A Simplistic Compliment Endures: The Roberts Court As “Pro-Business”

supreme court

Cross-posted at WLF’s Forbes.com contributor page

“The Roberts Court is pro-business.”  The Roberts Court “comes to the defense of business.”

Stories peddling this angle seem to be a compulsory part of reporting at the conclusion of each Supreme Court term. The completion of the October 2012 term is no exception. King & Spalding’s Ashley Parrish took strong exception to this characterization of the Court during Washington Legal Foundation’s annual end-of-the-term briefing this past Tuesday. The entire program can be viewed here.

The “pro-business” bromide is a trite and woefully simplistic byproduct of the need to label things. One could argue that the term implies judicial bias, i.e. deciding cases based on the nature of the litigant rather than on the law. It can also be seen as ideological or political in nature. If, for instance, Justice Ginsberg happened to be the Chief Justice at a time when the Court’s rulings favored free enterprise, would we be seeing stories about how pro-business the “Ginsberg Court” is? Further, has anyone seen the justices who rule against business litigants described as “anti-business”?

As an institution which for 36 years has sought to advance legal principles which support the conduct of free enterprise, Washington Legal Foundation views “pro-business” Court as a compliment. We’re pleased that in the nine cases in which we filed during the October 2012 term, seven resulted in victories for “business” litigants. Our perspectives on the law, on the judiciary’s limited role, and on constitutional protections for business entities are prevailing. But WLF should not be alone in applauding this Court’s rulings against plaintiffs’ lawyers, activist groups, and federal regulators. Businesses employ Americans, Americans invest in businesses, and our free enterprise system gives people of all backgrounds a fighting chance to succeed.

So if a label must be imposed, did the Roberts Court earn its “pro-business” stripes this term? If one looks strictly at the numbers, generally it did.

By our count, in the 28 cases which directly affected free enterprise, free enterprise “won” 21 and “lost” 7. Continue reading

Supreme Court Observations: Clapper v. Amnesty International

supreme court

Cross-posted at Forbes.com’s WLF contributor page

The Supreme Court this week ruled that a group of American lawyers lack standing to challenge the 2008 law that expanded the U.S. government’s authority to engage in electronic surveillance of overseas aliens suspected of terrorism.  To hear the reaction of the ACLU and other civil liberties groups to the decision in Clapper v. Amesty International, one would think that the Supreme Court is abandoning the rule of law and abdicating its responsibility to oversee the activities of the Executive Branch.  Nonsense.  The Court simply denied a right to sue by individuals who concede that they have no evidence that they have been subjected to surveillance.  The decision is consistent with a long line of cases that have insisted on evidence of injury before a suit can go forward, particularly when the suit implicates national security concerns.

At issue are the 2008 amendments to the Foreign Sovereign Immunities Act (FISA).  The amendments permit the federal government to engage in overseas surveillance of suspected terrorists under limited circumstances.  But such surveillance is permitted under the FISA Amendments (FAA) only after the government has sought and obtained the consent of the FISA Court, a special court established to address national security issues.

On the day that the FAA was enacted, several lawyers and organizations (represented by the ACLU) filed a lawsuit seeking an injunction against surveillance conducted pursuant to the FAA.  They alleged that the FAA violated their First and Fourth Amendments rights as well as separation-of-powers principles.  Named as defendants were several senior Obama Administration officials, including Attorney General Eric Holder (whose authorization is required before any surveillance may be undertaken under the FAA).  Although the law does not permit American citizens to be targeted for surveillance, the plaintiffs expressed a fear that the government would end up overhearing some of their conversations with those foreigners who are being targeted. Continue reading

Clapper v. Amnesty Int’l: SCOTUS Will Hear Challenge to Foreign Surveillance Law

Guest Commentary

Amanda McKinzie, a 2012 Judge K.K. Legett Fellow at the Washington Legal Foundation and a student at Texas Tech School of Law.

