Anderson noted that Chief Justice Roberts roughed up a lawyer from the solicitor General’s office for describing a changed position by the Secretary of Labor; he was annoyed that the SG didn’t explicitly state that the change was due to a change of administrations. Anderson linked an article that further explains what the Chief Justice is up to, quoting an earlier argument where Justice Scalia had jumped the SG over a similar change of position:
“Your successors may adopt a different view,” he then told Verrilli. “Justice Scalia’s point means whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.”
In other words, he’s asserting his ability to cease respecting the solicitor general’s points of view to the extent they represent the views of a new administration.
I have $30 that says Roberts doesn’t ask questions like this next time the White House changes parties.
I read the article and took away a very different view. It seemed to me that Roberts didn’t like the fact that the Solicitor General’s brief was trying to make it look like the secretary had simply changed his mind when in fact there had been a change in administrations and in secretaries. His point was that the brief out to just state the truth rather than try to hide it. I agree.
I don’t see why this shouldn’t apply to everyone regardless of party.
Roberts knew there had been a change of administrations. He’s saying something much stronger here: That the change of positions means that the court didn’t have to defer to the SG’s opinions.
This is not the ordinary way the court interacts with the SG.
I don’t see why the Court should ever defer to the SG’s opinions, but that is just me.
There’s an institutional thing going on there, Anderson, that goes way back. It has seemed a good thing to me, in some ways. My default position– that it seems to work, so it maybe should be preserved– may not always work, but that’s how I came out on this one.
Glancing at Lexis, I think that deference to the SG really means deference to the agency whose position the SG is reporting to the Court, i.e. normal agency deference. I could be mistaken.
SG cert petitions and responses and positions are given an informal kind of deference as I understand it– not so much stated, but they have the court’s ear in a special way.
When the United States appears as litigant before the Supreme Court, I would hope that the views of its counsel would be given no more deference than the views of counsel for any other litigant. Any other approach would be disturbing — in fact frightening.
So I hope that the operative word in Roberts’ remark is the “whatever” in “whatever deference you are entitled to.” And I hope that it means “none,” or at least “no more than the deference given to any other litigant’s counsel.”
As to deference given to agency rulings and the like, that’s an entirely different matter, and the blog post does begin by referring to a position of the Secretary of Labor. But the quotation seems to come from some other case, and, at least on its face, it is referring to deference that should or (I hope, more accurately) should not be given to positions taken by counsel for a litigant.
If Roberts was in fact referring to the entity on whose behalf the solicitor general was acting, and not to the solicitor general office itself (as judges sometimes do, using “you” to mean “your client”) then that should have been made clear in the post, and the recapitulation of Robert’s stance in the penultimate paragraph needs to be revised.
Is it just me, or is it not odd that a member of the Citizens United majority would accuse anyone of twisting the law to fit a desired result?
NotZachScruggs,
The idea that campaign contributions are a form of free speech did not start with Citizens. Years ago the court had struck laws restricting campaign spending by individuals (not contributions, just spending).
In fact, if you look at the facts, the law was being used to prevent the airing of a commercial promoting the airing of a MOVIE that was critical of a political candidate. It was clearly restrictive of free speech.
I just read the Wikipedia article about the case, and it’s quite interesting. Justice Roberts assigned the majority opinion to himself and was going to very narrowly rule that the film had the right to be shown. Justice Kennedy was writing a concurring opinion that was much broader, and justices began to swing to that opinion. Kennedy convinced Roberts to allow him to write the majority opinion.
But in the end, free speech is free speech. The government ought not regulate what people or unions or corporations say, period.
“Free speech is free speech.”
I don’t practice in the area, but I’m pretty sure I’m right when I say it’s more complicated than that, CRS. See, e.g., Bong Hits for Jesus.
Your ignorance offensive continues.
Pike, there is a long line of cases which hold that schools may in certain cases restrict student speech at school sponsored events. When I say “free speech is free speech,” I am not suggesting that one has the right to yell fire in a crowded theater. Rather, is there any speech that should be more protected than political speech? I think not.
Your ignorance offensive continues.
Personally, I have a real problem understanding how an off-campus sign held on the street is not “free speech,” even when held by a high school student, but that corporate cash paid to show a political advertisement is free speech.
I do want to note this is more complex than “do corporations have free speech rights?”– since I agree with the holding in New York Times, Inc. v. Sullivan, I obviously agree they do. I just find it easier to draw a line between spending cash and speech than I do a line between holding up a sign on the street and speech. The later seems inarguable and not remotely connected to keeping order in a classroom.
