It’s always perilous to try and generalize about a Supreme Court Term.  Roughly 80 cases on diverse topics decided by nine different people don’t collectively produce clear themes.  When they do appear to, it’s often a mirage that reflects the coincidence of cases that happen to fall together by chance within a single term.

But that never stopped me before.

Here is what strikes me most about this Term.  The Court is moving steadily in the direction of rolling back Warren Court-era precedents that conservatives view as significant overreaching of the judicial role.  To be clear, that isn’t the Court’s principal occupation.  Most of its docket is filled with important but ordinary questions of federal law.  But it is a significant trend.

I am struck in particular by the opinions of the Chief Justice that seem to lay down markers that will be followed in later generations of cases.  NAMUDNO details constitutional objections to Section 5 of the Voting Rights Act that seem ready-made for a later decision invalidating the statute if it is not amended.  Herring contains significant language that can later be cited in favor of a broad good-faith exception to the Fourth Amendment exclusionary rule that applies to individual police mistakes.

If I’m right about the direction of the case law, the Court’s methodology is striking.  It is reinforcing its own legitimacy with opinions that later can be cited to demonstrate that it is not rapidly or radically changing the law.  This approach may be in the starkest relief if next Term the Court cites its recent decision in Wisconsin Right to Life as precedent for concluding that McConnell v. FEC and Austin v. Michigan have been significantly undermined and should be overruled.  The plurality and concurrence in Wisconsin Right to Life famously debated how aggressively the Court should go in overruling prior campaign finance precedent.  The Chief Justice urged patience – not moving more quickly than required – and the wait may not have been long.

There is nothing illegitimate about that approach.  It’s easy to demonize decisions with which you disagree as either exercises in raw judicial power (the truth of the matter is that the principal difference between McConnell and Wisconsin Right to Life is that Justice O’Connor was replaced by Justice Alito) or outright sneakiness.  Neither is accurate or fair.  Just because one set of Justices gets to a constitutional question first does not give it a greater claim to “constitutional truth.”  I disagree (sometimes substantially) with the direction of the law, but this incrementalism is rooted in a consistent vision of the law and a deep concern for the Court as an institution. 

Overgeneralizing broadly, conservatives believe that doctrines like substantive due process, the exclusionary rule, and a high wall separating church and state aren’t merely wrong but overstep the limited role of judges and endanger the legitimacy of the Supreme Court.  Turning back those decisions, in turn, is thought to (among other things) enhance respect for the Court.  The Chief’s professional life is defined by the Court — as a clerk, Principal Deputy Solicitor General, private practitioner, and now the Chief Justice — and his institutional commitment to it, including ensuring that it is regarded as an institution of integrity rather than a political football (see my earlier post on the Ricci opinion) — is profound.

But that perspective – when taken by a thoughtful judge who has the long view – also counsels in favor of moving at a measured pace.  If the Court instead were to announce in rapid succession the overruling of its prior decisions permitting regulation of campaign contributions, guaranteeing a right to an abortion, and finding affirmative action consistent with the Fourteenth Amendment, then the public would likely be left with the impression that constitutional law is nothing more than a power play between competing ideologies that reflect nothing more than the happenstance of the most recent appointments.

For the moment, there is no reason to rush.  Time permits a jurisprudence of not just originalism, or textualism, but actuarialism.  The sand running through this hourglass will not expire for eight years. 

Later in his term, President Obama will likely replace Justice Stevens with someone else on the left.  If he is reelected in 2012, he will replace Justice Ginsburg with someone on the left.  Nothing changes.

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Less than three weeks after winning a significant victory in the Supreme Court over its right to broadcast ads during election seasons, a Wisconsin advocacy group has asked a three-judge U.S. District Court to rule quickly on the legality of an ad it had wanted to run in 2006. And, in a separate plea that seeks to keep campaign reform advocates from opposing its request or from prolonging the court fight, the group urged the District Court to bar four members of Congress from any role in the continuing case even though they have been involved up to now. The two filings can be found here and here.

The Wisconsin Right to Life maneuvers in U.S. District Court in Washington indicated how energetically advocacy groups will seek to exploit the Justices’ 5-4 decision on June 25 in Federal Election Commission v. Wisconsin Right to Life (06-969). (The case back in District Court is docketed as 04-1260, before a three-judge District Court.)

