Obituaries for John J. O’Connor, III, the husband of retired Justice Sandra Day O’Connor, are in today’s newspapers. O’Connor died yesterday, at age 79, of complications from Alzheimer’s disease. For obituaries, see The Washington Post, The New York Times, The Los Angeles Times, and the Associated Press (via The Wall Street Journal). Memorial services will be private.
After the jump, a new diversion for Supreme Court buffs.
Adam Liptak at the New York Times covers the continuing legal battle over gay marriage, and in particular the lawsuit – filed by former Solicitor General Ted Olson – pending before U.S. District Judge Vaughn Walker in California. Liptak notes that public support for gay marriage is not as widespread as the support for homosexual sex and interracial marriage when the Supreme Court ruled on those issues. He quotes Andrew Koppelman of Northwestern Law School, who posits that arguments in favor of gay marriage “will have trouble attracting votes from the current justices.” The San Francisco Chronicle also covers Judge Walker’s decision to order sponsors of California’s ban on same-sex marriage to release campaign strategy documents. Opponents of the ban believe that the documents may contain “evidence of anti gay bias” that would be helpful in their fight to overturn it. Judge Walker’s continuing push for a full trial leads many to believe that he is preparing the matter for eventual Supreme Court review.
Analysis
With U.S. Solicitor General Elena Kagan now weighing what to do next on the hotly controversial EMILY’s List case, it already appears that her decision could have a major impact on next year’s national political campaigns, whatever choice she makes. If the Supreme Court gets involved, or if it does not, the influence of money on federal politics may change fundamentally — in future presidential contests as well as, perhaps, the 2010 congressional campaign.
The case is EMILY’s List v. Federal Election Commission, a case decided Sept. 18 by the D.C. Circuit Court (the opinion is here), and newly brought into public focus after the FEC split 3-3 in a vote last Thursday, thus refusing to request en banc review by the Circuit Court (an FEC news release, with access to statements by the commissioners, can be found at this link).
The case involves a successful challenge to a set of regulations adopted in 2004 by the FEC, seeking to curb high-volume spending by non-profit advocacy groups widely known as “527 corporations” — named for a provision of the tax code under which they were organized. (The author of this post has prepared detailed background on how the case developed before the FEC vote last week; it can be read here.)
Republican-leaning groups like Club for Growth and Democratic-oriented groups like MoveOn.org, and others like them, together spent more than $400 million to try to influence voters in the 2004 elections for President and Congress. EMILY’s List, a group that supports abortion rights and political candidates who share its views, failed to persuade a federal judge to overturn the restrictions last year, but a Circuit Court panel nullified them last month.
With the FEC passing up a plea for the Circuit Court to reconsider, some groups that support strict curbs on 527 corporations are urging Solicitor General Kagan either to make that request, or to go on to the Supreme Court with an appeal (see a press release available at this site from Democracy 21, one of those groups). There is no doubt that Kagan could take the case to the Supreme Court now; legal analysts are not sure she has the option of seeking en banc review, or whether that was a choice left to the FEC.
If she does neither, then the new restrictions are gone. As a result, non-profit 527s will be able to spend unlimited amounts of “soft money” — that is, money raised outside the donation limits of federal law — to attack or support federal candidates or parties, can spend freely on voter drives, and can solicit unrestricted amounts from donors. And, as one judge on the Circuit Court (Circuit Judge Janice Rogers Brown) noted, “Congress can do nothing about any of this.” That is because the majority of the Circuit Court panel based its ruling on the Constitution — subject to change only by amendment of the basic charter.
The October issue of the ABA Journal Magazine is out and brimming with commentary on the Court. The Magazine likens the modern confirmation process of Court nominees to a “kabuki dance,” because Senators ask useless but inflammatory questions for the cameras and the candidates are too tight-lipped to reveal a good sense of their judicial philosophy. The article traces this trend back to Justice Ginsburg’s confirmation, which occurred soon after the confirmation hearings of Clarence Thomas and Robert Bork, whose character and conservative judicial philosophies were viciously attacked. Four authors propose reforms to the process: David Stras suggests that nominees be required to analyze five previous Court decisions, Stephen Carter wants to focus on nominees’ professional qualifications rather than disqualifications, Seth Rosenthal proposes a courtroom setup in which litigators ask questions, and Richard Davis is ready to dispense with hearings altogether for elections.
