On Thursday the Justices will meet for their May 23 Conference. Our list of “Petitions to watch” for that Conference is here.

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The Solicitor General has now filed the first batch of briefs in response to those invitations from the Court.  The parties to the cases will now have the opportunity to file supplemental briefs responding to the Solicitor General’s submissions.  We expect the Justices to consider the following three cases at their June 6 Conference:

BG Group PLC v. Republic of Argentina (filed May 10, 2013):  This case involves a bilateral investment treaty between the United Kingdom and Argentina; the treaty provides that before a foreign investor may pursue arbitration of an investment dispute with the host country, the investor must first litigate the dispute in the host country’s court for at least eighteen months.  The petitioner, a U.K. company that invested in a newly privatized gas company in Argentina, sought arbitration without first complying with the eighteen-month period, and the arbitrators held it acted properly.  But the D.C. Circuit held that a court must decide that question, and that the arbitration was void.  The petitioner asks the Court to determine whether a court, rather than the arbitral panel, must decide the issue.  The company alleges that the D.C. Circuit created a circuit split by holding that courts, rather than arbitrators, presumptively determine compliance with a precondition to arbitration.

The Solicitor General has recommended that the Court deny cert. in the case.  He contends that the lower court’s “case-specific conclusions do not conflict with any decision of” the Supreme Court or any other court of appeals.  Moreover, he suggests, the treaty’s litigation requirement “appears to be uncommon in international treaty practice”; as a result, the impact of the lower court’s decision is likely to be relatively narrow, and the case is in any event “an unsuitable vehicle for establishing general principles governing the interpretation of” other arbitration agreements.

[Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the petitioner in this case.]

Arzoumanian v. Munchener Ruckversichersungs-Gesellschaft Aktiengesellschaft AG (filed May 10, 2013):  A California law allows victims of the Armenian genocide that occurred in the Ottoman Empire in the early twentieth century (as well as their heirs) to file insurance claims arising out of that genocide and extends the statute of limitations for those claims.  The petitioners – who are the heirs to life insurance policies that were never paid – ask the Court to determine whether (as the en banc Ninth Circuit held) the state law is preempted (i.e., invalid under federal law) under the foreign affairs doctrine.

The Solicitor General has recommended that cert. be denied.  He tells the Court that the decision below is correct, that there is no conflict with either Supreme Court precedent or the decision of any other court of appeals, and that the case “does not present a question of broad importance.”

Harris v. Quinn (filed May 10, 2013):  An Illinois program provides assistance to individuals eligible for Medicaid, to allow them to remain in their homes rather than face the prospect of institutionalization.  In 2003, the “personal assistants” who provide much of this assistance, and are paid by the state for their services, voted to form a union; their representative then entered into a collective bargaining agreement with the state that (among other things) required the state (on the union’s behalf) to deduct from the paychecks of non-union members “fair share” fees that would cover “their proportionate share of the costs of the collective bargaining process, contract administration, and pursuing matters affecting wages, hours and other conditions of employment.”  The petitioners are personal assistants who challenge the deduction of the “fair share” fees, arguing that they violate the First Amendment.

The Solicitor General has recommended that certiorari be denied.  He tells the Court that the lower court’s decision is correct, and that there is no conflict between that decision and the decisions of either the Supreme Court or other courts of appeals.

We will cover the next batch of invitation briefs, which will be slated for the Court’s June 13 Conference, in a new post next week.

In association with Bloomberg Law

In association with Bloomberg Law

(Yale University Press, 2013).

Welcome, Floyd.  Thank you for taking the time to participate in this Question and Answer exchange for our readers.  And congratulations on the publication of your second book.

Question:

You’re seventy-six years old and still quite active in litigating First Amendment cases. And now another book about your life in the law, the law of the First Amendment, that is.  Would it be fair to say that you love your work?  

Answer:

Yes. I’ve been very lucky in a lot of ways — my family, my law firm, and my good fortune in being able to devote a good deal of my professional and personal time to seeking to protect and expand First Amendment  principles.

Question:

The title and subtitle of your latest book suggest that you are venturing, on the one hand,  to help the Court better understand the First Amendment while, on the other hand, battling those who would undermine the First Amendment.  Can you say a few words about your roles as educator and combatant?  

