Religious Liberty and the Ignorant Majority

   Susan Galloway, who is Jewish, and Linda Stephens, an atheist, felt “marginalized” when they had to sit through Christian prayers at the start of meetings of their town board in Greece, N.Y. They complained, but the town supervisor saw no need to change. And at the next meeting the prayer-giver even went out of his way to criticize those who objected to the practice as an “ignorant minority.”
   In reality, the ignorant shoe is on the other feet. The town supervisor and many of the Christian pastors who delivered the opening prayers for the town board were oblivious to the point of ignorance of the limits that Supreme Court precedents and the American tradition of religious freedom place on government-sponsored prayer.
  The arguments from Greece, a midsized suburb of Rochester, reached the U.S. Supreme Court earlier this month [Nov. 6]. The case, Town of Greece v. Galloway, found the justices at least as divided as the townfolk about the use of prayers to open local governmental meetings.
  From one side, Justice Antonin Scalia found the practice not only unobjectionable but even necessary to accommodate the religious rights of the legislators themselves. If citizen legislators invoke the deity before eating, Scalia suggested, they should also be allowed to invoke it before they undertake “a serious governmental task such as enacting laws or ordinances.”
  From the other, Justice Elena Kagan worried that the practice runs afoul of an American principle of equality before the law. “When we relate to our government,” Kagan said, “we all do so as Americans, and not as Jews and not as Christians and not as nonbelievers.”
  The constitutional argument begins with the text of the First Amendment, which commands that Congress pass no law “respecting an establishment of religion, or prohibiting the free exercise thereof.” The use of prayers to open governmental proceedings sits uncomfortably with that text. But prayer advocates note that the same Congress that sent that amendment to the states for ratification also approved the hiring of a Senate chaplain to open its sessions.
  The unbroken, 220-year history of paid congressional chaplains is the strongest argument made by the town and the many religious and politically conservative groups supporting it. Over time, a majority of state legislatures followed suit, including Nebraska in the mid-19th century.
  Contrary to the suggestion of the historical argument, the practice was not without controversy. James Madison, the main author of the First Amendment, later regretted his vote as a member of the House of Representatives in approving the paid congressional chaplains. Occasional controversies emerged through the years, and one — from Nebraska — finally reached the Supreme Court early in the 1980s.
  In Marsh v. Chambers (1983), Nebraska state senator Ernie Chambers objected on Establishment Clause grounds to the paid chaplain for the unicameral legislature. By a 6-3 vote, the court found no constitutional bar to the practice. Relying exclusively on history, the court found that the practice had become “part of the fabric of our society” and was “simply a tolerable acknowledgment of beliefs widely held among the people of this country.”
  Tellingly, the court did not cite the conditions laid out a decade earlier in the so-called Lemon test for judging Establishment Clause cases. In that case, Lemon v. Kurtzman (1971), the court said that government action regarding religion can pass Establishment Clause muster only if has a secular purpose, does not have a primary effect of advancing or inhibiting religion, and does not entangle government wit religion. But the court did note that the Nebraska chaplain, Robert Palmer, described his prayers as “nonsectarian” and that he removed references to Christ after 1980 after a Jewish legislator had complained.
  When Greece’s town supervisor decided to institute opening prayers at board meetings in 1999 —  replacing the previous, uncontroversial practice of a moment of silence — many of the pastors chosen for the honor had no such inhibitions. In the Supreme Court arguments, Kagan quoted to the town’s lawyer, Thomas Hungar, one of the prayers from the town’s meetings with extended explicit references to Christian beliefs. Would that be an acceptable way to open a Supreme Court session, she asked. “I don’t think so,” Hungar replied.
  Under pressure from Scalia, Hungar later backtracked from his concession, but his instinct was correct. Sectarian Christian prayers cross a line that the Establishment Clause requires, even if viewed through a historical lens. As University of Virginia law professor Lois Laycock pointed out in his argument on Galloway’s behalf, the 18th century congressional chaplains did not use their government-provided pulpits to address the divisive theological issues of the day, such as predestination. In a country with increased religious diversity today, the need for prayers to strike ecumenical themes is all the greater.
  Some of the justices — notably, Anthony M. Kennedy — seemed to recoil at the notion of government officials editing prayers. But the court itself in Marsh set out two conditions for legislative chaplains: prayers must not proselytize nor advance or disparage any specific religion. As Laycock noted, courts must have the default responsibility to enforce those lines. The justices may be tempted to keep the court out of this controversy, but only the courts can protect the religious liberties of religious minorities when they are ignored by the religious majority.

