(What, you thought corporations didn't have their own constitutional rights? Silly wabbit.)

In so ruling, the majority overruled two precedents directly on point--Austin v. Michigan Chamber of Commerce, and McConnell v. FEC.  This was not terribly surprising, however, since the Court had declined to rule in this case last term after oral argument, and had asked the parties to re-brief and re-argue the case with specific attention paid to whether Austin and McConnell should be overturned. Essentially, Kennedy directly asked Solicitor General Elena Kagan to give him one good reason not to invalidate the provision and uphold the freedom of speech of corporations, and apparently she did not provide him with one.

The end result is not great, but will have less practical impact on elections than people might believe from reading the immediate press coverage. As the opinion noted, corporations already had the power under the law to fund political speech through corporate-created and controlled political action committees. So, all this change really does is eliminate the need for a middleman PAC if a corporation wishes to get into the electioneering business.  In addition, the restrictions on corporate electioneering statements also arguably impacted organized labor's political speech, and today's ruling should positively impact unions' first amendment rights as well.

Of course the more troubling aspect is that this ruling solidifies and firmly entrenches the first amendment rights held by business entities that are created entirely by operation of law. (If this seems weird to you, it has never made much sense to me either.) Justice Scalia's concurrence actually goes to great pains to justify the holding that corporations have full first amendment rights, and if there is one part of the opinion that you are inclined to read, that might be it. He essentially argues that first amendment protection for corporations fits with original intent, and it's rather amusing to watch him do some seriously kama sutra-esque contortion to make that decidedly modern argument fit his olde world legal philosophy.

It is difficult to forecast how this will impact future cases in years to come. While I favor a robust first amendment as a general rule, I personally believed that reasonable campaign finance restrictions were not a bad idea and could be enacted without impermissibly restriction first amendment rights. I also have long feared what a flood of unregulated corporate money meddling into future elections will do to the fairness of those elections and what kind of public officials it will leave us with. Having said that, the presidential candidates in 2008 raised and spent over $2.4 billion even with the restrictions struck down today operating firmly in place, so it's hard to argue that the influence of money in politics can get much worse than it is right now. At least the rise of individuals making small donations over the internet has levelled the playing field a bit from where it was when McCain-Feingold was passed, and that trend is likely to continue.

If any soul is braver than I and wants to read the entire ruling for yourself, it is in pdf format here. Justice Kennedy's majority opinion is 57 pages, Justice Stevens' apparently blistering dissent is 90 pages.

The allegedly unqualified member of the short list was not named directly by Reeves in the email to the rest of the Judicial Nominating Commission that was obtained by the FCDR, but Reeves referenced the "first name on the list," which was Macon attorney Stephen Louis A. Dillard in both the JNC's press release and an AJC story on the short list.  While few outside of the Macon legal community have heard of Dillard, he apparently has built up quite an online following through his Southern Appeal blog. A sample quote for which he is famous: "Stare decisis is fo' suckas." I invite you to check it out for yourself and make your own decisions about what it might mean for his qualifications to sit on this state's highest court.

While Perdue's spokespeople and JNC Chairman Mike Bowers both denied any pressure from the Governor to the JNC, Perdue's spokesperson did indicate that his office communicated with the JNC about the attributes Perdue sought in a candidate and may have given examples of "folks who they might think would be a good model." It sounds as though Dillard was one such example candidate put forth by the Perdue folks, and somehow made it onto a list in which he seems underqualified compared to the rest of the field.  (While he was a federal appeals court clerk and reports 26 appellate cases under his own belt, Dillard is far younger and less experienced than the other hot list candidates, though I don't know that I would say this alone disqualifies him from the appointment. Here is his application, and he does appear to have significant trial and appellate practice experience.)

If Perdue really wanted to select Dillard, he could have done so even without the JNC list, but he presumably would have expected far fewer complaints about appointing a virtual unknown if that person had been recommended by the JNC after the full vetting. That may indicate that Perdue or his legal advisers are giving serious thought to appointing Dillard, though they may also be considering him for lower court appointments that may arise in the future instead.

In addition to airing the JNC's dirty laundry about the current selection process, Reeves' email also listed other examples of "failures" of the JNC that resulted in appointment of unqualified or insufficiently vetted candidates. He was again careful in this portion of his email not to name names with his examples, but did provide enough detail to allow astute observers to figure out who he was referencing. One of them was defeated last fall, while the other is still sitting as a Superior Court judge in South Georgia and was probably none too displeased to be mentioned.

