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High Court Ends Term with Decisions on Handguns, Student Organization Funding

July 5, 2010 at 12:00 AM EDT

RAY SUAREZ: Next: taking stock of the just-completed Supreme Court term.

JEFFREY BROWN has our story.

JEFFREY BROWN: The Supreme Court tackled issues from campaign finance reform to gun control, from gay rights to Miranda rights. It was the first term for Sonia Sotomayor, the last for John Paul Stevens, and featured an unusual public spat between members of the court and the president.

We take a look back at the term now with three veteran court-watchers, Tom Goldstein, a Washington lawyer and founder of, Paul Butler, professor of law at George Washington University and a former federal prosecutor for the Department of Justice in the Clinton administration, and Neomi Rao. She teaches constitutional law at George Mason University and served as associate counsel and special assistant to the president in the George W. Bush White House.

Tom Goldstein, I will start with you.

One of the themes of this term clearly has to be the extent to which we have seen the growth and solidification of what we could call a Roberts court. What does that mean?


TOM GOLDSTEIN, founder, Well, we’re talking about the conservative majority on the court led by our chief justice, John Roberts.

And, in the biggest cases, the ones that would lead the “NewsHour” in the evening, campaign finance, gun rights, cases you mentioned, the court’s conservatives did hold a majority and advance the ball in that direction.

But, if you look beneath the surface, I think, in cases we can talk about, you will see that the court’s left had some successes as well — overall, I think a mixed term.

JEFFREY BROWN: A mixed term.

Paul Butler, what do you see?

PAUL BUTLER, professor, George Washington University School of Law: I see conservative judicial activism. I see a conservative court that is bold, that’s aggressive, that doesn’t let things like settled precedent stand in its way, that, when it can decide a case on narrow grounds, chooses to decide broadly.

And I agree. It’s kind of the chief justice smelling himself. But he’s successful. He got his way 90 percent of the time.

JEFFREY BROWN: And, Neomi Rao, what do you see?

NEOMI RAO, professor, George Washington University School of Law: I think I would have to disagree with the characterization of conservative judicial activism.

I think that the conservatives and Chief Justice John Roberts have enjoyed a number of successes, but I think you can see that, in many of those cases in which they have prevailed, they haven’t gone as far as some conservatives would have hoped they would go, and, in fact, that their decisions were on the whole, I think, fairly incremental in terms of advancing the law.

JEFFREY BROWN: How about an example, Neomi Rao? What — what — give us an example of a case where they perhaps didn’t go as far as they could have.

NEOMI RAO: Well, I think the — the Sarbanes-Oxley accounting board case is one such case. I think you can see there that the chief justice set out some very important and broad principles, but the remedy that he chose largely kept the accounting board intact and its functions preserved.

JEFFREY BROWN: And Paul Butler?

NEOMI RAO: And I think that that is…

JEFFREY BROWN: Yes, I’m sorry. Go ahead.

NEOMI RAO: No, I just think that is — I think that that is one good example of where they could have gone further, but they set out some important principles and then held their position.


PAUL BUTLER, make your case, then, for where you saw them overreaching, in your words.


Well, the most notorious example is the campaign financing case, which they could have decided on narrow grounds, the same way they did — but, instead, they said the whole statute was unconstitutional. They established these First Amendment rights for corporations. It’s kind of disturbing law that everybody thought had recently been decided, recently as a couple of years ago.

And the cross in the desert case, again, they could have gone narrow. Instead, they went broad. They claim to be minimalists but they are not at all.

JEFFREY BROWN: All right, and, Tom Goldstein, you started this with mixed.


JEFFREY BROWN: So, we are talking about some big cases.


JEFFREY BROWN: They have raised some of the most important cases.


JEFFREY BROWN: But there is a whole term here of ones that get in the news and ones that don’t. So, what do you see that is mixed?

TOM GOLDSTEIN: Well, any time you have 90 decisions, and you have nine different justices, who aren’t just in camps, you’re going to get different results. Everybody can pick out their favorites.

