The Roberts Court’s decision to free corporations to spend unlimited amounts of their money in congressional and presidential campaigns is an undisputed instance of judicial activism and one of the least defensible in terms of judicial procedure, historical experience or public policy.
The Jan. 21 decision in Citizens United v. Federal Election Commission belatedly vindicates the conservative advocacy group's right to produce and distribute through video-on-demand the documentary hit piece Hillary: The Movie during the 2008 primary season. The FEC had barred the plan because some of the group’s financing had come from for-profit corporations. The corporate financing ran afoul of the so-called electioneering communications provision in the 2003 McCain-Feingold campaign reform law, which prohibited corporate or union financing of election-time campaign advertising on radio or TV.
In their ruling, the five-justice majority went beyond striking down that recently enacted federal law to throw out a 20-year-old precedent and the century-old premise of campaign finance permitting greater restrictions on corporations than on individuals. The conservative bloc fully understood the appearance of judicial overreaching in their decision. Between them, Justice Anthony M. Kennedy in the majority opinion and Chief Justice John G. Roberts Jr. in a concurrence devoted more than 30 pages to deny the suggestion.
The Court’s protestations that it had no choice may satisfy supporters of the decision, but less ideological observers are unconvinced. “There is such a long laundry list of other things they could have done,” says Barry Friedman, a law professor at New York University and author of the new book, The Will of the People, on the Supreme Court and public opinion. “They so clearly didn’t have to do what they did.”
Justice John Paul Stevens listed some of those narrower ways to have decided the case. Citizens United originally had not asked to strike down the electioneering communications provision, but only to get out from under it. The Court could have found, for example, that the provision did not apply to video on demand or that it did not apply to a not-for-profit corporation such as Citizens United as long as it received no or only minimal corporate funding.
As Stevens noted, that approach would have been consistent with Roberts’ own definition of judicial restraint. “If it is not necessary to decide more, it is necessary not to decide more,” Roberts has said and written both before and after his appointment as chief justice.
In his opinion, Roberts acknowledges the quote, but insists that in this case it was necessary to decide more. He and the other conservatives reach that conclusion only by exaggerating the impact of the provision. Repeatedly, they refer to the McCain-Feingold provision as a “ban” on political speech by corporations.
As Stevens notes, the provision only bars corporations (or unions) from using their own funds for campaign spending and only on radio or TV advertising close to an election. Even under the law, corporations or unions could form political action committees (PACs) to pay for election-time broadcast advertising. Kennedy is less than convincing in responding that forming a PAC is simply too much of a burden on political speech.
With an exaggerated view of the breadth of the law, Roberts responds tartly to Stevens that judicial restraint is not the same as “judicial abdication.” The point is well taken. On numerous occasions, the Court has gone beyond a narrow decision in a case to issue broad rulings to enforce constitutional rights. One example, directly pertinent here, is New York Times v. Sullivan, the landmark 1964 libel decision safeguarding a First Amendment right to criticize public officials (and, later, public figures).
In Sullivan, the Court could have held that the segregationist Alabama official who sued the Times over a political advertisement in the newspaper had no case because he was never named in the ad. The Court chose to go further and set a high, almost insurmountable barrier to libel suits by public officials. Undoubtedly, the justices were influenced by the larger stakes in the case. Sullivan’s suit — filed at the height of the civil rights revolution — showed how local juries in the South could chill national publications such as the Times in their coverage of the most important domestic issue of the day. The Times, in fact, was facing so many libel suits in Alabama that it withdrew its correspondents from the state for a while to avoid service of process.
Citizens United reached the Supreme Court with no comparable threat to political speech at hand. Whatever the five justices may think, most Americans do not believe that corporations need more outlets for their political views. Neither history nor current events suggest that corporations lack effective avenues to make their views known and heard despite the century-old ban on direct campaign contributions to federal candidates, the bans on campaign spending in about half of the states, or McCain-Feingold’s targeted restriction on direct corporate financing of radio and TV ads.
The effect of the Court’s decision remains to be seen. For now, the ruling is evidence that the conservative majority knows how to flex its muscles — and is willing to do so. Conservatives hope, and liberals rightly fear, that this will not be the last such occasion.
