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Legal ethics, a topic of great interest today, made an appearance today during oral arguments in Nevada Comm’n on Ethics v. Carrigan.

JUSTICE SCALIA: Mr. Rosenkranz, is — is the vote of a judge in a case like the vote of a legislator? Is — is that speech? Because judges are subject to ethical rules which — which prohibit their participating if there would be, quote, “an appearance of impropriety.” If there’s anything vaguer than that I can’t imagine what it might be. Can I get out of allthat stuff?

(Laughter.)

Glad we got that cleared up.

Update: Later in the transcript, Justice Breyer elaborates, and asks why Judges can be held to a vague, common law style of ethics, but executive and legislative branch employees cannot:

JUSTICEBREYER: That’s part of it. But my — my basic question is, as you know, with judges, and I guess you have a very vague statute which was quoted to you, and what we have are subsidiary rules with ethics commissioners. I have in my office -they’re not commissioners; they’re committees of judges.And I have in my office seven volumes which I look at when there’s a question, as others do, and those seven volumes contain dozens of opinions of a committee trying to apply vague statutes and vague rules — not constitutionally vague, but generally.So what’s wrong with Nevada doing exactly the same thing here?
MR. ROSENKRANZ: Because the difference, Your Honor, is judges are a –
JUSTICE BREYER: Oh, so you’re saying that the difference is that we’re judges?
MR. ROSENKRANZ: Yes.

…
JUSTICE BREYER: You didn’t answer my question, which is since the Judiciary uses what’s called the common law method, why is it impermissible for the Executive Branch or the Legislative Branch also to use a common law, case-by-case method of elucidating through example what a general — what a general provision means?

MR. ROSENKRANZ: The answer, Your Honor, is the Judiciary does not engage in political activity outside -JUSTICEBREYER: Well, I — so you’re saying that one who engages has to use a — a definitive rule-based method rather than a common law method? So my question there would be, assuming your difference between the branches is right, still why?

Should the Press receive extra constitutional protection? Who is the press? Why is this right treated differently from all other rights?

Interesting piece in the UCLA Law Review by Sonja West titled Awakening the Press Clause. Here is the abstract:

The Free Press Clause enjoys less practical significance than almost any other constitutional provision. While recognizing the structural and expressive importance of a free press, the U.S. Supreme Court does not explicitly recognize any right or protection as emanating solely from the Press Clause. Recently in the Court’s Citizens United decision, Justices Stevens and Scalia reignited the thirty-year- old debate over whether the Press Clause has any function separate from the Speech Clause.

The primary roadblock to recognizing independent meaning in the Press Clause is the definitional problem—who or what is the “press” in the First Amendment? Others have attempted to define the press, but the ubiquitous instinct toward constitutional overprotection tends to invite overly broad definitions that include potentially everyone. Proponents of these overinclusive definitions attempt to transfer our constitutionally overprotective approach from the Speech Clause to the Press Clause. The net result has been, ironically, fewer constitutional press rights rather than more.

This Article endeavors to break that cycle by arguing that the way to give long-overdue meaning to this important piece of constitutional text is to embrace press exceptionalism and a narrow definition of the press. By adopting an overly protective approach to the Press Clause, we have been sucked into a constitutional feedback loop: An expansive definition of the press means virtually complete overlap between press and speech and thus no meaningful way to interpret the Press Clause. Awakening the Press Clause, therefore, requires embracing a definition of the press that is sufficiently narrow. This Article furthermore submits that the definitional problem is manageable because line-drawing perfectionism is not required thanks to the fallback protections of the Speech Clause.

Not sure that I agree with her analysis. I consider myself (and my blog) part of the media. I don’t think she would.

For the Press Clause to mean somethingindependent of the Speech Clause, it necessarily cannot apply to everyone.If every individual is also a journalist or every message is also news, then there is no need for two distinct clauses.

Further, distinguishing corporations and the press is quite difficult, something even Adam Liptak conceded. The New York Times (press) is a massive corporation.

Anyway, I’m all in favor of reviving neglected constitutional clauses.

The Petition Clause (which Justice Kennedy mentioned during oral arguments in Doe v. Reed, but did not make it into the final opinion) is also due for an awakening.

JUSTICE KENNEDY: This case will likely be controlled by our First Amendment precedents, because that’s the most fully developed.

Did you look at the Petition Clause at all? In the early days of the republic, the petitions were the way in which you communicate with your legislator.

GENERAL McKENNA: Yes.

