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Thread: Scotus

  1. #46
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    Default Re: Scotus

    Here's a roundup of Thursday's reporting and commentary on the decision. One significant point that has been made, is that the precise language of the decision seemed constructed so as to invite further challenges to other aspects of campaign finance law, and in that sense the decision may be much more far reaching than the terms of the case would initially suggest.

    Supreme Court strikes down limits on overall federal campaign donations. "The Supreme Court's divisive decision Wednesday striking down a Watergate-era limit on campaign contributions was the latest milestone for conservative justices who are disassembling a campaign finance regime they feel violates free-speech rights. The 5 to 4 decision -- striking down the limit on the total amount of money wealthy donors can contribute to candidates and political committees -- was the fifth since Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. joined the court that agreed with constitutional arguments challenging laws designed to blunt the influence of money in politics. It again reveals a court deeply divided between liberals trying to preserve campaign finance restrictions they say are essential to ensuring democracy is not distorted by the wealth of the powerful, and conservatives who think the First Amendment trumps efforts by government to control who pays for elections and how much they spend....On its face, the ruling seems far more limited than Citizens United, which has dramatically increased spending on elections and spawned a new wave of political organizations funded by wealthy individuals. But by making clear that government may restrict political contributions only to target quid pro quo corruption -- as opposed to 'the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford' -- the dissenters and others said the court was inviting additional challenges to campaign finance restrictions." Robert Barnes in The Washington Post.


    Primary source: The full text of the Supreme Court's ruling. The Washington Post.


    Explainers:
    Everything you need to know about McCutcheon v. FEC. Sean Sullivan in The Washington Post.


    Winners and losers in the McCutcheon v. FEC ruling. Chris Cillizza in The Washington Post.


    Highlights from the majority and dissenting opinions. Jacob Gershman in The Wall Street Journal.


    Q&A: 8 questions for Shaun McCutcheon. Aaron Blake in The Washington Post.


    News analysis: Ruling returns power to big donors and party leaders. "Big donors, leaders of political parties and candidates with access to wealthy supporters will be the biggest beneficiaries of the Supreme Court decision issued on Wednesday, a ruling that could fundamentally reshape the political terrain in the 2014 elections and beyond. Election experts predicted a surge of new money into congressional campaigns and political parties, expanding the world of high-dollar fund-raising now dominated by 'super PACs' and big-spending political nonprofit groups. The decision effectively eradicates a significant campaign finance restriction brought about in the aftermath of the Watergate scandal, the cap on the total amount any one person can give to federal candidates and parties in any two-year election cycle. Two groups in particular stand to be most empowered by Wednesday's decision: Those with the wherewithal to spend millions of dollars on campaign contributions and those with access to them, including party leaders, senior lawmakers and presidents." Nicholas Confessore in The New York Times.


    What's the impact on the midterms? Not much. "Back in the trenches of Election 2014, the early consensus among campaign professionals about the Supreme Court's campaign finance ruling was less hyperbolic: The practical effect on this year's fight for the Senate and House, they said, will probably be muted." James Hohmann in Politico.


    How Democrats are reacting: With bills and hearings. "Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said he will hold a hearing on the impact of the McCutcheon decision and other rulings from the high court that he says 'have eviscerated our campaign finance laws.' Meanwhile, Maine Sen. Angus King, an independent who caucuses with Democrats, said he introduced legislation intended to make donations more transparent by requiring all contributions of $1,000 or more to be disclosed to the Federal Election Commission within 48 hours. A campaign bill in the House will be introduced by Rep. Beto O'Rourke (D-Texas). New York Sen. Chuck Schumer, the third-ranking Senate Democrat who also chairs the Rules Committee, said the panel will hold hearings on the ruling and that leadership will explore what can be done legislatively. A Constitutional amendment proposed by Sen. Tom Udall (D-N.M.), which would explicitly give Congress the power to regulate campaign finance for federal races, is a 'more attractive' option since the court ruling was made on First Amendment grounds, Schumer said....Over in the House, Rep. John Larson (D-Conn.) said he plans to introduce legislation that will 'fully reverse this latest Supreme Court blunder.' A Democratic aide said the forthcoming bill from Larson and fellow Democratic Reps. David Price of North Carolina and Bob Brady of Pennsylvania will reinstate the aggregate limits for contributions that were in place before Wednesday's ruling, and the lawmakers plan to circulate a Dear Colleague letter on the measure. And House Minority Leader Nancy Pelosi (D-Calif.) called for passage of legislation sponsored by Rep. John Sarbanes (D-Md.) that is meant to amplify small-dollars donations to congressional candidates." Seung Min Kim in Politico.


    How the White House is reacting: Muted disappointment. Nedra Pickler in the Associated Press.


    GOP reaction: House Speaker Boehner praises ruling. "Speaker John Boehner praised the Supreme Court for knocking down aggregate limits on campaign donations, saying 'freedom of speech is being upheld.'" Jake Sherman in Politico.


    Explainers:

    Legal reaction roundup. Ashby Jones in The Wall Street Journal.


    Politicos' reaction roundup. Politico Magazine.


