By The Way, This May Be The First Time The Phrase “Getting Up In The Grill” Was Used At The Supreme Court

Robert Barnes at WaPo:

A nearly unanimous Supreme Court ruled Wednesday that the First Amendment protects even hurtful speech about public issues and upheld the right of a fringe church to protest near military funerals.

Chief Justice John G. Roberts Jr. wrote that the Topeka, Kan.-based Westboro Baptist Church’s picketing “is certainly hurtful and its contribution to public discourse may be negligible.” But he said government “cannot react to that pain by punishing the speaker.”

“As a nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate,” Roberts said.

Justice Samuel A. Alito Jr. was the lone dissenter.

“Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case,” Alito wrote.

Ilya Shapiro at Cato:

Stepping aside from the emotions and bizarre facts, this case implicates all sorts of legal issues aside from the First Amendment.  A private cemetery can and should remove unwanted visitors for trespassing — but the Phelpses didn’t enter the cemetery.  A town can pass ordinances restricting the time, place, and manner of protests — but the Phelpses stayed within all applicable regulations and followed police instructions.  Violent or aggressive protestors can be both prosecuted and sued for assault, harassment, and the like — but the Phelpses’ protests did not involve “getting up in the grill” of people, as their lawyer put it during oral argument.

As the brevity of Chief Justice Roberts’s opinion confirms, there’s very little to this case and the Phelpses’ actions, ugly and objectionable as they are, are as constitutionally protected as a neo-Nazi parade.  If people don’t like that, they can change state laws to put certain further restrictions on protests near funerals or other sensitive areas — or federal laws in the case of military cemeteries — but they shouldn’t be able to sue simply for being offended.

Tom Goldstein at SCOTUSBlog:

The Court clearly felt considerable sympathy for the slain soldier’s family, but concluded that the First Amendment interests at stake were overriding.  “The record makes clear that the applicable legal term—‘emotional distress’—fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief.  But Westboro conducted its picketing peacefully on matters of public concern at a public space adjacent to a public street.”  The Court continued:  “Westboro believes that America is morally flawed; many Americans might feel the same about Westboro.  Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. …    Speech is powerful.  It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain.  On the facts before us, we cannot react to that pain by punishing the speaker.  As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

The Court left undecided two important issues that it concluded were not squarely presented.  First, recognized that the government may regulate the “time, place, and manner” of speech and that the State of Maryland (where this protest was held) subsequently enacted a statute governing the circumstances in which funeral protests may be held.  The Court did not decide the constitutionality of that statute or other similar federal and state laws.  The Court may have been motivated to grant review in the case and still affirm in order to issue an opinion that, unlike the arguable implications of the court of appeals’ decision, did not call such statutes into question.

Second, the Court acknowledged that the plaintiffs had also brought suit on the basis of statements made by the defendants on a website.  But it concluded that the issue had been waived by not preserving it in the petition for certiorari and only briefly mentioning it in the merits briefing.  The Court was therefore able to limit its decision strictly to the context of funeral protests.

Dan Miller at PJ Tatler:

Justice Roberts, for the majority, noted that “Our holding today is narrow. We are required in First Amendment cases to carefully review the record, and the reach of our opinion here is limited by the particular facts before us.” That is nearly always the case, so much so that the Court does not generally bother to mention it in its decisions unless it intends the comment to have significant effect beyond a yawnIn his concurrence, Justice Breyer expanded on this cautionary note:

I agree with the Court and join its opinion. That opinion restricts its analysis here to the matter raised in the petition for certiorari, namely, Westboro’s picketing activity.  The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings. The Court holds that the First Amendment protects the picketing that occurred here, primarily because the picketing addressed matters of “public concern.”

While I agree with the Court’s conclusion that the picketing addressed matters of public concern, I do not believe that our First Amendment analysis can stop at that point. . . . [S]uppose that A were physically to assault B, knowing that the assault (being newsworthy) would provide A with an opportunity to transmit to the public his views on a matter of public concern. The constitutionally protected nature of the end would not shield A’s use of unlawful, unprotected means.  And in some circumstances the use of certain words as means would be similarly unprotected (emphasis added).

Justice Alito expanded on the points raised in Justice Breyer’s concurrence at some length in his dissent at pages 23 – 36, particularly the analogy to a physical assault by A on B in order to gain an otherwise unlikely media audience for his views.  Both Justices Breyer and Alito seem to think that A’s  statement of views in the media presence would not shield him from liability for the assault, physical or verbal.

In raising the matter, Justice Alito seems  to rely on matters noted by Justice Breyer not to have been before the Supreme Court.  The majority opinion observes, in a footnote:

A few weeks after the funeral, one of the picketers posted a message on Westboro’s Web site discussing the picketing and containing religiously oriented denunciations of the Snyders, interspersed among lengthy Bible quotations. Snyder discovered the posting, referred to by the parties as the “epic,” during an Internet search for his son’s name. The epic is not properly before us and does not factor in our analysis. Although the epic was submitted to the jury and discussed in the courts below, Snyder never mentioned it in his petition for certiorari. See Pet. for Cert. i (“Snyder’s claim arose out of Phelps’ intentional acts at Snyder’s son’s funeral.” (emphasis added)). . . .

It is up to the petitioner for certiorari to do what Mr. Snyder evidently did not do. Unfair, perhaps, but here it serves to emphasize and give some flesh to the statements in the majority opinion as well as in the concurrence that the majority opinion is narrowly limited to the facts before the Supreme Court.

Blackfive:

This is a tough decision (and one which I grudgingly concede until I can read the actual decision) which is only tempered if you believe that there is a special place in hell for the Phelps family.

Also, please remember that these protests are stunts in order to evoke a visceral reaction from normal Americans in order to sue them in court and receive funds which keeps bread on the Phelps family table. Do not engage these horrible disgusting animals as that is exactly what they want.

Scott Lemieux at Lawyers, Guns and Money:

It’s hard to celebrate any victory for Phelps and his band of bigots, but that’s the point — you don’t need the First Amendment to defend popular speakers.

Appropriately enough — given her recent hypotheticals resting on the assumption that atheists expressing views in ways that aren’t sufficiently “solemn” for a public place is such an self-evidently intolerable outcome that preemptive attacks on other speech she finds ideologically objectionable are required — Althouse’s beloved statist reactionary Sam Alito was the only dissenter.   You’d think that this case would kill of his wholly unearned reputation for moderation, but it seems as durable as Newt Gingrich’s wholly unearned reputation as an intellectual.

Andy Barr at Politico:

Sarah Palin voiced disappointment with a Supreme Court decision Wednesday protecting the First Amendment rights of anti-gay protesters at military funerals.

“Common sense & decency absent as wacko ‘church’ allowed hate msgs spewed@ soldiers’ funerals but we can’t invoke God’s name in public square,” Palin tweeted .

Walmart Woes

Erik Hayden at The Atlantic with a round-up.

SCOTUSBlog:

The Supreme Court stepped into two major controversies on Monday, agreeing to sort out when a class-action lawsuit may be filed when employees are seeking back pay for alleged workplace discrimination, and to clarify whether companies claimed to be a major source of global warming can be sued under the law of nuisance.  The first issue is raised in an appeal by the discount retailer, Wal-Mart Stores; the second an appeal by four large  electric generating companies that have been sued by a group of state governments.  The cases are likely to be heard in March or April.

A federal judge in San Francisco has cleared the way for a class of at least 500,000, and perhaps as many as 1.5 million, present and former women employees of Wal-Mart to sue the huge chain over alleged sex bias throughout its 3,400 stores in the U.S.   The Court agreed to hear one issue raised by the company, and added a question of its own.  The outcome will not decide whether the company did engage in  discrimination, but only whether the lawsuit may proceed as a class-action.  Potentially, billions of dollars are at stake.

The first question will be whether, under Federal court Rule 23, a lawsuit may seek a money verdict — in this case, a claim for back pay — when the class was created under a provision that limits remedies to corrective court orders, not money.   Besides agreeing to hear that, the Court told the parties to file briefs and prepare to argue on a second question — whether the class was a proper one, under Rule 23, when it was cleared to go forward under Rule 23(b)(2).   It is unclear whether the Court, if it answered that second question in the negative, would be signaling that the class case might still proceed under a different part of Rule 23 — part (b)(3), which does allow money claims.

Wal-Mart’s petition had raised a second question that embraced the broader argument that no class should have been approved at all, since the claims made by the women employees were so disparate and so diffuse that they really had nothing in common, and that, as a result, Wal-Mart would not have been able to mount a defense to such claims.   The Court rewrote Wal-Mart’s second question, without making it clear exactly what arguments the lawyers should now be making in addition to whether a money claim could be made in this case.

Dahlia Lithwick at the XX Factor:

The six plaintiffs in the suit claim that despite the enormous size of the class, Wal-Mart’s decision-makers determine pay and promotion based on a rigid and highly centralized “strong corporate culture that includes gender stereotyping.” Their claim is that women constitute more than 70 percent of Wal-Mart’s hourly workforce but less than one-third of salaried management. They seek back pay, punitive damages, and changes to Wal-Mart’s hiring and promotions policies. Wal-Mart’s liability may be in the billions of dollars. Aside from the size of the class, Wal-Mart argues that the lower courts used the wrong standards to certify the class.

This is a high-stakes appeal that has elicited strong responses from the Chamber of Commerce on one hand, and those who worry about the need for class-action suits to protect worker rights on the other. It’s going to garner an enormous amount of interest from those who contend that big business never loses at the Roberts court and that workers can’t catch a break. It may also prove an early litmus test for whether the presence of three women at the high court will in any way shape the debate about gender discrimination.

Marcia Coyle at The Blog Of Legal Times:

The merits of the case, however, are not before the justices. Instead, the Court will focus on whether the class was properly certified.

“We welcome the Supreme Court’s limited review of the class certification decision in this case. As that decision was based on a vast body of evidence, we are confident that the decision to certify the class was sound,” said the plaintiffs’ lead co-counsel Joseph Sellers, partner in Washington’s Cohen Milstein Sellers & Toll, in a statement. “We believe the Court will reach the same decision after reviewing the record before the U.S. District Court for the Northern District of California, where class certification was granted in June 2004.”

Wal-Mart has lost the class action issue four times in lower court rulings, noted Sellers.

Wal-Mart, represented by a team of lawyers from Gibson, Dunn & Crutcher, led by partner Theodore Boutrous, contends that the class was improperly certified, both as to its size and type. It argues that the plaintiffs, who are seeking back pay, were certified under Federal Rule of Civil Procedure 23(b)(2), used for classes seeking injunctive relief and, instead, should have been required to meet the tougher standards for classes seeking damages.

In the grant of review Monday, the justices ask the parties to address whether claims for money damages can be certified under 23(b)(2) as well as whether certification under that rule was consistent with the certification requirements of Rule 23(a).

Carrie Lukas at The Corner:

It will be interesting how this plays out. Walmart claims that its employment practices “expressly bar discrimination and promote diversity,” and it is hard to imagine that the official employment practices would do the opposite. The crux of this case will likely be the outcomes of that employment system: If, on average, women have ended up earning less than men with similar job titles, that will be evidence of discrimination.