JUSTICE KENNEDY: And I tried to look it up. I have a recollection, but I’m not sure, that those petitions were sometimes put in the congressional record. Did you look at the history of the Petition Clause?

Hell, let’s give some attention to the Third Amendment. It’s due!

Update: For an interesting discussion of the Press Clause, see Scott Gant’s Book, We’re all Journalists now, particular the portion about how Supreme Court issues Press Credentials. It may surprise you that Lyle Denniston obtained his credentials not through SCOTUSBlog but through an affiliation with WBUR, Boston NPR Station. Hrmm..

H/T F1@1F from beyond the blogosphere

If police are going to barge into the wrong house with guns drawn, they better make sure Judge Holmes is not home.

What a mess. From NBC Miami:

Broward Circuit Court Judge Ilona Holmes, her sister and her sister’s family says they were ordered at gun point by several Broward Sheriffs Deputies on Easter Sunday to come out of her sister’s home with their hands up.

…

“There’s a man with a gun and he’s going to shoot me!!” yelled Carmita. “I thought it was the robber!” Her sister, Judge Holmes, came running to the kitchen. The judge carries a legal firearm and immediately pulled it out and held it in her hand.

“She said ‘Who are you!? What are you doing?!’ He said ‘this is BSO.’ She said, ‘this is Circuit Court Judge Ilona Holmes!!’” Carmita said.

“‘I’m the owner of this home. I’m Carmita Scarlett. Why are you at my home?’ I kept saying that. They said ‘put your hands up and come outside,'” she said.

Judge Holmes, perhaps borrowing from real life conflict she sees in her own courtroom, immediately cautioned deputies that she was armed so there’d be no misunderstanding.

“They said, ‘Come out with your hands up!’ She said, ‘I am Circuit Court Judge Ilona Holmes. I am armed.'”

They all slowly went out through a side door. “She was putting the gun down. They yelled, ‘put the gun down! Put the gun down!’ Right there, the cop had his gun pointed at her.”

Judge Holmes, surrounded by deputies with guns drawn, slowly put the gun on the grass, announcing it as she went. She was holding a cell phone in the other hand. When she began to place that on the ground, police began yelling.

“When she went to put that down, they yelled, ‘Get away from the gun!’ She said ‘everybody calm down. I’m putting my cell phone down’.”

At that point, a higher-ranking deputy recognized her and called on his team to lower their guns, according to Carmita.

“The one that first recognized her, he picked the gun up, opened it up, took the bullets out, he started giving her a speech: ‘Judge Holmes, you know, these guys may not know who you are. I know who you are. This could have been so different.’ And my sister said, ‘everyone of ya’ll know me. Ya’ll been before me’.”

 

Yeah. Woops.

H/T Althouse

Yes, now we have the birth certificate, so this issue is hopefully, at long last, dead (though I’m sure hard-core skeptics will continue to doubt its authenticity). My question is more jurisdictional. Every single law suit challenging the President’s natural born citizen status was tossed on standing ground. What is the point of constitutional requirements for holding office if there is no way to challenge it?

Let’s think of a different example. Article II requires that the President must be 35. Let’s say a person runs for President, and he wins. Skeptics claim he is only 34 years old (he would then be eligible for his second year in office, but I’ll put that aside for now). The President claims he is 35. The only way to prove the veracity of this, presumably, is with a birth certificate! Assume the President refuses to release his birth certificate. Putting aside birther conspiracy theorist nutjobs, there would be no way to challenge the candidate’s eligibility for office. There is no way for a Court to order the relevant organization to release the birth records. What if no records exist (assume there was a fire or something, though that is less likely in the digital age). There is no way to know, as all suits are dismissed on standing.

So, what is the point of constitutional requirements for holding office? They are totally unenforceable in our courts.

I seem to recall a case where a member of Congress was elected, and he was not yet 25 (this was in the 1800s). Congress refused to seat him pursuant to Article I powers (like Powell v. McCormack). This could not be challenged in court, as it is was political question (the displaced member did have standing). A similar check does not exist in the context of Presidential elections, unless the Electoral College can exercise such discretion. No one would have standing, save the President if he was not appointed (I think).

For what it’s worth, the case I mention was resolved in the Court of Claims, as the elected member who was not seated sued for his unpaid salary (I don’t remember the outcome, I will have to look it up when I get a chance).

In AT&T Mobility v. Concepion, we had a new jurisprudental joust between Justice Scalia and Justice Breyer about the use of legislative history. At issue was interpreting the Federal Arbitration Act of 1925, and whether it pre-empts a California state rule that  banning class action arbitration is unconscionable.

