Here is this week’s column from Roll Call. It explores the interesting selection of cases this term for the Supreme Court. Justice Sonia Sotomayor’s colleagues could not have selected cases more carefully to address areas of uncertainty from her confirmation hearing. Whether by accident or design, this docket is front-loaded with cases that will force Sotomayor to show her true colors in the first few months of her tenure as an associate justice.
Justices in the past have often described the first week of a new session as a lot like the start of a new school year with old friends talking about the summer and new friends getting acquainted. Of course, this new term starts with a “new kid” of the block Justice Sonia Sotomayor. Many people are speculating whether she will be a BFF for the liberals or, like Justice Anthony Kennedy, an uncertain friend to both sides? For those looking for the new line-up on the Court, they will not have to wait long. The docket is front-loaded with cases raising fundamental questions where Sotomayor will have to speak clearly on her view of constitutional protections.
This term will show whether we have not one but two consistent swing justices. Since the departure of Sandra Day O’Connor, Anthony Kennedy is often the only thing standing between a constitutional right and its reduction or expansion.
For Sotomayor to assume O’Connor’s role would be a bitter thing for liberals who expected a more consistent liberal nominee from Obama – particularly given Bush’s appointment of two consistent conservative justices. With control of Congress and Obama in the White House, it would be like having the capital for a beach mansion and ending up with a condo time share.
The Court has selected cases that may rekindle old ideological allegiances among the justices, forcing both Sotomayor and Kennedy to return to “first principles” in their views of free speech, federalism, free exercise of religion and gun rights. During her confirmation hearing, Sotomayor was hounded by questions in two areas: free speech and gun rights. To a remarkable degree, her colleagues have chosen cases almost tailor-made to force Sotomayor to choose sides on those very questions. As if to personalize the term further for Sotomayor, the justices also loaded the docket with corporate cases – an area where Sotomayor (who practiced corporate law)is likely to depart from her liberal colleagues.
Last month, the Court accepted a major handgun case, McDonald v. Chicago, that will define the scope of the recently recognized individual right under the Second amendment. The Seventh Circuit ruled that gun ownership is not a “fundamental right” that applies to the states. That is precisely the position reached by Sotomayor while on the Second Circuit in two controversial cases. She argued that this was a question that had to be left to the Supreme Court and that, absent such a ruling, it is assumed that the right only applies to the federal government. Now, she will help answer the question posed for the Court. For her and her colleagues, the decision will pit state rights against gun rights.
Sotomayor was also criticized by liberals for her voting in an important case to curtail free speech rights of high school students. She will now rule on two cases that raise fundamental questions of free speech. These cases will also test the solidity of conservative block on the Court, particularly Justice Kennedy.
The first of the two cases was heard in a rare September re-argument, involving “Hillary: The Movie” – a 90 minute film released during the presidential election that is a virtual diatribe against Clinton. At issue is the constitutionality of one of the major parts of the campaign finance law and whether corporations should enjoy free speech rights like individual citizens.
Another potentially sweeping case will be heard on the second day of the new term: United States v. Stevens. The case will test the Court’s willingness to stand on the principle of free speech to protect material that contains cruel and disturbing content. Robert J. Stevens of Pittsville, Va., was convicted under a federal law for selling videotapes of fighting pit bulls and sentenced to 37 months in prison. The case law has largely drawn a bright line between criminalizing the conduct (here dog fighting) as opposed to speech containing such images or photographs. If there is an exception for material showing cruelty to animals, how about cruelty to women, police officers, or just cruelty?
In addition to these two free speech cases, the Court also accepted cases that will test press rights and religious rights under the First Amendment. In Department of Defense v. ACLU, the Court will decide whether President Obama can withhold detainee abuse photographs simply because they would embarrass the United States and anger Muslims. In Salazar v. Buono, the Court will consider an 8-foot-tall cross in the Mojave National Preserve in Southern California — erected by the Veterans of Foreign Wars in 1934. The veterans are claiming a secular purpose for the cross in what would be a major exception under the separation of church and state. As with the Stevens case, they are the type of cases where First Amendment advocates fear Sotomayor or Kennedy might abandon bright-line rules for compromise decisions.
Likewise, the Court will have to reexamine the Eighth Amendment in two companion cases from Florida — Graham v. Florida and Sullivan v. Florida. These cases raise the question of whether the Eighth Amendment’s protection against cruel and unusual punishment apply to juveniles in non-homicide cases. The Court previously adopted a different standard for juveniles in death cases but these cases will address whether a similar standard should be applicable to sentences of juveniles for life without parole.
If her years on the Second Circuit are any measure, Sotomayor is likely to continue her role as a swing voter in some areas. Of course, she could be a surprise (like Souter) in tilting sharply to the left of the Court. Either way, the members appear to have picked a docket that will “assort out” the class of 2009 — and there may be two justices left in the middle at the end of it.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University where he teaches a course on the Supreme Court.