Those familiar with debates about the so-called wage gap (the difference between the earnings of the median working man and working woman) know that there are many reasons other than discrimination why women sometimes end up earning less than men do. As a report for the Department of Labor (conducted using data from the Current Population Survey) concluded:

Although additional research in this area is clearly needed, this study leads to the unambiguous conclusion that the differences in the compensation of men and women are the result of a multitude of factors and that the raw wage gap should not be used as the basis to justify corrective action. Indeed, there may be nothing to correct. The differences in raw wages may be almost entirely the result of the individual choices being made by both male and female workers.

It’s an important fact to keep in mind: Even if statistics show that men and women earn different amounts, discrimination isn’t necessarily to blame.

Monica Potts at Tapped:

I’m not expecting the current court to side against Wal-Mart, however. At every opportunity, the Roberts Court has expanded the rights of corporations. Moreover, as Tiku points out, the issue might even split Obama’s two appointees. Wal-Mart twice cited Justice Elena Kagan, who wrote an influential law-review note on class certification while she was a student at Harvard.

But class-action suits are important ways for a discriminated class of people to be compensated. If Wal-Mart as an institution discriminates against women, it seems perfectly reasonable that those affected stretch across the country and through the entire corporate hierarchy. Women already have a hard time seeking redress against discrimination; it’s disappointing to consider that it’s about to get even harder.

Don Suber:

For years, conservatives have called for tort reform. Legislating tort reform is difficult because so many lawyers like it (including the defense attorneys for businesses) and really the courts do not like to be told what to do.

The class-action lawsuit is the biggest paid. It always seem the lawyers get millions while the “victims” get coupons for prices off on their next purchase from the maker of the defective product.

Walmart may help end that abuse.

And So, It Begins…

Ashby Jones at WSJ:

This just in: Virginia federal judge Henry Hudson on Monday ruled that he’ll let the state of Virginia’s challenge to the landmark health care law passed in March go forward, at least for the time being. Click here for the early Reuters story; here for the 32-page opinion.

The Department of Health and Human Services had moved to dismiss the lawsuit, which was filed in March (click here for the complaint), shortly after the passage of the law. But Judge Hudson on Monday denied the motion.

The ruling represents a setback that will force the Obama administration to mount a lengthy legal defense of the law. The suit, filed by Virginia Attorney General Ken Cuccinelli (pictured), alleges that the law’s requirement that its residents have health insurance violates the Commerce Clause of the Constitution.

Virginia’s lawsuit is one of several trying to undo the health-care law. Another large one was filed in a Florida federal court by a handful of state attorneys general.

Christopher Weber at Politics Daily:

Cucinelli argues on his website that “buying health insurance can be said to be an act in commerce. However, if someone doesn’t buy insurance, they are by definition not engaging in commerce. This legislation greatly oversteps the Commerce Clause.”

[…]

HHS Secretary Kathleen Sebelius minimized the importance of the judge’s decision, calling it just a “procedural step,” according to the Associated Press.

SCOTUSBlog:

The new law, the judge commented, “radically changes” health care coverage in the country.  In passing it, he added, Congress broke new ground and extended “Commerce Clause powers beyone its current high watermark.”  Both sides, the decision said, have turned up prior rulings, but they are “short of definitive.”

“While this case raises a host of complex constitutional issues,” the judge wrote, “all seem to distill to the single question of whether or not Congress has the power to regulate — and tax — a citizen’s decison not to participate in interstate commerce” — that is, a private decision not to buy health insurance.  “Neither the U.S. Supreme Court nor any circuit court of appeals has squarely addressed this issue…Given the presence of some authority arguably supporting the theory underlying each side’s position, this Court cannot conclude at this stage that the [Virginia] complaint fails to state a cause of action….Resolution of the controlling issues in this case must await a hearing on the merits.”

Philip Klein at The American Spectator

Todd Gaziano and Robert Alt at Heritage:

On the merits, we are surprised the judge took as much space to conclude that Virginia stated a valid cause of action, namely, that Congress had exceeded its constitutional authority with the individual mandate.  At this stage in the litigation and on the particular motion that was filed (a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for the legal wonks), the judge need not and could not rule on who will win or even if one side is more likely to win.  The only question is whether Virginia stated a legal cause of action (or legal theory) that is cognizable in law.  Virginia certainly has at least a valid substantive theory to challenge the law, because someone with standing is always able to challenge the constitutionality of a statute on the ground that Congress has no constitutional authority to enact it, QED.  Indeed, we think Virginia ultimately should win on the merits, but it is even easier to show that the correct form of the argument was set forth in the complaint.  Nevertheless, unless the district court’s jurisdictional rulings are overturned, Judge Hudson’s discussion of the constitutional issues is somewhat instructive.  It shows he is not hostile or dismissive of Virginia’s claims, which is surely good for liberty.

Michelle Malkin

Ed Morrissey:

Expect the Left to go after Judge Hudson.  George W. Bush appointed him to the federal bench in 2002, following a career in the state bench and also in the US Marshal Service as director during Bush 41’s administration.  The Right showed no reluctance to point out Susan Bolton’s appointment by Bill Clinton, and turnabout is not just fair play but de rigueur by now.

It matters little, anyway.  Virginia wasn’t the only state preparing a challenge to this law, nor was it even first to file a challenge.  This law will go to the Supreme Court from many directions, and there are more than enough constitutional grounds for judges to allow hearings on it, regardless of what Pete Stark thinks.

Besides, Hudson only refused to dismiss the lawsuit.  He hasn’t yet ruled on any of the arguments in the case, except to rule that Virginia has a case to argue that the federal government overreached.  What we know now is that at least one court will hear that case — and that’s the first step to checking the power of Washington.

Not-So-Sweet Charity

Erin Miller at SCOTUSBlog:

In Holder v. Humanitarian Law Project (08-1498; 09-89), the Court affirms in part, reverses in part, and remands on a 6-3 vote.  Chief Justice Roberts writes the Court’s opinion, while Justice Breyer dissents, joined by Justices Ginsburg and Sotomayor.

• Holding: The federal material-support statute is constitutional as applied to the particular kinds of support that the parties in this case seek to provide to foreign terrorist organizations.  The Court concludes that, as applied to these individuals and groups, the statute does not violate the free speech clause of the First Amendment.
• Note: On the bench, Justice Breyer read from his dissent.

The full texts of the four opinions, and the briefs in the granted cases, appear after the jump.

American Constitution Society:

The Supreme Court, voting 6-3, upheld a federal law that bars “material support” of groups the government deems are terrorist organizations.  The Associated Press reports 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 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.

Ed Morrissey:

Hamas would be one such example.  It conducts terrorist attacks against Israel with one part of its organization while running charitable endeavors with another.  Fundraising for Hamas to support its outreach programs would allow Hamas to use the money elsewhere, or even if the specific money was applied to the charitable work, it would allow Hamas to not have to dip into the charity funds for its terrorist activities.

That has long been accepted legal theory in the US, but until now it hasn’t been applied to non-monetary support.  It’s a murkier question, as “advice” is not a fungible commodity.  Assistance in building a proposal to the UN doesn’t translate into terrorist activity as easily as money does, mainly because it’s specific to the task.  However, the Supreme Court has wisely decided that the basic issue is one of terrorist intent on the organization as a whole, and not the subordinate intentions of its internal agencies.  Supporting a designated terrorist group in anything is in essence material support for terrorism.

Justice Stephen Breyer, the AP reports, read his dissent aloud in a show of frustration with the majority opinion, rather than just release the written brief.  Breyer was joined by Sonia Sotomayor and Ruth Bader Ginsburg, in what would be no great shock.  The report fails to mention that John Paul Stevens, soon to retire from the Court, joined the conservative majority on this question.  That seems rather newsworthy, and the AP’s failure to mention it seems equally newsworthy.

Jacob Sullum at Reason:

Today the Supreme Court upheld the federal ban on providing “material support” to groups identified as “foreign terrorist organizations” by the secretary of state. The activists challenging the statute feared prosecution for encouraging the Kurdistan Workers Party (PKK) and the Liberation Tigers of Tamil Eelam, both of which appear on the State Department’s list, to pursue their goals through nonviolent means. As described by the district court, the plaintiffs wanted to “train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes,” “engage in political advocacy on behalf of Kurds who live in Turkey,” “teach PKK members how to petition various representative bodies such as the United Nations for relief,” and “engage in political advocacy on behalf of Tamils who live in Sri Lanka.” The Supreme Court’s ruling (PDF) says the activists were correct to worry that such projects, though speech aimed at promoting lawful activities, would be considered “material support,” which includes the broad categories of “training,” “expert advice or assistance,” “personnel,” and “service.” But in the view of six justices, this restriction on freedom of speech is justified as part of the fight against terrorism. While not ruling out the possibility that future applications of the law might violate the First Amendment, the majority opinion by Chief Justice John Roberts says the Constitution allows Congress to criminalize the speech contemplated by the plaintiffs in this case, based on the premise that any assistance to terrorist groups, no matter its nature or aim, helps legitimize them and continue their violent activities.

Eugene Volokh:

Let’s look at the general problem: American speakers can do many things that help foreign terrorist organizations, both those that are directly fighting us, such as al Qaeda, and those that aren’t, such as the Kurdish separatist PKK and the Tamil separatist LTTE. They can train them to more effectively engage in terrorism. They can train them to deal with international bodies (one of the issues involved in the Humanitarian Law Project case). They can coordinate publicity campaigns with them.

Speakers can also independently write newspaper editorials or op-eds praising the PKK and the LTTE, and arguing that they should be taken off the foreign terrorist organization list, or even be supported by the U.S. government. They can independently organize demonstrations making the same arguments. They can independently write academic papers making the same argument, or appear on television making it. Politicians and candidate for office can make the same arguments.

And all these things, both those coordinated with the groups (the first paragraph) and those done entirely independently will undermine “the Government’s interest in combating terrorism[, which] is an urgent objective of the highest order.” The undermining will be indirect, and will happen through means such as increasing the groups’ perceived legitimacy, helping them acquire more resources to engage in terrorism, and letting them reroute their already-acquired resources to terrorism. (It might even embolden the groups to keep fighting, in the hopes that if they hold out long enough, the politicians who praise them might gain power and change American foreign policy in a way that supports the groups.) But as the Court pointed out in Holder v. Humanitarian Law Project, such indirect threats to the compelling government interest may nonetheless be real threats. Therefore, if one really takes seriously the Court’s assertion — which has often been made in other cases — that content-based speech restrictions are constitutional if they are “narrowly tailored to serve a compelling state interest,” all this speech, including the independent advocacy, could be criminalized.

But this can’t be so, it seems to me — which is why the majority (1) took pains on several occasions to note that the law didn’t apply to independent advocacy, (2) said that “In particular, we in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations,” and (3) stressed that, “Finally, and most importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups.” We Americans must have the right to try to persuade our fellow citizens, and our government, that our government is on the wrong side in various foreign policy controversies, that groups that the government says are bad guys are actually good guys (or at least less bad than the really bad guys), or that we should change our policies about which kinds of support to the bad guys are barred and which are allowed. To do that, we need to be able to make arguments defending or even praising those groups, even when such arguments help designated foreign terrorist organizations, and thus interfere with “the Government’s interest in combating terrorism[, which] is an urgent objective of the highest order.”

