Coverage of Monday’s oral argument in Jones v. Harris Associates continues.  Conglomerate has three articles on the case: a piece by William Birdthistle assesses the case’s implications for the executive branch, highlighting the ten-minute appearance by Assistant to the Solicitor General Curtis Gannon on behalf of the United States, while Renee Jones argues that the questions raised by Jones “reflect an apparent shift in how judges and government officials are thinking about the role of government in business.”  Emphases on “independence” and “market efficiency” in the context of pay decisions, Jones argues, are “beginning to lose force,” suggesting that the government might adopt a more active approach to compensation issues in the future.  Joan Heminway, also writing for Conglomerate, addresses the ambiguity over what Congress meant by the term “fiduciary duty,” one of the key issues at stake in Jones.  At The Atlantic, Mike Conkzal covers the case, describing the lower-court proceedings and clarifying the key questions before the Court.

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The debate is heating up over one of November’s first arguments: three publications have coverage today on Jones v. Harris Associates (08-586), which will be argued before the Supreme Court on Monday.  At the Wall Street Journal, Jess Bravin and Jane J. Kim assess the case’s core issues, while USA Today has an article detailing Jones’ background, enumerating the arguments, and speculating on potential outcomes, including the possibility that the Court will order mutual funds to pursue stricter disclosure policies with regard to their spending.  Conglomerate Blog also previews Jones, offering a detailed recap of the lower court proceedings.

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Joan Biskupic will discuss her new biography of Justice Scalia, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia, at the National Constitution Center in Philadelphia on Wednesday, November 18.  Marcia Coyle of The National Law Journal will moderate.  Biskupic is the Supreme Court correspondent for USA Today and also authored a biography of Sandra Day O’Connor.  Details on the event are available here.

Updates on the living legacies of Iqbal, Caperton, Medtronic, and Heller appear after the jump.

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At Balkinization, Barry Friedman analyzes the Court’s docket for the new Term and notes that business and criminal cases have dominated the Court’s recent cert. grants.  Observing that these cases are less likely than some others to divide the Justices on ideological grounds, he hypothesizes that this Term’s docket may result from “defensive denials” – that is, the practice by which a Justice votes to deny a petition for certiorari when her interpretation of the case is likely to be overruled on the merits.  Because Justices on the current Court are sometimes wary of their colleagues’ positions on ideologically controversial issues, Friedman reasons, some may be unlikely to grant cert. in cases addressing those concerns.

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As the Court launches into its new session, major media outlets continue to roll out their previews of the term.  CNN’s includes speculation about the possible retirement of 89-year-old Justice Stevens and how another nomination might affect the Court’s balance going forward.  The Washington Post polled a variety of legal experts for their views on the upcoming term; as with other published previews, most of those polled focused on the effect that Justice Sotomayor may have on the Court’s proceedings.

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With its five conservative justices and Chief Justice Roberts at the helm, the Court was expected to take bold strides to the right last year.  Highlighting last term’s NAMUDNO v. Holder case on the Voting Rights Act, decided by a surprising 8-1 margin, Barry Friedman at The New Republic argues that the Court is actually following a “minimalist” approach by issuing narrower rulings, declining to overturn popular laws, and taking low-profile cases on such sensational issues as commercial arbitration.   Nor have the conservatives demonstrated solidarity: occasionally members of the conservative majority, especially Justice Kennedy, write separate opinions fracturing the force of a decision, or even break ranks for a liberal win.  Friedman offers the explanation that justices fear being overruled by Congress, as happened this year when Congress passed the Lilly Ledbetter Fair Pay Act to undo the Court’s ruling in Ledbetter v. Goodyear.

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Following yesterday’s release of ten new cases the Court agreed to hear at conference on Tuesday, the media is abuzz with coverage of the expanded OT09 docket.

The center of attention is McDonald v. Chicago, a case challenging a Chicago handgun ban on Second Amendment grounds.  The Court now has the opportunity to decide whether the individual right to bear arms it declared in DC v. Heller last year applies against city and state governments.  The New York Times, the Washington Post, the Wall Street Journal, and the National Law Journal cover the cert. grants, focusing on McDonald.  Observers predict that the Court, led by the five justices of the Heller majority, are likely to strike down the gun law and “incorporate” the Second Amendment against local governments.  All note that Justice Sotomayor sat on a similar case before the Second Circuit that concluded only that the Supreme Court alone could decide that issue.

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Taking on a major new constitutional dispute over gun rights, the Supreme Court agreed on Wednesday to decide whether to apply the Second Amendment to state, county, and city government laws.  In another major case among ten new grants, the Court said it will rule on the constitutionality of one of the government’s most-used legal weapons in the “war on terrorism” — a law that outlaws “material support” to terrorist groups.