    Plaintiff is a political hobbyist and businessman. "Shaun McCutcheon describes politics as a hobby, but on Wednesday he helped overhaul the rules of campaign finance....Mr. McCutcheon, an electrical engineer who founded Coalmont Electrical Development Corp., began his journey to the Supreme Court after bumping up against the $123,200 cap on what individuals can give to candidates, political parties and political-action committees. A late bloomer to political giving, Mr. McCutcheon, 46 years old, says he found himself quickly frustrated by the campaign-finance laws that restricted the number of candidates he could back." Colleen McCain Nelson in The Wall Street Journal.


    Other legal reads:

    Americans agree we should move away from minimum drug sentencing. Mark Berman in The Washington Post.


    Top opinion on the ruling


    THE NEW YORK TIMES: The court follows the money. "The Supreme Court on Wednesday continued its crusade to knock down all barriers to the distorting power of money on American elections. In the court's most significant campaign-finance ruling since Citizens United in 2010, five justices voted to eliminate sensible and long-established contribution limits to federal political campaigns. Listening to their reasoning, one could almost imagine that the case was simply about the freedom of speech in the context of elections." Editorial Board.


    THE WALL STREET JOURNAL: Political speech wins again. "One of the Supreme Court's worst mistakes was its willingness to tolerate limits on political free speech in the name of campaign-finance reform. The current Justices have slowly been walking back this historic blunder, and on Wednesday they took another step by killing the overall limit on how much money an individual can contribute to politics....We wish the Court had gone further and overturned all of Buckley, as Justice Clarence Thomas urged in his concurring opinion. As he put it, Buckley is now 'a rule without a rationale' given how much the Court has eroded its original logic. But the Justices didn't need to go that far to overturn overall donor limits, and Chief Justice Roberts prefers incremental legal progress. Justice Thomas is nonetheless a John the Baptist on political speech, and the current majority may vindicate his logic in a future case. We hope it's soon given the pernicious doctrine laid out in the dissent joined by all four liberals." Editorial Board.


    THE WASHINGTON POST: Congress must stem the flow of cash in ruling's wake. "The Supreme Court on Wednesday overturned yet another federal law meant to check corruption and influence-peddling in national politics. The ruling shows two things: The Roberts Court's destructive view on these matters wasn't changed by the backlash to its Citizens United holding, and Congress must respond by designing new rules that can pass the court's overly skeptical review. If lawmakers tackle the issue forthrightly, they have some workable options." Editorial Board.


    BLOOMBERG VIEW: The Supreme Court's naive politics. "There are no former politicians on the current U.S. Supreme Court -- and it shows. Today's 5-4 decision striking down some limits on individual campaign contributions may be right on the law, but it's dangerously wrong on the politics." The Editors.


    McCUTCHEON: I fought the law, and I won. "I have been repairing things since I was a kid. When I was in high school, I fixed many motorcycles, electronics and cars. My next-door neighbor was a man named Honest John. He was a used-car dealer in downtown Birmingham. I was low-cost help for him. And I got the work done. Since then, I have been getting things done in workshops and production operations all over the United States and around the world. Now I'm an electrical engineer, and I run a successful small business near Birmingham, Alabama. That engineer's mindset has guided my political activity, including the decision to take my First Amendment challenge to the Supreme Court." Shaun McCutcheon in Politico Magazine.


    HASEN: The subtle awfulness of the McCutcheon decision. "oday, once again, the government lost a campaign finance case, McCutcheon v. FEC. And while it could have lost in somewhat worse ways, this opinion is pretty awful, portending a raft of new First Amendment attacks on soft money and even on the basic rules limiting how much individuals can give candidates for office....We have vintage Roberts playing the long game. The tone is one of minimalism and moderation: We are only striking down aggregate limits, not the base limits, which currently prevent individuals from giving more than $2,600 per election to federal candidates....But this is nevertheless a subtly awful decision. It is true that Roberts sidestepped today the question of whether to apply "strict scrutiny" of contribution limits in another case; he did not need to take that dramatic (and high-profile) step to do a whole lot of damage to campaign finance law. Instead, he did three things which now set the course toward even more campaign finance challenges under the First Amendment and more deregulation." Richard L. Hasen in Slate.


    DRUTMAN: An even more unequal system of campaign finance. "It will further empower small set of elite donors who have the means and the motive to play an even more important role in the setting of agendas, positions and candidates. And it will probably benefit Republicans more than Democrats. So now what? Political operatives will, of course, come up with new ways to take advantage of a post-McCutcheon world. Whether it is through joint committees or through some proliferation of affiliated PACs, these operatives will almost certainly soon be in a position to ask a donor to write a seven figure check and then distribute that money in a way that was not possible prior to the ruling. The awkward super PAC dance of independence and non-coordination can end. This will almost certainly make parties and party leaders more important and super PACs less important." Lee Drutman in The Washington Post.


    KLEINER: Roberts shows he has no idea how money in politics works. "In reality, the case may not have a huge impact on elections. By tearing down any restriction on the amount that an individual can donate to a Super PAC, Citizens United already opened the spigot on unlimited money in our electoral system. Today's decision builds on Citizens United but the harm to democracy has already been done. What is striking about the opinion is how completely off-base Chief Justice Roberts is in his understanding of the role of money in politics....Roberts says that legislation cannot seek to limit what he calls the 'general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford.' Roberts said 'spending large sums of money' would not 'give rise to such quid pro quo corruption.' The reality is, of course, that looking for evidence of direct trades of a Congressional vote for a donation will reveal very few instances of corruption. However, as Lawrence Lessig has established, there is a broader system of 'dependence corruption' in which candidates must rely on wealthy donors in order to have access to the political system. The Roberts Court reflects a lack of understanding in how money actually operates in our political system and has adopted such a hollow understanding of corruption that they are able to view our system as free of any corrupting influence." Sam Kleiner in The New Republic.