If I’m right, then this means that in this situation speech can’t be restricted even when the restriction is indeed necessary to serve a compelling government interest. The free speech rule there isn’t that the restriction is valid only if it passes strict scrutiny — it’s that the restriction is per se invalid. That’s the argument I make as to other restrictions in my Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny, 144 U. Pa. L. Rev. 2417 (1997); and I think that the majority’s ruling in Holder v. Humanitarian Law Project is not inconsistent with that argument. To be sure, the majority doesn’t hold that a ban on independent advocacy would be unconstitutional even though such a ban might be necessary to serve a compelling government interest; it expressly reserves that question. But I think that the majority’s repeated stress that the law doesn’t restrict independent advocacy suggests that the Court would indeed strike down such a ban that applied to independent advocacy. And I think it would have to do that, if it takes seriously the importance of speech to democratic self-government (which I think the Court has indeed done in recent decades).

The Jawa Report:

Good on them! Now add IHH to the list, the so called Humanitarian aid group that sponsored, along with the backing of the Turkish Prime Minister, the Jihadi Flotilla of hate.

Digby:

The bottom line is that money is now considered equivalent to speech in more ways than just electioneering. If you believe that multi-national corporations are exercising a right to free speech by spending unlimited funds to influence elections to their benefit, then you would naturally assume that exercising your right to free speech to influence organizations is equivalent to giving them money. The consistent concept for this court isn’t free speech at all, it’s their belief that money equals speech. I don’t find this outcome surprising in the least. Once you make the leap then this is the logical outcome. And I would guess it won’t be the last time we see this.

Some Say Gutted, Some Say Pruned

Lyle Denniston at SCOTUSBlog:

More than four decades after the Supreme Court ordered police to warn suspects about their rights before questioning them, the actual day-to-day practice has not turned out to be a simple ritual under clear ground rules.  Encounters in interrogation rooms still and often are a test of wills, with detectives trying to get answers and suspects trying to avoid talking themselves into deeper trouble.  As a result, the Court often has had to reinterpret its 1966 decision in Miranda v. Arizona.  It did so again on Tuesday, and this time the result decisively tilted the warnings procedure toward the police.

By a 5-4 vote, the Court for the first time made two things clear about Miranda rights: first, if a suspect does not want to talk to police — that is, to invoke a right to silence — he must say so, with a clear statement because it is not enough to sit silently or to remain uncooperative, even through a long session; and, second, if the suspect finally answers a suggestive question with a one-word response that amounts to a confession, that, by itself, will be understood as a waiver of the right to silence and the statement can be used as evidence.  Police need not obtain an explicit waiver of that right. The net practical effect is likely to be that police, in the face of a suspect’s continued silence after being given Miranda warnings, can continue to question him, even for a couple of hours, in hopes eventually of getting him to confess.

Those two declarations emerged in Berghuis v. Thompkins (08-1470), a Michigan drive-by shooting case.  Van Chester Thompkins, Jr., of Southfield, Mich., was convicted of murder, assault, and several firearm charges, and is serving life in prison without parole.  On Tuesday, the Court ruled that his Miranda rights had not been violated, and thus reaffirmed his conviction and sentence.  (In a separate part of the ruling, the Court also rejected a claim that his defense lawyer was ineffective in failing to seek a jury instruction to limit the damaging testimony of another man involved in the crime.)

Justice Anthony M. Kennedy wrote for the majority, joined by the Court’s four most conservative members, Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas.  Justice Sonia Sotomayor wrote a strongly-worded dissent, accusing the majority of deciding the case more sweepingly than it needed to do and of carrying out “a substantial retreat from the protection” given by the Miranda decision.

Kent Scheidegger:

The Miranda rule remains intact in that the police must warn suspects of their rights and that an invocation of those rights by the suspect requires the police to stop questioning. Today’s decision involves what is needed to establish whether a suspect invoked or waived his rights.

To invoke the right to remain silent such that the police must stop, the suspect must say so expressly and unambiguously. On the other hand, a waiver of rights may be inferred from the facts that the suspect received the warnings, understood his rights, and responded to questions anyway.

The rule really in the Constitution, forbidding compelled statements, remains in force, of course. Today’s decision places limits on an entirely artificial rule grafted onto the Constitution by the Supreme Court. It is entirely appropriate that artificial rules be strictly limited, if they are not to be abandoned altogether.

Shani O. Hilton at Spencer Ackerman’s place:

In her dissent, Sotomayor wrote that this decision “turns Miranda upside down.” And I admit, that was my first reaction, too.

But how did this case even get to the Supreme Court in the first place? It strikes me as completely laughable that someone can ask that a statement given during an interrogation be thrown out on the grounds that they didn’t talk for the first few minutes of being questioned. It should be as simple as: you have a right to remain silent, so long as you remain silent. That is, if you start talking, you’re no longer exercising that right.

Setting that aside, however, maybe the court’s decision isn’t that terrible. I think my initial reaction was out of worry that suspects may not know that they have to say something. But this ruling has the potential to clear up any ambiguity about the “remaining silent” clause. I was talking to a friend, and he noted that if the Miranda language were modified to include something along the lines of “you have to actively assert your right to remain silent,” it could be okay. Then cops, prosecutors, and suspects are all protected.

Paul Mirengoff at Powerline

Tom Maguire:

The story does include this:

Van Chester Thompkins was arrested for murder in 2001 and interrogated by police for three hours. At the beginning, Thompkins was read his Miranda rights and said he understood.

The officers in the room said Thompkins said little during the interrogation, occasionally answering ”yes,” ”no,” ”I don’t know,” nodding his head and making eye contact as his responses. But when one of the officers asked him if he prayed for forgiveness for ”shooting that boy down,” Thompkins said, ”Yes.”

He was convicted, but on appeal he wanted that statement thrown out because he said he invoked his Miranda rights by being uncommunicative with the interrogating officers.

If the police felt the suspect was not being utterly unresponsive, then one can see why they would continue the interrogation.  Near-silence is not silence.

And I guess there could be a real problem with implementing a rule that equated silence with an assertion of the right to end the interrogation.  Would ten seconds of sullen silence be enough?  One minute?  Ten minutes?  When does the clock start, and who plays scorekeeper?

Scott Lemieux at Tapped:

While this outcome is unsurprising, there are a couple of implications worth noting. First, there was some concern that despite a generally liberal record, Sotomayor might lean excessively toward the state in civil-liberties issues. While today’s case doesn’t in itself prove that these concerns were unfounded — Breyer, the liberal justice most likely to defect on civil-liberties issues, joined her dissent — her strongly worded dissent is, at a minimum, a very encouraging sign.

And second, to return to another of my hobbyhorses, this proves that the much-touted “minimalism” of Alito and Roberts makes very little difference in terms of the bottom-line outcomes of cases. First of all, like Citizens United, this case shows that their minimalism is highly selective; when necessary to reach conservative outcomes Alito and Roberts are perfectly happy to write or join opinions that go well beyond what’s necessary to decide a particular case. And, second, “minimalist” refusals to overturn precedents may mean much less than they seem at first glance. It’s true that Miranda has been re-affirmed, but like a lot of other Warren and early Burger Court precedents, it has also been steadily drained of most of its bite. What matters is not so much whether or not precedents are explicitly overruled; it’s whether they’re actually applied in cases going forward.

The Kids Are Alright

Erin Miller at SCOTUSBlog:

The Court issued four opinions today, including two in the long-awaited cases about juvenile imprisonment without parole, Graham and Sullivan v. Florida.  The rulings are:

In United States v. Comstock (08-1224), in an opinion by Justice Breyer, the Court reverses and remands the lower court’s decision.  The vote is 7-2, with Justice Thomas dissenting, joined by Justice Scalia.  Justice Kennedy concurs in the judgment only, joined by Justice Alito.

• Holding: The Court upholds the law passed by Congress to order the civil commitment of a mentally ill federal prisoner who is a sex offender with the commitment to continue beyond the date the inmate otherwise would be released.

[…]

In Graham v. Florida (08-7412), the Court reverses and remands, in an opinion again by Justice Kennedy.  The vote is 6-3, with Justice Thomas dissenting, joined by Justice Scalia and in part by Justice Alito.  Justice Alito files a separate dissenting opinion for himself.   Justice Stevens, joined by Justices Ginsburg and Sotomayor, concurs, even though all three join the majority opinion, and the Chief Justice concurs in the result alone.

Holding:  It is unconstitutional to sentence a juvenile offender to life in prison without parole when the crime does not involve murder, given the Eighth Amendment’s ban on “cruel and unusual” punishment.

Jonathan Adler:

This morning the Supreme Court handed down its opinion in United States v. Comstock, a challenge to the federal government’s authority to civilly commit a “sexually dangerous”  federal prisoner beyond the time of his sentence.  The U.S. Court of Appeals for the Fourth Circuit held that the federal government lacked such authority within its enumerated powers.  The Supreme Court disagreed, voting 7–2 to uphold the federal government’s commitment power under the Necessary & Proper Clause.  Justice Breyer wrote for the majority.  Justices Kennedy & Alito concurred in the judgment, and Justice Thomas dissented, joined by Justice Scalia.  The opinions are here.  Some earlier VC posts on the case are here and here.  I haven’t had a chance to read the opinions yet, but given that Justice Breyer wrote the majority — and that he is such an avowed advocate of broad federal power — I suspect this decision is a major setback for those seeking to limit the federal government to its constitutionally enumerated powers.

Jacob Sullum at Reason:

The Court, which in 1997 rejected a challenge to a similar Kansas law based on the Double Jeopardy, Due Process, and Ex Post Facto Clauses, did not deal with the usual constitutional objections in this case. Instead it addressed the question of whether the federal government, as opposed to the states, is authorized to detain people based on sex crimes they might commit in the future. The seven-justice majority concluded that it is, finding that civil commitment of “sexually dangerous” prisoners is a “necessary and proper” means of “carrying into execution” the federal government’s enumerated powers. Yet the majority opinion by Justice Stephen Breyer never identifies the powers that provide the authority for this law. The omission is telling, especially since all nine justices agree that the Necessary and Proper Clause does not give Congress any independent powers.

Instead of citing specific powers, Breyer says the civil commitment law is justified by whatever enumerated powers underlie the federal criminal statutes that sexually dangerous prisoners are convicted of violating. Three of the five prisoners in this case, for example, were convicted of possessing child pornography, which Congress banned based on its authority to “regulate commerce…among the several states.” Other cases might involve people whose crimes were treated as federal offenses because of a case-specific connection to interstate commerce, such as a bias-motivated assault committed with a baseball bat manufactured in another state. (I kid you not.) As Breyer notes, “the Constitution…nowhere speaks explicitly about the creation of federal crimes beyond those related to ‘counterfeiting,’ ‘treason,’ or ‘Piracies and Felonies committed on the high Seas’ or ‘against the Law of Nations.'” But that has not stopped Congress from criminalizing a wide range of offenses (including many already addressed by state laws), based on thin or nonexistent constitutional pretexts.

Rod Dreher:

Dissenters were Justices Scalia and Thomas, who said that yes, sexual violence is a terrible thing, but there is simply nothing in the Constitution giving Congress the right to infringe an individual’s liberty to this degree. As Justice Thomas wrote in his dissent, “[T]he Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.” Justice Thomas noted the potential for abuse in expanding the state’s police powers over individuals. He also said that what’s at issue is not what powers the Constitution should have granted to Congress, but what powers the Constitution actually has granted to Congress.

