Virginia Heffernan of the New York Times has this review of the four-part PBS program, “The Supreme Court”, which begins tonight at 9 p.m.; Tom Shales has this review of the documentary in today’s Washington Post; and Stephen Wermiel reviews the program here at the Politco. At How Appealing, Howard Bashman collects additional reviews here. Jeffrey Rosen, whose new book The Supreme Court: The Personalities and Rivalries that Defined America is a companion to the PBS series, will be online at the washingtonpost.com tomorrow at 1:30 p.m. to discuss the the show, his book and the Court.

In yesterday’s LA Times, David G. Savage reports here on the right to habeas corpus. This LA Times editorial discusses the limits on political speech at issue in the upcoming Wisconsin Right to Life case.

At the Sentencing Law and Policy Blog, Doug Berman has this post discussing the Blakely opinion.

No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today.

At Workplace Prof Blog, Paul Secunda highlights how last term’s ruling in Garcetti v. Ceballos has affected subsequent lower court rulings in this post.

Here, at TaxProf Blog, Paul Caron has posted all of the cert. papers in two tax shelter cases, Coltec and Dow Chemical.

At How Appealing, Howard Bashman collects reviews and commentary here and here on the new PBS documentary “The Supreme Court,” which premieres tomorrow at 9 PM. Our two-part interview with Jeff Rosen, who wrote the companion book, can also be found here and here.

At Crime & Consequences, Kent Scheidegger points to what he believes is a “Cunningham Catch-22″ here.

Finally, at Volokh, Orin Kerr asks what Justice Ginsburg meant when she told USA Today’s Joan Biskupic that “this Term may be very revealing.”

On January 16, the Supreme Court turned down an appeal claiming that so-called “cash balance” pension plans discriminate illegally against older workers. That order left intact a Seventh Circuit Court decision rejecting that claim, in the most closely watched of a series of similar court challenges — the case of Cooper v. IBM Personal Pension Plan (Supreme Court docket 06-760). That Seventh Circuit decision has now figured prominently in another defeat of the age bias claim. The legal scene now shifts to the Second Circuit for the next round. Although Congress has lately changed federal pension law to largely scuttle such claims, that law does not affect already pending court cases. The issue remains important, because at least 30 percent of all participants in defined benefit plans nationwide are covered by a “cash balance” plan.

Borrowing heavily from the Seventh Circuit’s decision last August in the highly visible IBM case, the Third Circuit Court based in Philadelphia on Tuesday rejected a claim that PNC Bank violated the age discrimination provisions of federal pension law by its 1999 switch to a “cash balance” plan. The ruling came in the case of Register, et al., v. PNC Financial Services Group (Circuit docket 05-5445). (Thanks to Howard Bashman of How Appealing blog for the alert to the new ruling. Howard has provided a link to the Register opinion.)

Under “cash balance” pension plans, a hypothetical amount of credit is added to each worker’s pension account each year. A traditional defined benefit plan spells out what a retiree will get in monthly pension checks, while a cash balance plan defines benefits in terms of each worker’s account balance. A cash balance plan’s annual credits thus build up pre-retirement. Because younger workers who are in such a plan receive more such interest credits, because they will be in it for a longer time before retirement, older workers have contended in a wide array of lawsuits that this violated the Employee Retirement Income Security Act’s ban on age discrimination in defined benefit plans.

The Third Circuit, saying that “much is at stake here,” concluded that the challengers were focusing wrongly on the potential output of a cash balance plan upon retirement. The focus, the Court said, should be on the inputs — the credits added to each employee’s account annually. All participants get the same interest credit added to their accounts each year, so there is no age-related bias, the Court found. Its reasoning closedly tracked that of the Seventh Circuit in the IBM litigation.

What an employer puts into a worker’s pension plan, the Third Circuit said, is more valuable when contributions are made to younger employees since the contributions “have a longer time to grow. That unremarkable consequence of a contribution growing in value because of earnings on it is no different than that when a bank deposit is drawing interest. The longer the deposit remains in the bank in an interest bearing account, the more it is worth. We do not find any support for [the] argument that Congress wanted to prohibit such a consequnece with respect to cash balance plans…”

The Court noted that District Courts within the Second Circuit had divided on the issue. “It seems to us to be inevitabvle that the Curt of Appeals for the Second Circuit ultimately will decide the discriminatioin issue for that circuit.” But it added that it had considred the conflicting views of the district courts in that circuit.

Jan Crawford Greenburg has generously agreed to answer questions in this space later in the week about her much-discussed new book, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. If you’ve read the book and have questions you’d like to ask Jan, please leave them as comments to this post or e-mail them to me directly here.

