By Kenneth Jost
Supreme Court Editor, CQ Press
In two other rulings, the court rejected a Christian group’s effort to validate exclusionary membership policies at a California law school and stopped just short of a ruling that could have barred patents altogether for so-called business methods.
The 75-minute-long session marked Justice John Paul Stevens’ final day on the bench after 34-and-a-half years on the high court. Barely an hour later, the Senate Judiciary Committee was to begin confirmation hearings on President Obama’s nominee to succeed Stevens: Elena Kagan, the current U.S. solicitor general and former dean of Harvard Law School.
At age 90, Stevens is the second-oldest person ever to serve on the Supreme Court. If confirmed — as universally expected — Kagan will join the court at age 50 as the youngest of the current justices.
The court’s conservative majority, led by Chief Justice John G. Roberts Jr., flexed its muscles in three of the four 5-4 decisions on Monday. Moderate conservative Justice Anthony M. Kennedy joined the bloc of four liberal justices to produce a majority in the law school case.
Three of the four cases decided on Monday featured justices in dissent reading portions of their opinions from the bench — what amounts to high drama for the Supreme Court. The session opened on a somber note with Roberts noting the death on Sunday of Martin Ginsburg, husband of Justice Ruth Bader Ginsburg and a noted tax lawyer and law professor. It ended on a nostalgic note with Roberts reading a farewell letter to Stevens signed by eight of the justices and retired justices Sandra Day O’Connor and David H. Souter.
Roberts praised Stevens for his “vigor and integrity,” “unaffected decency,” and combination of “genuine collegiality with independent judgment.” Stevens responded, in what Roberts introduced as a “rebuttal,” mockingly apologizing for having “overstayed my welcome.” His voice broke at one point in the reading.
The gun ruling, McDonald v. Chicago, invalidated a ordinance that virtually banned any private possession of handguns in the nation’s third-largest city. For the majority, Justice Samuel A. Alito Jr. relied heavily on the 2008 decision in District of Columbia v. Heller, striking down a handgun ban in the nation’s capital. Because Washington is a federal jurisdiction, the ruling left open the question whether the newfound Second Amendment right to possession of a handgun in the home for self-defense also applied to state and local governments.
Emphatically, the court said yes. “The Second Amendment is fully applicable to the states,” Alito wrote in the opening of a 45-page dissent. In a 35-page dissent, Justice Stephen G. Breyer said the ruling intrudes on the states’ “quintessential exercise of police power” and invites federal court challenges to every state and local gun regulation.
Roberts spoke for the conservative majority in the final decision of the term, striking down a portion of the Sarbanes-Oxley law enacted in 2002. The act created a new agency, the Public Company Accounting Oversight Board, to regulate accounting firms _ which had been blamed for some of the corporate misdeeds implicated in the Enron and other business scandals.
In Free Enterprise Fund v. Public Company Accounting Oversight Board, the court held the structure of the bond was unconstitutional because of separation of power concerns. The law provided that the board members were to be appointed by the Securities and Exchange Commission (SEC) Roberts said that the political insulation of the SEC members combined with the political insulation of the PCAOB members — removable only for cause — infringed on the president’s executive powers.
Dissenting again, Breyer warned the ruling cast doubt on tenure-protection provisions for thousands of federal officials, including administrative law judges and what he said was half of the military’s officer corps.
The patent case, Bilski v. Kappos, had been closely watched by the patent community as a test of whether business methods were patentable. The ruling invalidated a patent allowed for a method of hedging commodities investments. In his majority opinion, Kennedy said the method was only “an abstract idea” and not patentable.
In an opinion technically concurring in the judgment but amounting to a dissent, Stevens said the court should have completely barred patents for business methods. He criticized the “timid disposition of the case.” The court’s three other liberal justices joined his opinion.
In the fourth case, Christian Legal Society v. Martinez, the court upheld what it called the “all-comers” policy for student organizations at Hastings Law School in San Francisco. The Christian group sought an exemption in order to limit membership to people who shared the group’s religious views. Ginsburg wrote for a five-justice majority that included Kennedy in upholding the school’s policy.
The court’s term will be best remembered for the dramatic Citizens United decision striking down part of the McCain-Feingold campaign-finance reform law and giving corporations and unions the right to spend unlimited sums from their own treasuries on federal campaigns. In another significant conservative victory, the court upheld on a 6-3 vote a broad interpretation of an anti-terrorism law prohibiting any “advice or assistance” or “training” to designated foreign terrorist groups.
Liberals counted some significant victories, however, including a 5-4 decision prohibiting life without parole sentences to juvenile offenders (Graham v. Florida). Free-speech advocates also counted a victory in an 8-1 decision striking down a federal law prohibiting depictions of animal cruelty (United States v. Stevens).
In criminal law, the court issued three decisions narrowing Miranda protections but two rulings that somewhat liberalized rules on federal habeas corpus challenges to state criminal convictions and sentences. And in a significant business-related case, the court barred securities fraud suits in U.S. courts for stocks sold on foreign exchanges.
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