[EL] ELB News and Commentary 4/2/19

Tue Apr 2 07:20:39 PDT 2019

“Siloed Justices and the Law/Politics Divide”<https://electionlawblog.org/?p=104496>
Posted on April 2, 2019 7:18 am<https://electionlawblog.org/?p=104496> by Rick Hasen<https://electionlawblog.org/?author=3>

I have written this post<https://balkin.blogspot.com/2019/04/siloed-justices-and-lawpolitics-divide.html> for a Balkinization symposium<http://balkin.blogspot.com/2019/04/introduction-to-balkinization-symposium.html> on a terrific new book by Devins & Baum,  The Company They Keep: How Partisan Divisions Came to the Supreme Court<https://www.amazon.com/Company-They-Keep-Partisan-Divisions/dp/0190278056/> (Oxford University Press, 2019). My post begins:

In an eye-opening 2013 interview<http://nymag.com/news/features/antonin-scalia-2013-10/index1.html> with journalist Jennifer Senior, the late Supreme Court Justice Antonin Scalia explained his “media diet.” He said that he read the Wall Street Journal and the Washington Times. He had dropped his subscription to the Washington Post because of what he saw as the newspaper’s “treatment of almost any conservative issue. It was slanted and often nasty. And, you know, why should I get upset every morning? I don’t think I’m the only one. I think they lost subscriptions partly because they became so shrilly, shrilly liberal.” He also said he did not read the New York Times and that he got most of his news from talk radio.

Scalia’s media diet was a sign of things to come.

In Neal Devin’s and Larry Baum’s indispensable new book, The Company They Keep: How Partisan Divisions Came to the Supreme Court<https://www.amazon.com/Company-They-Keep-Partisan-Divisions/dp/0190278056/ref=sr_1_1?keywords=the+company+they+keep&qid=1552341670&s=gateway&sr=8-1>, the authors convincingly argue that the two leading political science models of Supreme Court judicial decisionmaking—the attitudinalist model positing that Justices vote their values and the strategic model positing that Justices vote strategically to advance their values in light of the potential reactions of other strategic actors, such as Congress and executive agencies—inadequately describe the Justices’ decisionmaking. Devins and Baum offer a psychological model positing that Justices, like others, are the product of the world around them, and Supreme Court Justices travelling in elite social circles seek affirmation and approval from these elites.

In an earlier era, a common social circle of other judges, law professors, lawyers, at the top of the profession and journalists at elite news outlets helped shape the Justices’ values and occasionally rein in their votes, and that given an historic liberal bent of the legal elite (at least on civil rights and civil liberties issues), many Justices “evolved” over time toward the left on these issues. The authors write of the so-called “Greenhouse effect” where even some conservative Justices were swayed by coverage of the Court and its decisions by the New York Times’s former Supreme Court reporter, Linda Greenhouse.

But polarization has changed everything on the Supreme Court. Thanks to polarization in Congress and the Presidency, for the first time in Supreme Court history all of the conservative-leaning Justices have been appointed by Presidents of one party and all the liberal-leaning Justices appointed by Presidents of the other party. The most conservative Democratic-appointed Justice is more liberal than the most liberal Republican-appointed Justice.

As Devins and Baum argue, today’s politically polarized elite world both shapes and reflects how Justices view their jobs and decide how to vote, leading to a new polarization on the Supreme Court. Adam Bonica and Maya Sen’s work<https://scholar.harvard.edu/msen/publications/judicial-reform-law-review> confirms that the leftward drift of lawyers overall is accelerating, giving plenty of affirmation for the liberal Justices on the Court. At the same time, the ascendancy of conservatives and libertarians in the Federalist Society has created an alternative set of elite actors to whom conservative Justices on the Supreme Court can look for ideas, law clerks, and social affirmation. Lower court judges brought up from Federalist Society ranks appointed by Republican Presidents frequently advance theories which would have been  to use Jack’s term, “off the wall<https://www.theatlantic.com/national/archive/2012/06/from-off-the-wall-to-on-the-wall-how-the-mandate-challenge-went-mainstream/258040/>” in an earlier era, and reinforce one another as to the legitimacy of these new views….
…
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Posted in political polarization<https://electionlawblog.org/?cat=68>, Supreme Court<https://electionlawblog.org/?cat=29>

Texas: “Deal to end lawsuits over voter purge program almost done”<https://electionlawblog.org/?p=104494>
Posted on April 2, 2019 7:09 am<https://electionlawblog.org/?p=104494> by Rick Hasen<https://electionlawblog.org/?author=3>

San Antonio Express News<https://www.expressnews.com/news/local/article/Texas-settles-lawsuits-over-voter-purge-program-13732909.php?t=f12e29c6a9>:

The state of Texas is set to end a program to purge voters it claimed were noncitizens in order to settle lawsuits brought by civil rights groups over the botched plan.

