The U.S. Supreme Court unveiled a new look for its Web site earlier today, prompting longtime Supreme Court correspondent Tony Mauro to joke that the new site launches the high court "into the 21st century only a few years late."

Mauro noted that the high court's old site had drawn criticism for being outdated and "clunky." But, he writes, while the new site does not feature much new content it is "more accessible and reader-friendly." The site's resources continue to include recent opinions, its calendars and oral argument transcripts.

Kathy Arberg, the high court's information officer, suggested that new information and features would be added over time. 

According to reports from The New York Times and The Washington Post, the U.S. Chamber of Commerce, a big business lobbying group, is planning to spend even larger sums of money to influence this year's midterm elections. Thomas J. Donohue, leader of the chamber, told The Post that its electioneering plans are "the most aggressive voter-education and issue-advocacy effort in our nearly hundred-year history." The Times reported yesterday the chamber is also unleashing a "multimillion dollar wave of advertising that rivals the ferocity of a presidential campaign" and will target Democrats "whose votes will determine the fate of President Obama's top domestic priority," heal care reform.

The Post notes:

The chamber's potential impact on the November elections was bolstered further by a recent Supreme Court decision, which allows corporations and their surrogates to spend freely on political ads for and against specific candidates right up to Election Day.

The newspaper also reports that the White House, recognizing the growing public opposition to the Supreme Court's decision in Citizens United v. FEC, is trumpeting its efforts to mitigate the ruling.

The New Yorker's Jeffrey Toobin explores the tenure Justice John Paul Stevens, the Supreme Court's "fourth-longest serving" justice in an article that contemplates a high court "without its liberal leader."

In an interview with Toobin, Justice Stevens reflects on his time on the bench, saying there are "dozens" of cases he is unhappy with. The justice signaled out Citizens United v. FEC, which overturned court precedent and found that corporations have similar First Amendment rights as individuals, at least in the area of campaign financing, District of Columvia v. Heller, which found that the Second Amendment provides a personal right to possess firearms, and Bush v. Gore, which decided the 2000 presidential election.

Stevens said the Court has lurched rightward since he joined it in 1975. "You don't have to ask me that," Stevens responded to Toobin's question on the tilt of the high court. "Look at Citizens United. If it is not necessary to decide a case on a very broad constitutional ground, when other grounds are available, then doesn't that create the likelihood that people will think you're not following the rules?"

Toobin maintains that the peak of Stevens' work centers on his decisions involving the treatment of military detainees:

In the 2004 case of Rasul v. Bush, among the first major cases to arise from Bush's war on terror-and the first time that a President ever lost a major civil-liberties case in the Supreme Court during wartime-Stevens wrote for a six-to-three majority that the detainees did have the right to challenge their incarceration in American courts. In his opinion, which was written in an especially understated tone, in notable contrast to the bombastic rhetoric that accompanied the war on terror, he cited Rutledge's dissent in the Ahrens case-which he himself had helped write, fifty-six years earlier. One of Stevens's law clerks, Joseph T. Thai, later wrote an article in the Virginia Law Review entitled "The Law Clerk Who Wrote Rasul v. Bush," which concluded that "Stevens's work on Ahrens as a law clerk exerted a remarkable influence over the Rasul decision."

Two years after Rasul, Stevens wrote the opinion for the Court in Hamdan v. Rumsfeld, in which a five-to-three majority rejected the Bush Administration's plans for military tribunals at Guantánamo, on the ground that they would violate both the Uniform Code of Military Justice and the Geneva conventions. (Roberts did not participate in that case, because as a judge on the D.C. Circuit he had joined the opinion that Stevens overruled.)
Stevens's repudiation of the Bush Administration's legal approach to the war on terror was total. First, in Rasul, he opened the door to American courtrooms for the detainees; then, in Hamdan, he rejected the procedures that the Bush Administration had drawn up in response to Rasul; finally, in 2008, in Boumediene v. Bush, Stevens assigned Kennedy to write the opinion vetoing the system that Congress had devised in response to Hamdan.

After the attacks of September 11, 2001, the Bush Administration conducted its war on terror with almost no formal resistance from other parts of the government, until Stevens's opinions. He was among the first voices, and certainly the most important one, to announce, as he wrote in Hamdan, that "the Executive is bound to comply with the Rule of Law."

