Argument recap: Scalia guarding the slope
on Apr 27, 2011 at 11:09 am
Analysis
When Justice Antonin Scalia stands on the edge of a constitutional slope that he considers to be especially slippery, he can be a formidable barrier to anybody else attempting to take the slide. He was so determined on Wednesday that the Court not create new First Amendment protection for legislators when they cast their votes that he appeared almost to be daring any of the other Justices to embrace such an idea. There were no eager takers; that slope just looked much too slippery.
In the final argument of the Term, in Nevada Ethics Commission v. Carrigan (10-568), the Court seemed positively eager to deal with the broad First Amendment question, and not just with the narrower issue on which review had been granted: what standard of review should it use, strict or more relaxed, to judge the constitutionality of a state ethics law for legislators.
After Scalia had listened for a few minutes as his colleagues explored the specifics of Nevada’s law, and what it covered, he had had enough. “We’ve jumped way ahead,” he protested. This is the first case the Court had ever heard, in 220 years, on whether ethical rules for legislators were subject to the First Amendment, he said. Such rules, he noted, had been around since the very first Congress, and he argued that it is not for the Court to judge them.
John P. Elwood, the Washington, D.C., lawyer defending the Nevada law and its use against a city councilman censured for voting on a zoning matter in which his campaign manager had a key interest, agreed with Scalia that the idea was a novel one — so exotic, he suggested, that it had not even been proposed in a law review. Like Scalia, the attorney made clear he could foresee all kinds of complications. Still, Elwood appeared to be reluctant to push too far toward no protection for legislators, suggesting he would have doubts about a law that discriminated against legislative expressions based on the specific message, or viewpoint.
Elwood’s main problem, though, was that the specific clause of the Nevada law at issue drew very heavy criticism from the bench — especially from Justice Samuel A. Alito, Jr., who said he had “found it very difficult” to figure out what it meant and illustrated his confusion by exploring how a legislator’s cousin’s interest might put the legislator in trouble. At issue is a phrase that is commonly called the “catch-all” provision of that law, but Elwood would not even concede that that was a proper label for it; it really is quite narrow, he insisted, covering only really close personal and financial relationships. And Elwood’s attempt to portray the statute’s final clause as quite limited ran into some grand rhetorical flourishes from his adversary, E. Joshua Rosenkranz of New York, who suggested that the entire electoral system may be endangered by such a law. Rosenkranz tried to make the First Amendment slope look a lot less slippery, but his main achievement seemed to be simply to add to Elwood’s woes in attempting to salvage the Nevada law as is.
What seemed quite possible, by the end of the argument, was that the Court would not recognize a new First Amendment right as such, but might well assume without deciding that there was some communicative part to legislative voting, and however narrow that protection might be, Nevada’s broadly worded restriction could not survive it. The hazard in doing that, of course, is that it would leave the courthouse door ajar for some First Amendment claims related to legislators’ actions, in the face of Scalia’s push to close that door tightly.
This is a Court, of course, that has done a good deal lately to safeguard First Amendment rights — even for funeral protesters and peddlers of animal cruelty videos — so it generally is disinclined to put even unusual forms of expression beyond the Constitution. Justice Alito, a dissenter to some of those rulings, somewhat sarcastically suggested how unusual it was to be talking of denying protection to someone’s act of expression. But even he would not make a direct argument for a novel extension of the Amendment’s shield.
During the course of the argument, it became evident that most if not all of the Justices would regard it as a very bold and far-reaching stroke to read legislative voting fully into the free speech clause. That reaction came out most vividly when Rosenkranz was at the lectern, defending such a stroke. Justice Elena Kagan wondered how far such a right would go for members of the President’s Cabinet, and for government officials in general. Justice Scalia speculated — but not seriously — about it being extended to judges for their pronouncements. Chief Justice John G. Roberts, Jr., pondered challenges to House of Representatives’ rules allocating speaking time on the floor. Justice Alito asked about whether the rules of civility in the House would now come under constitutional challenge.
Rosenkranz, even while defending the Nevada Supreme Court’s discovery of a First Amendment right in a legislator’s vote-casting, sought to keep his argument more confined by suggesting the impact on the electoral process of using political ties as a basis for punishing a legislator for actual votes. He spoke of the bargain that political candidates make with the voters, as City Councilman Michael A. Carrigan did in his campaign, supporting a casino project, and how the “unelected” state ethics commission had actually sought to undo the election result.
As the Justices explored various implications of the right that Carrigan’s lawyers was advocating, he attempted repeatedly to bring it back to what he saw as the core vice of the councilman’s censure. “The effect,” he said, “is to tell someone that the rationale, the reason that you are being isolated is because you associated with someone politically who helped you win an election.”
No doubt aware that this Court, in recent years, has strictly narrowed the concept of political “corruption” that will justify restrictions on campaign financing, Rosenkranz repeatedly referred to the censure of Carrigan as amounting to treating the mere political tie between a politician and his campaign manager as corrupting of the legislator.  That was a very smart strategic ploy, and may have helped preserve some inclination within the Court not to withdraw the First Amendment totally from elected lawmakers.
