ACS released an issue entitled "The Seventh Amendment: The Key to Reversing Buckley v. Valeo" by William P. Kreml, distinguished professor emeritus at the University of South Carolina--Columbia. Professor Kreml argues that our campaign finance system implicates the relationship between debtors and creditors, with large campaign contributions being similar to unencumbered contracts of the eighteenth century that undermine the democracy that the Bill of Rights was enacted to protect, and therefore the regulation of such contributions is constitutional.

This is the first in a series of posts by Geoffrey R. Stone, professor of law at the University of Chicago Law School, on "Constitutional Vision."

Supreme Imbalance

We are now several weeks into the Supreme Court’s 2007 Term. We should keep a watchful eye on the Court. With Chief Justice Roberts and Justice Alito now firmly ensconced, we might be on the verge of a significant paradigm-shift within the Court. If their performance last Term is any indication of what is to come, we may be in for quite a ride.

In the media, we constantly read about how “closely divided” the Court is and about how many cases are decided by a vote of five-to-four. There are, according to the media, the “conservative” Justices – Scalia, Thomas, Roberts, and Alito; the “liberal” Justices – Stevens, Souter, Ginsburg, and Breyer; and Justice Kennedy -- the “man in the middle.” The impression created by such accounts is that this is an “evenly balanced” Court. This is a fallacy, and a dangerous one at that. What do we mean by “balance”? Why don’t the many five-to-four decisions prove that this is a “well-balanced” Court?

Linda Greenhouse in the New York Times reports that a grant of stay of execution last night "gave a nearly indisputable indication that a majority intends to block all executions until the court decides a lethal injection case from Kentucky next spring."

The Supreme Court’s action on Tuesday night clarified a situation that had become increasingly confusing as state courts and the lower federal courts, without further guidance from the justices, wrestled with claims from a growing number of death-row inmates that their imminent executions should be delayed.

State and lower federal courts are likely to interpret the Supreme Court’s action as a signal that they should postpone executions in their jurisdictions. As a result, the justices will probably not have to consider any more last-minute applications from inmates while the de facto moratorium is in effect.

The Washington Post today reports that administration officials say "The White House plans to try implementing as much new policy as it can by administrative order while stepping up its confrontational rhetoric with Congress . . . ."

Last Friday, ACS and the American University Washington College of Law held a conference entitled "The American Prosecutor: Power, Discretion and Accountability." The agenda is available here.

C-Span covered the event, and a two-hour video excerpt from the conference is available here.

ACS welcomes submissions to the 2008 Richard D. Cudahy Writing Competition on Regulatory and Administrative Law.  The competition is open to practicing lawyers, policymakers, academics, and law students.

Judge Cudahy's work in regulatory and administrative law combines a keen grasp of legal doctrine, deep insight into the institutional forces that determine how doctrine is implemented, and an appreciation of the public impact of doctrinal and institutional choices, including the consequences for fundamental values such as fairness, participation, and transparency. This competition seeks to encourage and reward these qualities in the scholarship of others.

Adam Cohen has an op-ed in today's New York Times where he observes that "the founders wanted the 'people’s branch' to be strong, but the Bush administration has usurped a frightening number of Congress’s powers — with very little resistance."

He notes that the administration's nominee for Attorney General believes "a president can defy laws if he or she is acting within the authority 'to defend the country,'" and would likely refuse to follow federal law and refer to a grand jury for criminal prosecution, upon Congress' request, a witness who invokes executive privilege in response to a Congressional subpoena.

Cohen argues that Congress has allowed its power to erode. He cites the President's use of signing statements and a GAO report that concludes, "in nearly one-third of the cases . . . after President Bush issued a signing statement objecting to a provision of a new law, his administration did not implement [the law] as written."  He adds the "Senate has routinely confirmed judicial nominees who make no secret of their belief that the president’s power should be sweeping, and Congress’s sharply cut back."

Cohen makes a series of prescriptions for Congress to regain its attenuated powers:

[Congress] can start by speaking out about the importance of Congressional power the way the administration has talked about deferring to the commander in chief. Congress should pass laws that support its own power — like a bipartisan one that Senator Arlen Specter, Republican of Pennsylvania, has introduced to nullify the impact of signing statements.

The Senate should refuse to confirm nominees who do not take Congressional power seriously. And Congress should make clear that if the executive branch will not enforce its subpoenas, it will use its own “inherent contempt” powers to do so.

As a side note, ACS made available the first comprehensive index of presidential signing statements issued between 2001 and 2007.  It was compiled by Professor Neil Kinkopf, author of a prior ACS Issue Brief on Signing Statements and the President's Authority to Refuse to Enforce the Law, released last year.

by Camille Gear Rich, assistant professor of law at the University of Southern California Gould School of Law.