If you haven’t read the book but would like to know more about it, see this review in the L.A. Times by David J. Garrow or this one by the New York Times’s Michiko Kakutani.

No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today.

UPDATE 5:52 PM: Today, Senator Arlen Specter re-introduced legislation that would require the Supreme Court to televise oral argument; C-SPAN has posted the video of the senator introducing the legislation here (RealPlayer required). C-SPAN’s “Cameras in the Court” timeline is here.

At Slate, Dahlia Lithwick has this post on the Justices public appearances. At the New York Times, Ellen Rosen has this article about Justice Scalia’s speech at Iona College.

AP writer Ken Maguire has this article in the Washington Post on Justice Ginsburg’s remarks at Suffolk Law School last Friday. Meanwhile, Rebecca Riddick reports here in the Daily Business Review (via Law.com) on Justice Alito’s recent speech at a Palm Beach County Bar Association luncheon.

Today, Charles S. Barquist and Jason A. Crotty have this article at Law.com about the impact of the Court’s decision in MedImmune v. Genentech.

This is part 2 of our discussion with Professor Jeff Rosen about his new book, The Supreme Court: The Personalities and Rivalries That Defined America (part 1 is here). The book is the companion volume to the PBS special “The Supreme Court” which premieres this Wednesday, January 31 at 9 PM eastern.

Unlike former Chief Justice Rehnquist, the new chief seems to be much more willing to make public appearances and eager to educate the citizenry about the workings of the Court and of the judiciary; in fact, many of the justices have been appearing in the media with unprecedented frequency. Do you see this as a positive development or a negative one? I ask because you make the case that part of having a judicial temperament involves a complete unwillingness to air the Court’s laundry in public, so to speak, and to subvert one’s own ego for the good of the institution. Is it even possible to maintain a judicial temperament but still write books and appear on late night news shows?

Obviously, I’m delighted that the Chief talked to me and to the PBS series, but I don’t think he should talk to everyone! This isn’t only self-interest: judicial exposure is a delicate balance. As justices increasingly venture out in public, they can certainly enhance understanding of the Court, as I think Roberts did in those illuminating interviews. At the same time, they have to be careful not to promote themselves rather than the institution, and to behave more like pundits than members of a collegial Court. This is why some judicial memoirs are more successful than others: John Marshall’s endearingly modest Autobiographical Fragment (which begins: ”The events of my life are too unimportant . . . to render them worth communicating or preserving”) served him much better than William O. Douglas’s jaw-droppingly indiscreet polemic, where he attacks his colleagues and spouts off on all the political controversies of the day. Similarly, too many appearances on news shows or in the news cycle strike me as risky: when justices are overexposed, they can undermine their authority, as the backlash against some of Justice Scalia’s extracurricular opining suggests. But we’re at the beginning of a sea change in the norms about how much judicial exposure is appropriate and sensible. Some justices will pull off this complicated balancing act much more deftly than others, and their ability to do so will turn, in the end, on their judicial temperaments.

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No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today.

The strangest thing about the oral argument three weeks ago in Davenport v. WEA is just how little common ground there was–not only between the parties (and their amici), but also among the Justices–on just what the case is about, and which constitutional doctrines it implicates. (My apologies for not posting this in a more timely manner–I’ve been tied up with other matters.)

I won’t recap the case in all its particulars here; for an excellent background description, see Lauren Popper Ellis’s summary.

The state statute at issue in the case requires labor unions in Washington to obtain affirmative authorization–an “opt-in”–from nonmembers before using any part of their contributed “agency shop” fees for election-related activities. The state supreme court held that the statute violated unions’ First Amendment rights to make expenditures in ballot-initiative campaigns, and that’s the ruling that the Supreme Court currently has under review.

Most of the top-side amici, including the Solicitor General, have framed the case as if the object of this statute is to provide statutory protection, above and beyond that which is constitutionally required under the Abood line of cases, to nonunion-member feepayers, to ensure that their compelled fees are not used against their wishes for expenditures unrelated to collective bargaining.

But as the opening of the oral argument demonstrated, that’s not really what this statute is all about.

The provision at issue is not part of the state’s labor-law code, and it does not generally provide an opt-in rule for all “nongermane” uses by unions of feepayers’ contributions. (”Nongermane” here means, roughly, not connected to collective bargaining functions.)

