God Save This Honorable Court

Today is the opening of the Supreme Court’s 2009-2010 term. On tap are a number of interesting and potentially significant cases. The Court is expected to resolve shortly the campaign finance reform/free speech controversy in the Citizens United v FEC case (the “Hillary Movie” dispute), which is likely to result at the very least in a significant reinterpretation of the statute’s application to non-profit pro forma “corporations.” There is also a solid possibility that the Court will overturn an earlier outlier precedent on the limits of corporations’ political speech, along with a section of the McCain-Feingold Campaign Finance and Constitutional Travesty Act of 2002. The result likely will depend on the willingness of Chief Justice Roberts and Justice Alito to abandon their preference for upholding even bad precedent and move boldly in the direction in which the Court has taken baby steps.

Another free speech case is United States v. Stevens. That case involves the criminalization of depictions of animal cruelty, with an exception for depictions that have serious artistic, scientific, etc., value. The federal statute has been defended as targeting a category of speech with low social value and significant social harm (animal cruelty). Conversely, it has been attacked on overbreadth grounds as targeting significant amounts of protected speech in relation to the small amount of harmful speech. Moreover, the defendant (who did not engage in animal cruelty or film the video) claims that the legislative creation of categories of speech that are outside the first amendment is disfavored, and that, here, the state lacks a compelling interest to prohibit his speech. (The Congress had justified the statute on grounds of targeting a specific kind of video, not animal cruelty in general, an interest it had specifically disavowed.)

Another First Amendment case, though not a free speech case, is Salazar v. Buono. That case involves a cross on formerly federal land. The cross was placed in the middle of the Mojave Desert in 1934 by the VFW in honor of WW I dead. It is maintained by VFW members. in 1999, someone complained. The Park Service wanted to remove the cross, which was then on federal land. Congress denied the Park Service money to do so. The federal courts then found the cross a violation of the Establishment Clause. Congress then made the area a national memorial and gave an acre of the land, including the site of the cross, to the VFW in exchange for five acres of other land that the organization owned. The cross currently has a cardboard box that covers it, lest someone inadvertently suffers psychological damage from seeing a cross in the middle of the desert far from an interstate or other well-traveled highway. The case raises issues about similar monuments, e.g. the Argonne Cross in Arlington National Cemetery. Constitutionally, the problem is whether Congress is sufficiently involved to be seen by the knowledgeable observer as endorsing the cross. There is also the lack of other monuments that might dilute the religious aspect of the display, as well as the blatantly religious meaning of the cross. On the other hand, there is its remote location, its history, and the fact that the knowledgeable observer would know that the cross is a war memorial set up by a private organization. That, and the threat to other monuments of this type if the Court rules against the cross.

An interesting non-First Amendment case is McDonald v. Chicago. The case involves the question left unresolved in DC v. Heller, whether the Second Amendment applies against the states, and how. The arguments focus on the historical understanding of the Fourteenth Amendment’s privileges or immunities clause, and the interpretation of “fundamental principles of ordered liberty” under that amendment’s due process clause. If the Second Amendment is held to apply against the states, as the predictions overwhelmingly indicate (and I agree, based on the Heller court’s strong hints), it likely will come under the due process clause. There is considerable historical inertia against using the privileges/immunities clause as a vehicle for incorporation, though I think that, based on the Congressional debates and the origins of the Fourteenth Amendment as a constitutional foundation for the controversial Civil Rights Act of 1866, the clause actually is the better source as a direct basis for protection of gun ownership for self-defense. If the Court applies the Second Amendment against the states, it will be interesting to see what the standard of review will be for state laws, a matter left unresolved in the Heller case, as well, but more important for the more frequent enactment of state laws in this field. Stay tuned for more litigation.

An odd First Amendment-related case is Holder v. Humanitarian Law Project. That case argues the unconstitutionality under the First Amendment of several phrases in the Patriot Act amendments to a Clinton-era statute that prohibits providing “material support” to terrorist groups. That statute is very important to the government in going after terrorist organizations and their supporters. The challengers here are concerned that some of these terms will prevent them from providing advice to terrorist groups (the Kurdish PKK and the Sri Lankan Tamil Tigers) for non-violent lawful matters. The 9th Circuit agreed with the government on most aspects of the challenge, but held several important clauses to be unconstitutionally vague. Given the importance of combating terrorists, and given the Court’s hostility to facial challenges, it will be interesting to see whether the government overrules this and decides to wait for an actual “as applied” challenge if the feds go after protected speech activity under the law.

The last case I want to mention here is one that the Court has let languish since early this summer. It involves the challenge by 13 Uighurs at Guantanamo, Kiyemba v. Obama. They have been cleared on being unlawful enemy combatants because their affiliation with terrorist groups targets China. Since the Chinese would likely torture them if the Uighurs were returned to China, the U.S. has been trying to get other countries to take them. So far, there has been limited success in getting Palau and Bermuda to take some. A district court ordered that the Uighurs be released into the U.S. The D.C. Circuit Court of Appeals overturned that decision. Congress has, since then, severely restricted the transfer of Gitmo detainees into the U.S.

The Supreme Court seems to be waiting for some further diplomatic efforts to bear fruit. But this potential clash between the historically dominant power of the political branches over who gets entry into the U.S. and the Court’s increasing boldness in matters relating to the Gitmo detainees’ detention cannot be avoided forever. Sooner or later, the matter will need to be addressed, as there are also some detainees who want to avoid being sent to certain countries and are preparing to challenge the President’s power to transfer them without their consent.