Eleven days at the SC

The last week and a half has been very,  very good for those in favor of limited government and a robust Bill of Rights.   We have no "Gloating" category so this diary will have to go under "Politics".


June 16 -  Susan B. Anthony List vs Driehaus.  A (now former) congressmen attempted to have critics imprisoned for up to six months merely for pointing out that he'd voted,  indirectly, in favor of "taxpayer funded abortions".  This was under an Ohio law prohibiting making false statements about politicians.    The unanimous decision stated that SBA can sue Driehaus for what he tried to do,  and the speech-suppressing effects of his threats, even though the threats evaporated after the voters kicked him out of office. 


It's also notable that none of the liberal justices held out on the grounds that the Susan B. Anthony List was an organization rather than a person,  and only persons have First Amendment rights.  Maybe that will put to rest that particularly idiotic bit of reasoning that arose after Citizens United.


June 19 - US vs Clarke.  "A taxpayer has a right to conduct an examination of IRS officials regarding their reasons for issuing a summons when he points to specific facts or circumstances plausibly raising an inference of bad faith."    This will help end the practice of using summonses for purposes of harassment.   The decision by Kagan was unanimous,  indicating that there really weren't any reasonable people on the other side of this argument.


June 25 - Riley vs California. "The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested."   This decision is remarkable -  rather than deciding some borderline issue on the specific facts,  it is laying down a very definite and quite general bright line.   The reasoning makes it clear that digital data has the same protection as "persons, houses, papers, and effects".   The court considered,  and rejected,  the "just in case" arguments made by the government,  and reaffirmed the following:

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.

In other words,  our rights are not limited to things that are completely innocuous with no possibility of abuse.  Free people have rights that are dangerous and one just has to accept that.   Again, the decision was 9-0 against the government,  so there is little chance of overturning it or creating exceptions through small changes in the circumstances of the search.  Furthermore,  because it is a bright line,   police officers who violate this rule will have little chance of pulling the qualified immunity dodge.


June 26 - McCullen vs Coakley.   A Massachusetts law limiting speech near abortion clinics "violates the First Amendment" because it is not "narrowly tailored"  and "burden[s] substantially more speech than is necessary to further the government’s legitimate interests.”    Again - I hope there is a pattern here - the decision was unanimous against the government,  and the minority concurring opinions wanted to go even further. 


JFTR,  I think McCullen et all are behaving poorly.  None of the customers of the clinic want to hear their message,  and the message itself probably puts a lot of emotional stress on women trying to exercise their own rights.   But the First Amendment was not put in to protect only speech that doesn't bother anyone.


June 26 - NLRB vs Noel Canning.  "The Recess Appointments Clause empowers the President to fill any existing vacancy during any recess—intra-session or intersession—of sufficient length"  but "For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is".


This decision - did I mention it is unanimous - is a useful brake on the efforts by Bush,  continued aggressively by Obama,  to marginalize the popularly elected branch of government in favor of executive authority. 


The justices didn't even bother to dismiss the argument made by some here at The Forvm that a large, active, continuing executive is some kind of default that kicks in when Congress declines to agree with the President.   In actuality,  the default is a President and a Vice President (who doesn't report to the President) with no funds, subordinates,  or even an office to sit in.  Everything has to be built up from zero with the approval of Congress.




The unanimity here should also help defuse accusations that the SC is engaging in political, results-oriented jurisprudence.   The decisions cut against both conservative and liberal authoritarians and centralizers.  Furthermore,  it should also help defuse the notion that the fate of the nation hangs on one or two Supreme Court appointments.   No President,  in one term,  is likely to get the five vacancies necessary to change any of the above.


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I think you are reading too much into the the Susan B. Anthony List decision. The court upheld the right of the group to sue against someone who would have put individuals in jail. The organization itself cannot be sent to jail because, well, it's an organization, which is one reason why organizations are not people and should not automatically have the rights of people.


This is even truer for incorporated organizations, since these are, by definition, government-sponsored legal entities that could not exist absent a government. As such they have special characteristics, such as limited liability, that physical persons do not enjoy.


If they can have special characteristics that by design favor certain activities, they sure as heck can have special characteristics that by design curtail others. They are not natural entities. Their rights are not given by the creator, but by man.

This was clear enough to Larkin, whose patriotism rested on the notion that England was the worst place on earth with the possible exception of everywhere else.