Race-Based Lawyering Misfires at Supreme Court

  Opponents of Michigan’s voter-approved ban on racial preferences in public college and university admissions had an uphill fight in persuading the U.S. Supreme Court to strike it down. But it appears that the Michigan group that has fought the initiative tooth-and-nail for eight years may have weakened its slim chance of victory by playing the race card on game day in front of the justices.

  Thanks to reporting by Tony Mauro of National Law Journal, it is now known why the provocatively entitled Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary made a last-minute switch in the lawyer to argue the case at the Supreme Court. George Washington, the white lawyer who had argued the case before the federal appeals court in Cincinnati, was swapped on the eve of the Oct. 15 argument for Shanta Driver, his African American law partner and fellow leader of the group.

   Mauro reports that Washington and Driver both “mooted” the case — that is, rehearsed their arguments before panels of lawyers and law professors — in the week before the Oct. 15 arguments. Washington had been listed as the coalition’s attorney on the “hearing list” released by the court on Sept. 28 in advance of its October calendar. But the court was notified on Oct. 14—  Columbus Day, a legal holiday — that it would be Driver instead.

   As Mauro notes, it is rare — one might say unheard of — to change lawyers in a Supreme Court case at such a late date. And, on paper at least, Washington appears to have better credentials than Driver for the assignment. Both are Harvard College graduates, but Washington went to Harvard Law School and was first admitted to the bar in 1973. Driver is a 2003 graduate of Wayne State University Law School. Washington has a 6.5 rating from the lawyer-rating service Avvo; Driver is unrated. 

  Why then the switch? Driver herself disclosed the reason in a post-argument pep rally to the coalition’s supporters brought to Washington for a demonstration outside the court. The comments were recorded and posted on YouTube, where Mauro discovered them last week. It was important to have a black lawyer for the case, Driver explained, because only one black lawyer argued before the court in the preceding term: 11 minutes, she elaborated, out of 1,800 minutes of argument time altogether. 

   Driver’s information was correct, as first reported by the Associated Press. The only black lawyer to argue before the court during the 2012-2013 term was Debo P. Adegbile, counsel with the NAACP Legal Defense Fund, who shared argument time with the government in unsuccessfully defending the constitutionality of the Voting Rights Act. But Adegbile, an experienced appellate advocate, acquitted himself well in the argument. Driver, in the estimation of court watchers who attended the Oct. 15 argument, did not.

   Supreme Court advocates carefully rehearse their opening sentence, knowing that they may be interrupted before getting to the next. Driver opened by asking the court to restore the Fourteenth Amendment to its “original purpose” — to wit, “to protect minority rights against a white majority.” Justice Antonin Scalia forcefully interrupted to say that the court’s precedents now hold that the Fourteenth Amendment protects all persons.

  When Driver held to her point, Scalia asked the predictable question: “Do you have any case of ours that propounds that view of the Fourteenth Amendment, that it protects only minorities? Any case?” And to that question Driver had no answer: “No case of yours,” she said.

  Off to a terrible start, Driver’s argument did not get much better. She had no direct answer to one question from Justice Samuel A. Alito Jr., prompting both Alito and later Justice Anthony M. Kennedy to chide her for not being responsive. When Chief Justice John G. Roberts Jr. joined the questioning, he easily put Driver into a logical bind, prompting Scalia to accuse her of contradicting herself. For the coalition, the best moment in Driver’s argument came when Justice Sonia Sotomayor summarized her position. “You restated it very well,” Driver replied. 