Hey, CRS, Pike: Did you mean to say “ignorant offensive” or “offensive ignorance?” Seems it could have been either way, from either.
“since I agree with the holding in New York Times, Inc. v. Sullivan, I obviously agree they do”
No 1st Am expert I, but surely “or of the press” is not surplusage? A newspaper would have 1st Am protection even if corporations generally did not … right?
Anderson,
I’m not sure of any reason why a newspaper should have any greater First Amendment rights than a corporation. Historically newspapers published items to promote their own agenda, and in fact still do. They are not disinterested observers even if they pretend to be so.
NMC, I was just copying what Pike said, a sort of “I’m rubber, you’re glue,” type thing. Pike is not capable of disagreeing without someone without hurling personal insults.
Also NMC, I did not much like the Morse, Bong Hits decision. I merely note that students have traditionally been subject to greater curtailment of speech rights at school events.
“I’m not sure of any reason why a newspaper should have any greater First Amendment rights than a corporation. ”
Because “Congress shall make no law … abridging the freedom of speech, or of the press“?
“or”
Interesting point, Anderson: I’ve always assume free speech rights went all-the-way-as-far-as-they-could-go, so never thought the press had more free speech rights than I do (actually, the notion they might I found offensive); perhaps the distinction between corporate free speech and speech by the press would be a way of solving my dilemma.
But the problem isn’t corporations– look at the SuperPAC donnors who have been named, all individuals (whatever vehicle they used to deliver the cash). My problem goes back to the assumptions that $=speech going back to the 70s Buckley case more than the corporation part of Citizens United.
I do think it’s harder than some opponents of Citizens United are willing to acknowledge to draw the lines between free speech and spending money. On the other hand, I think we should try.
CRS, I was joking about ignorance offensives.
“My problem goes back to the assumptions that $=speech”
Agree with you there; at the very least, “financial” speech should be subject to some reasonable regulations, like commercial speech is. Citizens United may really be a logical consequence of Buckley, tho I’m insufficiently up on the law there to really say.
I would point out that Obama in 2008 was the first presidential nominee to decide not to abide by the public funding guidelines. A lot of his donations came from really dubious sources, such as $49 donations from prepaid debit cards.
But anyway, liberals seemed to have no problem in 2008 with “big money” making its way into the campaign. But then came Citizens United plus lots of conservatives willing to make big donations in this election cycle, and suddenly when the GOP started having more money to spend big money in politics became an issue which needed to be regulated.
And I have to point out, money can help get one’s message out, but if the people don’t like your message they aren’t going to vote for you no matter how much you spend.
A lot of his donations came from really dubious sources, such as $49 donations from prepaid debit cards.
“Dubious” = “no bank account or credit card”?
Regardless, campaigns do spend too much money. I would like to see the campaigning season shortened, but I’m not at all clear how to do it.
Here’s a fairly timely comment on “the press” …
http://opinionator.blogs.nytimes.com/2012/11/28/press-clips/?nl=opinion&emc=edit_ty_20121129
>>
A lot of his donations came from really dubious sources, such as $49 donations from prepaid debit cards.
< <
Yeah, those federal election reports tell us that donations not required to be reported came from a
*debit card (as opposed to any kind of card)
*that was prepaid (really? You can tell a prepaid one from not?)
This sounds like a fever dream of the RW media bubble, a bit more perhaps than this one apparently freely adapted from the B movie Invaders from Mars
Dude, what *is* that thing?
A Christian right facebook account asserts that it is what we will all have implanted, thanks to Obamacare.
Somehow, those yokels don’t realize that we’ve passed beyond vacuum tubes in the effort to miniaturize things. Perhaps they’re fans of vintage rock amplifiers.
I’m quite aware of the long line of cases you reference, CRS. In fact, I cited a case from it! I was trying to point out that your simplistic little maxim was, well, simplistic. I’ll be less subtle next time.
I don’t think I’d consider $49 to be “big” money. If you put 200,000 of those donation you get one Sheldon Adelman $20 million donation.
Why should Sheldon Adelman get as much “free speech” as 200,000 other people?
“Why should Sheldon Adelman get as much “free speech” as 200,000 other people?”
Why shouldn’t he?
Free speech isn’t something to be rationed out by the government. I might note that one can give $49 again and again. In fact, there is a belief among some that that is what happened with the Obama campaign, that certain donors, possibly foreign, made thousands of $49 donations to bypass reporting requirements.