This term in United States v. Williams, the Supreme Court will turn its attention to Congress’s latest attempt to curb the market for child pornography. At issue is the “pandering” provision in the 2003 Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”). The provision makes it illegal to solicit, distribute, present or offer “actual child pornography” — a sexually explicit visual representation of a real minor — or any visual representation of a minor engaging in obscene behavior. 

The PROTECT Act’s pandering provision would garner almost no attention if it merely attempted to regulate real offers to transact in child pornography, cases where the material involved is indisputably illegal in nature.  However, the pandering provision goes much further, criminalizing “purported offers”— offers that characterize otherwise lawful representations as illegal child pornography by emphasizing the material’s prurient appeal. The First Amendment question here is, if the pictures being “pandered” are lawful, can Congress criminalize speech drawing attention to the pictures’ sexual nature, or has Congress committed the ultimate First Amendment sin with its new pandering offense, prohibiting the mere expression of unpopular ideas?

This morning, the Supreme Court will hear argument in the First Amendment case U.S. v. Williams. Camille Gear Rich, assistant professor of law at the University of Southern California Gould School of Law, wrote a guest blog entry (above) that discusses the case.

In the video below, Paul Smith, a partner with Jenner & Block LLP, examines Williams. Follow the link for full video from ACS' Supreme Court Preview. A transcript of Smith's remarks are available below the fold.

by John Weaver, Editor-At-Large

University administrators are closely watching developments in Robertson v. Princeton University, a New Jersey case concerning a $35 million donation given to Princeton in 1961 for its Woodrow Wilson School of Public and International Affairs by Marie Robertson. The donation created the Robertson Foundation, which Princeton operates through university-appointed trustees to fund the school.

In their lawsuit, Robertson’s heirs assert the gift was intended to prepare students for work in the federal government, the Wilson School is not doing so, and that Princeton has used the money for other ends. Princeton argues the terms of the donation do not require students to prepare for government careers, rather that its terms state students "may prepare" for government careers. The university also points to graduates like Anthony Lake, a former national security adviser to President Bill Clinton, and General David Petraeus, who have entered public service.

The Robertsons filed suit in 2002, alleging Princeton misused $200 million of the Foundation's money, which would have generated $400 million had it had been invested in the Wilson School.. The trial will decide whether the Robertson Foundation's Princeton-designated trustees will continue in their roles and whether Princeton must compensate the Foundation for misuse of its funds. The family is seeking the nearly $900 million endowment be removed from Princeton’s control, as well as $600 million in damages. Superior Court Judge Neil Shuster declared that the Robertson Foundation would only be removed from the university under “the most egregious and nefarious of circumstances.”

Higher education currently receives more donations than ever before – $28 billion in 2006 – and university administrators are concerned about the implications for the terms and conditions of gifts. Some hope this lawsuit will result in universities being more responsive to donor needs. However, John Lippincott of the Council for Advancement and Support of Education argues that major gifts are already predicated upon “long-term relationships built on trust and mutual interest.”

Others worry that a major decision against Princeton will adversely affect the growth of higher education. Joseph Nye, a former dean of Harvard’s Kennedy School of Government, said that “If the heirs of donors are allowed to micromanage an academic institution a generation after a gift has been given, it will seriously curtail the creativity and initiative that has marked the recent administration of the Wilson school as well as set a bad precedent for other academic institutions.”

In Brief:

• Trends in the Supreme Court
• Real-world application of laws requiring photo identification
• More questions for Mukasey
• Telecom Immunity and NSA Oversight
• Challenge to mandatory school prayer law
• Money and state Supreme Court elections
• New book documenting torture
• A speech on the Roberts' Court
• Testimony on "voter caging"

Identification Law
The California wildfires are exposing undocumented immigrants to government arrest and deportation, with government officials separating families as they seek refuge. New York's governor announced a plan to give undocumented immigrants a special type of driver's license.

Mukasey Nomination
More Senators are raising questions about Michael Mukasey's position on torture, possibly imperiling his confirmation. It is unclear whether questions regarding the whereabouts of so-called "ghost prisoners" who spent time in CIA overseas prisons will also play a role in the vote on Mukasey. 

Below the fold is a selected list of Congressional hearings scheduled for the upcoming week. A complete list of hearings is available here.

Of note: a Tuesday oversight hearing before the House Judiciary Committee on the Voting Rights Section of the Department of Justice, an examination by the Senate Judiciary Committee on Wednesday regarding amending FISA, and a hearing on Thursday to consider the nomination of John Tinder to the U.S. Court of Appeals for the Seventh Circuit.

The U.S. Supreme Court today granted certiorari in two cases: Exxon v. Baker and Allison Engine v. U.S.