Answer:

I think it is possible to play both roles — educator and litigator.  Indeed, some litigation, particularly on constitutional topics, necessarily and inevitably educates and sometimes even enlightens. But the role of a litigator, after all, is to seek to prevail — the litigation equivalent of Justice William Brennan telling his law clerks that the most important thing for a member of the Court is to know how to count to five. I also, and independently from my appearances in courts, have given a lot of speeches, written a lot of articles and engaged in a lot of debates, many of which are set forth in Friend of the Court. It is in those documents, far more than what I say as counsel, that my own views are set forth.

Question:

In the Introduction to Friend of the Court you mention the gulf between the First Amendment bar and those who in the legal academy who write about the First Amendment.  Share with us some of your thoughts on that subject and how law schools train their students.

Answer:

My core criticism of the legal academy, at least in its First Amendment teaching, is not that it’s too “academic”; it’s that it doesn’t take the First Amendment — at least as I understand it — seriously enough. In my book, I quote twice from a passage of Isaiah Berlin in which he observed that “[e]verything is what it is: liberty is liberty, not equality or fairness or justice or culture, or human happiness or a quiet conscience.” In this country, I would substitute the words “First Amendment” for “liberty.” That does not mean that equality and other significant values necessarily lack constitutional or other legal support; it does mean that when we speak of the First Amendment, we should be speaking of individual liberty and not of a watered-down version drafted to accommodate those other interests — ones which can generally be protected without intruding into areas protected by the First Amendment.

Question:

The legal philosopher Ronald Dworkin, who died recently, admonished: “we must take care not to convert the First Amendment from a matter of principle to a pointless mantra that subverts rather than sustains democracy.”  What is your answer to that?

Answer:

Ronald Dworkin was a great student and teacher of both philosophy and law and we should be grateful that he has left so significant a body of work for us to continue to learn from. But I think he erred greatly in maintaining that First Amendment cases should be decided on the basis  of our view — or the Supreme Court’s view — of whether or not the speech at issue in a case  advances “democracy.”  That was one basis for his disapproval of the Citizens United ruling.

My view is that suppression of speech, particularly but not exclusively political speech, is inconsistent with what the First Amendment is most clearly and importantly about. That does not make the First Amendment a “pointless mantra”; it is the point of the First Amendment to prevent government from determining who can speak and what is worth saying.

Question:

If you can forgive my indelicacy, how do you respond to the charge that you do the bidding for big-money corporate America?  You stand with them, so the indictment goes, on copyright law, on campaign financing, and on advertising, even tobacco advertising!  By that measure, one might dare to ask the “Devil’s advocate”: “Have you no conscience, sir?” When you get such questions, as I trust you do, how do you reply?

Answer:

I reply by saying that I have spent a good deal of my professional life representing corporations, usually with no critical response by those who are offended at the identity of others of my clients. The corporations my critics seem to like (or forgive me for representing) publish newspapers, broadcast on television, own museums and the like. The ones they take offense about are more purely commercial and thus, I suppose, less deserving in the view of these critics of First Amendment protection.

I accept none of this for three reasons. First, I do not believe the First Amendment should be limited to particular classes of speakers. Second, I do not believe the First Amendment protects speakers as much as it protects speech — regardless of its source. Third, I am a lawyer who is willing and indeed pleased to represent a wide range of clients with a wide range of problems; that is, after all, what lawyers do.

Question:

Thirty years ago you wrote a piece in The New York Times Magazine (reproduced in your book) expressing serious concerns about the government’s efforts to control information.  In McBurney v. Young, decided a few weeks ago, a unanimous Supreme Court, in an opinion by Justice Samuel Alito, declared:  “This Court has repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws. . . .  It certainly cannot be said that such a broad right has ‘at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.’” The Court also added that no such right was recognized under the common law, and early American history does not support that notion, either. Moreover, the current administration, like its predecessors, seems bent on controlling more and more information. What is your reply to all of this? 

Answer:

I do not believe the First Amendment itself requires the government to disclose much in the way of information. Looking at the issue broadly, I agree with Justice Potter Stewart that the First Amendment is neither an Official Secrets Act nor a Freedom of Information Act. That said, I do believe that the government should be far more transparent than it is, that it should release far more information than it does and that there is a continuing problem of vast over-classification by the government.