But the maneuvers by the group, an abortion opponent, also appeared designed to set up a new test case that might persuade the Supreme Court to go further, and strike down altogether the part of the Bipartisan Campaign Finance Reform Act that bars election-season radio, TV or cable ads that mention the name of a federal candidate. The Court did not go that far in the WRTL decision last month, although three Justices in the majority argued that it should have. The decision in that case found only that the three WRTL ads planned for airing in 2004 dealing with Senate filibusters of judgeships could not constitutionally be banned under the Act. That limited the decision to an as-applied challenge of the federal ban on so-called “electioneering communications,” confined technically to the specifics of that particular case although providing a new and more generous definition of ads that would be protected by the First Amendment. The case is shortly to be sent back to District Court for review of the ad that WRTL had planned to air in 2006, not yet ruled upon. (That ad involved a plea to lobby members of Congress about a proposed new federal legislation on parental notice about a teenage daughter’s abortion.)

In WRTL”s motion to bar four members of Congress from remaining in the case as it moves on to the 2006 ad, it made the following argument: “If WRTL and similar advocacy groups are forced to deal with the campaign finance reform lobby as parties in this and every as-applied challenge to the electioneering communications prohibition — bearing the burden of responding to double briefing, extra discovery, and the sort of novel and complex arguments asserted and rejected in this case — then the as-applied remedy will be inadequate and it will be necessary to reconsider” the constitutionality of the “electioneering communcations” ban (which the Court upheld as written in McConnell v. FEC in 2003).

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There were four grants today; the Orders are here. Amy has collected information on today’s grants here.

Lyle’s initial post is here.

Our discussion board about the campaign finance cases has been quite active. Rick Pildes of NYU weighs in here, and Rick Hasen of Loyola Law School has his thoughts here. Georgetown Law’s Marty Lederman weighs in here and Richard Briffault posts these reactions. Lyle has additional commentary on the WRTL decision here.

Lyle also has an analysis of Morse v. Frederick here. Additionally, a summary of the decision in Hein, by Megan Greer of Akin Gump, is here. David Stras also wonders whose opining is controlling in that case in this post. And earlier, Marty Lederman posted these thoughts on both Hein and Morse here.

Gretchen has this post (which will be updated throughout the afternoon) collecting links to news and blog coverage of today’s opinions and orders.

The opinion in Hein is here.
Wilkie is here.
Morse v. Frederick is here.
Def. of Wildlife is here.
FEC v. WRTL is here.

The Court announced it will sit again on Thursday. If that is indeed the last day of the Term as expected, Leegin Creative (anti-trust), Panetti (death penalty), and the much-anticipated school assignment cases will be decided.

Commentary

Now and then, a footnote in a Supreme Court opinion is so provocative, so perceptive, or both, that it speaks almost as loudly as the body of the opinions themselves. In the election campaign ads ruling on Monday, Justice Antonin Scalia unleashes this broadside at the main opinion, written by Chief Justice John G. Roberts, Jr.:

“[T]he principal opinion’s attempt at distinguishing McConnell [v. FEC] is unpersuasive enough, and the change in the law it works is substantial enough, that seven Justices of the Court, having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the opinion effectively overrules McConnell without saying so. This faux judicial restraint is judicial obfuscation.”

Aside from the substance of the remark, it is especially noteworthy because it is a direct assault on the version of judicial modesty that seems to be — at least at this early stage of the “Roberts Court” — the decision-making style that the new Chief Justice has so often advocated publicly. (Perhaps also to be left aside is that Justice Scalia himself joined earlier in the Term in a ruling by the Court, in the partial-birth abortion decision — Gonzales v. Carhart – that can be read as having overruled precedent without saying so.)

The Chief Justice’s opinion in the combined cases of FEC v. Wisconsin Right to Life (06-969) and McCain v. Wisconsin Right to Life (06-970) is the latest example of the Court’s moving away from major precedent without actually saying explicitly that the prior ruling was being set aside. The Chief Justice has talked with some fervor about the value of respecting precedent, and the need to keep overrulings to a minimum, if not truly rare. But the new conservative majority on the Court is plainly uncomfortable with some of the precedents it confronts — and the McConnell decision was a prime candidate for overruling. In fact, both sides in the case had been granted additional space in briefing to argue whether it should be cast aside.