I do think that what you see is, when the conservatives are able to really go pretty far, like in the campaign finance case that Paul Butler was talking about, that is when you have Justice Kennedy, our center justice, the one who is kind of the swing vote, when he is animated and wants to go in a particular direction, he leads, ultimately.

So, there is a case involving juvenile life without parole, where the Supreme Court held, with Justice Kennedy in control of the court, that you can’t sentence a juvenile to life without parole for a non-homicide offense. And that’s a case that went the liberal direction. He’s the one who really controls the biggest decisions, I think.

JEFFREY BROWN: But in the other cases where — and, for example, Paul Butler, I think it was, who said that the chief justice was — got his way is the way I think he put it in 90 percent, that means he voted on the winning side.

TOM GOLDSTEIN: Well, that’s right. He was in the majority 90 percent of the time. But a goodly number of those cases, he was actually along with the left. There might be 6-3 cases. So, I gave that you juvenile life without parole example.

He was with the liberals in the result, although he voted for a narrower standard in that case. So, he really is trying to lead the court, I think. He is trying not to be uniformly aligned with the conservatives.

JEFFREY BROWN: And let me ask you to start this next round of questions…


JEFFREY BROWN: … which is where — when you look at the intellectual energy or the pushing on this court, where does it come from?


TOM GOLDSTEIN: Yes. Well, here Paul Butler is, I think right, where the direction of the court when it comes to moving the law is with the conservatives.

The left of the court, we don’t have the true liberals of a Thurgood Marshall or a Justice Brennan anymore. You have the left of the court kind of holding on by its fingernails, almost, trying to say, don’t change the law anymore. Don’t move campaign finance. Don’t pull back on the Miranda warnings.

The left doesn’t have an energetic movement to try and advance the law.

JEFFREY BROWN: Let me bring in Neomi Rao on that one.

Where do you see the intellectual energy?

NEOMI RAO: I think I would agree with Tom. It seems that much of the intellectual energy is on what’s characterized as the conservative wing of the court.

And you can see there are a number of interesting debates amongst the conservative justices. So, for example, in the McDonald case, which dealt with handguns and whether the Second Amendment should be incorporated against the states, there was — there were four justices who wanted to decide that question on substantive due process grounds, and Justice Thomas concurred in the opinion and suggested it should be decided on privileges and immunities grounds, which is really — which is — I think displays a lot of intellectual energy, when you are willing to talk about a doctrine that has been moribund for some 100 years.

JEFFREY BROWN: So, Paul Butler, come on this question. Where does that leave the ones — the judges — justices we refer to as the liberal justices? Trying to hold on to territory, rather than pushing things their way, or what?

PAUL BUTLER: Yes, Jeff, and maybe hoping that Justice Kagan is going to come in and shake things up, provide some energy.

You know, frankly, the progressives on the court now, they are older. Justice Stevens, their leader, was 90 years old. The other ones are getting on in years, and they seem a little less energetic. So, maybe — you know, we have no idea how Justice Kagan, if she is confirmed, will actually rule.

But if she is a judge the way a lot of us expect, maybe she will provide some of the energy for the left that Justice Scalia provides for the right.

JEFFREY BROWN: What — just staying with you, of course, it was the first term, as we said, for Justice Sotomayor. Did that — what did you see from that in terms of impact, energy, decisions?

PAUL BUTLER: Well, you know, her first big dissent was in a Miranda case, where she really let the court and especially Justice Thomas have it. She didn’t like the way it ruled. And she said they were turning Miranda upside-down.

So, you know, some people weren’t sure where she would be on criminal justice, because she is a former prosecutor. But she seems a pretty doctrinaire conservative. I mean, she is not way out there. She is not going to move the ball way to the left, but she is pretty standardly progressive.


JEFFREY BROWN: Yes. You said conservative. I think you mean a doctrinaire liberal.

