The Supreme Court issued a quick, unanimous and concise defeat to the Government today in Arthur Andersen v. United States, No. 04-368, overturning the accounting company’s conviction for obstruction of justice. (The case was argued on April 27, the last argument day of the current Term, and the Chief Justice’s opinion for the Court was issued less than five weeks later).

The case arose after officials at Arthur Andersen issued a number of directives requiring employees to adhere to the company’s document retention policy, even though that policy required destruction of documents and even though the firm knew that an SEC investigation was imminent and that the SEC would want access to those destroyed documents. The Government indicted Arthur Andersen under 18 U.S.C. 1512(b)(2), which applies to anyone who “knowingly uses intimidation or physical force, threatens, or corruptly persuades another person . . . with the intent to . . . cause or induce any person to . . alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding.” Accepting the Government’s position, the district court instructed the jury that Arthur Andersen could be convicted under this provision even it “honestly and sincerely believed that its conduct was lawful” and without proof of any nexus between the document destruction and any particular official proceeding. After receiving these instructions, the jury convicted Arthur Andersen of obstruction.

The Supreme Court held that the jury instructions “failed to convey properly the elements of a “corrup[t] persuas[ion]” conviction under

In Cutter v. Wilkinson, No. 03-9877, the U.S. Court of Appeals for the Sixth Circuit held that section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (affectionately known as RLUIPA) facially violated the Establishment Clause. The Supreme Court today, in an opinion written by Justice Ginsburg, unanimously rejected the Sixth Circuit’s sweeping and fairly radical holding.

A very thorough, very helpful background memo on RLUIPA and on the Cutter case can be found at this Pew Forum site. In brief, RLUIPA section 3 requires state prison systems (and other state institutions) to alleviate substantial burdens that they impose on the religious exercise of persons they house, unless they can show that denial of the religious accommodation is the “least restrictive means” of advancing a “compelling govenrmental interest.” RLUIPA section 3 applies whenever the state agency receives federal funds, and/or when the burden on religious exercise (or its alleviation) affects interstate commerce.

The section 3 substantive test is, in effect, the test of Sherbert v. Verner, which nominally governed Free Exercise doctrine until the Court largely abandoned it in its 1990 decision in Employment Division v. Smith. Congress had previously codified that same test in the Religious Freedom Restoration Act, which governs federal prisons. (The Court held in City of Boerne v. Flores that Congress lacks the power under section 5 of the Fourteenth Amendment to apply RFRA to the states.)

The court of appeals had held that it was impermissible for Congress to accommodate religious exercise if it did not provide equivalent accommodation to all other constututional rights — that is, that a legislature could not single out religious exercise for special accommodation. This argument appeared to be inconsistent with the Court’s 1987 decision in Corporation of Presiding Bishop v. Amos, and the Court today easily rejected it. As the Court noted, the Sixth Circuit’s rationale would invalidate virtually all religious accommodations — including those that Ohio itself regularly makes. In a variation on the “test” articulated in Amos, the Court in Cutter held that an accommodation is permissible if it alleviates “exceptional government-created burdens on private religious exercise,” so long as the accommodation is “measured so that it does not override other significant interests.” There is no such “override” of other significant interests under RLUIPA, the Court explained, because under the statute itself, security concerns are a “compelling interest”; deference is due to institutional officials’ expertise in this area; and (the Court strongly implied) therefore a prison would generally satisfy RLUIPA’s nominally strict scrutiny where there is a genuine security-related reason to deny the religious exemption: “We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns.”

The Court did not address several important subsidiary questions involving its articulated accommodation test, such as:

– When is a government-imposed burden on religious exercise “exceptional”? The adjective is a curious development: In Amos, the Court approved alleviation of “significant” government-imposed burdens. [Attention prospective law-student note-writers: What is the practical and doctrinal import of the Court’s change from “significant” to “exceptional”?]

– What about alleviation of privately imposed burdens, such as when the legislature requires private employers to accommodate their employees’ religious exercise? The Court doesn’t say; but it emphasizes that RLUIPA satisfies the Constitution because the burdens it alleviates are government-imposed.

