| Subject: [EL] more news 1/20/11 |
| From: Rick Hasen |
| Date: 1/20/2011, 3:34 PM |
| To: Election Law |
Reply-to: "rick.hasen@lls.edu" |
Vote by mail voter
fraud in Oregon.
If you read one law review article this season, make it Rick
Pildes's excellent new article, Is
the Supreme Court a Majoritarian Institution?
(forthcoming, Supreme Court Review). Using Citizens
United as a jumping off point, Pildes takes issue with the
commonly-made academic claim (or related set of claims) that the
Supreme Court generally follows majority preferences. Pildes
takes the claim apart, and puts it up against the evidence. He
demonstrates that at least in the modern era, the Court does not
appear to follow majority preferences, and there may be good
reasons to believe that especially now (given the breakdown of
the appointments process in the Senate, and the unprecedented
long tenure of Justices on the Supreme Court in the last few
decades), the Court is unlikely to remain (or become)
constrained by majority will.
I have not undertaken any kind of systematic study of the
majoritarian thesis, and I think Pildes is right that,
especially today, there is little reason to believe that Court
opinions generally will line up with either the preferences of a
majority of voters or with Congress (to the extent we can talk
about majority preferences of Congress). I do believe, however,
that the Court is somewhat responsive to public opinion, and
that the Justices, especially Chief Justice Roberts, are
sensitive to popular criticism of the Court. I think that may be
part of the explanation for why the Court did not overrule
section 5 of the Voting Rights Act in NAMUDNO. I also
think it is why the Court is more likely to engage in stealth
overruling and other tools I'm now writing about (draft to
be posted soon). I also think, as judged by Justice Alito's
reaction to the state of the union speech, that public criticism
of the Court in high profile cases may sting, and could lead
some members of the Court to restrain themselves from voting
their full set of preferences. As I wrote in my recent
Michigan Law Review article on CU, public opinion
may bind (at least some) Justices to operating within a range of
conduct. Based on this intuition, I've made the empirical
prediction that the Court is unlikely to hold that foreign
nationals have the right to engage in campaign spending in
candidate elections, even though the logic of Citizens
United should lead the Court to recognize such a
constitutional right. Thanks to a new
case, we may learn within the next couple of years whether
this empirical prediction is correct.
Democracy 21 has issued this
press release.
As expected,
the FEC has deadlocked 3-3 on the NPRM. Here
is a statement of the three Republican commissioners. If and
when there is a statement from the Democratic commissioners,
I'll link.
UPDATE: Here
is a statement from Democratic Commissioners Bauerly and
Weintraub.
Hart Research has conducted this
poll. It does not appear that the actual questions have
been released (if they are, I'll post them in a follow up). This
was also an online only poll, of which I remain skeptical.