[EL] ELB News and Commentary 1/19/15
Rick Hasen
rhasen at law.uci.edu
Mon Jan 19 10:22:08 PST 2015
“Scalia Lands at Top of Sarcasm Index of Justices. Shocking.”
<http://electionlawblog.org/?p=69754>
Posted onJanuary 19, 2015 10:17 am
<http://electionlawblog.org/?p=69754>byRick Hasen
<http://electionlawblog.org/?author=3>
Adam Liptak’slatest Sidebar column
<http://www.nytimes.com/2015/01/20/us/scalia-lands-at-top-of-sarcasm-index-of-justices-shocking.html?smid=tw-share>for
the NYT takes up a new study of mine, just posted on SSRN,The Most
Sarcastic Justice
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2550923>. Adam’s
piece begins:
JusticeAntonin Scalia
<http://topics.nytimes.com/top/reference/timestopics/people/s/antonin_scalia/index.html?inline=nyt-per>has
a sharp tongue and a cutting writing style. His signature mode is
sarcasm.
It wason display last week
<http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-502_d1pf.pdf>when
a lawyer made the mistake of saying that Justice Scalia was right —
but only “in a literal sense.”
The justice pounced. “Oh, I see,” he said. “What sense are we
talking here? Poetic?”
There was laughter in the courtroom, and the lawyer was knocked off
his stride.
The moment was routine. And there is little question that Justice
Scalia is the most sarcastic member of theSupreme Court
<http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?inline=nyt-org>.
But it is one thing to make that assertion. It is another to
quantify it.
For that, you would need a Sarcasm Index.
Luckily, we live in an empirical age.Richard L. Hasen
<http://www.law.uci.edu/faculty/full-time/hasen/>, a law professor
and political scientist at the University of California, Irvine, has
developedthe necessary tools.
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2550923>
Justice Scalia registered 2.78 on Professor Hasen’s index, dwarfing
the showings of every justice he has served with. Justice Samuel A.
Alito Jr. came in a very distant second, at 0.43. Chief JusticeJohn
G. Roberts Jr.
<http://topics.nytimes.com/top/reference/timestopics/people/r/john_g_jr_roberts/index.html?inline=nyt-per>and
Justice Sonia Sotomayor did not even register.
Here is a full graphic representation of the Sarcasm Index:
sarcasm-index
<http://electionlawblog.org/wp-content/uploads/sarcasm-index1.png>
And here is the abstract for my piece:
Justice Scalia is the most sarcastic Justice on the Supreme Court.
He has been for at least the last thirty years, and there is good
reason to believe no other Justice in history has come close to his
level of sarcasm. Now your first reaction to this claim, if you are
a (sarcastic) Supreme Court aficionado, is probably: “Well, duh!”
And your second reaction is likely: “Oh really? Well how can you
prove that?”
In this short essay, I do three things. First, I present empirical
evidence showing that Justice Scalia’s opinions are magnitudes of
order more likely to be described in law journals as sarcastic
compared to any other Justice’s opinions. The numbers are quite
remarkable, and do not vary whether Justice Scalia is compared to
liberal or other conservative Justices who have served with him on
the Court since his 1986 confirmation. Second, I present some
illustrative examples of Justice Scalia’s sarcasm from a list of 75
sarcastic opinions from 1986-2013. His ability (and willingness) to
engage in nastiness, particularly directed at other Justices’
opinions, is unparalleled. Third, I opine that Justice Scalia’s
sarcasm is a mixed blessing. On the one hand sarcasm makes his
opinions punchy and interesting, clarifying where he stands in a
case and why and gaining attention for his ideas. On the other hand,
such heavy use of sarcasm can demean the Court, and it arguably
demonstrates Justice Scalia’s lack of respect for the legal opinions
of his colleagues. In the end, his sarcasm may be his most enduring
legacy.
Mediaite isunimpressed.