    FISHER: Hold the hysteria, McCutcheon didn't gut campaign-finance rules -- yet. "The response from the left and good-government types to the U.S. Supreme Court's McCutcheon v. FEC decision was immediate, hyperbolic and predictable. 'Today's McCutcheon decision is a devastating blow to our democracy,' fretted Public Citizen, which bills itself as 'the people's voice in the nation's capital.' The New York Times echoed that with the headline: 'Another Blow to Democracy.' But the decision didn't really change much besides allowing rich individuals to contribute the maximum of $2,600 to as many federal candidates as they want, instead of just 10. The existing limits on individual contributions remain intact, although those same moneybags types now can give the limit of $32,200 to three national party committees instead of two. (Or six, if they want to go bipartisan.)" Daniel Fisher in Forbes.


    RAUCH: Why we need more big money in politics. "To make politics more accountable and ultimately cleaner, progressives need to consider a counterintuitive proposition: the way forward is to bring more big money back inside the political system. In politics, as in war, strategic wisdom sometimes requires abandoning even the most cherished of means to achieve an essential end. Campaign finance has reached one of those moments now." Jonathan Rauch in The Daily Beast.


    CASSIDY: Roberts's law: One dollar, one vote. "The Court didn't go as far as it did in the Citizens United ruling, in 2010. That travesty amounted to a do-as-you-please charter for politically motivated billionaires like Charles and David Koch, Sheldon Adelson, James Simons, and George Soros. But Wednesday's decision, once again a five-to-four ruling, represented another significant step away from the antiquated principle of 'one person, one vote' toward the more modern, and utilitarian, notion of 'one dollar, one vote'...In this case, as in Citizens United, Roberts and his cohorts relied on a twisted reading of the First Amendment that regards giving money to candidates as a form of political speech." John Cassidy in The New Yorker.
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    Default Re: Scotus

    Here's some commentary from the excellent SCOTUSblog.

    Divided Court strikes down campaign contribution caps: In Plain English

    By Amy Howe on Apr 2, 2014 at 11:01 pm

    Back in October, when the Court heard oral argument in a challenge to the overall caps – known as “aggregate limits” – on how much an individual can contribute to candidates for federal office, political parties, and political action committees, there wasn’t a whole lot of suspense. Given the Court’s recent campaign finance rulings, it seemed clear that a majority of the Justices would vote to strike down at least some of the caps; the only real question was whether they would strike down them all.
    Today we got our answer from the Court, and it was a decisive “yes”: all of the aggregate limits must go. Let’s talk about today’s decision in McCutcheon v. Federal Election Commission in Plain English. Continue reading »


    Foreword: It’s all forward now

    By Ronald Collins and David Skover on Apr 3, 2014 at 10:31 am

    The Roberts Court rarely finds a campaign finance law that it likes. That skeptical tradition continued with its recent ruling in McCutcheon v. Federal Election Commission. We say “rarely” because a majority did leave intact a part of Buckley v. Valeo . . . for now, at least. That said, if the past is any sign of the future, then it’s all forward now so far as the Court’s willingness to set aside campaign finance laws on First Amendment grounds. Continue reading »


    Symposium: Does the Chief Justice not understand politics, or does he understand it all too well?

    By Richard Hasen on Apr 3, 2014 at 10:38 am

    Richard L. Hasen publishes Election Law Blog and is Chancellor’s Professor of Law and Political Science at UC Irvine.
    Chief Justice Roberts has moved the Supreme Court’s election law jurisprudence steadily and stealthily in his preferred direction. Usually this involves subtle shifts in doctrine, the planting and later reliance on key dicta, and hints of future lawsuits to come. This is as true of Roberts’s opinions in the voting rights arena as it is in campaign finance. As I explain at Slate, yesterday’s decision in McCutcheon v. Federal Election Commission uses all of these tools. The Chief’s opinion constricts the definition of corruption, ramps up ever so subtly the scrutiny of contribution limits, and all but invites a challenge to the remaining pillar of the McCain-Feingold law: the soft money ban. It is hard to see what will be left of campaign finance law beyond disclosure in a few years. Continue reading »


    Symposium: The First Amendment’s protection of political speech extends to both donations and spending

    By Ilya Shapiro on Apr 3, 2014 at 10:49 am

    What kind of bizarro world do we live in where a near majority of Justices of the United States Supreme Court criticizes a First Amendment ruling for being overly concerned with “the individual’s right to engage in political speech”? Where these same jurists instead elevate “the public’s interest in preserving a democratic order in which collective speech matters”? Are these four reactionary horsemen who won’t countenance anti-war protestors, marches against oppressive laws, and other anti-establishment speech-acts? Or perhaps they’re censorious troglodytes inveighing against flag-burning, nude dancing, and other emotion-riling forms of expression?
    Continue reading »