Organizations ctd


The Susan B. Anthony List is a 501(c)(4) non-profit.

Citizens United is a 501(c)(3) non-profit.


Unless you want to hinge your argument on the difference between a (3) and a (4),  it seems to me that your reasoning either works or doesn't equally to both cases. 


It's true that Citizens United could not be put in jail,  but if the BCRA had been upheld and the executive officers of Citizens United had decided to violate it,  and persisted in that violation,  those officers would eventually end up in jail.  At some point there would be a court order to cease,  and continued defiance would lead to jail for contempt of court.

Which Only Means


That you can go to jail for contempt of court.


Any of those officers, at any time, could express themselves freely and not be sent to jail for it. And you know this.


The first amendment was not designed as a tool to allow money to be leveraged to drown out all other speech through saturation of the media environment.


There is also a problem with corporate entities particularly and this is that management can leverage money that does not belong to them and may not even agree with them. You can be a shareholder in a company and, because current rules allow funding to be concealed, not even be aware that the company you partly own is working against your beliefs. This amounts to fraudulent use of funds. A public construct such as a corporation should not be able to secretly fund political speech.

This was clear enough to Larkin, whose patriotism rested on the notion that England was the worst place on earth with the possible exception of everywhere else.

On your last paragraph


1.  First,  your argument proves too much.   A company you own stock in might invest in any number of things against your beliefs:   a nasty mine in the Congo,  an operating system that allows spaces in filenames.   Does it follow that we must ban foreign investments or corporate software development?  Why single out political speech for prohibition?   If anything,  speech should get more protection,  since unlike foreign investment or software,  it is a constitutional right.


2.  Second,  fraud is already illegal.   If a company's IPO prospectus stated they were going to devoted exclusively to electric vehicles,  and then they took all or most of the money and put it into something else - whether it's political speech or fossil fuel vehicles - they can already be punished.  Again,  why single out political speech?   OTOH,  putting a small percentage of money into charity,  PR campaigns, or lobbying that could help the company seems reasonable.


3.  Third,  here are the public mission statements for Citizens United:


"Citizens United is an organization dedicated to restoring our government to citizens' control. Through a combination of education, advocacy, and grass roots organization, Citizens United seeks to reassert the traditional American values of limited government, freedom of enterprise, strong families, and national sovereignty and security. Citizens United's goal is to restore the founding fathers' vision of a free nation, guided by the honesty, common sense, and good will of its citizens."


and for Susan B. Anthony List


"The Susan B. Anthony List, and its connected Political Action Committee, the SBA List Candidate Fund, are dedicated to electing candidates and pursuing policies that will reduce and ultimately end abortion. To that end, the SBA List will emphasize the election, education, promotion, and mobilization of pro-life women."


Are you seriously arguing that someone would put their money into these organizations and believe they were investing in something non-political?  I dislike both missions but I wouldn't call them fraudulent.


4.  Last,  but most definitely not least:  Non-profits do not have shareholders.  






If a public company has a mine in Congo, you would know. It would not be a secret, since it would be a major revenue (or loss) producing asset, as well as present material risks they would have to declare.


But companies can now secretly contribute to political speech. Call it "dark money" or whatever, this is wrong. It severely distorts the political system and virtually hands it over to unaccountable interests.


Political speech is a special case because only political speech can directly be opposed to the goals of stakeholders. This would not be the case for a non-political charity, for example. If a company donates money to the American Cancer Society, how is the stakeholder hurt? He may disagree with spending that money, but he cannot claim his interests are otherwise being subverted. Management does have the discretion to allocate funds. It should not have the discretion to work actively against the interests of stakeholders.


The problem with Citizens United is how they get their funding. They act as a proxy.

This was clear enough to Larkin, whose patriotism rested on the notion that England was the worst place on earth with the possible exception of everywhere else.

A 501(c)(3) can issue shares, hence Cato's fiasco




That was news to me and I'll have to partially retract my fourth point,  to "Most non-profits do not have shareholders".


AFAIK shareholders were not an issue in Citizens United.

Noel v. Canning really doesn't change much about recess appts.


Yes, Obama got slapped down for trying to call the Senate's "bluff" (pro forma sessions are shams; everybody knows they are shams; the Supreme Court knows they are shams; the Senate is not in any meaningful sense of the term "available" to advise and consent during them).  