A deal was about “99 percent” done Monday, after Secretary of State David Whitley met in San Antonio with members of the League of United Latin American Citizens, the American Civil Liberties Union, the Mexican American Legal Defense and Educational Fund and other plaintiffs, said Luis Vera, LULAC’s national legal counsel.

As part of the tentative agreement discussed Monday, the state would scrap the data it used for the first voter purge program and begin a new one that, “to the best of its ability, assures that all United States citizens not be affected with the undue burden of having to prove their citizenship,” according to LULAC.
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Posted in election administration<https://electionlawblog.org/?cat=18>, The Voting Wars<https://electionlawblog.org/?cat=60>

“Gerrymandering as Viewpoint Discrimination: A ‘Functional Equivalence’ Test”<https://electionlawblog.org/?p=104492>
Posted on April 2, 2019 7:06 am<https://electionlawblog.org/?p=104492> by Rick Hasen<https://electionlawblog.org/?author=3>

Ned Foley blogs<https://moritzlaw.osu.edu/election-law/article/?article=13455>.
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Posted in redistricting<https://electionlawblog.org/?cat=6>, Supreme Court<https://electionlawblog.org/?cat=29>

“From Rick Santorum to Beto O’Rourke, Federal Regulation Arbitrarily Criminalizes Candidates”<https://electionlawblog.org/?p=104490>
Posted on April 2, 2019 7:04 am<https://electionlawblog.org/?p=104490> by Rick Hasen<https://electionlawblog.org/?author=3>

Eric Wang<https://dailycaller.com/2019/04/01/wang-santorum-rourke> for the Daily Caller.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, federal election commission<https://electionlawblog.org/?cat=24>

“The Supreme Court Is Toasting Marshmallows While Democracy Burns”<https://electionlawblog.org/?p=104488>
Posted on April 1, 2019 5:42 pm<https://electionlawblog.org/?p=104488> by Nicholas Stephanopoulos<https://electionlawblog.org/?author=12>

Tonja Jacobi and Matthew Sag for SCOTUS OA:<https://scotusoa.com/rucho/>

Rucho v. Common Cause and Lamone v. Benisek are the last chance the Court has before the 2020 census to do something about partisan gerrymandering. So, with the future of democracy in the balance, how is the court likely to rule?

Our predictive model for Rucho v. Common Cause is not encouraging. It shows a clear partisan split, with all of the Republican-appointed justices strongly leaning towards preserving the Republican gerrymander in North Carolina and all of the Democrat-appointed justices clearly against.

Our model’s predictions for Lamone v. Benisek are a bit confused by the fact that the justices seemed to be running out of steam at the end of the second hour of gerrymander-palooza. An optimist might conclude that the brazen Democratic Party gerrymander in Maryland will make Chief Justice Roberts see that the dangers of inaction for the Court outweigh risks of entering the dreaded “political thicket<https://en.wikipedia.org/wiki/Baker_v._Carr>”, but we are doubtful. As for Justice Kavanaugh, based on some of his questions and comments, there is an outside chance that he will defy partisan expectations, but this is probably just wishful thinking.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>

“Catch and Kill: Can tabloids hide behind the First Amendment?”<https://electionlawblog.org/?p=104486>
Posted on April 1, 2019 2:54 pm<https://electionlawblog.org/?p=104486> by Rick Hasen<https://electionlawblog.org/?author=3>

Rebecca Beyer<http://www.abajournal.com/magazine/article/catch-kill-tabloids-first-amendment> for the ABA Journal:

One possible defense to any charge of campaign finance violations in the AMI/McDougal deal would come from the Federal Election Campaign Act’s distinction between campaign expenses and “personal use” expenses. (Edwards went with the personal use defense when he was unsuccessfully prosecuted for alleged in-kind contributions made to the woman with whom he had an affair.) Cohen and AMI both have admitted the McDougal payment’s “principal purpose” was to prevent McDougal’s story from influencing the election.

FECA also includes a built-in carve-out for the media so that the press can report on political stories or candidates and publish opinion pieces or editorials without fear of running afoul of prosecutors. The law exempts “any cost incurred in covering or carrying a news story, commentary, or editorial” unless the entity in question is owned by a political party, committee or candidate.
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Posted in campaign finance<https://electionlawblog.org/?cat=10>, chicanery<https://electionlawblog.org/?cat=12>

--
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
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>
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