Update on McCutcheon v. FEC posted

Check out our run-down on this week’s controversial 5-4 decision in the campaign finance case McCutcheon v. FEC here.  We’ve got the explanation in the decision, quotes from the majority and the dissent, and an awesome link to a timeline of the history of campaign finance reform from the Founders to McCutcheon.

Happy Friday and a good weekend to all!

On 1st Amendment free speech protests against Presidents: Wood v. Moss

Questions in this case and 5-cent rundown: Did two Secret Service agents – Tim Wood and Rob Savage — violate Michael Moss’ 1st Amendment rights when they forcibly moved him and a group of anti-George W. Bush protesters, but not a group of pro-Bush demonstrators, away from a restaurant where the president was dining? Second, should the agents be protected from such a lawsuit, which could result in having to pay damages, as a result of the “qualified immunity” status given to Secret Service who are tasked with protecting presidents?


10-cent explanation:  In the fall of 2004, shortly before the Bush-Kerry presidential election, George W. Bush and First Lady Laura Bush decided to dine at the Jacksonville Inn in Jacksonville, Oregon.  Knowing the president would be stopping through the town, Michael Moss and a group of 200 anti-Bush protesters, gathered outside the Inn’s restaurant to resume their demonstration.  A group of pro-Bush demonstrators assembled across the street from Moss just as the president and his wife sat down to dine on the outdoor patio.  As the brief filed by Moss’s attorneys states, the two groups were equally positioned relative to the location of the Inn.  Both groups watched the presidential motorcade drive into the Inn, but it was once the president and his wife moved to the restaurant patio that removal of the anti-Bush group happened.

Michael Moss and the anti-Bush protesters were forcibly moved by Secret Service Agents, including Wood and Savage, two blocks away from the entrance to the Inn. However, the pro-Bush demonstrators were allowed to remain on their corner.  Moss alleges this amounted to “viewpoint discrimination” on the part of the police, who were acting on orders from Bush’s Secret Service agents, and thus a violation of his 1st Amendment free speech and protest rights.  After dinner, the pro-Bush group got to watch the President’s motorcade one last time as he departed Jacksonville, leaving the anti-Bush group without the same opportunity.  The multigenerational protestors claim this once again denied them the ability to direct their anti-war messages at the President, their intended target.

This case isn’t just about the limits of 1st Amendment free speech rights; the petitioners (the two Secret Service agents) must also address the financial damages Michael Moss is suing them for.  Moss claims the protest turned into a riot after local police used “excessive force” when they shot plastic pellets at the anti-Bush protesters.

This case reminds us of the 1st Amendment area of law that we recently covered in the Massachusetts abortion protest case McCullen v. Coakley:  viewpoint discrimination.  In other words, Moss believes his group was forcibly moved by government agents because the content of their speech was clearly anti-Bush, whereas the other group was allowed to stay because their speech was supportive of the President.  While the two cases split on almost every other detail, both raise a good question about free speech at protests – Do speech rights protected under the 1st Amendment include a right to get close enough to our intended audience so that this audience can hear our speech?

The U.S. government, led by SCOTUS oral argument veteran and Solicitor General Donald Verrilli, wants this case dismissed on the grounds Secret Service agents have qualified immunity and therefore cannot be sued for doing their job.  The government is prepared to argue that the president’s last minute call to dine outside, in a less secure patio area, rather than indoors (obviously safer and prefered by Secret Service agents) necessitated moving the anti-Bush group as a matter of safety.  By October of the 2004 presidential election, political tensions were elevated with recent U.S. intervention in Iraq heightening safety risks to Bush.  In his arguments, Verrilli will likely ask the Justices (perhaps more articulately), “Look, if your job as an agent is to lessen the risk that you’ll have to take a bullet for the President of the United States, who are you more likely to expect a bullet from and accordingly move? – The pro-Bush or anti-Bush group?”

