The Supreme Court did indeed hand down its decision in Citizens United this morning. And as expected, it held that federal law's current restrictions on the independent campaign expenditures of corporations violates the First Amendment. In other words, the Constitution does not permit the government to treat corporations (or unions or any other sort of association, one supposes) any different than individuals. This means that corporations (and other associations) can spend as much as they want to influence elections. The split was 5-4, with the usual ideological division. (By a separate 8-1 vote, the Court upheld the law's disclosure requirements.)
There are two more shoes that seem reasonably likely to drop. As the law stands today, there are now greater restrictions on political parties than there are on corporations or labor unions. That makes no sense. The restrictions on party expenditures seem likely the next to drop.
Further, the Court's rationale seems to suggest that there is not much of a difference between independent expenditures and direct contributions. That is, if there is no concern about corruption (or the appearance of corruption) with the former, even though they have roughly the same impact on election outcomes, it seems that there could not be a constitutionally sufficient concern with the latter, either, to justify legal restrictions. Thus, the whole tower of campaign finance regulation seems likely to fall soon, at least so long as the Court's composition (with respect to the five in the majority) remains the same.
The full text of the opinion, which includes a 90-page dissent (!) by Justice Stevens, can be found here. A blog post with links to lots of coverage can be found here. And this blog, written by a terrific election law expert at Loyola LA, is worth checking out.
Thursday, January 21, 2010
Questions, questions, questions
A leading indicator of the clarity of my classroom presentation is the number of student questions that ensue. And yesterday's class prompted many, many questions. So I apologize if yesterday's class left you in the dark.
Sort of. Of course, this material is pretty complicated, and there is no way to present the interesting nuances without leaving you a little bit confused, at least at first exposure. You deserve much more than a dumbed-down, two-dimensional oversimplification -- a reduction of real-life complexity into (supposedly, but inaccurately) clear, black-letter rules. Law, and certainly constitutional law, is not so simple.
Indeed, the skill of dealing with such complexity is why people are willing to pay lawyers. This is largely the point of legal education: to give you an opportunity to learn, in a relatively safe environment, how to sort out much of this confusion for yourselves. It is not confusion for the sake of confusion. But your clients will not be presenting you with tidy hypotheticals match up on all fours with cases you have already encountered. Not to put too fine a point on it, but law school classes that were nothing more than glorified bar review courses -- a litany of specific rules for you to plug into your outlines and memorize -- would be useless.
So, with those prefatory remarks out of the way, I will endeavor to answer the many questions in my in-box, as best I can, and as soon as I can. I love the questions; please keep them coming. But try to disabuse yourself of the notion that there are very specific, clear "rules" that you are to supposed to "take away" from each class.
Here goes:
QUESTION: Were we basically suppossed to take away today the idea that the Constitution can be read in various ways and depending on how you interpret the words of the Constitution, then a decision can be made in both directions for something being constitutional or unconstitutional? For instance, in terms of the power of the Supreme Court and its power of judicial review, one reading of its power can be that they have the final say on constitutional issues, and another reading can be that it is just one department that has a say?
ANSWER: This is generally true, and it is specifically true as to the breadth of judicial review. But I would add three points. (1) Some interpretations of the Constitution are better than others, as an objective matter. I do not subscribe to the radical deconstructionist belief that language is completely indeterminate. (2) I think we have tended, over time, towards the judicial supremacy view; the Court's interpretations of the Constitution, at least in practice, appear to bind the other branches, except in the rare circumstances in which it directly conflicts with a central political objective of the governing party (or President). And the reason, I believe, is that we as a society are generally more comfortable with judicial supremacy. (3) Isn't this true of all of your classes? Isn't tort law also quite indeterminate? I don't think the meaning of "proximate cause" is any clearer than the breadth and depth of the Supreme Court's power of judicial review.
QUESTION: Is there no final say on whether the President can question the ruling of a Supreme Court decision that the Court deems Constitutional, like the Jackson example? What happens when the President goes against a Supreme Court decision, just because the Court interprets the Constitution a different way? Or in the Dickerson case, what gave the Supreme Court the right to say that its constitutional rule stated in Miranda was any more constitutional then the enacted Congressional statue? They both just had different interpretations. Where is the checks and balance system?
