Campaign Case May Have Set Course for Supreme Court
WASHINGTON - As the Supreme Court nears the
midpoint of its annual term and prepares to hear several momentous
cases, one question looms: Will the justices' split decision reversing
past rulings and allowing new corporate spending in political races set
the tone for the term, or will Citizens United v. Federal Election Commission be an exception?
"Is this a turning point?" asks Pamela Harris,
director of Georgetown Law's Supreme Court Institute. Harris notes that
Chief Justice John Roberts'
concurring opinion in the campaign-finance case defended reversing past
rulings that have been, as Roberts wrote, "so hotly contested that
(they) cannot reliably function as a basis for decision in future
"That is an incredibly muscular vision of when
you would overrule precedent," which usually guides justices in new
cases, Harris says. "That makes it look like this is a court that's
ready to go."
Several pending cases - some that already have
been argued, some that will be argued in upcoming weeks - are likely to
show the reach of the Roberts Court and its boldness.
Temple University law professor David Kairys expects the Citizens United
to distinguish the Roberts Court for years. "I think it will actually
define more than this particular term," he says. "It might define the
CAMPAIGN SPENDING: New era
Among the most closely watched disputes: whether
the Second Amendment right to keep and bear arms covers regulation by
states and cities; whether people who signed petitions for a ballot
referendum against gay marriage have a First Amendment right to keep
their names private; and whether a board set up to regulate public
accounting firms after the Enron and Worldcom scandals violates the separation of powers and infringes on the executive branch.
That last case, Free Enterprise Fund v. Public Company Accounting Oversight Board,
could challenge the legal consensus that Congress has the power to
establish and set rules for certain independent agencies and their
members within the executive branch. Some conservatives, including
Justice Antonin Scalia, have argued in some situations that only the president can remove executive officials.
Big cases ahead
Citizens United reinforced the court's
caustic ideological divide and may have signaled what's to come in the
nearly 70 cases that await resolution through July.
The same acrimonious split was seen earlier in January when the five-justice conservative majority - Roberts, Scalia and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito- blocked broadcast of a federal trial in San Francisco on the constitutionality of California's ban on same-sex marriage.
ON THE DOCKET: Major cases facing the Supreme Court
The majority in the dispute over Proposition 8 -
the 2008 voter initiative that banned gay marriage - said lower-court
judges failed to follow procedures for notifying the public about the
potential broadcasts, and it accepted arguments that the broadcasts
could lead to the harassment of witnesses who had supported the
same-sex marriage ban.
Dissenters countered that "the public interest
weighs in favor of providing access to the courts" and accused the
majority of "extraordinary intervention" in local affairs.
Kairys sees the current majority as the most
conservative in decades. "It really is their time. They seem to have
this undercurrent of, 'Let's do the things we want to do while we're in
President Obama appointed Sotomayor last year and may get another appointment or two. But the Democratic
president's nominees would likely succeed liberals, who are among the
older members of this bench. Stevens will turn 90 in April, Ginsburg 77 in March. Roberts, who is 55, and his fellow conservatives are generally the younger justices.
Accusations of activism
Of the 11 signed opinions the court has issued for the term, Citizens United was the most consequential.
Kairys argues that because of how money shapes politics, Citizens United marks "a change in the whole system of democracy."
Notre Dame law professor Richard Garnett is among analysts who see it as having less of an impact.
"Citizens United did not really
dramatically change the presence of 'corporate' money in politics," he
says. "It was there before, and always will be, for better or worse."
Yet Garnett is watching pending constitutional cases.
In Stevens' dissent in Citizens United, he referred to the "majority's agenda" and strongly suggested the majority was not "serious about judicial restraint."
Roberts, who said during his confirmation
hearings in 2005 that his job would be "to call balls and strikes and
not to pitch or bat," defended himself against criticism of
The chief justice cited what he saw as flaws in
past campaign-finance cases that needed to be addressed and wrote,
"There is a difference between judicial restraint and judicial