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Wednesday, June 27, 2007

Supreme Court Roundup from Aaron Streett

Greetings, sportsfans! Well, it’s been a very interesting couple weeks of baseball as the Court’s key switch hitter continued to swing from the right side of the plate. To mix metaphors, the Court’s conservatives have run the table, prevailing in every closely contested case from campaign finance reform to student speech to taxpayer standing. We also learned a lot about the Roberts Court’s view of stare decisis. The Court effectively overruled a very recent precedent (McConnell v. FEC) and continued gutting an older one (Flast v. Cohen), all without formally overruling them. This “minimalist” approach championed by JGR and SAA came in for some biting criticism from Justice Scalia, in the first signs of open tension in the conservative bloc. Below, I recap the action from this Monday’s decisions. I still owe you an update from last week, but your negligent sportswriter has been too busy billing hours (and reading hundreds of pages of SCt opinions) to actually write that up yet.  I’ll make it up to you soon—after we see what the Court does with the school-race cases tomorrow, that is.

Federal Election Commission v. Wisconsin Right to Life, 06-969

Section 203 of the Bipartisan Campaign Reform Act (aka McCain-Feingold) made it a federal crime for a corporation (including nonprofit advocacy groups) to broadcast an ad within 30 days of an election that names a federal candidate and is targeted to the relevant electorate. The Act was aimed at “sham issue ads” that denigrated a candidate’s stand on an issue, but did not expressly advocate a candidate’s defeat (thereby evading earlier campaign-finance laws). The classic example was “Senator X beats his wife; call Senator X and tell him to support family values.” In 2003’s McConnell decision, the Court (5-4, SOC defecting) held that § 203 was a facially constitutional effort to prevent the corruption or appearance of corruption that attends corporate influence on federal elections. But the Court left the door open to claims that § 203 is unconstitutional as applied to “genuine issue ads”—that is, ads that name a candidate but genuinely discuss issues instead of trying to influence an election. Respondent WRTL wanted to run ads urging viewers to call Wisconsin Senators Feingold (sweet irony!) and Kohl and “tell them to oppose the filibuster” of President Bush’s judicial nominees.

The Court held that § 203 was unconstitutional as applied to WRTL’s ad. Chief Justice Roberts’ controlling opinion, joined only by SAA, placed the burden on the government to justify § 203’s ban on political speech. Citing McConnell, JGR said that the question was whether the ad was the “functional equivalent” of “express advocacy” for a candidate’s defeat. But according to the Chief, the proper test is not whether the ad was intended to influence an election, as McConnell had said.  Such a test would “chill core political speech by opening the door to a trial on every ad within the terms of § 203, on the theory that the speaker actually intended to affect an election.” A speech-protecting test must be “objective, focused on the substance of the communication” and “must entail minimal if any discovery” so parties can resolve disputes quickly. Under JGR’s test, “a court should find that an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a particular candidate.” Therefore, WRTL’s ads are plainly valid since they focus on a legislative issue and do not mention an election nor take a position on a candidate’s fitness for office. “Contextual factors,” such as WRTL’s website that urged Feingold’s defeat, should “seldom play a significant role in the inquiry,” for WRTL’s express advocacy “in other aspects of its work is not a justification for censoring its issue-related speech.”  Coining his own constitutional catchphrase, the Chief summarized: “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.”

JGR found no compelling government interest that could support regulating issue ads. McConnell “stretched” the government interest in suppressing corruption to cover ads that were the “functional equivalent of express advocacy.” But this interest cannot be stretched to cover issue ads that are not. “Enough is enough,” said the Chief, giving a hint of how he really feels about McConnell. Nor can the interest in preventing corporations from having an undue influence on politics, recognized in Austin v. Michigan Chamber of Commerce (1986), be stretched to ban issue-related speech. The Chief found it unnecessary to decide whether McConnell should be overruled because WRTL’s ads were not the functional equivalent of express advocacy and therefore were valid even under McConnell.

Justice Alito concurred in declining to revisit McConnell. But he tantalizingly added that if Justice Scalia’s prediction of chilled speech turns out to be correct, “we will presumably be asked in a future case to reconsider the holding in McConnell.” This brief concurrence both solidifies SAA’s reputation as a judicial restraintist and makes pretty clear that he will vote to overrule McConnell if the question is squarely presented.