The Court had three cases from which to choose on the Second Amendment issue — two cases involving a Chicago gun ban, and one case on a New York ban on a martial-arts weapon.  It chose one of the Chicago cases — McDonald v. Chicago (08-1521) — a case brought to it by Alan Gura, the Alexandria, VA., lawyer who won the 2008 decision for the first time recognizing a constitutional right to have a gun for personal use, at least in self-defense in the home (District of Columbia v. Heller).  A second appeal on the Chicago dispute had been filed by the National Rifle Association (NRA v. Chicago, 08-1497).  Presumably, the Court will hold onto that case until it decides McDonald; the same is likely for the New York case, Maloney v. Rice (08-1592) — a case in which Justice Sonia Sotomayor had participated when she was a judge on the Second Circuit Court.

The Court, while agreeing to return to its monitoring of legal issues stirred up by government anti-terrorism efforts, did not take any immediate action on the basic question of federal judges’ power to decide the fate of detainees held at the U.S. military prison camp at Guantanamo Bay, Cuba.  It had examined anew a case left over from the prior Term — Kiyemba v. Obama (08-1234) — but the case was not on the grant list released Wednesday morning.  The next opportunity for the Court to announce some response to that case will come on Monday, when the new Term formally opens. The specific issue in the case is whether a federal judge may order the release into the U.S. of a detainee no longer considered to be an “enemy.” Read the rest of this entry »

The October issue of the ABA Journal Magazine is out and brimming with commentary on the Court.  The Magazine likens the modern confirmation process of Court nominees to a “kabuki dance,” because Senators ask useless but inflammatory questions for the cameras and the candidates are too tight-lipped to reveal a good sense of their judicial philosophy.  The article traces this trend back to Justice Ginsburg’s confirmation, which occurred soon after the confirmation hearings of Clarence Thomas and Robert Bork, whose character and conservative judicial philosophies were viciously attacked.  Four authors propose reforms to the process: David Stras suggests that nominees be required to analyze five previous Court decisions, Stephen Carter wants to focus on nominees’ professional qualifications rather than disqualifications, Seth Rosenthal proposes a courtroom setup in which litigators ask questions, and Richard Davis is ready to dispense with hearings altogether for elections.

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The Supreme Court will consider two new cases on the scope of individuals’ Second Amendment right to have guns at its first Conference for the new Term, on Sept. 29, according to the Court’s electronic docket.  Both petitions challenge a Seventh Circuit Court ruling that the Amendment does not restrict gun control laws adopted by state, county or city government, but applies only to federal laws.  The cases are National Rifle Association v. Chicago (08-1497) and McDonald v. Chicago (08-1521).

The so-called “incorporation” issue is the most significant sequel issue raised in the wake of the Court’s 2008 decision in District of Columbia v. Heller, recognizing for the first time a personal right to have a gun for self-defense, at least in one’s home.

If the Court agrees to hear the new cases after its first look, that could be announced as early as the day after the Conference — that is, on Wed., Sept. 30.  The first Conference of a new Term customarily is held in advance of the Term’s formal opening; this year, the Term starts Oct. 5.

The Court has not yet scheduled a time to consider another pending case on the Second Amendment issue — Maloney v. Rice (08-1592). The response in that case is now due on Aug. 28.  The new Justice, Sonia Sotomayor, took part in the Maloney case when she was on the Second Circuit Court.  Like the Seventh Circuit, the Second found that the Second Amendment only applies to federal laws.  When the Justices consider the Maloney case, Sotomayor is not expected to take part.  The fact that she had taken part in a ruling on the issue in one case, however, would not require her to withdraw from considering cases from other Circuits, like the Chicago cases.

The chance that the Supreme Court might feel a need to resolve the most important question left open by last year’s ruling on gun rights under the Second Amendment may now have diminished.  The conflict among lower courts that had made review seem a good deal more likely has now vanished, at least temporarily.

Without a conflict, the Supreme Court may wish to wait for the issue to percolate further in lower courts.  The issue also roiled the nomination hearings for Justice-designate Sonia Sotomayor, perhaps raising the sensitivity of the issue to the point that the Court might be reluctant to take it on when the lower courts are not in disagreement on it.

On Wednesday, the Ninth Circuit Court voted to review en banc a three-judge panel decision in April, extending the Second Amendment right to have a gun for personal self-defense so that it would restrict or nullify state, county and city gun control laws.  The effect of that order, of course, was to vacate the panel decision.  Thus, the disagreement between that panel and the Second and Seventh Circuits no longer exists — at least until the Ninth Circuit, or some other Circuit Court, weighs in on the issue.

