Monthly Archives: April 2010

The press scrum outside the Supreme Court this morning

Usually, members of Congress do their Supreme Court bashing from the safety of the Senate or House floor. Today, they entered enemy territory by having a press conference out in front of the court itself.  The not-so-subtle symbolism marked the unveiling of legislation aimed at curbing the impact of the FEC v. Citizens United campaign finance ruling. The Democratic senators, led by Charles E. Schumer of New York and Russ Feingold of Wisconsin, said their aim wasn’t to demonize the court’s conservative majority but they couldn’t resist a few digs. Feingold claimed the court didn’t “have the nerve” to strike down the McCain-Feingold campaign finance bill in its entirety. Schumer warned that the five justices in the Citizens United majority have to be he held accountable, although he admitted there wasn’t really a way to do that. Making the most of the beautiful weather in Washington, Schumer noted in reference to the court behind him that “the beauty of this building can’t even be debased by the ugliness of the ruling in Citizens United.”

AG McKenna at SCOTUS (photo: Washington AG website)

Washington state Attorney General Robert McKenna will argue in defense of his state’s disclosure law April 28 when oral arguments are heard at the Supreme Court. It’s a high profile case, seen by some as a proxy battle over the gay marriage issue because the case focuses on whether the names of those who supported a ballot initiative that would have overturned a law giving gay partners benefits rights should be made public (Doe v. Reed is the name of the case). What’s interesting is that McKenna, a Republican, has also been in the news for joining the battle against the new federal health care reform law.

His intervention on that issue brought ire (and ridicule) from gay rights supporters, who are presumably a little confused over his decision to argue the disclosure case. McKenna’s office was required to defend the state disclosure law against attack, but he didn’t have to argue it himself. McKenna has said the case is simply a question of transparency. He has previously argued, and won, two cases at the Supreme Court. As for the health care law, it was his call to join that fight, over the objections of Gov. Chris Gregoire, a Democrat.

Today’s ruling in U.S. v. Stevens striking down the federal law that bans the depiction of animal cruelty is the second decision this term invalidating a statute on free speech grounds. The other is Citizens United v. FEC. You may have heard of it. But there could be a third. We still await the ruling on the federal terrorism material support statute (Holder v. Humanitarian Law Project).

February’s argument in that case indicated the justices aren’t sure how to proceed, so it is not so much of a slam dunk as the animal cruelty case. Your blogger reported on the three cases back in February:

Striking down all three laws on free speech grounds in one term “would be unusual but not unprecedented,” according to Daniel Ortiz, a professor at the University of Virginia School of Law.

The last time he could remember it happening was in 2001, he said. In total the court has struck down parts of congressional acts due to free speech concerns 20 times since 1985.

It will be interesting to see what happens.

In today’s LA Daily Journal (subscribers only), your blogger looks over Justice John Paul Stevens’ career (with the help of constitutional scholars who know a lot more than he does) and comes to the following conclusion:

When Justice John Paul Stevens steps down from the U.S. Supreme Court at the end of the term, the opinion he wrote that will leave the biggest imprint is one of which most Americans are wholly ignorant.

Despite his almost 35 years on the bench, Stevens didn’t actually write many major opinions, constitutional law scholars say. On a practical level, it is a 1984 opinion laying out how courts should decide whether government agencies are correctly implementing the law and to what extent they have the ability to interpret congressional statutes that is his most influential. Chevron v. NRDC, 467 U.S. 837.

(snip)

The Chevron “two-step test,” as it is known, is now a key part of administrative law and is Stevens’ most cited opinion “by a mile,” according to former Stevens clerk Joseph Thai, a professor at the University of Oklahoma School of Law.

(another snip)

Stevens concluded the government’s actions were reasonable because the statute was ambiguous. Erwin Chemerinsky, dean of UC Irvine School of Law, described the case as “a tremendously important doctrine.”

The Supreme Court public information office just released the following statements:

Chief Justice John G. Roberts, Jr.:
Associate Justice John Paul Stevens has earned the gratitude and admiration of the American people for his nearly 40 years of distinguished service to the Judiciary, including more than 34 years on the Supreme Court.   He has enriched the lives of everyone at the Court through his intellect, independence, and warm grace.  We have all been blessed to have John as our colleague and his wife Maryan as our friend.  We will miss John’s presence in our daily work, but will take joy in his and Maryan’s continued friendship in the years ahead.

Associate Justice Antonin Scalia:
John Paul Stevens leaves behind a distinguished career of service on the federal bench, first on the United States Court of Appeals for the Seventh Circuit, and then, for the last 34 years, on this Court.  He has authored a significant number of our landmark opinions, but that alone would be a misleading indicator of his impact.  In many, many cases where he did not write he brought to Conference brilliant and distinctive insights that affected the outcome.  I shall miss his brilliance, and his companionship.