AS (+AMK, CT) would have overruled McConnell. Justice Scalia could find no test to separate issue-related speech from election speech that would both “(1) comport with the requirement of clarity that unchilled freedom of speech demands, and (2) be compatible with the facial validity of § 203 (as pronounced in McConnell).” The Chief’s test is impermissibly vague because it depends on whether the public could reasonably perceive an ad as issue-related, something the speaker may not be able to adequately predict.  Political speakers will simply choose not to speak rather than risk prosecution based upon a jury’s determination of reasonableness. Likewise, AS argued that JGR’s test is flatly inconsistent with McConnell, which stated that § 203 would be constitutional in the “vast majority” of applications. Thus, Scalia accused the Chief over overruling McConnell without saying so: “This faux judicial restraint is judicial obfuscation.” Finally, AS contended that stare decisis should not prevent McConnell’s overruling.  Austin and McConnell were major departures from “ancient First Amendment principles,” which accorded the strongest protection to political speech. And the Court has frequently overruled even very recent precedents that proved unworkable, like McConnell has. It’s worth noting that AMK’s joinder marks the first time he’s been willing to overturn a precedent that didn’t favor criminals or social liberals since about 1992.

DHS (+3) filed a 34-page dissent and summarized it (I hope) from the bench. He agreed with AS that the principal opinion “effectively . . . overruled” McConnell. DHS saw McConnell as the latest in a long string of statutes and judicial decisions that properly recognized the dangers of corporate influence on elections, and the attendant public cynicism about the political process. McConnell realized that most issue ads are really shams that are designed to affect an election and gain influence for their corporate sponsors. WRTL’s ad fell into that category, in DHS’s opinion. DHS also noted the limited nature of § 203: Corporations can still run ads paid for by a separately funded PAC; can still run ads that do not name a candidate; can still run ads in newspapers or websites; and can still run ads if they do not accept donations from other corporations.

Morse v. Frederick, 06-278

At least the Chief was able to garner a majority for his second major opinion of the day. The Court, by a vote of 5-4, held that a high-school student’s banner reading “Bong Hits 4 Jesus” was not protected speech. The principal reasonably interpreted the banner as promoting drug use, the Court held. JGR wrote that the school need not necessarily be able to prove that the challenged speech would “substantially disrupt” the school in order to suppress it, as Tinker v. Des Moines (1968) had held. While students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, the nature of those rights is what is appropriate for children in school.”  The Court then embarked on a survey of caselaw and sociological data to show that drug use is a particularly severe problem within schools. To address that problem, officials may “restrict student expression that they reasonably regard as promoting illegal drug use.” The Chief explained that this rule is different from suppressing unpopular speech or controversial speech. Indeed, the Court declined to adopt the petitioner’s argument that schools can suppress any “offensive” speech. The Court’s limited ruling against pro-drug speech vindicates the strategy of petitioner’s counsel, Ken Starr, and many religious-conservative amici who wisely gave the Justices this backup option to allowing bans on all “offensive” speech.

Justice Thomas concurred, but only because he does not believe public-school students have any free-speech rights under the Constitution. According to CT, the history of public schools shows that teachers and administrators had plenary power to regulate students’ speech in loco parentis, without any constitutional restrictions. If parents don’t like the rules imposed by public schools, they can “send their children to private schools, home school them, or . . . simply move.” “Tinker has undermined the traditional authority of teachers to maintain order in public schools” and should be overruled, he said.

Showing the widely varying approaches of the Court’s conservatives to this case, Justice Alito (+AMK) concurred from a completely different angle. SAA concurred on the understanding that the Court’s opinion does not permit restrictions on speech “that can plausibly be interpreted as commenting on any political or social issue.” He would also explicitly reject the SG’s argument (not addressed by the majority opinion) that schools can ban speech that interferes with a school’s educational mission. He strongly took issue with CT’s concurrence: “It is a dangerous fiction to pretend that parents simply delegate their authority . . . to public school authorities.” Even while he agreed with the Court that the special dangers of drugs in schools warranted suppression of pro-drug speech, he “regarded such regulation as standing at the far reaches of what the First Amendment permits.”

SGB concurred in part and dissented in part. He would have held that the principal was entitled to qualified immunity and not reached “the difficult First Amendment issue.”

JPS (+DHS, RBG) dissented. While they agreed that the principal was entitled to qualified immunity (ho hum, another unanimous CA9 reversal on that point), they argued that the “Bong Hits” banner was protected speech. JPS mainly took issue with the majority’s view that the banner promoted drug use. In his view, “this nonsense banner” did not “expressly advocate” illegal conduct and therefore could not be banned. The Court engaged in viewpoint discrimination and undermined Tinker’s disruption rule by allowing the suppression of this speech.