In the end, all that the Chief Justice’s opinion would say on the point was that “we have no occasion to revisit” the McConnell decision as it applied to federal regulation of broadcast ads aired by corporations and labor unions in election season. But what remains of that aspect of the 2003 decision divided the Court deeply in the various writings on Monday. And the end result is that, if it is hanging on, it is just by a thread.

In fact, the numbers show how vulnerable it is: three Justices wanted to overrule it outright, Justice Samuel A. Alito, Jr., is revealed to be strongly tempted to do that when and if the issue comes back again, and the Chief Justice’s tolerance of it as a precedent is fleeting at most. The only thing that might keep that part of McConnell on the books, technically not overruled, is that the Chief Justice’s new opinion could make it entirely unnecessary to do so — the campaign ads will flow freely in the weeks closest to elections, with full First Amendment protection, unless they leave no doubt that what they really say is “vote for Jones” or “vote against Smith.” Those who draft campaign ads’ content will have no trouble avoiding such blatant advocacy and yet leaving no one in doubt which outcome is preferred by the ads’ sponsors.

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UPDATE to 11:04 a.m.

Amid several 5-4 rulings on the merits, the Supreme Court on Monday granted four cases for review next Term, including a significant test case on the use of references to the O.J. Simpson not-guilty verdict to help persuade an all-white jury to impose a death sentence on a black defendant. Other granted cases include a test of state power to regulate commercial shipments of tobacco and other products harmful to children and a case involving states’ authority to allow damage claims against makers of medical devices approved by federal authorities. In the fourth granted case, the Court indicated it will sort out a conflict among lower courts on the deductibility on federal tax returns of expenses for trusts and estates.

In the first of several rulings on the merits, the Court split 5-4 in deciding that a federal agency that is required by law to take a specific action under one federal law does not have to follow the conflicting mandate of the Endangered Species Act. The decision, written by Justice Samuel A. Alito, Jr., came in National Association of Home Builders v. Defenders of Wildlife (06-340) and a companion case.

In the second decision of the day, also written by Alito and again dividing the Court 5-4, the Justices ruled that taxpayers do not have standing to sue to challenge the White House program on federal aid to faith-based organizations. The Court did not overrule Flast v. Cohen, as two Justices in the majority urged it to do so. The case was Hein v. Freedom from Religion Foundation (06-157).

The third decision, written by Justice David H. Souter, found over two Justices’ partial dissents that government employees carrying out their official duties and not for personal benefit are not subject to damage claims against them personally based on a lawsuit asserting that they violated the RICO anti-racketeering law or private property rights. The decision came in Wilkie v. Robbins (06-219).

The fourth ruling, written by Chief Justice John G. Roberts, Jr., over three full dissents and one partial dissent, declared that public school officials do not violate a student’s free speech rights by punishing the student for words or actions that promote a drug message. The ruling in Morse v. Frederick (06-278) also should count as a 5-4 decision because Justice Stephen G. Breyer would have decided the case on qualified immunity grounds, and not reach the First Amendment issue.

The Court issued its fifth ruling of the day, concluding that a Wisconsin organization that opposes abortion had a First Amendment right to aid during election season campaign ads that named a candidate running for the Senate. Three of the five Justices in the majority urged the Court to overturn the part of a 2003 ruling that upheld the constitutionality of the federal law restricting such radio and TV ads close to elections. The Chief Justice’s main opinion, joined fully by Justice Alito, said the case did not provide an occasion to revisit that ruling. Justice Souter recited at length from the bench for the four dissenters — who were in the minority in four of the five rulings on Monday. The ruling came in Federal Election Commission v. Wisconsin Right to Life (06-969) and a companion case.

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Aaron Streett’s latest Supreme Court Today, covering last week’s five opinions and discussing the Carhart decision at length, is now available here at Baker Botts.

