The Docket

The Prospect's legal affairs blog

It's Roberts's Court Now

(AP Photo/Nick Ut)
(AP Photo/Nick Ut) For months before today’s announcement of the Supreme Court’s decision in the Health Care Cases , the conventional wisdom had centered on two things: (1) The vote would be 6-3; and (2) Chief Justice John G. Roberts would write the opinion. Roberts would jump the way Justice Anthony Kennedy jumped and then write the opinion to shape doctrine for the future. It’s a good day for conventional wisdom when it is half right, but that the Affordable Care Act (ACA) survived, 5-4, with a majority opinion by Roberts and an angry dissent by Kennedy was an outcome few people would have predicted. All told, it was a morning of surprises. It was a good morning for the Obama administration, whose signature policy initiative (for good or bad) survived largely intact. But it was a better day for John Roberts, who displayed John Marshall-level command of the Court, and produced a result that moves current jurisprudence only a little—but will enable it to move far to the right if a...

Who’s Sovereign Now?

(AP Photo/Chris Greenberg, File)
Hard to say what’s more bizarre about Antonin Scalia’s furious dissent against the Supreme Court’s decision striking down most of Arizona’s anti-immigrant law: his railing at President Barack Obama’s executive order stopping the deportation of immigrants brought here as children (which wasn’t remotely the subject of the case at hand) or his basis for upholding Arizona’s law—that Arizona is a sovereign state with the rights generally claimed by nation-states. “Today’s opinion,” Scalia writes, “deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there.” This power, he continues, has been recognized as far back as 1758, when the Swiss philosopher Emer de Vattel, in his book The Law of Nations , wrote, “The sovereign may forbid the entrance of his territory either to foreigners in general, or for certain particular purposes.” Vattel was writing about nation-states, of...

Memo to Jan Brewer: You Had a Bad Day Monday

(AP Photo/Evan Vucci)
Governor Jan Brewer applauded Monday’s decision in Arizona v. United States for upholding “the heart of S.B. 1070.” Wrong. In an opinion by Justice Kennedy, the Court struck down the three provisions that prescribed punishment for the undocumented. It upheld one provision—but made clear that, unless Arizona courts themselves limit the measure, that one is likely to fail an as-applied challenge once it goes into effect. (The majority consisted of Chief Justice Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Writing partial dissents were Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. Justice Elena Kagan took no part in the consideration of the case.) Justice Antonin Scalia concluded his dissent—intemperate even by his own talk-radio standards—with a denunciation of the Administration’s “deferred action” program (which was not even remotely before the Court), and of President Obama himself. Kennedy’s opinion concluded that...

Supreme Court Strikes Most of Arizona Immigration Law, Making Scalia Very Angry

The oral arguments earlier this year on the SB-1070, the infamous Arizona immigration law, made it difficult to read how the Court was going to rule on most of its provisions, although the Court seemed on balance more sympathetic to Arizona's position. Given how things looked after that, today's decision in Arizona v. United States must be considered a pleasant surprise. Most of the key provisions of the Arizona law were struck down, and the provision that was not could still be subject to future challenges depending on how it is applied. Rather than the usual 5-4 split, the case was decided 5-3 (with Justice Kagan recusing herself); surprisingly, Chief Justice Roberts joined Justice Kennedy and the Court's four Democratic appointees but did not write. Roberts apparently wanted there to be a five-person majority rather than having most of the Arizona law upheld because of a tie that left the lower court decision undisturbed. The majority, through Kennedy, decided the case based on a...

Court to Super PACs: Full Speed Ahead

(Flickr / epSos.de)
During the 1980s and '90s, conservatives liked to talk about the “sagebrush rebellion,” in which local officials in Western counties tried to take back federal land and escape the “tyranny” of federal land-management and environmental rules. That rebellion still simmers. But today, the Supreme Court crushed, for the moment, a newer rebellion out of the West. In Western Tradition Partnership v. Bullock , decided last fall, the Montana Supreme Court blasted a different federal rule— Citizens United v. Federal Election Commission , in which the Court held that the federal government could not regulate or restrict “independent” expenditures by individuals and corporations designed to affect the results of federal elections. That decision has set up the unseemly free-for-all that is federal campaign finance today, where the issue agenda is increasingly set by “independent” funders like American Crossroads and Sheldon Adelson. In Western Tradition, the Montana Supreme Court declined to...