From the day Congress amended the Foreign Intelligence Surveillance Act of 1978 (FISA) to allow the communications of non-United States persons to be intercepted upon approval by the United States Foreign Intelligence Surveillance Court (FISC), parties have challenged the legislation’s constitutionality. Once such case, Clapper v. Amnesty International USA, recently reached the U.S. Supreme Court. The Court granted the federal government’s petition for certiorari on Monday, May 21, and will decide during the October 2012 term whether those challenging the law have Article III standing to sue.

The amendments to FISA do not permit the government to intercept communications of United States citizens to be intercepted. Despite this prohibition, the Clapper plaintiffs – U.S. attorneys, journalists, and labor, legal, media, and human rights organizations – claim they are fearful of being monitored. They assert that because they frequently communicate with potential international targets, there is a high probability that information they exchange will be intercepted. The plaintiffs further claim that based on this “well-founded fear,” they have expended much time, effort, and money in maintaining the confidentiality of their communications from potential interception. Accordingly, they argue that the future injury of interception coupled with their present expenditures provide standing to sue.  Continue reading

WLF’s Monthly Washington Examiner Column: Courting Terrorism

Daniel J. Popeo, Chairman and General Counsel, Washington Legal Foundation

Where else but in America would your involvement in numerous terrorist plots earn you both a spot on an international “most wanted” list and the pro bono assistance of legal activists in federal court?

Such is the situation involving Anwar al-Awlaki, a militant Islamist cleric based in Yemen. Al-Awlaki and his “al Qaeda in the Arabian Peninsula” group have been tied to the massacre at Fort Hood, the attempted Christmas Day airplane bombing over Detroit, and last month’s plot to blow up Chicago-bound cargo planes.

Read more at the Washington Examiner: http://www.washingtonexaminer.com/opinion/Daniel-Popeo-Courting-terrorism-108387219.html#ixzz15SKvOxZq

The N.Y. Times Op-ed on SCOTUS Al-Kidd Case Wrong on Facts and Law

The New York Times weighed in yesterday with this editorial regarding Ashcroft v. Al-Kidd, a tort suit against former U.S. Attorney General John Ashcroft which the Supreme Court recently agreed to review.  The Times called Ashcroft’s conduct “outrageous” – the plaintiff accuses Ashcroft of misusing the federal material witness statute – and deemed the Obama Administration’s on-going defense of Ashcroft to be “disturbing” and “repugnant to the Constitution.”

The Times’s editorial apparently is based on a fundamental misunderstanding of the facts of the case.  As it notes, Al-Kidd complains that federal prosecutors detained him for 15 days under the material witness statute even though they (allegedly) never intended to call him as a witness in ongoing criminal investigations into terrorist activity by Muslim groups.  Even worse, Al-Kidd alleges, federal officials subjected him to inhumane treatment during his 15 days of incarceration. Continue reading

Supreme Court Grants Review to Ashcroft v. al-Kidd as Urged by WLF Brief

With today’s orders list, the United States Supreme Court today accepted only one new case for review, but it is a rather significant one and a victory of sorts for WLF’s Litigation Division.  Ashcroft v. Al-Kidd hails from the High Court’s “favorite” federal circuit, the Ninth Circuit.  WLF’s amicus brief was one of only two briefs filed in support of Ashcroft’s petition (the other was by legal historian Wesley MacNeil Oliver of Widener University filed, according to the professor “to correct the lower court’s assumptions about the history of material witness detention”).

WLF filed its brief on behalf of a group of former Attorneys General of the United States: WLF’s Legal Policy Advisory Board Chairman Dick Thornburgh; William P. Barr; Edwin Meese III; Benjamin Civiletti; and Michael Mukasey. Continue reading