In today’s New York Times, Linda Greenhouse reports here on the Court’s three 5-4 decisions overturning death sentences yesterday; David Savage has this article in the LA Times on the rulings in Abdul-Kabir v. Quarterman (No. 05-11284), Brewer v. Quarterman (No. 05-11287), and Smith v. Texas (No. 05-11304); the Houston Chronicle’s Patty Reinert reports here on yesterday’s opinions; and Todd J. Gillman and Diane Jennings have this article in the Dallas Morning News. At Balkinization, Sandy Levinson discusses judicial doctrine and Chief Justice Roberts’s “acerbic” dissent in the Abdul-Kabir and Brewer capital cases here.

At MarketWatch, Mark H. Anderson has this article on Watson v. Philip Morris (No. 05-1284), in which the Court heard argument yesterday. Coverage of yesterday’s oral arguments in FEC v. Wisconsin Right to Life (No. 06-969) and Sen. John McCain et al., v. Wisconsin Right to Life (No. 06-970) abounds:
• David G. Savage reports here in the LA Times that the Supreme Court is likely to ease restrictions on “issue ads”;
• In today’s New York Times, Linda Greenhouse has this article suggesting that the Court may overrule a key provision of the McCain-Feingold campaign finance law;
• Joseph Goldstein of the New York Sun has this article, reporting that the justices seem ready to strike down a central provision;
• Here, Marcia Coyle discusses the case last night on the News Hour with Gwen Ifill;
• Dahlia Lithwick discusses yesterday’s argument here at Slate and in this audio segment on NPR’s “Day to Day”;
• At the Election Law blog, Rick Hasen has this post discussing the roles of the justices and hypothesizing possible outcomes;
• Joan Biskupic reports here in the USA Today;
• In today’s Washington Post, Robert Barnes has this article on yesterday’s “lively session”;
• The Boston Globe’s Charlie Savage reports here on the campaign finance case; and
• Tony Mauro of the Legal Times has this report discussing the debate of an “as-applied” challenge to the McCain-Feingold law.

Edward Lazarus has this analysis of the Court’s decision in Gonzales v. Carhart at FindLaw; and NPR has this audio segment featuring Douglas Johnson, legislative director of the National Right to Life Committee, on “Morning Edition” as part of ongoing coverage of the abortion debate in the wake of last week’s ruling. At the BLT, Mauro has this post discussing the “Catholic connection”, which was raised after last week’s opinion upholding the ban on “partial birth” abortion.

Finally, in the spring issue of the City Journal, Stephen B. Presser has this profile of Justice Thomas.

The AP’s Frederic J. Frommer reports here on this morning’s oral argument in the campaign finance cases; Kristin Jensen and Greg Stohr have this article at Bloomberg; in the Washington Post, Robert Barnes reports here that a majority of the justices appeared skeptical about a key provision of the McCain- Feingold campaign finance act; and Rick Hasen has this post discussing his initial reactions to today’s oral argument in FEC v. Wisconsin Right to Life (No. 06-969) and Sen. John McCain, et al., v. Wisconsin Right to Life (No. 06-970) at the Election Law blog.

Jess Bravin of the Wall Street Journal has this article (subscription req’d) previewing this morning’s arguments; NPR’s Nina Totenberg had this audio segment on “Morning Edition”; David G. Savage has this preview in today’s LA Times. The Washington Post’s Robert Barnes and Matthew Mosk preview the case here; Joan Biskupic of the USA Today has this article; Warren Richey reports here in the Christian Science Monitor.

In today’s Washington Times, the Center for Competitive Politics’ Bradley A. Smith and Stephen M. Hoersting have this column discussing the campaign finance cases; this editorial runs in the Washington Post; and the New York Times has this editorial.

At Workplace Prof Blog, Paul Secunda has this post offering preliminary analysis of yesterday’s oral arguments in Beck v. Pace International Union, the ERISA fiduciary case. In today’s New York Times, Linda Greenhouse reports here on yesterday’s arguments in Permanent Mission of India v. City of New York (No. 06-134); Joseph Goldstein has this article in the New York Sun. Frederic J. Frommer of the Associated Press has this article on Dayton v. Hanson, which was also argued yesterday.

Additional commentary on last week’s Carhart decision can be found in: this column by Ruth Marcus of the Washington Post; this analysis of Justice Ginsburg’s equality argument from Pepperdine University Professor Douglas Kmiec at Justice Talking; and this paper from Simon Dodd posted here at Stubborn Facts.

