SCOTUS

The Next Regulation? Your Tweets

Out in California, the Fair Political Practices Commission is looking at regulating new platforms for political speech, such as Facebook, Twitter, YouTube, even text messaging:

It’s become necessary as politicians in California and elsewhere announce their candidacies and major campaign policies through Twitter, YouTube and a host of social networking sites, said FPPC Chairman Dan Schnur.

He said California’s 36-year-old Political Reform Act needs rewriting to keep up with the times.

“Our goal here is to meet the new challenges of 21st Century technology,” Schnur said. “There’s no way that the authors of the act could have anticipated that these of types of communicating a campaign message would ever exist.”

Over at the Institute for Justice, Paul Sherman writes:

To paraphrase Chief Justice John Roberts, this is why we don’t leave our free speech rights in the hands of FPPC bureaucrats.  To bureaucrats like those at the FPPC, the Federal Election Commission or their analogues, there seems to be no need to show any evidence that Twitter, Facebook or text messages actually pose any threat to the public.  It is enough that they these new forms of low-cost media aren’t currently regulated, but could be.  Their primary concern, apparently, is that the regulation of political speech be as comprehensive as possible.

Kagan confirmed to Supreme Court

Yesterday, the United States Senate confimed Elena Kagan to the Supreme Court by a vote of 63 to 37 (five Republicans voted for Kagan, one Democrat voted against her):

Chief Justice John Roberts will swear in Elena Kagan as the nation’s 112th Supreme Court justice on Saturday, making one-third of the nation’s highest court women for the first time in history.

Supreme Court spokeswoman Kathy Arberg said Roberts telephoned Kagan to offer “warm congratulations” Thursday, shortly after the Senate confirmed her to the post. The 63-37 vote represented a victory for President Obama, who has doubled the number of women ever named to the Supreme Court with his first two nominees.

“I am confident that Elena Kagan will make an outstanding Supreme Court justice,” Obama said in Chicago, where he was traveling. “And I am proud, also, of the history we’re making with her appointment.”

Kagan, 50, was the first woman to serve as U.S. solicitor general and the first woman dean of Harvard Law School. When the court reconvenes on the first Monday in October, Kagan will join Ruth Bader Ginsburg and Sonia Sotomayor as the first trio of women serving together as justices.

We’ve pointed out some of the questions about Kagan. Her views on the free speech, the Second Amendment and the Commerce Clause are questionable, at best. There is little question that she will be another vote for the power of the state.

Federal judge strikes down Proposition 8

Yesterday, U.S. District Court Judge Vaughn Walker struck down Proposition 8, a ballot measure approved by voters in California in November 2008, because it violates the Due Process Clause of the Fourteenth Amendment.

The legal challenges are by no means over. Supporters of Proposition 8 will appeal to the Ninth District Court of Appeals, and eventually this will make it to the Supreme Court. Because of this Walker’s ruling does not allow gay marriages to be conducted interim.

As Walker notes in his opinion, “The freedom to marry is recognized as a fundamental right protected by the Due Process Clause.” This right was reaffirmed in Turner v. Safley, in an opinion written by Justice Sandra Day O’Connor, in which she was joined by William Rehnquist and Antonin Scalia.

You can read Judge Walker’s opinion in the case here. Below are some excerpts from the decision (citations have been removed):

Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.

Plantiff in Second Amendment case applies for gun permit

Otis McDonald, the plantiff in the recent Supreme Court decision that incorporated the Second Amendment to the states, has applied for his gun permit:

Two years after filing a lawsuit that ultimately forced the city to dismantle its 28-year-old handgun ban, Otis McDonald walked into a police station Monday and applied for a permit allowing him to keep a gun at home.

The process took only 20 minutes, but McDonald said some of the requirements to obtain the permit seemed excessive. And though a gun permit was worth any price for him, he said he is concerned that the $100 fee could deter some law-abiding citizens from buying a handgun.
[…]
McDonald showed up at the police station along with the three other plaintiffs in the lawsuit that successfully challenged the handgun ban, who also applied for firearm permits. It could take 10 days to three months for workers to process the applications.

“I wouldn’t be surprised if it took three months in the face of all the difficulties being thrown up to us citizens who are only striving to protect ourselves,” said McDonald, 76, the lead plaintiff in the lawsuit.

The new regulations in Chicago are still overbearing. The new law limits an individual to one operable firearm, restricts firearms outside the residence and mandating gun training. But, it is better than the outright ban in place before the Court’s ruling.

