What cases coming before the Supreme Court will be the “most interesting and have the most impact” on the American people? That’s a matter of considerable interest before the Justices hold their opening conference next Monday.
According to the lawyers assembled for the American Constitution Society for Law and Policy yesterday, the court will consider the constitutionality of life sentences for juveniles, free speech, campaign finance and corporations, revisit elements of Miranda rights, and hear a case on antitrust on the NFL.
Quite a docket.
The Supreme Court will also, in what Michael Carvin called the “most important separation of powers case in 20 years,” take a hard look at the Public Accounting Oversight Board (PCAOB). Is the PCAOB, established by the Sarbanes-Oxley Act (SOX), a “5th branch” of government?
Michael Carvin was just one of an estimable collection of legal minds on the panel, moderated by one Thomas C. Goldstein. Goldstein, along with arguing some 21 cases before the Court, is principally responsible for SCOTUSblog. Goldstein and Carvin were joined by Pamela Harris, executive director of the Supreme Court Institute at the Georgetown Law Center, Doug Kendall, founder and president of the Constitutional Accountability Center, Lisa Kung, director of the Southern Center for Human Rights, Deanne Maynard, partner at Morrison & Foerster and Paul Smith, partner at Jenner & Block.
In the spirit of legally-inspired disclaimers on accuracy of interpretation, I should note before I go any further that, while I have a parent who is a lawyer and am romantically involved with a law professor, I have no formal legal training and came to panel as a journalist and observer.
Up to until now, says Doug Kendall, the rule has been to limit corporate participation. The court upheld election communications rule before hand within 30 days. The case before the Court is one that has attracted gallons of media ink, due in no small part to the involvement of a well-known citizen: Secretary of State Hillary Clinton. Consideration of campaign finance is already underway and received additional attention given that it was the first that newly-sworn in Justice Sotomayor has heard.
Doug Kendall brought up the 1990 precedent of “Austin v Michigan” as way of exploring the issue of free speech by a corporation vs speech by an individual. The argument that he put forward goes back to the language of the U.S. Constitution, which refers to persons and people – but not businesses. Kendall argued that the distinction is consistent with first principles. If Austin is overruled, he said, it would unleash corporate campaign expenditures.
Mike Carvin, in a rebuttal that evidenced his considerable experience in courtroom oratory, brought up the example of corporate media outlets like MSNBC or the Washington Post endorsing a candidate. He questioned whether that would be any different than corporation buying advertising space endorsing a candidate. “Doesn’t think eliminating core political speech rights is consistent,” he said.
Carvin asserted that 26 states don’t regulate speech in this way and don’t operate any differently. “It would be one thing if we were eviscerating rights for free speech,” said Carvin. “Are we doing this in the name of preserving McCain-Feingold?” He strongly suggested that free speech rights should not “be sacrificed on such slim evidence.”
Kendall observed that the “First Amendment also includes something about the freedom of the press” – different than, say, Exxon Mobil. “This case raises fundamental questions about what at its core our constitutional protects,” he said, positing the analogy of “We the people vs We the corporations.”
After that exchange, the substantive issues of whether video depictions of animal cruelty are protected under the First Amendment or national monuments on private land felt positively quotidian, despite the rigorous analysis of the precedents and relevance of the matters.
Miranda, separation of powers and revisiting federalism
Harris explained that two different cases will be relevant to revisiting Miranda, one of which will address whether a citizen has the right to counsel during questioning. As she pointed out, these cases are “the first real cuts” for Roberts and Alito at the issue.
Another case will visit the question of whether you “deprive employer of honest services” by using business equipment – like, say a computer – on the job for personal or family business. That’s a serious question, given both the open language and vagueness of the law in question and the way it could impact millions of people who conduct personal business online daily.
Harris also indicated that the case raised questions regarding the separation of powers – classic federalism issues.