The stakes for the outcome of Citizens United and the McCain-Feingold law have been raised after the D.C. Circuit’s decision last Friday in Emily’s List v. FEC. The Washington Post, the New York Times, the Blog of the Legal Times and Election Law Blog each analyze the appellate opinion, which struck down federal campaign finance regulations that restricted the ability of independent political groups to fund election-related activities. The three-judge panel followed the Supreme Court’s ruling in Federal Election Commission v. Wisconsin Right to Life to hold that groups such as MoveOn.org or Swift Boat Veterans for Truth have a First Amendment right to raise and spend money for elections, as long as they do not coordinate their activities with a candidate or a party. Rick Hasen suggests that this ruling could lead to a “more negative campaign season,” as interest groups tend to run more negative ads than political parties do.
Analysis
If supporters of federal curbs on political campaign spending by corporations were counting on Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., to hesitate to strike down such restrictions, they could take no comfort from the Supreme Court’s 93-minute hearing Wednesday on that historic question. Despite the best efforts of four other Justices to argue for ruling only very narrowly, the strongest impression was that they had not convinced the two members of the Court thought to be still open to that approach. At least the immediate prospect was for a sweeping declaration of independence in politics for companies and advocacy groups formed as corporations.
The Court probed deeply into Congress’ reasoning in its decades-long attempt to restrict corporate influence in campaigns for the Presidency and Congress, in a special sitting to hear a second time the case of Citizens United v. Federal Election Commission (08-205). At issue was whether the Court was ready to overturn two of its precedents — one from 1990, the other from 2003 — upholding such limitations.
From all appearances, not one of the nine Justices — including the newest Justice, Sonia Sotomayor — appeared to move away from what their positions had been expected in advance to be. In her first argument, Sotomayor fervently joined in the effort to keep any resulting decision narrow — seemingly, the minority position but one she had been assumed to hold.
Three Justices — Anthony M. Kennedy, Antonin Scalia and Clarence Thomas — have explicitly urged the Court to overturn the two precedents that sustained congressional limits on campaign financing by corporations and labor unions. Kennedy and Thomas only seemed to reinforce that position on Wednesday; Thomas remained silent, but had given no indication earlier of a change of mind.
That lineup has always put the focus, as the Court volunteered to take on new constitutional questions in the Citizens United case, on the Chief Justice and Justice Alito. While both have been skeptical in the past about campaign finance laws, supporters of such laws had fashioned an array of arguments they hoped would lead Roberts and Alito to shy away from casting their votes to create a majority to free corporations to spend their own treasury money to influence federal elections. None of those arguments seemed to appeal to either Roberts or Alito.
The Court will now proceed in private to work on a final decision in the case, in coming weeks. Although the case was heard again in an unusual session interrupting the Court’s summer recess, no one expects a final ruling to emerge until after the new Court Term formally opens on Oct. 5. After Wednesday’s hearing, the Court’s Marshal gaveled the Court back into recess until that first Monday in October. Still, the Court presumably will cast an early, preliminary vote on Citizens United, so that drafting of opinions can begin promptly.
NOTE: The Supreme Court case set for argument on Wednesday, Sept. 9, Citizens United v. Federal Election Commission(08-205), originated in the past Term. It is now being reargued. The schedule for the 80-minute argument Wednesday is here. ScotusWiki has a full entry, here, on the case as it unfolded up to this point; that page includes all of the briefs. The following post discusses what is now before the Court. Portions of this post also will appear as part of the Wiki entry, which will be updated as the case proceeds to a decision.
———————-
Looking back on the Gilded Age, historians Samuel Eliot Morison and Henry Steele Commager wrote: “The nation was fabulously rich but its wealth was gravitating rapidly into the hands of a small portion of the population, and the power of wealth threatened to undermine the political integrity of the Republic.” Justice Felix Frankfurter quoted that remark in a 1957 decision, and recalled that in the late 19thCentury, there had been a “popular feeling that aggregated capital unduly influenced politics, an influence not stopping short of corruption.”
For generations, that image of the Gilded Age has shadowed the American business corporation, with popular rhetoric routinely treating corporate money, when used in politics, as corrupt and corrupting. Now, more than a century later, the Supreme Court is confronting the question — as much a cultural as a constitutional inquiry – of whether that perception is out of date. It is pondering whether corporations ought to enjoy full constitutional equality in the financing of modern campaigns for the Presidency and for Congress. It is doing so in a case that started out a lot more modestly than that, the case of Citizens United v. Federal Election Commission.
The Supreme Court announced Friday that the audiotape of next Wednesday’s oral argument in a major campaign finance case, Citizens United v. Federal Election Commission (08-205), will be released for public broadcast shortly after the argument ends. The argument is to begin at 10 a.m., and is scheduled to continue for 80 minutes, indicating that release may come in late morning. The arrangements are outlined in this news release.