The statute in question is section 760 of the Washington Fair Campaign Practices Act, i.e., it is part of the State’s election law code. It was enacted as part of ballot initiative Measure 134, “An Act Relating to the regulation of political contributions and expenditures.” It is, in this respect, a straightforward campaign expenditure limitation, akin in many respects to the federal and state requirements, upheld in cases such as Austin and McConnell, that corporations and unions may make certain election-related expenditures only from separate, segregated PACs, and not from their treasury funds.

Section 760 is distinguishable from those familiar statutes in at least two respects: it imposes its restrictions on expenditures for ballot initiatives (not only candidate elections), and it is a restriction confined to labor unions–it does not restrict corporate campaign expenditures. (More on this below.)

But like those familiar statutes, this one is (i) limited to a restriction on election-related expenditures; and (ii) it was enacted for election-related purposes.

These are the “Findings” included on the face of Initiative 134:

(1) The financial strength of certain individuals or organizations should not permit them to exercise a disproportionate or controlling influence on the election of candidates. (2) Rapidly increasing political campaign costs have led many candidates to raise larger percentages of money from special interests with a specific financial stake in matters before state government. This has caused the public perception that decisions of elected officials are being improperly influenced by monetary contributions. (3) Candidates are raising less money in small contributions from individuals and more money from special interests. This has created the public perception that individuals have an insignificant role to play in the political process.

Thus, it is not surprising that the attorney for the State of Washington began his argument in Davenport by stressing that section 760 “serves the state’s interests specified in the adopted initiative, which were . . . [t]hree interests in election integrity[:] First, to ensure that individuals have a fair and equal opportunity to influence elections; second, to reduce the influence of large organizational contributors; third, to restore public trust in the election process. The Washington Supreme Court, petition appendix 22a-23a, agreed that the intent of Initiative 134 was to protect the integrity of the election process from the perception that individuals have an insignificant role to play.”

This concession that the statute is designed to promote fair elections “surprised” Justice Scalia (his word), and he and Justice Alito spent the first part of the oral argument oddly suggesting that the Supreme Court need not accept the fair-elections rationale as the State’s (the collective voters’) actual objective in enacting section 760 — even though the words of the statute itself, the state supreme court, and the state’s counsel, all agree that that is its aim, and even though section 760 was part of a campaign-finance referendum, and is part of the state election-law code. Justice Scalia interjected that he “would have thought [section 360’s] primary purpose would be to spare individuals the necessity of supporting causes that they don’t support.” And Justice Alito more fundamentally questioned whether the Supreme Court should defer to a state supreme court’s determination of a state statute’s objective, at least when that law was enacted by the voters: “Well, how can the State Supreme Court determine what is the purpose, the intent, of the ballot initiative? A lot of people voted for it. [I]s the State Supreme Court in a position to determine why they voted for it?”

By contrast, Justice Kennedy, although appearing to share Justice Scalia’s initial presumption that the statute was enacted in order to protect the prerogatives of dissenting feepayers, nevertheless reasonably asked: “If the State court says, we’re interested in [certain] purposes, we decided, and you must as a matter of State law interpret the statute according to the purpose as we found it, aren’t we bound by that?”

(In my personal view, the understanding of the state supreme court is less significant than the words of the Findings and Purpose sections of the initiative itself, and the fact that section 760 appears in a broader election-law referendum that otherwise has little or nothing to do with protecting the rights of dissenting public-employee-union feepayers.)

If section 760 is indeed simply a campaign-finance statute — a restriction on election-related expenditures — the question remains what level of First Amendment scrutiny should apply. The latter part of the oral argument was dominated by discussion about whether strict scrutiny applies to section 760 because it is “content-based.” I’m not sure that’s quite the right way to frame the question. It’s simpler than that. This is a restriction on a particular category of expression at the heart of the First Amendment — a limit on election-related expenditures. Regardless of whether that is deemed “content-based,” the caselaw is fairly clear that singling out electioneering for disfavored treatment, as section 760 does, triggers strict scrutiny. The Court has held as much in a series of cases that includes Buckley, Bellotti, Massachusetts Citizens for Life, and the two cases most analogous here, Austin and the BCRA Title II portion of McConnell. See also Burson v. Freeman (applying strict scrutiny to a limitation on electioneering-related speech). (At oral argument, Justice Breyer commented that campaign-finance laws are generally not subject to strict scrutiny. Although that is arguably true about contribution limits, section 760 is an expenditure limit, i.e., a limit on election speech itself, and thus, as in Austin and related cases, strict scrutiny should apply.)

The fact that strict scrutiny applies to statutes singling out election-retated speech for disfvored treatment, however, does not necessarily mean that the state loses, as Burson, Austin and McConnell demonstrate.

