"Do you think he knows the rest of us are here?"

From Robert Barnes's front-page (with continuation inside) obit for Scalia in today's WaPo:

It is hard to overstate Justice Scalia's effect on the modern court. Upon his arrival, staid oral arguments before the justices became jousting matches, with Justice Scalia aggressively questioning counsel with whom he disagreed, challenging his colleagues and often dominating the sessions. He asked so many questions in his first sitting as a justice that Justice Lewis F. Powell Jr. whispered to Justice Thurgood Marshall: "Do you think he knows the rest of us are here?"

There is no doubt something or perhaps a lot to this, but I gathered from perusing the oral arguments in Brown v. Bd. in the mid-50s (in preparation for writing this post) that Justice Frankfurter also asked a lot of questions, occasionally pointed ones (actually I don't know how typical that was, but it was certainly evident in the Brown arguments). Here's an exchange between Frankfurter and John W. Davis (sorry, it's out of context, but anyway):

Justice Frankfurter: Mr. Davis, do you think that "equal" [in the Fourteenth Amendment] is a less fluid term than "commerce between the states"?

Mr. Davis: Less fluid?

Justice Frankfurter: Yes.

Mr. Davis: I have not compared the two on the point of fluidity.

Justice Frankfurter: Suppose you do it now.

The legacy of Brown

The U.S. Supreme Court's decision in Brown v. Board of Education marked its 60th anniversary in May 2014.  A unanimous opinion of the Warren Court, Brown prohibited official (i.e., de jure) segregation in the public schools and rejected the doctrine of 'separate but equal'.  "Separate educational facilities," Chief Justice Warren wrote, "are inherently unequal."  He explained that "[t]o separate them [i.e., African-American students] from others of similar age...solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone."  In a follow-up opinion a year later, the Court noted that implementation of its decision would involve a "period of transition"; it ordered states to "make a prompt and reasonable start toward full compliance" with its ruling and directed the lower courts to "enter such orders and decrees...as are necessary...to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases."  

While the practical impact of Brown, which took time to be felt fully (see below), was in some respects significant, the "symbolic quality of the decision," as Yale Kamisar observed in 1969, "was immeasurable," or at any rate substantial.  Thurgood Marshall (later, of course, a Supreme Court justice) was the main lawyer for the successful plaintiffs, and the cases consolidated in the Brown decision were the culmination of a long litigation campaign by the NAACP Legal Defense and Education Fund.   

Writing in The Atlantic around the time of the 60th anniversary, Ronald Brownstein described Brown's "core mission" as "unfinished" and went on to observe: "...racial and economic isolation remains daunting: One recent study found that three-fourths of African-Americans and two-thirds of Hispanics attend schools where a majority of the students qualify as low-income."  Brownstein also noted that the "increasing diversity and shrinking white share of America's youth population" makes more urgent than ever Brown's "broader goal of ensuring all young people the opportunity to develop their talents."

How much and in what ways did the Brown decision matter and, more broadly, how much did the courts in general contribute to the civil rights movement in the U.S.? On the one hand, the prohibition of de jure segregation in the schools was important both symbolically, as already mentioned, and because it did lead, first in the border states and then eventually in the deep South (after years of 'massive resistance' and other forms of obstruction), to some school integration.  In 1954, 'dual' (i.e. segregated) school systems were mandated by statute in eleven southern states and six other states, as well as the District of Columbia.  The situation in the border states began to change relatively quickly after Brown, but the decision did not have any substantial effect in the deep South until the 1970s, when, as James Patterson (author of a 2001 book about Brown) notes, the decision finally was enforced.  Some cities and localities have been success stories of integration -- Raleigh, N.C., to mention one, as discussed in Gerald Grant's 2009 book Hope and Despair in the American City [link]. 