The U.S. government found some support in a lower court decision from Judge O’Scannlain writing for the U.S. Court of Appeals for the 9th Circuit who said “In effect, the panel holds today that the Constitution requires Secret Service agents to subsume their duty to protect the president to their newly created duty to act like concert ushers — ensuring with tape-measure accuracy that everyone who wants to demonstrate near the president has an equally good view of the show.”  The other question of equal concern to the government in this case concerns the outcome if Secret Service agents are found liable and forced to pay damages for their use of force.  A natural consequence of this outcome could be agent reluctance to do their job accordingly for fear of future litigation, therein risking the safety of future presidents and the nation’s security.

Decisions by the SCOTUS on similar cases involving Secret Service don’t bode well for Michael Moss and the anti-Bush protesters.  Two years ago, the Court dismissed a case involving Secret Service agents who detained a man after he told Vice President Dick Cheney his policies were “disgusting.”  The justices’ sympathy for agents’ needs to move protesters in order to protect a government official may be convincing enough.

Here’s a great video from iSCOTUS summarizing the case:

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iSCOTUS video on Wood v. Moss

We also enjoyed reading these articles from SCOTUSblog, The Washington Post, and materials on the SCOTUS website.



Sebelius v. Hobby Lobby Stores, Inc.

5-Cent Explanation:

The issue in the case is whether a for-profit business can claim free exercise of
religion as an exemption to a law mandating employers provide their employees
with contraception coverage.

10-Cent Explanation:

Signed into law in 2010, the Patient Protection and Affordable Care Act contains a
provision mandating any business employing 50 or more people to provide health
insurance to those employees. The act requires that pre- and post-contraceptive
benefits also be provided under the penalty of severe fines to the employer for
each employee not afforded the sanctioned coverage.

Hobby Lobby Stores, Inc. has over 500 stores and employs over 13,000 people. The
Green family–proprietors of Oklahoma-based Hobby Lobby and parties in the case as
individuals–runs their business, in part, based upon their religious beliefs. Closing on
Sundays, providing faith-based counseling and prohibiting the sale of alcohol-related
merchandise are just some of the ways the business reflects their own belief system at
a cost to their bottom line.

The individual Green family members, Hobby Lobby and Mardel, Inc., a Christian
bookstore run by Mart Green, claim that four out of twenty contraception methods
mandated by the ACA violate the First Amendment protection that “Congress shall make
no law…prohibiting the free exercise” of religion.

The suit was initially also filed as a violation of the Religious Freedom Restoration Act of
1993. The government “shall not substantially burden a person’s religious exercise,”
the law states, unless such restriction is the least intrusive method to promote a
“compelling state interest.”

The Obama Administration argues that children and women’s health issues provide an
interest for the government to compel the requirement.

The Affordable Care Act provides for a waiver to be given at the discretion of the
Department of Health and Human Services–which is why Kathleen Sebelius, as
Secretary of HHS, is a party in the case. One of the most important free exercise
cases–Cantwell v. Connecticut (1940)–also involved governmental discretion relating to
religious practice. Although in Cantwell those involved were practitioners of the
Jehovah’s Witness faith and not for-profit corporations, the representative of the state
government “empowered to determine whether the cause is a religious one” proved to
be problematic and a decision was rendered in favor of the individual seeking faith

“Stony-faced” Alito on the WBC, 1st Amendment, and Obama’s jab

We enjoyed this article giving us a glimpse at Chief Justice Samuel Alito’s remarks to law students at Pepperdine University.  Talking points from the speech included – 1) Stay in school kids!

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Justice Alito looking less than “stony.”

Despite recent trends showing significantly low numbers of law school applicants not seen since the 1970s, Alito enthusiastically encouraged people to attend.  “Our country needs lawyers.  The Constitution and the law is one of the things that holds us together,” Alito told the audience.  2)  Reflecting on one of his most challenging cases, Alito recalled his lone dissent in the 2011 1st Amendment free speech case involving the Westboro Baptist Church.  The WBC was sued by the father of a fallen soldier when they showed up at his son’s funeral with signs reading “Thank God for dead soldiers!”  Alito remarked that such offensive speech was not protected under the Constitution.  “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.”  3)  He’s still mad at Obama for his controversial statement about the Court in the President’s 2010 State of the Union address.  Recall Alito did not care for Obama’s jab at the SCOTUS during his address for their Citizens’ United decision.  Still. Mad. Didn’t attend the most recent SOTU either.

