On June 8th the U.S. Supreme Court issued an order [pdf] effectively shutting down Arizona's public campaign finance system (Citizens Clean Election Commission) for this election cycle:
(ORDER LIST: 560 U.S.)
TUESDAY, JUNE 8, 2010
ORDER IN PENDING CASE
09A1163 MCCOMISH, JOHN, ET AL. V. BENNETT, AZ SEC. OF STATE, ET AL.
The application to vacate the stay of the District Court's injunction and to stay the mandate of the United States Court of Appeals for the Ninth Circuit in case No. 10-15165 presented to Justice Kennedy and by him referred to the Court is granted pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.
The Supreme Court on Tuesday morning blocked the state of Arizona from releasing further subsidy payments to candidates who are running for state offices this year with public financing. The order was issued without any noted dissent. The Court specified that the order would stay in effect until the Court acts on a coming appeal by challengers to the subsidy scheme. If review is granted, the order will stay in effect in the meantime, until a ruling emerges....
Oopsie, now there are serious problems. Those candidates who opted into the public finance system (along with its limitations) are now left holding an empty bag. The Arizona commission issued the following press release yesterday:
...COMMISSION RESPONDS TO ADVERSE MATCHING FUNDS RULING
PHOENIX, (June 9, 2010) -The Citizens Clean Elections Commission (Commission), the state agency that administers the Citizens Clean Elections Act, has taken two steps in response to the U.S. Supreme Court's unexpected ruling that struck down matching funds.
The Commission has asked Governor Brewer to call for a special legislative session to increase funds awarded to participating candidates in order to reduce the unfair effects of the ruling. In addition, the Commission is researching whether some clarification of an earlier U.S. District Court ruling might allow the Commission to declare an emergency and provide relief to impacted candidates.
"Candidates ran using the Clean Elections system with the understanding that the current funding levels would be in place for the entire election cycle," said Todd Lang, Executive Director for the Commission. "The legislature can remedy the situation by increasing the funding amount to the level expected by the people when they passed the Clean Elections Act, or by allowing participating candidates to drop out when funding is reduced."
Participating candidates are awarded matching funds if their traditional opponent(s) spends more than the participating candidate receives from the Commission. In addition a participating candidate may receive matching funds based on independent expenditures made either against their campaign or for their opponent(s). The funding is capped at three times the original spending limit....
What are the odds that the Missouri General Assembly would ever support public campaign finance legislation? No need to answer, it was a rhetorical question.
A 5-4 decision in Berghuis v. Thompkins [pdf] was released by the U.S. Supreme Court today, apparently narrowing Miranda. Justice Sonia Sotomayor wrote the dissent:
....JUSTICE SOTOMAYOR, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting.
The Court concludes today that a criminal suspectwaives his right to remain silent if, after sitting tacit and uncommunicative through nearly three hours of police interrogation, he utters a few one-word responses. The Court also concludes that a suspect who wishes to guard his right to remain silent against such a finding of "waiver" must, counterintuitively, speak-and must do so with sufficient precision to satisfy a clear-statement rule that construes ambiguity in favor of the police. Both propositions mark a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona, 384 U. S. 436 (1966), has long provided during custodial interrogation. The broad rules the Court announces today are also troubling because they are unnecessary to decide this case, which is governed by the deferential standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d). Because I believe Thompkins is entitled to relief under AEDPA on the ground that his statements were admitted at trial without the prosecution having carried its burden to show that he waived his right to remain silent; because longstanding principles of judicial restraint counsel leaving for another day the questions of law the Court reaches out to decide; and because the Court's answers to those questions do not result from a faithful application of our prior decisions, I respectfully dissent....
[emphasis added]
There's been some discussion of the use of the term "counterintuitively". I interpret it in the context that it would be counterintuitive for anyone being interrogated by the authorities to think that they would need to speak up to remain silent.
The lesson in all this? Never speak to the authorities unless you have your attorney present.
Upon learning of Justice Steven's upcoming retirement, Roy Blunt couldn't wait to be the first little GOPer on the block to twitter about his fear of the big, bad activist judges who harbor a secret yearning to usurp legislative prerogatives:
Justice Stevens is retiring. Obama should nominate a judge who won't legislate from the bench and will interpret the Constitution strictly.
So what exactly does "strict construction" of the Constitution mean to Blunt and others speakers of the special GOP lingo?
Perhaps strict constructionism entailed using that dandy little tool, the Equal Protection Clause of the 14th Amendment, to protect George W. Bush from the will of Florida voters?
Or perhaps the Roberts court was engaging in strict constructionism when it decided to use the Citizens United case to overturn decades of established precedent, and undo carefully crafted legislation in order to give reliably GOP-friendly corporations a new constitutional right to use their billions to influence electoral politics?
Could of fooled me both times - and a whole caboodle of legal experts as well.
So maybe what we learn here is that for Republicans who relearned English at Frank Luntz' knee, strict constructionism is really just judicial activism that the GOP likes?
The Obama administration wants the U.S. Supreme Court to help it recover $280 billion from the major tobacco companies, money described as "ill-gotten gains" from past racketeering violations.
"It's one of the most wrongheaded decisions in court history," said Sen. Chuck Shumer of New York, referring the Supreme Court's decision to allow corporations to spend unlimited amounts of cash supporting or opposing candidates.
Nobody would claim there needs to be more money in electoral theater, and yet removing any impedance to corporate political spending has some heralding the highest Court's recent ruling as a victory for free speech and others proclaiming the end of democracy that the "floodgates of corruption, now burst open."