It’s a principled stand, to be sure, but I find myself pleased that the Court ruled as it did, given the dangers that certain sex criminals (e.g., child molesters) pose to society. Solicitor General Elena Kagan, in successfully arguing the government’s case before the Court, said this is analogous to the government’s right to hold prisoners who have a deadly and highly contagious disease after they finish their sentences, for the common good. That makes sense to me, but Justice Thomas’s dissent makes me worried that I’m too willing to yield on a key principle because I like the result of this judgement.

Scott Lemieux at Lawyers Guns and Money:

Deciding an appalling case in which a 17-year old was given life without parole for a violating parole, the Supreme Court held today that life-without-parole sentences for juvenile offenders violate the Eight Amendment to the Constitution. And while I had feared a “minimalist” opinion that would create a balancing test that state courts would always resolve in favor of the state, in the majority opinion (see Part III C) Justice Kennedy argues convincingly that a categorical rule is necessary in this case. Chief Justice Roberts — in what I’m guessing was an attempt, if not to get a minimalist majority opinion, at least to prevent 5 votes for a categorical rule — wrote a concurring opinion arguing that the sentence should be ruled unconstitutional based on a case-by-case balancing test, but didn’t find any takers.

Clarence Thomas’s dissent — joined entirely by Scalia and in its most important aspects by reasonable, moderate, thinking person’s conservative Sam Alito — does make one convincing point: Kennedy’s argument that there’s an “emerging consensus” against life-without-parole for juveniles is unconvincing. The Court’s majority opinion does indeed reflect an “independent judgment” that the Eighth Amendment bans such sentences. Where I disagree with Thomas is that there’s something wrong with this. Exercising independent judgment is what courts do when exercising judicial review. And, of course, when policy outcomes they cherish are at stake Thomas and Scalia are perfectly happy to exercise their “independent judgment” that decisions made by electorally accountable officials are unconstitutional even in the absence of an emerging consensus or a compelling argument that as originally understood the Constitution forbade those practices. And sentencing is one area where where the normative unattractiveness of originalism is particularly stark. Reminding me again while I’ll miss him, Stevens sums it up devastatingly in his brief concurrence:

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment , proportionality review must never become effectively obsolete.

While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

And you know who agrees with this in his more candid moments? Antonin Scalia, who has expressly said that he would not uphold a sentence for flogging even though it would seem to be permitted under an originalist understanding of the Eight Amendment was right. Not only is that Scalia right, but it’s impossible to explain why the framers wrote the Eighth Amendment the way they did if they meant only to proscribe a small, specific set of punishments that were illegal at the time the Bill of Rights was ratified.

Don Suber:

The justices should realize that it is the age of reason, not adulthood, that applies here. I will grant that legislatures can void locking someone up for life for a crime that was not murder and committed two days before his 18th birthday. But it is a legislative, not a judicial, determination.

The only way to recognize “evolving standards of decency” is by constitutional amendment.

That is not the case here. This decision is a fraud.

Justice Kennedy and the 4 liberal justices voted to ignore the Constitution once again. Cruel and unusual? At the time the Constitution was written, we hung horse thieves even if they were not 18. There was no cruelty then and this is not cruel now. And it must be both cruel AND unusual to be unconstitutional.

So today, twice the court overstepped its bounds.

The first in allowing people to remain in jail for longer than the statue calls, and in letting people go free early. There is no rhyme or reason or reconciliation of these two decisions.

Too much power and too little resistance by our Supreme Court.

Dodd:

It is difficult indeed to reconcile these two simultaneous rulings. Legislatures are now permitted to hold already convicted criminals past the end of their sentences, but they may not make the subjective determination that near-adults convicted of heinous crimes may be permanently removed from civil society.

In most cases, I prefer bright-line rules to “balancing tests.” But I don’t make a fetish of it. Thus, even leaving aside the jarring contrast between these rulings, it is inexplicable to me how the Court could have thrown out its longstanding rule that balancing competing societal interests in making sentencing decisions is the proper province of legislatures to reach the result in Comstock. But substituting one bright line for another, more clement one at least has the small advantage of erring on the side of prudence where lifetime sentences are concerned. That only serves to highlight the immense wrongness of the Graham ruling.

For decades we have seen sex offender punishments spiral out of control. Until today, the Constitutional excesses have mainly been in the form of ever-increasing post hoc sentencing enhancements related to how long someone convicted of peeing in public years ago will continue being treated the same as a a newly convicted child rapist. Today’s ruling will pour gasoline on the conflagration. Juxtaposed against the stripping away of the legislature’s longstanding power to send child rapists away for life if they happened to commit the crime the day before their 18th birthday, this farcical, results-based judicial activism (which will only allow them to be held permanently by extra-constitutionally extending whatever sentences they can now be given) is beyond comprehension.

So Many Blog Posts About The Nomination Of Elena Kagan, So Little Time

Peter Baker and Jeff Zeleny in NYT:

President Obama nominated Solicitor General Elena Kagan as the nation’s 112th justice, choosing his own chief advocate before the Supreme Court to join it in ruling on cases critical to his view of the country’s future.

After a monthlong search, Mr. Obama informed Ms. Kagan and his advisers on Sunday of his choice to succeed the retiring Justice John Paul Stevens.

In settling on Ms. Kagan, the president chose a well-regarded 50-year-old lawyer who served as a staff member in all three branches of government and was the first woman to be dean of Harvard Law School. If confirmed, she would be the youngest member and the third woman on the current court, but the first justice in nearly four decades without any prior judicial experience.

That lack of time on the bench may both help and hurt her confirmation prospects, allowing critics to question whether she is truly qualified while denying them a lengthy judicial paper trail filled with ammunition for attacks. As solicitor general, Ms. Kagan has represented the government before the Supreme Court for the past year, but her own views are to a large extent a matter of supposition.

Tom Goldstein at SCOTUSBlog:

Kagan is uniformly regarded as extremely smart, having risen to two of the most prestigious positions in all of law:  dean of Harvard Law School and Solicitor General.

In government and academia, she has shown a special capacity to bring together people with deeply held, conflicting views.  On a closely divided Supreme Court, that is an especially important skill.

Conservatives who she has dealt with respectfully (for example, Charles Fried and former Solicitors General to Republican Presidents) will likely come forward to rebut the claim that she is an extreme liberal.

She would also be only the fourth woman named to the Court in history, and President Obama would have named two.  At age 50, she may serve for a quarter century or more, which would likely make her the President’s longest lasting legacy.

As with John Roberts, her service in a previous presidential Administration exposed her to a number of decisionmakers, who have confidence in her approach to legal questions.

The fact that she lacks a significant paper trail means that there is little basis on which to launch attacks against her, and no risk of a bruising Senate fight, much less a filibuster.

And finally, one point is often overlooked:  Kagan had some experience on Capitol Hill and significant experience in the Executive Branch, not only as an attorney in the White House counsel’s office, but also as an important official dealing with domestic affairs.  She has thus worked in the process of governing and does not merely come from what has recently been criticized (unfairly, in my view) as the “judicial monastery.”

Ed Whelan at NRO:

It’s now being widely reported that later this morning President Obama will announce his decision to nominate Elena Kagan to the Supreme Court.  Drawing on my many previous posts, I offer some initial comments on a Kagan nomination:

1.  I have plenty of respect for Kagan’s intellect and ability, and she deserves considerable credit for her tenure as dean of Harvard law school, including for her generous treatment of conservatives, which has earned her considerable goodwill.  But …

2.  Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more.  In addition to zero judicial experience, she has only a few years of real-world legal experience.  Further, notwithstanding all her years in academia, she has only a scant record of legal scholarship.  Kagan flunks her own “threshold” test of the minimal qualifications needed for a Supreme Court nominee.

3.  There is a striking mismatch between the White House’s populist rhetoric about seeking a justice with a “keen understanding of how the law affects the daily lives of the American people” and the reality of the Kagan pick.  Kagan is the consummate Obama insider, and her meteoric rise over the last 15 years—from obscure academic and Clinton White House staffer to Harvard law school dean to Supreme Court nominee—would seem to reflect what writer Christopher Caldwell describes as the “intermarriage of financial and executive branch elites [that] could only have happened in the Clinton years” and that has fostered the dominant financial-political oligarchy in America.  In this regard, Kagan’s paid role as a Goldman Sachs adviser is the perfect marker of her status in the oligarchy—and of her unfathomable remoteness from ordinary Americans.

4.  Kagan’s record thus manages to replicate the primary supposed defect of the judicial monastery—isolation from the real-world lives of ordinary Americans—without conferring the broader benefits of judicial experience.

5.  Kagan’s exclusion of military recruiters from the Harvard law school campus promises to draw considerable attention precisely because—as Peter Beinart, the liberal former editor of the New Republic, has written—it amounted to “a statement of national estrangement,” of Kagan’s “alienating [her]self from the country.”  In her fervent opposition to the Don’t Ask, Don’t Tell law and the Solomon Amendment, Kagan elevated her own ideological commitment on gay rights above what Congress, acting on the advice of military leaders, had determined best served the interests of national security.  At a time of war, in the face of the grand civilizational challenge that radical Islam poses, Kagan treated military recruiters worse than she treated the high-powered law firms that were donating their expensive legal services to anti-American terrorists.

6.  Kagan has argued that the Senate should carefully explore a nominee’s views on judicial philosophy generally and on hotly contested constitutional issues in particular.  Her argument has special force for someone who has been so guarded about her own views.  Indeed, its force is all the greater since Kagan has indulged her own ideological views in the one area, gay rights, in which she has been vocal:  as law school dean, Kagan embraced an utterly implausible reading of the Solomon Amendment, and as Solicitor General, she has acted to undermine the Don’t Ask, Don’t Tell law and the Defense of Marriage Act that she is dutybound to defend.

7.  Kagan shows signs of moderation on issues of presidential power and national security.  But there’s no basis for hopes that she might secretly harbor conservative legal views on other matters.

8.  Kagan’s records from her White House years in the Clinton administration promise to offer important insights into her legal thinking.  It makes no sense to schedule her confirmation hearing until it’s clear when those records will be made available.

Paul Campos at The Daily Beast:

What basis will either the Senate or the American people have for deciding whether the 49-year-old Kagan should spend decades as one of the most powerful people in our government? Kagan has never been a judge, which makes it all the more imperative that her published work should provide us with plenty of information about what sort of a justice she would be. Yet in the course of nearly 20 years in legal academia she has written very little, and what she has written provides almost no clues to her beliefs regarding important legal issues, or her views more generally about how judges ought to go about interpreting the law.

Even more disturbingly, we have very little evidence about Kagan’s politics. Supporters and detractors have been reduced to searching through 30-year-old issues of the Princeton student newspaper to dig up political statements Kagan made as a teenager, since she has somehow managed to spend her entire professional career cycling between the highest levels of legal academia and the federal government without taking a public stand on almost any controversial issue.

