Civil Affairs: McCutcheon

Nearly two weeks ago, the United States Supreme Court ruled, in a closely divided case — McCutcheon v. FEC — that political donors have the right to give a certain amount of money to as many candidates as they like. Previously, federal law had prevented a donor from providing the maximum donation ($2,600 for a candidate, $5,000 to a political action committee and $32,400 to a political party) to more than roughly 19 candidates or 15 PACs. Now, those donors can give those aforementioned individual limits to as many candidates, committees and interest groups as they wish.

The 5-4 decision rested upon the assertion that, under the First Amendment, money is tantamount to speech. Using that assumption, Chief Justice John Roberts wrote that, despite its unpopularity, the right to give money to as many politicians as you choose is fundamentally constitutional. Of course, spending money should not be a universal right like worship or speech because not everyone has the pocketbook needed.

“Money in politics may, at times, seem repugnant to some, but so too does much of what the First Amendment vigorously protects,” Roberts wrote in a decision joined by the four other justices nominated by Republican presidents. “If the First Amendment protects flag burning, funeral protests, and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition.”


Supreme Court does not block HB2

The Associated Press (via the Washington Post) reports that the Supreme Court has ruled, 5-4, to allow the omnibus anti-abortion law (HB2) to fully take effect before the Federal 5th Circuit hears the matter upon appeal early next year. The court’s opinion, written by Justice Antonin Scalia, held that the court could not overturn the Fifth Circuit unless they could decisively prove the court had erred. This opinion, however, was only joined by Clarence Thstaomas and Samuel Alito. Both Justice Anthony Kennedy and Chief Justice John Roberts, arguably the court’s most centrist Republican-appointees, did not join in the decision, leaving their opinions on the matter up in the air.

The law, which was famously filibustered by Wendy Davis, enacts four major provisions that all seek to reduce the numbers of abortions performed in Texas. Specifically, the constitutionality of the provision requiring abortion doctors to have admitting privileges at a nearby hospital was challenged in this case.

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Fisher decision

The New York Times reports that the United States Supreme Court has come out with their ruling in the case of Fisher v. University of Texas. Many months ago, I wrote an op-ed on this topic. I wrote shortly before the Supreme Court heard arguments in the case, where I repeated the assertion made often in the media at that time, that a 5-4 division of the Court would have struck affirmative action as unconstitutional.

That was before the court heard arguments, however. As this decision approached, I became convinced the Court would render an exceedingly narrow opinion, pertaining only to Texas because of the 10% rule, in a nearly unanimous manner. For the first time in many, many years, I was right about one of these things.

The Supreme Court held 7-1 that the Fifth Circuit had, indeed, erred in their ruling. However, they attributed this to the Appeals court incorrectly not applying heightened scrutiny to UT’s affirmative action program.  6 Justices specifically held not to overturn Grutter v. Bollinger, the most recent Supreme Court opinion upholding affirmative action.

The Justices, for all intent and purposes, were actually divided into three groups. 5 Justices (Roberts, CJ., Kennedy, Breyer, Alito, Kagan, J.J.) held the opinion of the court, the thing with heightened scrutiny and what not. 2 Justices (Scalia and Thomas, J.J.) would have scrapped all affirmative action. Justice Ginsburg would have affirmed the Fifth Circuit’s opinion. The missing link, Justice Kagan, did not take part in the case since it was pending while she was the President’s Solicitor General.

This was especially interesting since Justice Kennedy was in the dissent of Grutter. While Chief Justice Roberts and Justice Alito were not on the Court in that year, Justices typically as conservative as them were dissenting in the previous case, like Chief Justice Rehnquist.

We’ll see how the Legislature deals with all this in 2015, though.

DNA Testing and arrests

The New York Times, along with just about every other media outlet, reported yesterday on the landmark Supreme Court ruling having to do with taking DNA samples from individuals arrested for serious crimes. The 5-4 decision was particularly frustrating because it was only possible due to the switch of liberal Stephen Breyer to the conservative position, allowing the tests. Antonin Scalia joined the remaining liberals in the sharply-worded dissent.

The decision essentially condoned one key activity: the police swabbing one’s cheek after he or she is arrested in order to gain access to that person’s DNA and run it against a national database for DNA. This national database would allow the police to cross-check the individual with unsolved crimes from all across the country. Sounds good, right? Unfortunately it is ripe for abuses, and that is where the meat of contention fell under. Indeed, most Fourth Amendment cases are about the relationship between one’s privacy/liberty and society’s interest in being safe.

Accordingly, the Justices set about two limits on this new power. First, arrests must be legitimate, as in supported by probable cause. The fruit of the poisoned tree doctrine would apply (i.e., a conviction resulting from the DNA tests would be thrown out if it were only the result of a first arrest not supported by probable cause). Second, such a power would only be allowed for a “serious” crime.

Now, I am not going to pretend to know what a “serious” crimes is, for one. The State of Maryland defines it as “murder, rape, assault, burglary and other crimes of violence.” This just begs the question of what a crime of violence entails. Is car burglary a crime of violence? Is theft? Is a threat?

It is these open-ended questions that will be brought back up before the court in the next few years. I think that the court, at that time, will rule these tests only allowable in very serious circumstances such as only murder, manslaughter, rape, kidnapping, assault & battery and armed robbery. I probably would not have voted the way Justice Breyer did, but then again, I’m not a Supreme Court justice. It will be interesting to see how Texas implements this now ruling, but that will probably be a question for the 84th Legislature.