– If an accommodation is constitutionally problematic when it “overrides other significant interests” — a consideration also strongly emphasized in City of Thornton v. Caldor — why didn’t the accommodation in Amos itelf raise serious questions, where the statutory exemption permitted an employer to discharge a loyal employee who had been on the job for 16 years?

The Court also declined to address several other important questions. For instance, the Court avoided opining about whether RFRA is constitutional as applied to the federal government (see footnote 2), and about the constitutionality of section 2 of RLUIPA, which deals with local land-use regulation (see footnote 3). More importantly, the Court avoided any decision on Ohio’s alternative grounds for invalidating section 3. Because the court of appeals’ rationale was so sweeping and (thus) so vulnerable, Ohio and its amici had placed a great deal of weight on several other arguments — in particular, (i) that Congress lacked the power to enact RLUIPA under the Commerce and Spending Clauses; and (ii) that the Establishment Clause has a “federalism”-based component that prevents Congress from interfering with a state’s choices about how to accommodate religion. The Court remanded the case to the court of appeals for consideration of defendants’ Commerce, Spending and “federalism-based” Establishment Clause arguments (see footnote 7). [Disclosure: I filed a brief on behalf of Senators Hatch and Kennedy urging the Court not to reach the Spending and Commerce questions, or alternatively to uphold Congress’s enumerated powers to enact RLUIPA.]

Interestingly, however, Justice Thomas — the Justice who presumably would be most predisposed to accepting Ohio’s “federalism-based” Establishment Clause argument (in light of his concurrence in Newdow, which suggested that the Court should reconsider the Establishment Clause’s application to the States) — wrote at length in a separate concurrence to reject that argument in no uncertain terms (even though he would hold that Congress could not preclude a State from establishing a religion).

Justice Thomas also hints at three separate places in his concurrence (footnote 2 and pages 5 and 7) that RLUIPA “may well” exceed Congress’s Commerce and Spending powers. The principal authorities he cites in support of that suggestion, however, are his lone concurrences in Lopez and Sabri, in which he proposed far-reaching reconsideration of the Court’s Commerce and Spending doctrines. (Justice Thomas also cites quotations from Madison and Iredell suggesting that some of the Framers “may have believed that the National Government had no authority to legislate concerning religion, because no enumerated power gave it that authority.”)

Moreover, in the final sentence of his concurrence in Cutter, Justice Thomas states that “[t]he States’ voluntary acceptance of Congress’ condition [by accepting federal funds] undercuts Ohio’s [Spending Clause] argument that Congress is encroaching on its turf.”

The somewhat confused procedural history of Kansas’ death penalty law has followed it to the Supreme Court, so the Justices’ agreement on Tuesday to hear an appeal by the state may not lead to a significant pronouncement on a key constitutional question. That question is whether a “tie” in a jury’s death penalty findings goes to the state, or to the individual on trial. But that is not the only issue the Court will be hearing.

In another action on Tuesday, the Court made no new law as it struck down a court order issued in California in a libel lawsuit brought by the late attorney Johnnie L. Cochran, a widely known Los Angeles litigator (best known for his role in the successful defense of O.J. Simpson in that celebrated murder trial). The Court said the order had lost much of its significance since Cochran died (he passed away while the case was pending before the Justices). But what remains of the state court injunction, the Court said, swept too broadly as a “prior restraint” on free speech. The Court kept the case active by substituting Cochran’s widow for him. Justice Stephen G. Breyer wrote for the 7-2 majority, in a spare four-page opinion. Justice Clarence Thomas, joined by Justice Antonin Scalia, dissented, arguing that the case should have been dismissed rather than decided. (The case is Tory, et al., v. Cochran, 03-1488).

The Court’s only order Tuesday granting review of a new case involves Kansas’ capital punishment law, enacted in 1994. It specifies that, if the jury finds aggravating and mitigating circumstances to be equally balanced, a death sentence must be imposed – in other words, a “tie” goes to the state.

The Kansas Supreme Court, in a 4-3 decision in 2001 in the case of State v. Kleypas, ruled that this weighing equation would violate the Eighth Amendment ban on cruel and unusual punishment (and the Fourteenth Amendment). “Fundamental fairness,” the state court said then, “requires that a tie goes to the defendant when life or death is at issue.”