Indeed, it’s no exaggeration to say that the only real basis we have for making any judgment about Kagan’s current political beliefs is that she has a lot of liberal friends in high places–most notably Bill Clinton and Barack Obama, who both hired her to work in their administrations. Now the naïve response to this is to claim that Kagan’s political beliefs don’t matter because it’s merely her job to interpret the law–to call balls and strikes rather than to invent the rules of the game, in Chief Justice John Roberts’ wildly disingenuous metaphor. (It will be interesting to see whether Kagan is willing to do anything other than utter empty platitudes at her own confirmation hearing, especially given that in a 1995 book review she pointed out, accurately enough, that such hearings have become “vapid and hollow charade,” because a nominee is not required to “reveal what kind of Justice she would make, by disclosing her views on important legal issues.”)

Grownups understand that a Supreme Court justice’s politics are by necessity a crucial factor in how he or she goes about interpreting the law, since difficult questions of legal interpretation are inherently political. Certainly conservatives understood this when they opposed the nomination of Harriet Miers: Their primary objection to her had nothing to do with whether she was “qualified” for the position, but rather with the fact that, just like Kagan, she had practically no public record. The argument for Miers came down to the claim that conservatives should simply trust George W. Bush to make these kinds of decisions. This is exactly the same argument that political progressives are now being asked to accept in regard to Kagan: that they should trust Barack Obama.

William Jacobson at Legal Insurrection;

In the course of her nomination for Solicitor General, Kagan filled out questionnaires on a variety of issues. While she bobbed and weaved on many issues, with standard invocations of the need to follow precedent and enforce presumptively valid statutes, on the issue of same-sex marriage Kagan was unequivocal.

In response to a question from Sen. John Cornyn (at page 28 of her Senate Judiciary Questionnaire), Kagan stated flat out that there was no constitutional right for same sex couples to marry (emphasis mine):

1. As Solicitor General, you would be charged with defending the Defense of Marriage Act. That law, as you may know, was enacted by overwhelming majorities of both houses of Congress (85-14 in the Senate and 342-67 in the House) in 1996 and signed into law by President Clinton.

a. Given your rhetoric about the Don’t Ask, Don’t Tell policy—you called it “a profound wrong—a moral injustice of the first order”—let me ask this basic question: Do you believe that there is a federal constitutional right to samesex marriage?

Answer: There is no federal constitutional right to same-sex marriage.

b. Have you ever expressed your opinion whether the federal Constitution should be read to confer a right to same-sex marriage? If so, please provide details.
Answer: I do not recall ever expressing an opinion on this question.This doesn’t mean that Kagan opposes gay marriage. But she clearly believes it is a matter for the political process, not a constitutional right.

While it is not clear what view the other Justices have, it is likely that a Kagan on the Court will put an end to any ultimate chance of success in the federal lawsuit lawsuit filed by David Boies and Ted Olson to have California Prop. 8 declared unconstitutional.

Reasonably assuming the four conservative judges share Kagan’s view, there now will be a definite majority on the Court against recognizing a constitutional right to gay marriage.

Jeffrey Toobin at The New Yorker:

I should make a disclosure. I met Elena on our first day of law school at Harvard in the fall of 1983. We were introduced by a mutual friend, and we were assigned to the same section—the group of a hundred and forty or so students who took our first-year classes together. Elena and I and two other students (joined occasionally by others) formed a study group, and we worked together for the entire year. In our second and third years, we were on law review together. When she ran for president of the law review, I was a sort of unofficial campaign manager for her. She finished second.

Elena danced at our wedding in 1986. When my wife, Amy, and I bought our first apartment, Elena’s father was our lawyer; he had a small real estate law firm in New York. (He died in 1994.) When Elena’s mother died last year, I sat shiva with the family in the apartment where she grew up on the West Side.

We are old friends. So my initial reaction to her nomination is a simple one: happiness for her. As I cover her nomination, and, if she is confirmed (as she likely will be) her career on the Court, readers should know this history and decide what difference, if any, it makes. For starters, from now on, I’ll be calling her Kagan, not Elena.

So what’s she like? Smart, self-confident, funny. Even in law school, which was full of highly intelligent people (just ask them), Kagan stood out from the start as one with a formidable mind. She’s good with people. At the time, the law school was a politically charged and divided place. She navigated the factions with ease, and won the respect of everyone. Almost three decades later, those qualities were much in evidence during her famously successful tenure as dean of Harvard Law School.

All of this may be interesting, but it’s largely beside the point for a Supreme Court Justice. The justices are not really managers of people, certainly not in comparison to the dean of a major law school. Judgment, values, and politics are what matters on the Court. And here I am somewhat at a loss. Clearly, she’s a Democrat. She was a highly regarded member of the White House staff during the Clinton years, but her own views were and are something of a mystery. She has written relatively little, and nothing of great consequence.

As it happens, this weekend I was finishing “The Bridge,” the new biography of Obama by David Remnick, our boss here at the magazine. Since Kagan’s nomination was imminent, I was struck by certain similarities between the President and his nominee. They are both intelligent, of course, but they also share an ability to navigate among factions without offending anyone. Remnick’s Obama is very… careful. He takes no outlandish stands or unnecessary risks. He is an exquisite curator of his own career. All of this is true of Kagan as well.

But on the Court, Kagan will have to do something she’s not done before. Show her hand. Develop a clear ideology. Make tough votes. I have little doubt she’s up to the job, but am less clear on how she’ll do it.

Glenn Greenwald:

One final thought about Kagan for now.  As I said from the beginning, the real opportunity to derail her nomination was before it was made, because the vast majority of progressives and Democrats will get behind anyone, no matter who it is, chosen by Obama.  That’s just how things work.  They’ll ignore most of the substantive concerns that have been raised about her, cling to appeals to authority, seize on personal testimonials from her Good Progressive friends, and try to cobble together blurry little snippets to assure themselves that she’s a fine pick.  In reality, no matter what they know about her (and, more to the point, don’t know), they’ll support her because she’s now Obama’s choice, which means, by definition, that she’s a good addition to the Supreme Court.  Our politics is nothing if not tribal, and the duty of Every Good Democrat is now to favor Kagan’s confirmation.  Conservatives refused to succumb to those rules and ended up with Sam Alito instead of Harriet Miers, but they had a much different relationship to George Bush than progressives have to Obama (i.e., conservatives — as they proved several times late in Bush’s second term [Miers, immigration, Dubai Ports] — were willing to oppose their leader whey they disagreed).  The White House knows that progressives will never try to oppose any important Obama initiative, and even if they were inclined, they lack the power to do so (largely because unconditional support guarantees impotence).

All that said, I’ve said everything I had to say about Kagan in the pre-nomination process in order to enable as informed a public discussion as possible, and am not going to endlessly repeat those criticisms now just for the sake of doing so.  Perhaps the confirmation process, for once, will yield some valuable information about the nominee and we’ll acquire at least some insight into how she thinks and what her judicial values and methods will be.  I’m willing to keep an open mind.  NPR’s Nina Totenberg yesterday uncovered (or was provided) a relatively encouraging piece of evidence that no public commentators (including me) had previously discovered:  a 2005 letter co-signed by Kagan which opposed a proposal by Lindsey Graham to strip “War on Terror” detainees of the right to habeas corpus on the ground that the proposal was a violation of core American principles (that provision was ultimately included in the Military Commissions Act and struck down in 2008 by a 5-4 Supreme Court as unconstitutional).

The most important point to note about Kagan now is the one highlighted this weekend by Talk Left’s Armando, as first reported by The Los Angeles Times:  in 1995, Kagan condemned the Supreme Court confirmation process as “a vapid and hollow charade” and an “embarrassment,” arguing that Senators should “insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues.”  Kagan should absolutely be held to her own position in that regard.  Her argument that nominees should be compelled to answer such questions was absolutely right, and that’s especially applicable to Kagan in light of her own glaring lack of a real record on virtually everything.  She ought to be held to her own position and “reveal what kind of Justice she would make” and “disclose her views on important legal issues.”  I’m certainly willing to listen if she does that and then make a rational assessment of her based on those answers.  Anyone wanting to form a rational choice should demand that she do the same.

Adam Serwer at Tapped:

Nina Totenberg points to a 2005 letter that arguably holds more weight in revealing Elena Kagan‘s views of executive power than her brief exchange with Sen. Lindsey Graham during her confirmation hearing:

In a 2005 letter to Sen. Patrick Leahy, Kagan and three other deans of major American law schools, wrote to oppose legislation proposed by Sen. Lindsey Graham (R-SC) to strip the courts of the power to review the detention practices, treatment and adjudications of guilt and punishment for detainees at Guantanamo Bay, Cuba.”To put this most pointedly,” the letter said, “were the Graham amendment to become law, a person suspected of being a member of al-Qaeda could be arrested, transferred to Guantanamo, detained indefinitely … subjected to inhumane treatment, tried before a military commission and sentenced to death without any express authorization from Congress and without review by any independent federal court. The American form of government was established precisely to prevent this kind of unreviewable exercise of power over the lives of individuals. ”

“When dictatorships have passed” similar laws, said the deans, “our government has rightly challenged such acts as fundamentally lawless. The same standard should apply to our own government.”

The letter continues:

We cannot imagine a more inappropriate moment to remove scrutiny of Executive Branch treatment of noncitizen detainees. We are all aware of serious and disturbing reports of secret overseas prisons, extraordinary renditions, and the abuse of prisoners in Guantanamo, Iraq and Afghanistan. The Graham Amendment will simply reinforce the public perception that Congress approves Executive Branch decisions to act beyond the reach of law. As such, it undermines two core elements of the rule of law: congressionally sanctioned rules that limit and guide the exercise of Executive power and judicial review to ensure that those rules have in fact been honored.There are only four signatories, so it’s not as though Kagan would have gone unnoticed in a sea of other names. Stanford Law School Dean Larry Kramer, Dean of the Georgetown University Law Center T. Alexander Aleinikoff, and then-Yale Law School Dean Harold Koh.

[…]

This letter is not a record. To borrow Goldstein’s metaphor, this is a thin reed to hang an assessment of how a Justice Kagan might rule on such issues in the future. The fact that Kagan avoided commenting on many of the most controversial issues of her day makes her a gamble, although I suppose it means something that — given her relative silence — she chose to comment on this one. At the same time, one assumes that if these kinds of issues really did matter, she would have spoken up far more than she did.You also gotta wonder … given that much of the liberal criticism of Kagan has centered around this issue, why wasn’t the White House passing this letter around?

Bill Kristol at The Weekly Standard:

For me, the key obstacle to Elena Kagan’s confirmation is pt. 5 in Ed Whelan’s NRO post, which is also the question raised by Peter Berkowitz in these pages several years ago and by Peter Beinart just recently: Her hostility to the U.S. military.

Hostility? Isn’t that harsh? Kagan has professed at times her admiration for those who serve in the military, even as she tried to bar military recruiters from Harvard Law School. But how does one square her professed admiration with her actions–embracing an attempt to overturn the Solomon Amendment that was rejected 8-0 by the Supreme Court–and her words?

Consider these words in particular from her letters to “All Members of the Harvard Law School Community”: On Oct. 6, 2003, Kagan explained that she abhorred “the military’s discriminatory recruitment policy….The military’s policy deprives many men and women of courage and character from having the opportunity to serve their country in the greatest way possible. This is a profound wrong — a moral injustice of the first order.” On Sep. 28, 2004: “…the military’s recruitment policy is both unjust and unwise. The military’s policy deprives…” etc. And on March 7, 2006: “I hope that many members of the Harvard Law School community will accept the Court’s invitation to express their views clearly and forcefully regarding the military’s discriminatory employment policy. As I have said before, I believe that policy is profoundly wrong — both unwise and unjust…,” etc.