If that's the glass-half-full side of the story, the glass-half-empty side is that there is overall still a great deal of both economic and racial segregation in U.S. public schools -- there's more segregation now in schools in the North and West than there was 30 years ago.  The Supreme Court had a chance to help reverse this trend in 1974 by allowing court-ordered cross-district (urban/suburban) busing in cases of de facto (residential) segregation, but instead a 5-4 majority of the Burger Court went the other way; the case was Milliken v. Bradley.  Voluntary urban/suburban integration programs -- which typically do not involve an actual merger of urban and suburban systems, as occurred in Raleigh, but instead move relatively small numbers of students across district lines -- are not an adequate substitute for larger-scale court-ordered programs, but Milliken basically precluded those.  Today, according to this piece that aired last month on the PBS NewsHour, there are only eight voluntary urban-suburban 'transfer' programs in the country, involving all together a mere 40,000 students, and almost half of those are in Hartford, Ct.  The same piece noted that the number of 'intensely segregated' (i.e., more than 90 percent minority) schools in Rochester, N.Y., has increased fivefold since 1989, and Rochester has one of the voluntary urban-suburban programs.

There is by now a large literature on Brown and on the broader question of the courts and social change, most of which I haven't read (I've listed a few relevant titles at the end of this post, but this list is only the tip of the iceberg).  With that said, Mark Tushnet's judgment on the impact of Brown, and of civil rights litigation more generally, seems reasonable, though no judgment here will command universal agreement.  In Red, White, and Blue: A Critical Analysis of Constitutional Law (1988), p.132, Tushnet wrote:

Brown galvanized black communities not so much because schools were desegregated -- except in the border states substantial [de jure] segregation continued for more than a decade after Brown -- but because it showed that one branch of the national government was on their side. Two years later the Montgomery bus boycott was the first episode in the development of the modern civil rights movement, whose sit-ins and marches prodded Congress to enact important civil rights acts in 1964, 1965, and 1968. The [Supreme] Court's response to the movement was hesitant and indirect. It never ruled that sit-ins were protected by the Constitution, but it did allow demonstrators to invoke the powers of the federal courts to limit the worst sort of harassment, and it upheld innovative efforts by the executive branch to convict white terrorists under old statutes.  Overall the courts played a distinctly subordinate role in the post-1960 struggle for civil rights.  It seems fair to wonder whether the pattern of race relations in 1970 or 1980 would have been dramatically different had blacks been forced to use only political methods.

Kamisar in 1969 emphasized more strongly Brown's "galvanizing" effect, arguing among other things that it contributed to the subsequent enactment of civil rights legislation and that it sped up or "perhaps even precipitated" the Warren Court's "revolution" in criminal procedure ("The School Desegregation Cases in Retrospect," in the Chelsea House volume listed below, p.xxiv).  Probably the only certain statement is that the legacy of Brown will continue to be debated.  
----

References and further reading
Carol Anderson, Eyes Off the Prize
Mary Dudziak, Cold War Civil Rights
Gerald Grant, Hope and Despair in the American City
F. Harris and R. Lieberman, "Racial Inequality after Racism," Foreign Affairs (March/April 2015)
Richard Kluger, Simple Justice
Charles J. Ogletree, Jr., All Deliberate Speed 
James T. Patterson, "The Troubled Legacy of Brown v. Board" (pdf)
Gerald Rosenberg, The Hollow Hope
James Ryan, Five Miles Away, A World Apart
Mark Tushnet, Red, White, and Blue 
 
Argument: The Oral Argument Before the Supreme Court in Brown v. Board of Education of Topeka, 1952-55, vol. 1 of the series Oral Arguments Before the Supreme Court (N.Y.: Chelsea House, 1970; paperback reprint, 1983), ed. Leon Friedman, with introductions by Kenneth Clark and Yale Kamisar.

[added later] R. Straus and S. Lemieux, "The Two Browns," New Political Science v.38 (2016) 

Scalia: Pres. must not have "uncontrolled mastery" over foreign affairs [cough]

The SCOTUS passport case that came down today (pdf here) reflected mostly a liberal-conservative split (Kennedy writing the majority opinion), with Thomas wandering off on his own.  At issue was a statutory provision requiring the State Dept., on request, to list Israel as the place of birth in a passport of a U.S. citizen born in Jerusalem.  The majority struck this down, saying it improperly constrained the President's power to recognize foreign governments and noting that the official executive-branch policy is (in the words of the syllabus, i.e. the opinon summary) that it "does not recognize any country as having sovereignty over Jerusalem."