Monday, January 25, 2010
Monday, January 18, 2010
Conservatives Get Wide Strike Zone From High Court
The Supreme Court’s conservatives showed their activist side last week when they stopped a federal judge from allowing limited Internet streaming of California’s same-sex marriage trial to several other courthouses in the country. Besides its extraordinary nature, the intervention also shows the habit of the Roberts Court majority of viewing policy-laden factual disputes through an ideological lens.
The court based its unsigned, 5-4 decision on supposed procedural flaws in the decision by U.S. District Court Judge Vaughn Walker to allow live streaming of the challenge to California’s Proposition 8 to five other U.S. courthouses. With the trial set to begin Jan. 11, Judge Walker admittedly made some hasty mistakes in taking advantage of the Dec. 22 decision by the Ninth Circuit’s governing Judicial Council to permit broadcast of nonjury civil trials on a pilot basis.
As Justice Stephen G. Breyer pointed out for the dissenting liberal justices, however, the parties to the case, including the groups defending the state initiative that bars marriage for same-sex couples, had known since September of Walker’s interest in allowing broadcast of the trial if possible. And in the foreshortened notice-and-comment period, the court received more than 138,000 e-mailed comments on the plan, all but 32 of which favored transmitting the proceedings.
Against that backdrop, the high court’s decision to second-guess the trial judge turned on weighing the potential harms against the claimed benefits of wider accessibility of this nationally significant trial. The majority passed over the benefits in the 17-page decision, saying simply that no irreparable harm would result from limiting the opportunity to view the trial to a few hundred people in the San Francisco courthouse.
The claimed harms, however, got the conservative justices’ full attention. The anti-gay marriage forces claimed that some of their expert witnesses feared harassment if they had to testify with video cameras running. Some claimed they had already suffered harassment, even death threats, because of their opposition to same-sex marriage.
As Breyer pointed out in the dissent, the witnesses had already appeared on television or Internet broadcasts, toured California during the Proposition 8 campaign in 2008, and engaged in extensive public commentary on the issue. In the words of an applicable Supreme Court decision, they had become “public figures” by voluntarily thrusting themselves into the vortex of a public issue.
Breyer also noted that the vast majority of states — 42 out of 50 — and at least two federal district courts give judges discretion to permit full broadcast coverage of civil nonjury trials. Put differently, the trial quite likely would have been televised live if the suit had been filed in a California court. And, as Breyer stated, there is simply no empirical evidence after decades of experience that the presence of cameras adversely affects judicial proceedings.
For the contrary position, the majority pointed only to a concurring opinion in the court’s decision in 1965 that frowned on television coverage of trials. That decision, however, came in an era of bulky, obtrusive TV cameras. Video cameras used in courtrooms today are barely noticeable.
Supreme Court justices are notoriously camera-shy, of course, but the conservatives insisted they were making no judgment about cameras in the courtroom. Instead, they said they needed to step in to prevent the irreparable harm that “likely” would result from the limited video streaming of the trial. The opinion accepted the claim by some witnesses that they would refuse to testify if the trial were broadcast even though, as Breyer noted, none of the witnesses actually joined in petitioning the Supreme Court to intervene.
Gay rights advocates reacted with fears that the decision indicated the conservative majority’s predisposition against constitutionalizing same-sex marriage. Perhaps, perhaps not. At the least, however, the ruling showed that the conservative bloc — with little evidence — viewed this preliminary issue with more sympathy for the opponents.
The conservatives have betrayed their ideological sympathies in many other cases calling for careful consideration of policy-laden evidentiary disputes. In the most prominent example, Justice Anthony M. Kennedy conjured up fears of women suffering post-abortion trauma in the 5-4 decision in 2007 upholding the federal ban on so-called partial birth abortions. As Justice Ruth Bader Ginsburg pointed out in dissent, the evidence that women suffer psychological harm after abortions is flimsy at best.
A year later, Chief Justice John G. Roberts Jr. gave the back of the court’s hand to much stronger evidence from two Kentucky death row inmates that the current method of lethal injection creates a risk of inflicting unnecessary pain on the condemned during an execution. The majority, including two liberals, saw no reason to allow the inmates a full hearing on the issues before being put to death — irreparable harm, indeed.
In his confirmation hearing, Roberts likened the judge’s role to that of an umpire: calling balls and strikes but not defining the strike zone. All baseball fans know, however, that some umpires have a wide strike zone; others, not so much. For Roberts and the other conservatives, the strike zone in close cases appears to be wider on the side favoring ideologically conservative positions.
