Below is an essay for our Race and the Supreme Court program by Harvard Law School professor Kenneth W. Mack.  Professor Mack writes extensively on the history and politics of civil rights law; his book Representing the Race: Creating the Civil Rights Lawyer, 1920-1955 will be published by Harvard University Press this year.

Although political scientists are fond of presenting it as a novel idea, the idea that the Supreme Court is a political institution has long been fairly obvious to African Americans and their constitutional advocates.  The proposition that the Court is an institution embedded in the larger politics of the world around it was self-evident to those who had noticed the curious convergence between the narrowing of their constitutional rights and the onset of the Jim Crow era.  Los Angeles civil rights lawyer Loren Miller stated a strong version of the thesis when he wrote, in the mid-1930s, that “I know that behind the scenes . . . public opinion exerts the determining role in law,” but he captured the general thrust of what had become conventional wisdom.  Sometimes even the Justices have to be reminded of it, as the exchange between President Obama and Justice Alito during this year’s State of the Union attests, but to those who have had perhaps the largest stakes in the question, its answer has been clear for quite some time.  The first two African Americans to sit on the Court, Justices Thurgood Marshall and Clarence Thomas, were keenly aware of this issue.  Each man approached it in a different way, as will, no doubt, the newest Justice, Sonia Sotomayor.

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Last month’s Supreme Court ruling in Citizens United v. FEC is still making headlines.  In an opinion piece for Politico, Nan Aron discusses the case in the context of judicial nominations, arguing that the decision reflects the strong influence of the Court’s conservative Justices.  Based on the “politically driven” records and confirmation-hearing performances of Chief Justice John Roberts and Justice Samuel Alito, Aron posits, Democrats should not be surprised at the ruling in Citizens, and they should further be mindful of GOP attempts to stall the confirmations of more politically moderate judicial nominees.  Also looking forward, David Schenck writes for the Texas Tribune that Citizens will almost certainly contribute to the end of direct elections for state judges: in combination with the Court’s decisions in Republican Party v. White and Caperton v. Massey, Citizens will bring corporate influence over judicial elections into full public view, contributing to a profound loss of voter confidence in the judicial electoral process.  At the Christian Science Monitor, Warren Richey and Linda Feldmann have an informative piece on Citizens, clarifying a number of the issues that have arisen in the recent controversy over the case.

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The following is an opinion piece on the decision in Citizens United v. Federal Election Commission by Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law at Capital University Law School and chairman of the Center for Competitive Politics.  Professor Smith is a former chairman of the Federal Election Commission.  The post is divided into halves; the second part will follow shortly.

Last month’s Supreme Court decision in Citizens United v. Federal Election Commission is an important step to restoring political speech to the primacy it deserves under the First Amendment.

For years now, both outside observers such as I and members of the Court, most notably Justices Scalia and Thomas, have pointed out that the Court has been giving greater protection to such non-political speech as internet pornography, nude dancing, and the transmission of stolen communications than it has to core political speech.  These charges, whether made in judicial opinions, such as Justice Thomas’s dissent in Nixon v. Shrink Missouri Government PAC, or in public commentary have gone unanswered.  It is, of course, relatively easier to defend the First Amendment when the consequences of doing so seem unlikely to upset one’s own life or to have a broad impact (see, e.g., East Hartford Education Association v. Board of Education, upholding the right of a teacher not to wear a tie in the classroom), than it is when upholding the First Amendment may have major consequences for one’s own cherished political beliefs.  And let us make no mistake – there is a reason that the political left has been howling about Citizens United, and it is the belief that corporate political speech will benefit causes with which they disagree (see quotes from Democratic Senators and President Obama in recent newspaper stories here, here, and here).

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Last week at the Supreme Court of the United States was certainly a huge one, especially given the decision in Citizens United. But one of the things we SCOTUSbloggers love about the Court is that every week brings its own new, interesting developments.

Take Monday’s short-as-can-be decision in Briscoe v. Virginia.  Now, I and others on this blog have discussed the case from any number of angles (see here, for example).  But for those of you watching and reading out there, Monday’s decision may have slipped right by you – that is how unexpected it was to some of us, in the timing at least.   Why?  Well, because the case was only argued two weeks ago, as discussed here.   Usually, it takes the Court a while to reach agreement about the proper outcome of a case, then draft an opinion. As I discussed last week when explaining why we waited for quite some time for the Citizens United decision, these decisions are extremely important and far-reaching.   But in Briscoe, the Court decided the case quickly and definitively in what Richard Friedman, one of the attorneys in the case, has called a G . . . . VR.

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Below, Brian Goldman of Stanford Law School recaps the Court’s opinion in Hemi Group, LLC v. City of New York, which was decided on Monday.  Brian’s preview and recap of oral arguments in the case were published on the blog in early November, and are also available on the Hemi Group (08-969) SCOTUSwiki page.

