Three Big Cases, One Monumental Test for the Roberts Court

CAC Releases Supreme Court Preview for Fall 2009
Today, Constitutional Accountability Center (CAC) is releasing a preview of the Supreme Court’s docket this fall, highlighting three cases that will prove an important test of the Roberts Court’s willingness to overturn prior rulings of the Court:

  • Citizens United v. FEC, already widely discussed here due to its rare pre-Term argument, focuses a spotlight on Chief Justice Roberts, both because the issue of adherence to precedent is so squarely presented — the Court itself ordered briefing on whether it should overturn two prior rulings that upheld regulation of corporate independent spending in candidate elections – and because three of Roberts’ conservative colleagues, including, most importantly, Justice Kennedy, have already expressed a willingness to overrule these cases. If the Court steps back from the cliff and declines to overturn those cases — Austin v. Michigan Chamber of Commerce and McConnell v. FEC — the credit (or blame, depending on your perspective) will be squarely placed at Roberts’ feet. By the same token, a ruling overturning these important precedents and unleashing unlimited corporate spending on elections – a huge “jolt” to our legal system by anyone’s measure –would also be his responsibility.
  • In Free Enterprise Fund v. Public Company Accounting Oversight Board, a cast of conservative all-stars – including Ken Starr, Viet Dinh and Michael Carvin for the petitioners, and Amici including former Attorneys General Robert Barr and Edwin Meese – is asking the Supreme Court to hold unconstitutional the Public Company Accounting Oversight Board (known colloquially as “peek-a-boo”) established in the aftermath of the Enron scandal, because Congress sought to insulate the Board from presidential control. The case provides Roberts and Alito with their first opportunity as Justices to weigh in on the “unitary executive” theory they helped develop during their work as young lawyers for the Reagan Administration.
  • In McDonald v. City of Chicago, and its companion case, NRA v. City of Chicago, pending now on certiorari review, the Court is being asked to back away from century-old rulings holding that the Second Amendment does not apply against the states. If the Court decides to review one of these cases, it will have to decide not just whether, but how, the Fourteenth Amendment applies or “incorporates” the Second Amendment against the states, a matter that raises profoundly important questions about the Constitution and presents a dilemma for professed originalists like Justice Scalia.

Each of these cases involves a central objective of the conservative legal movement: equalization of corporate and individual speech in Citizens United, expansion of executive powers in Free Enterprise Fund, and stronger Second Amendment rights in McDonald. In all three cases, litigants are pushing the Court to make significant changes to existing case law based on arguments about constitutional first principles. As we discuss in today’s Preview, the big question this term is how the Court’s conservatives navigate these far-reaching arguments in these three significant cases. They could be minimalists and refuse each of the opportunities to make bold constitutional changes. They could get it right, and move boldly in McDonald and rule narrowly in Citizens United and Free Enterprise Fund. But if they move boldly in Citizens United, support profound changes in Free Enterprise Fund, and discover minimalism in McDonald, they will be following a result-oriented path of least resistance.

In addition, earlier today CAC President Doug Kendall appeared on a panel previewing the Supreme Court’s 2009-2010 Term, hosted by the American Constitution Society. More info regarding the panel is available here, and we will post video once it becomes available.