SCOTUSBlog provides a preview of the two cases.  In Exxon, the Court will examine the intersection between the $2.5 billion punitive damages award against Exxon for the oil spill in Alaska in 1989 and maritime law (the Court will not consider a Due Process claim against the award). In Allison Engine, the Court will consider the scope of the the Federal False Claims Act.

The U.S. Supreme Court will hear argument in five cases this week. Video of ACS' Preview of the 2007-2008 Supreme Court Term is available in ACS' Multimedia Library.

Monday, Oct. 29

• Klein v. Bd. Of Trade (commodities futures trading market)
• Ali v. Fed. Bureau of Prisons (scope of FTCA waiver of sovereign immunity)

 Tuesday, Oct. 30

• U.S. v. Williams (validity of anti-simulated child pornography pandering law)
• Logan v. U.S. (whether action counts towards sentence enhancement)

 Wednesday, Oct. 31

• Danforth v. Minnesota (whether state courts may apply broader retroactivity standards than the supreme court)

 Questions Presented are below the fold.

Howard Bashman wrote at Law.com last week about a federal case challenging, on federal Due Process grounds, a California state appellate court rule prohibiting citation to unpublished judicial opinions.

In the federal suit, the plaintiff alleges harm on two theories: first, that unpublished opinions are less likely than published opinions to attract the interest of higher courts wielding discretion over which cases they hear, and second, that the rule against citing unpublished decisions precluded him from citing favorable unpublished precedents.

Last Tuesday, former Attorney General Richard L. Thornburgh, who served from 1988 to 1991 under Presidents Ronald Reagan and George H. W. Bush after serving two terms as Governor of Pennsylvania, testified before the House Judiciary Committee about political bias at the Justice Department.

Thornburgh criticized the prosecution of Cyril Wecht, whom he characterized as "a contentious, outspoken, highly critical and highly visible Democratic figure in western Pennsylvania," by U.S. Attorney Mary Beth Buchanan. Thornburgh said Wecht was "an ideal target for a Republican U.S. attorney trying to curry favor with a department which demonstrated that if you play by its rules, you will advance," and also that Wecht "was not the only apparent political prosecution in western Pennsylvania."

On Thursday, Representative Artur Davis (D-AL) criticized the prosecution of former Alalama Governor Don Siegelman, noting "the possibility that if chief prosecutors were axed for not being partisan enough . . . the Justice Department may have actively encouraged prosecutors who were willing to use their power as a political sword." 

On Tuesday, the U.S. Court of Appeals for the Sixth Circuit overturned a district court decision and held that the Child Protection and Obscenity Enforcement Act of 1988 is unconstitutionally overbroad and therefore violates First Amendment free speech rights, in Connecting Distribution Co. v. Keisler.

Internet watchdogs denounced Comcast for "censorship" and called for "net neutrality" legislation after the Associated Press' Peter Svensson reported that tests revealed that Comcast was blocking some forms of internet file-sharing traffic.

Out of three attempts to transfer the King James Bible between two computers in Philadelphia and San Francisco, two attempts were blocked, and the third was delayed by ten minutes. The AP also found that "Comcast's computers masqueraded as those of its users to interrupt file-sharing connections," effectively shutting down connections.

Comcast later admitted "delaying" some internet traffic, saying that if the computers keep trying, Comcast would eventually let some of the traffic through. Comcast also may be blocking e-mails with large attachments sent through Lotus Notes.

Stories:

• Former Deputy Attorney General Jamie Gorelick discussed turmoil at the Justice Department, her time on the 9/11 commission, and her experience as General Counsel at the Defense Department when "Don't Ask, Don't Tell" was implemented, in a podcast from the ACS student chapter at Stanford Law School.
• An expose by two bloggers who revealed that a redacted Second Circuit opinion contained allegations of coercion that occurred during an FBI interrogation related to 9/11.
• A report that reveals the U.S. terror watch list now contains 755,000 names, and that the list is now used in nearly all routine police stops and for domestic airline travel.
• A report on a study suggesting that SCOTUS is more receptive to veteran advocates, by Georgetown University Law Professor Richard Lazarus.
• The FCC plans to relax media ownership rules; a federal appeals court upheld a FCC ruling that effectively deregulated high-speed Internet services.

• A transcript of the recent ACS panel discussion on principles to guide the Department of Justice.
• An ACS issue brief addressing the growing debate over the use of foreign and international law sources by U.S. judges engaged in constitutional adjudication, by Chimène I. Keitner.
• Video from a recent ACS panel, “Voter Fraud Laws: Preventing Fraud or Suppressing the Vote?” where leading experts discussed how voter photo-ID laws impact our democracy.