The hearing will be historic in a number of ways. It will be the first Court argument heard by the new Justice, Sonia Sotomayor, who is the first Hispanic member of the Court and only the third woman Justice in history. It will be the first time that former Harvard law dean Elena Kagan will argue in the Court in her new role as the U.S. Solicitor General. The Court is also sitting in a rare special session, in advance of the formal opening of the new Term on Oct. 5. And the argument itself will focus on constitutional issues with a history running back to the late 19th Century.
The Court’s Day Call shows this sequence for the argument: Theodore B. Olson of Washington, arguing for Citizens United, 30 minutes [some of that time will be saved for rebuttal after all others have argued]; Floyd Abrams of New York, arguing for Senate Republican Leader Mitch McConnell of Kentucky, 10 minutes; Solicitor General Kagan, for the FEC, 30 minutes, and Seth P. Waxman of Washington (a former Solicitor General), for Sen. John McCain (R-Ariz.) and other present and former congressional sponsors of campaign finance legislation.
Although the case is scheduled for 80 minutes, Chief Justice John G. Roberts, Jr., has sometimes allowed an argument to run beyond the allotted time, especially if the Justices are actively engaged in the discussion.
(NOTE TO READERS: See the post above for full background on the constitutional issues at stake Wednesday, including a lengthy look at the history behind those issues. All briefs filed in the case are availabe at our sister blog, ScotusWiki, at this link.)
NOTE: This post has been updated to clarify then-District Judge Sotomayor’s earlier action.
——————–
The new Justice, Sonia Sotomayor, apparently will not take part in the Supreme Court’s review of a major copyright case, Reed Elsevier, et al., v. Muchnik, et al. (08-103) — a case scheduled for oral argument on Oct. 7. Sotomayor recused when the Court on Friday issued an order allowing the U.S. Solicitor General to take part in the argument — a clear indication that she will be out of the case. She participated in other actions as the Court issued the last of its summer recess orders. (The orders are here.)
Sotomayor gave no reason for her recusal from Friday’s order. However, it may have been because she was a judge on the Second Circuit Court and apparently took part when that Court refused, on April 15 of last year, to rehear the case en banc. In another case, separate from the one now before the Supreme Court, she ruled in favor of publishers on individual infringement claims. That was in 1997; her ruling was overturned by the Second Circuit in 1999, and the Supreme Court agreed with that outcome in New York Times Co., et al., v. Tasini, et al. (533 U.S. 483), on June 25, 2001. The class-action lawsuit, a group of consolidated cases – the litigation that is now before the Supreme Court — arose after the Supreme Court’s Tasini ruling, but then settlement discussions ensued, with Kenneth Feinberg (now President Obama’s corporate compensation “czar”) acting as mediator. (Thanks to two readers for the facts on Sotomayor’s role in the District Court.)
Without her participation, eight Justices will review the Reed Elsevier case, raising at least the possibility of a 4-4 split — a result that would simply uphold the lower court ruling without an opinion, and without setting a legal precedent.
If ten minutes of oral argument time is enough to say something meaningful to the Supreme Court, could the same be done in one minute? A pair of groups seeking to speak on behalf of the citizenry is testing that question, asking the Court to give their attorney “as long as one minute” to argue in Citizens United v. Federal Election Commission (08-205), the campaign finance case that has now spawned a major constitutional controversy.
In a motion filed Aug. 18, an attorney for the Wyoming Liberty Group and Goldwater Institute Scharf-Norton Center for Constitutional Litigation sought that bit of time to join in the hearing scheduled for Sept. 9.
Citizens United on Wednesday filed its reply brief in Citizens United v. FEC (08-205), on constitutional issues surrounding federal campaign finance law as it applies to business corporations. The filing is here. The Federal Election Commission’s filing is here. These two documents will complete briefing on the added constitutional question the Court raised in the case on June 29, after hearing the case on statutory issues.
The Court will hold an 80-minute hearing on the case in a special sitting on Wednesday, Sept. 9. The case is considered part of the Court’s work in the 2008 Term.
————
Meanwhile, the federal government on Wednesday also filed its reply brief in a case on the constitutionality of the federal law making it a crime to depict animal cruelty in videos and other forms. The brief in U.S. v. Stevens (08-769) is here. The case is scheduled for argument at 10 a.m. on Tuesday, Oct. 6.