Lastly, Ellis Cose reviews Kevin Merida and Michael Fletcher’s new biography, Supreme Discomfort, here in this week’s issue of Newsweek.

The transcripts for the final oral arguments of the Term have just come online. WRTL is here, and Watson is here.

With Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia exhibiting considerable distaste for a key provision of federal campaign finance law, Congress’ latest attempt to reduce the flow of corporate and union money into federal politics appeared to be in trouble in the Supreme Court on Wednesday. While that attempt had an energetic defense from Justices Stephen G. Breyer and David H. Souter, it seemed apparent at the end of an hour of argument that the “blackout” period for “electioneering” ads on radio and TV — if it survived at all — would have far less effect in restraining such ads.

While both Roberts and Scalia seemed quite tempted to vote to overrule a decision of just three years ago upholding the “blackout” provisions on their face (Scalia commented that “Maybe we were wrong last time”), they might well find a way to narrow its scope so significantly that overruling would not be necessary as a practical matter. Roberts, for example, sought to explore ways to avoid an overruling of the 2003 decision in McConnell v. Federal Election Commission as it applied to the “blackout.” It would take five votes to undo that ruling and, given the likely lineup of the Court, a fifth vote could come only from Justice Sanuel A. Alito, Jr., who did not display any enthusiasm for that outcome on Wednesday.

Scalia was clearly taking the lead against the “blackout.” He commented to Solicitor General Paul D. Clement, who was defending that restriction: “This is the First Amendment. We don’t make people guess whether their speech is going to be allowed by Big Brother or not. If you are going to cut off the speech, there ought to be a clear line…And you’re not giving us one.” Roberts, confronting attorney Seth P. Waxman, representing lawmakers who helped create the “blackout,” soon echoed Scalia by asking rhetorically: “Do we usually place the burden when we’re applying strict scritiny under the First Amendment on the challenger to prove that they’re allowed to speak, as opposed to the government…to carry the burden that they can censor the speech?”

The main thrust of the Roberts-Scalia assault during the arguments on FEC v. Wisconsin Right to Life (06-969) and Sen. John McCain, et al., v. Wisconsin Right to Life (06-970) was that the “electioneering communications” restrictions adopted by Congress in 2002 do not appear to leave enough room for an advocacy group to put up broadcast ads during election season that seek to raise questions about the policy stance of candidates without directly urging voters to vote for or against such candidates. Just last Term, the Court had ruled, in a post-McConnell decision in this same Wisconsin Right to Life dispute, that “as-applied” challenges could still be made to the “blackout” clauses in the Bipartisan Campaign Reform Act of 2002.

WRTL’s lawyer, James Bopp, Jr., of Terre Haute, Ind., appeared to make real headway with his complaint that “as-applied” challenges would seldom succeed under the “blackout” provisions, justifying at a minimum a narrowing interpretation or, perhaps, an overruling of that part of McConnell. Roberts and Scalia helped him significantly, but he also held his own against sometimes sharply tinged questioning from Breyer and Souter.

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Analysis

The 2008 election campaign does not open, formally, for several more months, but it gets a start in the Supreme Court Wednesday — the final day of scheduled arguments in the current Term. The Court holds one hour of oral argument in two consolidated cases that may influence in a major way the role of advocacy groups in speaking to voters about the issues shaping the 2008 election. Just 40 months after the Supreme Court upheld broad power for Congress to regulate broadcast ads during election season, the Court is being asked to overturn a key portion of that ruling. If it does, or if it restricts that ruling in a significant way, there could be an even heavier flow of corporate and labor union cash — including major funding by non-profit corporate advocacy groups — into radio and TV ads throughout the coming campaign.

The cases are Federal Election Commission v. Wisconsin Right to Life (06-969) and Sen. John McCain, et al., v. Wisconsin Right to Life (06-970). The cases are a sequel to the Court’s massive ruling in December 2003 in McConnell v. FEC, upholding most major provisions of the Bipartisan Campaign Reform Act of 2002. Specifically at issue in the new cases is the part of McConnell that upheld Congress’ restriction on what are called “electioneering communications.”