However, the state court at that time did not strike down the law as written. Rather, it said, the law could be construed in such a way as to uphold the intent of the legislature to have a death sentence that would satisfy the Constitution. So, it construed the law at that time to mean that aggravating circumstances must outweigh mitigating factors for a death penalty to be imposed.

When a new case, involving convicted murderer Michael Lee Marsh II of Wichita, reached the state court last year, the tribunal – in another 4-3 vote – struck down the law. Rejecting an argument by the dissenters that the Supreme Court had already implicitly decided that such an “equipoise” provision would be valid, the majority said the Court had issued no such ruling.

The majority went on to say that it had been wrong in failing to strike down the law in 2001 in order to save its constitutionality. “The avoidance doctrine is applied appropriately only when a statute is ambiguous, vague, or overbroad…The court’s function is to interpret legislation, not rewrite.”

Taking the case on to the Supreme Court, the state of Kansas raised a single question: “Does it violate the Constitution for a state capital-sentencing statute to provide for the imposition of the death penalty when the sentencing jury determines that the mitigating and aggravating evidence is in equipoise?”

But, in granting review, the Court added two questions of its own – and, depending upon the answers, either query could lead to a decision without the Justices resolving the “equipoise” question.

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The Court issued opinions today in the following three argued cases (details from Lyle below):

No. 03-9877, Cutter v. Wilkinson, unanimously reversed. Justice Ginsburg wrote the opinion, with a concurrence by Justice Thomas.

No. 03-1488, Tory v. Cochran, reversed 7-2. Justice Breyer wrote the seven-page opinion. Justice Thomas, joined by Justice Scalia, wrote to say that he would have dismissed the petition as improvidently granted because of Cochran’s death.

No. 04-368, Arthur Andersen LLP v. United States, unanimously reversed in an opinion written by the Chief Justice.

In a unanimous decision, the Supreme Court on Tuesday upheld Congress’ power to require officials of state and local prisons and jails to find ways to allow inmates to practice their religious beliefs. The Court said it was ruling only on a facial challenge, adding that prison officials could claim later that accommodations of inmates’ religious practices went so far as to undermine safety or discipline among prisoners. The case is Cutter v. Wilkinson (03-9877).

That was one of three decisions announced in pending cases.

The Court, in another unanimous ruling, overturned the criminal conviction of the now nearly defunct auditing giant, Arthur Andersen LLP, because of faulty jury instructions on the destruction of audit documents related to the Enron scandal. The firm was convicted under a witness tampering lsw for “corruptly persuading” staff members to destroy documents before the Securities and Exchange Commission had formally opened an investigation. The case was Andersen v. U.S. (04-368).

In the only new case granted review, the Court agreed to consider the constitutionality of Kansas’ death penalty law. The main question raised by the state of Kansas’ appeal is whether a death sentence is barred if the aggravating and mitigating circumstances are evenly balanced. In addition to that issue, the Court added two procedural questions in the case: does it have jurisdiction to review the Kansas Supreme Court decision, and whether the state court ruling was based on state law and thus immune to Supreme Court review. The case is Kansas v. Marsh (04-1170).

Voting 7-2, the Court struck down as overly broad a court order in a libel case permanently forbidding public comments and picketing against Johnnie L. Cochran, the famous Los Angeles attorney. Cochran has died, but the Court substituted his wife in the case, and thus found that the legal controversy was not moot. The ruling came in the case of Tory v. Cochran (03-1488).

Following up its ruling last week in the “beef checkoff” case, the Court sent back to lower courts cases testing similar agricultural product promotion schemes involving pork (”Pork: The Other White Meat”) and milk (”Got Milk?”), both federal schemes, and a case testing a Louisiana program on marketing of alligator products.

Rick Hasen of the Election Law Blog has this post about the cases he is watching for eventual review by the Supreme Court.