    Symposium: Welcome to Oligarchs United

    By Burt Neuborne on Apr 3, 2014 at 11:17 am

    Help. American democracy is trapped in a sealed box built by the Supreme Court. As the Court’s decision in McCutcheon v. Federal Election Commission demonstrates, five Justices are slowly but surely pumping the air out of the box. The box has four walls built by the Justices in Buckley v. Valeo(1) an insistence that spending money in a political campaign is always the exact legal equivalent of “pure” speech, no matter how high the spending goes; (2) a rejection of the idea that preserving a modicum of political equality justifies placing any limit on campaign spending, even at stratospheric levels; (3) an insistence that “direct” campaign spending has more First Amendment protection than “indirect” campaign contributions; and (4) a refusal to admit that unlimited independent spending poses the same risk of “corruption” or the “appearance of corruption” posed by campaign contributions. Continue reading »



    Symposium: McCutcheon opens the door to massive party contributions, but four Justices continue to push back forcefully

    By Paul Smith on Apr 3, 2014 at 12:20 pm

    The Supreme Court’s five-to-four decision in McCutcheon v. FEC reassured some supporters of campaign finance regulation who feared that the Court might use a case attacking the aggregate limits on campaign financing set by federal law to effectively overturn all contribution limits, including the limits on how much can be contributed to an individual candidate. The Court did not do that. It did not change the constitutional double standard, created way back in Buckley v. Valeo, under which the Court applies stricter First Amendment scrutiny to expenditure limits than it does to contribution limits. Nor did it directly question the validity of limits on donations to the campaigns of individual candidates, noting that the Court has repeatedly upheld such limits based on the need to prevent corruption or the appearance of corruption. The Court even reaffirmed the constitutional validity of requiring full disclosure of campaign contributions and expenditures. So, although the Court may someday take the additional step of invalidating limits on contributions to individual candidates, McCutcheon left that battle for another day. Continue reading »
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    Default Re: Scotus

    Tuesday was a busy day at SCOTUS. We're in the second last week of hearing oral argument for this term. Decisions in all these cases are expected by the end of June. The case that garnered the most publicity, because it potentially affects the greatest number of people was the Aereo TV case.

    Aereo is a small tech start-up that has been providing a much less expensive alternative to cable TV by allowing people to pay only for the channels they want to watch.

    Right from the get go the networks ABC, NBC, CBS, FOX and others have sued Aereo claiming copyright infringement, and they have lost all the way to today. Two networks have said that if they lose at SCOTUS they'll take their progaming of the broadcast airwaves and put it on cable. That would have huge implications for how much they could charge for advertizing.

    Here's some reporting.

    Supreme Court Case Could Change How You Watch TV
    Bruce Springsteen may have been ahead of his times with his song "57 Channels (And Nothin' On)," released in 1992. These days there are hundreds of channels, and whether you like it or not, you get most of them in your basic cable package. On Tuesday, that economic model is being challenged in the Supreme Court in a high-stakes legal battle between the broadcast television networks and a tiny startup, or at least tiny by broadcast standards. The issues focus on copyright law, but the outcome could alter the face of broadcasting in the United States.

    The startup, Aereo Inc., is just 3 years old but is already making money, offering consumers in 11 cities a cheap way to watch local stations that deliver network TV shows as well as local programming. The company contends it is innovating to give people a choice both in how they watch TV and how much they pay for it. The networks contend that the startup is using a gimmick to thwart the economic vitality of their business.

    So serious is the economic threat that two major networks, CBS and Fox, have said they would consider abandoning over-the-air free broadcasting if they lose, and instead broadcast only on pay cable channels. And the NFL and Major League Baseball have similarly threatened to abandon broadcasting on free local channels.

    The essence of the legal argument is this: Federal law requires that anyone rebroadcasting what is known as a "public performance" — let's say NCIS, or Modern Family, or the local news — is required to pay copyright fees. Those rebroadcasting fees will provide an estimated $4 billion for the networks this year and double that amount in four years.

    Enter Aereo Inc., with a novel idea and a new technology. It has created tiny, dime-sized antennas that pick up over-the-air signals of the network affiliate in New York, Atlanta, Boston and eight other cities. The antennas are centralized on circuit boards at Aereo locations in each city and activated remotely by individuals with an Aereo subscription. Using this system, subscribers can live-stream local stations and record programming onto a mobile device or a TV for a fraction of what it would cost to watch via cable — $8 a month for 20 hours of storage, $12 for 60 hours.

    CEO Chet Kanojia compares his service to TiVo; he maintains that his company similarly is not retransmitting public performances because each antenna is controlled by an individual, and the broadcast that is watched or recorded is a "private one," controlled by a single subscriber.
    "There is a clear distinction between technology providers that are allowed to sell technology to enhance the consumer experience and cable companies," Kanojia said.

    The Aereo business model is based on the idea that most people regularly watch only a small number of channels, and, according to Kanojia, half of those most frequently watched channels are major network affiliates. Therefore, a remote antenna service that allows subscribers to live-stream and record onto any mobile device is cheap and has a built-in audience of people who don't want to pay hundreds of dollars for cable bundles.

    He won't say how many subscribers the company has, but he observes that the use of regular old-fashioned antennas is increasing too, now serving some 60 million people.

    "Why?" he asks. "Because they can't afford a $250 cable bill."

    Increasingly, he says, people are looking at TV offerings and saying, "I've got Netflix for 8 bucks a month, and if I can get my local TV to give me sports, news, weather, basic lifeline services, that makes sense to me."
    But does the law allow a company like Aereo to essentially skim the network and local programming cream off for its own use without paying for it?

