"It is not too early to identify the sleeper case of the last Supreme Court term."

"In an otherwise minor decision about a municipal sign ordinance, the court in June transformed the First Amendment."

Though just two months old, [Reed v. Town of Gilbert] has already required lower courts to strike down laws barring panhandling, automated phone calls and “ballot selfies.”

The ordinance in the Reed case discriminated against signs announcing church services in favor of ones promoting political candidates....

The key move in Justice Thomas’s opinion was the vast expansion of what counts as content-based [and thus subject to strict scrutiny]. The court used to say laws were content-based if they were adopted to suppress speech with which the government disagreed.

Justice Thomas took a different approach. Any law that singles out a topic for regulation, he said, discriminates based on content and is therefore presumptively unconstitutional.

Securities regulation is a topic. Drug labeling is a topic. Consumer protection is a topic....

As predicted, the 7th Circuit requires abstention in the John Doe investigation case, leaving it to the state judge to address the constitutional questions.

Here's the PDF of the opinion.

After the oral argument on September 9th, I wrote: "I predict the prosecutors will win in this case, but mainly because the John Doe investigation can and should be shut down by the state court judge." And that seems to be what happened. I'm going to read the whole thing and get back to you.

ADDED: The opinion is about the scope of the Younger abstention doctrine, which requires federal courts to refrain from enjoining an ongoing proceeding in state court, on the theory that the state court judge ought to handle the federal questions — even federal constitutional question — that arise in the context of that proceeding. The difficult part here is that in this case there is a state court judge overseeing a John Doe investigation, and, as Judge Easterbrook, writing for the 3-judge panel says (citations omitted):

7th Circuit reinstates Wisconsin voter ID law.

The Milwaukee Journal Sentinel reports.

After blogging this morning about the impending oral argument — here — I listened to it — here — all the way to the end where the state asks the court to reinstate the law today, and I look and see that, in fact, has already happened.

The MJS reports that the court issued an order allowing Wisconsin to enforce the law for the upcoming elections. The court noted the way the Wisconsin Supreme Court's decision "reduces the likelihood of irreparable injury, and...  changes the balance of equities and thus the propriety of federal injunctive relief, and... the state's probability of success on the merits."

The judges on the panel were former Wisconsin Supreme Court Justice Diane Sykes along with Frank Easterbrook and John Tinder. At the oral argument today, they were quite skeptical of the power of the district judge to reject the importance of preventing in-person voter fraud.

In the 2008 case upholding the Indiana voter ID law, Crawford, the U.S. Supreme Court had accepted that the state had an important interest in preventing fraud and in promoting public confidence. In the current case, the district judge, Lynn Adelman, held a trial and listened to an expert witness who opined that it's unlikely that anyone would engage in this kind of fraud. Those who are challenging the Wisconsin law want the appeals court to defer to his factfinding, but Sykes and Easterbrook resisted the notion that hearing opinion witnesses could enable a trial judge to supersede the opinion of the U.S. Supreme Court.

"Prosecutors accuse Gov. Scott Walker of personally overseeing a sweeping 'criminal scheme' to illegally coordinate fundraising and campaign activity among conservative groups..."

"... in a broad effort to help him — as well as Republican senators — fend off recalls targeting them in 2011 and 2012, court documents unsealed Thursday show."

In the documents, which were unsealed by [Seventh U.S. Circuit Court Judge Frank H. Easterbrook] court judge Thursday morning, prosecutors described what they called a "criminal scheme" to circumvent state campaign finance and election laws....

Lawyers for Wisconsin Club for Growth respond:

"These documents show how the John Doe prosecutors adopted a blatantly unconstitutional interpretation of Wisconsin law that they used to launch a secret criminal investigation targeting conservatives throughout Wisconsin. That legal theory has now been rejected by two courts," said Andrew Grossman of Baker Hostetler, the law firm representing Club for Growth. "Sunlight is the best disinfectant, and this is a story that needs to be told to prevent more abuses and to hold the John Doe prosecutors accountable for violating the rights of Wisconsinites."