But more importantly, the court issued a bright-line rule stating that *intra*session as well as intersession recesses are eligible for recess appointments... which frankly is exactly how it has worked for decades now. Also, the court rejected a fairly absurd argument embraced by the minority that recess appointments can only be made for vacancies that *occur during that recess*. 


An implacably hostile Senate can hold endless pro forma sessions and thereby prevent a President from filling some (or all) federal vacancies. But a friendly Senate can still declare a recess and thereby prevent an obstinate minority (or even a greedy single blue-slipping Senator) from impeding ordinary government business for leverage. 


All in all, as the scotusblog analyst puts it, this decision leaves the status quo almost entirely intact on recess appointments, and it was a victory for Constitutional pragmatism over formalism of the kind embraced by the hidebound (yet conveniently inconsistent) Scalia.

"Hell is truth seen too late." --Thomas Hobbes

Noel Canning wasn't versus himself


I agree it doesn't change much of the past,  but that's because in the past the recess appointment authority was used mainly in two cases:


(1) The Senate would have wanted the position to be filled with someone,  so there was really no dispute between the President and Congress.  This was the purpose of the recess appointments clause - to let the Senate go home and not worry that if someone died everything would shut down.  It was not intended to render the advice and consent clause meaningless by letting the President avoid it every time a Senator stepped outside to relieve himself or grab a sandwich.


(2) Cases where the President was trying to avoid Senate,  but a majority of the Senate didn't care enough to stay in session to prevent it. 


I'm fine with either of the above.  However,  in this case, a majority of the Senate clearly intended those the NLRB positions to stay vacant. 

That's what you think!


All Obama was trying to do was to call the Senate on its "pro forma" session shenanigans. The Senate is no more open for business during a pro forma session than I am "driving" when I tie a brick to my steering wheel and drop it on the accelerator (I almost never do this). 


Well, the Court says we have to respect the Senate's BS excuse while they're playing hooky. Fine. Still doesn't change the fact that recess appointments will go on as before. 

However,  in this case, a majority of the Senate clearly intended those the NLRB positions to stay vacant.

Which is an entirely separate problem. The Senate, along with the House and the President voted to create agencies headed by appointed officials. For the Senate to turn around and decide "nah, that agency doesn't really need to function as intended" is an obvious betrayal of the process. 

"Hell is truth seen too late." --Thomas Hobbes

Congress itself isn't functioning as intended.


This problem will catch up with Congress soon enough.  Americans don't pay much attention - takes them a while to figure out they're being suckered - but it doesn't take forever.  The Tea Parties are a symptom, not the etiology of America's anger with Congress.  Even Liberals are getting angrier with their purported advocates in Congress.  Madison might have designed gridlock into the system but he didn't anticipate this sort of mess.  Well, in a sense he did, he warned us of Factions, plenty down there on Federalist 10 about it.


In the short haul, things will probably continue steaming as before.  A few appointments will get through.  Congress is coming to understand the jig is up.  The old guard is watching the tiger eat a few of their august congregants and they're all hoping the tiger will eat them last.  You can't buy respect.  Was a time when America was of two minds about Congress - they hated the institution in toto but they loved their own Congress Critter for assorted reasons.  Now even that's dying off.  It takes millions to get elected, now with Citizens United, it's taking even more to get elected and re-elected.  


The dog that hasn't barked here is the Judiciary.  What if the Supreme Court determined, sua sponte, this business of not appointing sufficient Federal judges was itself a violation of the right to a speedy trial?

The Supreme Court Doesn't Do That

M Scott Eiland's picture

At most, they might ask the parties in an actual case to re-argue with that issue being included, or remand to the lower courts with a similar instruction. Of course, if someone brings a case with that issue raised, that's another matter, but one that would probably fall prey to the "political question" doctrine and would therefore not be dealt with by the court.

. . .and Don Mattingly must be fired (bye Ned--don't let the door hit you in the @$$ on the way out!).

It's not a political question. It's a staffing question.


We've currently got retired judges returning to the bench, been a consistent problem forever.  Who can sue for a speedier trial?  Case comes up, goes on the docket, how bad does it have to get before the Judiciary reacts and demands Congress actually let the President appoint some judges?   It falls well within the purview of the Judiciary to demand these appointments.  

