News Release: Faculty Experts, Law, Politics

Jun. 28,  2010

Supreme Court's Decisions Echo Continuing Themes

Today, the Supreme Court issued the final opinions of its 2009 Term and bade farewell to Justice John Paul Stevens, after his 35 years of service on the court. Today's proceedings highlighted certain continuing themes, says Robert Schapiro, professor of constitutional law at Emory Law School:

The "Kennedy" Court
Justice Kennedy Remains in Control

"Three of the four decisions announced today followed the by-now customary 5-4 split among the Justices. As usual, Justice Kennedy's vote was decisive. He provided the fifth vote for Chief Justice Roberts, and Justices Scalia, Thomas, and Alito to (a) apply the Second Amendment protection of the right to bear arms to states and localities and (b) strike down certain aspects of an accounting regulatory board established in the wake of the Enron scandal.

"Justice Kennedy provided the fifth vote for Justices Stevens, Ginsburg, Breyer and Sotomayor to allow Hastings Law School to apply its nondiscrimination policy to the Christian Legal Society.

"The lineup in the fourth case today, involving patent law, was complex, but the court's opinion was written by Justice Kennedy. Justice Kennedy's central place on the court will likely remain unchanged following Elena Kagan's expected confirmation."

The Court and the Last Corporate Scandal
The Court Continues to Block the Congressional Response to the Enron and Related Scandals

"Congress is now wrestling with financial reforms in the wake of the recent crisis in the financial services industry. After the last set of corporate scandals, highlighted by the collapse of Enron, Congress adopted a variety of remedial measures, including greater oversight of account practices and restrictions on corporate influence over elections-both of which were seen as culprits in the Enron scandal.

"The court has now blocked several key components of the last round of responses. Today, the court struck down certain provisions of an accounting review board established in 2002 by the Sarbanes-Oxley Act to try to prevent future accounting scandals. Earlier this year, the court struck down key components of the 2002 campaign finance bill that attempted to limit corporate influence over politics. 

"In addition, last week the court narrowly construed a federal criminal fraud provision and vacated the conviction of former Enron head Jeffrey Skilling. For better or for worse, the court is making it more difficult for Congress to address perceived corporate corruption."

Scalia v. Stevens
Is History the Exclusive Arbiter of Constitutional Rights?

"In McDonald, the case holding that the Second Amendment right to bear arms applies to states and localities, Justice Stevens wrote a 57-page dissent, explaining his view of the appropriate way to determine fundamental rights under the Constitution. In addition to historical analysis, his opinion cites contemporary considerations, including practicality and the experience in other countries.

"Justice Scalia responded with a 15-page opinion devoted exclusively to attacking Justice Stevens' views and insisting that only historical considerations provided a legitimate basis for determining the rights protected by the Constitution. In passing, Justice Scalia mentioned that under a proper understanding of the role of history in constitutional interpretation, there could not be a right to abortion or to homosexual sodomy (contrary to Supreme Court precedents).

"Now that Justice Stevens has departed, who will take up this grand debate of constitutional theory with Justice Scalia? Justice Kagan?"

No Revolutions Unless Necessary
The Court Resists Unnecessary Radical Revisions of Precedent

"When necessary to achieve what it views as the correct result, the Roberts Court is comfortable striking out in new directions: that was the message of the Citizens United case, which protected corporate political expenditures by overruling longstanding precedents.

"Today, though, the court continued its general practice of taking the well-established route to its destination. In McDonald, only Justice Thomas sought to overturn a century of precedent in arguing for a new way to understand the manner by which the court applies the Bill of Rights to the states.

"Some commentators hoped that in Free Enterprise Fund, the court would reverse precedents dating back to the New Deal and undermine the constitutionality of administrative agencies.  Instead, the court tweaked the provisions of the statute to allow the Public Company Accounting Board to continue its work largely unhindered. Further constitutional revolutions will have to await another day."


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