Notice, time and again: “the military’s discriminatory recruitment policy,” “the military’s policy,” “the military’s recruitment policy,” “the military’s discriminatory employment policy.”

But it is not the military’s policy. It is the policy of the U.S. Government, based on legislation passed in 1993 by (a Democratic) Congress, signed into law and implemented by the Clinton administration, legislation and implementation that are currently continued by a Democratic administration and a Democratic Congress. It is intellectually wrong and morally cowardly to call this the “military’s policy.” Wrong for obvious reasons. Cowardly because it allowed Kagan to go ahead and serve in the Clinton administration that enforced this policy she so detests, and to welcome to Harvard as Dean former members of that administration, as well as Senators and Congressmen who actually voted for the law–which is more than the military recruiters whom Kagan sought to ban did.

Fido’s Bark Sounds Suspiciously Like “Activist Judges!”

Heather Horn at The Atlantic:

Robert Stevens of Virginia made videos about pit bull fights. He was prosecuted under a law banning depictions of animal cruelty–“a 1999 law intended,” in the words of the Associated Press, “to limit Internet sales of so-called crush videos, which appeal to a certain sexual fetish by showing women crushing to death small animals with their bare feet or high-heeled shoes.”

On Tuesday, the Supreme Court struck down that law, ruling that in its “overbreadth” the law violated the First Amendment right to free speech.  Of course, the Supreme Court isn’t declaring animal cruelty legal–there are still plenty of state laws banning such cruelty. But the effective re-legalization of animal-cruelty videos is sure to upset animal rights groups. So what was the court thinking? Here’s a summary of the developments, in which all but one of the justices decided this law went too far.

• Why This Law in Particular Is Unconstitutional Determining which categories of speech can and can’t be banned, argues Chief Justice Roberts for the court, should not be a matter of cost-benefit analysis: “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.” The court decided child pornography was exempt from First Amendment protection only because, in that case, “the market for child pornography was ‘intrinsically related’ to the underlying abuse.” Though one might argue that the market for crush videos is similarly related to the underlying abuse, this law forbids far more than crush videos.

However “growing” and “lucrative” the markets for crush videos and dogfighting depictions might be … they are dwarfed by the market for other depictions, such as hunting magazines and videos, that we have determined to be within the scope of [the law in question]. We therefore need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional. We hold only that [this law] is not so limited but is instead substantially overbroad, and therefore invalid under the First Amendment.

• That’s Ridiculous This ruling, writes Justice Alito in dissent, “has the practical effect of legalizing the sale of such videos and is thus likely to spur a resumption of their production.” The case under discussion is about dogfighting, and the courts should be deciding “whether the videos that respondent sold are constitutionally protected.” But even if the courts do feel the need to rule on the question of the law’s “overbreadth,” he still doesn’t think this law “bans a substantial quantity of protected speech.”

SCOTUSBlog:

While the Court conceded that Congress had passed the law to try to stop interstate trafficking in so-called “crush videos,” showing the actual killing of cats, dogs and other small animals by stomping or other intensely cruel methods, it said the resulting law itself reached far more than that kind of portrayal.  Limiting the law’s reach to those depictions, the opinion said, would require the Court to give “an unrealistically broad reading” to the exceptions Congress wrote into the law.

As written, the Court said, the law “creates a criminal prohibition of alarming breadth.”  Noting that the government had given assurances that it would enforce the law only against commercial portrayals of “extreme cruelty,” the Chief Justice wrote that the Court would not uphold an unconstitutional law “merely because the government promises to use it responsibly.”

The Justice Department had defended the law by arguing that portrayals of animal cruelty, as a group, simply had no protection at all under the First Amendment, in the same way that obscenity, libel and fraud are unprotected.  The Court rejected that argument, saying that the 1999 law regulates expression of the basis of its content, its message. That makes the law invalid under the First Amendment, the Court said, unless the government can overcome that presumption.

Roberts wrote: “The Government proposes that a claim of categorical exclusion should be considered under a simple balancing test: ‘Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”  Calling that “a free-floating test for First Amendment coverage” and a “highly manipulable balancing test,” the Chief Justice said the test was “startling and dangerous.  The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative costs and benefits.  The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.  Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

Recalling its precedent putting child pornography outside the First Amendment, the opinion said that the Court had done so because the depictions of such pornography was necessarily linked to actual abuse of children in the production of such materials.  That approach, and other cases discussing what the First Amendment does not protect, the Court added, “cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”  While there may be some categories of speech not yet identified that could be placed outside the First Amendment, “there is no evidence that ‘depictions of animal cruelty’ is among them,” the Court said.

The Court then went on to analyze the 1999 law under traditional First Amendment principles, and found it went too far.  The law makes it a crime, with up to five years in prison, to make, seell or possess a “depiction of animal cruelty,” if any of those acts is done for commercial gain.  It defines “animal cruelty” depiction as one in which a living animal “is intentionally maimed, mutilated, tortured, wounded, or killed,” provided that the action violates a federal or state law.  The law says that it does not apply to depictions if they have “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”

American Constitution Society

Ed Morrissey:

The problem, as QandO’s Bruce McQuain also notes, is that the act of filming is neither violent nor criminal.  The actual violent act should result in prosecution for those who committed it, including the videographer if he was part of a conspiracy to commit illegal and inhumane acts against animals.  The videotape would make a crucial and strong piece of evidence for trial.  However, criminalizing the acts of videotaping and publishing puts other kinds of publication at risk — for instance, videos of legal hunting, among other things, or even publication of cruel acts as a means of exposing and stopping them.

However, that’s an argument that also cuts both ways.  Laws against child pornography specifically target the act of photography and publication.  The laws do not specify that a separate act of molestation or rape occur for prosecution — and most people would agree that it shouldn’t require such a basis.  Just the act of possession can result in long jail times and a lifelong identification as a sex offender.  Using the logic of this decision, wouldn’t it tend to undermine the basis for those laws as well?

Of course, the government didn’t help its case by failing to prosecute anyone under the intended purpose of the law, the purveying of “crush videos.”  The law has been in existence for eleven years, apparently resulting in no trials at all.  One has to wonder why Congress bothered to pass the law at all instead of just leaving the jurisdiction to the local and state authorities for cruelty to animals, except that it was obviously an attempt by Congress to create an artificial crisis just to look responsive to it.

Ann Althouse:

Good. This doesn’t — of course — mean that you can’t punish acts of cruelty to animals.

Balk at The Awl:

Crush videos—films in which attractive women smush small animals under their heels—are once again legal after the Supreme Court struck down a law preventing the depiction of animal cruelty. (Animal cruelty itself is still illegal in many places.) The Court, in a 8-1 decision, found the law to be an overly broad restriction that violates the First Amendment.

UPDATE: Stanley Fish at NYT

Will at The League

That’s $100 On Or Against Elena Kagan, We Aren’t Sure

SCOTUSBlog, before the announcement of the Stevens retirement:

So, here is how I expect the next few months to play out.  In the spring, Justice Stevens will announce his retirement.  In May or June, the President will nominate Elena Kagan.  Explaining that her paper record is a thimble-full of Sonia Sotomayor’s, Senator Leahy will schedule hearings and Senator Reid will schedule a floor vote before the summer recess.  The only theme that will give opponents any success is that she fails to express her views on anything.  She will then be confirmed by a vote of 61 to 39.  Ok, that last prediction about the exact vote could be off by a bit, but I feel pretty confident about everything else.

Stephanie Woodrow at Main Justice before the announcement:

In a National Public Radio interview Monday, [Jeffrey] Toobin predicted that Solicitor General Elena Kagan will replace the 89-year-old judge after he retires, possibly at the end of the current term in June 2010.

“They [the Obama administration has] very much suspected that a vacancy is imminent and I think they do have a candidate in mind and frankly I think I know who it is. I think it’s going to be Elena Kagan, the current solicitor general and the former dean of Harvard Law School,” Toobin said.

He continued, “She has a reputation as a consensus builder. She is someone who brought vigorously fighting factions at Harvard together. She worked in the Clinton administration and had good relationships with Republicans in Congress at the time. She has never been a judge, which I think is a point in her favor for Obama. There are all former judges on the court now, and I think Obama wants people of more different backgrounds. So I think she’s the likely choice.”

Ed Whelan at NRO (again before the announcement):

If (as I expect) there is a Supreme Court vacancy soon, one big question that will affect the political dynamic over the White House’s selection of a nominee is whether the Left will mount vigorous and effective opposition to the possible nomination of Solicitor General Elena Kagan.  It is a remarkable testament to the perceived political impotence of the Left that everyone seems to take for granted that the answer to that question is no.

Let me make clear at the outset that the question I am posing is not whether the Left would oppose confirmation of Kagan after she has been nominated.  It is instead whether the Left would exert any sway in stopping Kagan from being nominated in the first place.

Let’s briefly review some of the reasons why the Left would not be happy with a Kagan nomination.  (These do not add up to compelling reasons why conservatives should be happy with a Kagan nomination, but that’s a matter for another post.)

First, the Left is hungry for a liberal lion who will use the confirmation hearing to make a compelling public case for the so-called “progressive” vision of constitutional interpretation.  Its hunger is all the greater after last year’s confirmation hearing in which now-Justice Sonia Sotomayor demoralized and disgusted her supporters by trying to disguise herself as a judicial conservative.

Second, far from being a liberal lion, Kagan has (as these New York Times articles put it) “provided few clues about where she stands on the great legal issues of the day” and has established a “reputation for finding the middle on difficult legal and political issues.”  (One notable exception to her cryptic record is the topic of gay rights, where Kagan has supplemented her academic record of extremist rhetoric and utterly implausible legal analysis by subverting, in her SG capacity, the Don’t Ask, Don’t Tell law and the Defense of Marriage Act.)

Third, on issues of executive power and national security, Kagan is far from the Left.  For example, as the second of the hyperlinked NYT articles notes, at her confirmation hearing for Solicitor General, there was “no daylight” between Kagan and Republican senators on “the president’s broad authority to detain enemy combatants.”  (See more examples in this previous post of mine.)

Fourth, in her briefing of the Citizens United campaign-finance case, Kagan abandoned the actual hard-Left rationale of the Court’s 1990 ruling on corporate-speech restrictions in Austin v. Michigan State Chamber of Commerce and thus paved the way for the conservative Court majority to overrule Austin in Citizens United.

Fifth (and much to her credit in my eyes), Kagan has displayed genuine admiration and appreciation for Justice Scalia as well as a liberality of spirit towards conservative law professors and students at Harvard.

Sixth, if she were to make the transition from SG to the Supreme Court, Kagan would face extraordinary recusal obligations during her initial two or three years on the Court, with those recusal obligations disproportionately concentrated in matters of importance to the Obama administration.  Among other things, Kagan would have to disqualify herself from all cases in which she authorized an appeal from an adverse district-court ruling (and virtually all appeals from adverse district-court rulings require SG approval).  She would also likely have to disqualify herself from challenges to legislation supported by the Obama administration (including, if it is enacted, Obamacare) if she offered pre-enactment advice on the legal questions at issue.  In the event that the other eight justices were divided, her recusal would mean that conservative results in the courts below would stand.  Perhaps more importantly, Justice Kennedy might well be much more open to the conservative approach in such cases, precisely in order to avoid an unproductive deadlock.

