The Supreme Court Historical Society recently presented Kevin J. McMahon with its Erwin N. Griswold Prize for his book, Nixon’s Court.
Justice Antonin Scalia hosted the winner’s lecture in the Courtroom and opened the evening by sharing one of his memories of “Dean Griswold, as I always called him.” Scalia recounted how he’d gone to Cleveland to interview at Jones Day, and was seated next to none other than Dean Griswold on his return flight to Harvard. The Justice credited Griswold with helping him decide to take the job in Cleveland, Griswold’s hometown, and both men would later work for the Nixon administration.
McMahon’s discussion focused on Nixon’s approach to the Supreme Court and the president’s challenge to judicial liberalism. Rejecting the view that Nixon’s Court was “an anti-revolution that wasn’t, ” McMahon suggested that Nixon’s intentions towards the Court have been misunderstood, and his successes underappreciated. He selected three moments from his book that shed light on Nixon’s objectives. Continue reading »
In Bullard v. Hyde Park Savings Bank yesterday, the Court unanimously rebuffed efforts to gain review of orders that deny confirmation of plans in a bankruptcy proceeding. Although the case arose in the context of a small consumer bankruptcy, it has stark repercussions for the Chapter 11 proceedings that reorganize the affairs of large firms.
To put the issue in context, Bullard’s bankruptcy involves a home worth considerably less than the mortgage that encumbers it. He proposed a so-called “hybrid” plan, under which he would make regular payments on his mortgage under the existing payment schedule until he had paid off the current value of the house; the bankruptcy proceeding would discharge the remainder of the mortgage debt (about $100,000). It is not clear whether the Bankruptcy Code permits that form of plan; creditors argue that if the plan discharges the excess debt (the part that is above the value of the house), the bankrupt has to repay the secured debt during the term of the plan – that is, during the next five years. Decisions on that question conflict. Continue reading »
Yesterday the Court issued orders from last week’s Conference. It granted review in and consolidated two cases involving the Federal Energy Regulatory Commission’s policy of seeking to provide incentives for the reduced use of electricity, especially during peak demand times. Lyle Denniston covered the orders for this blog, with other coverage coming from Jeremy Jacobs of Greenwire and Bradley McAllister for JURIST.
The Court also asked the Solicitor General to file a brief expressing the views of the United States in Nebraska v. Colorado, an original action challenging Colorado’s new marijuana sales policy. Coverage comes from Tony Mauro for the Supreme Court Brief (subscription required) and Jess Bravin of The Wall Street Journal (subscription required), while Bradley McAllister of JURIST covers yesterday’s decision in Bullard v. Blue Hill Bank, holding that a debtor cannot immediately appeal a bankruptcy court’s order denying approval of his proposed repayment plan. Continue reading »
The petition of the day is:
Issue: Whether, at capital sentencing, the government may seek to prove the aggravating factor that the defendant committed previous unadjudicated murders through hearsay statements to police of other suspects in those murders, without permitting the defendant to confront or cross-examine his accusers.
They’re brewing a strange brand of strict scrutiny up at the Supreme Court these days.
On Wednesday in Williams Yulee v. Florida Bar, the Court upheld Florida’s prohibition on personal campaign solicitations by candidates for judicial office despite the fact that a plurality purportedly applied strict scrutiny – a level of constitutional review that has been described as “strict in theory, but fatal in fact.” Under strict scrutiny, a restriction on speech should survive only when the government can prove that the measure is necessary to serve a compelling interest and that it employs the least restrictive means of doing so.
This level of review usually is fatal – and should be. It is how we keep “the starch in the standards for those moments when the daily politics cries loudest for limiting what may be said,” as Justice David Souter so memorably put it in his concurring opinion in Denver Area Educational Telecommunications Consortium v. FCC (1996). The same is true in the equal protection context. We should learn something from any holding that allows a “compelling interest” to override fundamental liberties. Just ask Japanese Americans who were “interned” during World War II. Continue reading »
On April 29, the U.S. Supreme Court announced its opinion in Williams-Yulee v. The Florida Bar, a case arising out of Florida decided by a five-to-four vote involving the confidence of the American public in the country’s judicial system. In the words of the great legal jurist Yogi Berra, “it’s like déjà vu all over again.”
But whereas Bush v. Gore (2000) had an immediate nationwide impact, the likely short-term impact of Williams-Yulee will be negligible. After all, the later decision affirmed not only Florida’s prohibition of direct solicitation of campaign funds by judicial candidates, but also essentially gave constitutional approval to similar prohibitions in thirty other states. Thus, for the immediate future, the way in which judges are selected in this country will remain business as usual. Continue reading »
The Supreme Court’s opinion in Williams – Yulee v. Florida Bar has left Court watchers and legal scholars with a bad case of whiplash. The Court held that Florida did not violate the First Amendment by enforcing its rule of judicial conduct prohibiting judicial election candidates from personally soliciting campaign contributions. Let’s explore why Chief Justice Roberts’s opinion for the majority has the legal cognoscenti reaching for their ice bags.
For generations, the Court has not hesitated to wield the First and Fourteenth Amendments, and other constitutional provisions, to protect citizens’ right to cast an effective, undiluted vote at the polls and to speak about matters of public concern around elections without the fear that entrenched political majorities may stifle disfavored viewpoints through legislative and administrative schemes.
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The Supreme Court, taking quick action on two states’ constitutional challenge to Colorado’s new marijuana sales policy, asked the federal government on Monday for its reaction to that case (144 Original, Nebraska and Oklahoma v. Colorado). Colorado has argued that the case — filed directly in the Court rather than in a lower court first — should not go forward at all without the federal government taking part as a crucial party.
The order on that case came as the Justices granted review of one new controversy: the Federal Energy Regulatory Commission’s plea to revive its policy — adopted in 2011 but struck down since by a federal appeals court — of arranging payments to users of electricity to induce them to cut their consumption, especially during peak demand periods. The Court c0nsolidated two cases for an hour of hearing next Term: FERC v. Electric Power Supply Association, and EnerNOC Inc. v. Electric Power Supply Association. Justice Samuel A. Alito, Jr., is not taking part, probably because he has an investment in the energy industry.
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By now anyone who would be reading this will know that last week the Supreme Court decided that the First Amendment’s speech protections are weaker in the context of judicial elections than in other kinds. In effect, the five-Justice majority found that a state’s interest in preserving public confidence in its judiciary extends beyond preventing the “appearance of corruption” that’s at play in the context of candidates for legislative or executive office. Accordingly, states – or, as in this case, state bar associations – can limit political speech that aims to raise money for judicial candidates.
I think the Court got it wrong: while I don’t like the idea of judicial elections – though they’re better than any alternative but the federal model – if you’re gonna have em, the Constitution doesn’t allow you to pick and choose between the salubrious and unseemly parts of democracy. But at this point I don’t have any novel analysis beyond the dissenting opinions and the coverage provided in this symposium.
Accordingly, rather than go over well-trodden ground, I’ll pick out an excerpt from each opinion that epitomizes the point being made and offer a brief comment. Continue reading »