<http://www.mediaite.com/online/study-ranks-antonin-scalia-as-most-sarcastic-scotus-justice/>
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Honor King’s Legacy By Protecting Voting Rights”
<http://electionlawblog.org/?p=69752>
Posted onJanuary 19, 2015 10:11 am
<http://electionlawblog.org/?p=69752>byRick Hasen
<http://electionlawblog.org/?author=3>
Ari Berman
<http://www.thenation.com/blog/195281/honor-kings-legacy-protecting-voting-rights>:
The film/Selma
<http://www.thenation.com/blog/194473/what-selma-gets-right-and-wrong-about-civil-rights-history>/movingly
chronicles Martin Luther King Jr.’s fight to win the Voting Rights
Act (VRA). It ends with King speaking triumphantly on the steps of
the Alabama capitol, after marching from Selma to Montgomery. Five
months later, Congress passed the VRA, the most important
civil-rights law of the twentieth century.
If only that story had a happy ending today./Selma/has been released
at a time when voting rights are facing themost sustained attack
<http://www.thenation.com/blog/180389/fifty-years-after-freedom-summer-voting-rights-act-needed-more-ever>since
1965. The Supreme Court gutted the centerpiece of the VRA in/Shelby
County v. Holder
<http://www.thenation.com/blog/174973/what-supreme-court-doesnt-understand-about-voting-rights-act>/in
June 2013. That followed a period from 2011 to 2012 when 180 new
voting restrictions were introduced in 41 states, and 22 states made
it harder to vote.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,Voting
Rights Act <http://electionlawblog.org/?cat=15>,VRAA
<http://electionlawblog.org/?cat=81>
“The Law of Democracy at a Crossroads: Reflecting on Fifty Years of
Voting Rights and the Judicial Regulation of the Political Thicket”
<http://electionlawblog.org/?p=69749>
Posted onJanuary 19, 2015 10:09 am
<http://electionlawblog.org/?p=69749>byRick Hasen
<http://electionlawblog.org/?author=3>
I amlooking
forward<http://law.fsu.edu/events/votingrightssymposium_2015.html>to
participating in this event at FSU (where I will be presenting myPurcell
Principle paper
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>):
Friday, March 27 – Saturday, March 28, 2015
2015 marks the 50th Anniversary of the Voting Rights Act of
1965, presenting a perfect opportunity to reflect on the changes
that have occurred since the Supreme Court entered the “political
thicket” over five decades ago. Since the 1960s, the Court has
changed the landscape and the regulation of our system of politics,
and its decisions continue to significantly impact this area. In
2013, the Court decided two major election law cases./Shelby County
v. Holder/invalidated section 4(b) of the Voting Rights Act and
raised important questions about the future of a super statute that
had eliminated much of the racial discrimination in our political
system./Arizona v. Inter Tribal Council/reaffirmed the broad scope
of congressional authority over elections. Last term, the Court
decided an important campaign finance case,/McCutcheon v. FEC/,
which struck down aggregate contribution limits and opened the door
for more campaign finance deregulation. This symposium will allow
leading legal scholars and political scientists to gather at a
critical juncture in election law to debate and shape the future of
the field.
You can see the schedule of eventshere
<http://electionlawblog.org/wp-content/uploads/FSU-Symposium-Schedule.docx>.
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Posted inUncategorized <http://electionlawblog.org/?cat=1>
Lyle Denniston Previews Williams-Yulee for SCOTUSBlog
<http://electionlawblog.org/?p=69747>
Posted onJanuary 19, 2015 10:06 am
<http://electionlawblog.org/?p=69747>byRick Hasen
<http://electionlawblog.org/?author=3>
Here
<http://www.scotusblog.com/2015/01/argument-preview-judges-politics-and-money/>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,judicial elections
<http://electionlawblog.org/?cat=19>
More Bauer on Williams-Yulee <http://electionlawblog.org/?p=69745>
Posted onJanuary 19, 2015 10:03 am
<http://electionlawblog.org/?p=69745>byRick Hasen
<http://electionlawblog.org/?author=3>
Here.
<http://www.moresoftmoneyhardlaw.com/2015/01/intuition-polling-case-prohibiting-personal-fundraising-judicial-candidates/>
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,judicial elections
<http://electionlawblog.org/?cat=19>
“Convenience Voting: the End of Election Day?”