Cliff Sloan, partner Skadden, Arps, Slate Meagher & Flom LLP, and a member of the ACS Board of Directors, told Toobin, "The Second World War was the defining experience of his life, and he is proud of being a veteran. No one can challenge his patriotism, and that's why he was the right guy to take on the Bush Administration's position at that time and in that way."
Toobin's article also touches upon speculation revolving around the retirement of Stevens may retire. Stevens said, "You can say I will retire within the next three years. I'm sure of that."

According to UPI, a "probable successor" to a potential Justice Stevens' retirement is U.S. Solicitor General Elena Kagan. UPI looks to commentary from SCOTUSblog founder Tom Goldstein. In a February post on SCOTUSblog, Goldstein wrote of Kagan:

Super-smart and genuinely knowledgeable. Solicitor general. Formerly the tremendously successful dean of Harvard Law School. Personally has the greatest respect of the president, in part from their shared ties to both Chicago and Harvard. Deep relationships in the administration, particularly among those who served under Clinton. Well-known conservatives lined up around the block to support her in emphatic terms.

 

[image via Wikimedia Commons]

While scholars question the legal principles espoused by the Tea Party, some are celebrating the organization's role in democratizing discussions of constitutional principles.

"The content of the movement's understanding of the Constitution is not always easy to nail down, and it is almost always arguable," writes Adam Liptak in The New York Times. "But it certainly includes particular attention to the Constitution's constraints on federal power (as reflected in the limited list of powers granted to Congress in Article I and reserved to the states and the people the 10th Amendment) and on government power generally (the Second Amendment's protection of gun rights, the Fifth Amendment's limits on the government's taking of private property)."

According to Liptak, by focusing on these elements of the Constitution, the Tea Party is helping bring our nation's sacred document to the forefront of national, political conversations. If that is a goal of the Tea Party, it may not hurt to have Virginia Thomas on board.

Thomas, a conservative activist and wife of Justice Clarence Thomas, is launching Liberty Central Inc. to organize citizens around what she calls "core principles." The 501(c)(4) non-profit group, which is linked to the national Tea Party movement, is planning advocacy around the 2010 congressional elections. Thomas says that Liberty Central will accept corporate contributions under finance rules recently loosened by the Supreme Court's decision in Citizens United v. FEC. Justice Thomas was in the majority of that 5-4 decision which partially struck down the bipartisan McCain-Feingold campaign finance reform and reversed two Supreme Court precedents on point.

"I am an ordinary citizen from Omaha, Neb., who just may have the chance to preserve liberty along with you and other people like you," Virginia Thomas declared, sitting on a panel of Tea Party leaders at the Conservative Political Action Committee's recent conference in Washington, D.C. Thomas told those in attendance that, just like them, she could not bear to sit by idly while President Obama enacted his "hard-left agenda."

Thomas' conservative credentials include a stint in George W. Bush's transition team while Justice Thomas was considering the election-deciding case of Bush v. Gore, in which he joined the five-justice majority that determined the 2000 presidential election in favor of then-Gov. Bush. She also worked at the Heritage Foundation and served in the office of one-time House Majority Leader Rep. Dick Armey.

[Image via sporks5000.]

On March 10, 2010, ACS supporters gathered with the Oregon Lawyer Chapter to hear Professor Pam Karlan talk about a progressive vision of constitutional interpretation -- a vision she has embraced in her recent book Keeping Faith with the Constitution. Karlan (pictured) explained how her vision, which she termed "constitutional fidelity," confronts constitutional questions with an analysis of text, history and precedent, but also an appreciation for how society in the present day views a given issue and the real-world impact of Supreme Court decisions. In Karlan's view, that vision is both true to the Founders' intent, as well as modern day notions of justice, fairness, and constitutional meaning.

Karlan noted that "constitutional fidelity" is in large part a response to currently established doctrines such as textualism and originalism, which rejected the prior view of the "living constitution" as disjointed from text and history, and ultimately subject to the whims of individual judges. As Chief Justice Roberts put it, a judge should merely call balls and strikes. But Karlan explained that the baseball metaphor is a poor one, because calling balls and strikes itself is a subjective undertaking, subject to the sound judgment of the umpire -- just as deciding constitutional cases is subject to the sound judgment of the justices on the Supreme Court. Moreover, proponents of originalism and textualism frequently deviate from strict adherence to those doctrines when it would confound their preferred policy outcomes -- a level of individual input they claim to avoid. And originalists and textualists generally take into account all of the evidence that "constitutional fidelity" adherents would take account of -- it's just that they fill the blanks in with different, but no more valid, policy choices based on their own views.

