Justice Antonin Scalia is facing criticism for “flatly misstating core facts from one of his own prior opinions.” In Environmental Protection Agency v. EME Homer City Generation, decided Tuesday, Justice Scalia’s dissent cites to his 2001 opinion in Whitman v. American Trucking Association. However, “the EPA's stance in [Whitman] was the exact opposite of what Scalia said it was in Tuesday’s opinion.” Sahil Kapur at Talking Points Memo highlights an “unusually major mistake” at the high court.
Controversy continues to surround Oklahoma’s botched execution of Clayton D. Lockett. Erik Eckholm and John Schwartz at The New York Times report on Gov. Mary Fallin’s response to the troubling event “defending the death penalty but order[ing] an independent autopsy of Mr. Lockett and a thorough review of the state’s procedures for lethal injections.” In response to Gov. Fallin’s proposal, the ACLU of Oklahoma stated that the governor’s planned efforts “create a serious conflict of interest” and that the “Attorney General and Governor fought every attempt at transparency or accountability in our execution process.” Steven Erlanger at The New York Times notes the “outrage in Europe over the flawed execution.”
The Honorable Lynn Adelman, U.S. District Court Judge for the Eastern District of Wisconsin, ruled that Wisconsin’s state’s voter ID law violated the Fourteenth Amendment and Section 2 of the Voting Rights Act. Ari Berman at The Nation has the story.
Alex Kreit at Marijuana Law, Policy & Reform comments on the U.S. Court of Appeals for the Fourth Circuit’s unlawful user law that “makes it a crime for anyone who ‘is an unlawful user of and addicted to a controlled substance’ to possess a firearm.”
New laws throughout the country are restricting access to abortion clinics. In 2013, “22 US states adopted 70 different restrictions on abortion, including late-abortion bans, doctor and clinic regulations, limits on medication abortions, and bans on insurance coverage.” Writing for The Guardian, Erika L. Sánchez explains why those who can’t reverse Roe v. Wade are “focusing on generating enough red tape to shut down as many abortion facilities as possible.”
The U.S. Court of Appeals for the Tenth Circuit is preparing for oral argument in a case challenging Oklahoma’s same-sex marriage ban. Similar to Utah’s controversial law at issue in Kitchen v. Herbert, Oklahoma’s law “prohibits gay couples from marrying and prevents the state government from recognizing such unions performed anywhere else.” Emma Margolin at MSNBC breaks down Bishop v. Oklahoma.
Writing for The New York Times, ACS Board Member Linda Greenhouse breaks down McCutcheon v. Federal Election Commission and its “indecent burial” of campaign finance.
Tonight on C-SPAN, Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia will discuss the First Amendment and “the contemporary meaning of freedom.”
As was widely expected the Supreme Court’s conservative justices appeared sympathetic to a wealthy businessman’s complaint about federal restrictions on overall contributions individuals can give directly to candidates. The limits described as aggregate limits are intended to prevent corruption of democracy.
But Alabama businessman, Shaun McCutcheon, and the Republican National Committee are urging the high court to set aside such limits, saying they subvert free speech rights. McCutcheon told The Times last week that Americans need to spend more, not less on politics. But in reality only a tiny few have the resources to spend the kind of money McCutcheon has and wants to on politics.
Nevertheless, the conservative justices, especially Antonin Scalia and Samuel Alito, showed little confidence in U.S. Solicitor General Donald Verrilli’s argument that aggregate contribution limits, help prevent corruption of democracy.
“Aggregate limits combat corruption both by blocking circumvention of individual contribution limits and, equally fundamentally, by serving as a bulwark against a campaign finance system dominated by massive individual contributions in which the dangers of quid pro quo corruption would be obvious and inherent and the corrosive appearance of corruptions would be overwhelming,” Verrilli said during oral argument in McCutcheon v. Federal Election Commission.
Later, Verrilli acknowledged that the aggregate limits might restrict an individual like McCutcheon from making direct contributions to a certain number of candidates. But that limit Verrilli continued would not stifle McCutcheon’s First Amendment rights. For he could still funnel money into groups that help advance those candidates. “Mr. McCutcheon,” Verrilli said, “can spend as much of his considerable fortune as he wants on independent expenditures advocating for the election of these candidates.”
If the conservative justices vote to erase or greatly weaken limits on overall contributions, it would as The New York Times Adam Liptak notes “represent a fundamental reassessment of a basic distinction in Buckley v. Valeo in 1976, which said contributions may be regulated more strictly than expenditures because of their potential for corruption.”
Democracy 21 President Fred Wertheimer said in a press statement that if the contribution limits are invalidated in McCutcheon “we are bound to see the $1 million and $2 million contributions that would be permitted by such a decision used by influence-seeking donors to corrupt government decisions.”