Read more on his remarks from the Malibu Times article here.

UPDATE-Decision in 4thAmend Fernandez v. CA and “So when do police need a warrant?!”

We got a decision on February 25th in the 4th Amendment case we covered last fall-Fernandez v. California.  Yes, it’s March.  We were a little busy.  Get our two-cents on the decision in the case here.  We end with a brief takeaway on what this case tells us about search warrants, police, and the 4th Amendment.  Don’t worry.  We’re still watching the Court websites for an update on the “Boobies” case (soon).

SCOTUS, Civics, & Law Summer Opportunities for Educators

“This has been a truly miserable winter,” said America.  If you’re like us – you’re already looking towards the summer months, not only to find a reason to get up each arctic morning, but also to start planning how you’ll spend your break.  This post is dedicated to the educators out there who have the luxury of squeezing in a week or two at a professional development, seminar, or summer institute to prove you’re actually a “lifelong learner.”  If you’re looking to dazzle your administrators while simultaneously having a great experience where you learn from sterling experts in the field of government, law, and civics – we have some recommendations for you.

Street Law Supreme Court Summer Institute

Spend 5 days in Washington, D.C. – two of which are in the SCOTUS – with the awesome Street Law team, headed up by Lee Arbetman. Over the course of the five days you’ll learn from experts in the legal world, like founder of SCOTUSblog Tom Goldstein, writer Lyle Denniston, professors from Georgetown, Harvard, and George Washington University, SCOTUS reporters like NY Times writer Adam Liptak, former attorneys general, former SCOTUS clerks, and Supreme Court advocates.  The sessions usually take place at Georgetown Law, which is across the street from the institute hotel (very convenient), and a Starbucks (necessity).  This is a short walk to the SCOTUS, which is nice when you’re melting in steamy D.C. whilst trying to look professional.  One of the days in the SCOTUS was for a tour and the other was spent listening to decisions.  This tends to be an ideal time to be inside the Court as big decisions typically come down in late June.  That evening, teachers are hosted by a Supreme Court Justice and the Historical Society inside the Supreme Court for an intimate cocktail party.  No, you can’t hug them or Instagram the experience.  Don’t even ask.  Towards the end of the institute, four brave souls will get to play SCOTUS advocates in a moot court simulation that takes place in a courtroom built to look just like the real SCOTUS.  If asked – do it.  It’s awesome, in a jumping-out-of-a-plane-terrified kind of way, and experts will prepare you.

We are effusive about Lee and the Street Law team because they deserve gushing praise.  You’re hard-pressed to find a summer PD as experiential and jaw-droppingly awesome as this summer institute.

Dates:  Two sessions; June 19-24 & June 26-July 1; Application due: March 17th, Cost to teachers: $150-600, depending on accommodation preferences.

Gilder Lehrman, The Role of the Supreme Court

We wrote a post recently about our experience at this seminar.  It was a game-changer in that it led to the union of all the teachers who created this website.  We came out of the experience smarter, sharper, and very close.  I think this could be said of many PDs, depending on the group you end up with, but this was a very special and unique experience.  Gilder Lehrman is the Rolls Royce of summer PD experiences.  The topics are attractive, the instructors are trailblazers in their fields of history (Eric Foner, Larry Kramer, Jeffrey Rosen, Akhil Amar, to name a few), and the accommodations are top-notch.  This seminar was held at Stanford Law School in Palo Alto, California.  We stayed in the law school dorms (nicer than most apartments), ate in the dorms (deal with it), and were taken to watch a federal trial and listen to a judge talk about the federal appellate system.  The guest speakers were fantastic, our T.A. superb, and the GL staff great.  It was probably the most challenging institute in that the expectations of the teachers were just as high as they are for first year law students.  But, the experience will make you a smarter, better teacher.  Cara reports using her notes from that institute in her curriculum more than any other institute.

Dates:  July 20-26; Application deadline:  February 14, 2014;  Cost to teachers: Almost nothing.  Boarding, meals, and a $400 stipend towards travel are all provided to teachers who attend.

