(Following is the complete text of a scholarly paper written by Mr. Baker in 2002.)
Legal Services Corporation v. Velazquez and the Assertion of a "New" Swing Vote
in the U.S. Supreme Court
Perhaps a worthy nominee for the "Most Improbable Hypothetical in a Joke Only Lawyers Would Appreciate" award category might go something like this:
The Clerk of the U.S. Supreme Court calls you up regarding the big free speech case you’ve spent years defending on behalf of the government and only just argued before the high Court. The Clerk says to you, "An opinion has been issued, and I’ve got good news and bad news for you. What would you like to hear first?"
"Well, the good news, I suppose," you reply anxiously.
The Clerk begins, "The good news is that the vote was 5-4, and that Justice O’Connor joined in favor of the government’s position."
"Wow, that’s great, the swing vote!" you respond ecstatically. "So what could possibly be the bad news?"
"Well," the Clerk says, "the bad news is that Justice O’Connor’s swing vote swung to the dissent."
The legal phantasm that underlies this little moaner, that Justice Sandra Day O’Connor, who has so often provided the sine qua non "swing" vote that has permitted a majority voice, as opposed to a mere plurality, to emanate from the U.S. Supreme Court in 5-4 decisions during the Rehnquist Era, should suddenly find herself more and more impotently voting with the minority in dissent has, as of Legal Services Corp. v. Velasquez, decided February 28, 2001, transmuted itself from legal phantasm into legal fact, a transmutation that few Supreme Court observers have ever seriously contemplated. (fn1) The topsy-turvy 5-4 vote evinced in Velasquez aligned O’Connor with a minority of her conservative stalwart colleagues, The Chief Justice and Justices Scalia and Thomas, in a case that challenged Congress’ ability to limit indigent plaintiffs from using federally funded lawyers to sue for the loss of welfare benefits. Over a vigorous dissent lead by Scalia, the majority opinion, roundly applauded by the American Civil Liberties Union (fn2) and written by Justice Anthony Kennedy with Justices Souter, Ginsberg, Stevens, and Breyer joining, flatly held that "[t]he Constitution does not permit the government to confine litigants and their attorneys in this manner." (fn3).
Even more interesting, and what takes Velazquez out of the realm of pure aberration, is the fact that just this term O’Connor again found her so-called swing vote swinging impotently to the dissent, this time with the stalwart liberals Souter, Ginsberg, and Breyer, in the case of Ragsdale v. Wolverine World Wide, Inc., decided March 19, 2002. (fn4) The upshot of this Justice-alignment analysis is the discovery that a seemingly new "swing" vote is being asserted by Justice Anthony Kennedy, a man frequently described as unassuming (fn5), but whose vigorous voice clearly rings through in the opinion which he authored in Velazquez. And so it could be argued, and further be suggested by this paper, that not only is Velazquez important because of the message it presents with regard to legislative restrictions and their interaction with the First Amendment—it would also seem that Velazquez is important because of its messenger as well; an appropriate combination considering the weighty lesson that the case teaches--that it is the Judiciary’s role to prevent Congress from "wrest[ing] the law from the Constitution which is its source." (fn6),
II. HISTORICAL BACKGROUND
Before going into the various facets of the Velazquez case, some background is useful in order to set the stage. The Legal Services Corporation (LSC) was created by Congress, with bi-partisan support interestingly enough, in 1974 during the Nixon administration as a private, non-profit corporation charged with the task of ensuring equal access to the courts for Americans who otherwise would not be able to afford legal assistance. (fn7) The LSC, funded through congressional appropriation, is managed by an 11-member Board of Directors that is appointed by the President and confirmed by the Senate. (fn8) The LSC does not provide legal assistance itself; rather, it grants to local independent programs, which are selected on a competitive basis, federal funds that are to be used to finance specific program services. (fn9),
In 1996, Congress passed the Omnibus Consolidated Rescissions and Appropriations Act (OCRAA), which precluded program recipients of LSC funds from participating in "litigation, lobbying, or rulemaking, involving an effort to reform a Federal or State welfare system." (fn10)"From the beginning, it was apparent that the congressional attack on the legal services program was ideological and punitive," according to Steven R. Shapiro, ACLU National Legal Director. (fn11) The suggestion that the 1996 Republican-controlled Congress proposed and passed the OCRAA with a facial justification to "limit the federal government’s role in the private sphere," (fn12) the result of which was necessarily to silence government-funded voices advocating welfare reform, would seem in hindsight after Velazquez to be not far from the mark.