Associate Justice Anthony M. Kennedy:
For decades John Stevens did more than follow standards of judicial excellence.  He set them. He insists on the mastery of every case, clarity in thought and expression, courtesy to colleagues and counsel, and, above all, unquestioned independence and integrity.  He demonstrates that to fulfill its role the judiciary must remain capable of attracting to its ranks those lawyers who are preeminent in the profession.  His love for this Nation is evident from his distinguished service in World War II, his years at the bar, and his career as a jurist.  It is a historic privilege for me to have John Stevens as an admired, splendid colleague, and devoted, wonderful friend.

Associate Justice Clarence Thomas:
I am deeply honored to have served with Justice Stevens. From my first days on the Court and throughout our time together, he has been a model of kindness and decency. I will treasure the years I have been privileged to work with him. I am certain that he will be remembered for his keen intellect and his prodigious body of work here at the Court. And, he should be. I consider it my good fortune to have served so long with him and to know that he is my friend. Virginia and I will miss him and Maryan.

Associate Justice Ruth Bader Ginsburg:
John Paul Stevens is the very best and most collegial of jurists.  On the bench, his polite “May I . . . ,” invites advocates to get to the nub of the case.  Work from other chambers invariably takes precedence over all else on his agenda.  I will miss his bright company, but his caring opinions, sometimes pathmarking, sometimes prophetic, remain to inspire generations of judges, lawyers, and law students.

Associate Justice Stephen G. Breyer:
Ever since I have known John Stevens I have recognized that he is a model of intelligence, judicial wisdom, decency, and common sense. All of us on the Court will miss his service here. So will the Nation.

Associate Justice Samuel A. Alito:
I was deeply saddened to learn that Justice Stevens will be leaving the Court at the end of this Term.  He will surely be remembered as one of the most important Justices to serve on the Court, and his contributions to the law will long endure.  No one could hope for a better colleague, and it has been a distinct honor for me to have had the opportunity to serve with him for the past four years.  I wish John and Maryan all the best in the years ahead.

Associate Justice Sonia Sotomayor:
It would have been my wish to have served longer with John Paul Stevens.  I thank my new friend for his warm welcome and shared wisdom, as well as for his immeasurable contributions to the Court and our country.  One Term together was not long enough for me, but I will treasure our service together and all I have learned from him for the remainder of my time on the Court.

Finally, it’s official. Justice John Paul Stevens sent a letter to the White House today announcing his intent to retire after the current term. “Having concluded that it would be in the best interests of the court to have my successor appointed and confirmed well in advance of the commencement of the court’s next term, I shall retire from regular active service as an associate justice,” Stevens wrote.

Chief Justice John G. Roberts Jr. said in a statement that Stevens “has earned the gratitude and admiration of the American people for his nearly 40 years of distinguished service to the judiciary.”

Ambassador Kmiec

Corresponding from sunny Malta, where he is currently serving as ambassador, prominent constitutional law expert (and conservative supporter of President Obama) Douglas W. Kmiec is sticking with the view he espoused prior to the 2008 election that Carter G. Phillips of Sidley Austin should be considered for a position on the Supreme Court if Justice John Paul Stevens retires. In an email, Kmiec said Phillips would be “a nominee with Stevens’ gifts but also the ability to form majority coalitions far more regularly.”  Phillips would have the nous to “make the big plays and win the close contests,” Kmiec added. Back in 2008, Phillips laughed off Kmiec’s endorsement and he hasn’t been mentioned in any of the lists of potential candidates.

As for other candidates that are on most shortlists, Kmiec agreed with most experts that Elena Kagan, the solicitor general, and Judge Merrick Garland of the D.C. Circuit would be solid choices. But he dismissed the chances of Massachusetts governor Deval Patrick and State Department legal adviser Harold Koh (who is effectively a colleague of Kmiec’s). Both are ” lawyers of distinction and would be attractive from a diversity perspective,” he said, the latter point a reference to the fact that Patrick is African-American and Koh is Korean-American. But, Kmiec added, “frankly, these potential nominees have been telegraphed to the opposition, which in this season of tea-party madness, could easily get roughed up early, and much to their discomfort and the President’s disservice, rejected or blocked.” Kmiec concludes by producing another name out of the hat: “the ebulliently intelligent, multi-party Walter Dellinger,” the former acting solicitor general, now at O’Melveny & Myers.

NOTE: Kmiec stressed that he was speaking in his personal capacity.