<http://electionlawblog.org/?p=69743>
Posted onJanuary 19, 2015 10:02 am
<http://electionlawblog.org/?p=69743>byRick Hasen
<http://electionlawblog.org/?author=3>
Graeme Orr has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2523770>on SSRN
(forthcoming, /Alternative Law Journal/). Here is the abstract:
When and where we vote is a central element of the ritual of
electoral democracy. In a trend across western democracies, there
has been a significant shift towards ‘convenience’ voting. This
article explores the history, rationale and law around postal and
pre-poll voting (the dominant forms of convenience voting) and
cautions against this trend deconstructing the communal experience
of election day.
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Posted inelection administration
<http://electionlawblog.org/?cat=18>,voting
<http://electionlawblog.org/?cat=31>
“Dueling Canons” <http://electionlawblog.org/?p=69741>
Posted onJanuary 19, 2015 10:00 am
<http://electionlawblog.org/?p=69741>byRick Hasen
<http://electionlawblog.org/?author=3>
Anita Krishnakumar has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2549248>on SSRN.
Here is the abstract:
This Article offers the first targeted study of the Supreme Court’s
use of the canons and other tools of statutory interpretation in a
“dueling” manner — i.e., to support opposing outcomes in both the
majority and dissenting opinions in the same case. Taking its
inspiration from Karl Llewellyn’s celebrated list of canons and
counter-canons, the Article seeks to examine how often and in what
ways the members of the Roberts Court counter each other’s
references to particular interpretive tools when disagreeing about
the proper reading of a statute.
Many of the Article’s findings are unexpected and undermine the
assumptions made by some of the most prominent theories of statutory
interpretation. Textualists, for example, long have urged the
rejection of interpretive tools such as legislative history,
statutory purpose, and congressional intent on the ground that such
tools are indeterminate and can be manipulated to support almost any
statutory construction favored by the judge. Moreover, textualists
have advocated the use of other interpretive tools — e.g., statutory
text / the plain meaning rule, the whole act rule, language canons,
other statutes — on the theory that these tools are neutral and will
constrain judges to reach the correct or “best” reading of the
statute. But the data from the Roberts Court’s dueling canon cases
reveals that many of textualism’s most-favored interpretive tools
are at least as susceptible to dueling use as the tools that
textualists love to denigrate. The study shows, for example, that
the justices duel extensively over the meaning of statutory text but
duel at low, virtually identical, rates over legislative history,
purpose, intent, dictionary references, the whole act rule and
language canons.
The study also reveals some unsurprising data. For example, the
canons do not seem capable of constraining the judges to vote
against ideology. And non-canon tools of analysis, including
precedent and practical consequences reasoning, lead to higher rates
of dueling than do most traditional canons or tools of statutory
interpretation. After reporting the data, this Article examines the
theoretical implications of the justices’ relatively infrequent,
though ideologically-slanted, dueling canon use.
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Posted instatutory interpretation
<http://electionlawblog.org/?cat=21>,Supreme Court
<http://electionlawblog.org/?cat=29>
“Changes afoot to tighten campaign finance reporting laws in
Montana” <http://electionlawblog.org/?p=69737>
Posted onJanuary 18, 2015 7:40 pm
<http://electionlawblog.org/?p=69737>byRick Hasen
<http://electionlawblog.org/?author=3>
The Missoulian reports
<http://missoulian.com/news/local/article_eaa0dc9d-cb23-56b1-b386-97444d1bf5e9.html>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Supreme Court to Review Bans on Solicitations in Judge Races”
<http://electionlawblog.org/?p=69735>
Posted onJanuary 18, 2015 6:28 pm
<http://electionlawblog.org/?p=69735>byRick Hasen
<http://electionlawblog.org/?author=3>
Liptak NYT preview
<http://www.nytimes.com/2015/01/19/us/politics/supreme-court-to-review-bans-on-solicitations-in-judge-races.html?ref=politics>of
Williams-Yulee.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns
<http://electionlawblog.org/?cat=59>,judicial elections
<http://electionlawblog.org/?cat=19>,Supreme Court
<http://electionlawblog.org/?cat=29>
Rep. Conyers on the VRA and VRAA <http://electionlawblog.org/?p=69733>
Posted onJanuary 18, 2015 6:00 pm
<http://electionlawblog.org/?p=69733>byRick Hasen
<http://electionlawblog.org/?author=3>
WaPo profile:
<http://www.washingtonpost.com/politics/john-conyers-who-first-proposed-an-mlk-holiday-marks-50-years-in-congress/2015/01/18/998d4ba2-9d08-11e4-bcfb-059ec7a93ddc_story.html>
Conyers and House Democrats plan to spend this year drawing
attention to ongoing concerns with voting rights after the Supreme
Court invalidated parts of the Voting Rights Act in 2013. The court
struck down sections of the law dealing with the special scrutiny
imposed on states with a history of discrimination, compelling
Congress to come up with a new formula based on current data to
determine which states should be subject to the law.