PAUL BUTLER: Yes, she’s not a — she is kind of moderate, again, like the justice she replaced. She’s a little bit more to the left, but she’s not a flamethrower, if you will.

JEFFREY BROWN: Now, Tom Goldstein, I read a synopsis you did looking at the whole term, and you said that a change in the court’s composition can have unexpected consequences. You were referring to what justices themselves say. How did that show itself this year?

TOM GOLDSTEIN: Well, Justice Souter had departed. He was on the left, although he was a George H.W. Bush appointee, replaced by Sonia Sotomayor.

And, this term, we just saw a lot more kind of unusual combinations among the justices, where Sonia Sotomayor could be with any number of different alignments. And, with Elena Kagan coming in, as Paul Butler talks about, I think will you see more of that.

For a long time, for 10 years, the Supreme Court didn’t change. Now we have had John Roberts, Sam Alito, Sonia Sotomayor, and almost certainly Elena Kagan.


JEFFREY BROWN: All within a fair — relatively short period, isn’t it?

TOM GOLDSTEIN: Yes. And — exactly right. And, over the past 15 years, that a big shakeup, in the last five in particular.

And so I think that’s a good thing. If the court is just perceived as a bunch of ideologues — OK, it’s going to be 5-4, and we will see which way Justice Kennedy goes — we get a lot less public confidence. I think we get worse decisions. So, I think it’s progress just getting that renewed energy.

JEFFREY BROWN: Well, that does mean – Neomi Rao, does that mean a lot of this is sort of a work in progress, because a lot of these people are still relatively new?

NEOMI RAO: I think that that is right. I mean, if Elena Kagan is confirmed, we will have four new justices in a span of five years, right, which, as Tom said, is a tremendous amount of turnover.

And with the new chief justice, I think that the new composition of the court is just starting to take shape, and it will be very interesting to watch how things do shake up. And I think, in talking about the narrowly divided decisions, I think this term, some 46 percent of the decisions were 9-0.

So, sometimes, it’s — sometimes, I think it’s easy to overstate some of the disagreement on the court, when in fact in a large percentage of cases, they’re actually all on the same page.

JEFFREY BROWN: Tom Goldstein, one more thing. I mentioned this public spat that grew out of the Citizens United case, the campaign finance. Are there continuing repercussions to that? Did it put the court in a more public eye than in — than normal?

TOM GOLDSTEIN: Well, the administration has decided to run against the Supreme Court kind from a populist angle, to say that the Supreme Court is too pro-corporation.

And so I don’t think we’re done with this yet. I think they believe there is a political upside. In terms of whether or not the Supreme Court backed off, or that the conservatives will get upset, I don’t think so. Everybody is a grownup here. The justices are kind of used to the Washington mentality. So, I don’t see it generating greater clashes, but it’s — the story is not done. That’s for sure.

JEFFREY BROWN: Paul Butler, what do you think about that one?

PAUL BUTLER: Well, you know, it was an interesting TV moment.

A lot of people, when they saw Justice Alito shaking his head at something President Obama said and saying, “That’s not true,” thought it was disrespectful. But I don’t know if it has much weight outside of that.

You know, the president says that he wants Congress to do something about that campaign financing case. But the court decided that on constitutional grounds. So, short of abolishing or amending the First Amendment, I’m not real sure what the court can do — what the Congress can do.

JEFFREY BROWN: And a last word from you, Neomi Rao? Do you see any lasting repercussions from that spat or movement on the case itself?

NEOMI RAO: Yes, I’m not — I don’t know about the lasting repercussions, but I think it’s interesting that the president has been willing to so publicly criticize the Supreme Court, and that Chief Justice Roberts hasn’t been shy about responding.

I think that that is an interesting dynamic and one that I suspect we will see more of in the coming years.

JEFFREY BROWN: All right, want to thank you, all three.

Neomi Rao, Paul Butler, Tom Goldstein, thanks a lot.


NEOMI RAO: Thank you.

PAUL BUTLER: You’re welcome.