    No, say the networks, observing that their programming costs lots to produce, and that local stations pay lots for it, in addition to spending big bucks on local news and other programming. Erin Murphy, one of the lawyers representing the networks, says that what Aereo is doing has nothing to do with the public good. It has to do with circumventing copyright law.

    "If Aereo can do this, there's really no reason that a cable company and a satellite company can't turn around and create their own Aereo-like workaround," says Murphy.

    Tom Goldstein, publisher of Scotusblog, the leading Supreme Court blog, agrees that Aereo's legal argument is an attempt to find a loophole in the copyright law. But will it work?
    "Is the Supreme Court going to say, 'Oh, you came up with a good trick and you've worked your way around the statute'? Or is it going to say, 'Oh, come on, give us a break'?"
    In Aereo case, the Supreme Court struggles with the precedents it might set
    In a hearing at the Supreme Court this morning that pits a new technology company against legacy television broadcasters, the justices appeared torn. It was clear from their questions that they think Aereo, a service that lets its subscribers stream broadcasts recorded from the public airwaves, has used technological workarounds to avoid paying fees to content creators. But they also appear anxious about undermining the legal basis for technological innovations like cloud storage. How they decide to balance those two imperatives will determine a suddenly more-uncertain outcome of the important case.
    Read full article >>

    Justices test Aereo on copyright issue but raise concern about harming cloud services

    Several Supreme Court justices expressed skepticism about Internet streaming start-up Aereo during oral arguments on Tuesday, saying that it looked like the company was created to act as a technical workaround to bypass copyright laws.
    Read full article >>

    Everything you need to know about Aereo, the Supreme Court and the future of TV

    In one of the biggest cases of the year for tech, a young start-up is taking on TV broadcasters in the Supreme Court. Depending on the outcome, the battle could either solidify TV networks' grip over their content or throw the doors open to a future where consumers will be able to get traditional, over-the-air programming over the Internet instead. Either way, the case promises to have huge implications for the way we watch TV. So here's a quick primer to get up to speed.
    Read full article >>

    SUPREME COURT JUSTICES ON THE FENCE ABOUT AEREO: "This is really hard for me," Sotomayor said, largely summing up how today's arguments went. The justices were critical of Aereo's business, but worried that a ruling against the online TV service could harm other services like "cloud" storage. (Brendan Sasso, NJ)

    Below are some posts on the day's events from the incomparable SCOTUSblog
    Tuesday round-up

    Today the Court will hear oral arguments in two highly anticipated cases. In Susan B. Anthony List v. Driehaus, the Court will consider a First Amendment challenge to an Ohio law that criminalizes false political statements. Lyle Denniston previewed the case for this blog. Other coverage comes from Katie Barlow and Nina Totenberg at NPR, while in his “Drama at the Court” series for ISCOTUSnow, Christopher Schmidt looks back at United States v. Alvarez, a recent case in which the Court struck down criminal penalties for lying about military honors.

    In American Broadcasting Companies v. Aereo, the Court will consider whether Aereo’s streaming of broadcast television programs over the Internet violates federal copyright laws. Lyle Denniston previewed the case for this blog, while I did the same in Plain English and Kali Borkoski added a discussion (audio) with some of the players in the case. Other coverage of the Aereo case comes from Nina Totenberg at NPR (audio), Bloomberg TV, and Edward Lee at ISCOTUSnow (video). Continue reading »

    Today’s transcripts

    The transcript in American Broadcasting Companies v. Aereo, Inc. is here.
    The transcript in Susan B. Anthony List v. Driehaus is here.

    Argument analysis: Slipping down the digital slope

    In the digital age, perhaps only someone as old as Justice Stephen G. Breyer (or older) would fret about what might happen to a store that sells “phonograph records.” It is doubtful, in the extreme, whether there are any of those anymore, but no matter: Breyer and other Justices searched on Tuesday for ways to demonstrate that they want to be careful about what they do about today’s modes of entertainment.

    With a new method of watching TV via an Internet connection before the Court for analysis, the Court moved back and forth between killing that novelty by forcing it to pay sizable fees to download copyrighted TV programs, or giving it a fighting legal chance to survive as a cheaper alternative to cable.

    Continue reading »
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    Default Re: Scotus

    Cross posting these from the Gay Thread


    The second interview on the link below is with the "odd couple" conservative and liberal lawyers Ted Olson and David Boies, who were on opposite sides in Bush v. Gore in 2000, but who teamed up to defeat Prop 8 the California ban on Gay Marriage at the Supreme Court. They discuss their new book on the subject "Redeeming the Dream" plus Gay Marriage generally, they're not done, they have another case in Virginia, and a bit about Bush v. Gore. Begins at 12m. 30 sec. and runs 40M. Whether you're interested from a gay perspective, or a legal/social perspective well worth the time.

    http://www.charlierose.com/watch/60407891


    Here they are again on 55 minute radio show, that's actually better than the Charlie Rose interview. Substitute interviewer is Katty Kay of BBC.There's a caller around the 44th min who claims the whole GM issue is just a liberal fraud. Funny.


    http://thedianerehmshow.org/shows/20...riage-equality
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    Default Re: Scotus

    Two big decisions today from SCOTUS. The post below, taken from the excellent SCOTUSblog, provides links to its own coverage, which is always the best, and should be your first clicks, plus coverage by many other sources.