Still A Political Question

M Scott Eiland's picture

Read the examples given in the wiki, and also the standards listed there for what constitutes a political question (quoted from Baker v. Carr). The Supreme Court is not going to tell the Senate that it has to confirm nominees to any office. I will be glad to say, "Blaise was totally right and I was totally wrong" should this ever happen in our lifetimes.

. . .and Don Mattingly must be fired (bye Ned--don't let the door hit you in the @$$ on the way out!).

Does anyone have standing to make the case for speedy justice?


Or are we doomed to have The Factions smirk and grimace as the docket gets longer and longer?  Whole lotta smirking going on - nobody has a solution, nobody has standing on the basis of Baker v. Carr.  SCOTUS gave us Baker, it can take it away.  This smacks of voir dire resulting in an All White Jury


M Scott Eiland's picture

Defendants. That won't lead to the Supreme Court ordering the Senate to confirm nominees--that might lead to prosecutors having to make some hard choices about who to continue to prosecute and who to let go. I doubt you'll find any lawyer who will tell you differently, but if you can find a link to one have at it.

. . .and Don Mattingly must be fired (bye Ned--don't let the door hit you in the @$$ on the way out!).



The "speedy trial" clause applies to criminal trials only. Any criminal defendant who is held too long without trial can file a case,  and there have been such cases.


However, the solution courts impose is not to seize control of the legislative process,  and mandate actions such as spending money to create courts, or requiring legislators to vote in favor of particular nominees.


What they do is order the state to either hold a trial or drop the charges by a certain deadline.   It's up to the legislature whether they want to come up with enough judges or not.


PS There are lot of problems with electing judges, and I don't think it's a good system.  However, one has to concede that this blocked appointments problem does not occur in jurisdictions where positions are filled by election.

I wonder if any such dropped cases


might be directly attributable to a shortage of judges.  Really, this isn't about Seizing Control of anything.  It's making the legislature do its damned job.  They're supposed to be making the laws and the judiciary is supposed to be apply those laws - WTF can be said of a system where some idjit legislature can - by virtue of its ability to forestall the appointment of anyone to fill a judgeship - allow some criminal to avoid justice.  


Something's wrong here.  

Ninety Percent Of Cases Are Settled By Plea Bargain

M Scott Eiland's picture

We could double the amount of (funded) judges on both federal and state levels--along with all the personnel and courtroom space needed to support them, and they'd still need to plea bargain eighty percent of cases to make it work--and even that ain't happening any time soon. As long as the time of the prosecutors and judges and the available prison space is used for the more dangerous criminals, it's a workable system, and the Supreme Court is going to react with more amusement than serious interest to a suggestion that they seize control over the Senate's Advice and Consent power to deal with the situation.

. . .and Don Mattingly must be fired (bye Ned--don't let the door hit you in the @$$ on the way out!).

Tired of that verb Seized in this context.


Justice delayed is justice denied.  Right to speedy trial is in the Constitution.  Just like Advise and Consent.

Alternative solutions


for the federal judge shortage, some more realistic than others:


1. Legalize most drugs,  and stop federalizing ordinary crimes.   From what I've read that would immediately cut the workload roughly in half.


2. Congress could agree that judicial appointments (other than the SC itself) would be handled somewhat like commissioning military officers - technically that authority belongs to Congress, but it has been delegated.  The constitution specifically allows delegation of appointment authority for "inferior officers" to "courts of law".  In particular,  Congress could let the SC decide how to fill district and circuit court positions.


3. Split the court system into parallel civil and criminal systems.   It wouldn't completely solve the appointment problem,  but it would lower the number of interested parties in each case.  The moneyed interests care mostly about the civil cases;  I would predict that there would be much less controversy and holdup on appointments to purely criminal courts.




"allow some criminal to avoid justice"


I think the recent CA example supports eeyn's point - a federal judge ordered the governor to build more prisons or release a % of CA's prisoners based on constitutional rights violations due to overcrowding.


There wasn't any offsetting right of the government to imprison or prosecute as many criminals as it wants.

Different problem domain. A federal judgeship


especially at an appellate level, attracts political scrutiny.  But now it's reached truly obnoxious levels of "emergency"

Jinx :-P

M Scott Eiland's picture


. . .and Don Mattingly must be fired (bye Ned--don't let the door hit you in the @$$ on the way out!).