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U.S. Supreme Court,
Constitutional Law

Oct. 2, 2009

Stare Decisis—or Not

Cases that run the gamut from free speech to the right against self-incrimination fill the U.S. Supreme Court’s 2009-10 docket.

Erwin Chemerinsky

Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law

Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).

For the 2009?10 term, the U.S. Supreme Court broke from tradition by returning from its summer recess not on the first Monday in October, but rather on Wednesday, September 9, to rehear a case of potentially enormous significance. In Citizens United v. Federal Election Commission (129 S. Ct. 2893 (2009)) the Court will decide whether restrictions on corporate spending in political campaigns violate the First Amendment right to free speech. The case, which was briefed and argued last March, involves the question of whether it was proper to impose disclosure requirements on a politically active nonprofit corporation and effectively ban the airing of a movie critical of Hillary Clinton during the 2008 primary elections. In late June the Court set the case for new briefing and argument. Many speculate that there is a five-vote majority on the Court ready to declare that restrictions on corporate campaign spending are unconstitutional, and perhaps even five votes to strike down all limits on campaign contributions except for disclosure requirements.

As the Court considers this and other cases, it will have a new justice on the bench, as Sonia Sotomayor replaces David Souter. It is widely thought that Justice Sotomayor generally will vote much the same as Justice Souter did, especially in high-profile cases, and thus will not shift the ideological balance of the Court. But the high court is a small group, and one new justice might have a significant effect in persuading others.

Though only about half the docket had been set by the time the justices recessed for the summer, it appears that an exceptionally large number of potentially significant cases involve aspects of the First Amendment. In Salazar v. Buono (527 F.3d 758 (9th Cir. 2008), cert. granted, 129 S. Ct. 1313 (2009)) the Court will consider the constitutionality of a large Latin cross that sits atop a prominent rock outcropping in the Mojave National Preserve. The Court will determine who has standing to challenge the presence of the cross and whether Congress violated the First Amendment when it transferred the land to a private entity to preserve the cross.

This will be the first major Establishment Clause case heard by the Court since the confirmations of Chief Justice John Roberts and Associate Justice Samuel Alito. And if they join Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas to form a majority, it could significantly change the Court's interpretation of the Establishment Clause to allow more government support for and involvement in religious activities.

In United States v. Stevens (533 F.3d 218 (3d Cir. 1998), cert. granted, 129 S. Ct. 1984 (2009)) the Court will consider whether a federal statute (18 U.S.C. § 48) violates the First Amendment by making it a crime to knowingly create, sell, or possess "a depiction of animal cruelty" for commercial gain. And in Milavetz v. United States (541 F.3d 785 (8th Cir.), cert. granted, 129 S. Ct. 2766 (2009)) the Court will decide whether new provisions of the bankruptcy code?11 U.S.C. §§ 526(a)(4), 528(a)(4), and 528(b)(2))?violate the First Amendment by prohibiting lawyers from advising clients to take on additional debt, even if it is lawful for the clients to do so, and by requiring certain disclosures in ads for lawyers.

A number of important criminal cases are also on the docket. In Graham v. Florida (982 So.2d 43 (Fla. Dist. Ct. App. 2008), cert. granted, 129 S. Ct. 2157 (2009)) and Sullivan v. Florida (987 So.2d 83 (Fla. Dist. Ct. App. 2009), cert. granted, 129 S. Ct. 2157 (2009)), the Court will decide whether a sentence of life imprisonment without the possibility of parole imposed on a juvenile offender constitutes cruel and unusual punishment. In a previous decision (Roper v. Simmons, 543 U.S. 551 (2005)) the Court held, 5?4, that the death penalty cannot be imposed for crimes committed by juveniles. Does that decision portend the same result for life imprisonment in juvenile cases?

In Maryland v. Shatzer (954 A.2d 1118 (Md. 2009), cert. granted, 129 S. Ct. 1043 (2009)) the Court will determine whether Edwards v. Arizona (451 U.S. 477 (1981))?which bars police from initiating questioning of criminal suspects who have invoked their right to counsel under the Fifth Amendment?applies to an interrogation that takes place nearly three years later. This case is particularly significant because in Montejo v. Louisiana (129 S. Ct. 2079 (2009)) the Supreme Court held that the Sixth Amendment does not bar police from attempting to elicit incriminating statements from a defendant who is represented by counsel, overruling a 23-year-old precedent from Jackson v. Michigan (475 U.S. 625 (1986)). But in Montejo the Court, in an opinion written by Justice Scalia, stressed that Edwards v. Arizona bars police from doing this with a suspect who has invoked the right to counsel under the Fifth Amendment. Will the Court continue to adhere to Edwards, or alter its scope?

The right to counsel under the Fifth Amendment also bears on Florida v. Powell (998 So.2d 531 (Fla. 2008), cert. granted, 129 S. Ct. 2827 (2009)). In that case a suspect was told, "You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning." But the suspect was not explicitly told of his right to have an attorney present during the questioning. The Court will consider whether that omission violates the landmark Miranda ruling (Miranda v. Arizona, 384 U.S. 436 (1966)).

Two cases involve important issues concerning property rights. In Alvarez v. Smith (524 F.3d 834 (7th Cir. 2008), cert. granted, 129 S. Ct. 1401 (2009)) the Court will decide whether local law enforcement agencies may seize personal property and retain it indefinitely without judicial or administrative review. And in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection (998 So.2d 1102 (Fla. 2008), cert. granted, 129 S. Ct. 2792 (2009)) the Court will resolve whether government restoration of an eroded beachfront that changes property lines amounts to a taking, violating the Fifth Amendment.

The separation-of-powers doctrine comes up in Free Enterprise Fund v. Public Company Accounting Oversight Board (537 F.3d 637 (D.C. Cir. 2008), cert. granted, 129 S. Ct. 2378 (2009)). The Court will consider whether the Sarbanes-Oxley Act violates the separation of powers by insulating members of an accounting oversight board from appointment or removal by the president.

In determining the docket for its 2009?10 term, the Court has sent a signal that touches the core of stare decisis. How much weight will the Roberts Court give to precedent? A number of the pending cases outlined above provide an opportunity for the Court to reconsider long-standing rulings. Whether the old path remains firm, or a new one waits to be hewed, is the question of the day. These are the cases to watch as the nation waits to learn the direction in which the Roberts Court moves.

Erwin Chemerinsky is the dean and distinguished professor of law at UC Irvine School of Law.


Kari Santos

Daily Journal Staff Writer

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