White House press secretary Dana Perino said that because Intelligence Committee Chairman Jay Rockefeller (D-VA) and ranking member Senator Kit Bond (R-MO) "showed a willingness" to amend FISA legislation to include immunity for telecommunications companies that provided consumer data to the National Security Agency, the Bush administration was "willing to show them some of the documents that they asked to see." The Senate Intelligence Committee approved amendments to FISA that included telecom immunity.

The Senate Judiciary Committee will also consider the legislation; Chairman Patrick Leahy (D-VT) and ranking member Senator Arlen Specter (R-PA) wrote to President Bush conditioning "the production of information on prior Senate agreement to provide retroactivity immunity" is "unacceptable and would turn the legislative process upside down."

Judge Michael Mukasey received two letters from members of the Senate Judiciary Committee regarding his testimony in recent confirmation hearings.

Ranking member of the Senate Judiciary Committee Arlen Specter (R-PA) wrote to request Mukasey's "views on the scope of the President's Article II powers to disregard an explicit statutory requirement. If you believe the President can act outside the law, how do you square that belief with your statement at the hearing that 'The President doesn't stand above the law[?]'" Specter added that "it is necessary for you to respond in detail as to your views on the legality and propriety of water-boarding and the appropriate scope of interrogation under U.S. law and the Geneva Convention."

The Georgia Supreme Court ruled that a ten-year prison sentence for consensual oral sex between a 17-year-old and 15-year-old constitutes cruel and unusual punishment. The 4-3 decision reversed Genarlow Wilson's conviction for aggravated child molestation following a party where he was videotaped having oral sex with the 15-year-old girl. Wilson has already served 2 years.

The Georgia law that resulted in Wilson's conviction was reclassified subsequent to his conviction as a misdemeanor; the state Supreme Court had held the 2006 law could not be applied retroactively and his felony conviction would stand.

The U.S. Supreme Court will hear argument in Danford v. Minnesota on October 31, which considers whether state Supreme Court decisions must use the U.S. Supreme Court’s standard in applying criminal law decisions retroactively or instead may expand retroactive application of those decisions to a broader class of criminal defendants

Tony Mauro of the Legal Times reports on a study by Georgetown University Law Professor Richard Lazarus that suggests veteran advocates sway the Supreme Court. Moreover, the role of those veteran advocates, according to Lazarus, may be directly connected to the "Court's widely noted new pro-business tilt."

Clients willing to plunk down $100,000 or more for a veteran advocate to petition the Court are elbowing aside the civil rights, civil liberties, and labor groups that once helped set the Court’s agenda, the study suggests. Recent breakthrough victories for business in tort, antitrust, and other areas of the law can’t be explained totally by the Court’s overall conservative majority, Lazarus says. The elite Supreme Court Bar has played a pivotal role, he asserts.

Mauro explains Lazarus' reasoning:

The justices and their law clerks, it seems clear, pay special attention to the briefs and arguments of these virtuosos of the bar. . . . Lazarus cites a 2004 survey published in the Journal of Law & Politics indicating that 88 percent of law clerks openly acknowledged giving extra consideration to briefs filed by what one called the “inner circle” of the Supreme Court Bar.

Not all share Lazarus' conclusions.

“Effective advocacy can impact the Court, but the heightened success of business has been in the works for 25 years,” says Latham & Watkins’ Maureen Mahoney, who argued four cases last term. “And you’ve got seven Republican appointees on this Court who have a high interest in these cases.”

Akin Gump Strauss Hauer & Feld’s Thomas Goldstein makes a similar point. “We advocates tend to think it’s all about the lawyering. But the most important trend by far is the increasing conservatism and pro-business orientation of the justices themselves.”

ACS is pleased to announce the third annual Constance Baker Motley National Moot Court Competition in Constitutional Law. ACS wishes to thank Boies, Schiller & Flexner LLP, the National Sponsor of the competition.

In recognition of the upcoming general elections and the fact that in 38 states judicial candidates must stand for election, the legal problem involves timely and open questions on the role of state elections and the goal of ensuring a fair and independent judiciary. Specifically, competitors will brief and argue whether state rules precluding judicial candidates from personally soliciting campaign contributions and restricting their partisan political activities violates the First Amendment.

Wired reports on a GAO Report (full version, summary) that says the

nation's centralized watch list has grown to include 755,000 names suspected of having terrorist ties, resulting in nearly 20,000 positive matches of persons against the list in 2006, according to a new report from Congress's investigative reporting arm. Since the list is now used in nearly all routine police stops and for domestic airline travel, Americans made up the bulk of those matches.

The article notes that "individuals who believe they are on the list erroneously or because of a confusion over their name can apply for help through the DHS Advise system, but it is not set up to allow people to contest the information that got them on the list."

The GAO acceded to government request to remove information regarding the frequency the list is used to arrest suspected terrorists or deny entry to the U.S. The article also notes that being on the list is not necessarily enough to deny entry to the country or result in an arrest.