  Outside afterward, Driver gladly accepted the crowd’s cheered assessment that she “did well.” “I did great,” she said, even as reporters preparing to write their stories inside were shaking their heads at the poor performance. In recapping the session for the crowd, she dismissed Scalia’s gotcha question as “yada, yada, yada.” 

  Driver went on to say that it was important for someone “from the movement” to have made the argument to “help bring the left wing to life . . . make them assert themselves.” Apparently, Driver had missed the point of all the advance stories about the case — that it was Kennedy, not the liberal justices, who held the key to any hopes the coalition might have to strike down the Michigan initiative. 

  Driver came to the Supreme Court argument with a two-decade history of organizing and demonstrating in the streets — back as far as disrupting a meeting of the University of California Board of Regents in 1995. She is quoted repeatedly in news coverage about the initiative — from signature gathering in 2005 up to the present — with rhetoric that is strident and confrontational. There is a place for that, of course, but one place where it does not help and is very likely to hurt is the lawyer’s lectern at the Supreme Court.    

The Unseen Horrors of Drone Warfare

  “It is well that war is so terrible. We should grow too fond of it.”

Gen. Robert E. Lee

   It has been just over a year since Mamana Bibi was blown to bits by a Hellfire missile fired from a pilotless U.S. aircraft while she was picking okra in the family field near the village of Ghundi Kala in Pakistan’s northwest frontier region. Four of Bibi’s young grandchildren saw and felt the impact of the explosion; two suffered shrapnel injuries. A three-year-old grandson was seriously injured when he was thrown from the roof of the family home by the force of the blast.
   The U.S. drone attack near Ghundi Kala on Oct. 24, 2012, appears to have gone unreported in U.S. media until Amnesty International used it to open its new report, “Will I Be Next? U.S. Drone Strikes in Pakistan.” The report was released last week [Oct. 22] in conjunction with a parallel report by Human Rights Watch on U.S. drone warfare in Yemen: “Between a Drone and al-Qaeda.”
   Together, the two reports, dissecting a dozen of the hundreds of drone attacks in the past four years, provide a powerful corrective to the antiseptic picture of U.S. drone warfare that emerges from the limited information about the attacks given out by the government. They refute the anodyne assurances from President Obama and others that the government is exercising extreme care to target attacks accurately and minimize collateral damage to innocent victims or property. And they present a strong case that the United States is violating not only Obama’s stated guidelines but also international law.
   Drone warfare appeals because it allows the United States to take out bad guys from al Qaeda without ever putting Americans in harm’s way. U.S. military or CIA technicians, safe in a command center in the United States, supposedly guide the remote-controlled aircraft into position over the identified target and hit the launch button only after taking precautions against collateral damage to innocent victims or property.