Gilder Lehrman: The Constitution 3.0 America’s Unfinished Constitution

We hope to tell you what this seminar is like by the end of the summer.  This is a seminar some of us at SB applied for.  It’s held at the National Constitution Center in Philadelphia, PA.  Originally it was entitled The Constitution 3.0 and was to be taught by founder Jeffrey Rosen.  We got an email recently that Mr. Rosen’s schedule prohibits him from hosting but GL is replacing Rosen with Akhil Reed Amar.  Upgrade?  It is for us.  We’re taking Amar’s Yale MOOC right now so we’re psyched to get the real rather than virtual student experience.

Dates: July 13-19; Application deadline: February 14, 2014; Cost to teachers: Almost nothing.  Boarding, meals, and a $400 stipend towards travel are all provided to teachers who attend.

C-SPAN Summer Educator’s Conference

If you like short and sweet, this conference is for you.  It’s a 2-day seminar at C-SPAN’s headquarters in Washington, D.C., across the street from the Capital building.  The C-SPAN Education Team will walk you through how to integrate technology into your curriculum using C-SPAN videos, Deliberations, lesson plans, bellringers, and civics materials.  The deluge of info given in such a short amount of time will make your brain hurt after this conference.  In no time, you’ll be clipping videos of Supreme Court Justices, Presidents, and Congress every day to show your students real-world examples of what you’re teaching and how tech-savvy you are.

The conference is held in C-SPAN’s offices so you’re bound to spot Congressional movers-and-shakers in the hallways after filming, or almost bump into a FOXNews guest bursting out of an elevator.  We’re looking at you, Michelle Bachmann.  You’ll definitely get to bend the ear of founder and political media icon Brian Lamb who pops in the conference to host his own Q&A with the teachers.  Mr. Lamb attends the conference dinner the first night and brings in amazing special guests in the field of history, civics, or law to speak.  This conference is also special in that it’s one of the few that offers a two-day institute solely to middle school teachers.

The C-SPAN Ed Team are amazing!  They’re incredibly engaging, curious, and eager to help Teachers.  You will not want to go home.  In case you don’t, they have summer Fellowship opportunities for teachers to work at C-SPAN HQ for four weeks.  Consider applying if you want to spend four weeks getting a true hands-on political media experience.

Dates:  Middle School Teachers July 7th-8th, High School Teachers July 10th-11th; Application deadline: April 4, 2014.  Cost to Teachers: Airfare to and from Washington, two nights’ hotel stay, and meals during the conference are all provided by C-SPAN.

American Bar Association’s Summer Institute for Teachers: Federal Trials and Great Debates in U.S. History

None of us have technically attended this institute but can speak for several fellow educators who rave about its awesomeness.  Their seminar also gives an up-close-and-personal experience taking teachers inside the Supreme Court but primarily focuses on unpacking three significant cases.  This year’s case studies include the Pentagon Papers, Olmstead v. U.S., and the Sedition Act Trials with materials prepared by the Federal Judicial Center.

Dates:  June 22-27, 2014; Application deadline: March 1, 2014; Cost to teachers: Costs for travel, lodging, and meal expenses will be reimbursed to Institute participants according to U.S. government per diem rates.

Got any others you liked/loved that you wish to recommend?  Email us at supremebystandr@gmail.com.

Team Pam Karlan vs. Team Larry Kramer

What happened when a public school teacher went to Stanford Law School for an immersion course on Constitutional Law?  For starters, 1) she paid too much for merch, 2) she pined for Palo Altoian weather every day, and 3)…

Worth the $50 and looks of disappointment when alum ask me what year I graduated.

Worth the $50 and looks of disappointment after Alumni ask me what year I graduated.  I didn’t.