Orin Kerr, on Volokh Conspiracy and Michael J. Kelly, Associate Professor of Law at Creighton University posting on ACSblog, have engaged in a lively debate on Supreme Court citations to foreign law. Here is Kelly’s first post, Kerr’s first and second response and Kelly’s reply.

In my earlier post on this past Thursday’s conference, I inadvertently omitted the SG’s cert. petition in No. 04-1332, Will v. Hallock, an FTCA case.

On Monday, I posted this altogether too-long explanation of the Court’s sudden and unanimous (and long overdue) about-face in Lingle, in which it unceremoniously interred the “substantially advances” takings test that Justice Powell had infelicitously coined 25 years ago in Agins.

Today’s Washington Post has a shorter, easier-to-read version of my summary.

And Mark Tushnet has penned the pithiest and most succinct translation of all. Gilda Radner, RIP.

My exegesis thus is rendered largely obsolete — much like the Agins test itself. Nevertheless, anyone wanting to read about how Lingle may affect the fate of the Nollan/Dolan tests as applied to “monetary exactions” — and I know there must be at least a half-dozen of you out there — will still have to turn to the final paragraph of my post, and to the Comments, in which Richard Samp and Scott Ballenger offer some interesting alternative perspectives.

As Tom has previously written, only two cases (Raich and Miller-El) remain pending from the “December” sitting; and Justices Stevens and Souter have yet to write majority opinions from that sitting. This is odd, because — as I wrote on the “Greedy Clerks” board earlier today — it is unlikely (but not out of the question, cf. Sabri) that the Chief Justice would assign Raich to be written by Justice Stevens or Justice Souter. Even if my earlier prediction is correct — i.e., that the Government will win Raich 9-0 or 8-1 (depending on whether Justice Thomas writes a dissent or a concurrence hinting that Wickard v. Filburn should be overruled) — I have a hard time imagining the Chief assigning even a unanimous opinion in the case to JPS or DS, because of the risk that they would write about Lopez and Morrison in a way that could not hold a five-Justice Court.

Therefore, I raised the possibility that perhaps the Chief Justice is actually in dissent, either (i) because he has voted to invalidate the statute as applied, or (ii) because, although the Chief Justice would sustain the law, Justice Stevens (presumably no fan of the policy decision to enforce of the law in this context — see his concurrence in Oakland Cannibis Buyers’ Co-op), has cobbled together five votes for invalidating the Act as applied, and is writing an opinion along the lines of: “I continue to believe that Lopez/Morrison were wrongly decided, but as long as five of my colleagues continue to insist that those cases are the law, their logic leads to the conclusion that the CSA is unconstitutional as applied here . . . .”

As I wrote in that post, I find both of these scenarios implausible (the latter much more than the former) — which leaves me scratching my head. (Not that that’s a bad thing — this arm-chair speculation is only fun because the Court is not perfectly transparent, and occasionally throws a curveball.)

An astute observer writes, however, to raise another very intriguing possibility: Justice Souter was assigned to write the majority opinion in Johanns (the beef case); but he lost the votes of two Justices from among the Chief Justice and Justices Scalia and Thomas. Upon reflection, I think this may be the most likely scenario. Justice Souter’s Johanns dissent begins as if it were once a majority opinion. And, based on the oral argument, I’d say it’s not at all inconceivable that five Justices originally voted to strike down the beef statute because the attribution to the government was not sufficiently transparent (the principal theory of Justice Souter’s opinion) — but that two Justices were then persuaded that the possibility of false attribution is not grounds for invalidating the statute on its face (as Justice Scalia’s opinion concludes).

If this theory is right, then I think the Chief Justice himself would be writing Raich, and Justice Stevens would be writing Miller-El. (For another possibility, see Tom’s earlier post.)

[UPDATE: Another careful observer wonders whether perhaps it was not Justice Souter, but Justice Stevens, in Muehler v. Mena, who lost a December majority opinion when Justice Kennedy switched his vote over to the broader rationale of what was the Chief Justice’s concurrence, thus making the Chief’s opinion the majority opinion of the Court. Justice Kennedy’s concurrence, which essentially explains why he is sympathetic to, but did not join, the Stevens opinion, seems a bit as if it’s an apologia. I’m a bit skeptical, because Justice Stevens’s Muehler concurrence doesn’t read to me as if it were originally a majority opinion. But if this observer is correct, it would mean that Justice Souter would likely be writing Miller-El, with Raich penned by the Chief Justice.]