The plaintiffs in Velazquez initially filed suit in the Eastern District of New York in January 1997, claiming, inter alia, that the congressional restrictions on the use of federal funds with regard to the LSC violated the First Amendment. (fn13) The plaintiffs sought as relief a preliminary injunction to halt the implementation of the alleged unconstitutional restrictions, among which was the specific restriction that barred LSC attorneys from challenging welfare laws, a restriction the plaintiffs saw as a bar to their right of free speech under the First Amendment,
During the pendency of the suit and before a hearing on the injunction, the LSC issued final regulations on May 21, 1997, essentially incorporating the new congressional restrictions as valid limitations on the LSC, and the district court shortly thereafter denied the Velazquez plaintiffs’ motion for an injunction. (fn14) An appeal to the 2nd Circuit followed, and in January 1999, a split panel held 2-1 that all of the provisions save one, the restriction that denied funding to LSC lawyers whose representation challenged welfare rules, constituted valid limitations on the scope of legal assistance programs that receive funds from LSC. The majority in the appellate decision determined that the particular limitation on LSC attorneys to challenge welfare laws discriminated on the basis of viewpoint, and was thus unconstitutional. Both the LSC and the Velazquez plaintiffs sought certiorari, and on April 3, 2000, the U.S. Supreme Court granted both motions and consolidated the cases. (fn15) On August 28, 2000, the Court additionally granted the U.S. Solicitor General permission to participate in oral arguments. (fn16).
III. THE MESSAGE
On February 28, 2001, a divided U.S. Supreme Court affirmed 5-4 the 2nd Circuit’s decision in an opinion written by Justice Kennedy, and joined by Justices Souter, Stevens, Ginsburg, and Breyer. Noticeably absent from, and more notably not necessary for, the majority opinion which in effect invalidated a congressional enactment that the liberal faction of the Court found contrary to the First Amendment, was the usual and customary swing vote of Justice O’Connor.
Justice Kennedy’s opinion in Velazquez is succinctly brief and to the point, amounting to only about four typewritten pages, and considerably less lengthy than Scalia’s terse dissent. Nevertheless, Kennedy’s highly annotated discourse flows easily with the force of simple yet undeniable logic, reason, and conviction, and convincingly conveys not only the letter of the majority opinion, but seemingly its spirit as well. The message of Velazquez is clear, though multi-faceted, and thus its import is distributed across a wide range of legal issues involving free speech, attorneys’ professional responsibility, judicial power, and court imposed limitations on congressional authority. Each of these legal issues by and of themselves is worthy fodder for the Supreme Court, but the combination of all of these four issues in one case arguably makes Velazquez unique even among the rarified and shrinking number of cases to which the high Court grants certiorari each year. A brief overview of these individual issues in the Velazquez decision is worthwhile so that the entirety of its message can be appreciated.
The free speech component in Velazquez centers on the question of exactly what kind of speech is at issue in the case, that is, private speech versus government speech. The United States as interpleader, as well as the LSC, relied heavily on the Court’s 1991 decision in Rust v. Sullivan as support for the LSC restrictions. (fn17) The physician plaintiffs in Rust asserted that certain congressional restrictions constituted impermissible viewpoint discrimination and imposed an unconstitutional condition by requiring them to relinquish their right to engage in abortion advocacy. (fn18) Nevertheless, the Court upheld the congressional act forbidding the physicians who received federal government subsidies for family planning clinics from discussing abortion with their patients.