Whether this FCDR report will end up affecting Perdue's selection remains to be seen. I have to believe that this is the first time that a person's blog has become an issue in their candidacy for an appellate court position, but no doubt it will not be the last. (And this demonstrates yet again why people who intend to seek judicial appointments should resist the urge to take public positions about controversial legal issues that they might later be asked about at confirmation hearings. I won't be stating that ANY constitutional principles are "fo' suckas" anytime soon.)

This lawsuit is likely to make big waves and presents the first significant federal legal assault on the constitutionality of DoMA and other anti-gay marriage laws. The Complaint is available here.

So, if Massachusetts can establish that the Commonwealth's constitution has granted the right to marry another individual of the same sex to all citizens, regardless of sexual orientation, it may be able to persuade a judge to rule that federal laws cannot interfere with recognition of Massachusetts same sex marriages. It will be very interesting to see whether the Obama administration attempts to fight this lawsuit, since it could very easily take the position that its hands are tied by DoMA and somewhat invite the federal courts to find DoMA unconstitutional. However, to this point the Department of Justice under Obama and Eric Holder has not taken the sorts of gay-friendly positions that many hoped for.

This case could also end up on a certain approach to the Supreme Court, since it presents the sort of federalism and constitutional issues that the Court has granted certiorari to often in the last decade.

(On a side note, Attorney General Martha Coakley is likely using this case as an opportunity to position herself for higher office in the relatively gay-friendly Bay State. When I lived in Boston, Coakley was the Middlesex county (Cambridge) District Attorney and used a few high profile cases to vault her to the AG slot. With Ted Kennedy almost certain to retire at the conclusion of his current term, Coakley may be positioning herself well for a run for that Senate seat and building her statewide name recognition and favorables with this case. It is a shrewd political move in a state that has many people waiting to make the jump into Kennedy's seat and looking for a way to distinguish themselves to voters. It seems strange to us down here in red Georgia, but in Massachusetts fighting for gay rights actually wins you votes! We can dream...)

I still think the odds on SCOTUS intervening on Davis' behalf are slim to none, but at least this delay gives him a few more months on this earth and gives his legal team a few more months to strategize to try to keep him alive. Now that the Court put everything on pause for the summer, the next few months will likely see considerable pressure on new Chatham County District Attorney Larry Chisholm to find a way to either re-open the case for new evidence, or take some other action to give Davis the new trial he has so far been denied by Georgia courts.

Sure, Georgia would love to challenge preclearance, but if the Department of Justice has issued valid objections to voting practices here in the last decade, then obviously preclearance is still needed and justified here, right? It would be very tough for SCOTUS to find preclearance unconstitutional when a constitutional challenge is brought by a state still experiencing voting discrmination in the new millenium. If anything, that sort of black mark evidence could actually push fence-sitting justices over to the side of finding preclearance constitutional.

This and many many other fascinating points of view from constitutional and election law scholars can be read here. I found particularly interesting the suggestion that this strange compromise decision should be considered Justice Souter's legacy, since he asked the question at oral argument that allowed the Court to opt for alternative relief. Always sneakily sticking it to the conservatives even to the very end, that one...

In a decision that virtually no court watchers saw coming, the U.S. Supreme Court today dispensed with the constitutional challenge to the pre-clearance requirement of the Voting Rights Act by, in essence, creating a technicality. Back when this case was argued before SCOTUS, most readers of tea leaves believed that the Justices' questions to counsel indicated they were inclined towards a 5-4 split in favor of invalidating pre-clearance, or possibly a narrow decision the other way with Kennedy providing the swing vote. Almost no one expected a slam dunk 8-1 majority opinion like the one issued today.

While I was initially surprised by the decision, once I read it I was no longer surprised that the Court took this approach. It is accepted doctrine that the Court prefers to avoid deciding explosive constitutional issues if they can find a way around them. Dismissals for mootness or insufficiency of jurisdiction, for example, have derailed many a would-be landmark case. By expanding the application of the bail out provision to all muncipalities that hold elections, SCOTUS avoided very troubling third rail issues raised by this case. It was the ultimate workaround, and by employing it Roberts bought the Court more time before they have to wade into this ugly briar patch.