The Ninth Circuit will rehear the issue during the week of Sept. 21, before an 11-judge en banc Court.  It is by no means certain that the majority will take the same view as the three-judge panel had in April.  At the same time, the vote to reconsider the issue does not necessarily mean that the full Court will rule the other way; it does signal, though, that members of the Court deem the issue sufficiently important to have it tested before a larger court.

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Analysis

As Justice Antonin Scalia was preparing the Supreme Court’s opinion last year declaring a personal constitutional right to have a gun for self-defense, he may have needed to put in a cautionary word to hold his five-Justice majority — an indication to make the decision seem somewhat less sweeping.  That could account for this statement in District of Columbia v. Heller: “…nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons…”

But, a lower federal court judge has now suggested that the Court perhaps should not have gone that far.  Tenth Circuit Judge Timothy M. Tymkovich, in an opinion issued Tuesday, expressed “concern that the dictum inhibits lower courts from exploring the contours of Heller and its application to firearms restrictions….I…wonder whether Second Amendment law would have been better served if the regulations Heller addressed in dicta had been left to later cases.”

The judge’s comments came in a concurring opinion as a three-judge panel decided a case involving an individual convicted of being a felon who illegally had a gun — a specific crime that the Heller dictum would seem to have left unaffected by the Second Amendment declaration of a personal right of self-defense with a gun.

The ruling came in McCane v. U.S. (Circuit docket 08-6235), found here.  (Thanks to Howard Bashman of How Appealing blog for the alert to Judge Tymkovich’s opinion and to the case.)

Lawyers involved in the case said Wednesday that they plan a further challenge to the Circuit’s ruling, either by asking for en banc review by the Circuit, or taking the case on to the Supreme Court — a choice they have not yet made.  Aside from the Second Amendment point, the lawyers are troubled by another part of the McCane opinion, apparently expanding the so-called “good-faith” exception to the “exclusionary rule” to excuse a constitutional violation by police.  (See the discussion near the end of this post.)

Judge Tymkovich noted that six other Circuit Courts have rejected constitutional challenges to the federal law making it a crime for a felon to possess a gun.  “Almost all these decisions cursorily cite the Heller dictum, and almost all are unpublished,” he wrote.

That, he indicated, appears to be the consequence of the Supreme Court’s having chosen to drop into its opinion a comment on gun restrictions not at issue in Heller.  “Rather than seriously wrestling with how to apply this new Second Amendment rule,” Tymkovich commented, “courts will continue to simply reference the applicable Heller dictum and move on.”  Perhaps, he added, that is what the Supreme Court intended with its “clear direction,” even in dicta.

Still, the judge lamented this development, saying that the volunteered qualification in Heller “short-circuits at least some of the analysis and refinement that would otherwise take place in the lower courts.”

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Analysis

For generations, lawyers, judges and constitutional scholars across the spectrum have debated whether the time would come for the Supreme Court to cast aside one of history’s most controversial rulings — the 5-4 decision in 1873 in the Slaughterhouse Cases.  In that ruling, the dissenters claimed — and modern critics still complain — that the Court had made the Fourteenth Amendment’s Privileges or Immunities Clause into “a vain and idle enactment.”

Despite a brief revival of the Clause as a curb on state power to restrict individual rights, in the 1999 decision in Saenz v. Roe involving “the right to travel,” that part of the Fourteenth Amendment’s Section 1 has remained close to a constitutional dead letter.  (It reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”)

In 1873, the Court said the Clause only restricted state laws affecting rights of national citizenship, not those affecting the rights of state citizens.  Among others who have argued in recent years that the Court should rethink the Slaughterhouse Cases, Justice Clarence Thomas is the most prominent.  He did so in a dissent in Saenz v. Roe, saying that, “in an appropriate case,” he would be open to reevaluating the meaning of the Clause.

Sometime this Fall, the Court will examine three cases that already are being pushed as “appropriate” ones for the Court to use for a reexamination of the Clause, and the Slaughterhouse precedent.

This is, in fact, a little-noticed part of the controversy already building around those new cases.  The core issue, in all three, is whether the Court will expand the Second Amendment personal right to have a gun for self-defense, so that it restricts state and local government laws, not just those at the federal level (an issue that had a prominent role in the just-concluded nomination hearings for Justice-to-be Sonia Sotomayor.  She will have a chance to vote on some of the new cases, it appears.)