Scalia, writing the main dissent (which was the only opinion I spent any time looking at), was indignant ("nonsense," logic worthy of "Mad Hatter") and professed to have enormous concern for the separation of powers and that the President should not have "uncontrolled mastery" over foreign policy.  Two things: first, Scalia insisted that recognition is "a type of legal act," not "a type of statement," which ignores or glosses over the fact that legal acts of recognition are themselves statements; second, one might be forgiven for wondering whether Scalia would have been so concerned about untrammeled presidential power in foreign affairs if this case had concerned something other than Israel and Jerusalem.

Note: Post edited slightly after initial posting.

That slippery word "liberty"

A perusal of the transcripts of the oral arguments in Tuesday's same-sex marriage case in the U.S. Supreme Court revealed several odd moments, and one of the oddest occurred at the very opening of John Bursch's argument for the state of Michigan. Here is how Bursch began:

This case isn't about how to define marriage. It's about who gets to decide that question.

Is it the people acting through the democratic process,

or is it the Federal courts?  And we're asking you to

affirm every individual's fundamental liberty interest

in deciding the meaning of marriage.

In the language of U.S. constitutional law, a "liberty interest" typically refers (doesn't it?) to a 'negative freedom' -- a freedom not to be interfered with -- not to a 'positive' right to "decide" something. At least, that has been my impression. From this standpoint, it's not surprising that Justice Sotomayor immediately jumped in and said to Bursch that a defeat for his client (the state of Michigan and its ban on same-sex marriage) would not take anyone's liberty away. 

But Bursch seemed not to be referring to the Fifth and Fourteenth Amendment language about not depriving anyone of liberty without due process. He meant something else. He was asserting that individuals have a "fundamental liberty interest in deciding the meaning of marriage." Can that possibly be right?

In a constitutional democracy (a phrase used by Justice Kagan in the course of the argument), individuals have no "fundamental liberty interest" in deciding policy questions. There is a general right to vote, of course, and there is a right to speak and assemble and to engage in other forms of individual and collective political action, but there is no right to have a direct say on every policy question that governments face, even one as (supposedly) significant as the definition of marriage. After Sotomayor's intervention, the asserted "fundamental liberty interest in deciding the meaning of marriage" pretty much vanished from the argument and the exchanges between the lawyer and the Justices; it may have been so strange-sounding that everyone tacitly let it drop.

Still, behind the odd language about a "fundamental liberty interest in deciding the meaning of marriage," Bursch did have a more intelligible (if not especially convincing) claim: that "the people acting  through the democratic process," not the federal courts, should decide on the definition of marriage. But it's not clear why that should be the case. As Kagan said (though not in these exact words), the Constitution puts limits both on the substantive decisions people can make and on what sorts of questions they get to decide.

No doubt these issues were explored exhaustively in the briefs that were filed in the case (none of which I've read), but the oral argument itself, which could conceivably have turned into a contentious seminar on democratic theory, was too choppy and disjointed to approach anything like that. Plato was mentioned (by Justice Alito at the outset), but the names of no other political theorists, classical or modern, came up in the argument. Maybe their ghosts were hovering around. Or maybe not.

The executive-congressional balance

Listening some days ago to a broadcast of a panel discussion about Pres. Obama's welcome move to normalize relations with Cuba, I heard one of the panelists imply that the absence of congressional involvement in the initiative is noteworthy.  I don't think so.  American presidents, certainly in recent decades but also throughout U.S. history, have typically conducted foreign policy by doing what they want and then consulting Congress afterward, if at all. 

Although I think the balance between Congress and the President has tipped too far in the latter's direction when it comes to decisions about the use of force, as a general matter it makes sense for Presidents to have a somewhat greater scope for independent action in the area of foreign affairs. That's not necessarily to say that the well-known (in certain circles) Supreme Court case (Curtiss-Wright) that held that the President has "inherent power" to conduct foreign relations was correct, but that's a somewhat different point. (Not taking the time to look the case up and refresh my memory.)

Whether Pres. Obama has made, on the whole, wise use of his power to conduct foreign affairs is also a separate question, one I won't take up in this post. But the Cuba move is unquestionably a good step, in my view.   