Another case, Melendez v Diaz, will focus upon the 6th Amendment, involving the Confrontation Clause. At issue is whether lab reports represent testimoniasl, which goes to the question of their introduction in trial. Is it enough for a defendant to call the analyst as his own witness? Or does the state need to do so? It “seems like the question is answered,” said Harris. “What’s different?” The answer is practical: a new Justice. The practical concerns of bringing in analysts each time lab results are presented are significant – doing so would slow process. Given her self-identification as a legal pragmatist, will Sotomayor be more receptive than Souter was? Harris doesn’t think so.
Separation of powers is also at issue with regards to the Public Accounting Oversight Board (PCAOB), as referenced above. The PCAOB, said Carvin, is “outside of government and presidential control” – that’s a separation of powers issue. The defense of agency is “unprecedented in American history,” he said. The President can appoint or remove chairmen from institutions within the so-called “4th branch,” like the SEC, FCC or Federal Reserve. In Carvin’s view, PCAOB is a 5th branch,” with the SEC holding limited ability to influence regulations coming from it.
According to Lisa Kung, Troy, Alabama has the highest number of capital convictions in the state. The case of Hollywood v. Allen has raised issues around a “cut & paste” judicial process at play there, where decisions are showing up with typos from drafts, like “proposed” making it through or misspellings of judges’ names. The question of the case? “What kind of deference does a federal court pay to this kind of judicial…nonsense,” said Kung, focusing less on the minutiae of mistakes and more on the quality of decisions.
Kung also discussed the case of Sullivan vs Ford, where the Supreme Court will decide on the issue of juvenile life without parole. The young man in question was sentenced at 13 years old to life in prison with no chance of parole. “Will it extend Roper?” Kung asked. That care is relevant to the application of the death penalty under 18. Will Kennedy’s reasoning apply?
Kung brought up a case in which prosecutors were caught acting badly in Iowa by fabricating evidence. The relevant question is how much immunity should the law give to a prosecutor?
A case involved the NFL and antitrust law is coming up, specifically the use of the NFL’s intellectual property by others. The decision and reasoning behind it could apply to any sort of joint venture down the road.
There’s also a patent case, examining what represents an eligible process. At issue in the Bilsky case is a business method, specifically a theory of hedge fund risk management.
Merck is also on the docket. That’s “part of trend where court taking cases cutting back on plaintiff’s bar,” said Deanne Maynard. “At what point does the plaintiff know enough that it should file?” In this case, the issue is over the troubled pain reliever, Vioxx.
Finally, there’s an issue over property, a case of “classic takings mode,” says Carvin. In Florida, if you own a beach house, the law says that you own the sand down to the high water mark. Like many coastal communities, Florida’s beach homes have been losing land due to erosion. Local governments have tried shoreline replenishment on the beaches in the state, which added 75 feet. That’s the crux of the issue; the state then asserted that land is public. Home owners disagree.
Carvin, who argued Bush v. Gore in front of the Florida Supreme Court, pointed out that this case may be memorable, in terms of how that court might change the law. In essence, he said the court seems to have changed property rights by reinterpretation.
Parting thoughts: SupremeCourt.gov and finding information on cases
I was lucky to hear this preview of the cases coming up. I’m hopeful that the ACS will be releasing video of the session to the public. My observation after some searching online is that, despite SCOTUSblog and other watchers, resources that enable citizens to easily find out what cases are being heard aren’t easy to come by. The court’s website, SupremeCourtus.gov, provides information on recent decisions but the docket page is out of date and relies on the visitor knowing case numbers. Hearing lists are blank. The calendar page is a PDF that doesn’t indicate when individual cases are being heard.
I’m far from the first person to feel some angst over this issue. According to Fast Company, the court’s staffers know the site can use a redesign. The Sunlight Foundation’s Daniel Schuman confirms that in a post on redesigning the Supreme Court: “The Justices appear to agree. They’ve recently asked Congress for money to move control of the site in-house, taking over responsibility from the GPO.”
You can see the Sunlight Foundation’s mockup of what such a redesign might look like, below. The Foundation’s other suggestions, if implemented, would go a long way to making the Court’s cases, decisions and operations more transparent to the American people. I hope they are taken up, along with the long list of cases above.