Citizens United

Justice Ruth Bader Ginsburg

If there was one decision I would overrule, it would be Citizens United. I think the notion that we have all the democracy that money can buy strays so far from what our democracy is supposed to be.

– Justice Ruth Bader Ginsburg, explaining the reasons why she thinks Citizens United was one of the worst Supreme Court decisions of recent times, after being asked her opinion in a wide-ranging interview with Jeffrey Rosen of the New Republic.

(What do you think is the worst SCOTUS ruling in recent memory? Tell us.)

Laurence Tribe

On Monday night, the Young Lawyers division of the UJA-Federation of New York hosted Professor Laurence Tribe to speak about his career, the Supreme Court, and the importance of approaching the law as “a profession rather than a business arrangement.”

Professor Tribe also had an opportunity to comment on Justice Ginsburg and Supreme Court retirements, Citizens United, the mood of the Court, and the recent controversy around his support for the California teacher tenure lawsuit.

…and I got a chance to have some first-rate cookies and rugelach. So an all-around success.

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Katie Couric of Yahoo! News sat down to conduct an extended interview with Justice Ruth Bader Ginsburg to discuss issues ranging from Hobby Lobby to the controversial “R” word. Most importantly, Couric confronts Justice Ginsburg about her internet fame and hip-hop moniker, and we learn that she knows all about it.

Obviously Justice Ginsburg is up on her internet presence. Above the Law learned firsthand that she takes the time to recognize her fans when Justice Ginsburg took the time to personally respond to Staci’s wedding invitation. But hearing an 81-year-old woman talking about how much she adores being called “Notorious” is face-meltingly cute.

There are some other gems from the full interview too….

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There are lots of forms of purchase and exchange that we criminalize, for example, buying sex. We don’t say if someone wants to purchase the services of a prostitute, well that is just an expression of their speech.

– Professor Jamie Raskin of American Law dropping logic bombs all over Citizens United. Professor Raskin — who is also a politician himself — goes on to explain that the Supreme Court’s jurisprudence offers zero explanation why bribery is illegal but unlimited donations are not.

Two days ago, a protestor stood up during oral arguments at the Supreme Court to tell the justices that they created a legally sanctioned plutocracy with their decision in Citizens United. The whole thing was caught on camera because one was smuggled into the courtroom, which was almost more interesting than the protest itself.

It was pretty exciting. Justice Ginsburg almost woke up for it.

Now the Supreme Court protestor has spoken, and here’s what he had to say….

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A spectator who dutifully waited in line to gain admission to the Supreme Court’s hearing today just popped up out of his seat and started heckling the Court. It’s times like this that you really wish the Court would join the mid-20th century and install a camera or two so we could see how hard Justice Alito’s eyes roll back into his head when the person he’s listening to isn’t even a Supreme Court justice. I’m guessing it looks like when a Great White bites down.

The cops yanked away the protestor soon after he began. But obviously he succeeded in changing the world before they did.

So what issue got this protestor so riled up that he crashed the Supreme Court?

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It’s time for the State of the Union again, which means it’s time to gather around the TV and thoughtfully discuss the future of the country play a sophomoric game based on the events that we expect to unfold over the course of the evening.

Remember to follow your Above the Law editors covering the speech via Twitter. See @ATLblog@DavidLat@ElieNYC@StaciZaretsky, and @JosephPatrice.

Now, on to the game….

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This week, the Supreme Court heard oral arguments in McCutcheon v. FEC. In McCutcheon, the Court will rule on whether certain campaign finance restrictions violate the First Amendment. ATL’s Joe Patrice offered his thoughts on the oral arguments yesterday. Today, I offer an alternative perspective.

Currently, byzantine election laws restrict the total political contributions that a person can make in a two-year period, as well as the number of candidates a person can contribute the maximum amount to. The plaintiff, Shaun McCutcheon, is a suburban Alabama businessman, the owner and founder of an electrical engineering firm. McCutcheon wanted to contribute $1,776 (a very patriotic sum, indeed) to 27 candidates across the country. Each of those individual contributions in isolation was legal, falling below the $2,600 maximum amount allowed for individual contributions. Yet, had McCutcheon done so, his total contributions would have run afoul of the maximum total allowed, currently $48,600.

Supporting political causes and candidates of your choice is an exercise of your First Amendment rights. Like all constitutional rights, though, it is subject to an overriding compelling governmental interest. In the case of campaign finance restrictions, your speech rights are trumped by the government’s interest in preventing political corruption or the appearance of political corruption.

Here, McCutcheon was expressing his political values, innocently — even laudably — participating in the democratic electoral process as he contributed up to 2600 bucks to individual candidates . . . until he supported one candidate too many. Suddenly, the First Amendment no longer safeguards his political expression. Suddenly, the threat of corruption or the appearance of corruption is so great that democracy just cannot stand if Shaun McCutcheon is allowed to give a penny more to support a candidate who shares his values….

double red triangle arrows Continue reading “Rumors Of Democracy’s Death Are Greatly Exaggerated: Why McCutcheon Can Be A Good Thing”

Supreme Court arguments are off and running, and the Supremes wasted no time in getting to the fun stuff. In this instance, it’s McCutcheon v. FEC, the case billed as Citizens United II: Electric Boogaloo. The conservative wing of the Court is expected to side with McCutcheon in its continuing war to make American elections safe for multi-millionaires.

Anyway, the oral argument was marked by the usual humorous sniping amongst the justices and lots of fun exchanges where counsel and the conservative justices worked overtime to subordinate reality to ideology. Up to and including Justice Scalia arguing that $3.5 million isn’t that much money for one individual to spend on an election.

Here are 3 immediate, largely stream-of-consciousness thoughts based on reading the transcript (available at the end of the post) coming out of this oral argument:

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The most tragically stupid decision was greenlighting a reality show about lawyers. No one cares about watching real-life lawyering. That’s why Nancy Grace exists — to boil salacious cases down to sound bites so viewers don’t have to watch real lawyers.

But almost as stupid was greenlighting a show about a district attorney on the eve of an election and not expecting to run afoul of campaign finance laws.

Imagine running against an incumbent armed with a glossy, major network reality show constantly hyping his effectiveness in office. In the context of a district attorney election, imagine having to run against Adam Schiff after everyone watched a Law & Order marathon.

If that seems unfair, one challenger agrees with you…

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