Richard Hasan in Slate:

Before turning to the 2012 ramifications, let’s clear the brush about the nomination to replace Justice Stevens. Barring a bombshell, there will be no filibuster. Democrats and Republicans have mastered the Kabuki dance: The president picks a nominee who has been cautious enough on contested social issues so as not to be plausibly characterized as outside the mainstream. Senators from the opposition party complain that the nominee has not been forthcoming, or is ideologically radical; staff digs for dirt on the nominee’s past but finds none. Senators from the president’s party rally around the nominee. During the confirmation hearings, the nominee gives milquetoast, noncommittal answers, and comes across as likeable enough with a heartfelt personal narrative. The opposing senators decline to filibuster. The nominee joins the court.

So it has been with Roberts, Alito, and Sotomayor, and so it probably will be the next nominee. Democrats need only one Republican senator to avert at filibuster, and they will find Sen. Orrin Hatch of Utah or Sen. Olympia Snowe of Maine (and probably a bunch more) likely to allow a vote on a competent nominee who has stayed out of trouble. Republicans found enough Democrats to block a filibuster of Justice Alito, and his nomination actually moved the court to the right. This nomination won’t move the court to the left at all.

Given the steps of the Kabuki dance, it is no wonder that Solicitor General Elena Kagan is one of the supposed frontrunners for the Stevens seat. She has a stellar résumé, and conservatives have found almost nothing to criticize in her record on abortion or gun rights. (She may well be a reliable liberal vote on these issues, but there won’t be a long enough paper trail on these controversial issues to scuttle her.) The one potential wrinkle is her support of gay rights, but these days, that issue hardly seems enough to stop her nomination.

Steve Benen:

The panel on “Fox News Sunday,” not surprisingly, explored the upcoming nomination of a new Supreme Court justice, prompting some odd observations from Bill Kristol.

His analysis started out sounding fairly reasonable. Kristol said President Obama would likely choose a nominee “who’s got high, you know, very hard-to-challenge credentials, and I think that’ll be Solicitor General Kagan.”

He then proceeded to urge Republicans to challenge the hard-to-challenge prospective nominee.

“…I think, for example, Kagan would be a very respectable choice. But nonetheless, I think most Republicans would oppose her and, honestly, should oppose her, with respect and with deference to her, you know, impressive academic credentials, because she will be a reliable liberal vote, and I think Republicans should want to have a serious debate on the Constitution.”

Soon after, Kristol concluded, “I endorse Elena Kagan.”

I see. So, to review, Kristol thinks Solicitor General Elena Kagan has “very hard-to-challenge credentials” and would be a “very respectable choice” for the high court. He also thinks Senate Republicans should fight against her, if she’s nominated, because she isn’t conservative enough.

And then to top it off, Kristol “endorsed” Kagan’s nomination.

David Weigel:

Might I suggest that he really thinks Kagan is a very respectable choice? Kristol’s magazine, The Weekly Standard, has occasional meet-and-greets with the likes of Supreme Court justices. That’s common practice for Washington conservative magazines — the American Spectator has regular dinners with power players, too. And from what I’ve heard, since Kagan became solicitor general, Justice Antonin Scalia has beamed about how smart she is. Fairly or unfairly, conservatives don’t think that Justice Sonia Sotomayor has the pull with her colleagues to break the 5-4 conservative majority on important cases. They do think that Kagan could do this.

Glenn Greenwald:

Beyond the disturbing risks posed by Kagan’s strange silence on most key legal questions, there are serious red flags raised by what little there is to examine in her record.  I’ve written twice before about that record — here (last paragraph) and here — and won’t repeat those points.  Among the most disturbing aspects is her testimony during her Solicitor General confirmation hearing, where she agreed wholeheartedly with Lindsey Graham about the rightness of the core Bush/Cheney Terrorism template:  namely, that the entire world is a “battlefield,” that “war” is the proper legal framework for analyzing all matters relating to Terrorism, and the Government can therefore indefinitely detain anyone captured on that “battlefield” (i.e., anywhere in the world without geographical limits) who is accused (but not proven) to be an “enemy combatant.”

Those views, along with her steadfast work as Solicitor General defending the Bush/Cheney approach to executive power, have caused even the farthest Right elements — from Bill Kristol to former Bush OLC lawyer Ed Whelan — to praise her rather lavishly.  Contrast all of that with Justice Stevens’ unbroken record of opposing Bush’s sweeping claims of executive power every chance he got, at times even more vigorously than the rest of the Court’s “liberal wing,” and the risks of a Kagan nomination are self-evident.

The only other real glimpse into Kagan’s judicial philosophy and views of executive power came in a June, 2001 Harvard Law Review article (.pdf), in which she defended Bill Clinton’s then-unprecedented attempt to control administrative agencies by expanding a variety of tools of presidential power that were originally created by the Reagan administration (some of which Kagan helped build while working in the Clinton White House), all as a means of overcoming a GOP-controlled Congress.  This view that it is the President rather than Congress with primary control over administrative agencies became known, before it was distorted by the Bush era, as the theory of the “unitary executive.”  I don’t want to over-simplify this issue or draw too much importance from it; what Kagan was defending back then was many universes away from what Bush/Cheney ended up doing, and her defense of Clinton’s theories of administrative power was nuanced, complex and explicitly cognizant of the Constitutional questions they might raise.

Still, the questions she was addressing were the crux of the debate back then over the proper limits of executive authority, and the view she advocated was clearly one that advocated far more executive power than had been previously accepted.  Kagan’s 2001 law review article is what led to this from The Boston Globe when Kagan was nominated for Solicitor General:

“She is certainly a fan of presidential power,” said William F. West, a professor who specializes in federal administration at the Bush School of Government and Public Service at Texas A&M.

Similarly — and very revealingly — even the moderate Neal Katyal, now Kagan’s Deputy, emphatically criticized Kagan’s theories in that law review article as executive overreach and even linked them to the Bush/Cheney executive power seizures.  Katyal wrote in a June, 2006 article in The Yale Law Journal (.pdf; emphasis added):

Such claims of executive power are not limited to the current administration, nor are they limited to politicians.  Take, for example, Dean Elena Kagan’s rich celebration of presidential administration.  Kagan, herself a former political appointee, lauded the President’s ability to trump bureaucracy. Anticipating the claims of the current administration, Kagan argued that the President’s ability to overrule bureaucrats “energize[s] regulatory policy” because only “the President has the ability to effect comprehensive, coherent change in administrative policymaking” . . . .

Assaulted by political forces, the modern agency is a stew of presidential loyalists and relatively powerless career officials. To this political assault comes an academic one as well, with luminaries such as Elena Kagan celebrating presidential administration an unitary executivists explaining why such theories are part of our constitutional design. This vision may work in eras of divided government, but it fails to control power the rest of the time.

As Katyal noted, Kagan relied upon the warning from Alexander Hamilton about a “feeble executive” that was beloved by Bush/Cheney legal theorists, and she hailed “strong, executive vigor.”  On the legal spectrum, Kagan clearly sits on the end of strong assertions of executive authority — perhaps on the far end, almost certainly much further than where Stevens falls.  It’s perhaps unsurprising that a President — such as Barack Obama — would want someone on the Supreme Court who is quite deferential to executive authority.  But given that so many of the most important legal and Constitutional disputes center on the proper limits of executive power (including ones that remain to be decided from the Bush era), and that Kagan and her rulings will likely long outlast an Obama presidency (i.e., any pro-executive-power decisions she issues will apply to future George Bushes and Dick Cheneys), shouldn’t these pro-executive-power views, by themselves, prompt serious reservations (if not outright opposition) among progressives?

Kagan’s record on social issues will likely be perfectly satisfactory, even pleasing, to most progressives.  She is, by all appearances, solidly pro-choice and in favor of gay equality.  But even on domestic issues, serious questions have been raised about how progressive her views actually are, as exemplified by this New York Times profile from Eric Lichtblau last year examining Kagan’s prospects as a Supreme Court nominee:

“I want a Brennan or a Marshall, someone clearly on the liberal side,” said Michael Ratner, president of the Center for Constitutional Rights, referring to liberal court icons William J. Brennan and Thurgood Marshall.

“I don’t think Kagan is at that end of the liberal spectrum,” said Mr. Ratner, whose nonprofit legal group has helped lead the push for greater legal protections for prisoners at Guantánamo Bay. “Why they would put someone in who might not be a liberal anchor for the court is really bothersome, and I don’t see Kagan playing that role” . . . ..

Ms. Kagan first gained high-level notice as an aide in the Clinton White House, first as an associate counsel and then as deputy director of the Domestic Policy Council, working on issues like tobacco regulation, welfare reform, education, hate crimes and affirmative action.

“There were some important issues on which Elena took centrist or even center-right positions, but it was never clear whether she was pressing her own views or merely carrying water for her boss on the Domestic Policy Council, Bruce Reed,” said Christopher Edley Jr., who worked with Ms. Kagan at the White House and is now dean of the law school at the University of California, Berkeley.

And even on the issues where she has been impressive — such as her refusal to allow military recruiters to recruit at Harvard Law School due to their anti-gay discrimination — her record is ultimately rather muddled.  After preening around for years justifying her ban on military recruiters by decrying the military’s ban on gays as “a profound wrong — a moral injustice of the first order,” she quickly reversed that policy and allowed military recruiters onto campus after the Federal Government threatened to withhold several hundred million dollars in funds to Harvard (out of a $60 billion endowment).  One can reasonably argue that her obligation as Dean was to secure that funding for the school, but one can also reasonably question what it says about a person’s character when they are willing to flamboyantly fight against “profound wrongs” and “moral injustices of the first order” — only as long as there is no cost involved.

What makes the prospect of a Kagan nomination so disappointing is that there are so many superior alternatives — from the moderately liberal and brilliant 7th Circuit Judge Diane Wood and former Georgia Supreme Court Chief Justice Leah Ward Sears to the genuinely liberal Harold Koh (former Yale Law School Dean and current State Department counselor) and Stanford Law Professor Pam Karlan.  If progressives aren’t willing to fight Obama for the Supreme Court, what are they willing to fight him for?

UPDATE: Tom Goldstein at SCOTUSBlog

Sam Stein at Huffington Post

Glenn Greenwald

Adam Serwer at Tapped

UPDATE #2: Lawrence Lessig at Huffington Post

More Greenwald

UPDATE #3: Greenwald and David Frum at Bloggingheads

All The People With A Last Name Beginning With S, Stand In Line To Receive Your Retirement Watch

Adam Liptak at The New York Times:

Justice John Paul Stevens, who announced his resignation from the Supreme Court on Friday after 34 years, may be the last justice from a time when ability and independence, rather than perceived ideology, were viewed as the crucial qualifications for a seat on the court. He was nominated by President Gerald R. Ford in 1975, who said all he wanted was “the finest legal mind I could find.”

Justice Stevens was confirmed 19 days after his nomination. Though Roe v. Wade had been decided two years earlier, he was asked no questions about the decision, which identified a constitutional right to abortion. His confirmation hearings were the last not to be broadcast live on television.