[P.S.: This should go without saying, but in an abundance of caution: This tea-leaf reading is, of course, just that — complete conjecture, no more reliable or informed than actual tea-leaf reading. But as parlor games go, it’s an entertaining diversion as we await the Court’s decision (which may come as soon as Tuesday).]

The Solicitor General today filed invitation briefs in four more cases, recommending that cert. be denied in each:

No. 04-31, McFarling v. Monsanto Co., a patent licensing case;
No. 04-621, Public Util. Dist. v. Dynegy Power Marketing, Inc., a case involving the filed-rate doctrine;
No. 03-1202, Hewlett-Packard Co. Employee Ben. Organization v. Jebian, a case involving benefits “deemed denied” under ERISA; and
No. 03-10777, Senger v. Wisconsin Dep’t of Health & Family Servs., a Medicaid reimbursement case.

A few brief responses — and, more important, a link to our merits brief (http://www.abanet.org/publiced/preview/briefs/dec04.html#veneman), which explains in more detail why Erik’s position ultimately turned out to be “dead meat”:

First, let me confess to thinking that our government is a “worthwhile participant in the marketplace of ideas.” For better or worse, our government is continuously trying to influence how Americans think: it encourages us to be patriotic (especially in wartime), it tells us to obey the law, it tells us which foods to eat and not to smoke (see the Surgeon General’s Warning), and at the state and local level (deep breadth) it helps to educate our children on the values that our country is founded upon. There are a plethora of other examples (including the “Voice of America”), and of course the Constitution does expressly limit the government’s ability to speak on a particular matter (religion). But the notion that the government has no business in seeking to influence — or, as Erik puts it, “manipulate” — public opinion is simply unrealistic.

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The Solicitor General has filed his invitation brief — this time urging that cert. be granted (or, indeed, that the judgment be summarily reversed) — in No. 04-805, Texaco v. Dagher, and No. 04-814, Shell Oil v. Dagher, which involve the application of the antitrust laws to joint ventures.

Robert Corn-Revere of Legal Times has this book review of Speaking Freely, by Floyd Abrams.

Tony Mauro of Legal Times has this article discussing Professor Laurence Tribe’s decision not to finish the second volume of the third edition of American Constitutional Law.

Ari Shapiro of NPR has this report on the effects the Court’s ruling in Booker is having on prison terms.

The Wall Street Journal’s Washington Wire has this article discussing the end of the Court’s term (see second story).

The SG has filed another invitation brief — again urging that cert. be denied — this one in No. 04-165, Comstock Resources v. Kennard, which involves the False Claims Act “original source” rule.

Marty Lederman has this post on Raich up on the Greedy Clerks Board.

Sentencing Law & Policy has a new round-up of Booker developments.

The Volokh Conspiracy discusses Justice Thomas, Justice Scalia and citing to foreign law here.

While Greg correctly describes the LMA decision, he does not quite defend it against the problems I identified. For example, his distinction of Barnette and Wooley fails to address my criticism that Justice Scalia improperly narrows the First Amendment interests at stake down to the personal autonomy concerns and ignores the structural purposes of the First Amendment. Those structural concerns played a major role in Barnette, as evidenced by the Court’s defense of its position on the grounds that “[a]uthority here is to be controlled by public opinion, not public opinion by authority.” Both Turner Broadcasting Sys., Inc. v. FCC and First Nat’l Bank of Boston v. Bellotti make similar points. (For the particulars of those cases, as well as others I refer to below, look to where I cite them in my amicus brief, available via the hyperlink at the end of my initial post.) That is not a personal autonomy concern, it is a concern over the manipulation of viewpoints and public opinion

Greg’s observation that no one is forced to speak out of their own mouth and all remain free to speak out to the contrary has never been a sufficient answer to First Amendment violations of this type, as evidenced by the United Foods decision, which effectively repudiated that distinction as it was made in the earlier Glickman case. Cases like Hurley, Boy Scouts of America, and Miami Herald likewise demonstrate that the opportunity for counter speech or disassociating speech does not justify or cure the offense of compelled support for speech. While Greg is correct in arguing that the personal autonomy concerns are more attenuated here than in Barnette or Wooley, that is not a sufficient answer to a First Amendment objection.