Can Broadcasters Use Dirty Words? Court says, “#$%& If We Know”

(AP Photo/E. Pablo Kosmicki/file)
Thursday was First Amendment day at the Supreme Court. But the Court ducked the chance to decide what is literally its most visible case of the term—the “dirty words on broadcast TV” case. Federal Communications Commission v. Fox Television Stations , was on its second trip to the show. Seven justices delivered an opinion that sheds no light at all on the interesting issue—whether the government may ban “fleeting expletives” on broadcast TV. Briefly, the case concerned a new FCC rule subjecting broadcasters to fines if their shows included even brief, or “fleeting” uses of dirty words or nudity. In 1978, the Court held that the FCC could discipline broadcasters for transmitting sustained “indecent” speech—in this case, George Carlin’s magnificently profane 12-minute “Filthy Words” monologue—during daylight and early evening hours, when children might hear it. Since that decision, decency groups have badgered the FCC to tighten the rules on dirty words. Not until the George W. Bush...

The Court’s Scott Walker Moment

(AP Photo/Alex Brandon)
On First Amendment Thursday, the conservative majority on the Supreme Court delivered an unsubtle warning to public employee unions: You are living on borrowed time. In Knox v. Service Employees International Union , the five—Chief Justice John Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel A. Alito—reached out to decide a question that was not argued or briefed; their opinion all but begs right-wing advocacy groups and public employers to use its emerging First-Amendment jurisprudence to take down public-employee unions and in essence find a Southern-style “right to work” law in the Constitution. In the days when right-wingers favored judicial restraint, this might have been called “judicial activism.” It is the Court’s Scott Walker moment. The case concerned the rules by which unions can assess “agency fees” payable by non-members who benefit from the unions’ collective bargaining efforts. Though public employees can’t be forced to join...

Key Rulings Reveal Partisan Divides On Court

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The more than 20,000 people who were following SCOTUSblog's live-blogging of today's cases did not, as you probably know by now, get the health care ruling many of us were stressed out about. There were, however, some other major rulings that deserve some attention. Among other things, they illustrate that presidential elections matter a great deal. This isn't to say that the Supreme Court always divides along ideological lines. One of today's big cases involved the question of whether the Federal Communications can issue regulations fining networks for broadcasting "fleeting expletives" and "momentary nudity." The Court unanimously ruled that the regulation could not be applied against networks in specific cases. But contrary to some initial reports it achieved unanimity the way it often does—by ducking the important substantive issue. The Court did not rule on First Amendment grounds but instead said that the due process rights of the networks were violated because they were not...

Issa's Contemptible Vote

(AP Photo/J. Scott Applewhite)
If contempt of Congress ( current polls show a whopping 17% approval) is a crime, we are a nation of criminals. That thought leapt to mind at the news that the House Oversight and Government Reform Committee, chaired by Representative Darrell Issa (R-CA.) has voted to ask the full House to hold Attorney General Eric Holder in contempt because of his refusal to turn over internal records relating to the administration’s response to the “Fast and Furious” gun-walking scandal in Arizona. In response to the prospect of that vote, Deputy Attorney General James M. Cole announced that President Obama had asserted executive privilege over the documents requested. The cable news channels are crackling with faux outrage on both sides. Republicans are shocked that the Attorney General and the White House are covering up what must surely be dreadful misdeeds. Democrats are outraged at this partisan attempt to besmirch the administration by baselessly suggesting misconduct and a high-level cover-...

Lethal Injection and the New Immigration Policy

(AP Photo/Jacquelyn Martin)
In March 197 7, two Tulsa horsewomen went to a church parking lot to meet an man who claimed to have Morgan horses to sell. Not long afterwards, their bodies were found near Sallisaw, Oklahoma, buried on land leased to Larry Leon Chaney. Chaney was convicted of murder and sentenced to death. Chaney’s case forms the legal backdrop to the announcement last week that the Department of Homeland Security would begin to “defer action” against undocumented immigrants under the age of 30 who have lived most of their lives in the United States and have served in the military or gotten an education. The decision has been widely reported as an “executive order” suspending parts of the Immigration and Naturalization Act. Representative Steve King (R-IA) vowed to file suit against Obama for “planning to usurp the Constitutional authority of the United States Congress and grant amnesty by edict to 1 million illegal aliens." In fact, the policy change is not an executive order—it was a memorandum...