   That is not what it looks like on the ground, according to the disturbing images and accounts gathered by researchers from the two human rights groups from witnesses, survivors and Yemeni and Pakistani officials. Beyond doubt, many of the victims were innocent bystanders. Bibi, a 68-year-old grandmother, was one; so too were the youngsters among the 18 killed when missiles rained down on a group of laborers in the village of Zowi Sidgi in July 2012. In an especially poignant example, previously reported, Salim bin Ahmed Ali Jaber, an anti-al Qaeda cleric in Yemen, was killed on Aug. 29, 2012, along with three al Qaeda operatives who had set up a meeting with him to challenge his positions.
   Human Rights Watch counts 82 deaths from the six drone attacks in Yemen it studied, including 57 civilians — more than two-thirds of the total. The group cites an estimate that puts the total death toll in Yemen at 473, civilians and combatants lumped together. Amnesty International relays estimates from other non-governmental organizations and from Pakistani sources that put the civilian death toll in Pakistan since 2004 somewhere between 400 and 900. If true, the number appears far larger than the number of deaths of al Qaeda combatants suggested by U.S. government accounts.
   The civilian casualties are an inherent risk from the fog of war, the reports suggest. Bibi may have been mistargeted in an attack aimed at a Taliban fighter who had been located nearby but drove away before the missiles were fired. Zowi Sidgi appears to be in a corridor for Taliban fighters, but villagers interviewed afterward insisted that most if not all of the victims had nothing to do with the Taliban. From afar, Jaber’s innocent reasons for meeting with al Qaeda fighters were unknowable.
   Even apart from the unknowables, however, the reports fault the United States for violating rules established by international law and in some cases incorporated by Obama in the reset of drone policy he outlined in a speech at the National Defense University in May. Obama said the United States prefers capture to targeted killing whenever feasible. In Yemen, Human Rights Watch argues that lethal force is barred in any event in the absence of an armed conflict with al Qaeda in the Arabian Peninsula and that targeted suspects could have been captured in at least two of the attacks studied. Obama says the United States goes after individuals only if they present an imminent threat to the United States; both groups say some of the targets appear not to qualify under that criterion.
   More generally, both groups fault the administration for failing to provide a clear legal rationale for the drone attacks, for releasing so little information about the attacks, and for failing to ensure compensation for innocent victims or their families. And both reports emphasize that opposition to the drone attacks is widespread in Pakistan and Yemen; the ill will created may outweigh any benefits from the attacks in terms of counterterrorism policies.
   Elders from Ghundi Kala held a press conference two days after the attack that killed Bibi to protest the drone warfare, but it attracted no news coverage in the United States. The drones are weapons in a war that is largely unseen in the United States. They are terrible in their own way, but out of sight it is easy for the government and the public to grow fond of them.

