Amici Curiae: Three Newsmakers from the US Supreme Court, the Canadian Courts Are A’Tweetin’ and Julian Assange’s Asylum News

Obama 0, US Supreme Court 2: Supreme Court Refuses to Revisit Citizens United Decision

For political and legal enthusiasts in the United States, this was a real behemoth of a week. The Supreme Court of the United States started it off with a bang – or, really, three bangs. It released three decisions on Monday, each one reverberating in courtrooms and legislative chambers around the country: Arizona immigration law (Arizona v. United States, 567 US __ (2012)); juvenile sentencing Miller v. Alabama, 567 US __ (2012)); and third-party political fundraising (American Tradition Partnerships, Inc. v. Bullock, 567 US __ (2012)). On Thursday, the highest court finally weighed in on the most contentious issue leading up to the 2012 presidential elections, healthcare reform, namely the Patient Protection and Affordable Care Act (“Affordable Care Act”). For the most part, the Supreme Court left the Act intact. (Stay tuned for a breakdown for this landmark decision.)

There is no doubt that the Affordable Care Act will set the tone for President Obama’s reelection campaign. And there is little doubt that both sides of the debate on the Arizona immigration law will continue their legal wrangling. The decision that has been able to escape the media hoopla is American Tradition Partnerships, which allowed the Supreme Court of the United States to solidify its highly controversial decision two years ago in Citizens United v. Federal Election Commission, 558 US 50 (2010) (“Citizens United”). As usual, the American Tradition Partnerships decision came down to a 5-4 split along ideological lines. Though the majority opinion was unsigned, one could assume that the conservative wing of the Supreme Court lent their weight to reaffirming Citizens United, which essentially permits corporations and unions to spend as much as they like to support or oppose political candidates.

At the center of the case is a Montana state that that prevents corporations from donating to political candidates or parties: A “corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party,” Mont. Code Ann. §13–35–227(1) (2011). It was upheld by the Montana Supreme Court, which rejected petitioners’ claims that it violates the First Amendment. Since 2010, this piece of legislation came into conflict with the holding in Citizens United: “political speech does not lose First Amendment protection simply because its source is a corporation” (para. 26).

The usual suspects – Justices Breyer, Ginsburg, Sotomayor and Kagan – dissented. In the beginning, Justice Breyer reminded us why he and his colleagues opposed the Citizens United decision. Simply, they did not distinguish between direct and indirect donations to political causes. Justice Stevens, who penned the dissent then, relied on a “substantial body of evidence” to conclude that: “[m]any corporate independent expenditures . . . had become essentially inter­ changeable with direct contributions in their capacity to generate quid pro quo arrangements” (para. 64–65).

Even if they accept Citizens United, which they do so only begrudgingly, the dissenting judges remind us that the Montana Supreme Court’s findings are unique to the political landscape in Montana, so we should not step in the way. The Attorney General of Montana offered evidence that “independent expenditures by corporations did in fact lead to corruption or the appearance of corruption in Montana” (para. 2). So, Justices Breyer, Ginsburg, Sotomayor and Kagan would deny this petition and grant the petition for certiorari in order to reconsider the Citizens United.

It is clear that the dissenting judges had a tall task before themselves. Barely two pages long, their dissent seems to be a quiet lamentation for the state of political fundraising in the United States. As we have seen, an unprecedented level of outside money has been pouring into races for the House and Senate (and, of course, the White House). Especially when groups, such as Super PACs, do not disclose the identity of their donors, we have to wonder whether the Citizens United decision, and now the American Tradition Partnerships decision, have let the health of American democracy deteriorate further.

Twitter For the Win: @BCSC Now Transmitting Texts

Like. Last week, the British Columbia Supreme Court announced it will be opening up its doors to social media. In an effort to progress with technology and transparency, the court will permit accredited journalists and lawyers to receive and send text messages from inside their courtrooms. The policy is likely to take effect in September 2012.

If you have a twitter account and follow Carissima Mathen (twitter handle cmathen), you will know that the Supreme Court of Canada has already allowed such electronic devices. This move has enabled people outside Ottawa to follow along with the court in the live tweeting of hearings.

Prior to this announcement, the ability to transmit messages from inside courtrooms was subject to judicial discretion on a case by case basis. Come September, the presumption will switch, and instead be that the use of electronic devices will be allowed subject to a judge declining the use of electronic devices.

Despite some critics of Twitter, the website has undoubtedly changed the nature of journalism. There is an increasing expectation that news is published while events as events occur,  rather than after the fact. This move can also be seen as a way to improve one avenue of access to justice. Although this allowance is only extended to accredited journalists and not the general public, there will be more people in the courtroom  without actually being there physically, digesting themselves what went on in a courtroom. @BCSC good job, I can now be in the court. #Twitter #FTW.

“Asylum” Assange’s Battle Against Extradition

By now, readers of the TheCourt.ca will no doubt have heard about Julian Assange’s asylum claim to Ecuador, and his pending appeal that has thrown the Ecuadorian government into a bit of a tizzy. As the founder of the controversial internet whistle-blower site Wikileaks, Assange has become both a hero and a villain within a matter of months. He has been fighting extradition to Sweden, where he faces being questioned and possibly charged for sexual assault. After the Supreme Court of the UK rejected Assange’s appeal to stay in that country, and his native Australia refused to become involved, Assange walked into the London embassy of his next nation of choice: Ecuador. At the time of this post’s writing, Assange has spent about 9 days in the embassy, even as Ecuadorian lawyers attempt to determine whether his claim can and should be granted.

The parties involved have much at stake. Assange, for one, has been adamant about his innocence from the beginning, and has taken a strong stance against his extradition, citing fears that Sweden could send him to the US, where he might potentially face the death penalty. The Ecuadorian government however, is faced with the sensitive issue of offering protection to a figure that has managed to annoy the world’s major powers through his organization, which is known to release confidential and often incriminating information on some of the most secretive and elite meetings, governmental policies, wrongdoings and transactions, in the world. On the other hand, if it did extend protection to Assange, Ecuador could gain the admiration of his supporters and improve its global image in the fields of human rights. Commentators have also pointed out that Ecuador has expressed positive encouragement for Assange’s work in the past, implying that Assange’s decision has been much more carefully thought out than planned. Ironically, however, if Assange’s claim is granted, he will be living in a country where the courts have been known to suppress journalists and free speech through criminal libel laws. Ultimately though, the murky question of the legality of Assange’s request is the primary concern; stay tuned to TheCourt.ca for commentary on the issue as it unfolds.