On January 25, New York City was handed a defeat in its effort to recoup thousands of dollars in unpaid tobacco taxes when the Court ruled, by a vote of five to three, that the City could not use the Racketeer Influence and Corrupt Organizations Act (RICO) to go after out-of-state on-line cigarette retailers.

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Below, James Bickford of Harvard Law School recaps the Court’s opinion, handed down on Wednesday, in South Carolina v. North Carolina, an original jurisdiction case.  (Disclosure: Akin Gump represented the Catawba River Supply Project, which sought to intervene in the proceedings, but James was not involved in the case.)

In 2007, South Carolina brought an action against North Carolina, asking the Court to equitably apportion the waters of the Catawba River, which flows through both states.  South Carolina claimed that its northern counterpart had been diverting more than its fair share.  Because this was a conflict between two states, South Carolina invoked the Court’s original jurisdiction and was granted leave to file a complaint.  Three parties then attempted to intervene in the suit: (1) the Catawba River Water Supply Project, which is jointly owned by and supplies water to two counties on opposite sides of the state border; (2) Duke Energy, which operates eleven dams and reservoirs on the Catawba, holds a long-term license to draw hydroelectric power from them, and led a multiparty negotiation of the terms under which it would apply to renew that license; and (3) the City of Charlotte, which holds a state permit to divert thirty-three million gallons of water a day from the Catawba.  The Court referred both the complaint and the intervention motions to a special master, who issued a report recommending that all three parties be permitted to intervene.  South Carolina filed exceptions to the report, and the Court heard oral argument in October.

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Commentators continue to weigh in on last Thursday’s decision in Citizens United v. FEC.  In Slate, Barry Friedman and Dahlia Lithwick characterize the timing of the decision as “terrible” in light of the nation’s economic woes, and they describe the outcome as somewhat unexpected given the conservative-leaning Court’s recent decisions to uphold the Voting Rights Act (in NAMUDNO) and disparate-impact tests (in Ricci).  Kenneth Jost also criticizes the Court’s decision as overly broad, opining that such expansive decisions should be reserved for instances in which the Court needs to protected endangered constitutional rights.  And at The New York Times, Adam Liptak describes Justice Stevens’s “full-throated” and disappointed dissent, noting that his recent opinions have been united by the theme that the Court has “lost touch with fundamental notions of fair play.”

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Below, Shira Liu, a student at Stanford Law School, recaps last week’s oral argument in Mac’s Shell Service v. Shell Oil Products Co. and Shell Oil Products Co. v. Mac’s Shell Service. Shira’s earlier coverage of the case is available here. Check the Mac’s Shell Service (08-240 and 08-372) SCOTUSwiki page for additional updates.

During oral argument on January 19 in Mac’s Shell Service v. Shell Oil, the Court focused on the first question presented in the case and searched for a clear test on two issues: when can a retail gasoline franchisee claim constructive termination of a dissolved franchise relationship under the Petroleum Marketers Protection Act (PMPA), and when, if ever, can it claim constructive termination when it continues to operate?

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Below, Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School, discusses last Thursday’s decision in Citizens United v. Federal Election Commission (08-205).

There is no doubt that Citizens United v. Federal Election Commission marks a major upheaval in First Amendment law and signals the end of whatever legitimate claim could otherwise have been made by the Roberts Court to an incremental and minimalist approach to constitutional adjudication, to a modest view of the judicial role vis-à-vis the political branches, or to a genuine concern with adherence to precedent.

The masterful dissent by Justice Stevens, which merits close reading by anyone interested in the Supreme Court as an institution or in the Constitution as a source of law, shreds any serious claim to the contrary. It also gravely undermines the First Amendment analysis offered by the majority and concurring opinions, doing so thoroughly enough that anyone who (like me) regards the issues in this case as close and difficult has to wish that Justice Kennedy, joined by the Chief Justice and by Justices Scalia, Thomas, and Alito, had been less emboldened by the knowledge that the votes were there for what they all deemed the right result and had taken greater care to respond, point by point, to the largely unanswered critique launched by Justice Stevens, joined in his dissenting opinion by Justices Ginsburg, Breyer, and Sotomayor.

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By now, you have likely heard the news:  The Supreme Court ruled yesterday that the government may not keep corporations (and probably, as Lyle reasons in his post yesterday, labor unions) from spending money to support or denounce individual candidates in elections.  While the business entities may not give money directly to campaigns, they may seek to persuade the voting public through other means, including ads, especially where these ads were not broadcast. Why?  Because the First Amendment guarantees the right to free speech, and political spending is one form of that protected speech.