As it turned out later, however, the Court would stress that McConnell had merely upheld the language of that restriction in BCRA, and had not ruled out constitutional challenges to the ban when applied to specific ads. The new dispute before the Court started out as just such an “as-applied” challenge but has grown into a plea to overturn that part of the McConnell decision.

“Electioneering communications,” under the 2002 law, are ads that corporations and labor unions (including many non-profit corporations) pay for out of their own treasury funds, when the ads run in an area where a federal candidate is on the ballot (everywhere, for presidential candidates), use that candidate’s name, and appear within 30 days before a primary election and 60 days before a general election — the “blackout” period. As of now, that period, at least for the presidential campaign, is to start next December, 30 days in advance of the Iowa caucuses.

The legal question before the Court in the two new cases is whether a special three-judge U.S. District Court in Washington, D.C., was wrong in ruling last December that the “blackout” provision was unconstitutional as applied to three ads that Wisconsin Right to Life had planned to air during the 2004 election season.

But, as is frequently the case with Supreme Court litigation, the Justices will first have to confront the question of whether there is a “live” case before them for decision. The FEC, in appealing one of the cases, suggested that the dispute may be moot, because the case only involves three specific ads from 2004 and there is no proof that WRTL is likely to run the same kind of ads in the future. The Court, in its Jan. 17 order agreeing to hear the two cases, postponed a ruling on whether the case is moot and thus whether it has jurisdiction to decide them. That will no doubt be considered in Wednesday’s oral argument, and in the coming decision, along with the merits.

Arguing for the FEC will be U.S. Solicitor General Paul D. Clement. Representing the four members of Congress — two Democrats and two Republicans who support the “blackout” restrictions — will be Seth P. Waxman, a Washington lawyer and former Solicitor General. Wisconsin Right to Life’s lawyer will be James Bopp, Jr., of Bopp, Coleson & Bostrom in Terre Haute, Ind.

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In today’s New York Sun, Joseph Goldstein has this article on the consolidated campaign finance cases being argued before the Court tomorrow. At the National Review Online, James Bopp Jr., Lead Counsel for Wisconsin Right to Life, has this piece; Senate Minority Leader Mitch McConnell has this commentary in today’s Wall Street Journal. Brian Tumulty of the Appleton Post Crescent reports here on FEC v. Wisconsin Right to Life (No. 06-969) and McCain, et al., v. Wisconsin Right to Life (No. 06-970).

In today’s New York Times, Linda Greenhouse has this article on yesterday’s argument in Brendlin v. California (No. 06-8120); David G. Savage reports here in the LA Times.

Devlin Barrett of the Associated Press has this article on this morning’s arguments in Perm. Mission of India v. New York (No. 06-134); Tony Mauro reports on the tax case here in the Legal Times.

Yesterday, WBUR’s “On Point” featured this audio segment, a discussion on the Roberts Court after the abortion decision with guests Jan Crawford Greenburg, Jeffrey Rosen and Karen Tumulty.

Reuters’ Maggie Fox reports here on doctors’ reactions to the abortion ruling; Michelle Fay Cortez of Bloomberg has this article; and yesterday, NPR’s “Talk of the Nation” featured this audio segment, a discussion of the Court’s decision by a doctor and activists.

Here, at Legalities, Jan Crawford Greenburg discusses the anti-Catholic backlash over the Carhart decision. Last week, Greenburg had this post discussing Justice Kennedy’s majority opinion.

Lastly, Tony Mauro has this post discussing Justice Thomas’s recusal from all cases involving Wachovia at the BLT. And Peter Lattman has this post on Kevin Merida and Michael Fletcher’s new biography, Supreme Discomfort: The Divided Soul of Clarence Thomas.

With a rhapsodic essay about John Milton and James Madison, and a bracing reminder of the evils of the Star Chamber and the Alien and Sedition Acts, a Wisconsin advocacy group on Thursday urged the Supreme Court to take away the government’s power to ban campaign season radio and TV ads by corporations and labor unions using their own money. The new brief can be found here.

