Attention Now Shifts To Kagan Confirmation Hearings, Which Begin Today
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NEW YORK – In typical fashion, the Supreme Court ended its 2009 Term with major decisions on gun control, discrimination, separation of powers and patents. Uncharacteristically, the Court's final decisions this year were overshadowed by the start of Senate confirmation hearings on the nomination of Elena Kagan to replace Justice John Paul Stevens, whose retirement became effective today. (The American Civil Liberties Union's report on Kagan's civil liberties and civil rights record can be found at: www.aclu.org/organization-news-and-highlights/report-american-civil-liberties-union-nomination-elena-kagan).
"Justice Stevens brought a rare and wonderful combination of qualities to the Supreme Court," said Steven R. Shapiro, ACLU Legal Director. "His intelligence, heart, decency, craft and savvy will be sorely missed and not easily replaced."
Those qualities were evident again on the Court's last day as it announced a long-awaited ruling on the Second Amendment. Having held two years ago that the Second Amendment guarantees an individual right to bear arms in a case involving the District of Columbia, which is governed by federal law, the Court extended that ruling this year to state and local governments in McDonald v. City of Chicago.
Justice Stevens disagreed with the Court's reasoning and result in McDonald, but his dissent addressed even bigger issues. Summarizing his approach to constitutional interpretation, Justice Stevens ended his Supreme Court career with a passionate defense of the Court's role in defining the meaning of liberty under the Constitution, and a forceful rejection of the proposition that our understanding of liberty should exclusively rest on the original intent of the framers.
Responding directly to Justice Scalia, who has been the Court's foremost proponent of originalism, Justice Stevens described liberty as a "dynamic concept" that was intended to "endure for ages to come." "The judge who would outsource the interpretation of 'liberty' to historical sentiment," he wrote, "has turned his back on a task the Constitution assigned to him and drained the document of its intended vitality."
From a civil liberties perspective, this was a Term dominated by the First Amendment. Most prominently, in Citizens United v. Federal Election Commission, the Court went out of its way to hold that restrictions on corporate campaign expenditures are unconstitutional in a 5-4 decision written by Justice Kennedy that provoked a strong dissent by Justice Stevens and very public criticism by President Obama.
The Court took a much narrower view of the First Amendment in Holder v. Humanitarian Law Project when it ruled that the First Amendment does not shield humanitarian groups who provide "expert advice and assistance" to designated terrorist organizations regarding human rights compliance and peaceful conflict resolution from criminal prosecution under the material support statute.
Both rulings are notable for the Court's disregard of precedent. In Citizens United, the Court overruled two relatively recent decisions that had upheld bans on corporate campaign speech when the case could easily have been resolved on less far-reaching grounds. In Humanitarian Law Project, the Court casually distinguished, and then ignored, a 50-year-old decision that rejected the excesses of the McCarthy era by ruling that even formal membership in an organization that advocates the violent overthrow of the government could not be punished unless the membership was intended to promote the organization's unlawful goals.
By contrast, it was the government that attempted to change the First Amendment rules in United States v. Stevens. That effort failed. In an opinion written by Chief Justice Roberts, the Court not only struck down a federal statute criminalizing depictions of "animal cruelty" as substantially overbroad, but it described as "startling and dangerous" the government's proposal that the social value of speech should be weighed against its social costs in deciding whether the First Amendment even applies.
In Christian Legal Society v. Martinez, also decided on the last day of the Term, the Court held that a state university can require student clubs to comply with the university's non-discrimination rules if they want to receive official recognition and university funding, as long as those rules are neutrally applied.
Finally, in Doe v. Reed, the Court held that voters who sign referendum petitions are engaged in a First Amendment activity but generally cannot object if the government later discloses their names unless there is a reasonable probability that disclosure will lead to harassment and retaliation. How broadly the Court is willing to embrace disclosure rules may soon be tested if Congress enacts the DISCLOSE Act, which the House just recently passed in response to Citizens United.
The Court also issued several important criminal law decisions this Term. In Graham v. Florida, the Court held that the Eighth Amendment categorically prohibits sentencing juveniles who have not committed murder to life in prison without the possibility of parole. The United States is the only country in the world that imposes such sentences on juveniles, and Justice Kennedy's majority opinion was noteworthy for its reference to international law as a non-binding but nonetheless useful source of guidance in understanding the meaning of cruel and unusual punishment.
In Skilling v. United States, a case arising from the criminal prosecution of Enron's CEO, the Court recognized the inherent vagueness in a controversial provision of the federal mail and wire fraud statutes that penalizes the denial of "honest services." Rather than declare the provision unconstitutional, the Court limited its reach to bribery and kickback schemes.
Although this was only her first Term on the Court, Justice Sotomayor has already emerged as a strong voice on criminal law matters. While agreeing with the Court's limiting construction of the "honest services" provision, she dissented from the majority's conclusion that Skilling had received a fair trial before an impartial jury in light of the extensive publicity surrounding his case. And, in Berghuis v. Thompkins, she forcefully dissented from the majority's decision to allow the police to continue questioning a suspect who had remained silent for nearly three hours. The decision, she wrote, "mark[s] a substantial retreat from the protection against self-incrimination that Miranda … has long provided during custodial interrogation."
After a decade of stability, the Court will soon have its fourth new member in the past five years. It is a lot of change.
"It remains to be seen what impact Elena Kagan will have on the Court, if she is confirmed," Shapiro said. "Her views on most of the key issues confronting the Court are still largely unknown." But, he added, "on a closely divided Court, one Justice can make a significant difference."
A summary of all the Court's major civil liberties cases from this Term is online at: www.aclu.org/organization-news-and-highlights/aclu-summary-2009-supreme-court-term