And this is where the case gets very interesting. According to Justice Scalia, the statute might survive strict scrutiny (or perhaps he means somehow be exempt from such scrutiny) because “the State has given [the union] the power to exact the money from these people. That changes everything. If this was money that they had contributed themselves, you’d have a different argument, but the State compels them to give you that money and the State says however, you will not use this money for this purpose without their consent.”

In other words, perhaps the State can justify this expenditure limitation because the law only affects funds that are in the union’s coffers by virtue of the state’s own coercive power (i.e., by virtue of the Washington law permitting unions to collect agency fees), and the state is, in a sense, merely imposing a limit, a condition, on a benefit that it has itself conferred on the union.

This is an intriguing argument — similar to that in an amicus brief drafted in part by Eugene Volokh — but its proponents on the Court will have to contend with at least three counterarguments:

First, the statute is not limited to funds that the State of Washington itself has permitted unions to collect. The restriction applies equally to private-sector unions, which are not subject to Washington’s agency-fee statute (because they are covered by the preemptive federal labor laws). Thus, section 760 cannot comfortably be described as a condition or limitation on the state’s own conferred “benefit” to unions.

Second, even on the “limitation of benefit” theory, Washington still has not explained why it has singled out election-related expenditures for disfavored treatment. The State does not impose the same opt-in rule for all other forms of union expression outside the bargaining context. This suggests that the statute is designed not to temper the burdens on feepayers of Washington’s compelled-fee regime, but instead to diminish the impact of unions in the electoral arena.

Finally, the State has singled out unions for disfavored treatment in the political process; in particular, it has not extended its opt-in rule to corporations and their shareholders even though, as the Court itself explained in Austin, corporations, too, are able to spend shareholder money only by virtue of “significant state-conferred advantages of the corporate structure.” “Corporations are ‘by far the most prominent example of entities that enjoy legal advantages enhancing their ability to accumulate wealth,’” Austin, 494 U.S. at 655 (quoting MCfL), and yet Washington law does not impose the same limit on corporations that it does on unions. This distinction is suspicious — at least to the extent the state’s interest in regulating the funds that it has “coercively” permitted the union to collect is, as the State contends, “ensuring that contributions and expenditures actually reflect the support of those who provide the funds.” As the Court explained in Austin, “the funds available for a union’s political activities more accurately reflects members’ support for the organization’s political views than does a corporation’s general treasury,” precisely because the objecting employee, unlike the objecting shareholder, has a constitutional right to opt-out, to “decline to contribute to [the disfavored union] activities, while continuing to enjoy the benefits derived from the union’s performance of its duties as the exclusive representative of the bargaining unit on labor-management issues.” Id. at 655-656. Thus, as the Court in Austin explained, a state has less reason for requiring unions to use only “voluntary” contributions than it does with respect to corporations. And yet the State of Washington has implemented exactly the opposite discrimination

[Disclosure: More than a decade ago, I worked at the law firm representing WEA in Davenport.]

The American Civil Liberties Union asked a federal appeals court on Friday to force out into the open at least some of the records that could reveal how far the secret Foreign Intelligence Surveillance Court has gone to authorize eavesdropping on individuals inside the U.S. when they communicate via telephone, e-mail or other electronic connections. In a motion to unseal filed with the Sixth Circuit Court in Cincinnati, the ACLU argued that the federal government had improperly classified at least some of the documents the Justice Department filed under seal on Jan. 11 and on Wednesday. “The government’s improper secret filings constitute an abuse of this Court’s process and unwarrantedly deprive the public of its right of access to information concerning judicial proceedings,” the liberal advocacy group said in the motion.

The “Terrorist Surveillance Program” at issue, begun some five years ago in secret, involves the National Security Agency’s monitoring of telephone calls and electronic exchanges of international calls into and out of the U.S., involving at least one person suspected of terrorist activity or links. The Program’s existence became publicly known only when The New York Times revealed it. Until this month, it was conducted only on the basis of presidential authority. Now, the government insists, it is being continued only with the FISA Court’s permission.

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In the USA Today, Joan Biskupic has this article on the composition of the Court. Biskupic also has this interview with Justice Ginsburg about her reaction to the absence of Justice O’Connor.

The AP’s Mark Sherman reported here about how Justices Kennedy, O’Connor, and Scalia have defended their decision in Bush v. Gore.

Here, Christopher Rugaber writes in the Insurance Journal about the Court’s decision to hear United States v. Atlantic Research Corp.