Weds., Sept. 2 at 9 a.m. : The American Constitution Society will host a press briefing panel on Citizens United v. Federal Election Commission, moderated by Joan Biskupic of USA Today. Click here to register and for more information about the panelists.
Tues., Sept. 8 at 12 p.m.: The Cato Institute will host a panel, “Citizens United Redux: The First Amendment Vindicated?” Click here to register and for more information.
Thurs., Sept. 17 at 10:30 a.m.: The Cato Institute will host a Constitution Day symposium, “The Supreme Court: Past and Prologue—A Look at the October 2008 and October 2009 Terms.” Click here for more information about the conference and for registration details.
The Supreme Court agreed on Monday to expand its Sept. 9 argument on constitutional issues affecting corporations’ spending on federal election campaigns, adding 20 minutes to the schedule to allow lawyers for members of Congress to take part. The argument in Citizens United v. Federal Election Commission (08-205) will now run for a scheduled 80 minutes. The action was taken as the Court issued its second round of summer orders, during its recess; Monday’s orders can be found here.
The Court’s newest Justice, Sonia Sotomayor, took part in the Court’s action on the argument schedule. This was the first time she had cast any votes as a member of the Court; she took her oaths and began work on Saturday, Aug. 8.
As a result of the argument’s expansion, lawyers for the advocacy group Citizens United will have 30 minutes to argue, the FEC 30 minutes, four present or former members of Congress who were sponsors of major campaign legislation will have 10 minutes, and Senate Republican leader Mitch McConnell of Kentucky, an opponent of limits on campaign finance, will have 10 minutes. Chief Justice John G. Roberts, Jr., would have the option of expanding the argument beyond 80 minutes as the hearing proceeds, if that seems appropriate.
The Court is hearing the case in advance of the formal opening of the new Term on Monday, Oct. 5. That is because the case is considered to be a part of the Court Term that informally ended on June 29.
Besides expanding the Citizens United argument time, the Court on Monday agreed to divide the argument in Mohawk Industries v. Carpenter (08-678), now scheduled for argument at 1 p.m. on opening day, Oct. 5. The case tests the right to appeal when a court has ordered the disclosure of attorney-client communications. The U.S. Solicitor General, entering the case in support of Carpenter, was allowed to divide time on that side of the case.
In an order included with Monday’s list, Justice Sotomayor was assigned duties as Circuit Justice for the Tenth Circuit. (The Second Circuit, on which she had sat previously, remains assigned to Justice Ruth Bader Ginsburg.) Some of the other assignments have changed with the arrival of Sotomayor.
The top-ranking Republican in the U.S. Senate, Sen. Mitch McConnell of Kentucky, the minority leader, has asked the Supreme Court to allow his lawyer to take part in the special session on Sept. 9 when the Court will consider basic constitutional issues about federal campaign finance law. That plea, however, is being resisted by the private advocacy group that took the case to the Court, against the Federal Election Commission.
In a motion filed July 31, Sen. McConnell’s attorneys argued that he has a distinct interest in whether the Court overrules a key part of a 2003 decision upholding a restriction on campaign finance — the decision in a case bearing his name, McConnell v. FEC. He would bring to the Court “a different viewpoint” than the advocacy group Citizens United, the motion contended.
In a response filed Aug. 3, however, Citizens United contended that there would be no value in adding another lawyer to the Sept. 9 hearing. There is, it said, “no compelling reason” why the Court should hear more than one lawyer on each side of the case of Citizens United v. FEC (08-205). (However, the FEC has asked the Court to allow it to share its time with a lawyer for four present or former members of Congress who were the lead sponsors of current federal campaign finance law.)
The Court may act as early as next Monday on the question of splitting up the argument among more than one lawyer for each side, and the related question of whether it might expand that argument beyond the presently scheduled 60 minutes — 30 per side. An expansion of argument time was an alternative suggestion by Sen. McConnell.
After two days of floor debate, the Senate voted 68-31 to confirm Second Circuit Judge Sonia Sotomayor as a Justice of the Supreme Court.
Justice Sotomayor will be on the bench for the Sept. 9 reargument of Citizens United v. Federal Election Commission (08-205) and her first full term will begin Oct. 5. As the 111th Justice, she is the third female, third minority, and first Hispanic jurist to sit on the nation’s highest court. In filling the vacancy left by retired Justice David H. Souter, Justice Sotomayor is the 17th Justice in the bench’s fifth seat. At 55, she is the second youngest current Justice; Chief Justice John G. Roberts is 54.
Tom
Amy
Pattie
Kevin
Lyle
Erin
Anna
Adam
Adam
Jay
David