With the election of Donald Trump to president and his promise to appoint a new justice in the mold of Justice Scalia it appears that not much will change on the Court in the near future.
On the dreary morning after, visitors to the Supreme Court still lined up on the plaza, members of the bar still gather by the statue of John Mashall, and the justices still took to the bench to hear arguments. The only thing remarkable, and it may mean nothing, was that Justice Ginsburg appeared to be wearing her “dissent jabot.” It’s a kind of collar, not exactly a traditional jabot, with rhinestones that the justice wears when announcing a dissent from the bench. Whether she wore it to make a subtle statement or it was just the first thing she grabbed out of her jabot closet, I don’t know. But I also noticed she wore no earrings, which, for a justice know for her sense of style, is not usual.
And so, for now, life goes on. Below are my sketches of the week’s arguments.
Posted in Arguments
, Supreme Court
Tagged with: Elections
, Fair Housing Act
, Federal Vacancies Reform Act
, Justice Ginsburg
I prepared the banner you see above for SCOTUSblog because the Court was to hear arguments today in two voting related cases, Harris v. Arizona Independent Redistricting Commission and Evenwel v. Abbott. But I didn’t expect the trifecta that came with Justice Scalia’s opinion in a Maryland voting redistricting case, Shapiro v. McManus, especially since it was argued just last month. My lucky day.
Anyway, here are the sketches from today’s two argument:
After the 2010 census Alabama redrew its voting map with the result that some districts became more white/Republican and others more black/Democratic. Two groups, the Alabama Legislative Black Caucus and the Alabama Democratic Conference challenged the state’s redistricting plan saying that the plan “packed” predominantly African American districts on the basis of race.
It’s a complicated and unusual case where the sides historically arguing racial quotas have switched. Rather than attempt to explain the argument, I’ll just post my pictures and refer the reader to Richard Hansen’s analysis on SCOTUSblog.
” . . the so-called “crab claws” that the parties describe that extend out from the district capture African American populations.” -Solicitor General Verrilli
. . . thirteen yet to come (counting the two cell-phone search cases as one).
In Argentina v. NML Capital the Court sided with investors seeking to locate Argentina’s overseas assets in order to collect on bonds that went into default. Justice Scalia wrote for the majority while Justice Ginsburg, pictured here on the right, was the sole dissenter.
Justice Kagan, above, had the opinion in Abramski v. U.S., a case concerning “straw purchasers” of firearms. And Justice Thomas, below, announced the unanimous opinion in Susan B. Anthony List v. Driehaus that state laws criminalizing false statements made about a candidate in an election can be challenged on First Amendment grounds even before anyone is actually prosecuted.
A long line of spectators and a smattering of demonstrators, some with halloween themed placards – as well as two suspected C-span interns with a crappy banner that demanded “Cameras in the Court NOW!” – were on the Supreme Court plaza this morning for the Court’s latest go at campaign finance.
The case, McCutcheon v. FEC, is brought by a wealthy Alabama businessman who is challenging the limit on total contributions during a two-year election cycle. Current law limits individual contributions to candidates to $48,600 and $74,600 to parties and PACs during the two-year cycle. That the law limits the number of candidates to whom he could donate $1776 Shaun McCutcheon considers a violation of his First Amendment right to free speech.
A lawyer for Senator Mitch McConnell argued that limits on the aggregate contributions should meet the test of strict scrutiny to pass constitutionality.
While Solicitor General Donald Verrilli warned that without the limits elections could be dominated by wealthy donors.
Lyle Denniston’s story here.
Retired Supreme Court Justice Sandra Day O’Connor, right, watched as Arizona Attorney General Tom Horne defended Proposition 200, a state law that requires additional proof of citizenship in order to register to vote. O’Connor was on a 9th Circuit Court of Appeals panel that rejected the law.
The case is Arizona v. The Inter Tribal Cuoncil of Arizona
Lyle Denniston writes about it here.
Notables of the civil rights movement sat in the audience as the Supreme Court yesterday heard arguments in a major challenge to the Voting Rights Act, Shelby County v. Holder.
From 1965 when President Johnson signed it into law to the election of the first African-American president, the Voting Rights Act has been the most important and successful civil rights law ever passed. So successful that a slim majority of the Court seem to think that its most important part, Section 5, is so outdated it’s no longer constitutional.
Justice Scalia,below, to Solicitor General Verrilli on why the were no votes against the 2006 reauthorization in the Senate, “I think that’s attributable to a phenomenon that has been called the perpetuation of racial entitlements.”
Bob Barnes has WaPo story here.
. . . election day. Best not to read anything into it; Scalia often looks down while the Marshal calls the Court to order.
Under Arizona’s Citizens Clean Elections Act candidates who accept public funding receive grants matching dollar for dollar ( up to twice their initial grant and with adjustments ) the amounts spent on the campaign of a privately funded candidate.
The lawyer arguing against the Arizona law, William Maurer said, “…this case is about whether the government can turn my act of speaking into the vehicle by which my political opponents benefit….”
When the lawyer for Arizona’s Secretary of State, Bradley Phillips, referred to testimony that never was money withheld from a race for fear of triggering matching funds Chief Justice Roberts cut him off saying, “Oh that, there’s a back and forth about the record and common sense. As a matter of common sense . . . if you knew that a $10,000 expenditure that you would make . . . would result in $30,000, 40,000, 50,000, depending on how many opposition candidates there were . . ., wouldn’t you think twice about it?
As the arguments were wrapping up Justice Breyer, a supporter of campaign finance reforms, said to the Justice Department lawyer, “Answer this if you wish, don’t if you don’t want to . . . as I hear this argument, what’s going through my mind is we are deeply into the details of a very complex bill. McCain-Feingold is hundreds of pages, and we cannot possibly test each provision which is related to the others on such a test of whether it equalizes or incentivizes or some other thing, because the answer is normally we don’t know. And,” he continued, “it is better to say that it’s all illegal than to subject these things to death by a thousand cuts, because we don’t know what will happen when we start tinkering with one provision rather than another. That thought went through my mind as I’ve heard this discussion.”
AP story here.
“It is a
jolt to the legal system when you overrule a precedent.” Chief Justice Roberts at his 2005 confirmation hearings
Overturning its own precedents the Supreme Court yesterday removed limits on corporate campaign spending citing the First Amendment free speech rights of corporations.
In dissenting from the majority in Citizens United v. FEC Justice Stevens wrote “Under the majority’s view, I suppose it may be a First Amendment
problem that corporations are not permitted to vote, given that voting
is, among other things, a form of speech.”
Dahlia Lithwick has the story here.