ANSWER: I do not think there are any clear answers to any of these questions, at least as a matter of formal logic. But we do have some idea of what has actually happened when these events have occurred in real life. As to Dickerson, the answer, I guess, is that Congress, the President, the police, and the People of the United States seem to have accepted the Court's understanding of its role and the specific holding that Miranda warnings must be given. The same was true of Jackson's bank veto. Congress was unable to re-enact a bank bill or overturn Jackson's veto. And the People re-elected Jackson, and not long after his veto.
QUESTION: Congress can not "except," from the Suprme Court constitutional issues, or take away from the Supreme Court's original jurisdiction, but it can "except," the Court's appellate jurisdiction in other matters of the law, such as they did with habeas corpus. Is this correct?
ANSWER: I think McCardle is pretty ambiguous on these points. Surely Congress can make some exceptions to the Court's appellate jurisdiction on constitutional questions. That is precisely what it did in McCardle itself, which the court upheld. But what Congress did not do is completely foreclose any avenue for McCardle (or persons like McCardle) from appealing their constitutional claims to the Supreme Court. This is what the Court notes in the last paragraph. If Congress had done so, would the repealing act have been unconstitutional? I don't think McCardle answers that question. My own view is that Congress probably has the authority to except some issues (including constitutional issues) from Supreme Court review. (I believe this in part because the Judiciary Act of 1789 did so, and that Congress probably had some idea what the Exceptions Clause was intended to permit). But the precise scope of this power remains unclear.
QUESTION: Further, is an "exception," okay as long as it leaves open at least one avenue to get to the Supreme Court? It seems that that is what the Court is saying in McCardle -- that because McCardle could have invoked the jurisdiction provided under the Judiciary Act of 1789, or gone through state court appellate process, that the repealing act was okay. What would happen if Congres took away all appellate jurisdiction to the Supreme Court, both through federal courts and State courts? Would this be constitutional, or does it depend on one's reading of the Constiution?
ANSWER: Again, I think it is unclear. My own view is that Congress, at least through a "neutral" looking statute (such as one concerning the amount in controversy in a civil suit) would be a permissible exception to completely close off Supreme Court review. But I do not think we have an airtight, clear answer to this question under current law.
Sort of. Of course, this material is pretty complicated, and there is no way to present the interesting nuances without leaving you a little bit confused, at least at first exposure. You deserve much more than a dumbed-down, two-dimensional oversimplification -- a reduction of real-life complexity into (supposedly, but inaccurately) clear, black-letter rules. Law, and certainly constitutional law, is not so simple.
Indeed, the skill of dealing with such complexity is why people are willing to pay lawyers. This is largely the point of legal education: to give you an opportunity to learn, in a relatively safe environment, how to sort out much of this confusion for yourselves. It is not confusion for the sake of confusion. But your clients will not be presenting you with tidy hypotheticals match up on all fours with cases you have already encountered. Not to put too fine a point on it, but law school classes that were nothing more than glorified bar review courses -- a litany of specific rules for you to plug into your outlines and memorize -- would be useless.
So, with those prefatory remarks out of the way, I will endeavor to answer the many questions in my in-box, as best I can, and as soon as I can. I love the questions; please keep them coming. But try to disabuse yourself of the notion that there are very specific, clear "rules" that you are to supposed to "take away" from each class.
Here goes:
QUESTION: Were we basically suppossed to take away today the idea that the Constitution can be read in various ways and depending on how you interpret the words of the Constitution, then a decision can be made in both directions for something being constitutional or unconstitutional? For instance, in terms of the power of the Supreme Court and its power of judicial review, one reading of its power can be that they have the final say on constitutional issues, and another reading can be that it is just one department that has a say?
ANSWER: This is generally true, and it is specifically true as to the breadth of judicial review. But I would add three points. (1) Some interpretations of the Constitution are better than others, as an objective matter. I do not subscribe to the radical deconstructionist belief that language is completely indeterminate. (2) I think we have tended, over time, towards the judicial supremacy view; the Court's interpretations of the Constitution, at least in practice, appear to bind the other branches, except in the rare circumstances in which it directly conflicts with a central political objective of the governing party (or President). And the reason, I believe, is that we as a society are generally more comfortable with judicial supremacy. (3) Isn't this true of all of your classes? Isn't tort law also quite indeterminate? I don't think the meaning of "proximate cause" is any clearer than the breadth and depth of the Supreme Court's power of judicial review.