Making Evey Vote Count, for Real

 “[E]lections for political office at the state or federal level are never decided by just one vote.” Crawford v. Marion County Board of Elections (Posner, J.)

   One vote actually can make a difference — even in elections, however rarely — but certainly in judicial decisions. So legal commentators naturally are making much of Judge Richard Posner’s belated apology for his pivotal vote in the seminal federal court decision seven years ago to uphold state voter photo ID laws.
   “I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana's requirement that prospective voters prove their identity with a photo ID — a type of law now widely regarded as a means of voter suppression rather than of fraud prevention,” Posner writes in his new book, Reflections on Judging.
   Posner’s confession of error, in the midst of the continuing debate over voter photo ID laws, would have earned him a gold star for candor but for his subsequent decision to deflect the blame to the lawyers in the case. The real blame, however, lies not with the lawyers and not even with Posner alone, but with the deferential stance that the Supreme Court itself has taken in reviewing laws that make it hard to vote.
   Posner shifted the blame for his vote in an interview on HuffPost Live [Oct. 11] when he said the lawyers challenging the Indiana law failed to show that the photo ID requirement would actually disenfranchise people entitled to vote. “If the lawyers had provided us more information about the abuses,” Posner told interviewer Mike Sacks, “the case would have been decided differently.”
   Understandably, the Washington lawyer who argued the case before the Supreme Court is taking exception to Posner’s blame-shifting. Paul Smith, a veteran of voting rights litigation and an experienced Supreme Court advocate, notes on the American Constitution Society’s blog that Indiana’s Republican secretary of state, the law’s chief sponsor, had acknowledged that the photo ID requirement would be “difficult” for many voters, including “elderly voters, indigent voters, voters with disabilities, first-time voters, [and] re-enfranchised ex-felons.”
   The lawyers challenging the law also emphasized the political facts of life behind it. The law was enacted in 2005 just after Republicans had gained control of both chambers of the state legislature and the governorship. Every Republican legislator voted for it, and every Democratic lawmaker voted against it. Posner himself acknowledged in his opinion that the potential voters most likely to be burdened by the law were people “low on the economic ladder” — and most likely to be Democratic voters. 
   Partisanship was also in evidence in the courts’ handling of the case. The district court judge who upheld the law was a Republican appointee, as are Posner and his Seventh Circuit colleague who joined in the decision. The Democratic appointee on the panel, the late Judge Terence Evans, dissented. “Let’s not beat around the bush,” Evans wrote. “The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election-day turnout by folks believed to skew Democratic.”
   The partisan divide was muddied somewhat at the Supreme Court, as Justice John Paul Stevens joined with the Republican-appointed conservative bloc in 2008 in upholding the law. Writing for a plurality that also included Chief Justice John G. Roberts and Justice Anthony M. Kennedy, Stevens accepted the state’s purported justifications for the law, including preventing voter fraud, and found the law’s burdens not substantial enough to justify striking it down.
  Stevens conceded that Indiana itself had shown no instances of in-person voter impersonation — the only kind of voter fraud that a photo ID can prevent — but claimed that history offered real-life examples. In the most recent instance cited by Stevens, however, an investigation in Washington State of 19 supposed “ghost” voters identified only one instance of in-person impersonation. For three liberal dissenters, Justice David H. Souter argued that the state’s “abstract interests” did not justify the “nontrivial burdens” imposed on would-be voters.
   Voter ID laws are now on the books in 34 states and are surviving legal challenges, most recently in a unanimous decision by the Tennessee Supreme Court [Oct. 17].  The Roberts Court’s decision in June that freed southern states from the Voting Rights Act’s preclearance requirement has defanged the Obama administration’s challenges to such laws in South Carolina and Texas. The plurality in the Indiana case left the door open to future legal challenges, but none is likely to succeed unless judges gets serious about requiring states to justify laws that inevitably impede the ostensibly sacred right to vote.
   The court’s precedents require states to show the precise interest to be served by any voting eligibility requirements and to weigh that interest against the resulting limitations on the right to vote. In his decision in the Indiana case, however, Posner was notably blasé about the limitations. Even “slight costs in time or bother or out-of-pocket expenses” may deter “many people” from voting, he wrote, but with no great concern. The benefits of voting to the individual voter,” Posner opined, “are elusive.”
   The right to vote deserves better than that — from Posner and, all the more, from the Supreme Court. “Every vote counts,” voters are regularly told on the eve of elections — and so too every vote that is not counted because never cast. In future voting rights cases, the Supreme Court needs to try to make that slogan actual reality and not just a platitude.