With added writing space granted by Chief Justice John G. Roberts, Jr., the group — Wisconsin Right to Life — asked the Court to reconsider one facet of the 2003 decision in McConnell v. Federal Election Commission – the part that upheld, as written (but not necessarily as applied), the provision that bans so-called “electioneering communications.” That ban operates in two campaign “blackout” periods — 30 days berfore a federal primary election and 60 days before a general election. It applies to corporations or labor unions that pay for the broadcast ads out of their own treasuries if the ads name a candidate.

The new brief was filed in the consolidated cases of FEC v. Wisconsin Right to Life (06-969) and McCain, et al., v. Wisconsin Right to Life (06-970). The Court will hold one hour of argument on those cases on April 25.

While the McConnell opinion was a bit opaque on whether it dealt only with a facial challenge to the broadcast ban, the Court made clear in January last year that it had not intended to rule out as-applied challenges to that provision. That led to a 2-1 U.S. District Court decision finding the ban invalid as it applied to three specific ads that the Wisconsin group had planned to air in the summer of 2004. The Justices this January agreed to hear the case, but left open whether the case might be dismissed as moot. At the time the case was put on the decision docket, it was not clear that it would raise any issue about the McConnell decision’s continuing validity.

WRTL, in asking for added briefing space, had informed the Court that it intended to call for overruling of the 2003 decision so far as it upheld the broadcast ban — an overturning that would free corporations and labor unions to spend directly on campaign season ads. WRTL contends that its adversaries in the cases have provoked the constitutional re-examination by arguing that the three ads not broadcast are exactly the kind of campaign expression that the federal campaign finance law intended to ban.

Since it contends that those ads are not campaign ads at all, but ads that genuinely deal with a legislative issue that was live in the summer of 2004 (Senate filibustering of federal judicial nominees), applying the ban to them would clearly violate the First Amendment’s protection of free speech and the right to petition the government, WRTL’s brief asserts.

The brief suggests that, if the Court agrees that part of the McConnell decision should be overruled, that possibility could be averted if the Court were to “create a safe-harbor for grassroots lobbying.” As spelled out in the brief, such a safe harbor would exempt campaign season ads from the federal ban if such an ad “focuses on a current legislative branch matter, takes a position on the matter, and urges the public to ask a legislator to take a particular position or action with respect to the matter in his or her official capacity,” and the ad “does not mention any election, candidacy, political party, or challenger, or the official’s character, qualifications, or fitness for office.”

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For 60 years (since the Taft-Hartley Act of 1947), federal law has forbidden for-profit and some nonprofit corporations from using their treasury funds to pay for election-related advertising — they are required instead to use separate, segregated funds that are raised for that particular purpose (the so-called “PAC” requirement). (Most nonprofit corporations are exempt from the PAC requirement, so long as they do not accept donations from for-profit corporations and unions.)

The Court upheld an analogous state-law corporate-PAC requirement in the 1990 case of Ausin v. Michigan Chamber of Commerce, and three Terms ago, in McConnell v. FEC, the Court by a 5-4 vote upheld the federal PAC requirement, too — over a dissent by Justice Kennedy arguing that Austin should be overruled.

The Appellee in the pending Wisconsin Right to Life case (Nos. 06-969, 06-970) has now informed the Court that it will ask the Court to “reconsider” the corporate-PAC holding of McConnell (and, presumably, Austin). The head’s-up from Wisconsin Right to Life comes in a motion for extra briefing pages. The Chief Justice has granted the Appellees 70 pages for briefing.

(Disclosure: I am counsel on a brief for amici Professors Richard Briffault and Rick Hasen arguing for the constitutionality of the six-decade-old corporate PAC requirement. In that brief, among other things, we explain that Appellee Wisconsin Right to Life, a nonprofit corporation, would not be subject to the PAC requirement at all but for the fact that it accepts significant funding from for-profit corporations.)

UPDATE: Rick Hasen explains here why he doesn’t think the Court should or will take up the invitation to reconsider McConnell and Austin.

The Supreme Court on Monday released its calendar of arguments for April — the final scheduled hearing sessions of the Term. The Court will hear a total of 16 cases over the six days of sittings — thus, there will be four afternoon arguments. Most of the time in recent years, the Court hears only two cases per day, in the mornings. The hearings will begin at 10 a.m. and run until noon, and, in the afternoon, from 1 to 2 p.m., with each case allotted one hour of argument. (The hearing list can be found here.)

