the narrower challenge. Alito's concurrence contended that the plaintiffs have a "strong" First Amendment argument in light of the "widespread harassment and intimidation suffered by supporters of California’s Proposition 8." (Alito at 3, emphasis added).
On the other hand, Stevens (joined by Breyer) wrote that:
Any burden on speech that petitioners posit is speculative as well as indirect. For an as-applied challenge to a law such as the PRA to succeed, there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures. Moreover, the character of the law challenged in a referendum does not, in itself, affect the analysis. Debates about tax policy and regulation of private property can become just as heated as debates about domestic partnerships. And as a general matter, it is very difficult to show that by later disclosing the names of petition signatories, individuals will be less willing to sign petitions. Just as we have in the past, I would demand strong evidence before concluding that an indirect and speculative chain of events imposes a substantial burden on speech.
(Stevens Opinion at 4, emphasis added).
Thus, while the narrow as-applied challenge was not addressed by the Court, two concurring opinions seek to advise the federal district judge regarding a ruling on that challenge.
Con Law Colloquium at Loyola Chicago
The Loyola University Chicago Law School recently announced the line-up for its fall con law colloquium titled How Democratic is the Constitution? The colloquium will take place at the Philip H. Corboy Law Center at Loyola in Chicago starting Friday morning, November 5, 2010, and running through midday Saturday, November 6, and includes con law profs from around the country.
From the announcement:
This is the first annual Loyola conference bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals.
June 23, 2010
Preliminary Injunction on Deepwater Drilling Moratorium: Financial Investment in the Outcome?
Judge Martin Feldman of the United States District Court for the Easter District of Louisiana has issued a preliminary injunction of Secretary of the Interior Salazar's six month moratorium issued May 28, 2010, after a report on the BP Deepwater Horizon explosion and oil "spill."
Judge Feldman's 22 page "Order and Reasons" available here concluded that the Secretary's moratorium pursuant to the authority of the Outer Continental Shelf Lands Act, 43 U.S.C. §1332, was "arbitrary and capricious" under the standards of the Administrative Procedure Act.
What may make this issue of special interest to constitutional law profs is the possibility of due process arguments regarding Judge Feldman's decision. Recall last year's United States Supreme Court 5-4 opinion in Caperton v. Massey - - - decided before the Massey mine disaster this year - - - in which the Court found that denial of due process when a state supreme court justice failed to recuse himself in litigation involving Massey Coal Company despite the fact that the company's owner had contributed heavily to the judicial campaign.
The specter of a judge having a financial interest in a case the judge is deciding is unsettling, usually discussed as a matter of judicial ethics. Judge Feldman is now being scrutinized for reportedly having substantial investments in companies that participate in deepwater oil drilling; a financial disclosure statement is here; more reports here and here.
Feldman's opinion does not reveal his own investments, but certainly makes clear the financial interests of many Gulf Coast residents:
The plaintiffs’ complaint is based on the effect of the general moratorium on their oil service industry business, on the local economy, and puts in play the issue of the robustness of a Gulf-wide industry and satellite trades. Gulf of Mexico drilling activities rely upon a vast and complex network of technology, assets, human capital and experience. Indeed, an estimated 150,000 jobs are directly related to offshore operations. The government admits that the industry provides relatively high paying jobs in drilling and production activities. Oil and gas production is quite simply elemental to Gulf communities. There are currently approximately 3600 structures in the Gulf, and Gulf production from these structures accounts for 31% of total domestic oil production and 11% of total domestic, marketed natural gas production. Sixty-four percent of active leases are in deepwater, over 1000 feet. The plaintiffs own and operate vessels, shipyards, and supply services companies that support deepwater oil exploration and production in the Gulf. In addition to the vessels and facilities involved in their work, the plaintiffs together employ over 11,875 people. At least nineteen other companies, aside from BP’s operations involved with Deepwater Horizon, are presently operating deepwater drilling rigs.
Secretary Salazar will reportedly be issuing a new moratorium order with additional rationales as well as considering an appeal of Judge Feldman's Preliminary Injunction.
[Update: The Department of Justice has filed a motion to stay Judge Feldman's Preliminary Injunction; pleadings at SCOTUSblog here].
[Update: Fifth Circuit Opinion and more on financial matters here].
June 22, 2010
Street Artists in New York City
How many artists must the constitution allow?