Jan Crawford Greenburg had this article in the Washington Post last weekend on President Bush’s Supreme Court appointments. Ilya Somin has this post on Greenburg’s book, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court, at the Volokh Conspiracy.

Finally, at the Election Law blog, Rick Hasen has this post on the significance of the Wisconsin Right to Life case.

Our “Ask the Author” series returns, and the guest author for this edition is once again Jeffrey Rosen, professor at GW Law School and legal affairs editor of The New Republic. The topic of this discussion is his new book, which is called The Supreme Court: The Personalities and Rivalries That Defined America. It is the companion volume to the PBS special “The Supreme Court” which premieres on Wednesday, January 31 at 9 PM eastern.

This is Part 1 of our discussion, with part 2 coming early next week. (Incidentally, Jeff is our first two-time guest - we discussed his previous book, The Most Democratic Branch: How The Courts Serve America here).

Since the book came out only a few weeks ago, can you briefly describe your thesis and the structure of the book? How did you choose the four pairings of men that you did in order to shed light on the notion of judicial temperament and how it affects the lasting impact of a justice?

The book argues that judicial temperament has shaped the history of the Court as much as judicial philosophy. It focuses on the clashes between eight large personalities whose personal and philosophical battles continue to influence the Court today: John Marshall and Thomas Jefferson; John Marshall Harlan and Oliver Wendell Holmes; Hugo Black and William O. Douglas; and William Rehnquist and Antonin Scalia. In each of these pairings, I argue, a pragmatic disposition and the ability to interact well in groups have proved more important than academic brilliance or philosophical consistency in determining long-term judicial success. Over time, the ideological purists and self-promoting narcissists have been marginalized, while those who are more devoted to the institutional legitimacy of the Court have transformed the law in their own image. I chose these four pairings after the producers of the PBS series, “The Supreme Court,” asked me to write a companion book to the show. Each of their episodes focuses on two or three judicial personalities, and they suggested I use the same people as an anchor for the four main chapters of the book. I did a little fiddling: the third episode of the series, for example, focuses more on William Brennan as a foil to Hugo Black, while I found William O. Douglas to be better illustrations of the perils of an injudicious temperament. But once I settled on the four pairings, the thesis quickly emerged. I have to say it was a surprise: ever since law school, I was taught to value philosophical consistency and academic brilliance over the ability to compromise and to get along with others. But the historical evidence changed my mind; on the Court, oddly enough, the nicer guys often finish first.

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The following is by Professor David Stras of the University of Minnesota Law School. Professor Stras will occasionally provide commentary on the Court’s business and alert readers to significant academic developments regarding the Supreme Court.

A new article by Todd Pettys was just posted on SSRN entitled “Choosing a Chief Justice: Presidential Prerogative or a Job for the Court?” which is available here. In the article, he argues that the current method for selecting a Chief Justice—presidential appointment and senatorial advice and consent—is deeply flawed for two reasons. First, the tacit rationale for the practice was the close advisory relationship between the Chief Justice and the President, as illustrated by President Washington’s frequent consultation with Chief Justice Jay during the nation’s early years. In other words, executive appointment could be supported on the basis that the Chief Justice would become one of the President’s closest advisors. Although I find this part of the article less convincing, in part because the President also appoints all other Article III judges, though none have a close advisory relationship to the executive, it does have an interesting discussion about the history of the office of Chief Justice and some of the more esoteric duties entrusted to the Chief by statute (such as regent for the Smithsonian Institution and as trustee for the National Gallery of Art and Hirshhorn Museum and Sculpture Garden).

The article is far more persuasive on the second point—that a serious conflict would arise if the Chief Justice were required to preside over the trial of the President that appointed him. Professor Pettys persuasively argues that the Framers removed the Vice President from the presiding role in a trial involving the President because of the real conflict of interest that would occur if the presiding officer was eligible for the higher office occupied by the individual on trial. Although the conflict is not as stark for a Chief Justice appointed by the President, a conflict of interest nonetheless exists, which potentially supports a different method of appointment for the office.

Of course, essential to this entire line of argument is Professor Pettys’ observation that the Constitution is silent on the appointment process for the Chief Justice. Thus, he proposes that, once all nine vacancies on the Supreme Court are filled, the members of the Court should select the Chief Justice. As a policy matter, the Justices are in the best position to know whether one of their colleagues is collegial and possesses the leadership and administrative skills to serve as an effective Chief Justice. I found this article quite interesting, and although I did not agree with everything, it’s well worth a read. (Hat tip: Legal Theory Blog).

No oral arguments are scheduled and no non-capital orders or opinions are expected to be issued today.