Rights-Protecting Precedent at Risk at Court

  When the Akron, Ohio, city council enacted a fair housing ordinance in 1968, opponents drafted and won voter approval of a charter amendment prohibiting adoption of any such law unless approved by a majority of voters. The Supreme Court cried foul. With only one justice dissenting, the court held in Hunter v. Erickson (1969) that the Equal Protection Clause prohibits a change in the political process that imposes “special burdens on racial and religious minorities . . . by making it more difficult for them to secure legislation on their behalf.”
  A decade later, voters in Washington state approved a ballot measure, Initiative 350, that effectively prohibited school districts from using busing for purposes of racial integration while allowing it for any of several other educational policies. Again, the court cried foul, this time by a 5-4 vote. For the majority, Justice Harry A. Blackmun wrote in Washington v. Seattle School Dist. No. 1 (1982)  that the initiative “creates a constitutionally-suspect racial classification and radically restructures the political process,” amounting to “a major reordering of the state’s educational decisionmaking process.” 
  Together, the cases establish what is called the political restructuring doctrine, a rule unfamiliar even to many legal experts because so rarely invoked. But the federal appeals court in Cincinnati invoked it last year in striking down a Michigan ballot measure that bars racial preferences in state and local government policies, including admissions at public colleges and universities.
  The state has appealed that decision to the Supreme Court, which is set to hear arguments in the case this week [Oct. 15]. Supreme Court handicappers are predicting that the decision in Schuette v. Coalition to Defend Affirmative Action will significantly limit or possibly even overturn a doctrine that, however infrequently used, is viewed by traditional civil rights groups as a logical and necessary part of equal protection law.
  Michigan became one of the major battlegrounds in the war over race-conscious admissions policies in the late 1990s. The anti-racial preference group Center for Individual Rights filed separate challenges against admissions policies at the University of Michigan’s flagship undergraduate college in Ann Arbor and the university’s law school. In separate cases, the Supreme Court upheld the limited use of race in the law school’s admissions policies (Grutter v. Bollinger) but ruled out the substantial numerical preferences for minority applicants at the undergraduate college (Gratz v. Bollinger).
  Taking its cue from Grutter, the university revamped undergraduate admissions policies to allow the use of race as one among other factors. Opponents responded by qualifying what they entitled the Michigan Civil Rights Initiative for the statewide ballot in November 2006. The measure prohibits discrimination or “preferential treatment” in public employment, government contracts, or public education on the basis of race, sex, color, ethnicity, or national origin. The measure won approval with 58 percent of the vote: two-thirds of white voters voted for it; 90 percent of black voters voted no. 
   Complex litigation that spanned six years culminated in a fiercely fought, 8-7 decision by the full Sixth U.S. Circuit Court of Appeals in November 2012 striking down the measure. Opponents argued that the measure imposed a political burden on advocates of race-based preferences not imposed on supporters of other admissions preferences, for example for children of wealthy donors or alumni. The measure “undermines the Equal Protection Clause's guarantee that all citizens ought to have equal access to the tools of political change,” the majority wrote.
   In appealing that decision to the Supreme Court, the state’s attorney general, Bill Schuette, depicts the initiative as an unexceptional guarantee of civil rights. “It is curious to say that a law that bars discriminating on the basis of race or sex violates the Equal Protection Clause by discriminating on the basis of race or sex,” the brief filed by Schuette’s office states.
   Mark Rosenbaum, legal director for the American Civil Liberties Union of Southern California and attorney for one set of plaintiffs in the case, calls that depiction of the initiative misleading. The initiative’s prohibition against discrimination is gratuitous, he notes, since it is already illegal for state or local governments to discriminate on the basis of race or the other factors. The effect of the initiative, Rosenbaum stresses, is to prohibit race-conscious admissions policies that would be lawful under Grutter — and to set up an effectively insurmountable political obstacle for advocates of such policies.
   Rosenbaum emphasizes that the case is not about affirmative action as such, but the opposing briefs by Schuette and by the pro-affirmative action coalition rehash the debate over race-conscious admissions at length and with heat. The conservative majority on the Roberts Court are no great fans of affirmative action, and the five justices are not seen as likely fans of the political restructuring doctrine either.  Tellingly, Justice Anthony M. Kennedy did not rely on it in the opinion he wrote in Romer v. Evans (1996) striking down an analogous anti-gay rights initiative in Colorado.
   The Michigan measure is a verbatim copy of a California ballot initiative, Proposition 209, adopted in 1996 and upheld by the Ninth U.S. Circuit Court of Appeals. The Supreme Court left that ruling standing. Supporters of race-based admissions policies fear — and their opponents hope — that a Supreme Court ruling to reinstate the Michigan measure will encourage other states to follow suit in prohibiting racial preferences in university admissions. That could be a decisive turning point in a war that traditional civil rights groups already seem to be losing.