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) said last
week that he sees no need to revamp the law — yet another sign of
disagreement between Republicans and Democrats.
“We have not seen a process forward that is necessary to protect
people because we think the Voting Rights Act is providing
substantial protection in this area right now,” Goodlatte said at a
breakfast hosted by the Christian Science Monitor.
Conyers is undeterred.
“The Supreme Court kind of threw us a curveball on that, but look,
that’s happened before,” he said. The court’s decision makes voting
rights “a new, big issue,” he said. But, he said, people should be
mindful that things have been much worse.
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>,VRAA
<http://electionlawblog.org/?cat=81>
Maureen Dowd NYT Column on “Selma” and LBJ
<http://electionlawblog.org/?p=69731>
Posted onJanuary 18, 2015 4:26 pm
<http://electionlawblog.org/?p=69731>byRick Hasen
<http://electionlawblog.org/?author=3>
Here.
<http://www.nytimes.com/2015/01/18/opinion/sunday/not-just-a-movie.html?smprod=nytcore-iphone&smid=nytcore-iphone-share>
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
“A Question on the Question of Gay Marriage”
<http://electionlawblog.org/?p=69729>
Posted onJanuary 18, 2015 4:18 pm
<http://electionlawblog.org/?p=69729>byRick Hasen
<http://electionlawblog.org/?author=3>
Bob Barnes WaPo analysis
<http://www.washingtonpost.com/politics/courts_law/a-question-on-the-question-of-gay-marriage/2015/01/18/7d845826-9f27-11e4-b146-577832eafcb4_story.html>on
the questions presented in the SCOTUS same sex marriage cases.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Arizona and Anti-Reform” <http://electionlawblog.org/?p=69727>
Posted onJanuary 18, 2015 1:29 pm
<http://electionlawblog.org/?p=69727>byRick Hasen
<http://electionlawblog.org/?author=3>
Nick Stephanopoulos has postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2551556>on SSRN
(forthcoming, University of Chicago Legal Forum). Here is the abstract:
The Supreme Court is on the cusp of rejecting one of the best ideas
for reforming American elections: independent commissions for
congressional redistricting. According to the plaintiffs in a
pending case, a commission is not “the Legislature” of a state. And
under the Elections Clause, it is only “the Legislature” that may
set congressional district boundaries.
There are good reasons, grounded in text and precedent, for the
Court to rebuff this challenge. And these reasons are being aired
effectively in the case’s briefing. In this symposium contribution,
then, I develop three other kinds of arguments for redistricting
commissions. Together, they illuminate the high theoretical,
empirical, and policy stakes of this debate.
First, commissions are supported by the political process theory
that underlies many Court decisions. Process theory contends that
judicial intervention is most justified when the political process
has broken down in some way. Gerrymandering, of course, is a
quintessential case of democratic breakdown. The Court itself thus
could (and should) begin policing gerrymanders. And the Court should
welcome the transfer of redistricting authority from the elected
branches to commissions. Then the risk of breakdown declines without
the Court even needing to enter this particular thicket.
