Monday round-up

By on Apr 7, 2014 at 7:38 am

Wednesday’s decision in McCutcheon v. Federal Election Commission, striking down the aggregate limits on contributions to candidates for federal office, political parties, and political action committees, continues to inspire commentary.  Kenneth Jost criticizes the decision at Jost on Justice and suggests that “[i]t is no mere coincidence” that the retirement of Justice Sandra Day O’Connor, who served (among other things) as a state senator in Arizona before ascending to the Court, “marks the court’s turning point on issues of campaign finance regulation.”   In an op-ed for The (Louisville) Courier-Journal, David Gans argues that the ruling “dealt another blow to our Constitution’s promise of democracy” and “open[s] the door to a whole host of new challenges to state and federal contribution limits, including federal limits on soft money previously upheld by the justices.”  At big think, Steven Mazie lists the four errors that he sees in the decision, which in his view “will lead to huge new infusions of cash into our political campaigns and ramp up the already outsize influence that corporations and wealthy donors have in the American political system.”  At ACSblog, Ciara Torres-Spelliscy laments that not “only are [the Justices] forgetting precedent from decades ago, they can’t even recall cases from the beginning of the Roberts Court—a mere eight years ago,” while in an op-ed for Reuters Elizabeth Wydra contends that “the court’s conservative majority’s rulings have . . . made it easier for big-money donors to influence elections — while making it harder for many Americans to use the only political influence they have: their vote.”  And in a post at ACSblog, Ron Fein argues in favor of “a common-sense constitutional amendment to restore the people’s ability to set sensible limits on the amount of money that can be contributed or spent in elections.”  Finally, at truthdig Bill Blum focuses on Justice Clarence Thomas’s concurring opinion and the prospect that “the court may soon be ready to make even more drastic changes in the law, taking what some legal commentators have called a final jump down the First Amendment ‘rabbit hole.’” Continue reading »

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The Obama administration’s use of unmanned drones to kill terrorism suspects overseas has withstood its strongest legal challenge — a constitutional lawsuit by the father of a U.S. citizen slain by a missile strike in Yemen nearly three years ago.  The case was dismissed on Friday in a forty-one-page decision by a federal judge in Washington, D.C., Rosemary M. Collyer.  Her ruling can be appealed.

Although government officials did not win on their plea that such claims should be barred completely from the courts, they did win on their argument that the courts cannot create a remedy for targeted killings without intruding on the powers of the president and Congress to wage war.

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This week at the Court

By on Apr 6, 2014 at 12:01 am

On Monday the Court granted one new case. Lyle reported on the orders here.  We do not expect opinions in argued cases this week.  The Justices’ next Conference is scheduled for April 18. Our list of “Petitions to watch” for that Conference is here.

 

 
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UPDATED Monday 6:21 p.m.  The Sixth Circuit Court on Monday called for a response, due by April 21, to the request for initial en banc hearing in the Michigan case.

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On Friday, state officials in Michigan, seeking to move a test case on same-sex marriage onto an even faster track, asked the U.S. Court of Appeals for the Sixth Circuit to put that question before the full, en banc court without waiting for different three-judge panels to rule.  All four states within the Sixth Circuit’s geographic area now have appeals on that issue pending at the appeals court, the new petition noted.

This is the first time that a state which has had its ban on such marriages struck down in a district court has asked for full court review of an appeal.  (Meanwhile, in one of the cases already at the Sixth Circuit, from Ohio, a judge has promised an even broader ruling soon.  See this post, below.)

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This week’s arguments

By on Apr 4, 2014 at 7:00 pm

Oyez has posted audio for this week’s oral arguments. The Court heard arguments this week in:

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A federal judge in Cincinnati, who had already ruled that same-sex couples married in other states must have some legal rights when they live in Ohio, said Friday that he will shortly rule that they must have full marital equality.  Thus, a case that started out as a dispute over names on birth certificates would be transformed into a broader decision that Ohio must recognize valid gay and lesbian marriages performed elsewhere.

During a hearing in his court on Friday, U.S. District Judge Timothy S. Black disclosed that he plans to issue the new ruling within ten days.  The entry on the docket confirming his intention can be read here.  State officials told news organizations in Ohio that they would promptly appeal to the U.S. Court of Appeals for the Sixth Circuit. Continue reading »

Once the Court granted probable jurisdiction in McCutcheon v. Federal Election Commission, it seemed likely, and was confirmed at oral argument, that a majority of Justices viewed aggregate contribution limits as unjustified under the First Amendment.  The predictable reactions to the decision fell into two longstanding camps:  the defenders of political freedom versus the guardians of regulation.  As reflected by the divided Court, there are those who seek to minimize government intrusion into political speech and those who believe considerable government regulation is necessary to safeguard democracy and prevent corruption.

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The McCutcheon v. FEC ruling and the identity of the Justices aligned in it on one side or the other should surely have come as no surprise to Court-watchers.  The case is both an easier one than Citizens United and a far less far-reaching one, both in theory and potential political impact.  There was never any reason to expect those members of the Court who joined the Citizens United majority to vote to sustain a provision of law that, at least on some readings, would have trouble passing a reasonable basis test – i.e., if a $2600 contribution by Shaun McCutcheon to sixteen candidates did not corrupt them, why would similar contributions corrupt the twelve other candidates he wished to support?  Continue reading »

 
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During Wednesday’s argument in Fifth Third Bancorp v. Dudenhoeffer, the Court was skeptical from the outset that there ought to be a special presumption of prudence for fiduciaries of employer stock ownership plans (“ESOPs”).  But as the argument unfolded, most members of the Court appeared also to appreciate the difficulties of applying the usual ERISA “prudent person” standard to cases (like this) involving ESOP fiduciaries with inside information.  In the end, while the Court likely will not apply a presumption of prudence, it may offer observations on the application of the prudent person standard that will make it difficult for plaintiffs to show that an ESOP fiduciary who failed to stop offering company stock in light of inside information that the stock was overvalued violated the duty of loyalty or prudence. Continue reading »

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