Question:

In Friend of the Court you write a lot about various attacks on the press, both historical and current.  I trust you saw the May 13, 2013 AP story in which it is alleged that “the government seized . . . records for more than twenty separate telephone lines assigned to AP and its journalists in April and May of 2012.”  Are you familiar with this and do you have any comment on it?  

Answer:

The Department of Justice’s action in obtaining vast amounts of telephone records of the AP at multiple sites for a two-month period is deeply disturbing. I have no reason to doubt the good faith of the government; the leak was obviously about highly sensitive matters. But I can think of no good reason why the DOJ could not have conferred with the AP and ultimately let the courts decide the issue, if judicial action was sought by either side. From my perspective, what occurred is not different conceptually from the FBI sending agents into the AP and demanding the immediate turnover of its telephone records.

The inhibiting effect — the word “chilling” has become a one-word cliché but it is applicable here — of this sort of behavior by the DOJ is obvious here — on the press, on potential whistle-blowers, and the like. And I cannot give the DOJ or this administration the benefit of the doubt: there have been too many leak investigations, too zealous an approach to them, too little attention paid to the dangers in the government invading a newsroom.

Question:

You are on record as being a staunch defender of the holding in Citizens United v. Federal Election Commission (2010). You devote an entire chapter to it in your book.  Last August, President Obama expressed an oppositional sentiment: “Over the longer term, I think we need to seriously consider mobilizing a constitutional amendment process to overturn Citizens United.” How would you respond to the President?    

Answer:

I would urge the President to review Justice Anthony Kennedy’s opinion for the Court in Citizens United. I would ask him what his answer is to Justice Kennedy’s three hypothetical questions in that case: “The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a web site telling the public to vote for a presidential candidate in light of that candidate’s defense of free speech. All that advocacy,” Justice Kennedy wrote,  “would be criminal under the statute that the Supreme Court has now held to be unconstitutional.”

I would ask the President if he agreed that such speech could constitutionally be banned. And I would ask him if he really wants to be remembered as the first president who proposed a constitutional amendment narrowing the scope of the First Amendment.

Question:

In a recent interview on this blog, Marcia Coyle said this: “I have tremendous respect for Floyd Abrams. He is a hero to many of us in the media and I’m not surprised at all at his view of the case. He is a true champion of the First Amendment. I do think Citizens United was an aggressive decision. Citizens United had abandoned its facial challenge to the relevant provisions in the lower court so there was no record. The majority was ready to issue a decision overruling Austin and the provision in McCain-Feingold without briefing or argument, and there were narrower grounds on which to rule, alternatives offered even in Citizens United’s brief. Calling the decision aggressive does not necessarily mean that I thought it was wrong.”

Was Citizens United an “aggressive decision”? What is your reply to Ms. Coyle? 

Answer:

Of course Citizens United was an aggressive opinion. So, as I pointed out in my oral argument in the case, was New York Times v. Sullivan.  The Court did not have to go as far as it did. But as in Sullivan and too many other cases to cite here in which the Court concluded that a broad opinion was necessary, it provided one. I feel obliged to add that an awful lot of academics who seemed unconcerned at (and even celebrated) the breadth of many decisions of the Warren Court seem terribly preoccupied by the scope and procedural history of Citizens United.

Question:

You close your book with the following words: “Is it really too much to ask that those who claim they care about the First Amendment – everybody that is – stand in favor of free speech even when the speech at issue pains them ideologically?”  

We as a nation have certainly made progress on that score.  But do you really think we can make yet more progress? And what will it take for us to do so?

Answer:

It’s so hard to say. And in the so very polarized world in which we live today, it is hard to be optimistic. But we have to keep trying.

Question:

I hear you have another book in the works.  True?  What can you tell us about that?

 Answer:

True. And I have nothing to say about it.

In association with Bloomberg Law

We thought that some of you might be as interested as we were in the responses to the survey – which describe, among other things, who our readers are, where they work, how often they visit the blog, and what features they like the most.  (An even more detailed summary of the responses is available here.)

Just over half (51.7%) of the readers who responded are attorneys, while 12.3% of those who responded are law students.  As those numbers would suggest, over a third (36%) of those who responded are neither lawyers nor law students.  As a group, our readers are well-educated and legally savvy:  94.1% are college graduates, while 95.5% do not regard the blog as being “regularly written in language that is too technical.”