The Rust Court, in an opinion written by Chief Justice Rehnquist--and joined by Kennedy in the 5-4 decision--reasoned that Congress had not discriminated against viewpoints about abortion, but rather had "merely chosen to fund one activity to the exclusion of the other" so to "ensure that the limits of the federal program [were] observed." (fn19) Kennedy’s Velazquez opinion sharply distinguished Rust, however, from several angles. To begin, Kennedy concedes that viewpoint-based funding decisions can and have been sustained in instances where the government is itself the speaker, or in instances such as Rust where the government uses "private speakers to transmit information pertaining to its own program." (fn20) However, the salient point, Kennedy asserts, is that the LSC was not designed to promote a governmental message at all. Rather, Congress funded the LSC in order to provide attorneys who could represent the interests of indigent clients. (fn21) In short, the program was designed to promote private speech, and as an LSC attorney speaks on behalf of the client against the government for welfare benefits, the LSC lawyer cannot possibly be the government’s speaker, and thus would not be constitutionally amenable to congressional restriction.
Underlying Kennedy’s free speech line of thought for LSC attorneys is his, and the liberal majority’s, obvious concern that the advice that flows from an attorney to a client, and the advocacy by that attorney to the courts, is not fettered by congressional picking and choosing. And as Kennedy unequivocally describes it, the congressional limitation that is at issue in Velazquez "forecloses advice or legal assistance to question the validity of statutes under the Constitution of the United States." (fn22) Shortly after harkening back to such doctrinal bedrock as Marbury v. Madison, Kennedy eloquently writes:
An informed, independent judiciary presumes an informed, independent bar. Under [the restriction], however, cases would be presented by LSC attorneys who could not advise the court of serious questions of statutory validity. The disability is inconsistent with the proposition that attorneys should present all the reasonable and well-grounded arguments necessary for proper resolution of the case. By seeking to prohibit the analysis of certain legal issues and to truncate presentation to the courts, the enactment under review prohibits speech and expression upon which courts must depend for the proper exercise of judicial power. Congress cannot wrest the law from the Constitution which is its source. (fn23)
Additionally, Kennedy addresses a not too terribly veiled reminder to the high Court’s co-equal legislative branch:
[The LSC and the United States Solicitor General] in effect ask us to permit Congress to define the scope of the litigation its funds to exclude certain vital theories and ideas. The attempted restriction is designed to insulate the Government’s interpretation of the Constitution from judicial challenge. The Constitution does not permit the Government to confine litigants and their attorneys in this manner. We must be vigilant when Congress imposes rules and conditions which in effect insulate its own laws from legitimate judicial challenge. (fn24)
The strength and forthrightness of Kennedy’s, and the Court’s, words in Velazquez seem to underscore the import of the very words, the free speech, which were at issue in the case, words perhaps made more important by the circumstances of their utterance--that circumstance being the full and vigorous advocacy of a lawyer for the rights of a client. The clarity and weight of the message sent by Kennedy and the Court to the bar, to Congress, to the government, and to the public at large regarding the quintessential nature and sanctity of our advocacy-centered legal system arguably make Velazquez one of the most important decisions handed down by the U.S. Supreme Court in the 21st century.
IV. THE MESSENGER
Notwithstanding the significance of the message alone in Velazquez, a just as intriguing facet is added given its messenger and the "not-so-new" swing vote heir apparent, Justice Anthony McLeod Kennedy. Ronald Reagan’s third-string choice to occupy the vacancy following Justice Lewis Powell’s retirement in 1987—one may recall the confirmation debacles of Reagan’s first two choices, Robert Bork and Douglas Ginsburg—the 52 year-old Kennedy was unanimously confirmed by the Senate on February 3, 1988, and took the oath of office only a few days later. (fn25)
Kennedy’s experience as a former U.S. Court of Appeals judge seemed to serve him well in acclimating to the high Court, and it has been reported that the Chief Justice has often relied upon Kennedy to build bridges between the conservative and liberals factions of Court. (fn26) Yet, for those who follow, even casually, such things as the voting alignments of the Justices in particular Court decisions have over the past decade and a half usually perceived Justice Sandra Day O’Connor as wielding the so-called "swing" vote and who has garnered the most media attention and commentary for that role.