A few years ago I read the excellent Bob Woodward book "The Brethren," in which he wrote about Chief Justice Warren Burger's struggle to weaken the impact of the most controversial Warren Court precedents, all while still respecting the rule of stare decisis. While Burger often preferred to decide high profile cases such as obscenity, abortion, privacy, criminal procedure and school desegregation in a far more conservative way than they actually turned out, he frequently utilized a shrewd tactic when he realized he lacked enough votes to get his way: he joined the majority, utilized the Chief Justice's privilege of assigning the opinion to himself, and then crafted a much more narrowly (and sometimes trickily) written opinion than another Justice might have. Burger found ways in his opinions to "distinguish" unhelpful precedent and thereby weaken it, even though he would not have had the votes to overturn it entirely. Burger used these tactics to moderate many of the most significant decisions during his first few years on the Court, and laid the groundwork for many of the more conservative decisions from his own later years and from the Rehnquist Court. 

Justice Roberts appears to be utilizing much the same tactic as Burger did decades ago. I am struck by how clearly he laid out the precedent standing in his way in this case, and yet deftly described the Court going in a different direction here without ever explicitly saying that any past precedents were overruled or modified. I suspect the pundits who are predicting that SCOTUS has the votes to find preclearance unconstitutional may very well be wrong. Roberts may have crafted this coalition opinion on a technicality precisely in order to avoid being in the minority of a 5-4 decision upholding preclearance. He and the other conservative justices may have realized that they were going to lose if they decided the constitutional issue outright, and so instead they suggested that the Court use the alternative relief requested by the utility district as a way to avoid the issue and preserve the fight for another day. (I have trouble believing that if Roberts, Scalia, Thomas et al. really had 5 votes in favor of finding preclearance unconstitutional, they for some reason decided to employ judicial restraint for about the first time in their tenures on the Court. Not really their style.)

While it would not be surprising at all for Roberts, Alito, Scalia and Thomas to be in favor of invalidating preclearance, I think Kennedy might have a harder time going along with such a decision. He was part of many of the prior decisions interpreting the VRA, and he has proven reluctant to rule with the conservative side of the Court on race issues in the past. If the constitutional question had been decided outright, it seems quite possible that a Kennedy-authored opinion would have reinforced past precedent upholding preclearance and further entrenched that law in a way that Roberts and the others on the right wing of the Court wanted desperately to avoid. Perhaps I have overread the Court here, but I do not think we necessarily should take away from this ruling a supposition that preclearance is doomed unless Congress finds a way to fix it soon.

What are the implications of this case for Georgia, where Sonny Perdue filed an amicus curae brief in support of invalidating preclearance, and John Lewis opposed? It's hard to say. While the intention to expand use of the bail out option was clear from the opinion, it will be difficult for Georgia to utilize it. The bail out provision requires, among other things, that a jurisdiction requesting exemption from preclearance be able to demonstrate that the Department of Justice has not made any valid objections to the jurisdiction's voting programs during the previous10 years. DoJ just objected to the citizenship verification procedures employed by Georgia in an objection served last month, and based upon my initial review of the objection it appeared to have merit. Georgia can appeal that decision to a panel of the D.C. District Court, or it can file a lawsuit seeking approval of the citizenship verification program, but in either scenario the state would need to prevail in expensive and protracted litigation in order to still be eligible for the bail out provision. Even then, bail out requests are rarely granted: just 17 have been granted since 1982. However, it is unclear whether the number of bail outs requested and granted will increase in the wake of today's decision.

It does appear all but certain that Georgia will want and need to fight the recent DoJ objection in court in some fashion, in order to preserve at least the possibility of being able to bail out of preclearance in the next decade. Today's opinion may have forced the state into a costly legal battle that it can ill afford during our current budget crisis, which may become an issue in the 2010 governor's race (particularly for current Secretary of State and gubernatorial candidate Karen Handel.)

In the end, today's decision does not change much. It is still possible that another state or municipality operating under preclearance will challenge its constitutionality outright and force SCOTUS to decide the issue. However, at minimum this decision has bought the Court time to wait and see what happens in the wake of today's ruling. Perhaps more jurisdictions will begin successfully petitioning to bail out of preclearance, and those that remain under preclearance requirements will appear more likely to have a history that justifies such oversight. Perhaps Congress will take the initiative to reform the VRA and the preclearance requirement to remedy some of the concerns expressed by the covered jurisdictions and by the Court today. It is too soon to tell.