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Here are the cases we’re watching from today’s conference of the Justices:

04-908, Yarborough v. Maxwell (regarding the right to an evidentiary hearing on a competency claim) - the Court called for the record and then called for a response to the petition
04-1146, Bubna v. Anchorage Equal Rights Commission (regarding marital status discrimination)
04-1170, Kansas v. Marsh (a capital sentencing petition we’ve discussed several times and that has been relisted twice)
04-1298, UnitedHealth Group, Inc., et al. v. Klay (regarding stays of litigation pending arbitration)

The Court will next issue orders and opinions on Tuesday, May 31.

Greg Garre of Hogan and Hartson - counsel to the private petitioners - enters the debate.

Thanks to SCOTUSblog for hosting this (high protein) food fight. Our government has been speaking out for centuries — sometimes, no doubt, to more desirable ends than others. Now the Supreme Court has resolved that the First Amendment does not prevent the government from requiring citizens, or even certain targeted groups of citizens, from paying for its speech. In the Johanns case, that principle led the Court to uphold a successful and widely popular marketing program for beef — just as the summer grilling season is about to kick off and a week after the Court eased restrictions on the flow of wine. You can’t knock the Court’s timing.

Or (and of course here I must disagree with Erik) its reasoning. Although the Court followed a somewhat tortuous path to get to Johanns in the context of its commodity promotion cases (Wileman Brothers and United Foods), Johanns fits comfortably within the Court’s First Amendment precedents.

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Mark Johnson of the AP has this article discussing New York Gov. George Pataki’s introduction of a wine shipment bill in light of the Court’s decision in the wine cases.

David J. Garrow has this article in the May/June issue of Legal Affaris discussing Justice Blackmun and Roe v. Wade.

Also from the May/June issue of Legal Affairs is this book review by William Saletan of Linda Greenhouse’s Becoming Justice Blackmun.

We previously noted that the Solicitor General had filed his invitation brief suggesting that the Court deny certiorari in No. 04-293, Honeywell v. Hamilton Sunstrand.

The Solicitor General has now filed his invitation brief — also urging the Court to deny review — in No. 03-1559, Bank of China v. NBM.

We continue to expect the government to file invitation briefs in four other cases by tomorrow.

In the last of a series of posts profiling the OT 2005 Supreme Court clerks, today Underneath Their Robes gives us the scoop on Justice Breyer’s clerks.

High-resolution pdfs are now available here on the Green Bag’s web-site.

SCOTUSblog is pleased to host a debate on the Court’s recent decision in the beef promotion case, featuring Erik Jaffe (who represented amici in the case) and Gregory Garre (who successfully argued on behalf of petitioner Nebraska Cattlemen et al.). Erik, who argues that the Court got it wrong on government speech, will start the debate:

The Supreme Court’s decision on Monday in Johanns v. LMA endorsing the government speech doctrine as a defense to the facial validity of the Beef Promotion and Research Act was a disappointment, to say the least. While there are many specific deficiencies in Justice Scalia’s opinion, I would like to focus on three particularly troubling failures.

First, the Court continued its careless tendency (previously evidenced only in dicta) of conflating government conduct with government speech. The Court, slip op. at 8, seems to accept the dicta from Southworth reasoning that because the government may tax and spend on various substantive programs it “seems inevitable,” and hence is permissible, for the government to tax and spend “for speech and other expression to advocate and defend its own policies.” But the inevitability of government advocacy in the form of public propaganda (as opposed to debate in Congress and answering questions from the media) certainly is not an inevitable requirement of implementing its other policies, and there is already ample First Amendment doctrine for permitting compelled support for speech that is indeed necessary to implement other permissible non-speech activities – the Abood/Keller line of cases. And as United Foods made clear, compelled support for speech is by no means defensible as necessary to implement other programs where the only object of the program is the speech itself, as was the case for both the mushroom and beef programs. The necessity for some forms of government speech hardly justifies the sweeping doctrine set out by the Court or its application to this case.

