Randall v. Sorrell (04-1528 & 04-1697), Vermont Republican State Committee v. Sorrell (04-1530) and order list

June 27, 2006 Supreme Court Update

Greetings, Court Fans!
We're still working on the remaining decisions from last week and yesterday – here are a few more, including the Court's major decision yesterday striking down Vermont's campaign finance laws in Randall v. Sorrell (04-1528 & 04-1697) and Vermont Republican State Committee v. Sorrell (04-1530).
Randall yielded a Court arguably even more fractured than in last week's Clean Water Act decision in Rapanos (thankfully, the Justices aired their disagreements in far fewer pages). The case concerned Vermont's Act 64, which imposed two kinds of limits on campaign spending: (1) expenditure limits on spending by candidates within each two-year election cycle; and (2) contribution limits on donations by individuals and groups (including PACs and parties) to candidates during each cycle, ranging from $400 for governor to $200 for state legislators and a $2000 cap on contributions to parties. Relying on the Supreme Court's 1976 decision in Buckley v. Valeo, the District Court held that the expenditure limits violated the First Amendment; it also struck down the limits on party contributions to candidates, but it upheld the other contribution limits. On appeal, the Second Circuit upheld all the contribution limits, and also held that the expenditure limits might be constitutional under certain circumstances.
The Court reversed by a vote of 6-3, but no opinion garnered a majority of the Justices. Justice Breyer announced the Court's decision in a plurality opinion joined by the Chief and (with one exception) Justice Alito. That exception was Breyer's treatment of the expenditure limits under Buckley. That decision struck down federal expenditure limits on the ground that, unlike contribution limits that leave donors free to speak about candidates and issues, expenditure limits actually restrict candidates' ability to speak, and this restriction could not satisfy strict scrutiny. Breyer and the Chief saw no reason to depart from stare decisis and overturn Buckley; Congress and the states have relied on the decision, and Vermont had made no showing of dramatically changed circumstances. They also rejected Vermont's (and the Second Circuit's) view that a new interest not expressly considered in Buckley – limiting the amount of time state officials spend fundraising – justified the Act 64 expenditure limits. For Breyer and the Chief, the connection between spending and fundraising demands was obvious in the briefs in Buckley and thus implicitly rejected by that Court. Alito did not join this part of Breyer's opinion, taking an even harder line in his separate concurrence: He would refuse even to hear Vermont's request to reexamine Buckley on the ground that it had failed to make any presentation on the need to deviate from stare decisis.
On the contribution limits, Breyer (now joined by the Chief and Alito) again turned to Buckley, which upheld federal $1000 contribution limits as "closely drawn" to match a "sufficiently important interest" in preventing corruption. Buckley acknowledged, however, that in a future case the limits might be so low that they unduly magnified the advantages of incumbency or prevented candidates from amassing the resources needed for effective advocacy. Noting that it had "no scalpel to probe" every contribution level, the plurality recognized that there had to be some lower bound on limits, and in its view, Act 64 crossed it. Vermont's limits were lower than any other state's, and significantly lower in real dollars than the 1976 limits upheld in Buckley. Those "danger signs" warranted close examination of the record to make sure that Act 64 was "closely drawn." The plurality found that it was not based on five factors: (1) Act 64 likely would significantly restrict the funding available for those challenging incumbents and from parties, particularly in hotly contested races (as it effectively would prevent parties from targeting resources at competitive districts); (2) applying such low limits to parties threatened the right to associate; (3) Act 64 appears to count campaign volunteers' incurred expenses (e.g., travel, coffee and doughnuts, etc.) toward the limits, which could have a real effect since the limits are so low; (4) the limits are not adjusted for inflation; and (5) corruption seems no worse in Vermont than in other states.
Justice Kennedy wrote a curious concurrence in the judgment in which he agreed that both campaign limits in Act 64 violated the First Amendment, and that, "[v]iewed within the legal universe we have ratified and helped create, the result the plurality reaches is correct." But Kennedy felt the Buckley "universe" causes more problems than it solves, as it requires the Court, with no expertise on these matters, to explain why a $200 limit is no good while a $1500 limit is OK,. Given his "skepticism regarding that system and its operation," Kennedy was willing only to concur in the judgment.
Justice Thomas, joined by Scalia, also concurred in the judgment. They would ignore stare decisis, overrule Buckley, and simply subject all of Act 64 to strict scrutiny (under which it would fail). Under their view, Buckley is illegitimate and unworthy of deference because it fails to offer sufficient protection for political speech (that is, they would make no distinction between expenditure and contribution limits, which they regard as equally severe restrictions on speech). In a stronger version of Kennedy's concurrence, they also argued that Buckley is incapable of principled application, citing the plurality's opinion as Exhibit A in that regard: How can the Court determine that a given limit is on the good or bad side of a line that cannot be drawn rationally?