IN THE COMMENTS: rcommal said:

Note the inconsistent use of tense in this piece. It's the "tell" that its goal is not to illuminate but to mislead. Reportage, my ass.

ADDED: The NYT says:

Legal filings by the prosecutors provided a rare view of the inner workings of a far-flung network of conservative nonprofit groups that have come to play a decisive role in national and state elections, moving hundreds of millions of dollars into campaigns by avoiding traditional political action committees that face tougher disclosure requirements.

Some of the groups, in Wisconsin and elsewhere, appear to serve as little more than conduits for funneling money from donors around the country to an array of allied organizations with ties to specific constituencies, such as gun owners or abortion opponents. Prosecutors allege that the groups in Wisconsin coordinated closely with allies of Mr. Walker both in the state and in Washington, with Mr. Walker’s campaign consultants simultaneously advising him on political strategy and television advertising while also raising money and directing the activities of an array of outside groups.

"The U.S. Court of Appeals for the Seventh Circuit, en banc, ruled that it violated the First Amendment’s no-religious-establishments rule..."

"... to hold high-school graduation ceremonies in a particular church building because of that particular building’s 'proselytizing environment.'"

There was no dispute that the reasons for holding the ceremonies in the building had nothing to do with evangelism and everything to do with space and comfort. But, because the building is “indisputably and emphatically Christian,” the court majority concluded that holding the ceremonies in this building both “endorsed” religion and “coerced” religious exercise....

Here's the opinion. In dissent, Judge Easterbrook says: "It is easier to justify graduation in a church than voting in a church." I agree. My voting place is in a church, and I don't think that should be allowed.

No one should feel obliged by conscience or faith to give up his influence in governance—and that’s what voting represents. A rule of neutrality between religious and secular sites permits government to use religious venues for graduation and voting alike, though I do not think it wise to use a church for either function.

So Judge Easterbrook agrees with me.

But acting inconsiderately toward persons whose sincere views disfavor conducting public business in religious venues differs from establishing a religion.

Now, Judge Posner — also dissenting — writes with confident expectation that the Supreme Court will pay attention:

The case law that the Supreme Court has heaped on the defenseless text of the establishment clause is widely acknowledged, even by some Supreme Court Justices, to be formless, unanchored, subjective and provide no guidance....

Tom Goldstein predicts that Obama will nominate Elena Kagan for the Supreme Court.

He'd already predicted it, and he still thinks so:

It seems clear to me that none of the three nominees—including even Diane Wood—will generate a knock-down, drag-out fight in the Senate. In effect, the White House preempted the prospect of an all-out war by not including the leading liberal prospects in its published short list of finalists. The Bush White House took a similar approach when it nominated the conservative Samuel Alito, but passed on then-Fourth Circuit Judge Michael Luttig, to whom Democrats had signaled their very strong objections....

More surprising, institutional Republicans have not been particularly vocal in their objections to the potential nomination of Diane Wood. Judge Wood’s abortion-related opinions would mean that she would receive only in the range of 55 to 60 votes. But confirmation would still be all but assured....

It is ... true that Judge Wood is the nominee whom progressives would prefer to see nominated, by an order of magnitude. While criticism from the left of General Kagan (who as the perceived front runner has received the most attention) and Judge Garland has been limited to a few, very vocal liberal commentators, it nonetheless exists.... So to the extent that Wood presents the potential downsides of some fight in the Senate and mobilizing conservatives in the election, she has the upside of appealing to and mobilizing core constituencies of the president....

On the ability of the three to persuade a conservative member of the Court such as Justice Kennedy, all have significant strengths as well.... Diane Wood is not only personally charming but has gone toe to toe with Judges Easterbrook and Posner and persuaded them on significant issues. Elena Kagan has significant demonstrated success in working with conservatives at Harvard Law School, which is an exceptionally challenging environment, and has parallels to the relationships at the Court. But she has never been a judge, and would as a consequence presumably take longer than the others to adapt to the new role.

