It’s been awhile since the Supreme Court heard an abortion case, and while last Tuesday’s argument wasn’t exactly about abortion, it was.
In NIFLA v. Becerra the Court is considering a California law, the Reproductive Fact Act, that compels “crisis pregnancy centers” to provide information to clients including the availability of abortion. The pregnancy centers, whose real mission is pro-life/anti-abortion, say the act violates their First Amendment’s free speech rights.
The Constitution’s contracts clause was before the Court on Monday as the justices heard arguments in Sveen v. Melin about a state that law nullifies life insurance beneficiaries post-divorce. The dispute is between the children of Mark Sveen, who divorced four years before he died in 2011, and Sveen’s ex-wife, Kaye Melin.
If you’re wondering about Wednesday’s arguments, I wasn’t there. A snowstorm was rolling through and I, unlike the justices who are no snowflakes, decided not to chance the drive in from Baltimore.
After a sudden hospitalization last week, Justice Ginsburg – who I think has never missed a day of work – was back on the bench this morning to hear arguments.
Of this morning’s two cases the second, regarding a Pennsylvania man’s threatening rants on Facebook, drew the crowds. During the first I could see a few new members of the bar struggling to stay awake, although the Justices seemed to enjoy it.
The case, Elonis v. United States, was brought by Anthony Elonis who was convicted and served more than three years in prison for threatening his estranged wife with Facebook posts such as this one, “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”
Restrictions on First Amendment speech are permitted if that speech constitutes a “true threat”, but that can mean many things. Elonis’ lawyer, John P. Elwood’s position that his client had no intent to scare his wife, much less follow through on his threats, that he was only venting in a rap style caused Justice Ginsburg to ask, “How does one prove what’s in somebody’s mind?”
When it came the government’s turn at the lectern, Chief Justice Roberts asked, “So how do you start out if you want to be a rap artist? Your first communication you can’t say, I’m an artist, right?”
“I think you have a perfect freedom to engage in rap artistry,” replied Deputy Solicitor Dreeben. “What you don’t have perfect freedom to do is to make statements that are like the ones in this case where, after the individual receives a protection from abuse order from a court which was based on Facebook posts that his wife took as threatening, he comes out with a post and says fold up that PFA and put it in your pocket, will it stop a bullet?”
Opinions in some of the less prominent cases continue to trickle out of the Supreme Court as each day a few more cameras set up outside the court in anticipation of the big ones.
Of the three opinions announced from the bench today the most noteworthy was Lane v. Franks, concerning the First Amendment rights of a community college employee who was fired after testifying at the corruption trial of a state legislator who had been on the community college’s payroll for a no-show position. Justice Sotomayor said public employees should not have to choose between “the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.”
There are about ten cases still undecided, most of them biggies.
Edward Lane was fired from his job at an Alabama community college after testifying truthfully before a grand jury and at trial about corruption at the college. Lane sued saying he was let go in retaliation, but the lower courts, citing an earlier Supreme Court opinion, ruled against him. He was represented at the Court by lawyer Tejinder Singh, who I have to say was fun to draw.
On the other side of the argument were Alabama’s Attorney General, who’s drawing I never finished, and lawyer Mark Waggoner, who was at the lectern a bit longer.
You can read about it here.
Earlier, the Court heard arguments in a patent case, Nautilus v. Biosig Instruments. Biosig has a patent on a device used in exercise machines to measure heart rate. It’s basically a bar with incorporated electrodes that receive signals from contact with a person’s hands. Nautilus claims the patent is too vague, particularly in describing the placement of the electrodes.
Now comes Justice Breyer, “I’m a little confused here. Imagine there are two kinds of electrodes, a blue one and a green one, and you have a blue one and green one on left hand and a blue one and green one on right hand. . . you cannot let them touch . . . I got that. And suppose on your left hand you put the blue one here and the green one there. And in the right hand, you put the blue in here and the green in here. . . . Does it work or not?”
And so it goes for awhile until Justice Scalia interrupts, “Let the record show that [Justice Breyer] is holding his fingers in the air.”
Anyway, it’s all “insolubly ambiguous”.
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.