The court based its unsigned, 5-4 decision on supposed procedural flaws in the decision by U.S. District Court Judge Vaughn Walker to allow live streaming of the challenge to California’s Proposition 8 to five other U.S. courthouses. With the trial set to begin Jan. 11, Judge Walker admittedly made some hasty mistakes in taking advantage of the Dec. 22 decision by the Ninth Circuit’s governing Judicial Council to permit broadcast of nonjury civil trials on a pilot basis.
As Justice Stephen G. Breyer pointed out for the dissenting liberal justices, however, the parties to the case, including the groups defending the state initiative that bars marriage for same-sex couples, had known since September of Walker’s interest in allowing broadcast of the trial if possible. And in the foreshortened notice-and-comment period, the court received more than 138,000 e-mailed comments on the plan, all but 32 of which favored transmitting the proceedings.
Against that backdrop, the high court’s decision to second-guess the trial judge turned on weighing the potential harms against the claimed benefits of wider accessibility of this nationally significant trial. The majority passed over the benefits in the 17-page decision, saying simply that no irreparable harm would result from limiting the opportunity to view the trial to a few hundred people in the San Francisco courthouse.
The claimed harms, however, got the conservative justices’ full attention. The anti-gay marriage forces claimed that some of their expert witnesses feared harassment if they had to testify with video cameras running. Some claimed they had already suffered harassment, even death threats, because of their opposition to same-sex marriage.
As Breyer pointed out in the dissent, the witnesses had already appeared on television or Internet broadcasts, toured California during the Proposition 8 campaign in 2008, and engaged in extensive public commentary on the issue. In the words of an applicable Supreme Court decision, they had become “public figures” by voluntarily thrusting themselves into the vortex of a public issue.
Breyer also noted that the vast majority of states — 42 out of 50 — and at least two federal district courts give judges discretion to permit full broadcast coverage of civil nonjury trials. Put differently, the trial quite likely would have been televised live if the suit had been filed in a California court. And, as Breyer stated, there is simply no empirical evidence after decades of experience that the presence of cameras adversely affects judicial proceedings.
For the contrary position, the majority pointed only to a concurring opinion in the court’s decision in 1965 that frowned on television coverage of trials. That decision, however, came in an era of bulky, obtrusive TV cameras. Video cameras used in courtrooms today are barely noticeable.
Supreme Court justices are notoriously camera-shy, of course, but the conservatives insisted they were making no judgment about cameras in the courtroom. Instead, they said they needed to step in to prevent the irreparable harm that “likely” would result from the limited video streaming of the trial. The opinion accepted the claim by some witnesses that they would refuse to testify if the trial were broadcast even though, as Breyer noted, none of the witnesses actually joined in petitioning the Supreme Court to intervene.
Gay rights advocates reacted with fears that the decision indicated the conservative majority’s predisposition against constitutionalizing same-sex marriage. Perhaps, perhaps not. At the least, however, the ruling showed that the conservative bloc — with little evidence — viewed this preliminary issue with more sympathy for the opponents.
The conservatives have betrayed their ideological sympathies in many other cases calling for careful consideration of policy-laden evidentiary disputes. In the most prominent example, Justice Anthony M. Kennedy conjured up fears of women suffering post-abortion trauma in the 5-4 decision in 2007 upholding the federal ban on so-called partial birth abortions. As Justice Ruth Bader Ginsburg pointed out in dissent, the evidence that women suffer psychological harm after abortions is flimsy at best.
A year later, Chief Justice John G. Roberts Jr. gave the back of the court’s hand to much stronger evidence from two Kentucky death row inmates that the current method of lethal injection creates a risk of inflicting unnecessary pain on the condemned during an execution. The majority, including two liberals, saw no reason to allow the inmates a full hearing on the issues before being put to death — irreparable harm, indeed.
In his confirmation hearing, Roberts likened the judge’s role to that of an umpire: calling balls and strikes but not defining the strike zone. All baseball fans know, however, that some umpires have a wide strike zone; others, not so much. For Roberts and the other conservatives, the strike zone in close cases appears to be wider on the side favoring ideologically conservative positions.
