A Lesson for Young Journalists, Courtesy of Justice Kennedy
A high school newspaper in Manhattan recently added a new and prestigious editor to its staff: Supreme Court Justice Anthony Kennedy. Adam Liptak of the New York Times reports:
It turns out that Justice Anthony M. Kennedy, widely regarded as one of the court’s most vigilant defenders of First Amendment values, had provided the newspaper, The Daltonian, with a lesson about journalistic independence. Justice Kennedy’s office had insisted on approving any article about a talk he gave to an assembly of Dalton high school students on Oct. 28.
Kathleen Arberg, the court’s public information officer, said Justice Kennedy’s office had made the request to make sure the quotations attributed to him were accurate.
The justice’s office received a draft of the proposed article on Monday and returned it to the newspaper the same day with “a couple of minor tweaks,” Ms. Arberg said. Quotations were “tidied up” to better reflect the meaning the justice had intended to convey, she said.
I’m all for being tidy — and, for all his faults, Kennedy has indeed been friendly to the First Amendment (if not to student speech rights in the “Bong Hits for Jesus” case, Morse v. Frederick) – but public figures don’t usually get to change a story to “better reflect” the intent of their words.
…Frank D. LoMonte, the executive director of the Student Press Law Center, questioned the school’s approach. “Obviously, in the professional world, it would be a nonstarter if a source demanded prior approval of coverage of a speech,” he said. Even at a high school publication, Mr. LoMonte said, the request for prepublication review sent the wrong message and failed to appreciate the sophistication of high school seniors.
While this is hardly a major scandal — and it’s not unusual for justices to exclude the press entirely from public appearances — Kennedy’s use of a judicial editor’s pen does support the general feeling that students don’t always get a fair shake when it comes to their constitutional rights. As I said about an unrelated case in which Cato filed a brief last week (quoting the landmark Tinker case), students shouldn’t have to “shed their constitutional rights to freedom of speech… at the schoolhouse gate” — especially when a man charged with protecting those rights comes to talk to them about the importance of law and liberty.
H/T: Jonathan Blanks
Filed under: Government and Politics; Law and Civil Liberties
Haywood v. Drown
The Supreme Court ruling in Haywood v. Drown got lost in the news last week, but it was an important constitutional case involving the principle of federalism. The issue concerned the extent to which the central government can commandeer state judicial systems. Unfortunately, by a narrow 5-4 vote, the Court gave the central government a green light.
Justice Clarence Thomas filed another one of his sober, scholarly opinions in dissent and I think he makes the case rather well. Excerpt:
The Court holds that New York Correction Law Annotated §24, which divests New York’s state courts of subject-matter jurisdiction over suits seeking money damages from correction officers, violates the Supremacy Clause ofthe Constitution, Art. VI, cl. 2, because it requires the dismissal of federal actions brought in state court under42 U. S. C. §1983. I disagree. Because neither the Constitution nor our precedent requires New York to open its courts to §1983 federal actions, I respectfully dissent.
Although the majority decides this case on the basis of the Supremacy Clause, see ante, at 5–13, the proper starting point is Article III of the Constitution. Article III, §1, provides that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The history of the drafting and ratification of this Article establishes that it leaves untouched the States’ plenary authority to decide whether their local courts will have subject-matter jurisdiction over federal causes of action.
Until this setback, the Court’s conservatives were doing well in this corner of the law. In New York v. United States (1992), the Court ruled that state legislatures were not subject to federal direction. In Printz v. United States (1997), the Court ruled that state executive officers were not subject to federal direction. This case stood for the proposition that state courts are not subject to federal direction. Alas, Justice Anthony Kennedy joined the liberals to subordinate the states to federal control.
Here’s a practical example to illustrate the problem. It’s bad enough when Congress wants to pass a law like the Americans with Disabilities Act (pdf)–a law that will create a flood of litigation. But what if Congress goes a step further and writes the law in such as way as to say ”take all those time-consuming lawsuits to the state courts. Federal judges and personnel can’t be bothered with that stuff!” So state courts get clogged or state lawmakers must raise taxes to alleviate the added burden, which blurs accountability. That’s what is likely to happen. Or, to be precise, continue to happen with increasing frequency. The feds have permission to foist costs on to the states.
But, to be clear, the main issue here is the proper division of federal and state authority. Even if Congress were to get around the problem of unfunded mandates by throwing money at the states, each state should retain control over its judiciary. As Justice Thomas notes, the issue of federal supremacy is too often distorted by liberals. Within its proper sphere, the feds are supreme. Liberals want supremacy and federal authority that is plenary. Wrong. Obama’s Supreme Court nominee should be asked about federalism and the doctrine of enumerated powers at the confirmation hearings.
Filed under: General; Government and Politics; Law and Civil Liberties; Regulatory Studies
Tuesday Podcast: ‘Anthony Kennedy’s Modest Libertarianism’
Author Helen J. Knowles calls Supreme Court Justice Anthony Kennedy a “modest libertarian” in her new book The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty, which analyzes Kennedy’s jurisprudence.
In Tuesday’s Cato Daily Podcast, Knowles explains why she chose to recognize Justice Kennedy as a “modest libertarian”:
If you line all the justices up and say… did they vote for the individual, or for the government? Kennedy is overwhelmingly in favor of the individual rather than the government, far more than any of his colleagues.
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