The four dissenting Justices were vocal and vociferous:  They voiced the concern that allowing unfettered spending by rich corporations will allow those corporations to influence the outcome of elections in sweeping ways.  They also explained that corporations are not human beings and should not have the same free speech rights that humans do.

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Below, Tiffany Cartwright, a student at Stanford Law School, analyzes the opinion in Wood v. Allen (08-9156), which was issued on Wednesday.  Her piece now appears on the case’s SCOTUSwiki page, with a link to the opinion.

After an oral argument in November that suggested much confusion and little agreement regarding the interaction of two provisions of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), on Wednesday the Supreme Court denied habeas relief to petitioner Holly Wood without resolving the very issue on which it had granted certiorari:  how to interpret the provisions at issue.  The opinion thus demonstrates the difficulty of obtaining federal post-conviction relief and leaves unsettled a clear circuit split in a confusing area of the law.

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Media attention has focused on Citizens United v. FEC, which Robert Barnes of the Washington Post suggests may be a demonstration of the Court’s “new willingness to act boldly.”  For further coverage, see Lyle’s post on the personhood of corporations or yesterday’s Citizens United round-up.

Some commentators asserted that yesterday’s decision will negatively affect elections and the national political climate.  Zephyr Teachout at Big Money cites a recent report which found that “the financial industry spent $336 million on lobbying in the first three quarters of 2006.”   Teachout suggests that Justice Kennedy, in an effort to form a technical, logical argument, missed the reality of how politics work.  The Christian Science Monitor’s editorial board opines that the Court’s decision could cloud out individual donors.  The authors encourage watch dog groups, including the FEC, to be vigilant this election term, a cycle which they view as a test of the new rules’ feasibility.  Writing for ACSblog, Brenda Wright posits that “casting off all restrictions on corporate political spending” after corporate leadership “helped spark a financial meltdown” shows a disconnect in the Court’s thinking.  The NYT editorial page also comments.

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The following is a recap of Wednesday’s oral argument in Berghuis v. Smith (08-1402) by Harvard law student James Bickford.  His analysis and the argument transcript are now also available on the case’s SCOTUSwiki page.

During oral argument in Berghuis v. Smith, the Court – despite  repeated attempts by Eric Restuccia, the Michigan Solicitor General, to emphasize the deferential standard under which habeas corpus petitions are reviewed – focused primarily on the intricacies of the Sixth Amendment claim at the heart of this case.  You can read my preview of the case for SCOTUSblog here.

Mr. Restuccia began his argument by framing the question before the Court as whether, “in rejecting Mr. Smith’s [Sixth Amendment] claim that his jury was not drawn from a fair cross-section of the community,” the Michigan Supreme Court “unreasonably applied clearly established Supreme Court precedent” – a standard of review established by the Antiterrorism and Effective Death Penalty Act (AEDPA).  Mr. Restuccia then recounted the “clearly established Supreme Court precedent” at issue in the case: the Court’s 1979 decision in Duren v. Missouri, under which a defendant must demonstrate that a distinctive group was systematically denied fair and reasonable representation on the juries of the jurisdiction where he was tried.

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Analysis

Supreme Court Justice John Paul Stevens may have had his tongue in his cheek, or perhaps wanted merely to taunt the majority, when he wrote in Thursday’s opinion on the role of corporations in national politics: “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech.”  It is a tantalizing notion.

Suppose that General Motors Corp., troubled that a candidate for Congress from Michigan was too favorable to the United Auto Workers, decided to do everything in its corporate power to defeat that candidate.  So, aside from spending huge sums of its own money (none of it federal bailout money) to influence the outcome, it went to the office of the voting registrar in downtown Detroit.  It sought to sign up, affirming that it was a citizen and resident of Michigan.  Denied registration, it sued, claiming that, under the Fourteenth Amendment of the U.S. Constitution, it was a “person,” and, as a “citizen,” it was entitled to equal protection under the election laws.  Would the Supreme Court buy that?

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Below, Stanford Law School student Timothy Tatarka recaps oral argument in Granite Rock Co. v. International Brotherhood of Teamsters (08-1214). His analysis is also now available on the Granite Rock page on SCOTUSwiki.

On Tuesday, in Granite Rock Co. v. International Brotherhood of Teamsters (No. 08-1214), the Court heard argument on two issues arising from a 2004 disputed labor contract.  Garry Mathiason, counsel for the petitioner, Granite Rock Co., found little support on the Court for its claim that Section 301 of the Labor Management Relations Act (LMRA) creates a federal cause of action against an international union for tortious interference with a contract between an employer and a local union when the international union was not a party to the contract.  The second issue, which had been framed as whether a defendant labor union can compel arbitration in a suit for violation of the contract even while arguing that no contract was formed, instead largely became a debate about the retroactive effectiveness of provisions in the contract upon which the parties later agreed.  The result of this discussion was inconclusive.

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