QUESTION: Is there no final say on whether the President can question the ruling of a Supreme Court decision that the Court deems Constitutional, like the Jackson example? What happens when the President goes against a Supreme Court decision, just because the Court interprets the Constitution a different way? Or in the Dickerson case, what gave the Supreme Court the right to say that its constitutional rule stated in Miranda was any more constitutional then the enacted Congressional statue? They both just had different interpretations. Where is the checks and balance system?
ANSWER: I do not think there are any clear answers to any of these questions, at least as a matter of formal logic. But we do have some idea of what has actually happened when these events have occurred in real life. As to Dickerson, the answer, I guess, is that Congress, the President, the police, and the People of the United States seem to have accepted the Court's understanding of its role and the specific holding that Miranda warnings must be given. The same was true of Jackson's bank veto. Congress was unable to re-enact a bank bill or overturn Jackson's veto. And the People re-elected Jackson, and not long after his veto.
QUESTION: Congress can not "except," from the Suprme Court constitutional issues, or take away from the Supreme Court's original jurisdiction, but it can "except," the Court's appellate jurisdiction in other matters of the law, such as they did with habeas corpus. Is this correct?
ANSWER: I think McCardle is pretty ambiguous on these points. Surely Congress can make some exceptions to the Court's appellate jurisdiction on constitutional questions. That is precisely what it did in McCardle itself, which the court upheld. But what Congress did not do is completely foreclose any avenue for McCardle (or persons like McCardle) from appealing their constitutional claims to the Supreme Court. This is what the Court notes in the last paragraph. If Congress had done so, would the repealing act have been unconstitutional? I don't think McCardle answers that question. My own view is that Congress probably has the authority to except some issues (including constitutional issues) from Supreme Court review. (I believe this in part because the Judiciary Act of 1789 did so, and that Congress probably had some idea what the Exceptions Clause was intended to permit). But the precise scope of this power remains unclear.
QUESTION: Further, is an "exception," okay as long as it leaves open at least one avenue to get to the Supreme Court? It seems that that is what the Court is saying in McCardle -- that because McCardle could have invoked the jurisdiction provided under the Judiciary Act of 1789, or gone through state court appellate process, that the repealing act was okay. What would happen if Congres took away all appellate jurisdiction to the Supreme Court, both through federal courts and State courts? Would this be constitutional, or does it depend on one's reading of the Constiution?
ANSWER: Again, I think it is unclear. My own view is that Congress, at least through a "neutral" looking statute (such as one concerning the amount in controversy in a civil suit) would be a permissible exception to completely close off Supreme Court review. But I do not think we have an airtight, clear answer to this question under current law.
Thursday, January 14, 2010
A postscript for Marbury
One last point that I forgot to mention about Marbury that is worth noting, lest we come away with an inaccurate understanding of the Supreme Court's power to exercise judicial review. One week after the Court handed down Marbury, it issued an opinion in Stuart v. Laird. At issue there was the Constitutionality of the Repeal Act, the statute in which the Jeffersonian Republicans had repealed the Circuit Courts Act and eliminated the sixteen court of appeals judgships (even though Article III seems to grant federal judges life tenure). The practical stakes in Stuart were much higher than they were in Marbury; sixteen federal court of appeals judgships are more important than four positions as magistrate for the District of Columbia. Moreover, Stuart did not present the Court with any nifty escape hatch akin to the one Marshall found (created?) in Marbury.
Rather predictably, then, the Court in Stuart v. Laird upheld the Repeal Act, even though Marshall surely believed that the Act was unconstitutional. He realized that a ruling that the Act was unconstitutional would have been ignored and defied by the Jefferson administration. In the face of superior power, he laid down the Court's arms.
Thus, the significance of Marbury and the real power of judicial review should not be exaggerated. At the end of the day, there are very real, practical constraints on the Court's power, regardless of its authority on paper to declare any act--legislative or executive, state or federal--unconstitutional. Marshall knew this well. He took what he could and saved the Court's prestige for fights in the future.