Second, the Court, slip op. at 10, distinguishes Keller on the grounds that government control of the message here is substantial while it had little or no control in Keller. While that is a distinction, it is one without a meaningful difference. Indeed, as Justice Scalia himself observed in NEA v. Finley, such increased government involvement actually makes the situation worse, not better. The supposed distinction is further undermined by the whole line of public/private forum cases, where increased government control of the message – otherwise known as viewpoint discrimination – is precisely what creates the First Amendment violation. Public support for speech in a forum is only permissible where the government does not exercise control over such speech and takes a viewpoint neutral approach that lets private parties determine the content of the speech thus supported.

Third, in disposing of concerns based on the targeted nature of the assessment, slip op. at 11-13, Justice Scalia makes the mistake of narrowing the First Amendment issues at stake to simple dignity and autonomy issues as part of the personal right, entirely ignoring the structural values that the First Amendment is designed to protect – keeping the government from manipulating the marketplace of ideas in furtherance of its own views various issues, be they political or economic. Those concerns place government control of speech outside the bounds of the political process precisely because speech is different than conduct. Controlling speech is more insidious than controlling conduct and hence must be more diligently avoided than other government actions that will readily create their own political check. Such concerns indeed lie at the heart of the First Amendment, not merely the Appropriations Clause, as the opinion seems to suggest. The indirect political safeguards cited by Scalia are no more adequate here than they would be in any other form of compelled support for speech, where political officials just as inevitably remain “accountable” for the programs they implement and could change those programs with subsequent legislation.

There is, of course, much more to criticize in the opinion, but the nature of a blog debate councils in favor of brevity and selectivity. If anyone wishes further analysis of why the entire concept of the government speech doctrine is flawed, and should be replaced by uniform application of the Abood/Keller analysis to compelled support for government as well as third party speech, they can find it in the amicus brief I wrote in the case.

The next big terrorism case to reach the Supreme Court will be acted upon next month. The Court’s electronic docket notes that the Jose Padilla case will be considered by the Court on June 9. Padilla, designated an enemy combatant by the President, is seeking review of the President’s authority to detain him indefinitely. (The case is Padilla v. Hanft, 04-1342, asking the Court to hear the case before the Fourth Circuit gets to it.)

The Justice Department has urged the Court not to step in, thus allowing the case to proceed on the government’s appeal at the Circuit Court level, arguing that a Circuit Court ruling “would provide guidance on sensitive issues of first impression that implicate important considerations of national security.” The case is being expedited in the Fourth Circuit, with a hearing scheduled there for July 19. (In the Circuit, it is docketed as 05-6396. The Circuit Court recently accepted for filing an amicus brief supporting the government by the Washington Legal Foundation and the Allied Educational Foundation. That brief can be found here.)

Because the case arises in the Supreme Court so near the end of the current Term, review before judgment in the Circuit Court is not likely to be granted. Even if granted, it almost certainly would not be heard, even with expedition, until the new Term starting in October, and the Circuit Court might have acted in the meantime.

The Volokh Conspiracy has a lengthy discussion, starting here on a potential Supreme Court nomination for John Roberts. Last November, SCOTUS Blog profiled John Roberts in a series of posts ending here.

Legal Affairs also discusses potential nominees here.

Rick Hasen has this to say about an “as applied” challenge to the electioneering communications provisions of BCRA. SCOTUS Blog previously discussed the same issue on August 12th, 13th, and August 19, 2004.

David Smith of the Affordable Housing Institute has these thoughts about Kelo v. New London.

Guest blogger Lauren Saunders, Directing Attorney of the Herbert Semmel Federal Rights Project with the National Senior Citizens Law Center has this post up on ACS Blog, titled “Nominee Brown’s Views Rejected by Justices Scalia and Thomas.”

Ex Post has these thoughts on the Court’s decision to grant cert in Ayotte.

Underneath Their Robes has still more on the OT 2005 Supreme Court clerks.