However, it has also been quite clear to those who follow the Court not so casually that the other half of the centrist bloc, Justice Kennedy, has always been since his arrival at the Court an important "swing" vote in many cases. (fn27) Whether it is because Justice O’Connor is just naturally a warmer personality, or whether it’s because Justice Kennedy has usually tended to shy away from any undue celebrity as a Supreme Court Justice, it seems apparent that the man-on-the-street perception is that O’Connor has for the most part been the do-or-die vote on the Rehnquist Court. With Velazquez, as well as Ragsdale now, a certain sea change appears to be occurring on the Court, and that sea change appears to be the assertion of Justice Kennedy as currently the most critical vote to sway if a Supreme Court practitioner aspires to claim a majority in any close case.
It might possibly be suggested that Kennedy has of late been cultivating a certain amount of self-empowerment on the high Court through the exercise of what may appear to be to some as an unpredictable swing vote. However, that sort of self-engrandisement strikes this writer as unlikely for a man whose consistency and competence has earned him a well-deserved reputation among his peers, and who has throughout his tenure on the Court remained loyal to his past record of decisions on many issues. (fn28) For example, Kennedy has always remained firmly conservative on crime issues and has repeatedly refused to broaden the scope of his opinions in that arena of the law. (fn29) It appears more likely, in the final analysis, that it is merely the respect and admiration Justice Kennedy has earned from his brethren colleagues over the years, coupled with an ability and personality that can win over allies and form unlikely coalitions, that has inevitably lead to the emergence of his vote as the most important swing vote upon the U.S. Supreme Court today.
The unique combination encompassing both the message, and the messenger, of the Velazquez decision arguably propels its import to the very upper reaches of the cases handed down by the U.S. Supreme Court in the 21st century. In this era of the Court, where so many close votes of 5-4 determine the compass headings of our legal system, Velazquez serves to remind us that it is the cacophony of voices, whether they be heard in the trial courts advocating a client’s right to public welfare benefits, or whether they be heard in the highest Court of the land among the Justices themselves whose role it is to impart guidance to the bar as well as the judiciary, is still an integral, vital, and vibrant facet of American jurisprudence, a facet that without which would surely make our democracy and our legal system far less luminescent not only in our own eyes, but also in those of much of the rest of the free, and longing to be free, world as well.
(fn1) Legal Services Corporation v. Velazquez, 121 S.Ct. 1043 (2001).
(fn2) Press Release dated February 28, 2001, American Civil Liberties Union (visited March 23, 2002) <http://www.aclu.org/news/2001/n022801a.html>.
(fn3) Velazquez, 121 S.Ct. at 1052.
(fn4) Ragsdale v. Wolverine World Wide, Inc., 122 S.Ct. 1155 (2002).
(fn5) Jerry Goldman, The Oyez Project, Northwestern University (visited April 9, 2002) <http://oyez.nwu.edu/justices/justices.cgi?justice_id=104&page=biography>.
(fn6) Velazquez, 121 S.Ct. at 1051.
(fn7) Legal Services Corporation, What is LSC? (visited April 4, 2002) <http://www.lsc.gov/welcome/wel_who.htm>.
(fn11) Press Release dated February 28, 2001, American Civil Liberties Union (visited March 23, 2002) <http://www.aclu.org/news/2001/n022801a.html>.
(fn12) Heather McDonald, On the Docket, Medill School of Journalism (visited February 2, 2002) <http://www.medill.northwestern.edu/docket/cases.srch?-database=docket&-layout=lasso&-res>.
(fn13) Velazquez v. Legal Services Corporation, 164 F. 3d 757, 757 (2nd Cir. 1999).
(fn14) Id. at 762.
(fn15) Legal Services Corporation v. Velazquez, 120 S.Ct. 1559 (2000).
(fn16) Heather McDonald, On the Docket, Medill School of Journalism (visited February 2, 2002) <http://www.medill.northwestern.edu/docket/cases.srch?-database=docket&-layout=lasso&-res>.
(fn17) Rust v. Sullivan, 500 U.S. 173 (1991).
(fn18) Id. at 192.
(fn19) Id. at 193.
(fn20) Legal Services Corporation v. Velazquez. at 541.
(fn21) Id. at 542.
(fn22) Id. at 544.
(fn23) Id. at 545.
(fn24) Id. at 548.
(fn25) Jerry Goldman, The Oyez Project, Northwestern University (visited April 9, 2002) http://oyez.nwu.edu/justices/justices.cgi?justice_id=104&page=biography.