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Thursday, January 19, 2006

Judge Alito as an Oakeshottian

On the Volokh Conspiracy blog, Orin Kerr has asked the question How conservative is Sam Alito?

My answer to the question is that Judge Alito will jurisprudentially be most similar to Chief Justice Rehnquist. As has been written about in the media, Chief Justice Rehnquist began a thesis on conservative political theorist Michael Oakeshott while at Harvard; Oakeshott emphasized the centrality of tradition for stability and continuity in politics and society. Oakeshott is very Burkean in that respect. Here is a link to the Michael Oakeshott Association.

Chief Justice Rehnquist's jurisprudence seems to have soaked up a lot of Oakeshottian political theory. His dissents on the conservative side always seemed to be very dispassionate -- arguing for what politically can be deemed the "conservative" side, but always from a position of minimalism, not extremism. When it was prudent to maintain stare decisis, Chief Justice Rehnquist's majority opinions in the Dickerson case (upholding Miranda) and the Hibbs case (upholding the Family and Medical Leave Act in the face of an 11th Amendment challenge from Nevada) reflect these values. I believe Judge Alito will also share these Oakeshottian values.

The First Amendment, News Gathering, and UCLAProfs

There is a very interesting hypothetical case regarding freedom the press posed by Eugene Volokh on the Volokh Conspiracy blog today ( link here ). At that post you will find the detailed and interesting hypothetical regarding the statute California Education 66450, which leaves open those who impermissibly distribute UCal lectures. for profit. I have provided some lengthy comments on the Volokh blog comments line, but let me write out a summary (which is still lengthy) of what I have written.

[Update: I just want to clarify that it appears that the reason for Professor Volokh's presenting the hypothetical case was because of the UCLAProfs.com web site's activities -- see Eugene Volokh's postings on the subject at this link and elsewhere on the VC blog.]
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The hypothetical case Professor Volokh has presented is a difficult one, and poses a novel set of facts that would potentially call for new doctrine. The Supreme Court precedent that is most on point is Cohen v. Cowles Media Co , 501 US 663 (1991) [ see link here ] a case dealing with the legal question of whether the First Amendment prevents the recovery of damages from a newspaper that result from that newspaper’s breach of a promise of confidentiality to a source (under the state’s generally applicable promissory estoppel law).

There were two lines of precedents that the Court could choose from. The first line of precedents was the Smith v. Daily Mail and Florida Star line, which holds that "if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order" (Smith v. Daily Mail Publishing Co, 443 US 97, 103 [1979]) .

The second line of precedents includes Branzburg v. Hayes, 408 US 665 (1972) and Associated Press v. NLRB, 301 US 103 (1937); this line of decisions holds that, in the words of Justice White in the Cohen decision, “generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.” Cohen at 669.

Justice White believed that the facts of the case before the Court led them to the second line of precedents – a generally applicable law that calls for civil damages. Notice that Justice White’s language includes the infinitive “to gather.” This decision clearly has at least some implications for the act of newsgathering.
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Now: in terms of potential new doctrine:

It seems to that Justice White’s formulation in Cohen v. Cowles (i.e., incidental effects produced by generally applicable laws) could stand on its own, or be even more formalized into something akin to the O’Brien four-prong test that applies to symbolic speech. Such “intermediate scrutiny” as found in O’Brien however has notable opponents, including Justice Scalia in his Barnes v. Glen Theatre concurrence. Such fuzzy balancing tests raise fundamental questions about the nature of judicial review that are worthy to explore
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If the Cohen v. Cowles decision does in fact apply (which I believe it does), the question is, was California Education Statute 66450 enforced in such a way as to produce “incidental effects on [the press’s] ability to gather and report the news”? Nunzio in his insightful post raises the point that the news reporters could simply interview students about what was said; therefore the statute holds up in this particular case.. But perhaps the editors believe they need concrete proof along the lines of an audiotape before they feel comfortable publishing the story. Would this in essence be putting the Supreme Court as final arbiter of what is sourced well enough to be published? Moreover, what if the editors published the story with their “paid researchers” as anonymous sources, and UC-Davis in their civil suit demands that The Davis Enterprise disclose the names of these anonymous sources? To what extent would the sources as agents of the newspaper be protected under the 1st Amendment if Florida Star were to be controlling? The recent dust-up over Judith Miller would seem to imply that UC-Davis might win out on a purely textual basis alone.

But then we get to what is the bane for some federal judges’ existence, and for other judges, the linchpin of their decision-making: legislative history and intent. What was the legislative history behind California Education Statute 66450? Some judges may dispose of the matter simply by looking at the legislative history and deciding that matters such as investigative reporting were not envisioned to be covered by the statute, even though it is written in a generally applicable way. The legislative history and intent is therefore an important variable to account for.

But the plain language of the statute combined with Justice White’s phraseology in Cohen v. Cowles would seem to lead to a ruling for UC-Davis, with California Education Statute 66450 being ruled constitutional in this hypothetical case.