One More Campaign Finance Law Likely to Fall

  The Roberts Court has yet to meet a campaign finance law that it likes. In eight years under Chief Justice John G. Roberts Jr., the court has issued six decisions striking down provisions of federal or state campaign finance laws. And the court’s conservative majority seems set to strike down another provision of federal campaign finance law as it opens its new term this week.
  At issue in McCutcheon v. Federal Election Commission [argument: Oct. 8] is a provision that limits the total amount of money an individual can give to congressional candidates or political committees in a two-year election cycle. Currently, the so-called aggregate contribution limit is set at $48,600 to candidates and $74,600 to political party committees.
  Shaun McCutcheon, chief executive of an electronics engineering firm in Hoover, Ala., wanted to exceed those limits in the 2012 congressional elections. He planned to donate the symbolic amount of $1,776 to 27 congressional candidates who shared his interest in limiting government and to give another $25,000 to each of the three national Republican political committees. But his plan ran afoul of the overall contribution limits, which date back to the post-Watergate Federal Election Campaign Amendments of 1976.
  McCutcheon has teamed up with the Republican National Committee (RNC) in a federal court suit in Washington challenging the limits as an infringement of his political speech rights. He says he has no problem with the so-called base limits on the amount an individual can give to any individual candidate —  currently, $2,600 in a primary election and another $2,600 in the general election. But he says it makes no sense to allow him to write checks to 17 congressional candidates and then to draw a line at the eighteenth.
  A three-judge court headed by one of the D.C. Circuit’s staunchest conservatives, Janice Rogers Brown, nevertheless upheld the provision. Brown noted in the decision that the Supreme Court upheld contribution limits in its seminal case, Buckley v. Valeo (1976), on the ground that they helped prevent corruption or the appearance of corruption. The aggregate contribution limits, Brown reasoned for the unanimous panel, help prevent circumvention of the base limits. Without the aggregate limits, she explained, an individual could write a half-million dollar check to a joint fundraising committee and the party committees could then funnel the money through untraceable informal arrangements to a single candidate — just as the donor intended.   Up till now, the Supreme Court has stuck with its decision in Buckley to strike down limits on individual campaign spending but to uphold contribution limits. But conservative critics are more and more forthright these days in attacking the contribution limits as unconstitutional. In the current case, McCutcheon is asking only to strike down aggregate limits, but the RNC wants the court to reconsider Buckley and subject all contribution limits to likely fatal strict scrutiny.
  Three justices — Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas — have written in other cases that they are open to reconsidering that aspect of Buckley. Roberts and Justice Samuel A. Alito Jr. have yet to express view on the issue, but the court’s campaign finance decisions have gone in only one direction since Roberts and Alito joined the court in the 2005-2006 term.
  Before Roberts, the court in 2003 upheld the Bipartisan Campaign Reform Act (BCRA) by a 5-4 vote, with Alito’s predecessor, Sandra Day O’Connor, joining the court’s liberal bloc in the majority. In their first full term on the court, however, Roberts and Alito provided the critical votes in a decision that gutted the BCRA provision limiting so-called corporate-financed issue ads on television during campaign seasons (FEC v. Wisconsin Right to Life, 2007).
   The same 5-4 majority formed in 2008 to strike down BCRA’s so-called “millionaire’s amendment” (Davis v. FEC) and in 2010 to throw out limits on campaign spending by corporations and labor unions (Citizens United v. FEC). The Roberts Court has also thrown out Vermont’s low campaign contribution limits (Randall v. Sorrell, 2006) and an Arizona law aimed at helping publicly financed candidates running against self-financed opponents (Arizona Free Enterprise Club v. Bennett, 2011). And last year the court struck down Montana’s attempt to re-enact limits on corporate spending in the face of the Citizens United ruling (American Tradition Partnership v. Bullock, 2012).
   Federal or state laws start with a presumption of constitutionality, but Supreme Court handicappers appear to be unanimous in predicting that the court will strike down the aggregate limits. The government cites the Watergate scandals to justify the limits; the brief recalls the dairy industry’s seven-figure contribution to the Nixon re-election committee in a blatant (and successful) effort to get Nixon to back an increase in milk price supports.
  Without the aggregate limits, the government argues, an individual could contribute $3 million or more in a single election cycle and the country would return to the bad old days. Bradley Smith, a leading critic of campaign finance law as former FEC chair and law professor at Capital University Law School in Columbus, Ohio, scoffs. “A zombie apocalypse,” he calls it, as quoted in USA Today.
  In Citizens United, the Roberts Court majority made clear it has no qualms about setting corporations free to spend freely on political campaigns. All signs suggest those five justices are likely to have no qualms about unleashing McCutcheon and other well-heeled contributors as well.