And this is...

esp. for TBA, who I think will find it amusing, though others may too -- "it" being an opera called 'Scalia/Ginsburg'. An echo of 'Marat/Sade', perhaps? (Though which is which?)

Prediction

Based on what I heard and read yesterday (including at the SCOTUS blog, among other places), my guess is that the Sup Ct is going to say it should never have taken the Calif. marriage case (certiorari improvidently granted, to use the technical lingo) and thus leave standing the 9th Circuit ruling which invalidated Prop 8 on fairly narrow grounds. Which would count as a win for the pro-marriage-equality side but would have no implications outside of California.

Update: J. Sides links to an amicus brief of twelve political scientists in the Calif. case.

E. Klein on Roberts's craftiness

"By voting with the liberals to uphold the Affordable Care Act, Roberts has put himself above partisan reproach. No one can accuse Roberts of ruling as a movement conservative. He’s made himself bulletproof against insinuations that he’s animated by party allegiances.

"But by voting with the conservatives on every major legal question before the court, he nevertheless furthered the major conservative projects before the court — namely, imposing limits on federal power. And by securing his own reputation for impartiality, he made his own advocacy in those areas much more effective. If, in the future, Roberts leads the court in cases that more radically constrain the federal government’s power to regulate interstate commerce, today’s decision will help insulate him from criticism. And he did it while rendering a decision that Democrats are applauding."

Full post is here.

Supreme Court to DC Circuit: keep right on ignoring us

Here.

"The freedom to live like it's 1804"

From a piece by Dahlia Lithwick on the health-care arguments: "...now we know the [Supreme Court] is worried about freedom: the freedom to live like it's 1804." See also E.J. Dionne here.

Why is the U.S. Senate (and one Senator in particular) so dismissive of the rights of terrorism suspects?

Update: The original post has been changed to correct an error (or two).


A long time ago in a galaxy far, far away...

Oops.

I meant: a long time ago, i.e. before 9/11, one could assume that an ideologically middle-of-the-roadish Democratic Senator would support the notion that those suspected of crimes, even of terrorist activity, had certain rights, including the right not to be detained indefinitely without trial.

No longer. The Senate yesterday kept in the defense authorization bill provisions on detention that Pres. Obama has threatened to veto. According to this NYT article:

The most disputed provision would require the government to place into military custody any suspected member of Al Qaeda or one of its allies connected to a plot against the United States or its allies. The provision would exempt American citizens, but would otherwise extend to arrests on United States soil. The executive branch could issue a waiver and keep such a prisoner in the civilian system.

A related provision would create a federal statute saying the government has the legal authority to keep people suspected of terrorism in military custody, indefinitely and without trial. It contains no exception for American citizens. It is intended to bolster the authorization to use military force against the perpetrators of the terrorist attacks of Sept. 11, 2001, which lawmakers enacted a decade ago.

Among the supporters of these provisions is Sen. Carl Levin, Democrat of Michigan and chairman of the Senate Armed Services Committee. According to an Agence-France Presse article which I saw at Raw Story (and which I'm not linking to because my browser is having trouble with it), Levin denied the provisions would harm civil liberties (!) and (the NYT story also has this) cited a Supreme Court ruling that a so-called enemy combatant, even if a U.S. citizen, may be held indefinitely without trial (this must be Hamdi v. Rumsfeld, but that case also said the detainee had to have the right to challenge his designation as an unlawful combatant).

Interestingly, the Pentagon itself is opposed to these provisions, according to the AFP piece, and the NYT says even some former Bush admin counterterrorism officials oppose them. Why is Levin supporting them? Why did he agree to their being part of the defense authorization package? He's not up for re-election until 2014, so immediate political considerations would not seem to be the answer. Has he always been this bad on these issues?

Money talks

George F. Will is passionate about the "right" of wealthy people to use their money to reinforce their privileged position in society. Of course, he doesn't put it quite that way. Applauding the five Supreme Court justices who just struck down Arizona's public financing statute, Will instead argues that money is speech and that any restrictions or burdens on such speech are unconstitutional. (Supreme Court precedent indicates that certain restrictions can be justified by an anti-corruption rationale but Will himself does not appear to agree with that, although he concedes it is the current state of the law.)