Under constitutional theory, there are only three ways that the Court could interpret the Second Amendment as applying to the states.  The Constitution’s text rules out one of those, the Slaughterhouse Cases rules out a second, and the one remaining — “incorporation” of the Second Amendment into the Fourteenth Amendment so that it reaches states – is not an attractive option to constitutional conservatives.  Thus, the impending challenge to the Slaughterhouse precedent.

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As the New York Times highlighted this weekend, the image of the judge as umpire has become a dominant analogy in discussions of judicial restraint. Chief Justice John G. Roberts said in the opening remarks of his own confirmation hearings in 2005:  ”Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role.”  Today, members of the Senate Judiciary committee frequently used this statement to frame their opinions about what role Judge Sonia Sotomayor might play on the Supreme Court (the rare venue in which sitting on the bench is a good thing).

An (incomplete) review of the senators’ written statements and oral testimony finds the phrase “balls and strikes” used 11 times, “umpire” or “umpires” used 16 times, and “playing field” used twice today. Sen. John Cornyn, R-Tex., perhaps appealing to his Big 12 base, went for a football simile instead. Once all of the written statements are submitted to the record and the transcripts are finalized, I’ll update with a complete word count. Excerpts of the senators’ sports infused language are below the jump:

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It’s always perilous to try and generalize about a Supreme Court Term.  Roughly 80 cases on diverse topics decided by nine different people don’t collectively produce clear themes.  When they do appear to, it’s often a mirage that reflects the coincidence of cases that happen to fall together by chance within a single term.

But that never stopped me before.

Here is what strikes me most about this Term.  The Court is moving steadily in the direction of rolling back Warren Court-era precedents that conservatives view as significant overreaching of the judicial role.  To be clear, that isn’t the Court’s principal occupation.  Most of its docket is filled with important but ordinary questions of federal law.  But it is a significant trend.

I am struck in particular by the opinions of the Chief Justice that seem to lay down markers that will be followed in later generations of cases.  NAMUDNO details constitutional objections to Section 5 of the Voting Rights Act that seem ready-made for a later decision invalidating the statute if it is not amended.  Herring contains significant language that can later be cited in favor of a broad good-faith exception to the Fourth Amendment exclusionary rule that applies to individual police mistakes.

If I’m right about the direction of the case law, the Court’s methodology is striking.  It is reinforcing its own legitimacy with opinions that later can be cited to demonstrate that it is not rapidly or radically changing the law.  This approach may be in the starkest relief if next Term the Court cites its recent decision in Wisconsin Right to Life as precedent for concluding that McConnell v. FEC and Austin v. Michigan have been significantly undermined and should be overruled.  The plurality and concurrence in Wisconsin Right to Life famously debated how aggressively the Court should go in overruling prior campaign finance precedent.  The Chief Justice urged patience – not moving more quickly than required – and the wait may not have been long.

There is nothing illegitimate about that approach.  It’s easy to demonize decisions with which you disagree as either exercises in raw judicial power (the truth of the matter is that the principal difference between McConnell and Wisconsin Right to Life is that Justice O’Connor was replaced by Justice Alito) or outright sneakiness.  Neither is accurate or fair.  Just because one set of Justices gets to a constitutional question first does not give it a greater claim to “constitutional truth.”  I disagree (sometimes substantially) with the direction of the law, but this incrementalism is rooted in a consistent vision of the law and a deep concern for the Court as an institution. 

Overgeneralizing broadly, conservatives believe that doctrines like substantive due process, the exclusionary rule, and a high wall separating church and state aren’t merely wrong but overstep the limited role of judges and endanger the legitimacy of the Supreme Court.  Turning back those decisions, in turn, is thought to (among other things) enhance respect for the Court.  The Chief’s professional life is defined by the Court — as a clerk, Principal Deputy Solicitor General, private practitioner, and now the Chief Justice — and his institutional commitment to it, including ensuring that it is regarded as an institution of integrity rather than a political football (see my earlier post on the Ricci opinion) — is profound.

But that perspective – when taken by a thoughtful judge who has the long view – also counsels in favor of moving at a measured pace.  If the Court instead were to announce in rapid succession the overruling of its prior decisions permitting regulation of campaign contributions, guaranteeing a right to an abortion, and finding affirmative action consistent with the Fourteenth Amendment, then the public would likely be left with the impression that constitutional law is nothing more than a power play between competing ideologies that reflect nothing more than the happenstance of the most recent appointments.

For the moment, there is no reason to rush.  Time permits a jurisprudence of not just originalism, or textualism, but actuarialism.  The sand running through this hourglass will not expire for eight years. 

Later in his term, President Obama will likely replace Justice Stevens with someone else on the left.  If he is reelected in 2012, he will replace Justice Ginsburg with someone on the left.  Nothing changes.

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