    Evening round-up: Cellphone privacy and Internet TV


    This morning, the Court issued its decision in Riley v. California, holding (in a unanimous opinion by Chief Justice John Roberts) that “police generally may not without a warrant search digital information on the cellphone seized from an individual who has been arrested.” Lyle Denniston covered the opinion for this blog, Amy Howe explained the ruling in Plain English, and Mark Walsh provided a “view” from the courtroom.

    Other early coverage of the decision comes from Jess Bravin of The Wall Street Journal, Robert Barnes of The Washington Post, David G. Savage of the Los Angeles Times, Adam Liptak of The New York Times, Bill Mears of CNN, Tracy Jan at the Boston Globe, Mike Scarcella of Legal Times, Krishnadev Calamur at NPR, Richard Wolf of USA Today, Benjamin Goad at The Hill, Lawrence Hurley for Reuters, Julian Sanchez for The Daily Beast, Damon Root at Reason’s Hit & Run Blog, Kashmir Hill of Forbes, Josh Gerstein and Tal Kopan at Politico; and William Hibbitts at Jurist. Commentary comes from Noah Feldman of Bloomberg View, Garrett Epps at The Atlantic, Orin Kerr of the Volokh Conspiracy, Ilya Shapiro at the Cato Institute, Jim Harper at the Cato Institute, Eric Posner at Slate, Ian Millhiser at Think Progress, Charles Cooke at National Review, Will Baude at the Volokh Conspiracy, Andrea Peterson at The Washington Post, Doug Kendall at The Washington Post, and Hadar Aviram at PrawfsBlawg. Lastly, video coverage of the case comes from Douglas Godfrey at ISCOTUS.


    This morning the Court also issued its decision in American Broadcasting Companies v. Aereo, holding (in a six-to-three opinion by Justice Stephen Breyer) that “Aereo performs petitioner’s work publicly within the meaning of the transmit clause of the Copyright Act.” Lyle Denniston covered the opinion for this blog, and Tom Goldstein explained the ruling in Plain English.

    Other early coverage comes from Brent Kendall of The Wall Street Journal, Adam Liptak of The New York Times, Robert Barnes of The Washington Post, David Savage of the Los Angeles Times, Gerry Smith at The Huffington Post, Daniel Fisher at Forbes, Michael B. Farrell of the Boston Globe, Ariane de Vogue of ABC News, Lawrence Hurley of Reuters, Mark Sherman for the Associated Press (via The Seattle Times), Roger Yu and Mike Snider at USA Today, Jaclyn Belczyk for JURIST, Brian Stelter of CNN, Keach Hagey of The Wall Street Journal (subscription required), Jesse Solomon at CNN, and Dominic Rushe of the Guardian. Commentary comes from Noah Feldman at Bloomberg View, David Post at the Volokh Conspiracy, Jim Edwards of Business Insider, Dorothy Pomerantz of Forbes, and Kyle Alspach at BetaBoston. Lastly, video coverage of the case comes from Edward Lee at ISCOTUS.
    As a general rule the most successful man in life is the man who has the best information.

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    Default Re: Scotus

    SCOTUS announced today it would hear a case on the school bathroom for transgender issue.


    http://www.npr.org/sections/thetwo-w...ender-students

    The Countess, who's a teachers union rep, says the kids generally have no problems with it, but the adults get worked up.
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    Big week at SCOTUS...........


    Supreme Court watch
    Axios' Sam Baker previews three blockbuster Supreme Court cases this week:
    1. A potentially crippling blow for public-sector unions: For years, the court has been inching closer and closer to ruling that public-sector unions can't collect fees from non-members.

    • It’s widely expected to finish the job in a case called Janus v. AFSCME. Oral arguments are Monday.
    • The court will likely roll back one of the few remaining strongholds of union power — and with it, the political clout of an important part of the Democratic base.

    2. Email privacy vs. law enforcement: If an American email provider stores your emails on a server that's located in another country, does it have to hand those emails over in response to a warrant from U.S. law enforcement? That’s the question in US v. Microsoft, which the court will hear Tuesday.

    • The Justice Department argues that if these warrants don’t cover overseas servers, the court will be carving out an awfully easy route to get away with crimes like drug trafficking and child pornography.
    • Microsoft, on the other hand, says allowing those warrants would open the door for foreign governments to unilaterally access data stored in the U.S.

    3. Free speech at the polls: A Tea Party voter wore a Tea Party t-shirt to his polling place on Election Day. But Minnesota, where he lives, bans political apparel at polling places, so he was asked to cover up the Tea Party messages while voting. Is that a violation of his right to free speech, or a permissible restriction on electioneering?

    • Under Chief Justice John Roberts, people who allege an infringement of their First Amendment rights usually win.

    Bottom line: The court also has cases on the docket this term aboutgerrymandering, the privacy of cell-phone location data, whether a Christian baker can refuse to serve a same-sex couple, and President Trump’s travel ban. And then there’s the consistent speculation about whether Justice Anthony Kennedy will retire.
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  8. #53
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    Five rulings to watch at the Supreme CourtInterns will soon be sprinting down the steps of the Supreme Court to deliver printouts of rulings to TV anchors, something of an annual tradition at the highest court in the land.