There's an old saying that money talks. Will and others who share his view take this literally and contend that writing a check is no different than getting up in a public meeting and moving one's vocal chords in such a way that intelligible words are produced and emitted. Writing a check, they believe, is no different than writing an article. It's all "speech." One might almost suspect Will secretly thinks that wealthy people are so inarticulate, so unable to make a case for the maintenance of their privilege by actually speaking, that depriving them of the ability to pour unlimited amounts of money into campaigns (if not through direct contributions to candidates, then through indirect third-party advertising) would sound the tocsin of a "U.S. Spring."

In the wake of Boumediene

A piece by Robert Barnes in the Wash. Post makes it sound as if the Supreme Court's June 2008 decision in Boumediene v. Bush, which held that Guantanamo Bay detainees could challenge their detentions via writs of habeas corpus in federal court, has not had much of a practical effect. Barnes writes that the U.S. Court of Appeals for the D.C. Circuit, which had to work out the details of what rules would apply to detention hearings, has issued "a string of rulings" against the detainees which the Supreme Court has declined to review. "The bottom line," according to Barnes, "is that while Guatanamo's population has declined from around 270 at the time of the decision to 172 today because of decisions of the executive branch, not a single release has come as the direct result of a judicial order."

This statement, if one emphasizes the word "direct," may be technically correct, but it does not capture the story of what happened with the named plaintiffs in Boumediene, a story I found when a search on "Boumediene v. Bush" turned up the site of WilmerHale, the law firm which handled the case for the plaintiffs on a pro bono basis.

WilmerHale's post reminds those who had forgotten the facts (or never been too clear on them, such as myself) that the plaintiffs were six Algerians living in Bosnia who were transported to Gitmo by the U.S. government in 2002 and held there for more than five years before the Supreme Court's 2008 decision. The U.S. claimed among other things that they had been planning to attack the American embassy in Sarajevo. I pick up the story from the law firm's post:

In October 2008, WilmerHale filed the first-ever evidentiary response ("traverse") on behalf of Guantanamo prisoners, refuting the Government's asserted grounds for detention...

As a result of WilmerHale’s challenge, the US Government dropped its most inflammatory claim against the men, namely that they were planning to attack the US Embassy in Sarajevo in 2001. The US Government abandoned this claim even though President Bush had specifically mentioned it in the 2002 State of the Union address.

In November 2008, Judge Richard J. Leon of the US District Court in Washington DC held a seven-day hearing into the Government’s allegations. It was the first merits hearing in a habeas case involving Guantanamo prisoners. The hearing also included another first-time event: testimony by Guantanamo prisoners, live via videolink from Cuba, in support of their own bid for release.

On November 20, 2008, Judge Leon ruled that the Government had failed to show any credible evidence justifying detention of five of the six men. Judge Leon also took the extraordinary step of imploring the Government not to appeal that ruling. Judge Leon ruled against the sixth Petitioner, Belkacem Bensayah.

In December 2008, the Government informed WilmerHale that it would, indeed, forgo any appeal and abide by the ruling as to the five successful Petitioners. On December 16, 2008, three of WilmerHale’s clients—Mustafa Ait Idir, Hadj Boudella, and Mohamed Nechla—arrived safely home in Sarajevo, Bosnia, where they were met by elated family members and friends. This was the first time that the US Government has released Guantanamo prisoners in response to a court order. The remaining two successful petitioners, Lakhdar Boumediene and Saber Lahmar, were released and transferred to France in 2009.

WilmerHale appealed Judge Leon's denial of Belkacem Bensayah's habeas corpus petition to the US Court of Appeals for the District of Columbia... On June 28, 2010, the DC Circuit panel unanimously reversed and remanded Judge Leon's ruling, holding that the government's evidence was insufficient to demonstrate that Mr. Bensayah was detainable. This marks the first (and so far only) case in which the DC Circuit has reversed a district court's denial of habeas corpus to a Guantanamo prisoner.

So although Barnes's article is no doubt correct that the practical impact of the Boumediene decision has been much less than proponents had hoped, at least in the case of the original plaintiffs the decision did make a difference: the five who were released (the three who returned to Bosnia and the two who went to France) were set free in response to a court order, as the law firm's post says.