…She got to be the beneficiary of tag-team instruction from powerhouse legal scholars Larry Kramer, former Dean of Stanford’s law school, and law professor Pamela Karlan.  Karlan also gets a ‘former’ added to her title.  News broke in December of 2013 that she is headed to the Department of Justice to take a position as Deputy Assistant Attorney General for Voting Rights in the Civil Rights Division.  Karlan will investigate states that have changed their voting laws in the wake of Shelby County v. Holder.  Shelby was a case from the October 2012 term in which the SCOTUS overturned section 5 of the Voting Rights Act of 1965 which said specific localities needed preapproval from a federal court or the Department of Justice before modifying any of their election laws.  States like Texas and North Carolina immediately made changes to their election laws days after the Shelby decision.  We wrote a post about it and even podcasted the case here [give it a listen; it's a good and heated debate between SB writers Cara & Jim].

Karlan’s legal specialty, among many, is enforcement of voting rights laws.  This is likely the reason she got the call from the Obama administration.  Karlan went to law school at Yale, clerked for Justice Blackmun the same year Kramer clerked for Justice Brennan, and has argued before the Supreme Court seven times.  When we saw her at Stanford, she discussed contemporary challenges of segregation in public education and an end to at-large elections in states, which may be unfair to minority candidates and voters.

We had strong reactions to this appointment at SB, as did several other legal news sources (Toobin wrote piece for The New Yorker, Politico did too).  We, meaning Jim and I, met at the Stanford seminar the summer of 2011.  We had the same fervor and love of constitutional law, but with polar opposite political ideologies.  The seminar covered numerous topics that naturally incite discourse and debate, and Professor Kramer welcomed both.  Unless you disagreed with him, in which case you were wrong.  Very, very wrong.  Especially if the argument was about Marbury v. Madison.  We had a couple of guest lecturers who were faculty at Stanford Law come in that week.  Pam Karlan was one of them and it was clear she and Kramer had fiery, passionate beliefs that at times put them at odds with one another.  Regularly on opposite sides of the argument (abortion, death penalty, 4th Amendment searches and seizures, New York vs. Chicago-style pizza), Jim and I connected with the oppositional synergy of Kramer and Karlan.  Here’s what I remember about the experiences with Karlan and Kramer that summer:

Professor Karlan came in to speak with us on the day we were covering the 4th Amendment.  Coincidentally she opened her discussion with us about a case she was working with the Stanford Supreme Court Clinic that I’d been researching.  It was a case involving a strip and body cavity search of a man in New Jersey after a minor traffic stop (Florence v. The Board of Chosen Freeholders).  Three weeks prior, SCOTUSblog creator Tom Goldstein taught me and a small group of teachers about this case in D.C.  Goldstein was preparing to give oral arguments for this criminal procedural case that fall in the SCOTUS and had really piqued my interest.  He and Karlan started the Stanford Supreme Court Clinic together and defended the petitioner in the case, the man who’d been strip searched, in such a way that appealed to my natural concern for the rights of the accused.  Karlan was a firecracker.  She was passionate,  whip smart (obviously), outspoken, and brought a house full of teachers nearly to its feet with her thoughts on inequalities in public education.  Karlan’s strengths lie in her infectious energy, candid demeanor, and unwavering drive to enforce civil rights policies.

I’d emailed her after the seminar to say ‘thanks’ for taking the time to give such a great presentation-especially on the Florence case-and asked for additional sources and her thoughts on public school equity issues like ‘pay-to-play’ programs, school funding via referenda, and student speech rights.  She wrote me back soon after with an article and a personal contact of hers in case I needed additional resources.  I ran out and got my Team Pam tattoo that night.

Now, this does not imply I wasn’t on Team Kramer.  As an educator, I use Professor Kramer’s lecture in my curriculum design more than any other SCOTUS expert and we dedicate almost every podcast to him.  Kramer recently left Stanford Law for a position with the Hewlett Foundation.  Stanford described him best in a departing tribute as “a personality that his fans describe as melding a bull in a china shop with a cuddly teddy bear.”  I concur.  The experience in Kramer and Karlan’s classes were educational game-changers that eventually led to the hatching of this website’s writing team, so we remain fans of both.  Good luck to Pam Karlan in her new post and, if you’re an educator, take Kramer’s class at Stanford offered through Gilder Lehrman.  You’ll get so much more than an awesome sweatshirt.

~Cara L. Gallagher