Diluting the Sixth Amendment

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None of the most anticipated Supreme Court cases remaining this term—on health care, immigration, or "fleeting expletives" on broadcast television—came down today. But we did get a Sixth Amendment ruling that is both important in itself and tells us something important about the justices on the Court. The Sixth Amendment gives a criminal defendant the right "to be confronted with the witnesses against him." The Confrontation Clause cases are interesting because they usually demonstrate the limits of describing the Court as fixed "liberal and conservative" blocs. Generally, the reliably statist Chief Justice Roberts and Justice Alito have joined with Justice Kennedy (a more moderate conservative, but one with a consistent terrible record in Fourth and Sixth Amendment cases) and Justice Breyer (a more liberal justice with conservative tendencies in civil liberties cases.) Conversely, although they're generally considered the most conservative justices on the Court Justices Thomas and...

Department of Justice Acts to Prevent Disenfranchisement in Florida

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Florida governor Rick Scott is attempting to engage in a purge of voters, requiring some voters to prove their citizenship within a limited time frame in order not to be disenfranchised, allegedly in order to address "vote fraud" that for all intents and purposes doesn't exist . The Department of Justice told Scott to stop this illegal vote suppression. Scott's response was to thumb his nose at the federal government and federal law. Predictably, the Department of Justice has responded by suing Scott . The Obama administration's reaction to illegal voter disenfranchisement may seem like no-brainer. And, yet, just 12 years ago George W. Bush attained the White House in large measure because neither principle nor even self-interest could motivate Democrats to care about even more egregious disenfranchisement. The 2000 election was a sort of perfect storm of defects with America's irrational federal election system. And several of the factors that led to George W. Bush to get Florida's...

The Supreme Court's Passive-Aggressive Gutting of Habeas Corpus

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The latest outrage from the Roberts Court involves not something the Court did but what it didn't do. Today, the Court refused to hear appeals from seven people who have been detained without charges at Guantanamo Bay. In 2008, the Supreme Court formally posed as a defender of habeas corpus in Boumediene v. Bush , holding that the Military Commissions Act of 2006 violated rights to habeas corpus possessed by those detained at Gitmo. The rights declared in Boumediene , however, are meaningful only to the extent that the federal judiciary is willing to enforce them, and so far there has been no such willingness. The refusal of the Supreme Court to hear these cases, as the Center for Constitutional Rights notes , "leaves the fate of detainees in the hands of a hostile D.C. Circuit Court of Appeals, which has erected innumerable, unjustified legal obstacles that have made it practically impossible for a detainee to win a habeas case in the trial courts." Decisions by the Supreme Court not...

Racist Searches and Drug Arrests Fine With New York GOP

Last month, the New York Civil Liberties Union released some extremely disturbing data about "stop and frisk" searches in New York City. Since 1968, the Supreme Court has held that warrantless patdown searches by police require only "reasonable suspicion" rather than the "probable cause" required to obtain a search warrant under the Fourth Amendment. This watered-down standard has always been subject to abuse, and there can be little doubt that this has been the case in New York. A remarkable 685,724 New Yorkers were subject to such warrantless searches in 2011—compared to fewer than 100,000 in 1993. Nearly 90 percent of those subject to these searches were innocent. And, worse, most of those found "guilty" were guilty of minor drug possession charges—less than 2 percent of those subject to stop-and-frisk searches were carrying a firearm. And, worst of all, what constitutes a "reasonable suspicion" is clearly defined in substantial measure by racial profiling. 87 percent of those...

Prop. 8 Heads for the Show

(Flickr/OZinOH)
One of the most important functions of a dissenting opinion is to throw red meat to op-ed writers. Justice Antonin Scalia is a master of the form. Witness his dissent in Lawrence v. Texas, warning that, if same-sex sodomy laws are voided, government may soon force the unwilling to accept gays and lesbians “as boarders in their home.” Justice John Paul Stevens also perfected the zinger; he capped his dissent in Citizens United by saying, “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” As a gesture of defiance, then, Judge Diarmuid O’Scannlain’s dissent from denial of rehearing in Perry v. Brown Monday is a bit of a damp squib. The meanest thing O’Scannlain can find to say is that Barack Obama has recently come out in support of gay marriage. That may be the measure of how strongly the tide is running, both in legal circles and in the larger culture, against those who want to...

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