H/T: Reason

Judiciary Committee sends Kagan nomination to Senate floor

Yesterday, the Senate Judiciary Committee voted to send the nomination of Elena Kagan to the floor by a vote of 13 to 6:

The Senate Judiciary Committee on Tuesday approved the nomination of Solicitor General Elena Kagan to become the nation’s fourth female Supreme Court justice, setting up a final confirmation vote by the Senate.

The committee vote broke down mostly along partisan lines, with one Republican joining the panel’s Democrats in sending the nomination to the full Senate on a 13-6 vote.

Democrats repeatedly characterized Kagan as a strong legal thinker who would be a fair judge, while Republicans slammed her as an inexperienced activist who would be unable to divorce her legal judgments from her political opinions.

Members on both sides expressed frustration with a confirmation hearing process many observers say increasingly yields few clear answers about a nominee’s judicial philosophy.

In case you’re wondering the Republicans that voted for Kagan, who has a questionable record on basic civil liberties like free speech and self-defense, it was Lindsey Graham (R-SC). That comes as a shocker, I’m sure.

With Graham’s defection, Kagan’s confirmation is a lock.

The Citizens United Debate

The Institute for Justice brings us The Citizens United Debate, where Steve Simpson and Ilya Shapiro (arguing for the First Amendment) debated Richard Hasen and Jamin Raskin (arguing against the First Amendment) on the Citizens United decision by the Supreme Court from earlier this year that has reignited debate on campaign finance law.

Here is the first part of the debate:

Part 2:

Will Kagan recuse herself from ObamaCare case?

If Elena Kagan is confirmed to the Supreme Court, she may not help ObamaCare when and if comes before the the court. Michael Cannon explains:

Kagan has already told the committee she would recuse herself from any case in which she “participated in formulating the government’s litigating position.”  Given that she appears to take an expansive view of Congress’ power to regulate interstate commerce, the best possible outcome for opponents of ObamaCare would probably be for Kagan to join the Court but recuse herself from cases challenging that law.

That would also be the worst possible outcome for the administration.  In fact, universal coverage is so important to the Left that if Kagan would leave them with one less pro-ObamaCare vote on the Court, I wouldn’t be surprised to see President Obama withdraw her nomination.  He could then appoint someone as ideologically reliable as Kagan, but who could actually defend the president’s signature accomplishment.

This could get interesting.

I don’t trust Antonin Scalia or Anthony Kennedy, but the court does seem to have it out for President Obama since his absurd comments about the Citizens United case, an opinion authored by Kennedy, during his State of the Union address.

Justice Kennedy isn’t going anywhere

President Barack Obama shouldn’t count on Justice Anthony Kennedy to step down from the Supreme Court anytime soon:

Justice Kennedy, who turns 74 this month, has told relatives and friends he plans to stay on the high court for at least three more years - through the end of Obama’s first term, sources said.

That means Kennedy will be around to provide a fifth vote for the court’s conservative bloc through the 2012 presidential election. If Obama loses, Kennedy could retire and expect a Republican President to choose a conservative justice.

Kennedy was appointed to the Supreme Court by President Ronald Reagan and confirmed 1988. He authored the opinion in the Citizens United case, which has been harshly criticized by Obama and Democrats.

Barr weighs in on McDonald v. Chicago decision

Bob Barr, a former Congressman and NRA Board Member, weighed in yesterday on the McDonald v. Chicago decision, which was handed down from the Supreme Court last week:

By a five to four majority last week, the United States Supreme Court ruled that neither a state nor a city acting under a grant of authority from the state, can deny a person the right to possess a firearm as guaranteed by the Second Amendment to the Constitution.  Interestingly, of that slim, five-member majority, only one justice had the constitutional backbone to rule the right way for the right reason.  It was not Chief Justice Roberts, and it was not Antonin Scalia, considered by many as the most conservative of the tribunal’s nine members.

Will wants answers from Kagan

George Will has some questions for Elena Kagan:

Pursuant to Elena Kagan’s expressed enthusiasm for confirmation hearings that feature intellectual snap, crackle and pop, here are some questions the Senate Judiciary Committee can elate her by asking:

— Some persons argue that our nation has a “living” Constitution; the court has spoken of “the evolving standards of decency that mark the progress of a maturing society.” But Justice Antonin Scalia, speaking against “changeability” and stressing “the whole antievolutionary purpose of a constitution,” says “its whole purpose is to prevent change — to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that ‘evolving standards of decency’ always ‘mark progress,’ and that societies always ‘mature,’ as opposed to rot.” Is he wrong?

— The Ninth Amendment says: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The 14th Amendment says no state may abridge “the privileges or immunities” of U.S. citizens. How should the court determine what are the “retained” rights and the “privileges or immunities”?


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