Comments on: What Davenport Should Mean for Wisconsin Right to Life http://www.scotusblog.com/2007/06/what-davenport-should-mean-for-wisconsin-right-to-life/ The Supreme Court of the United States blog Mon, 23 Jan 2012 22:38:26 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Jacob Berlove http://www.scotusblog.com/2007/06/what-davenport-should-mean-for-wisconsin-right-to-life/#comment-11365 Jacob Berlove Thu, 14 Jun 2007 18:10:55 +0000 http://www.scotusblog.com/wp/uncategorized/what-davenport-should-mean-for-wisconsin-right-to-life/#comment-11365 A little off topic... but it just hit me: The Davenport concurrence of Breyer, Roberts, and Alito, begs the members of the court, in the interest of judicial modesty or judicial minimalism (depending on one's point of view), not to address issues not adequately argued in the lower courts and argued and briefed in front of the Supreme Court. This concurrence is strangely reminiscent of the plurality in last year's Vermont campaign finance case, containing the same lineup of justices and a warning against judicial overreaching in upsetting settled campaign finance jurisprudence too much. Justice Alito concurred, saying that he wouldn't address arguments asking for an overruling of precedent not adequately briefed or argued. I have an eery feeling that Justice Breyer, in what is probably an effort at damage control, will again find a way to narrowly rule in favor of Wisconsin Right to Life, and write or join an opinion joined as well by Justices Roberts and Alito, in which principles of judicial restraint will be emphasised in making the holding as narrow as possible. A little off topic… but it just hit me: The Davenport concurrence of Breyer, Roberts, and Alito, begs the members of the court, in the interest of judicial modesty or judicial minimalism (depending on one’s point of view), not to address issues not adequately argued in the lower courts and argued and briefed in front of the Supreme Court. This concurrence is strangely reminiscent of the plurality in last year’s Vermont campaign finance case, containing the same lineup of justices and a warning against judicial overreaching in upsetting settled campaign finance jurisprudence too much. Justice Alito concurred, saying that he wouldn’t address arguments asking for an overruling of precedent not adequately briefed or argued. I have an eery feeling that Justice Breyer, in what is probably an effort at damage control, will again find a way to narrowly rule in favor of Wisconsin Right to Life, and write or join an opinion joined as well by Justices Roberts and Alito, in which principles of judicial restraint will be emphasised in making the holding as narrow as possible.

]]> By: Don_Miller http://www.scotusblog.com/2007/06/what-davenport-should-mean-for-wisconsin-right-to-life/#comment-11364 Don_Miller Thu, 14 Jun 2007 17:44:36 +0000 http://www.scotusblog.com/wp/uncategorized/what-davenport-should-mean-for-wisconsin-right-to-life/#comment-11364 In the <i>Austin</i> decision, the court held that unions were at a disadvantage to corporations in their ability to collect funds for electioneering efforts. But in the <i>Davenport</i> case, the court found that the unions were not at a disadvantage. In fact the court found that the collection of agency fees on non-members was a tax <blockquote> It is undeniably unusual for a government agency to give a private entity the power to tax government employees. </blockquote> This taxing power is what differentiates the unions in <i>Davenport</i> from the unions in <i>Austin</i> In the Austin decision, the court held that unions were at a disadvantage to corporations in their ability to collect funds for electioneering efforts.

But in the Davenport case, the court found that the unions were not at a disadvantage. In fact the court found that the collection of agency fees on non-members was a tax

It is undeniably unusual for a government agency to give a private
entity the power to tax government employees.

This taxing power is what differentiates the unions in Davenport from the unions in Austin

]]> By: Jacob Berlove http://www.scotusblog.com/2007/06/what-davenport-should-mean-for-wisconsin-right-to-life/#comment-11363 Jacob Berlove Thu, 14 Jun 2007 17:41:49 +0000 http://www.scotusblog.com/wp/uncategorized/what-davenport-should-mean-for-wisconsin-right-to-life/#comment-11363 It seems to me that <i>Davenport</i> is distinguishable because the unions were allowed by the state to take money against the will of non-member employees. That state conferred privilege creates a constitutional concern that may be appropriately dealt with by requiring non-members to give specific consent if the union is to use their money for political speech. In the case of corporations, however, no particular class of individuals is singled out in being forced to subsidize them, so there are no constitutional concerns of compelled speech. It is therefore perfectly sensible to require stricter standards before the government may place a content based restriction on the use of corporate funds, regardless of the relative strengths and weaknesses of unions and corporations. It seems to me that Davenport is distinguishable because the unions were allowed by the state to take money against the will of non-member employees. That state conferred privilege creates a constitutional concern that may be appropriately dealt with by requiring non-members to give specific consent if the union is to use their money for political speech. In the case of corporations, however, no particular class of individuals is singled out in being forced to subsidize them, so there are no constitutional concerns of compelled speech. It is therefore perfectly sensible to require stricter standards before the government may place a content based restriction on the use of corporate funds, regardless of the relative strengths and weaknesses of unions and corporations.

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