Why hasn't Boumediene benefited more detainees? The Barnes piece suggests that the U.S. Court of Appeals for the D.C. Circuit has weakened, if not undermined, the decision (he quotes the Center for Constitutional Rights as saying the D.C. Circuit has "openly defied" Boumediene). That is probably part of the reason; another may be that most detainees, unlike the Boumediene plaintiffs, have not been lucky enough to receive the skilled pro bono services of a big, very well-resourced law firm like WilmerHale. (This is not in any way to cast aspersions on the various lawyers who represent detainees, merely to note that resources can make a difference.)

P.s. Looking back at a post I wrote when Boumediene was decided, I see that Roberts in his dissent said the decision would have only a "modest practical impact," whereas Scalia in his dissent said it would have far-reaching and "disastrous" consequences. On this point, score Roberts one, Scalia zero. (But note that two commenters on my June 2008 post thought Scalia and Roberts were talking about different things, not making different predictions about the same thing. Whatever.)

Shorter and clearer, s.v.p.

I read some of this NYT piece on the Roberts Court's bloated, often ambiguous opinions. (H/t: Erik Voeten at The Monkey Cage.) The article notes, among other telling points, that the Citizens United opinions are roughly the length of The Great Gatsby (and less fun to read, one might add). The article draws on political-science research on the Court, as Voeten observes. Fine and dandy, except perhaps for that study using anti-plagiarism software to detect passages from the parties' briefs in majority opinions. Um, I'm sorry to inject a note of reality, but why the **** do parties write briefs? They want their writing to be lifted by the Court, and if litigant X (or its legal team, to be more precise) puts something well, then why shouldn't the Court take it? Sometimes you will see quotation marks in an opinion around a phrase from a party's brief, but I'm sure there are other cases where the language is closely paraphrased and you don't see quotation marks. So what? This is one of those very rare cases in which standard notions of plagiarism don't really apply.

Note: The original post has been modified slightly.

Grumpy observation of the day

I've been listening to some, not all, of the Kagan hearings. Today Kagan said (among many other things, of course) that a judge's or Justice's personal moral values should have no connection to her judging, and that constitutional adjudication is "law all the way down" (while acknowledging that many difficult legal questions arise on which reasonable judges can disagree about what the law requires, etc.). The notion that a judge's personal moral values have, and should have, absolutely no connection to his or her judging in any constitutional cases seems divorced from reality, and when an extremely intelligent person is put into the position of having to say something like this, perhaps the time has come to get rid of public confirmation hearings for Supreme Court nominees.

At least Kagan did say forthrightly that the original intent of the framers is only one factor that should be considered, and not always the most important or appropriate one, in deciding cases; she pointed out that many of the Supreme Court's free speech cases have interpreted the First Amendment in more expansive ways than the framers would have. That was a point well made -- and, incidentally, it served to highlight the absurdity of some assertions made by Senators about the framers. Sen. Cardin, for instance, said that the framers would have agreed with Brown v. Bd. of Education. This statement is either fairly pointless -- requiring one to ask what Madison, had he been alive in 1954, would have thought of the Brown decision -- or completely ahistorical. As anyone who has ever taken a junior high school civics class or a basic U.S. history course probably recalls, the Constitution tolerated not only segregation but also slavery (though it did provide for the eventual abolition of the slave trade), and it took the Civil War, and the post-Civil War amendments to the Constitution, to change that. The abolitionist William Lloyd Garrison viewed the original Constitution, because of its failure to confront slavery, as "a covenant with death and an agreement with hell." It's not necessary to endorse this precise language to see that the pre-Civil War Constitution was a deeply flawed document, something that should be kept in mind whenever people start blathering about the supposedly sacrosanct intent of the Framers.

Yoo on Kagan

John Yoo's critique of Elena Kagan's views on presidential power raises some rather odd questions, such as: What if Congress forbids the President from firing a subordinate? Come on, Prof. Yoo: How often has that happened in, say, the last 30 years?

