Liberals (including President Obama) think the Supreme Court was wrong in Citizens United to say that corporations have free speech rights, but newspaper and book publishers are corporations. For some reason, the NYT is acting like it took a year to notice this hitch (which has been perfectly evident since the Citizens United litgation began in the lower courts). I guess the excuse for pretending not to see what was obvious is that it has been hoping to rely on the notion that some corporations have more rights than others. This new piece — a column by Adam Liptak — begins to concede that is an unworkable argument.
“There is no precedent supporting laws that attempt to distinguish between corporations which are deemed to be exempt as media corporations and those which are not,” Justice Kennedy wrote in Citizens United....
Eugene Volokh, a law professor at the University of California, Los Angeles, has reviewed the historical evidence. The bottom line, he said, is this: “If ordinary business corporations lack First Amendment rights, so do those business corporations that we call media corporations.”
But Liptak's column peters out with a quote from a lawrpof who calls it a "difficult question" and...
There good arguments both ways about whether corporations ought to be covered by the First Amendment. But it is harder to say that some corporations have First Amendment rights and others do not.
Yes, yes, it's obvious what the answer needs to be, and yet the debate must go on and on because it's so important to restrict the speech of people who organize themselves into corporations. Some of them. The bad guys. Not the good guys, like the ones who take a year to getting around to half-conceding the crushingly obvious.
Crawford asked Scalia if he ever found himself in a situation where he was torn between his personal conscience and his professional duty as a justice. He said no. After Crawford expressed a hint of incredulity — you’ve never encountered such a situation, in your many years on the bench? — Scalia quipped, “Maybe I have a lax conscience.” The resulting laughter cleared the air nicely.
Conversation turned to whether the Supreme Court’s opinions offer adequate guidance to the lower courts and litigants — a topic recently raised in this fascinating New York Times article by Adam Liptak, which Crawford explicitly referenced. Scalia appeared to agree with the general thrust of the piece.
“You can write a fuzzy decision that gets nine votes,” Scalia said, “or a very clear decision that gets five votes.”
On the subject of putting Supreme Court oral arguments on video, Scalia said he disapproved. He thought it would mainly lead to out-of-context clips. He thought he'd look great in those clips though: "I could ham it up with the best of them on television... I’d do very well." Lat calls that boasting, but I see modesty. Best of them implies that he doesn't think he is the best oral-argument entertainer. But he is!
On the subject of attending the President's State of the Union Address, he said: “It is a juvenile spectacle, and I resent being called upon to give it dignity…. It’s really not appropriate for the justices to be there.”
On the subject of hiring clerks from Harvard and Yale law schools:
"The best minds are going to the best law schools. They might not learn anything while they’re there [laughter], but they don’t get any dumber."
Note how Scalia did not use politically correct terminology. The PC approach calls for referring to the “highest ranked” law schools rather than the “best” law schools.
I must chide Lat for not seeing the political incorrectness of saying "the best minds." Or has Allen Ginsberg's "Howl" made "best minds" seem like a standard phrase? "I saw the best minds of my generation destroyed by madness, starving hysterical naked...." That's not innocuous. "Best minds" should prick up our attention and make us feel that something is not right.
Surely, the applicants that Harvard and Yale smile upon are not really our "best minds." Perhaps they are the "best minds" that are applying to law school in any given year, but I don't think even that is true. You have to do too many things right, too diligently, too early in life to hit the law school application sweet spot and get into the most selective schools. The best minds will have resisted acquiring the conventional indicia of career promise.
Come to think of it, Lat is also wrong to say that "highest ranked" is the preferred terminology for law schools. In academia, "highest ranked" implies highest ranked by U.S. News, and it is the proper thing to loathe U.S. News. It lacks the nuance to perceive the subtle qualities that make our favorite law schools so damned special.
Seriously... I think Scalia, being a good writer and speaker, simply believes that short, simple words are... best.
The blog is First One @ One First, and the student, Mike Sacks, now has it linked in The New York Times. Congrats!
The big case today where he got beaten by "Robert Cumberland and Larken Euliss, two chemists from California," deals with whether the Second Amendment is applicable to the states via the 14th Amendment.
Liptak tacks left. Or, uh, the Court tacks right. John Roberts is a big right winger. Just look — look! — at all that incremental minimalism he's insidiously inflicting on us with the assistance of the mushily malleable Anthony Kennedy, that infuriatingly enigmatic Justice whom the smiling villain Roberts controls in ways that neophyte Sonia Sotomayor will never understand.
The case, brought by white firefighters in New Haven who were denied promotions after an examination yielded no black firefighters eligible for advancement, featured claims of race discrimination on both sides. It was, Justice David H. Souter said, a “damned if you do, damned if you don’t situation.”
Had the city allowed the promotional exam to stand, Justice Souter said, it would have faced a lawsuit from black firefighters. When it threw out the test, promoting no one, it was sued by 18 white firefighters, one of them Hispanic, who claimed race discrimination.
The city said that throwing out a flawed test was a racially neutral act. Because no one was promoted, the city said, no one was singled out on the basis of race. But Justice Antonin Scalia was having none of that.
“It’s neutral because you throw it out for the losers as well as for the winners?” he asked. “That’s neutrality?”...
The city “looked at the results, and it classified the successful and unsuccessful applicants by race,” Justice Kennedy said to Edwin S. Kneedler, who represented the federal government. “And then you want us to say this isn’t race? I have trouble with this argument.”...
Chief Justice John G. Roberts Jr. [asked] the lawyer for New Haven, Christopher J. Meade. “Why is this not intentional discrimination?” Chief Justice Roberts asked. “There are particular individuals here,” he continued, “and they say they didn’t get their jobs because of intentional racial action by the city.”
Mr. Meade said the city should be afforded protection because it was trying to comply with a federal law.
Read the whole thing. This is genuinely a complicated problem, as the Breyer hypotheticals at the end of the article demonstrate.
"I am often surprised by the virtual nobility that seems to be accorded those with grievances. Shouldn’t there at least be equal time for our Bill of Obligations and our Bill of Responsibilities?"
Said Justice Clarence Thomas, who admits to being "morose sometimes," who retreats to his basement to rewatch "Saving Private Ryan" when things get "particularly routine," and who gets down on his knees and prays for strength, wisdom, and courage — but not the right answer — to decide difficult cases.
The linked article is by Adam Liptak, who curiously fails to see the humor in Thomas's mention of the dormant commerce clause.
... why highlight the question of whether a particular convict may have been innocent? To answer the question correctly and establish a legal rule on the subject, you have to assume the litigant was guilty. Does the NYT think this is what must be done to interest readers in stories about constitutional law? Or does it really hope to push public opinion on legal issues by stimulating a clutter of emotions?
ADDED: Here's a contemporaneous news report of the sentencing:
Regardless of the boy's age, he deserved the maximum sentence because he has a long criminal history, including an assault on a mental health clinic counselor and a burglary during which he killed a dog, Assistant State Attorney Larry Kaden said.
[Judge Nicholas] Geeker agreed.
"He is beyond help," the judge said. "The juvenile system has been utterly incapable of doing anything with Mr. Sullivan."
Because of the youth's record and other factors, state sentencing guidelines called for the life terms with no provision for parole, Kaden said....
[Sullivan] was accused of breaking into the woman's Pensacola area home when she was away May 4 and stealing jewelry and cash, then returning later the same day to rape her twice at knifepoint.