Monday, January 11, 2010
Obama Taking Partisan Fire on National Security
The good will from President Obama’s inauguration lasted only as long as it took him to reaffirm his campaign pledge to close the Guantanamo Bay prison camp on his second full day in the White House. One year out, national security law remains a political battlefield, with Republicans and conservatives mounting partisan attacks grounded more in ideology than in evidence or reason.
The GOP critique depicts Obama as a feckless chief executive more interested in legal niceties than counterterrorism. Exhibit No. 1 is the decision to prosecute Umar Farouk Abdulmutallab, the foiled Christmas Day bomber on Northwest flight 253, in federal court instead of before a military commission.
The criticism comes from such Bush administration alumni as former vice president Dick Cheney and White House political guru Karl Rove as well as sitting GOP officeholders. “We must treat these terrorists as what they are — not common criminals, but enemy combatants in a war,” said Sen. Christopher (Kit) Bond, the Missouri Republican and ranking member on the Senate Intelligence Committee.
One former Bush administration official, however, is OK with the decision: Robert Gates, secretary of defense in Bush’s last two years in office and held over in the post by Obama. Gates was reportedly consulted in advance of the Justice Department’s decision to prosecute Abdulmutallab and raised no objection.
The Republican critics appear blind to the poor record of the military commission system created up by the Bush administration _ either in intelligence-gathering or terrorist-prosecuting _ as well as its use of civilian courts to prosecute many suspected terrorists. Most specifically, in a case virtually identical to Abdulmutallab’s, the Bush administration prosecuted shoe bomber Richard Reid in federal court after his failed attack on a Boston-bound flight in December 2001.
Reid was indicted on eight terrorism-related counts in January 2002, pleaded guilty in October, and was sentenced to a life prison term that he is now serving in a maximum security prison within the United States. When reminded of this recent history, Republican critics can say only that the Bush administration made a mistake.
Attorney General Eric Holder says that Abdulmutallab similarly faces a possible life sentence if convicted under the six-count indictment that the government obtained on Jan. 6. Apart from any possible sentence, however, the Republican critics say that the administration has given up valuable leverage in obtaining useful intelligence from Abdulmutallab by vesting him with the legal rights of the criminal justice system _ including the right to a lawyer _ instead of the diminished procedural protections of the military commission system.
As the New York Times reporter Charlie Savage has pointed out, however, Abdulmutallab has the right to counsel in the military commission system under Supreme Court rulings that rejected the Bush administration’s efforts to bar federal court scrutiny of the system. In addition, the GOP critics disregard the likelihood that a defense lawyer will encourage, not discourage, Abdulmutallab to provide information to the government in the hope of getting some favorable consideration as the prosecution proceeds.
In any event, White House press secretary Robert Gibbs says the government did obtain “useable, actionable intelligence” before Abdulmutallab decided to stop talking once he was provided counsel. There is no public record from Reid’s case eight years ago that the Bush administration turned him before putting him into the criminal justice system.
Abdulmutallab’s training in an al Qaeda camp in Yemen opens a second target for Republican critics: Obama’s now deferred promise to close Guantanamo within a year. Yemenis comprise nearly half of the 200 or so detainees still held at Guantanamo. Some of the Yemenis already released have been returned to their home countries, including one who is now said to be the head of al Qaeda in the Arabian Peninsula. Inconveniently for the GOP critics, he was released on Bush’s watch, not Obama’s.
Obama, who had already been working to strengthen Yemen’s scrutiny of ex-Guantanamo detainees, promptly put a hold on any more releases to Yemen. Obama also quickly demanded and then released a review of how Abdulmutallab came to board a U.S.-bound flight, with explosives, despite the warning that U.S. diplomatic and intelligence personnel received from Abdulmutallab’s father, a respected Nigerian banker.
The report disclosed “human” and “systemic” failures ranging from a misspelling of Abdulmutallab’s name to a delay in sending a cable about the interviews with his father. The mistakes occurred down in the federal bureaucracy, but Obama personally assumed responsibility for them. By contrast, Bush was slow to acknowledge any Oval Office oversight in failing to pick up on pre-9/11 warnings from the intelligence community of a possible attack from al Qaeda.
Politics, it is often said, stops at the water’s edge. The adage is perhaps honored more in the breach than in the observance, and thus it has been for Obama’s first year in office. Still, even seasoned political observers may cringe at the degree of partisanship from Republicans toward a Democratic administration that has Abdulmutallab locked up and a crash program under way to plug the holes in the airline security system that allowed him to board flight 253 in the first place.