I don't quite get it. Why won't Obama give liberals what they want? The strongest argument for Kagan over Wood seems to be age. Kagan's 49. Wood is 59.

"Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon."

A unanimous 7th Circuit panel, consisting of Easterbrook, Bauer, and Posner, adhering to Supreme Court precedent, says that the 2d Amendment is not incorporated in the 14th Amendment and thus does not apply to the states. Easterbrook's opinion (PDF) — emphasizes federalism — the value of decentralized decisionmaking on the subject of gun rights:

One function of the second amendment is to prevent the national government from interfering with state militias. It does this by creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government.

Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868. (The fourteenth amendment was ratified in 1868, making that rather than 1793 the important year for determining what rules must be applied to the states.) Suppose a state were to decide that people cornered in their homes must surrender rather than fight back—in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens....

Our hypothetical is not as farfetched as it sounds. Self-defense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force when retreat is not possible. Wayne R. LaFave, 2 Substantive Criminal Law §10.4 (2d ed. 2003). An obligation to avoid lethal force in self-defense might imply an obligation to use pepper spray rather than handguns. A modification of the self-defense defense may or may not be in the best interest of public safety—whether guns deter or facilitate crime is an empirical question, compare John R. Lott, Jr., More Guns, Less Crime (2d ed. 2000), with Paul H. Rubin & Hashem Dzehbakhsh, The effect of concealed handgun laws on crime, 23 International Rev. L. & Econ. 199 (2003), and Mark Duggan, More Guns, More Crime, 109 J. Pol. Econ. 1086 (2001)—but it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people’s hands since 1868. The way to evaluate the relation between guns and crime is in scholarly journals and the political process, rather than invocation of ambiguous texts that long precede the contemporary debate....

Chicago and Oak Park are poorly placed to make these arguments. After all, Illinois has not abolished self-defense and has not expressed a preference for long guns over handguns. But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”); Crist v. Bretz, 437 U.S. 28, 40–53 (1978) (Powell, J., dissenting) (arguing that only “fundamental” liberties Nos. 08-4241, 08-4243 & 08-4244 9 should be incorporated, and that even for incorporated amendments the state and federal rules may differ); Robert Nozick, Anarchy, State, and Utopia (1974). Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.

The panel adheres to Supreme Court precedent, but it also lays out the federalism argument in clear bold terms for future consumption by the Supreme Court.

Do you think it is good for the rules about whether one must retreat before using deadly force or the choice of self-defense weapons and so forth to be subject to variation from state to state? What do you think the famous Brandeis quote — "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country" — in this context?

AND: See how this helps the Sotomayor nomination?

Sotomayor was labeled “anti-gun” by Gun Owners of America for refusing to extend to the states the U.S. Supreme Court’s 2008 decision overturning a Washington, D.C., handgun ban. The group said a January ruling by a three-judge panel that included Sotomayor displayed “pure judicial arrogance” for declining to throw out a New York state weapons law.

But Easterbrook and Posner — "two top conservatives on the federal bench" — are on the same side.

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled this year that states are bound by the Second Amendment’s protection for an individual’s right to bear arms -- in contrast to the three-judge panel in New York that included Sotomayor....

Mark Tushnet, a law professor at Harvard University in Cambridge, Massachusetts, suggested it was the 9th Circuit approach that is “activist.”

“Judge Sotomayor’s position, and the apparent positions of Judges Posner and Easterbrook, is far more in the mainstream,” Tushnet said....

In a brief, unsigned opinion, [Sotomayor's 2d Circuit] panel said it lacked authority to overturn the ban because that is a matter for the Supreme Court. The high court has “the prerogative of overruling its own decisions,” the opinion said.

And that's exactly what the 7th Circuit said.

Ah, the gods of Supreme Court confirmation are smiling on Sonia Sotomayor. Now, I will place my bet that the white firefighters will lose Ricci v. DeStefano.