    The justices heard their last arguments in April and will start issuing rulings next week in the most closely watched cases of the term, which ends in late June.

    The justices often save the biggest decisions for last — and this year is no exception.Read the full story here


    That was quick........Good news for Paddy Power......



    Supreme Court strikes down law banning sports betting
    The Supreme Court has struck down a federal law that banned sports betting in almost every state across the country, handing former New Jersey Gov. Chris Christie (R) a major win to bolster his legacy.

    New Jersey has been fighting since 2010 to make sports wagering legal at racetracks and casinos in the state, but had repeatedly been blocked by the Professional and Amateur Sports Protection Act of 1992.
    Read the full story here
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  9. #54
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    The Kavanaugh confirmation hearings were kinda bland until this morning........


    Confirmation hearing erupts as Booker threatens release of confidential documents
    Sen. Cory Booker (D-N.J.) on Thursday said he will release "committee confidential" documents that have not been cleared for public release, escalating a furious debate between Republicans and Democrats over papers related to Supreme Court nominee Brett Kavanaugh's public record.

    "I am right now before your process is finished, I am going to release the email about racial profiling and I understand the penalty comes with potential ousting from the Senate," Booker said.
    Read the full story here
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    U.S. Senator Cory Booker stole the show during Supreme Court confirmation hearings when he threatened to disclose emails labeled confidential by the Republican-run Judiciary Committee. In them, nominee Brett Kavanaugh criticized an affirmative action program as a "naked racial set-aside." Booker, who cast his ultimatum as "civil disobedience," was warned by Republicans he could face discipline. The New Jersey Democrat's answer? "Bring it." Chairman Chuck Grassley blinked, and released the emails. Josh Petri
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  11. #56
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    SCOTUS WATCH -- "New emails show Kavanaugh's involvement in controversial nomination," by Burgess Everett: "In 2006, Brett Kavanaugh told a Senate committee that he wasn't "primarily" involved in shepherding the nomination of controversial circuit court nominee Charles Pickering when Kavanaugh worked in the George W. Bush White House. But emails released Wednesday show that Kavanaugh conducted meetings with Republican senators and was closely engaged in Pickering's nomination.



    "Democrats are now arguing that Kavanaugh was not forthright under oath during his confirmation hearings to be a Circuit Court judge more than a decade ago, and are zeroing in on his work on behalf of Pickering. The Mississippi judge faced questions at the time about his record on civil rights and was blocked by the Senate after Bush nominated him." POLITICO
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    BOMBSHELL ... THE NEW YORKER'S RONAN FARROW andJANE MAYER, "A Sexual Misconduct Allegation Against the Supreme Court Nominee Brett Kavanaugh Stirs Tension Among Democrats in Congress": "The allegation dates back to the early nineteen-eighties, when Kavanaugh was a high-school student at Georgetown Preparatory School, in Bethesda, Maryland, and the woman attended a nearby high school.


    "In the letter, the woman alleged that, during an encounter at a party, Kavanaugh held her down, and that he attempted to force himself on her. She claimed in the letter that Kavanaugh and a classmate of his, both of whom had been drinking, turned up music that was playing in the room to conceal the sound of her protests, and that Kavanaugh covered her mouth with his hand. She was able to free herself.


    "In a statement, Kavanaugh said, 'I categorically and unequivocally deny this allegation. I did not do this back in high school or at any time.' Kavanaugh's classmate said of the woman's allegation, 'I have no recollection of that.' The woman declined a request for an interview. ...
    "[Dianne] Feinstein's decision to handle the matter in her own office, without notifying other members of the Senate Judiciary Committee, stirred concern among her Democratic colleagues. ...


    "Sources familiar with Feinstein's decision suggested that she was acting out of concern for the privacy of the accuser, knowing that the woman would be subject to fierce partisan attacks if she came forward. Feinstein also acted out of a sense that Democratswould be better off focussing on legal, rather than personal, issues in their questioning of Kavanaugh.


    "Sources who worked for other members of the Judiciary Committee said that they respected the need to protect the woman's privacy, but that they didn't understand why Feinstein had resisted answering legitimate questions about the allegation." The New Yorker


    -- SENATE JUDICIARY CHAIRMAN CHUCK GRASSLEY (R-IOWA)immediately released a letter from 65 women, saying, "We are women who have known Brett Kavanaugh for more than 35 years and knew him while he attended high school between 1979 and 1983. For the entire time we have known Brett Kavanaugh, he has behaved honorably and treated women with respect. We strongly believe it is important to convey this information to the Committee at this time." The letter


    -- OUR SENATE MAN ... BURGESS EVERETT (@burgessev):"Bottom line: Republicans will go forward with the nomination unless Collins or Murkowski raise concerns about the Kavanaugh letter, per sources."
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  13. #58
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    The accuser has now gone public, and D's are calling for a delay in vote...............This woman's reluctance to go public earlier now seems like a mistake on her part.



    https://www.washingtonpost.com/inves...=.be7479fc392d
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    The vote has been delayed from this Thursday to............

    There will be a televised public hearing at which both will testify at 10 AM EST next Monday.



    Supreme Court nominee Judge Brett Kavanaugh was asked privately yesterday about what past girlfriends would say about his conduct, as frenzied Republican officials prepared him for an epic hearing on Monday when he will rebut charges of a drunken sexual assault during high school.

