Although U.S. District Court Judge Barbara Crab struck down Wisconsin’s ban on gay marriage Friday, some counties are still turning away same-sex couples. John M. Becker at The Bilerico Project describes the state of marriage equality in the Badger State.
In an op-ed for The New York Times, ACS board member Linda Greenhouse pays a visit to the Berkshire International Film Festival and recommends two must-see legal documentaries.
A new report released Friday reveals the immense preparation behind the Clinton administration’s nomination of Justices Ruth Bader Ginsburg and Stephen Breyer. Tony Mauro and Todd Ruger at Legal Timescomment on the report.
At PrawfsBlawgDan Rodriguez notes John McGinnis’ new article on the decline of lawyers entitled Machines v. Lawyers .
At Jost on Justice, Kenneth Jost addresses allegations of inadequate health care for Arizona prisoners.
by Adam Lioz. Mr. Lioz is a lawyer and policy advocate who joined the Demos Democracy Program in November 2011. He focuses on litigation to enforce the National Voter Registration Act and end prison-based gerrymandering; and policy advocacy to promote political equality and democratic fairness through safeguarding the right to vote and curbing the influence of big money on the political process.
Yesterday, in spite of official Washington being on lockdown, the Supreme Court heard oral argument on McCutcheon v. FEC – a case many are referring to as “Citizens United II.”
The case is a challenge to the total cap on the amount that one wealthy donor can give to all federal candidates, parties, and PACs, known as “aggregate contribution limits.”
An Alabama coal industry executive named Shaun McCutcheon (joined by the RNC) thinks that the current $123,200 cap – more than twice what an average family makes in a year – is a burdensome restriction on his political participation. So, he’s asking the Court to lift the cap, freeing him to kick in more than $3.5 million to Republican candidates and party committees.
What’s at stake in the case? New research from Demos and U.S. PIRG projects that striking aggregate limits would bring more than $1 billion in additional “McCutcheon Money” through the 2020 election cycle, from just slightly more than 1,500 elite donors.
This is not a sea change in overall election spending, and much of this money may be shifted from Super PACs to candidates and parties. But, it will continue to shift the balance of power from average citizens to a tiny minority of wealthy donors. And, who are these wealthy donors? In a nutshell, they don’t look like the rest of the country, but rather are avatars of what Public Campaign calls “Country Club Politics.”
In a Senate hearing two of the high court’s longest serving members, Justices Antonin Scalia and Stephen Breyer, attempted to educate the public on the structure of the federal government and the role the judiciary plays.
The two justices hold different views on how to perform their jobs, which involves a heavy amount of constitutional interpretation. But during the event, those differences were only fleetingly touched upon by the justices. More often than not it appeared Breyer and Scalia were intent on showing Congress just how wonderfully a Republican-appointed justice and a Democratic-appointed justice can get along.
Scalia, however, in his opening remarks loudly proclaimed that the other two branches of the government, legislative and executive, despite the appearances of constant rancor and little accomplishment, are performing just as the nation’s founders had planned.
The country, Scalia said, needs to learn to love the dysfunction, “to learn to love the gridlock." It’s what the founders wanted. Such sentiment that the federal government is working when not working is popular with Tea Party activists and libertarians, but likely tiresome for large numbers of Americans who have seen nothing but dysfunction and gridlock on Capitol Hill. But again, Scalia faulted Americans for failing to appreciate the dysfunction, for “they don’t understand the genius of our Constitution.”
He noted that’s why he does so much speaking to students about the Constitution, since “we are not teaching it very well.”
Breyer, did not claim Americans should embrace gridlock, but he essentially agreed with Scalia that civics is poorly taught to the nation’s youngsters, noting retired Justice Sandra Day O’Connor’s ongoing work promoting civics education.
Near the end of the hearing Sen. Jeff Sessions tossed a rhetorical question to Scalia about how the Constitution should be interpreted.
Moving into the subject, Scalia said that “the controversial nature of recent confirmation proceedings is attributable to some extent to the doctrine of the living Constitution, because when you indeed have a Supreme Court that believes that the Constitution means what it ought to mean in today’s times, it seems to me a very question for the Senate to ask, or for the president to ask when he selects the nominee, ‘what kind of a new Constitution would you write?’ You know, ‘Do you believe this new right is there or this old right isn’t there?’ That seems to me … It’s much less important whether the person is a good lawyer, whether the person has a judicial temperament, what’s most important is, ‘What kind of a new constitution are you gonna write?’ And that’s crazy; it’s like having a mini constitutional convention every time you select a new judge. So I’m hopeful the living constitution will die.”