Here is the day-to-day schedule, with summaries of the issues presented:

Mon., April 16
05-85 – Powerex Corp. v. Reliant Energy Services – definition of how a foreign business firm may qualify as an agent of a foreign government for purposes of U.S. court jurisdiction
06-593 — Long Island Care at Home v. Coke — right to overtime pay for home care workers who are employed by agencies, not by families

Tue., April 17
06-340 and 06-549 — National Association of Homebuilders v. Defenders of Wildlife and EPA v. Defenders of Wildlife – duty of federal agencies to avoid harms to endangered species (Consolidated for one hour or argument)
06-531 — Struhs v. Wyner– nature of victory in court needed to justify attorney fee shifting
(afternoon) 06-413 — Uttecht v. Brown – federal court authority to overturn state judge’s removal of a juror in a murder trial

Wed., April 18
06-427 — Tennessee Secondary School Athletic Assoc. v. Brentwood Academy – prep schools’ right to recruit student athletes despite a state policy forbidding it
06-341 — BCI Coca -Cola Bottling v. EEOC – employer liability for alleged bias of subordinate who did not make the actual employment decision at issue
(afternoon) 06-6407 — Panetti v. Quarterman – constitutionality of executing a death row inmate who has a delusion about why he is being executed

Mon., April 23
06-562 — U.S. v. Atlantic Research Corp. — right of a company responsible for hazardous waste deposit to sue to share clean-up costs with others
06-8120 — Brendlin v. California – authority of police during traffic stop to order passengers out of car
(afternoon) 06-376 — Hinck v. U.S. — Tax Court jurisdiction over claim to relief from assessed interest on taxes due

Tue., April 24
06-134 — Permanent Mission of India v. City of New York – immunity from local property taxes for foreign embassy properties used as diplomats’ residences
05-1448 — Beck v. PACE International Union – pension plan sponsor’s duty to consider merger as a way of terminating the plan without ending benefits
(afternoon) 06-618 — Office of Dayton v. Hanson – Speech or Debate Clause application to congressional employee’s job rights lawsuit; also, mootness and jurisdictional issues

Wed., April 25
06-969 and 06-970 — FEC v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life — constitutionality of federal ban on broadcasts planned for airing in election season, when the ban is applied to specific broadcasts (Consolidated for one hour of argument)
05-1284 — Watson v. Philip Morris – right to move a state case to federal court when it involved actions by a private entity acting under mandate of a federal agency

UPDATE, Tuesday afternoon: The cases discussed in this post have now been docketed as 06-969 (FEC’s appeal) and 06-970 (Sen. McCain, et al., appeal).

A private advocacy group in Wisconsin on Monday urged the Supreme Court to rule this Term on the right of groups like it to broadcast ads during election season that name federal candidates while discussing public issues. In a move to get the Court to embrace First Amendment protection for “grassroots lobbying” advertisements, Wisconsin Right to Life joined in urging the Court to hear two appeals on the issue — one by the Federal Election Commission, the other by a group of four members of Congress.

The Wisconsin group urged the Court to adopt a briefing schedule, proposed by the FEC, that would have the case ready for oral argument in April, permitting a decision before summer recess. If the Court agrees on Friday to grant jurisdiction in this dispute, the schedule would have all briefs in by April 18. The FEC suggested that oral argument be held on April 25 — the last scheduled argument day of the Term.

Wisconsin Right to Life’s reply to the appeals can be found here.

The group mounts a sturdy defense of what it calls ‘grassroots lobbying” ads or ads that seek to influence policy debates by urging their audience to contact lawmakers about pending legislative issues. It notes that a number of the congressional sponsors of attempts to limit election-season ads that skirt federal regulation said repeatedly that they had no intention of banning legitimate policy ads.

The Court should hear and decide the application of the electioneering ads issue, Wisconsin Right to Life contends, because such a ruling “would likely set out the critical factors for a broadcast ad to qualify for a grassroots lobbying exception so that the regulated public would know with some certainty the circumstances under which they may now use broadcast ads to lobby members of Congress about upcoming votes in Congress.”