What More Damage to Expect from Roberts Court?

Published on Monday, February 8, 2010 by USA Today

Campaign Case May Have Set Course for Supreme Court

by Joan Biskupic

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?

Nearly 70 cases await resolution this term. Front row, from left: Justice Anthony Kennedy, Justice John Paul Stevens, Chief Justice John Roberts, Justice Antonin Scalia and Justice Clarence Thomas. Back row: Justices Samuel Alito, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

"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 cases."

"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 Roberts Court."

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.

Dissenting were the same four who protested in Citizens United: Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

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 control.' "

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 conservative activism.

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 abdication."

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