But that aside, is the government to assign each person a certain number of words that may be spoken in favor of a cause? A certain number of keystrokes? A certain amount of dollars that may be spent? I say no.
Speaking of press-related trouble brewin’, here’s this, from across the pond:
http://www.cnn.com/2012/11/28/business/uk-leveson-media-report/index.html?hpt=hp_t3
“There is a belief among some” that earth was created by a giant space bird who laid an egg in exactly the right place. That’s a poor line of argument, CRS.
And . . . where does free speech come from but the Constitution? And do the people in China have free speech? Of course free speech comes from the government, and in the particular context we’re discussing, free speech in the form of Sheldon Adelman having a lot more of it than I do, free speech comes from the Supreme Court. The Court already decided a certain amount of dollars that can be spent – and that amount is “limitless.”
“certain donors, possibly foreign…”
The calling card of the American paranoid.
certain donors, possibly foreign…
You caught me. I donated $100 to the Obama-Biden online re-election committee while we were in France.
So … cut my hair and send me to Vietnam….
“There is a belief among some that earth was created by a giant space bird who laid an egg in exactly the right place.”
I really don’t think I would call something that is accepted by virtually everyone as fact to be a “belief among some.”
giant space bird who laid an egg in exactly the right place….
Sounds like one of the weapons in Angry Birds ….
“In fact, there is a belief among some that that is what happened with the Obama campaign, that certain donors, possibly foreign, made thousands of $49 donations to bypass reporting requirements.”
Here’s your quote. My point is that “there’s a belief among some” is a “tactic” to allow the person using it to say any ole thing they want.
What is it you’re saying is “accepted by virtually everyone as fact”? That dirty foreigners illegally piled up donations to Obama? The concept of that being “accepted by virtually everyone” is laughable on its face.
Scott, I wasn’t saying it was “accepted by virtually everyone.” I was joking about the space bird.
http://campaignfundingrisks.com/wp-content/themes/cfr/images/AmericaTheVulnerable.pdf
In the most recent election, the Romney campaign required the security code on all credit and debit card donations, thus safeguarding against illegal contributions. The Obama campaign did not. The Obama campaign did require the code for purchases from its store. This was clearly an invitation to campaign fraud.
If you read the report above, you will find that Republicans are not immune to the lure of illegal funds. But in the most recent campaign, clearly Obama was out to get them and did so.
http://www.fas.org/irp/congress/1998_rpt/sgo-sir/4-3.htm
CRS, since we’re agreed on the origin of the planet, we may be wasting our time disputing unimportant stuff like free vs. paid-for speech, etc. …
re. the report – it’s clearly not objective (see the Director being from the Hoover Institute, directors from Breitbart, etc.) – also, the Executive Summary contradicts itself in one place (the obama.com website is either registered by an unknown person or bought by a Chinese guy) and flat wrong in another (as someone who did donate <$200 to the Obama campaign, they did, in fact, ask for address and citizenship verification.) The whole CVV thing is kind of a red herring as far as I can tell.
And what does this have to do with Sheldon Adelman's speech being valued more than yours or mine?
I love the fact that we can argue about this all we want, but as was pointed out in an editorial column in the ny times yesterday, all the fat cats money was wasted in the end. Logan International Airport ran out of parking spaces for all the private jets arriving for what they thought was going to be a big victory party.
pr1954 is right. Merely spending money is not buying votes.
Don’t know if any of you remember back when John Connally ran for office in 1980, but my recollection is he opted out of public funding and got very few votes. I can’t remember the numbers, but he spent big money and got nowhere.
But Sheldon Anderson’s speech doesn’t have any more value than mine, even if he spends $10 million getting his words out. Joe the Plumber dared to confront Obama on his front lawn in 2008 and he got far more coverage for his speech than Sheldon Anderson could have gotten for $100 million.
Sure, money helps, but at some point it can become counterproductive if it’s perceived that only two or three big mouths are footing the bill rather than a broader base of society. The political market is self regulating. We don’t need the iron boot of government-imposed “fairness.”
pr1954 — After reading your comment about Logan, I can’t resist sharing that I was intrigued by a conversation I overheard between a very, very expensive men’s clothing store owner and one of his patrons on the day before the election (I was sitting one barstool over):
How’s business?
Slow. Mighty damn slow.
Any sign of it picking up?
After tomorrow, when Romney wins, yes.
CRS, let it be put into the record… “pr1954 is right” …(for once).
NZS, I’ll drink to that!