Part I – Overview & Speech, Religion & Campaign Finance

On July 16, 2015, Roy Liebman and I had the honor of attending the New York City Bar Association’s continuing legal education program entitled, “Supreme Court – A Year in Review.” Ira Feinberg, Esq. introduced the program as “one of the most interesting, stimulating and enjoyable programs of the year,” and he was absolutely on point.

The moderator of the program was the Honorable Paul A. Englemayer of the United States District Court for the Southern District of New York. Judge Englemayer started with some statistics and insight about the Court this term. Highlights included:

• This term “continued the modern trend” of very few cases being decided, as there were only 66. In contrast, 170 cases were decided in the 1988-1989 term.
• Reasons may include the elimination of some types of mandatory jurisdiction for the Court and fewer circuit splits regarding statutory construction.
• There were slightly fewer unanimous decisions than usual, at only 41%, whereas there are usually closer to 45% unanimous decisions. Judge Englemayer noted that, in the 2013-2014 term, there were 66% unanimous decisions.
• Justice Thomas wrote the most opinions of the Court this term; Justice Kagan wrote the fewest.
• Justices Scalia and Thomas were in the majority the least often; Justices Kennedy and Breyer were in the majority the most often.
• Judge Englemayer described the term as having a “leftward drift,” but cautioned that a lot more data would be needed before describing the Court as a whole as permanently leaning leftward. He suggested that many of the leftward leaning decisions this term were necessitated to “fend off disaster.”
• It was theorized that the next term could have a significantly more conservative drift, with cases such as collective bargaining issues, voting rights and affirmative action on the Court’s agenda.

Judge Englemayer then introduced the “ridiculously impressive panel,” which included Allyson N. Ho, Esq. (Morgan, Lewis & Bockius LLP), E. Joshua Rosenkranz, Esq. (Orrick, Herrington & Sutcliffe LLP), Akhil Reed Amar, Esq. (Yale University Professor), Neal Katyal, Esq. (Hogan Lovells US LLP) and the Honorable Alison J. Nathan (United States District Court for the Southern District of New York).

Speech, Religion and Campaign Finance

Ms. Ho’s presentation focused on the Court’s First Amendment issues this term, including speech, religion and campaign finance. She suggested that she accepted the opportunity to speak on these subjects before the Court’s decisions came down, and the topic was significantly more complex than she anticipated. She noted that the First Amendment cases had “some unusual lineups” in the majority. In particular, in Walker v. Texas Division, Sons of Confederate Veterans, Inc., Justice Thomas joined with the four justices thought to be the most liberal on the Court to hold that because specialty license plates are government speech, the First Amendment permits the Texas Department of Motor Vehicles to refuse to issue a license plate which featured the Confederate flag. Ms. Ho suggested to the group that in all of the First Amendment cases, but particularly in Walker, it was important to pay attention to the contrast in how the majority and the dissent framed and defined the kind of speech at issue. Since the two groups defined the issues so differently (license plates as “government IDs” v. “little mobile billboards”), it is easy to see how the analyses differed so sharply, according to Ms. Ho.

Mr. Rosenkranz theorized that Walker is important for its impact on future establishment clause cases, particularly involving license plates issued in other states, even though the establishment clause was not the subject of this case. Professor Amar thought the case was decided this way because of the particular type of content at issue, i.e., the Confederate flag. Since Texas, in particular, had a history of endorsing such a flag, there was a reasonable possibility of confusion causing people to believe the State endorsed that speech, in sharp contrast to the possibility a reasonable person would believe Texas endorsed sports teams and hamburger joints, which are other things featured on specialty plates in the State.

Ms. Ho also discussed the Williams-Yulee v. Florida Bar case involving limits states can place on the speech of judicial candidates. Again, Ms. Ho highlighted the contrast between the majority’s and dissent’s framing of the issues presented.

The final case discussed by Ms. Ho was the Elonis v. United States case, involving threats on social media. Although this case did not reach the First Amendment issues presented, Justices Alito and Scalia believed the Court should have.

Read Part II Now

Tagged: Appellate Practice, Litigation, Supreme Court of the United States