Federal Courts and Nominations

The new term of the Supreme Court offers cases that could overturn precedent


The U.S. Supreme Court begins a new term today with one new member and with a cavalcade of court-watchers looking for clues to where this group is headed.


The cases on the high court’s docket may not rattle the rafters of justice — nothing expected to inflame the debates over abortion or gay marriage. But legal scholars see portals that could reveal much about the court’s ideological split and whether incoming Justice Sonia Sotomayor changes the dynamics.


Besides Sotomayor, the justices under closest scrutiny are Anthony Kennedy, who commonly wields the swing vote in 5-4 decisions, and Chief Justice John G. Roberts.


“The real question remains not so much how will the court change, but how might Justice Kennedy change?” said Georgetown University professor David Cole. “It’s all about Kennedy. Which side is going to move most effectively in persuading him?”


Under Roberts’ leadership, the court has tended to direct its rulings toward narrow and less controversial aspects of case law. But at any moment, he and his fellow conservatives could cast a wider net — even if it means upending prior rulings.


Roberts has stated he is disinclined to do that.


Ever since Sandra Day O’Connor’s retirement from the high court in 2006, “it’s been moving further to the right,” however subtly, said Doug Kendall, president of the Constitutional Accountability Center, a judicial think tank.

“After this term, we’ll have a much better grasp of understanding how willing and aggressively the conservative bloc will be in overturning precedent,” Kendall said.


At least two rulings to be made — involving the constitutionality of corporate campaign-finance restrictions, and whether state and local governments must adhere to Second Amendment rights regarding handguns — could reverse past decisions of the court, experts said.


Such action would please conservative talk-radio host Jay Se

kulow, chief counsel for the American Center for Law and Justice: “You’ll see this court firming up its judicial philosophy, confident enough to make the hard decisions.”


Sotomayor replaces David Souter, an appointee of President George H.W. Bush who consistently weighed in with the court’s liberal bloc of justices. If that alliance holds, as many observers anticipate, 5-4 splits could continue to mark major decisions.


Marge Baker of People for the American Way, a liberal advocacy group, said she hoped Sotomayor’s candor and background would have a moderating effect on the overall court.


Citing the appointment of the first black justice, Thurgood Marshall, in the 1960s, “his mere presence on the bench totally changed the perspective of his colleagues,” Baker said.


“Conservative jurisprudence rather than activism — that was the promise” given by Roberts at his 2005 confirmation hearings before the Senate, she said.


“Instead, I think you’re going to see an effort to change the law and roll back legal protections that have been there for some time.”


Whatever surprises the 2009-10 term holds, the Roberts court has maintained favorable ratings from the public. As Congress and President Barack Obama have seen their approval scores slide, the high court has seen its public approval go the other way.


A Gallup Poll last month found that 61 percent of Americans approve of “the way the Supreme Court is handling its job.” That is up from 42 percent four years ago.


“A few times you’ll see movement in people’s opinion of the Supreme Court, but not very often,” said Karlyn Bowman, who tracks polls for the American Enterprise Institute.


“If your mission is fairly clear and narrowly defined, like the role of the military, Americans tend to support you.”




Religious symbols, football jerseys, tasteless videos and other issues the high court will weigh this term carry repercussions.




Question: Is it “cruel and unusual” to sentence juvenile offenders to life without parole if nobody died from their crimes?


Case: In Sullivan v. Florida, nobody’s demanding freedom for Joe Sullivan — convicted of raping an elderly woman when he was 13. His attorney just wants Sullivan to be eligible for parole someday.


Betting line: The tough-on-crime crowd will be eyeing Sotomayor, a former prosecutor.




Question: Does a big cross honoring war veterans violate the First Amendment ban on state-sanctioned establishment of religion?


Case: After Congress blocked removal of the cross at Mojave National Preserve, an appeals court ruled in Salazar v. Buono that a Christian symbol on public property was too much of an endorsement. Arguments this week.


Betting line: Court’s ideological split will show. Your call, Kennedy?




Question: Are statutory limits on corporate political spending constitutional?


Case: Citizens United v. Federal Election Commission examines whether campaign-funding laws applied to financing a film that attacked Hillary Clinton during the presidential election. The court heard arguments last month in a rare special session.


Betting line: Spotlight on the chief justice. This will test his willingness to reverse past rulings.




Question: Is it right for the 32 teams of the National Football League to do business as one huge operation?


Case: Citing federal anti-trust laws, the Illinois-based plaintiff in American Needle v. NFL seeks to challenge the league’s one-for-all marketing partnership with Reebok.


Betting line: The Roberts court has been kind to big business. Sotomayor won’t change that.




Question: Does the Bill of Rights extend to videos portraying animal cruelty?


Case: Defendant in U.S. v. Stevens sold dog-fight videos despite a 1999 federal law against animal-abuse depictions. Government argues such material has no place in the market.


Betting line: Even free-speech advocates love dogs. But is the law too vague?




Question: Should the right of people “to keep and bear arms” apply to state and local governments?


Case: Bans on handgun possession in and around Chicago paved the way forMcDonald v. City of Chicago.


Betting line: After decades of the Supremes side-stepping the Second Amendment, gun groups smell another win.


This article can be found in its original form here.

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