Justice Breyer, in his attempt to divine the purpose of the Congress of 1925, and ascertain whether it matches the purpose of the California rule, looks to a number of sources:

When Congress enacted the Act, arbitration procedureshad not yet been fully developed. Insofar as Congressconsidered detailed forms of arbitration at all, it may well have thought that arbitration would be used primarilywhere merchants sought to resolve disputes of fact, notlaw, under the customs of their industries, where the parties possessed roughly equivalent bargaining power.See Mitsubishi Motors, supra, at 646 (Stevens, J., dissenting); Joint Hearings on S. 1005 and H. R. 646 before theSubcommittees of the Committees on the Judiciary, 68thCong., 1st Sess., 15 (1924); Hearing on S. 4213 and S. 4214 before a Subcommittee of the Senate Committee on the Judiciary, 67th Cong., 4th Sess., 9–10 (1923); Dept. of Commerce, Secretary Hoover Favors Arbitration—Press Release (Dec. 28, 1925), Herbert Hoover Papers—Articles,Addresses, and Public Statements File—No. 536, p. 2(Herbert Hoover Presidential Library); Cohen & Dayton,The New Federal Arbitration Law, 12 Va. L. Rev. 265, 281 (1926); AAA, Year Book on Commercial Arbitration in theUnited States (1927). This last mentioned feature of the history—roughly equivalent bargaining power—suggests, if anything, that California’s statute is consistent with, and indeed may help to further, the objectives that Congress had in mind.

Justice Scalia is not persuaded by these citations: In a footnote Scalia calls out Breyer in dissent from relying on tenuous legislative history—“statements of witnesses in committee hearings and a press release of Secretary of Commerce Herbert Hoover.”

Relying upon nothing more indicative of congressional understanding than statements of witnesses in committee hearings and a press release of Secretary of Commerce Herbert Hoover, the dissent suggests that Congress “thought that arbitration would be used primarily where merchants sought to resolve disputes of fact . . . [and] possessed roughly equivalent bargaining power.” Post, at 6. Such a limitation appears nowhere in the text of the FAA and has been explicitly rejected by our cases. “Relationships between securities dealers and investors, for example, may involve unequal bargaining power, but we [have] nevertheless held . . . that agreements to arbitrate in that context are enforceable.” Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 33 (1991); see also id., at 32–33 (allowing arbitration of claims arising under the Age Discrimination in Employment Act of 1967 despite allegations of unequal bargaining power between employers and employees). Of course the dissent’s disquisition on legislative history fails to note that it contains nothing—not even the testimony of a stray witness in committee hearings—that contemplates the existence of class arbitration.

Relying on press releases and statements of witnesses in committee hearings, not even members of Congress is quite tenuous.

Yesterday I commented on a Sotomay-Breyer concurring opinion, which focused on how the purposes of Congress today to understand an act passed in 1868. Today, Justice Breyer intimated the same notion:

Regardless, if neither the history nor present practice suggests that class arbitration is fundamentally incompatible with arbitration itself, then on what basis can themajority hold California’s law pre-empted?

This suggests that how Congress interprets the FAA today provides meaning of how the enacting Congress (in 1925) interpreted it.

Scalia directly responds to this part, and notes that class action arbitration did not exist in 1925. How could today’s intent possibly affect the old intent?

We find it unlikely that in passing the FAA Congressmeant to leave the disposition of these procedural requirements to an arbitrator. Indeed, class arbitration was not even envisioned by Congress when it passed the FAA in 1925; as the California Supreme Court admitted in Discover Bank, class arbitration is a “relatively recent development.” 36 Cal. 4th, at 163, 113 P. 3d, at 1110. And it is at the very least odd to think that an arbitratorwould be entrusted with ensuring that third parties’ dueprocess rights are satisfied.

Scalia focuses on the intent of the enacting Congress only:

We find it hard to believe that defendants would bet the company with no effective means of review, and even harder to believe that Congress would have intended to allow state courts to force such a decision

Breyer closes with a snipe at what he sees as pseudo-federalism in the pre-emption context.

action”). But federalism is as much a question of deeds as words. It often takes the form of a concrete decision by this Court that respects the legitimacy of a State’s action in an individual case. Here, recognition of that federalist ideal, embodied in specific language in this particular statute, should lead us to uphold California’s law, not to strike it down. We do not honor federalist principles in their breach.
With respect, I dissent.

Et tu Brutus? (Yes I know it is Brute, but Brutus was an anti-federalist, so it works here).