...For the third time in recent years, this court is called upon to address a question under California law relating to marriage and same-sex couples...
...Accordingly, we conclude that each of the state constitutional challenges to Proposition 8 advanced by petitioners and the Attorney General lacks merit. Having been approved by a majority of the voters at the November 4, 2008 election, the initiative measure lawfully amends the California Constitution to include the new provision as article I, section 7.5...
...Finally, we consider whether Proposition 8 affects the validity of the marriages of same-sex couples that were performed prior to the adoption of Proposition 8. Applying well-established legal principles pertinent to the question whether a constitutional provision should be interpreted to apply prospectively or retroactively, we conclude that the new section cannot properly be interpreted to apply retroactively. Accordingly, the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid and must continue to be recognized in this state...
The right wingnut Mighty Wurlitzer has been going after Sonia Sotomayor for the simple reason that she was on President Obama's short list for the U.S. Supreme Court vacancy.
With last week's news that President Obama will soon get to choose a Supreme Court nominee, media immediately began speculating about who he would choose. And, just as quickly, some media started trying to undermine potential selections. (Back when Democrats were expressing skepticism about President Bush's nomination of Samuel Alito to the high court, the media chastised them for "pre-judging" the nomination. Now the media itself is rushing to judge nominees before they are even nominees. What a difference a few years make.)
Second Circuit Court of Appeals judge Sonia Sotomayor has been the subject of the harshest criticism, led by New Republic writer Jeffrey Rosen. Rosen took a brief glance at Sotomayor's rulings, talked to a few people who don't like her, and typed up their anonymous complaints. Sound like an overly harsh assessment of Rosen's research? It isn't. In fact, that's pretty much how Rosen himself describes his research...
Associate Supreme Court Justice Antonin Scalia on March 4, 2008 in Warrensburg, Missouri:
[Do you believe that there is a right to privacy under the United States Constitution?]
Oh, there certainly is and it us, uh, contained in the Fourth Amendment. And it says "that the people shall be secure in their persons, houses, papers and effects against unreasonable searches and seizures." Period. There is not a generalized right of privacy, whatever that means. What is a generalized right of privacy [garbled]? One of our, one of our, one of our opinions says it means "the right to be left alone". [laughter] Right. This is anarchy...
...[wire tapping] So, there is no, what should I say, exclusion from democratic debate of - conversations. It's something for the people to decide whether you should have wiretapping or not....[as practice now]...This generalized right of privacy which comes from, what is it, penumbras and emanations from the Fourth and a lot of other ridiculous stuff. Uh, you know the consequences of that? Surely one of the major policy issues around these days is whether, uh, the Federal government can listen in on these international phone calls to find what the bad guys are doing. It used to be up to the Congress to decide whether the danger was high enough and the risk of invading people's privacy high enough to permit that. No longer. It's a question for me now. It's a question for me. That's what happens when you, when you read more and more stuff into the Constitution - you reduce democracy.
Last year, when law professor Joel Reidenberg wanted to show his Fordham University class how readily private information is available on the Internet, he assigned a group project. It was collecting personal information from the Web about himself.
This year, after U.S. Supreme Court Justice Antonin Scalia made public comments that seemingly may have questioned the need for more protection of private information, Reidenberg assigned the same project. Except this time Scalia was the subject, the prof explains to the ABA Journal in a telephone interview...
...And, as Scalia himself made clear in a statement to Above the Law, he isn't happy about the invasion of his privacy:
"Professor Reidenberg's exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any," the justice says, among other comments...
...The second highest ranking Republican in the Senate, just a few days after the election, is already talking about blocking Supreme Court nominations that haven't been named, in response to Supreme Court vacancies that don't exist...
Jon Kyl, the second-ranking Republican in the U.S. Senate, warned president-elect Barack Obama that he would filibuster U.S. Supreme Court appointments if those nominees were too liberal.
Kyl, Arizona's junior senator, expects Obama to appoint judges in the mold of U.S Supreme Court Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer. Those justices take a liberal view on cases related to social, law and order and business issues, Kyl said.
"He believes in justices that have empathy," said Kyl, speaking at a Federalist Society meeting in Phoenix. The attorneys group promotes conservative legal principles.
Kyl said if Obama goes with empathetic judges who do not base their decisions on the rule of law and legal precedents but instead the factors in each case, he would try to block those picks via filibuster...
Steve Benen points out that John Kyl (r - Arizona) was against judicial appointment filibusters before he was for them:
SEN. JOHN KYL: ...This is strictly about whether or not a minority of senators is going to prevent the president from being able to name and get confirmed judges that he chooses after he's been elected by the American people. And it's never been the case until the last two years that a minority could dictate to the majority what they could do...
...No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice...
Today the United States Supreme Court restored habeas corpus in a 5-4 opinion.
ACLU...In a stunning blow to the Bush administration's failed national security policies, the Supreme Court ruled today 5-4 that the U.S. Constitution applies to the government's detention policies at Guantánamo. The Court concluded that detainees held at Guantánamo have a right to challenge their detention through habeas corpus....
Associate Justice Antonin Scalia issued a dyspeptic dissent.
...Scalia said the nation is "at war with radical Islamists" and that the court's decision "will make the war harder on us. It will almost certainly cause more Americans to be killed..."
The Raw Story
...Democratic presidential contender Sen. Barack Obama is again facing questions about his patriotism from some conservative blogs -- this time for apparently failing to put his hand over his heart during a rendition of the national anthem at an Iowa campaign event....
In 1943, at a time when we were at war, the United States Supreme Court had a thing or two to say about "required" displays of patriotism.