Verrilli Scores Well at Supreme Court Despite Questions

   For the past two Supreme Court terms, the justices waited until their last day to issue rulings in the year’s most closely watched cases: the challenges to the Affordable Care Act last year and the Defense of Marriage Act (DOMA) this year. In both cases, Solicitor General Donald Verrilli personally argued for the government, and in both cases the court ruled for the government — admittedly, by one-vote margins in both.
   With a record like that, one would expect Verrilli to be hailed as the Mariano Rivera of Supreme Court advocacy: he closes well in the most important contests. But instead Verrilli has been getting bad notices in the world of Supreme Court watchers.
   For the past two terms, the government — read: the Obama administration — has been getting its clock cleaned at the Supreme Court. According to a compilation by UCLA law professor Adam Winkler, the government was winning fewer than 40 percent of its cases at the Supreme Court as the justices were about to close their term in June. With four late cases added to Winkler’s count as published in The Daily Beast, the final record for the term is 11 wins and 17 losses – a 39 percent record.
   The government was also faring badly this term, according to Winkler, in cases where it participated as a non-party “friend of the court.” Once again combining Winkler’s count with the late-decided cases, the court ruled in favor of the government’s amicus positions in 13 cases and against its view in 17 — about a 43 percent record. Both of those figures are below the government’s historic batting average before the Supreme Court, according to Winkler. And Winkler says the government also lost “an unusually high number” of cases in the previous term.
   The results are somewhat unsurprising, given the clash between a liberal Democratic administration and a conservative court controlled by five Republican appointees. But some court watchers grumble that Verrillii himself bears part of the blame.
  In the courtroom, Verrilli suffers in comparison to his recent predecessors, including Elena Kagan, now a justice herself, and Paul Clement, now in private practice and the universally acclaimed best Supreme Court advocate of the past few years. To this courtroom observer, Verrilli comes off in comparison to those two and some other predecessors as softer spoken, not so amiable, less comfortable with attempted witticisms, and slower with effective retorts to skeptical questions from the bench.
   Despite any shortcomings at the lectern, Verrilli had a good win-loss record in the eight cases that he personally argued during the previous term. The court sided with the government in five, ruled against the government in two, and issued a no-decision of sorts in the other. A re-reading of the transcripts of those arguments shows Verrilli, at least in hindsight, to have been reasonably effective in setting out the government’s positions while fending off skeptical questions from one side of the bench or the other.
   Those losses came in cases that the Obama administration was fated to lose before the Roberts Court. In Shelby County v. Holder, Verrilli had no chance to persuade any of the court’s five conservatives to hold off from striking down part of the Voting Rights Act. Appearing as friend of the court in the affirmative action case, Fisher v. University of Texas, Verrilli similarly faced an uphill fight in urging the court to uphold UT’s race-conscious admissions policies. Still, Verrrilli’s defense of the limited use of race in admissions may have influenced the court’s final ruling to allow the practice but under stricter judicial scrutiny.
   From an opposite perspective, Verrrilli had no problem in Clapper v. Amnesty International in getting the five conservatives to reject the attempted constitutional challenge to the government’s post-9/11 warrantless wiretapping of electronic communications overseas. And the government also was the early favorite in the jurisdictional dispute in City of Arlington v. FCC even though Chief Justice John G. Roberts Jr. and two conservative colleagues ended up dissenting.
   In two other victories, Verrrilli argued nuanced government positions. In Association for Molecular Pathology v. Myriad Genetics, the court unanimously adopted the government’s precise position to bar patents for isolated human genes but allow patents for DNA synthesized in the laboratory. In the earlier case, Kiobel v. Royal Dutch Petroleum, the court agreed with the government to bar the suit by Nigerian nationals for the oil companies’ alleged complicity in human rights violations but adopted a stricter jurisdictional limitation than Verrrilli had presented.
   Verrilli and the administration deserve undoubted credit for its paradoxical victory in the DOMA case. The court’s 5-4 decision in United States v. Windsor vindicates the administration’s controversial decision two years ago to stop defending the law. Verrilli also urged the court to strike down California’s gay-marriage ban, Proposition 8. But during oral argument he said under questioning that the appeal should be dismissed for lack of standing — just as the court ultimately decided (Hollingsworth v. Perry).
    A year earlier, Verrilli had been openly criticized and even mocked for what was seen as a fumbling defense of the Affordable Care Act. Yet the court upheld the law after Roberts accepted the tax power argument that Verrilli had insisted on keeping in the government’s briefs, according to Josh Blackman’s account of the case in his book Unprecedented. So court watchers may need to be cautious in grading Verrrilli’s arguments at least until the court has issued the only grade that matters.