Second, commission usage leads to demonstrable improvements in key
democratic values. The existing literature links commissions to
greater partisan fairness, higher competitiveness, and better
representation. And in a rigorous new study, spanning federal and
state elections over the last forty years, I find that commissions,
courts, and divided governments all increase partisan fairness
relative to unified governments. At the federal level, in
particular, commissions increase partisan fairness by up to fifty
percent.
And third, the implications of the plaintiffs’ position are more
sweeping than even they may realize. If only “the Legislature” may
draw congressional district lines, then governors should not be able
to veto plans, nor should state courts be able to assess their
legality. And beyond redistricting, intrusions into any other aspect
of federal elections by governors, courts, agencies, or voters
should be invalid as well. In short, a victory for the plaintiffs
could amount to an unnecessary election law revolution.
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Posted inElections Clause
<http://electionlawblog.org/?cat=70>,redistricting
<http://electionlawblog.org/?cat=6>,Supreme Court
<http://electionlawblog.org/?cat=29>
“The GOP’s biggest tech challenge for 2016 is closing the
small-donor gap” <http://electionlawblog.org/?p=69721>
Posted onJanuary 18, 2015 1:27 pm
<http://electionlawblog.org/?p=69721>byRick Hasen
<http://electionlawblog.org/?author=3>
Yahoo News reports
<http://news.yahoo.com/the-gop-s-biggest-tech-challenge-for-2016-is-closing-the-small-donor-gap-225855092.html>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
“Most campaign cash to N.J. House members came from out-of-state
donors” <http://electionlawblog.org/?p=69724>
Posted onJanuary 18, 2015 11:48 am
<http://electionlawblog.org/?p=69724>byRick Hasen
<http://electionlawblog.org/?author=3>
Jonathan Salant reports
<http://www.nj.com/politics/index.ssf/2015/01/nj_lawmakers_look_beyond_the_garden_states_borders_to_fund_their_congressional_campaigns.html>.
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Posted incampaign finance <http://electionlawblog.org/?cat=10>
More on the #SCOTUS Questions Presented in Same Sex Marriage Case
<http://electionlawblog.org/?p=69722>
Posted onJanuary 18, 2015 8:52 am
<http://electionlawblog.org/?p=69722>byRick Hasen
<http://electionlawblog.org/?author=3>
Steve Sanders
<http://www.acslaw.org/acsblog/is-a-right-to-remain-married-compromise-taking-shape-at-the-supreme-court>
Ilya Shapiro
<http://www.forbes.com/sites/ilyashapiro/2015/01/17/did-supreme-court-telegraph-its-ultimate-ruling-on-gay-marriage/>
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
“Taking Up Gay Marriage, but on Their Own Terms”
<http://electionlawblog.org/?p=69719>
Posted onJanuary 17, 2015 11:49 am
<http://electionlawblog.org/?p=69719>byRick Hasen
<http://electionlawblog.org/?author=3>
Adam
Liptak<http://www.nytimes.com/2015/01/18/us/supreme-court-same-sex-marriage.html?_r=0>for
the NYT:
WASHINGTON — The first page of a petition seekingSupreme Court
<http://topics.nytimes.com/top/reference/timestopics/organizations/s/supreme_court/index.html?inline=nyt-org>review
is the most important. It sets out the “question presented,” the one
the court will answer if it takes the case.
The justices do not ordinarily tinker with the wording of those
questions. But on Friday something unusual happened: In agreeing to
hear foursame-sex marriage
<http://topics.nytimes.com/top/reference/timestopics/subjects/s/same_sex_marriage/index.html?inline=nyt-classifier>cases,
the courtframed for itself
<http://www.supremecourt.gov/orders/courtorders/011615zr_f2q3.pdf>the issues
it would address.
Lawyers and scholars scrutinized the court’s order with the anxious
intensity of hypochondriacs attending their symptoms. Some saw an
attempt by Chief Justice John G. Roberts Jr. to elicit a ruling that
would stop short of establishing a nationwide constitutional right
to same-sex marriage.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
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