Hein v. Freedom from Religion Foundation, 06-157

Respondent freedom-lovers filed a lawsuit arguing that Executive-Branch-sponsored conferences inviting religious groups to seek federal funding under the President’s Faith Based Initiatives violated the Establishment Clause. The question was whether respondents had taxpayer standing. Justice Alito’s (+JGR & AMK) controlling plurality spent many pages recounting the historical ban on taxpayer standing and the weighty jurisprudential reasons for it. Then he came to the fly in the ointment—the classic Warren Court decision of Flast v. Cohen (1968), which “carved out a narrow exception to the general constitutional prohibition against taxpayer standing” when (1) there is “a logical link between [taxpayer] status and the type of legislative enactment attacked,” and (2) when there is “a nexus between [taxpayer] status and the precise nature of the constitutional infringement alleged.” SAA distinguished this case from Flast. “The link between congressional action and constitutional violation . . . is missing here.” The faith-based conferences were not dictated by any congressional enactment. Rather, the Executive Branch sponsored the conferences pursuant to an Executive Order and used only general appropriations. Thus, this case was more like Valley Forge Christian College v. Americans United (1982), in which the Court rejected taxpayer standing to challenge the Executive’s transfer of land to a religious group. Extending Flast to executive-initiated violations would “raise serious separation-of-powers concerns” by making almost every government speech or proclamation subject to taxpayer challenge. Making his view on Flast perfectly clear, SAA added that “Flast itself gave too little weight to these concerns.” Nonetheless, the plurality saw no need to revisit Flast, but merely declined to extend it, “as then-Justice Rehnquist” did in Valley Forge. (This must be the sixth or seventh time the Old Chief has been invoked by name in an opinion this Term.) SAA tweaked Justice Scalia for calling the plurality “insane” and “utterly meaningless,” and instead opined that Scalia was simply “wrong” in arguing for Flast’s overruling. In closing, SAA concisely summed up the Roberts Court’s approach to stare decisis: “It is a necessary concomitant of stare decisis that a precedent is not always expanded to the limit of its logic.”

AMK concurred to note that, in his view, “the result reached in Flast is correct and should not be called into question.” But neither should it be extended to cover this case, lest courts “assume the role of speech editors . . . and event planners” for Executive Branch functions (as opposed to merely micromanaging the Executive’s prosecution of the war on terrorism, one supposes). This concurrence reminded me of AMK’s missive in Hudson v. Michigan, the exclusionary rule case from last Term, in which he made clear that he will not be the fifth vote for overruling 40-year-old precedents that 4 other Justices seem ready to discard.

AS (+CT) concurred in the judgment. To him, Flast was an unwarranted departure from the general ban on taxpayer standing and should be repudiated. The Court should stop making “utterly meaningless distinctions from Flast and either overrule it or apply it to all government expenditures. “Whether the challenged government expenditure is expressly allocated by a specific congressional enactment has absolutely no relevance to the Article III criteria” for standing. Taking his second smack of the day at the Roberts-Alito judicial-restraint juggernaut, Scalia admonished: “Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future.”

DHS (+JPS, RBG, SGB) dissented, arguing that the logic of Flast dictates that taxpayers have standing to challenge any government spending that violates the Establishment Clause. The injury to the taxpayer’s conscience is the same whether his money is unconstitutionally spent by the Executive Branch or Congress.

Wilkie v. Robbins, 06-219

Respondent Robbins was a Wild West rancher who hosted cattle drives for tourists on his ranch. The federal government owned much of the land surrounding Robbins’s ranch and wanted an easement across it. When Robbins repeatedly refused to grant one, the Bureau of Land Management officials did what any good bureaucrats would do: harassed Robbins until he cried uncle. They trespassed on his land, charged him with picayune land-use violations, and revoked his grazing permits. Only Robbins didn’t cry uncle, unless you count Uncle Bivens and Uncle RICO. Alas, the Court, in an opinion by DHS (+6), found these family relations unavailing. DHS held that the Court would not create a Bivens action for governmental retaliation against a citizen’s assertion of private property rights. After noting the Court’s general reluctance to recognize new Bivens actions, DHS explained that Robbins could have challenged the government’s harassment in administrative proceedings, which cuts against creating a Bivens remedy in federal court. Next, the Court saw “special factors counselling hesitation” against implying a property-retaliation claim. Such a claim is too dissimilar from recognized retaliation claims that address whether an unconstitutional purpose motivated the retaliation (e.g., when a government worker is fired for exercising First Amendment rights). By contrast, it is perfectly legitimate for the government to attempt to acquire property rights it believes it needs to protect the public interest. Thus, in a property-retaliation case, a court would have to decide whether the government did “too much” in pursuing its legitimate goals.  And DHS thought that the line between unconstitutional retaliation on one side and zealous enforcement and “hard bargaining” on the other would be too hard to draw. Creating a Bivens action would also invite litigation anytime a government agent arguably infringes on property in the course of regulatory enforcement. Finally, DHS concluded (for a unanimous Court on this point) that Robbins did not have a RICO claim either, because the predicate racketeering crime—extortion under the Hobbs Act—does not cover government employees seeking to extort property for the government.