Finger on the Pulse: From Our Blogroll and Beyond

  • Pennsylvania Supreme Court strips defendant of ability to oppose Gov. Rendell’s hiring of a contingent-fee law firm (Mealey’s Litigation Blog) (see also WLF’s amicus brief)
  • Will whistleblower provisions of bank reg reform law further enrich the plaintiffs’ bar? (Forbes’ The Jungle)
  • Fraud-on-the-market is theory is bad enough, but “fraud-created-the-market”?  Third Circuit rejects this invented securities lawsuit theory. (Legal Intelligencer) (SEC Actions)
  • Obscure Financial Accounting Standards Board a new plaintiffs’ lawyer ally? (CFO) (Shopfloor)
  • While rejecting SEC’s settlement with Citigroup, judge wonders out loud, “You’ve focused on two individuals and I can’t for the life of me figure out why.” (The prescient Larry Ribstein at Truth on the Market)
  • SEC spins back furiously against judge in Citigroup case (Washington Post’s (new) Market Cop)
  • U.S. Dept. of Treasury empowers ACLU to represent targeted terrorist in suit vs. federal government. (Politico)
  • AEI’s Alex Pollock tells a thankful Treasury Secretary why Fannie Mae and Freddie Mac should be fully privatized (The Enterprise Blog)

Let’s Not Hang Our Public Officials Out to Dry

In its 1971 Bivens decision, the Supreme Court for the first time recognized the right of an individual to sue federal officials for damages if he believes that the officials violated his constitutional rights.  The Court nonetheless has always been hesitant to interpret that right too expansively.  Among other limitations, the Court has recognized a qualified immunity defense, under which the plaintiff has no cause of action unless he can demonstrate that the right he asserts was “clearly established” at the time the officials acted.

Unfortunately, the qualified immunity doctrine has not prevented a deluge of damage claims against senior members of the last several Administrations.  Although the doctrine was intended to facilitate the dismissal of lawsuits at the pleadings stage (thereby protecting government officials from the burdens of litigation), recent appeals court decisions have made it increasingly hard for officials to win early dismissal.  Former Attorney General John Ashcroft, himself the target of numerous claims for damages, has asked the Supreme Court to grant review in one such case, Ashcroft v. Al-Kidd, to consider whether the Court needs to beef up the qualified immunity defense. Continue reading

Supreme Court Observations: Holder v. Humanitarian Law Project

Last week, the U.S. Supreme Court rejected a First Amendment challenge to the federal law that prohibits the provision of “material support” to groups that have been designated as “foreign terrorist organizations” (FTOs) by the Justice Department.  There are 44 such groups, including al Qaeda, Hamas, and Hezbollah. 

Human rights groups have been critical of the Court’s decision.  They view the law as an obstacle to constructive dialogue between Americans and foreign groups that might be reasoned with and that might eventually become our friends.  The authors of an op-ed that ran on June 29 in The New York Times, “Why We Talk to Terrorists,” argue that “to assume that it is invariably wrong to engage any of these groups is a grave mistake,” and that “hindering all informed interaction with terrorist groups will harm both our national security and the prospects for peace in the world’s seemingly intractable conflicts.”  Ralph Fertig, the man who spearheaded the legal challenge to the statute, argues that he is being prevented from meeting with Kurdish leaders – whose affiliation with any FTOs is unknown to him – to teach them how to press their human rights claims before the United Nations. Continue reading

Judges Rightly Leave War in Military’s Hands with Maqaleh v. Gates Ruling

Guest Commentary

Carlos Ramos-Mrosovsky, Baker & Hostetler LLP*

An effective amicus brief on behalf of those with first-hand experience of the issues at stake can be a powerful asset to the judiciary.  The United States Court of Appeals for the D.C. Circuit decision last week that persons designated as unlawful enemy combatants and detained by the U.S. military at Bagram Air Base in Afghanistan cannot seek habeas review of their detentions demonstrates this point very well.  

 The result in Maqaleh v. Gates was not a foregone conclusion.  The controlling precedent from the Supreme Court was Boumediene v. Bush, 128 S. Ct. 2229 (2008), which held that detainees at Guantanamo Bay could bring habeas petitions.  Boumediene announced that three factors should be considered in determining whether habeas will be available to detainees held as unlawful enemy combatants outside of the United States.  These factors are:  (1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made, (2) the nature of the sites where apprehension and detention took place, and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ of habeas corpus.  See Boumediene, 128 S. Ct. at 2259. Continue reading