That's not precisely the issue in the continuing saga of NYC's repeated attempts to curtail the number of artist vendors in Manhattan. However, the city has long sought to limit the number of "expressive vendors," especially near museums and in popular venues such as Union Square Park, in order to avoid crowding.
In the latest round, the city relented a bit "after listening to the complaints of aggrieved artists" according to the NYT, so that the total number of artists the city would allow would be "as many as 140" rather than the originally planned 81. At present there are reportedly more than 300 artists who sell their productions on the streets of NYC.
Shortly after the new regulations were promulgated, two artists filed a complaint in federal court. One of the plaintiffs is Robert Lederman, who previously prevailed on First Amendment claims against the city, Bery v. City of New York, 97 F.3d 689 (2nd Cir. 1996). Lederman contends the new regulations are a prior restraint. Interestingly, Lederman includes an equal protection claim, contending that the "real purpose" behind the new regulations are to rid the parks of artists engaged in political speech "in order to give preference to corporate vendors" who are not engaged in political speech and will pay the city a premium for exclusive use of the parks.
(image: Autoportrait, Alfred Le Petit, 1893, via)
June 21, 2010
Holder v. Humanitarian Law Project Opinion Analysis: Material Support Statute Upheld
Roberts, writing for the Court composed of six Justices, in Holder v. Humanitarian Law Project, upheld the so-called "material support" provision of the PATRIOT Act against a due process Fifth Amendment and a free speech and association First Amendment challenge. (Opinion here via ScotusBlog). We previously discussed the oral arguments and the statutory provisions at issue here.
On the vagueness issue, Roberts wrote that the Ninth Circuit improperly merged the due process and free speech claims, and that a "Fifth Amendment vagueness challenge does not turn on whether a law applies to a substantial amount of protected expression": "Otherwise the doctrines would be redundant." The Court distinguished the statutory terms in PATRIOT Act - - - "training," "expert advice or assistance," "service" and "personnel" - - - from previously adjudged vague terms such as "annoying," "indecent," and "vagrants." (Opinion at 15).
In discussing the First Amendment free speech arguments, the Court characterized the positions of both HLP and the government as "extreme." (at 20). The Court rejected the argument of the plaintiff HLC that "pure political speech" was covered by the statute and likewise rejected Holder's argument that "the only thing truly at issue in this litigation is conduct, not speech." (at 21). Yet while the Court declined to apply the O'Brien test, the Court accorded great deference to Congressional findings regarding the PKK and LTTE (Tamil Tigers) and noted that money is fungible, thus supporting the conclusion that "humanitarian aid" could ultimately serve the violent activities of "terrorist" organizations. The Court also gave deference to the Executive branch, quoting a State Department Affidavit (at 28). While the majority acknowledged the Court had an important role to play - - - writing "we are one with the dissent" that national security considerations do not "automatically trump" judicial obligations - - - the majority quickly emphasized the judicial "lack of competence" in such matters. The majority chastises the dissent for failing to address "the real dangers at stake." (at 33).
Regarding the free association claims under the First Amendment, the Court dispensed of plaintiffs arguments quickly, noting that the Ninth Circuit had similarly rejected these claims.The Court ended its 36 page opinion with a citation to the Constitution's preamble ("provide for the common defence") and the Federalist No. 41 ("security against foreign danger" as an "avowed and essential object" of the United States).
Breyer who read his dissent from the bench, was joined by Ginsburg and Sotomayor. The dissent agreed with Court's conclusion regarding vagueness, but forcefully disagreed with the Court's First Amendment conclusions. While recognizing the threat of terrorism, the dissent argued that the plaintiffs' prohibited acts were political speech and that the government did not demonstrate how prohibiting the teaching of the use of international law to peacefully resolve disputes, for example, helps achieve the security interest. (Dissent at 7). In discussing this issue, Breyer rejects the fungibility conclusion, finding that it is not obvious and that the Government has not provided an empirical basis. Breyer also rejects the proffered "legitimacy" justification, noting that the statute allows many other types of speech that would also lend legitimacy to the terrorist organizations.
Breyer also criticizes the majority's imposition of a new mens rea requirement to save the statute's constitutionality, and argues that the Court should have remanded the case rather than apply this new rule.
Ultimately, Breyer concludes that the Court failed to "examine the Government's justifications with sufficient care" and failed to "insist upon specific evidence, rather than general assertion." (at 23). As a result, Breyer contends, the "individuals" before the Court are being deprived "the protection the First Amendment demands."