Breyer responded, saying he would like the senators to think of John Marshall’s famous words, "‘It is a Constitution that we are expounding.’ And he’s thinking that document has to last us for 200 years. And as I say, that doesn’t mean you change the words, but the hardest problem in real cases is that the words, ‘life,’ ‘liberty,’ or ‘property,’ do not explain themselves, ‘liberty.’ Nor does ‘the freedom of speech,’ say specifically what counts as ‘the freedom of speech.’"
Applying the Constitution’s values to ever-changing situations, therefore, cannot be done by a computer. It calls for some human judgment, Breyer said. Watch video of the hearing below or by clicking here.
The Constitution is written generally so its principles can be applicable for changing times, Justice Stephen Breyer tells National Public Radio (NPR).
In his interview, which can be heard here, Breyer said, "I think we're following an intention by people who wrote this document - Madison, Adams, Washington, Hamilton. They had an idea that they were writing a constitution and in that constitution, they would create certain institutions ... to create basically democratic systems of government protecting basic liberty. Much in the Constitution is written in a very general way. Words like ‘freedom of speech' do not define themselves. Nor does the word ‘liberty.' And what they intended with these very basic values, in a document, [was that they] would last for hundreds of years. So they had values that changed but little, while the application of those values changes as circumstances change."
In an interview with ABC's "Good Morning America," to discuss his new book, Making Our Democracy Work: A Judge's View, Breyer said he wasn't convinced that the First Amendment protected the right of a Florida pastor to burn Qurans (the pastor eventually cancelled his plans after weeks of growing media attention). Breyer, citing a 1919 Supreme Court opinion by Justice Oliver Wendell Holmes Jr., said, "Holmes said it [the First Amendment] doesn't mean you can shout ‘fire' in a crowded theater."
The Supreme Court, voting 6-3, upheld a federal law that bars "material support" of groups the government deems are terrorist organizations. The Associated Pressreports that the majority opinion, written by Chief Justice John Roberts, finds that the government "may prohibit all forms for aid to designated terrorist groups, even if the support consists of training and advice about entirely peaceful and legal activities." Roberts, joined by Justices John Paul Stevens, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, wrote that the "material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute in the future." In Holder v. Humanitarian Law Project a group of individuals and nonprofit organizations, including the Los Angeles-based Humanitarian Law Project challenged the constitutionality of the material support provision. The groups sought to provide financial support and legal and political training to the Kurdistan Workers' Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE). Both of those groups had been designated by the State Department as foreign terrorist organizations. Roberts wrote that the government "has presented evidence that both groups have also committed numerous terrorist attacks, some of which have harmed American citizens."
The groups and individuals who wanted to provide financial support and training for peaceful political purposes to the PKK and LTTE argued that the material support law violated their free speech rights and association rights, and that the law is unconstitutionally vague.
Justice Stephen Breyer lodged a dissent joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Breyer read his dissent from the bench.
Breyer wrote, "The plaintiffs, all United States citizens or associations, now seek an injunction and declaration providing that, without violating the statute, they can (1) ‘train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes'; (2) ‘engage in political advocacy on behalf of Kurds who live in Turkey'; (3) ‘teach PKK members how to petition various representative bodies such as the United Nations for relief'; and (4) ‘engage in political advocacy on behalf of Tamils who live in Sri Lanka.'"
"All these actions," Breyer continued, "are of a kind that the First Amendment ordinarily protects."
He continued, "In my view, the Government has not made the strong showing necessary to justify under the First Amendment the criminal prosecution of those who engage in these activities. All the activities involve the communication and advocacy of political ideas and lawful means of achieving political ends. Even the subjects the plaintiffs wish to teach - using international law to resolve disputes peacefully or petitioning the United Nations, for instance - concern political speech."
During the 2010 ACS National Convention, expert panelists examined the material support law and its constitutional implications. Video of that panel, "Material Support Provisions and the First Amendment," is available here.
The high court issued three other opinions today. For coverage of those opinions and other court action, see SCOTUSbloghere.