The question becomes whether "constitutional fidelity" can gain ground against originalism and textualism. It can, but it will require a sustained program of support. Accordingly, as Karlan explained, it is not helpful when progressive judicial nominees embrace the baseball metaphor -- they ought to embrace the fact that a "wise Latina" adds a different perspective than another white male -- a perspective that will likely lead to different results in close cases. 

"His silent presence on the bench has evolved into a weirdly compelling example of performance art," writes ACS board member Linda Greenhouse of Justice Clarence Thomas' persistent silence during oral argument. The fourth anniversary of Thomas' silence from the bench passed quietly last month, but not without being noticed.

Writing in The National Law Journal, Tony Mauro recently gave new life to a Florida Law Review article entitled "Why Justice Thomas Should Speak at Oral Argument." There, freshly minted law school graduate David A. Karp argued that Thomas' silence permits him to shield anachronistic or even bizarre legal perspectives from criticism. Rather than debuting his opinions during oral argument, the piece notes, where they could be challenged by counsel and his colleagues on the bench, Thomas saves his outlook from public scrutiny until it is proferred in an official opinion.

One such opinion, released last month, went overlooked until this week. In Wilkins v. Officer Gaddy, North Carolina inmate Jamey Wilkins alleged that he was "maliciously and sadistically" assaulted "[w]ithout any provocation" by a prison guard. The district court judge who initially reviewed Wilkins' allegations dismissed them, and the U.S. Court of Appeals for the Fourth Circuit affirmed this ruling in an unpublished one-paragraph opinion. 

Without even inviting briefs on the matter, the U.S. Supreme Court summarily reversed the Fourth Circuit, determining that Wilkins presented a prima facie case under Hudson v. McMillan. In that 1992 decision, the Court determined that a "significant injury" is not required for excessive force claims under the Eighth Amendment. Rather, under Hudson, a prisoner's excessive force claim may only be dismissed where "force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically cause harm."

Concurring in the judgment as a matter of stare decisis, Justice Thomas went out of his way to make his opposition to Hudson known once again. Thomas invited litigants to request reversal of Hudson based on his understanding that "the word ‘punishment' referred to the penalty imposed for the commission of a crime," in the late 18th century when the Eighth Amendment was ratified. Thus, under Thomas' analysis, the Eighth Amendment permits a prison guard to savagely beat a prisoner so long as they did not do so to penalize them for committing a crime.

This opinion was first highlighted by David Savage, who, writing in the Los Angeles Times, compared it to something that might be produced by Thomas' now-infamous former clerk John C. Yoo. During his time in the Bush administration, Yoo contributed significantly to the Torture Memos, which redefined torture as requiring bodily pain akin to major organ failure.

"Thomas' consistent record of dismissing claims of prison brutality ... shows that Yoo's view of torture was not that of a rogue lawyer," reports Savage. "Instead, it represents a strain of conservative thinking that looks back in history to define cruelty and torture, rather than toward what the court has called the 'evolving standards of decency.'"

[Image via Wikimedia Commons.] 

The practice of sentencing juvenile offenders of serious crimes to life in prison with no chance of parole is not effective and a different approach should be used, write the authors of a recent ACS Issue Brief. In "A Just Alternative to Sentencing Youth to Life in Prison Without the Possibility of Parole," Jody Kent, of the Campaign for the Fair Sentencing of Youth, and Beth Colgan, of the Institutions Project at Columbia Legal Services, write that no other country except America sentences juvenile offenders to life without the possibility of parole, a practice banned by the United Nations Convention for the Rights of the Child.

The authors cite the significance of research showing that juvenile offenders should be treated differently than adults:

Youth do not have adult levels of judgment, impulse control, or ability to assess risks. There is widespread agreement among child development researchers that young people who commit crimes are more likely to reform their behavior and have a better chance of rehabilitation than adults.

The U.S. Supreme Court is currently considering two cases involving the constitutionality of sentencing youth to life in prison without parole. Oral argument in Graham v. Florida and Sullivan v. Florida were heard in November and decisions in the cases are expected soon. For more on the constitutional issue in those cases, see a guest post from constitutional law expert Charles Ogletree here. 

