The Supreme Court begins its 2009 Term with a new justice and a seemingly emboldened conservative majority. Both were previewed when the Court heard re-argument in Citzens United v. FEC (08-205), which has the potential to produce the most important decision on campaign finance since Buckley v. Valeo in 1976.
The Court's re-argument order was sweeping. It asked the parties to address whether the Court should overrule both its 2003 decision in McConnell v. FECupholding the facial validity of current restrictions on "electioneering communications" by corporations and unions, and its 1990 decision in Austin v. Michigan Chamber of Commerce holding that corporations can be barred from using general treasury funds to engage in partisan campaign speech.
Overruling Austin would be a far bigger step. If corporations (and presumably unions, as well) cannot be barred from using general treasury funds to directly support or oppose the election of particular candidates, then there is no need to consider the exact scope of the restrictions adopted by Congress as part of the Bipartisan Campaign Reform Act ("BCRA") of 2002.
The amicus brief submitted by the ACLU in Citizens United focused solely on BCRA's definition of "electioneering communications," which the ACLU had previously challenged as a plaintiff in McConnell. The argument on September 9, however, focused almost exclusively on Austin. Interestingly, the conservatives on the Court, who have been increasingly unsympathetic to facial challenges in most contexts, seemed anxious to embrace the facial challenge to restrictions on corporate speech in Citizens United despite ample opportunities to decide the case on a narrower, as-applied basis.
It is always hazardous to predict the outcome of a case based on oral argument. It is even riskier to make predictions about a new justice before her first Term even officially begins. The most that can be said about Justice Sotomayor based on the argument in Citizens United is that it appears she will be an active questioner and that, at least in the context of campaign finance, she seems interested in finding a way to reconcile the role of the Court in protecting First Amendment rights and the role of the legislature in preserving the integrity of the political process.
In addition to Citizens United, the Court has two other important First Amendment cases on its early docket. The principal question in Salazar v. Buono (08-472), an ACLU case that is scheduled for argument on October 7, is whether the federal government's decision to transfer the land beneath a Latin cross in the Mojave Desert National Preserve to a local VFW chapter, while also designating the cross as a national war memorial, adequately cured what the lower courts had previously found to be an Establishment Clause violation. The case is more fully described in the accompanying statement of Peter Eliasberg, who is counsel of record for Respondent.
United States v. Stevens (08-769) is a First Amendment challenge to a federal law that criminalizes the interstate sale or possession of any depiction of animal cruelty that is illegal where the depiction is created, sold or possessed, unless the depiction has serious value. In support of the statute, the government has argued that speech can be excluded from First Amendment protection entirely based on "a categorical balancing of the value of the speech against its societal costs." As the ACLU points out in its amicus brief, that defense of the statute represents even a greater threat to free speech values than the statute itself.
Outside the First Amendment context, the Court will consider the constitutionality of life without parole for juvenile offenders in two related cases to be argued on November 9, Graham v. Florida (08-7142) and Sullivan v. Florida (08-7621). Life without parole has become an increasingly common punishment for juvenile offenders in the United States, but one that the rest of the world has universally rejected. According to a recent report by the University of San Francisco School of Law, not a single child outside the United States is currently serving a sentence of life without parole. By contrast, in 2008, there were nearly 2,500 juvenile offenders in the United States who had been sentenced to spend the rest of their life in prison without the possibility of release. Neither of the children in these cases was convicted of homicide; one was only 13 years old at the time of his crime. As the Court noted just four years ago when it struck down the juvenile death penalty as unconstitutional in Roper v. Simmons: "[T]he character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed." Those observations are equally true and equally pertinent here.
On November 4, the Court will return to the issue of prosecutorial immunity when it hears argument in Pottawattamie County v. McGhee (08-1065). After spending 25 years in prisons, respondents' murder convictions were reversed based on a finding that the prosecutors at their trial had failed to disclose exculpatory evidence. Respondents then sued the prosecutors for damages, alleging that their due process rights had been violated by both the failure to disclose exculpatory evidence and the alleged fabrication of incriminating evidence. In response, the prosecutors have argued that they cannot be sued for using tainted evidence at trial even though it is unconstitutional because they are protected by absolute immunity, and that the fabrication of evidence during the investigatory pre-trial stage does not violate due process unless and until it is introduced at trial. It is a classic Catch-22 that effectively denies the victims of prosecutorial misconduct any opportunity to obtain meaningful redress.
Government accountability is the central issue, as well, in Department of Defense v. ACLU (09-160). The Court is scheduled to decide on September 29 whether to grant the government's petition for certiorari in this highly publicized FOIA dispute over the release of photos documenting the abuse of prisoners by U.S. personnel in Afghanistan and Iraq. As explained in more detail in the accompanying statement of Jameel Jaffer, director of the ACLU National Security Project, two lower courts have already rejected the government's legal arguments on the grounds that they are inconsistent with the language, history, and purpose of FOIA. More significantly, the government's principal contention – that the photos should not be released because of the reaction they may provoke – would turn FOIA on its head by making it most difficult to obtain records that depict the worst government misconduct. We have therefore urged the Court to deny the government's petition for certiorari.
The ACLU's own petition for certiorari in Frazier v. Smith (08-1351) is also on the Court's conference list for September 29. In the midst of World War II, 66 years ago, the Supreme Court held that students could not be required to recite the Pledge of Allegiance. As Justice Jackson famously observed in West Virginia Board of Education v. Barnette: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not occur to us now." The question in Frazier is whether Florida may nonetheless compel high school students to recite the Pledge of Allegiance unless they have obtained their parents' consent to remain silent.
The petition for certiorari in ACLU of Florida v. Miami-Dade County School Board (08-1564) has not yet been scheduled for conference but is likely to be considered at the end of October. The case involves the removal of a book entitled Vamos a Cuba from the public school libraries in Miami-Dade County. The district court concluded that the books had been removed for ideological reasons and ordered them restored to the library shelves. The Eleventh Circuit reversed on appeal, ruling in favor of the school board and expressly disagreeing, among other things, with the credibility findings of the district court judge who had observed the witnesses. The important question raised by the petition for certiorari is the degree to which such findings are subject to appellate review.
Finally, in Chamber of Commerce v. Candelaria (09-115), the ACLU has joined a petition for certiorari filed by a broad coalition of groups, including both employers and civil rights organizations. The petition argues that an Arizona statute imposing severe sanctions on employees who hire unauthorized aliens is pre-empted by federal immigration law. The state's response is currently due on September 28.
Because of these and other pending petitions, the Court's docket will undoubtedly look very different at the end of the Term than it does at the beginning. At the very least, however, the 2009 Term seems likely to produce important decisions on free speech, government accountability, and criminal justice. It is also likely to produce new insights into the willingness of the Roberts Court to disregard stare decisis and overrule its own precedents. And, it certainly will tell us more than we now know about the role that Justice Sotomayor will play on a Supreme Court that remains closely divided along ideological lines.