CT (+AS) concurred, because he rejects any and all attempts to create new Bivens actions.

RBG (+ JPS) dissented in part. RBG contended that a fear of opening the floodgates is not the sort of “special factor” that can preclude a Bivens remedy, and she thought that fear was overblown anyway. Moreover, RBG saw Robbins’s retaliation claim as properly alleging an illegitimate motive—a vindictive desire to “get” Robbins after he refused to grant the easement—and therefore as not materially different from other retaliation claims.

National Association of Home Builders v. Defenders of Wildlife, 06-340

For our last case from this week, let’s take the plunge into the alphabet-soupy world of administrative law. The Clean Water Act § 402(b) requires the EPA to transfer pollution-permitting authority to a State if the State can meet 9 specified criteria. The Endangered Species Act § 7(a)(2), enacted a couple years later, however, requires a federal agency to consult with the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) before taking any action that could harm endangered species. The question here was whether the EPA had to undertake these consultations before transferring permitting authority to Arizona, where it was conceded that Arizona met the CWA’s 9 criteria. The Court, splitting by the traditional 5-4, said no in an opinion by Justice Alito. SAA first held that the EPA did not act arbitrarily and capriciously by beginning consultations with the FWS and then deciding that it didn’t have to after all. Only final agency action is subject to arbitrariness review, so an agency can change its mind so long as it reaches a reasoned result. Turning to the statutory interpretation issue, the Court held that the later-enacted ESA should not be read to impliedly repeal the CWA’s mandate that the EPA must transfer permitting authority if an exclusive list of criteria are met. Moreover, a regulation issued by the FWS and NMFS reasonably resolves the tension between the two statutes and is therefore worthy of Chevron deference. That regulation requires ESA consultation only when an agency has discretion whether to take a given action.  Since the CWA imposes a mandatory duty upon the EPA, the EPA was not required to consult about the impact on endangered species before transferring permitting authority to Arizona.

JPS (+3) dissented. He would have held that the ESA requires consultations before an agency takes any action that could harm endangered species, even if the action is mandated by another statute. JPS thought this result was dictated by Chief Justice Burger’s “admirable opinion” in TVA v. Hill (1978), in which the Court enjoined the congressionally-authorized construction of a $100 million dam because it might injure the endangered snail darter. JPS also did not read the FWS/NMFS regulation to exempt mandatory actions from the ESA requirement and wouldn’t have given it Chevron deference anyway since none of the agencies relied upon it in its decisionmaking. Finally, citing “then-Justice Rehnquist’s” Hill dissent, JPS argued that the CWA is not really mandatory since the EPA must exercise some discretion in deciding whether a State has met the 9 criteria.


The Court granted 5 cases in the last two weeks, including 3 in which the SG recommended denial. Translation: The Court’s docket is very empty for next Term, so it is now granting everything in sight. Here are the grants with their QPs.

Riegel v. Medtronic, Inc., 06-179

Does the express preemption provision of the Medical Device Amendments to the Food, Drug and Cosmetic Act, 21 U.S.C. § 360k(a) preempt state law claims seeking damages for injuries caused by medical devices that received premarket approval from FDA?

Rowe v. New Hampshire Motor Transport Association, 06-457

Does the Federal Aviation Administration Authorization Act preempt a state from requiring shippers of tobacco and other dangerous substances to use a carrier that provides age verification to ensure that such substances are not delivered to children?

Knight v. Commissioner of Internal Revenue, 06-1286

Does 26 U.S.C. § 67(e) permit full deduction for costs and fees for investment management and advisory services provided to trusts and estates?

LaRue v. DeWolff, Boberg & Associates, Inc., 06-856

(1) Does § 502(a)(2) of ERISA permit a plan participant to bring an action to recover losses attributable to his account in a defined contribution plan that were caused by fiduciary breach? (2) Does § 502(a)(3) permit a participant to bring an action for monetary make-whole relief to compensate for losses directly caused by fiduciary breach?

Snyder v. Louisiana, 06-10119

This is a Batson case GVR’d to the Lousiana Supreme Court after Miller-El v. Dretke (2005). Not surprisingly, the issue appears to be whether the Louisiana Supreme Court properly applied that decision.

Until next time, that’s today’s baseball.

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP and a member of the firm’s Appellate and Supreme Court Practice. The statements, opinions, and subtle emotions expressed herein do not necessarily represent those of Baker Botts LLP; to the extent they are correct, insightful, and not offensive, they most definitely represent the views of the author. 

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Posted by Administrators on June 27, 2007 at 06:15 PM in Constitutional thoughts | Permalink


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