The GOP critique depicts Obama as a feckless chief executive more interested in legal niceties than counterterrorism. Exhibit No. 1 is the decision to prosecute Umar Farouk Abdulmutallab, the foiled Christmas Day bomber on Northwest flight 253, in federal court instead of before a military commission.
The criticism comes from such Bush administration alumni as former vice president Dick Cheney and White House political guru Karl Rove as well as sitting GOP officeholders. “We must treat these terrorists as what they are — not common criminals, but enemy combatants in a war,” said Sen. Christopher (Kit) Bond, the Missouri Republican and ranking member on the Senate Intelligence Committee.
One former Bush administration official, however, is OK with the decision: Robert Gates, secretary of defense in Bush’s last two years in office and held over in the post by Obama. Gates was reportedly consulted in advance of the Justice Department’s decision to prosecute Abdulmutallab and raised no objection.
The Republican critics appear blind to the poor record of the military commission system created up by the Bush administration _ either in intelligence-gathering or terrorist-prosecuting _ as well as its use of civilian courts to prosecute many suspected terrorists. Most specifically, in a case virtually identical to Abdulmutallab’s, the Bush administration prosecuted shoe bomber Richard Reid in federal court after his failed attack on a Boston-bound flight in December 2001.
Reid was indicted on eight terrorism-related counts in January 2002, pleaded guilty in October, and was sentenced to a life prison term that he is now serving in a maximum security prison within the United States. When reminded of this recent history, Republican critics can say only that the Bush administration made a mistake.
Attorney General Eric Holder says that Abdulmutallab similarly faces a possible life sentence if convicted under the six-count indictment that the government obtained on Jan. 6. Apart from any possible sentence, however, the Republican critics say that the administration has given up valuable leverage in obtaining useful intelligence from Abdulmutallab by vesting him with the legal rights of the criminal justice system _ including the right to a lawyer _ instead of the diminished procedural protections of the military commission system.
As the New York Times reporter Charlie Savage has pointed out, however, Abdulmutallab has the right to counsel in the military commission system under Supreme Court rulings that rejected the Bush administration’s efforts to bar federal court scrutiny of the system. In addition, the GOP critics disregard the likelihood that a defense lawyer will encourage, not discourage, Abdulmutallab to provide information to the government in the hope of getting some favorable consideration as the prosecution proceeds.
In any event, White House press secretary Robert Gibbs says the government did obtain “useable, actionable intelligence” before Abdulmutallab decided to stop talking once he was provided counsel. There is no public record from Reid’s case eight years ago that the Bush administration turned him before putting him into the criminal justice system.
Abdulmutallab’s training in an al Qaeda camp in Yemen opens a second target for Republican critics: Obama’s now deferred promise to close Guantanamo within a year. Yemenis comprise nearly half of the 200 or so detainees still held at Guantanamo. Some of the Yemenis already released have been returned to their home countries, including one who is now said to be the head of al Qaeda in the Arabian Peninsula. Inconveniently for the GOP critics, he was released on Bush’s watch, not Obama’s.
Obama, who had already been working to strengthen Yemen’s scrutiny of ex-Guantanamo detainees, promptly put a hold on any more releases to Yemen. Obama also quickly demanded and then released a review of how Abdulmutallab came to board a U.S.-bound flight, with explosives, despite the warning that U.S. diplomatic and intelligence personnel received from Abdulmutallab’s father, a respected Nigerian banker.
The report disclosed “human” and “systemic” failures ranging from a misspelling of Abdulmutallab’s name to a delay in sending a cable about the interviews with his father. The mistakes occurred down in the federal bureaucracy, but Obama personally assumed responsibility for them. By contrast, Bush was slow to acknowledge any Oval Office oversight in failing to pick up on pre-9/11 warnings from the intelligence community of a possible attack from al Qaeda.
Politics, it is often said, stops at the water’s edge. The adage is perhaps honored more in the breach than in the observance, and thus it has been for Obama’s first year in office. Still, even seasoned political observers may cringe at the degree of partisanship from Republicans toward a Democratic administration that has Abdulmutallab locked up and a crash program under way to plug the holes in the airline security system that allowed him to board flight 253 in the first place.