He urged the high court to “not empower the wealthy few to buy the government that belongs to all Americans by striking down longstanding contribution limits that protect citizens against corruption.”
Earlier this year, a little more than a month after mass shootings at a Connecticut elementary school, President Obama discussed the challenges of trying to implement gun safety measures and announced more than 20 executive orders, including an order for the Centers for Disease Control to study ways to reduce gun violence. The president’s call for Congress to take action and approve modest new measures flopped … in the Senate. And even if senators had approved new measures promoting gun safety it is hard to believe they would have been considered in the House of Representatives, where Republicans are bent on protecting the financial industry and defunding of the Affordable Care Act.
But executive orders alone are hardly going to reframe the debate let alone significantly curtail gun violence. Yet another study shows how obstinate refusal to even basic reforms of gun regulation is needlessly taking innocent lives yearly.
In an extensive piece forThe New York Times, Michael Luo and Mike McIntire reveal that accidental deaths of children because of guns are far higher than government statistics show, primarily because of the success of the gun lobby in defeating all kinds of efforts, including research to promote gun safety. The Times reported that a “review of hundreds of child firearm deaths found that accidental shootings occurred roughly twice as often as the records indicate, because of idiosyncrasies in how such deaths are classified by authorities. As a result, scores of accidental killings are not reflected in official statistics that have framed the debate over how to protect children from guns.”
That debate has largely been controlled by gun enthusiasts and their lobbyists, who frequently blast any regulation as an encroachment on Second Amendment rights to keep and bear arms. For, example, The Times noted that the National Rifle Association cited the inaccurate numbers of accidental child firearm deaths in its campaign to scuttle laws requiring the safe storage of guns. State lawmakers ape the NRA’s talking points, often arguing that safe-storage laws would undermine adults’ efforts to protect themselves from intruders.
Moreover the newspaper noted that the gun lobby has remained successful at making sure firearms remain exempt from “regulation by the Consumer Product Safety Commission.” As one expert lamented, “We know in the world of injury controls that designing safer products is often the most efficient way to reduce tragedies. Why, if we have childproof aspirin bottles, don’t we have childproof guns?”
The U.S. Supreme Court, led by Justice Antonin Scalia, ruled in 2008 in D.C. v. Heller that the Second Amendment protects an individual right to bear arms. That ruling greatly enhanced the gun lobby’s cudgel against any consideration of new gun safety measures, such as ones intended to encourage parents to keep firearms stored safely.
In an impassioned speech before a gathering on Constitution Day earlier this week retired Montana Supreme Court Justice James C. Nelson tackled the ongoing effects of the U.S. Supreme Court’s Citizens United v. FEC opinion and Justice Antonin Scalia’s defense of originalsim.
Nelson’s speech, a must-read for all interested in constitutional debate, started with a look at the Roberts Court’s 2010 opinion in Citizens United giving corporations greater ability to spend on elections, including judicial elections. Citing a recent study sponsored by ACS, Justice at Risk, Nelson (pictured) noted how quickly Citizens United has impacted state Supreme Court judicial elections. (Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions provides new data showing, among other things, a significant relationship between group contributions to state Supreme Court justices and the voting of those justices in cases involving business matters.)
Nelson said, in part:
Importantly for Montana judicial elections, the data show expenditures influenced judges’ decisions in both partisan and non-partisan elections systems. The report reveals the influx of expenditures generated by Citizens United and subsequent cases is having significant impact on judicial impartiality. The data demonstrate there is stronger correlation between business contributions and judges voting in the period from 2010 – 2012, compared to 1995 – 1998. And, unfortunately, Justice at Risk concludes that there is no sign that politicization of Supreme Court elections is lessening. Indeed, powerful interest groups’ influence on judicial outcomes will only intensify.
Nelson dove into the ongoing debate over constitutional interpretation, tying it to the outcome in Citizens United. Last month at a Federal Society gathering in Bozeman, Justice Scalia provided yet another defense of originalism as a serious method of constitutional interpretation.
In post for ACSblog’s 2013 Constitution Day symposium, Erwin Chemerinsky remarked that it is rather obvious why originalism is a wobbly way to attempt to interpret and apply constitutional principles and values. It makes little sense, Chemerinsky wrote, “to be governed in the 21st century by the intent of those in 1787 (or 1791 when the Bill of Rights was adopted or 1868 when the Fourteenth Amendment was ratified).”
At the University of Montana School of Law event, hosted by the ACS Montana Chapter, Nelson had similar observations, saying “originalism is grounded more in opportunistic hypocrisy than in fact and substance.”