The government employs the largest share of our readers (34.7%) who responded; public interest lawyers make up 15.7% of our readers, followed by lawyers at large, medium-sized, and small law firms.  Almost half (49%) of our readers make time to read the blog daily (and 14.7% indicate that they read multiple times each day), while another 26.8% read at least weekly.   We’re pleased to report that many of our readers have been reading for a while:  over a quarter (26.4%) have been reading for more than five years, while 42.7% have been reading for at least two years.

Even more pleasing is that 83.5% of those who responded indicate that the blog is their “principal source” for information about the Court.  And virtually all of our readers (93.6%) reported that they regularly use the blog to keep up with “ongoing developments at the Supreme Court.”  The content on our blog that our readers regard as particularly valuable includes our case materials for cases argued on the merits at the Court (77.3% rated these as “very valuable”), our chronological posts (72.8%), live blogs (68.9%), information about the Court’s calendar (52.3%), our Plain English series (51.4%), and oral argument audio (50.1%).

We also received many helpful suggestions and comments.  We can’t take everyone’s advice, including because our readers often have different views on how we should do things, so that making a change to please one group of readers might annoy another group of readers.  Having said that, we are already at work to implement some of your ideas to make the blog more user friendly:

• Clicking on the “jump” in a post (where it says “Continue reading”) now takes you to the top of the post, rather than going to the middle of the post.
• Over the summer, we will tag and categorize posts and case pages to make it easier to search them by areas of the law – for example, Fourth Amendment, ERISA, bankruptcy, or tax.
• Similarly, we will add categories for “opinion analysis” posts and our popular “Relist watch” feature to make them easier to find.
• We are working on a new mobile site.
• To make it easier to find particular briefs on the case pages, we hope to add color coding for merits briefs – for example, the petitioner’s opening brief will be light blue, the respondent’s brief will be red, and the petitioner’s reply brief will be yellow.
• We are moving “This week at the Court,” our list of recently decided cases, our list of upcoming petitions, statistics, major cases of the Term, and Twitter to an accordion menu at the top of the sidebar.
• We are replacing the horizontal menus with a simpler vertical menu.

In association with Bloomberg Law

In association with Bloomberg Law

• Yesterday the Senate Judiciary Committee unanimously approved the nomination of Principal Deputy Solicitor General Sri Srinivasan to the U.S. Court of Appeals for the D.C. Circuit. At USA Today, Richard Wolf reports on the committee’s vote and discusses the prospect that Srinivasan could eventually be nominated to fill a vacancy on the Supreme Court; Matthew Huisman of the BLT also has coverage of the vote.
• With the federal government having filed its cert. petition in National Labor Relations Board v. Noel Canning, seeking review of the D.C. Circuit’s decision that the President’s recess appointments to the NLRB are unconstitutional, Moshe Marvit predicts at The Century Foundation that “no matter how the court case is resolved the most recent era of the NLRB is likely over.”
• Jess Bravin of The Wall Street Journal reports on the Court’s spring musicale.
• At Lawyers.com, Aaron Kase covers Monday’s decision in Bowman v. Monsanto Co., in which the Court held that the doctrine of patent exhaustion does not allow a farmer to reproduce patented seeds through planting and harvesting without the patent holder’s permission.
• With the Court’s decision in Fisher v. University of Texas at Austin, the challenge to the constitutionality of the university’s use of affirmative action in its undergraduate admissions process, expected by the end of next month, Roger Clegg offers his “simple prescription for race relations” at Minding the Campus.
• For this blog, Deepak Gupta analyzes Monday’s decision in Dan’s City Used Cars v. Pelkey.
• Meredith Heagney covers Justice Ginsburg’s appearance at the University of Chicago Law School, where she spoke with Geoffrey Stone before a capacity crowd. At Salon, Alex Seitz-Wald reports on remarks by retired Justice John Paul Stevens, who told an audience last night that the rationale behind the Court’s decision in Bush v. Gore was “really quite unacceptable.”

[Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, represented the American Association of Law Schools as an amicus in Fisher. In its former incarnation as Thomas C. Goldstein, P.C., the firm also represented the respondents in Bush v. Gore.]