In terms of potential new doctrine:

I suppose that Justice White’s holding in Cowles could be, in this hypothetical case, formalized as an O’Brien “intermediate scrutiny” test (cf. United States v. O'Brien , 391 U.S. 367 (1968) [ see link here see link here and Barnes v. Glen Theatre, 501 US 560 (see link here ). The O’Brien four part test is as follows:

1) if it is within the constitutional power of the government;
2) if it furthers an important or substantial governmental interest;
3) if the governmental interest is unrelated to the suppression of free expression; AND
4) if the incidental restriction on 1st Amendment freedoms is no greater than is essential to the furtherance of the governmental interest.

“Intermediate scrutiny” is a notably fuzzy balancing test that has some, including Justice Scalia on record in Barnes, as being opposed to. For example, with prong #2, the ways in which “important or substantial” is different from “compelling” are difficult to discern. Furthermore, and more importantly the O’Brien test applies to symbolic speech, and this is most certainly NOT symbolic speech. It would be hard to posit a rational basis test for this case though – there is no morals rationale as there was in Barnes (the nude dancing case), given the public interest involved in this hypothetical news story. But I’d say that something along the lines of an O’Brien test would work here, and is more or less what is in place with Justice White’s statement that “generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.”

Therefore, this generally applicable California Education Statute, in my view, only appears to have incidental effects on the press’s ability to gather and report the news. Of course, it isn’t clear how courts are able to determine what is or is not an “incidental effect on [the press’s] ability to gather and report the news.” These kinds of balancing tests raise problems through the realm of judicial review, and thus make for very difficult cases.

Wednesday, January 18, 2006

The Blog Wrap -- 1-18-06

Here is "The Blog Wrap" -- some blog posts of particular note that I have been reading. In the comments sections of these posts, you will find remarks from yours truly.

Ann Althouse on the Ayotte ruling handed down today by the US Supreme Court regarding New Hampshire's abortion law.

Eugene Volokh on the usefulness of amicus curiae briefs before the US Supreme Court.

Orin Kerr on oral arguments in United States v. Grubbs, a 4th Amendment case before the US Supreme Court.

Stephen Bainbridge on the US Supreme Court's ruling in Gonzales v. Oregon, the case dealing with Oregon's assisted suicide law.

Stephen Bainbridge on why it was crucial that conservatives fought (and won) the battle over Harriet Miers.

Althouse, Volokh Conspiracy, and ProfessorBainbridge are three excellent law blogs (or blawgs, if you prefer) that are definitely worth regular reading. Enjoy!

Tuesday, January 17, 2006

Myers and Humphrey's Executor

Ann Althouse and others (e.g., see here and here) have been discussing the case of Humphrey's Executor v. United States (295 U.S. 602; 1935 ). Humphrey's Executor got referenced frequently during the Alito confirmation hearings, as Democratic Senators were attempting to gauge Judge Alito's beliefs about the scope of executive power. But their questions in this area were, in my opinion, not trenchant enough.

What would have been daring, had any of the Democratic Senators or their staffs wanted to truly test Judge Alito's ability to speak off the cuff about constitutional law, would have been to ask a follow up question on Humphrey's Executor. Namely, would Judge Alito agree with the holding in Myers v. United States (272 U.S. 52; 1926), which was modified by the ruling in Humphrey's Executor nine years later. Myers ruled that the President could fire postmasters general without consent of the Senate, but the principle that was articulated in the holding was quite broad. Chief Justice Taft wrote:

"The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates. This view has since been repeatedly affirmed by this court. ... As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws. The further implication must be, in the absence of any express limitation respecting removals, that as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible."

Humphrey's Executor, in Justice Sutherland's opinion, distinguishes FTC Commissioners from postmasters general; Justice Sutherland writes:

"The office of a postmaster is so essentially unlike the office now involved that the decision in the Myers case cannot be accepted as controlling our decision here. A postmaster is an executive officer restricted to the performance of executive functions. He is charged with no duty at all related to either the legislative or judicial power. The actual decision in the Myers case finds support in the theory that such an officer is merely one of the units in the executive department, and, hence, inherently subject to the exclusive and illimitable power of removal by the Chief Executive, whose subordinate and aid he is. Putting aside dicta, which may be followed if sufficiently persuasive but which are not controlling, the necessary reach of the decision goes far enough to include all purely executive officers. It goes no farther; much less does it include an officer who occupies no place in the executive department, and who exercises no part of the executive power vested by the Constitution in the President."

This is an eminently reasonable distinction to make, one that Judge Alito has (given his statements in support of Humphrey's Executor) implied he agrees with as a matter of precedent. But it would have been interesting if those Senators concerned about Judge Alito's views about the scope of executive power had pressed him about Myers, and whether he agreed with the ways that Humphrey's Executor narrowed the scope of the implications of Myers.

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