    • A source tells me the question about girlfriends was designed to help Kavanaugh's advocates show there was no pattern of conduct similar to the charge by Christine Blasey Ford, a biostatistician and research psychologist in the Bay Area who also is expected to testify Monday.

    A Republican source close to the process tells Jonathan Swan: "It blew up [on Sunday]. ... Now we've gone back toward reason and looking at facts. Psychologically, we feel a lot better about where we are."

    • The momentous announcement from Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa): "[T]he Committee will hold a public hearing with Supreme Court nominee Judge Brett Kavanaugh and Dr. Christine Blasey Ford," at 10 a.m. Monday in the Hart Senate Office Building.

    A senior Republican official close to the process, who admitted aides are worried about the hearing, tells Swan: "This gives the judge the opportunity to clear his name. But there is no room for error from members on the committee."

    • "Judge Kavanaugh could nail it and she could be terrible. But here's my fear: This all depends so much on the performances of two people."
    • "And that's a lot to have outside your control, and that's not even accounting for the members themselves doing something stupid."
    • "It's the circus of it. It's designed for TV, it's not designed for answers. You're just adding a huge element of the unexpected and the unpredictable."

    Kavanaugh spent nine hours behind closed doors at the White House yesterday, according to CNN, calling senators and huddling with White House Counsel Don McGahn.

    • White House counselor Kellyanne Conway set the tone for the day by saying on "Fox & Friends": "This woman should not be insulted and she should not be ignored."

    A source close to Trump, who remained uncharacteristically quietabout the fracas, said:

    • "I actually think on this one he understands it's up to Brett to defend himself. I don't think the President's going to take responsibility for that. The President wants him to run his own show; and I think that's because if this was the President, he'd want to run his own show."

    Swan's whip count: Folks involved in the process seem to be most worried about Sen. Jeff Flake (R-Ariz.) — even more so than Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska), whom they're quite worried about.

    • In a reassuring comment for the White House, Sen. Lindsey Graham (R-S.C.), a Judiciary Committee member, told Fox News' Sean Hannity that he "will look at everything in Judge Kavanaugh's life, not just this accusation. And I feel good about it."

    Be smart: Because Ford told the Washington Post there are many details she doesn't remember, Republican officials don't expect new facts corroborating her account to emerge. Instead, they expect new scrutiny of her.

    • The great unknown will be the emotion in the room — and the consequences if her testimony is credible.
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    Contrary to the previous post, currently it's not clear if both will testify next Monday......


    Republicans are privately worried about the risk unleashed by an explosive allegation of a teenage sexual assault by Supreme Court nominee Brett Kavanaugh, but still hope to push ahead to a final confirmation vote next week.

    • "This is the ugliest situation imaginable," said a source close to Senate Republican leaders.

    Dr. Christine Blasey Ford, the accuser, said last night through her lawyers that "an FBI investigation of the incident" should precede a hearing. It was one more uncertainty in a long list:

    • Could the call for an FBI probe cause a delay that allows other issues around Kavanaugh to ignite?
    • Could other women come forward with allegations? (Officials prepping Kavanaugh say they have found no similar "pattern of conduct" — indeed, the opposite.)
    • Could Sen. Jeff Flake (R-Ariz.) use his leverage here as payback for past clashes with President Trump?
    • Will suburban women feel further distanced from a party with mostly male leaders, who are seen as protecting a man?
    • Could this episode trigger a presidential-like midterm election where issues like Roe v. Wade, the courts and the rights of women come to the fore?

    Behind the scenes, Republican senators toughened their stance and are hoping to hold a final vote by the end of next week.

    • Sen. Bob Corker (R-Tenn.) tweeted: "Republicans extended a hand in good faith. If we don’t hear from both sides on Monday [in public or private], let’s vote."
    • Senate Majority Leader Mitch McConnell has not put a timeline on when the vote would be. And he is not making predictions on vote counts.
    • But we're told that McConnell believes that he will have the 50 votes needed to confirm Kavanaugh (with Vice President Pence breaking a tie, if needed).

    Republicans say they still would be happy for Ford to testify at the Senate Judiciary Committee hearing scheduled for Monday. But they hope to resist demands for a further delay by Democrats and the accuser.

    • A letter to the committee last night from Ford's lawyers, Debra Katz and Lisa Banks, said: "A full investigation by law enforcement officials will ensure that the crucial facts and witnesses in this matter are assessed in a non-partisan manner."
    • Hillary Clinton, marking yesterday's publication of the paperback edition of her memoir "What Happened," told Rachel Maddow on MSNBC: "They could postpone for two weeks, and probably get a lot more information than they have now. ... I think the White House and the Republicans on the committee are trying to ... basically put her in the dock and try to rush this through."

    But a top Republican source told me that leaders view Ford's account as "not only unproven, but unprovable," and will not take the risk of an extended "pause."

    • "They could investigate for a hundred years," the source said. "McConnell is not going to let that happen. He doesn't think Brett's life should be demolished by something she's not willing to testify to."

    Worthy of your time ... Anita Hill writes an op-ed for the N.Y. Times, "How to Get the Kavanaugh Hearings Right."
    P.S. First look: John Legend stars in a new digital ad, produced by the NAACP Legal Defense and Educational Fund and promoted with other progressive groups, urging viewers to tell their senators to vote "no" on Kavanaugh.

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