If you have (or know of) a recent article or post that you would like to have included in the round-up, please send a link to roundup [at] scotusblog.com so that we can consider it.

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This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues.  Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.

In association with Bloomberg Law

In association with Bloomberg Law

But Dan’s City is about much more than the storage and disposal of towed vehicles. The Court’s opinion will have implications for preemption defenses raised by the trucking and airline industries in a wide range of cases under consumer, employment, labor, and environmental laws. As I explained in my preview of the case, the Justices’ challenge was to identify some sound limits on a preemption statute, the Federal Aviation Administration Authorization Act (FAAAA), that was designed to prevent states from thwarting federal transportation deregulation but whose application often strays well beyond that goal. A lack of guidance from the Supreme Court, coupled with the statute’s open-ended text – it broadly preempts state laws “related to” carriers’ prices, routes, or services “with respect to the transportation of property” – has led lower courts to find preemption in unexpected places, like cases involving state-law bribery and racketeering claims.

After oral argument, I predicted that the Court would unanimously limit preemption, and do so in one of three ways: (1) by interpreting the word “transportation,” (2) by attempting to ensure that any preemption is moored in federal deregulatory purposes (as suggested by Justice Breyer and the Solicitor General), or (3) by precluding preemption of generally applicable laws with no special reference or application to transportation, based on a 2002 dissent by Justice Scalia. The first would be of limited help to the lower courts, but the second and third could affect many cases. As it turns out, the opinion contains a mix of all three flavors, with a strong emphasis on the third.

Adopting reasoning from the Scalia dissent as its own, the Court focused most heavily on seven words in the statute that previously received scant attention – “with respect to the transportation of property.” That qualifying language, the Court explained by quoting Justice Scalia, “massively limits the scope of preemption ordered by the FAAAA.” The phrase makes clear that federal law doesn’t preempt state laws that merely relate to a carrier’s prices, routes, or services “in any capacity,” but only state laws that focus on the “transportation of property.” So “state trucking regulations” are preempted, but Pelkey’s consumer-protection and common-law claims, which govern the towing company “as a bailee of his stored vehicle,” are not. That straightforward statutory analysis – the heart of the opinion – will make it much harder for the transportation industry to seek shelter from preemption in cases involving generally applicable state laws that were not aimed at transportation.

The Court offered a brief discussion of why Pelkey’s claims – which sought compensation for the loss of his car – would not interfere with Congress’s purpose of ensuring interstate competition in the market for interstate trucking. The Court also tied its approach to preemption in the ERISA context – another elusive preemption statute that focuses on whether state law is “related to” the concerns of federal law. The breadth of the phrase “related to” in the FAAAA, the Court emphasized, “does not mean that the sky is the limit.” As in ERISA, the phrase should not be read with an “uncritical literalism”; otherwise “for all practical purposes pre-emption would never run its course.”

Finally, echoing Justice Kagan’s comment at argument that Dan’s City had to “take the bitter with the sweet,” the Court criticized Dan’s City’s attempt to “have it both ways” by simultaneously relying on the state-law regulatory framework as authority to sell Pelkey’s car while at the same time arguing that Pelkey’s claims, invoking that same regulatory framework, are preempted. That would leave a gaping regulatory vacuum – a zone in which no law at all would address a subject on which federal law does not speak. The Court was unwilling to attribute such a design to “a rational Congress.”

(The Court has another FAAAA preemption case on its docket: American Trucking Associations v. City of Los Angeles, argued on April 16. In that case, the question is whether there is a “market participant” exception to the preemption statute.  A decision in American Trucking is expected by June. This week’s decision has no obvious impact on that case.)

Plain English Summary:  Under the U.S. Constitution’s Supremacy Clause, federal law trumps contrary state law. This doctrine is known as federal preemption. A 1994 federal law preempts state laws “related to a price, route, or service of any motor carrier . . . with respect to the transportation of property.” A New Hampshire man sued Dan’s City Used Cars, seeking compensation under state law because the company had towed his car away from his home and sold it over his protest. The Supreme Court unanimously held that his suit could go forward – that is, that the 1994 law did not preempt his state-law claims because they were not related to the transportation of property or the service of a motor carrier.

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