Let's wait for the hearings

I've commented at Crooked Timber (see the comment thread attached to this post) about Obama's choice of Kagan for the Supreme Court and am not going to repeat myself at length here. I would have preferred a different nominee, but this choice is defensible, and it may turn out to be better than some now think. Perhaps we shouldn't rush to judgment and should wait for the confirmation hearings, though they have in recent years become something of a pre-scripted farce. Still, the hearings do reveal a little about how a nominee handles herself or himself in a highly public situation. For a biographical profile of Kagan, see here.

Justice Stevens

Justice Stevens's announcement that he will be retiring at the end of this Supreme Court term prompts the reflection that he changed fairly dramatically (and for the better, in my opinion) over the course of his tenure on the Court. He was not always firmly in the Court's liberal wing. He had a somewhat restrictive view of the First Amendment in his first years on the bench, writing for example the 1978 "seven dirty words" opinion (FCC v. Pacifica) that upheld regulation of broadcast "indecency."

In more recent years he could be counted on to vote with the so-called liberal bloc (a somewhat misleading shorthand, but one that seems to be entrenched in media usage). His dissenting opinions in Bush v. Gore and in the recent campaign finance case (Citizens United v. FEC) will surely be remembered as two of his finest hours.

(For my post on Citizens United, type "Citizens United" into the search box, upper left corner. For a list of highlights from Stevens's opinions, by USAToday's Joan Biskupic, click here.)

P.S. If you want a comment thread on this, you can go to The Volokh Conspiracy blog, where a one-sentence post "Justice Stevens to Retire" already has more than 100 comments. Of course some of them appear to be odious, hateful, ill-informed garbage, but hey, it's the Internet...

Update: There was a fairly informative discussion of Stevens and his legacy on the NewsHour tonight (which I saw after writing the post). The participants know much more about the subject than I do, and I found only one or two of the remarks questionable.

Second update: A column by a former clerk to Stevens.

The campaign finance case (Citizens United v. FEC)

The U.S. Supreme Court’s 5-4 decision last month in Citizens United v. Federal Election Commission is an example of judging divorced from reality. To mention at the outset something that has occasionally gotten lost, this case was not about direct contributions to candidates by corporations: such contributions remain illegal, although corporations’ PACs (political action committees) may contribute to candidates. Rather, Citizens United had to do with advertising by corporations that endorses or advocates the election of a particular candidate, either directly (vote for X) or by criticizing a candidate’s opponent (Y is no good; therefore [implied message]: vote for X). The decision basically says that it is unconstitutional to prohibit corporations from financing such ads with money in their general treasuries. The main reason? According to Justice Kennedy’s majority opinion, corporations are speakers and money is speech, and the statutory provisions in question violate the First Amendment by "banning" political speech. As the dissent argues, "ban" is a misnomer since the law at issue deals with one method of financing speech; corporations have been and still are free to form PACs, solicit contributions to them from shareholders, employees and their family members, and use that money to fund their electoral communications. The majority pooh-poohed this point.

In overturning a 1990 decision, Austin v. Michigan Chamber of Commerce, which held that the government has a compelling interest in checking the "corrosive and distorting effects" of unlimited corporate spending in election campaigns, the Citizens United majority purports to regard ‘the marketplace of ideas’ as incorruptible and inherently self-correcting. In the majority’s view, speakers -- defined to include corporations -- speak; the electorate then separates the wheat from the chaff, the true from the false, irrespective of how much one side’s voice is amplified by the money at its disposal. That the electoral process almost certainly does not and almost certainly will not work in this way in a polity and society where corporations have a privileged position -- and where their organizational attributes allow them to amplify their influence on the electoral process -- is reasonably obvious, or so one would have thought, to anyone who has not been living under a rock.

(Note: At the oral re-argument of the case last September, which I heard broadcast on C-Span radio the day the decision came down, Solicitor General Elena Kagan, arguing for the government, declined to offer a strong defense of the "antidistortion rationale" of Austin, though she did of course urge the Court not to overrule the case. The government, it’s now clear, was going to lose regardless of who said what at oral argument, but Chief Justice Roberts in his concurrence made a point of quoting Kagan’s statement that Austin was not the clearest opinion (she either said "not the most pellucid" [which is how I had heard it on the taped broadcast] or "not the most lucid" [which is how Roberts quotes her from the transcript].)