[image via lawanddisorder.org]

Today, following a spirited Senate Judiciary Committee hearing, in which Senators on both sides of the aisle debated the Roberts' Court recent decision in Citizens United v. FEC, the Constitutional Accountability Center ("CAC") released a new comprehensive report on corporations and the text and history of the Constitution. The report, entitled A Capitalist Joker: The Strange Origins, Disturbing Past, and Uncertain Future of Corporate Personhood in American Law, examines the text and history of the Constitution and the Supreme Court's treatment of corporations from the founding-era through the Court's recent decision in Citizens United. The report, which is available here, demonstrates that the Court's opinion in Citizens United is completely divorced from the text and history of the Constitution. In upcoming months, CAC and ACS will jointly sponsor a series of events designed to bring attention to the decision's departure from constitutional first principles.

As detailed in CAC President Doug Kendall's testimony this morning, the Constitution's text reflects a fundamental difference between corporations and "We the People" identified in the Constitution's preamble. Corporations do not vote, they cannot run for office, and they are not endowed by the Creator with inalienable rights. "We the People" create corporations and we provide them with special privileges that carry with them restrictions that do not apply to living persons.

While the Supreme Court has long recognized that corporations may assert certain constitutional rights, corporations have never been accorded all the rights that individuals have, and have never been considered part of the political community or given rights of political participation. The Court under Chief Justice John Marshall, and many times since, has emphasized that because corporations are artificial entities that receive special privileges such as perpetual life and limited liability, they are subject to greater regulation by the state. Only once before, during the darkest days of the now-repudiated Lochner era, from 1897 to 1937, has the Supreme Court seriously entertained the idea that corporations are entitled to the same constitutional rights enjoyed by "We the People." And even in the Lochner era, equal rights for corporations never extended to the political process.

Citizens United is the culmination of a forty-year struggle by conservatives to reinvigorate the Lochner-era idea that corporations deserve equal constitutional rights. In 1971, Lewis Powell -- a Virginia corporate lawyer who would soon be nominated to the Supreme Court -- advised corporations to look to the courts for relief, noting that that "the judiciary may be the most important instrument for social, economic and political change." Powell's strategy started to come to fruition just seven years later in First National Bank of Boston v. Bellotti, when Powell authored a 5-4 ruling for the Court holding that limits on a corporation's ability to oppose a ballot initiative violated the First Amendment. The Citizens United ruling dramatically expands Powell's ruling, holding that corporations have the same constitutional rights to spend money on elections as living breathing persons, giving corporations a constitutional right to participate in elections for elective office for the first time in American history.

[Image via monkeyc.net.]

Chief Justice John Roberts complained about President Obama's State-of-the-Union critique of the high court's decision in Citizens United v. FEC, saying the address had become too political. The Associated Press reported that following a speech to University of Alabama law students, Roberts responded to a student's question about the president's criticism of the decision. "To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there," Roberts said.

Roberts conceded that anyone is free to criticize Supreme Court rulings, but in this instance the surroundings called for muted or no criticism. "The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court - according [to] the requirements of protocol - has to sit there expressionless, I think is very troubling."

Several media sources following the State of the Union, noted that Justice Samuel Alito did not sit expressionless, mouthing the words "not true," to Obama's criticism of Citizens United. The decision invalidated decades of regulation of corporate campaign financing, making it easier for corporations to spend freely on electioneering.

The AP reported that White House press secretary Robert Gibbs, when asked about Roberts' comments, said, "What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections - drowning out the voices of average Americans."

Recently, ACS hosted a national event focusing on the implications of the decision. Video of the event is here. Following the event, Professor William P. Marshall, a constitutional law expert, talked with ACSblog about what the decision reveals about the Supreme Court, and elections law expert Joseph Sandler focused on what the decision may mean for future elections. 

Following the Supreme Court decision on corporate campaign finance regulation, ACS hosted a national event exploring potential ramifications on democracy and the future of regulating corporate expenditures on elections.

Joseph E. Sandler, a nationally recognized expert on elections law, joined the panel discussion and afterwards talked with ACSblog about how the decision in Citizens United v. FEC could alter electoral politics. Conceding that the decision's impact may be "very difficult to predict," Sandler said nonetheless it may now be "tempting" for some corporations "to get into the game in a way they wouldn't have done before."

Video of the entire event, "Citizens United v. FEC: The Decision, Its Implications, and the Road Ahead," is available here. Watch Sandler's interview below or download it as a podcast here.