Justice Stevens, a Republican, gradually became the leader of the court’s liberal wing, and his majority opinions limited the use of the death penalty and expanded the rights of prisoners held at Guantánamo Bay, Cuba. Over time, he became increasingly skeptical of claims of government power, and he often voted in favor of criminal defendants, prisoners and people claiming to have been subjected to unlawful discrimination.

SCOTUSBlog:

Closing one era and opening another, Justice John Paul Stevens notified President Obama on Friday that he will retire from the Court when the current Term ends, probably late in June.  Stevens made his decision public eleven days before he reached his ninetieth birthday, and about two years short of a date on which he would have become the longest serving justice in history.  Justice Stevens’ letter to the president is here.

Stevens chose to make his retirement effective at the end of the Term, rather than waiting until a successor has been named by the president and approved by the Senate.  That choice puts much heavier pressure on both the president and the Democratic leaders of the Senate, because they will not have time to stretch out the process and have a new justice in place when the Court returns for its next term on October 4.

With Friday’s development, the Court was poised for a generational shift, ending its last remaining link to the days of liberal dominance of the tribunal, and, at the same time, removing from the bench the most committed liberal remaining among the nine.

Stevens, who began his career as a mostly unpredictable centrist on a liberal Court, migrated to the Court’s left over the years as new justices moved the Court noticeably to the right.  Stevens has been on the Court since 1975, arriving to serve with such liberal giants as Justices William J. Brennan and Thurgood Marshall.

It has been rumored for weeks that this would be Stevens’ last Term as a justice, but he had largely kept his own counsel until recently, when he began discussing publicly the possibility that he would soon retire.  He had made it clear in recent interviews with news reporters that he intended to leave the Court while President Obama was in the White House, and that gave him the option of continuing to serve for two-plus more years.

It is almost universally expected that Republicans in the Senate, although a minority, will announce a sustained effort to prevent Senate approval of any nominee that President Obama sends up for confirmation.  Sensing that they have a chance of increasing their numbers in the Senate, the GOP minority there may even make an effort to delay the coming confirmation process until after a new election is held on November 2.

Steve Benen:

Stevens’ departure from the high court will mark the end of an era: he is the last justice to have served in World War II, lived through Prohibition, and was around for the start of the Great Depression.

In terms of the Supreme Court’s stark ideological divisions, it’s unlikely that Stevens’ retirement will change the makeup of the bench — despite having been nominated by a Republican president (Ford), Stevens is one of the high court’s most reliably liberal votes. President Obama, who Stevens praised in recent interviews, will almost certainly replace Stevens with another progressive voice, keeping the center-left bloc with four votes (joining Ginsburg, Breyer, and Sotomayor).

Paul Mirengoff at Powerline:

The announcement is hardly a surprise, and we (among many others) have been speculating for months about who will replace him.

The three names one hears most often are Elena Kagan (currently the Solicitor General) and appellate court judges Diana Wood (7th Circuit) and Merrick Garland (D.C. Circuit). Kagan is considered the most likely nominee; Garland, I believe, would be the best of the three.

Daniel Foster at NRO:

The White House has said they will make an announcement ” in the coming weeks,” from a list that includes about 10 names. There will surely be some leftovers from the Sotomayor short-list. So beginning, roughly, with the center-most candidate and moving left, that list likely includes:

Merrick Garland –  a former federal prosecutor and current D.C. Circuit appeals judge. A Clinton appointee, Garland is well-liked by Democrats and even some Republicans in the Senate.

Elena Kagan – The first-female Solicitor General and probably first-runner-up for the Sotomayor seat, Kagan has a record of the kind of cagey jurisprudence that is ideal for a tough confirmation battle. She is well-respected by just about everybody on both sides, but lacks the paper trail that would reveal just how far to the left she’d sit.

Diane Wood – Another Clinton appointee, considered the heaviest liberal counterweight to the conservative Chicago Seventh Circuit Court of Appeals dominated by Richard A. Posner. Wood was a colleague of President Obama at the University of Chicago Law School.

Pamela Karlan – A professor at Stanford Law School, Karlan is a longshot once was described by the New York Times as a “snarky. . . Antonin Scalia for the left.” Karlan is openly gay, and an outspoken liberal.

“Would I like to be on the Supreme Court?” Ms. Karlan asked once asked during a Stanford graduation address. “You bet I would. But not enough to have trimmed my sails for half a lifetime.”

A longer list would include some Obama DOJ officials / liberal legal intellectuals like Harold Koh and Cass Sunstein. And the administration reportedly vetted a number of politicians for the Sotomayor spot that could be reconsidered here, including Homeland Security Secretary Janet Napolitano (“the system worked”), Sens. Byron Dorgan (D., N.D.) and Claire McCaskill (D., Mo.), and Michigan Governor Jennifer Granholm (D.)

My two cents: It’s Kagan or somebody nobody is even talking about.

Glenn Greenwald:

When President Obama chose Sonia Sotomayor to replace David Souter, that had very little effect on the ideological balance of the Court, because Sotomayor was highly likely to vote the way Souter did in most cases.  By stark contrast, replacing Stevens with Kagan (or, far less likely, with Sunstein) would shift the Court substantially to the Right on a litany of key issues (at least as much as the shift accomplished by George Bush’s selection of the right-wing ideologue Sam Alito to replace the more moderate Sandra Day O’Connor).  Just click on the links in the last paragraph here, detailing some of Kagan’s “centrist” (i.e., highly conservative) positions on executive power, civil liberties and Terrorism for a sense of how far to the Right she would be as compared to Stevens.

Over the past decade, the Court has issued numerous 5-4 decisions which placed at least some minimal constraints on executive power.  Stevens was not merely in the majority in those cases, but was the intellectual leader justifying those limits.  And he often went further in demanding due process and accountability for the Executive than even the “liberal” wing in general was willing to go — as exemplified by his joining Justice Scalia’s dissent in Hamdi, where the two unlikely allies both argued that the President could never detain U.S. citizens as “enemy combatants,” but instead must charge them with a crime (e.g., treason) and obtain a conviction in order to imprison them.

As Alliance for Justice President Nan Aron put it today:  Stevens was a “master tactician” who “emerged as one of the Court’s most vocal and eloquent spokespersons for individual liberties, separation of powers, and equal access to justice.”  Given Stevens’ status as the leader of the Liberal wing, The Nation‘s Ari Melber said today:  “With Justice Stevens retiring, it will take a nominee like Harold Koh just to maintain the Court’s status quo.”

The danger that we won’t have such a status-quo-maintaining selection is three-fold:  (1) Kagan, from her time at Harvard, is renowned for accommodating and incorporating conservative views, the kind of “post-ideological” attribute Obama finds so attractive; (2) for both political and substantive reasons, the Obama White House tends to avoid (with a few exceptions) any appointees to vital posts who are viewed as “liberal” or friendly to the Left; the temptation to avoid that kind of nominee heading into the 2010 midterm elections will be substantial (indeed, The New York Times‘ Peter Baker wrote last month of the candidates he said would be favored by the Left:  “insiders doubt Mr. Obama would pick any of them now“); and (3) Kagan has already proven herself to be a steadfast Obama loyalist with her work as his Solicitor General, and the desire to have on the Court someone who has demonstrated fealty to Obama’s broad claims of executive authority is likely to be great.

On to the next one, Mr. Stupak.

Marc Ambinder:

Rep. Bart Stupak (D-MI) plans to announce his retirement today, Democrats briefed on his decision said. Stupak, the leader of a pro-life faction within his party, had received death threats and was under intense political pressure after he agreed to support the Democratic health care reform legislation even though pro-life groups insisted that it would allow federal funds to be used for abortion.

Stupak negotiated a compromise with the White House, which resulted in President Obama’s issuing of an executive order clarifying the executive branch’s view of the subject. For that, Stupak was called a traitor to the pro-life cause. Stupak has represented Michigan’s first congressional district for 18 years. He will make public his decision at a press conference later today.

David Dayen at Firedoglake:

If you’re a politician not inclined to deliver under “intense political pressure,” you have no business being a politician. And if death threats were a factor in resigning, there pretty much wouldn’t be a member of the Democratic caucus left. Stupak sought the spotlight. He wanted to lead the pro-life Caucus and hijack the health care debate. He refused to quit even when he essentially won by getting the Nelson compromise, which functionally did about everything he wanted. He made the debate a living hell and went out of his way to punish half the US population. And in the end, everybody hated him, left and right. Well played.

Stupak’s district is swingy, but a lot of the top legislators in the area are Democrats. Right now, Connie Saltonstall is in the race, but I would expect a state legislator to get in. This Swing State diary has some potential names, including Senate Minority Leader Mike Prusi and State Rep. Mike Lahti. It sounds like Prusi would be the less conservative and more winnable option – and he happens to be pro-choice, which would be an interesting turnabout for a seat where Stupak said he was merely voting his district.

I can’t shed much of a tear for Bart Stupak. He put himself in the spotlight, then realized he didn’t like it.

UPDATE: Here’s Stupak’s full resignation statement to constituents. He pulled out the “spend more time with my family” form letter.

Ezra Klein:

But Stupak isn’t alone. If Sen. Ben Nelson was up for reelection this year, there’s a good chance he’d be retiring too. The two of them took the most damage during health-care reform, and for the same reason: They took a hostage and then accepted the ransom. And while that strategy might have worked in the past, it’s proven a disaster.

There were no end of legislators who didn’t like the bill — or didn’t want to vote for it — for one reason or another. But there were a very small group who used their ambivalence to elevate their public profile and strengthen their bargaining position. Nelson became a frequent guest on the Sunday shows, explaining how the bill wasn’t good enough and he wasn’t sure he could vote for it. He waited until the last minute, and then used all the anti-bill credibility he’d built to cut the best deal for his state: Free Medicaid expansion, in perpetuity.

The only problem was that his state didn’t care about Medicaid. Nelson had helped convince them this wasn’t a good bill, and now he was flip-flopping to support the monstrosity. Stupak followed a similar path: He spent months threatening to kill the thing and telling anyone who was listening that it would lead to taxpayer-funded abortions, and then flipped to support it. These flips were not necessarily unprincipled. Both Nelson and Stupak got real policy concessions. But they were unpopular. The left hated them for their preening ambivalence, the right for their eventual support.

Compare Nelson and Stupak to people such as Mark Warner or Brad Ellsworth, both of whom are moderate Democrats who had serious concerns about the bill, but who spent their time quietly getting those concerns addressed rather than using them to get TV bookings in advance of a high-profile deal. Nelson and Stupak made themselves into targets for both the left and the right, and ended the process with lots of notoriety but even more new enemies. Warner and Ellsworth haven’t suffered from the same backlash. The old model in which moderate Democrats justify their vote for a bill by talking trash about it until they get bought off doesn’t work in an environment where the media and the political opposition is waiting to pounce on the buy-off.

Michelle Malkin:

Stupak’s press conference statement was heavy on the Demcare cheerleading, silent on his pro-life views.

That was left to his wife, who introduced him by stating: “His word is his bond.”

A bond of Silly Putty.

Ann Althouse:

When you play a pivotal role in monumentally important legislation, you’d better face the public and justify what you did with the power they trusted you with. If you’re not up for that, we should read it as an admission that you did the wrong thing — without even the nerve to come out and say I’m sorry, I was wrong.