As Justice Stevens’s dissent points out, the Citizens United decision will greatly advantage corporations vis-à-vis political parties, since parties are prohibited from raising and spending "soft money." As the dissent also points out, the majority failed to understand that the regulations at issue did not pit certain interests having nothing to do with the First Amendment against the claims of free speech. Rather, the questions raised by limits on corporate money in elections bring one kind of First Amendment interest into tension or conflict with another kind. Since I can't say this better than Stevens did in his dissent, I will quote him:

"All of the majority’s theoretical arguments turn on a proposition with undeniable surface appeal but little grounding in evidence or experience, 'that there is no such thing as too much speech,' Austin, 494 U. S., at 695 (Scalia, J., dissenting) [footnote omitted--LFC]. If individuals in our society had infinite free time to listen to and contemplate every last bit of speech uttered by anyone, anywhere; and if broadcast advertisements had no special ability to influence elections apart from the merits of their arguments (to the extent they make any); and if legislators always operated with nothing less than perfect virtue; then I suppose the majority’s premise would be sound. In the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process.

"None of this is to suggest that corporations can or should be denied an opportunity to participate in election campaigns…or to deny that some corporate speech may contribute significantly to public debate. What it shows, however, is that Austin’s 'concern about corporate domination of the political process,' 494 U. S., at 659, reflects more than a concern to protect governmental interests outside of the First Amendment. It also reflects a concern to facilitate First Amendment values by preserving some breathing room around the electoral 'marketplace' of ideas….

The majority seems oblivious to the simple truth that laws such as §203 do not merely pit the anticorruption interest against the First Amendment, but also pit competing First Amendment values against each other. There are, to be sure, serious concerns with any effort to balance the First Amendment rights of speakers against the First Amendment rights of listeners. But when the speakers in question are not real people and when the appeal to 'First Amendment principles' depends almost entirely on the listeners’ perspective [this is a reference to the majority’s argument that the regulations deprive listeners of valuable information--LFC] it becomes necessary to consider how listeners will actually be affected."

I also urge those interested to read the powerful concluding section of the dissent.

Yes we can -- well, maybe

"Let's end tax breaks for corporations that ship jobs overseas." Pres. Obama said this numerous times during the '08 campaign. The line reappeared in his State of the Union speech, which shows how politically difficult it is to change this part of the tax code. Actually, right now it's politically difficult to do much of anything, at least in terms of legislation. The Founders, we are continually told, wanted a constrained, self-checking government, but this is ridiculous.

On foreign policy and trade policy, the State of the Union speech broke little new ground: the U.S. needs to export more - no surprise; trade should be on a level field - no surprise; we are in danger of being overtaken in technological innovation by other countries - no surprise. It was nice, however, to hear Obama reaffirm his commitment to a nuclear-free world. He also mentioned repealing the don't-ask-don't-tell policy (a line noticeably not applauded by the Joint Chiefs of Staff).

As for the rest of the speech, I thought Obama struck a number of reasonably good notes. The focus on unemployment was both substantively and politically necessary, as was the emphasis on measures to help small businesses borrow and to encourage them to hire. The spending freeze (not to take effect until 2011, since "that's the way budgeting works") was also something he probably did not have much choice, at least politically speaking, but to propose.

Moreover, it was entirely appropriate, despite what some have said, for Obama to criticize the Supreme Court's ruling in Citizens United v. Federal Election Commission, the campaign finance case that came down last month. I've read parts of the opinions, which taken together total more than 180 pages, and I had thought about putting up a separate post about the case, but I probably won't. I'm guessing readers of this blog are not that interested in the fine points of First Amendment law. Suffice it to say that the decision is pretty awful. Justice Alito's reaction to Obama's remarks during the speech, and the comment the reaction has occasioned, is a tempest in a teapot.

Obama's appeal to rise above partisanship and divisiveness was both eloquent and expected, though whether it will fall on receptive ears remains doubtful. "The politician looks to the next election, the statesman to the next generation": I seem to recall this line from an essay -- I don't remember which one -- by John Rawls, who was presumably repeating a distinction that had been drawn before. How many of the politicians in Congress are statesmen or stateswomen in this sense? Hmm...