There were two dissents. Justice Souter, who was joined by Stevens (in the main) and Ginsburg, felt that limiting fundraising time by state officials was a sufficiently compelling interest to support an expenditure limit under Buckley; the dissenters would remand to the District Court for determination of whether Act 64 was narrowly tailored to further that interest. As to the contribution limits, the dissenters found that they were no more restrictive than the laws enacted by other states when adjusted for population and district size, and they pointed to anecdotal evidence that Act 64 did not give incumbents that much of an advantage. Given that "Vermont is not an eccentric party of one," the Court should defer to its legislature as to the risk of corruption that Act 64 aims to mitigate. Finally, Justice Stevens wrote his own dissent to say that he too thought it was time to overrule Buckley – but unlike Thomas and Scalia, he would do so to allow expenditure limits. Stevens noted that Buckley itself upset longstanding expenditure limits, which he viewed as complementing corruption-prevention efforts, protecting equal access to the political arena, and "freeing candidates from the fundraising straitjacket" (which, he argued, the Framers would have found appalling). Stevens also noted that these limits were not so much content restrictions as they were time, place and manner restrictions that are valid so long as their purpose is "legitimate and sufficiently substantial" (and he clearly thought Act 64's was).
In another case from yesterday, United States v. Gonzalez-Lopez (05-352), the Court held 5-4 that a court's erroneous deprivation of a criminal defendant's choice of counsel requires reversal of his conviction. The facts of the case are rather strange – they involve a Missouri district court's denial of pro hac vice admission to Gonzalez-Lopez's preferred counsel because, among other things, he passed notes to another attorney performing cross-examination at a hearing. At trial, the court made the attorney sit in the audience with a marshal and barred him from communicating with Gonzalez-Lopez or his actual trial out of court. The Eighth Circuit held that the denial of admission was unfounded and threw out Gonzalez-Lopez's conviction because he was denied his Sixth Amendment right to paid counsel of his choosing. The Court affirmed, but this was no ordinary 5-4 vote. Justice Scalia led the majority, joined by Stevens, Souter, Ginsburg and Breyer. First, the Court rejected the government's position that Gonzalez-Lopez had to show that his substitute counsel was ineffective, or that he had been prejudiced because his preferred counsel would have pursued a strategy that probably would have altered the outcome. For the Court, "the Government's argument in effect reads the Sixth Amendment as a more detailed version of the Due Process Clause – and then proceeds to forget the details." In particular, the government ignored the critical distinction between the right to effective assistance of counsel and the right to counsel of choice, regardless of skill. As to the former, counsel can't be ineffective unless his actions have harmed the defendant, so a prejudice requirement makes sense. But the right to counsel of choice is different – it is "the root meaning of the constitutional guarantee," and the wrongful deprivation of that right is enough to "complete" a Sixth Amendment violation. Second, and unsurprisingly, the Court held that this error is not subject to harmless-error analysis because it is a "structural error" affecting the entire trial framework.
Justice Alito authored a dissent, for himself, the Chief, Kennedy, and Thomas that rejected the majority's distinction between the two rights to counsel. The Sixth Amendment speaks not of the identity of the chosen counsel but of the "assistance" he provides. Therefore, if deprivation of choice does not impair the assistance the defendant receives, there can be no constitutional violation. The dissenters would not go so far as to require a defendant to make a full ineffective-assistance showing, but would require at least "an identifiable difference in the quality of representation." They also rejected the majority's holding that denial of choice of counsel was structural error, as the result was not always an unfair trial – substitute counsel could perform brilliantly, or it may be obvious that any difference in ability or strategy would have been irrelevant.
The Court also took five new cases yesterday. They are:
Weyerhauser Co. v. Ross-Simmons Hardwood Lumber Co. (05-381): Did the Ninth Circuit err when it held: "[W]e hold that the high standard of liability in Brooke Group [Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993)] does not apply here because this case involves predatory bidding in a relatively inelastic market, not predatory pricing"?
Ledbetter v. Goodyear Tire & Rubber Co. (05-1074): Whether and under what circumstances a plaintiff may bring an action under Title VII of the Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period.
Massachusetts v. EPA (05-1120): (1) Whether the EPA Administrator may decline to issue emission standards for motor vehicles based on policy considerations not enumerated in section 202(a)(1) [of the Clean Air Act]. (2) Whether the EPA Administrator has authority to regulate carbon dioxide and other air pollutants associated with climate change under section 202(a)(1).
Bell Atlantic Corp. v. Twombly (05-1126): Whether a complaint states a claim under Section 1 of the Sherman Act, 15 U.S.C. § 1, if it alleges that the defendants engaged in parallel conduct and adds a bald assertion that the defendants were participants in a "conspiracy," without any allegations that, if later proved true, would establish the existence of a conspiracy under the applicable legal standard.
KSR International Co. v. Teleflex, Inc. (04-1350): Whether the Federal Circuit has erred in holding that a claimed invention cannot be held "obvious," and thus unpatentable under 35 U.S.C. § 103(a), in the absence of some proven "‘teaching, suggestion, or motivation' that would have led a person of ordinary skill in the art to combine the relevant prior art teachings in the manner claimed."
Finally, the Court invited the SG to brief the following petitions:
Padot v. Padot (05-1076): Where a veteran has elected to take military disability pay in lieu of retired pay, may state courts, in contravention of federal statutes, 10 U.S.C. 1408 and 38 U.S.C. 5301, and this Court's ruling in Mansell v. Mansell, 490 U.S. 581 (1989), nonetheless require former servicemembers to remit to former spouses a part of that foregone pay, even without an indemnification provision in the divorce property settlement?
Murphy v. Oklahoma (05-10787): The questions presented in this in forma pauperis case are not readily available; we'll forward them when we get them.
That's it for now, but we'll keep the summaries coming as the Court finishes out the Term.
Thanks for reading!
Ken & Kim

From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400