Rather predictably, then, the Court in Stuart v. Laird upheld the Repeal Act, even though Marshall surely believed that the Act was unconstitutional. He realized that a ruling that the Act was unconstitutional would have been ignored and defied by the Jefferson administration. In the face of superior power, he laid down the Court's arms.
Thus, the significance of Marbury and the real power of judicial review should not be exaggerated. At the end of the day, there are very real, practical constraints on the Court's power, regardless of its authority on paper to declare any act--legislative or executive, state or federal--unconstitutional. Marshall knew this well. He took what he could and saved the Court's prestige for fights in the future.
Supreme Court blocks broadcast of Prop 8 trial
Late yesterday, the Supreme Court issued a 17-page opinion blocking the broadcast of the trial proceedings in the lawsuit seeking to declare California's Proposition 8 unconstitutional. You can find the ruling here. Four justices -- Stevens, Breyer, Ginsburg, and Sotomayor -- dissented. The Court did not rule more broadly on whether, and under what circumstances, federal trial proceedings can be broadcast. Rather, it found that the specific procedure for permitting such broadcast had not been followed by the district court in this instance. As the per curiam opinion states in its first paragraph, "the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting. Courts enforce the requirement of procedural regularity on others, and must follow those requirements themselves."
Is the very predictable, 5-4 ideological split on this rather minor, procedural point a preview of how the Court will ultimately rule on the merits if and when the case gets there? I think there is reason to think it is. But that is still probably years away, so who knows?
Is the very predictable, 5-4 ideological split on this rather minor, procedural point a preview of how the Court will ultimately rule on the merits if and when the case gets there? I think there is reason to think it is. But that is still probably years away, so who knows?
Monday, January 11, 2010
An important point about Marbury
As we will discuss in class Wednesday, a very important procedural point in Marbury v. Madison is that Marbury filed his suit directly in the Supreme Court, as an "original action." ("Original" because the suit originated in the Supreme Court itself.) As a result, the extent of the Supreme Court's jurisdiction to hear original actions is critical to resolving the case, at least as the legal issues were framed by the Court. And this original jurisdiction is addressed in the Constitution in Article III, section 2, clause 2.
When you examine that clause, you will see that it makes reference to "Ambassadors [and] other public Ministers and Consuls." Today, we might well think of the Secretary of State, the defendant in Marbury, as a "public minister." But the meaning in Article III is narrower than it would be in modern parlance: it refers specifically to representatives of foreign governments. Thus, as everyone agreed at the time, Secretary of State James Madison was not a "public minister" for purposes of Article III.
This point is important to following Chief Justice Marshall's reasoning in Marbury. I intended to mention it at the end of class but forgot.
Opinions tomorrow and Wednesday
The Supreme Court has announced that it will hand down opinions both tomorrow (Tuesday) and Wednesday. It seems likely that the Court will decide Citizens United v. FEC, the case involving federal laws limiting campaign spending (specifically, in this case, "Hillary, the Movie").
Citizens United is the case that the Court held over from last Term and was reargued in September. If oral argument is any indication, the justices appear poised to invalidate a raft of restrictions on campaign spending by corporations and labor unions, ushering in a whole new (some have termed "gilded") era in campaign finance.
Thus far, the Court has only handed down four opinions in cases argued this Term.
Citizens United is the case that the Court held over from last Term and was reargued in September. If oral argument is any indication, the justices appear poised to invalidate a raft of restrictions on campaign spending by corporations and labor unions, ushering in a whole new (some have termed "gilded") era in campaign finance.
Thus far, the Court has only handed down four opinions in cases argued this Term.
Thursday, January 7, 2010
Spring 2010
Welcome to all of the students enrolled in my Constitutional Law course for spring semester, 2010. I will be using this blog during the semester to supplement our discussions in class -- to answer lingering questions, to clarify points, to comment on current events, and to provide more thorough explanations than our time in class sometimes provides.
For today, let me point you to an interesting article appearing in the current edition of the New Yorker: a lengthy story by Lauren Collins on the newest Supreme Court justice, Sonia Sotomayor.
For today, let me point you to an interesting article appearing in the current edition of the New Yorker: a lengthy story by Lauren Collins on the newest Supreme Court justice, Sonia Sotomayor.
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