Newly confirmed justice Sonia Sotomayor took her seat for the first time on Tuesday. Though she’s been at work on cases since taking the oath in August, and has already cast her first votes on motions before the Court, this was her first public sitting as a justice.
Many eyes will be on Justice Sotomayor during the Supreme Court’s term. Observers are eager to see how much her jurisprudence will resemble that of the justice she replaced. Yet this is hardly the only way the coming term will be significant and revealing. The Court’s docket includes a large number of notable cases spanning important questions of federalism, separation of powers, regulatory takings, and the First Amendment. Several raise issues the Court has not addressed in years, and could signal whether the Roberts Court will follow or depart from Rehnquist Court precedents. Even without a new justice, this would be a term to watch.
The new term officially begins the first Monday in October, but there is some unfinished business from the last: a rehearing in Citizens United v. Federal Election Commission. The case arose out of Citizens United’s efforts to release an anti–Hillary Clinton film during the 2008 campaign, which the FEC said the McCain-Feingold campaign-finance law prohibited. At the first argument this past spring, the Justice Department’s attorney maintained the government could bar books and movies urging the election or defeat of candidates without violating the First Amendment, so long as these media were funded by corporations (including nonprofits) or unions. Some justices were shocked, but existing precedent does suggest such a law would be okay. This prompted the reargument; the justices requested briefing on whether this precedent should be overruled.
Citizens United is only the first of several important constitutional cases the Court will hear in the coming months. One of particular interest to federalism fans is United States v. Comstock. The question in Comstock is whether the federal government has the power keep a “sexually dangerous” prisoner locked up past the completion of his sentence. A federal appeals court said no, concluding such power lies beyond the scope of the commerce clause, even when combined with the necessary-and-proper clause. While civil commitment for preventive purposes by state authorities is constitutional (as with the mentally ill), it may still lie beyond the federal government’s reach. Only states have a residual police power under our federal system, while the federal government has only the powers enumerated in the Constitution. The Rehnquist Court made halting efforts to constrain the federal government’s enumerated powers. Comstock will show whether the Roberts Court intends to follow suit.
The Court will also consider the outer limits of congressional power to create new federal agencies insulated from executive influence or control. The Supreme Court has upheld the creation of so-called independent agencies since the New Deal. Such agencies typically consist of a multi-member commission or board whose members have set terms and can only be removed by the president for cause. In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court will consider a novel arrangement created by the Sarbanes-Oxley Act, in which one independent agency is granted the power to appoint the members of another, effectively eliminating executive involvement altogether. The U.S. Court of Appeals for the D.C. Circuit upheld this arrangement last year, prompting a vigorous 58-page dissent by Judge Brett Kavanaugh. He argued there are constitutional limits to Congress’s ability to create agencies with substantial regulatory power but lacking executive oversight.
In what could be the Court’s most significant regulatory-takings case in 15 years, Stop the Beach Renourishment v. Florida Department of Environmental Protection, the Court will weigh the rights of beachfront landowners to maintain ocean access after the government restores land previously lost to erosion. If a landowner’s property historically included access to the sea, can this access be cut off when the government reconstructs a beach in front of the land? Also at issue in this case is when, if ever, state-court judgments altering traditional property rights under state law can constitute takings of private property under the Fifth Amendment. Such so-called “judicial takings” have never been subject to meaningful constitutional scrutiny, which could make any Court decision here even more significant.
The Court will also hear an interesting Establishment Clause case arising from a cross erected by the Veterans of Foreign Wars on federal land. After the suit was filed and a lower court ordered the cross removed, the federal government transferred the land in question to the VFW. In Salazar v. Buono, the Court will consider whether this land transfer was itself permissible and whether a private group has standing to challenge this arrangement in federal court. Another notable First Amendment case, United States v. Stevens, involves a challenge to a federal law prohibiting depictions of animal cruelty.
The Court’s criminal-law cases are likely to reveal the most about Justice Sotomayor, as this is where her judicial philosophy is most likely to diverge from that of Justice Souter. The court will consider questions relating to police questioning of criminal suspects, jury consideration of mitigating factors in death-penalty cases, prosecutors’ liability for allowing false testimony, and the constitutionality of giving juveniles life sentences for non-lethal crimes.
A criminal case worth particular attention is Briscoe v. Virginia. Last term, in Melendez-Diaz v. Massachusetts, the Court considered the question of whether crime-lab reports are testimonial evidence subject to the requirements of the Sixth Amendment’s Confrontation Clause. (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”) If so, such evidence cannot be admitted unless the lab technician is available to testify at trial, even if the report does nothing more than establish that a substance found in a defendant’s possession was, in fact, an illegal drug.
Melendez-Diaz split the Court 5–4, but not along traditional ideological lines. Justice Scalia wrote the majority, joined by Justices Thomas, Stevens, Ginsburg, and — of particular importance here — Souter. The majority adopted a strict “formalist” approach to the constitution’s guarantees, ruling that since the lab technician was a witness against the defendant, the defendant had a right to confront him. The dissenting justices, led by Justice Kennedy, embraced the more “pragmatic” approach favored by criminal prosecutors.
Formalist-pragmatist splits on the Court have become rather common in some parts of criminal law, with the formalists retaining the upper hand. Will this continue? While Justice Souter typically joined the formalist camp, Justice Sotomayor’s approach in this area is not yet known. Will she follow Justice Ruth Bader Ginsburg’s strict enforcement of criminal defendants’ rights? Or will her experience as a prosecutor and trial-court judge lead her in a more pragmatic direction, where she would join Justice Breyer? In Briscoe, we should get our first clue, as it asks the Court to narrow (if not reconsider) Melendez-Diaz.
Not all of this year’s big cases involve constitutional questions. Bilski v. Doll is a major patent case; the Court will consider the permissible scope of so-called “business method” patents. Specifically, the Court will consider when, if ever, a “process” that is not tied to any specific machine or device can be patented. The outcome will have a major effect on patent law and significantly impact many industries.
And keep on the lookout for potential sleepers. Some major cases are recognized as such only in hindsight, and the Court will continue to add new cases to its docket in the coming months.
Over the last four years, the Roberts Court has shown itself to be moderately conservative. It has taken a minimalist approach to most cases, confining its decisions to the narrow question presented in each case — save when Justice Kennedy has pushed the Court in a more aggressive direction, as when he joined the liberal justices to invalidate counterterrorism policies or to invalidate the death penalty for child rape. The addition of Justice Sotomayor is unlikely to change this dynamic. Indeed, while the 2009–10 Supreme Court term will be Justice Sotomayor’s first, the term could be remembered more for the Court’s decisions than for who joined the bench.
– NRO contributing editor Jonathan H. Adler is professor of law and director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.