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New Court Term Puts Spotlight on Gun Rights, Free Speech, Business

October 5, 2009 at 12:00 AM EST
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The Supreme Court opened a new term on Monday with a docket full of cases concerning corporations, compensation, and the financial markets. Marcia Coyle of the National Law Journal previews the term with Gwen Ifill.
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GWEN IFILL: Here now for a look ahead at the coming Supreme Court term is Marcia Coyle of the National Law Journal.

Welcome back, Marcia.

MARCIA COYLE, National Law Journal: Thanks, Gwen.

GWEN IFILL: First day back in school, almost. First Monday in October, the court is back. What are the big issues that they’re facing this term?

MARCIA COYLE: Well, Gwen, it’s going to be, I think, a very interesting term. I believe that we will learn a lot about the court’s newest justice, Sonia Sotomayor, and I think we’ll also learn quite a bit about where the Roberts court is headed.

And I feel that way because there is almost a rich list of constitutional issues on the court’s docket. Constitutional cases don’t dominate the docket. In fact, it’s really cases that have to do with interpreting statutes and regulations that have the greatest number on the docket.

But the constitutional issues, they reveal the fault lines among the justices, and there are also just really interesting fact patterns in the cases.

GWEN IFILL: Well, this week, for instance, you’ve got two First Amendment cases right off the bat.

MARCIA COYLE: Absolutely, and two very different First Amendment cases. One involves speech, and one involves religion. The speech case…

GWEN IFILL: Good thing they’re not hot-button issues, huh?

MARCIA COYLE: Right, absolutely. The religion case, these cases always tie the court up in knots. The speech case involves a federal law that was enacted in 1999. It prohibits the possession and distribution of images of animal cruelty, and the Obama administration is defending that.

A Virginia man was charged with possessing and trying to sell images of animal cruelty. It really included a dog fight video made in Japan. And he says that this is protected speech. The Obama administration is asking the court to say, no, this is a category of speech that isn’t protected by the First Amendment.

The religion case involves the type of case we’ve seen time and again at the Supreme Court. A cross was erected in the Mojave National Preserve. It was erected in 1934 by the Veterans of Foreign Wars. The challenge here is that this violates separation of church and state. It’s a cross on public land.

GWEN IFILL: Seventy-five years later, this finally makes its way to the Supreme Court?

MARCIA COYLE: It’s actually been in the courts a while, but really only about 10 years. But you’re right: It took a long time.

Congress saw the problem and tried to solve it by transferring the acre of land in the preserve that the cross is on to the VFW in exchange for an acre of land somewhere else, but the court saw this as trying to circumvent the court’s order that the cross should come down.

Guns, patents, and punishment

Marcia Coyle
National Law Journal
The constitutional issues, they reveal the fault lines among the justices, and there are also just really interesting fact patterns in the cases.

GWEN IFILL: There's also a gun law case, in fact, D.C. gun law that's coming and making its way to the court.

MARCIA COYLE: It's a follow-up to the D.C. gun case. If you recall in 2008, the Supreme Court in a 5-4 decision ruled that the Second Amendment guarantees, protects an individual's right to possess a gun in the home for self-defense. And in ruling that way, it struck down a District of Columbia gun control ordinance.

The District of Columbia is a federal enclave. The question that was left open is, does the Second Amendment apply to state and local gun laws? And that's the question that the Supreme Court said it will decide.

GWEN IFILL: There is also a couple of business cases, patent innovation, things like that?

MARCIA COYLE: This is probably one of the few patent cases everybody can get into, because it involves the most basic question of, what can you give a patent to? What sort of thing, object, process can you protect with a patent?

In this case, two men came up with a method of calculating the risk involved in the buying and selling of energy commodities, and the courts said this was too abstract. It has to be a tangible thing, a machine or something that transforms it into an object.

And the Supreme Court is going to take a look at it. It has huge ramifications for our intellectual property in this country, which, as you know, is pretty much the engine of our economy.

That's not so much a constitutional case. There's another really interest in two cases that are coming to the court on the heels of the Supreme Court's decision several years ago that found that executing juveniles violated the Eighth Amendment's ban on cruel and unusual punishment.

This time, the court is being asked whether that same prohibition in the Eighth Amendment is violated when you sentence juveniles to life in prison without parole for a non-capital crime. Those two cases -- one involves someone who was 13 when he sexually assaulted and robbed an elderly woman. The other case involved a 17-year-old who was engaged in armed robberies. There are about six states that allow life in prison without parole for juveniles.

A changing court

Marcia Coyle
National Law Journal
The first day of the new term is always sort of exciting, and there's feeling of anticipation, but we got a little bit of a preview of the new court with Justice Sotomayor in September.

GWEN IFILL: All right, we have our court here on display. Let's look at them and see what it was like today. We have a new justice, obviously, Sonia Sotomayor here on the right, and we have rumors of a departing justice, and we have a new solicitor general who's also coming to the court for the first time.

MARCIA COYLE: Absolutely. The first day of the new term is always sort of exciting, and there's feeling of anticipation, but we got a little bit of a preview of the new court with Justice Sotomayor in September when the court heard arguments in the big campaign finance case.

But what happens is, when a new justice comes on and that justice is now the junior justice, is the seats on the court, everybody changes except the most -- the chief justice, who's right in the middle on the bench, and the most senior justice is John Paul Stevens, but everybody else sort of shifts one. So she is now at the far right end of the bench, as you look at the bench.

As you mentioned, Solicitor General Elena Kagan, this is her first full Supreme Court term. She made her maiden argument in September in the campaign finance case, and I believe she's scheduled to argue the cross case this week, as well. She will have an opportunity to really put her stamp on how the government approaches cases in the Supreme Court.

GWEN IFILL: And Justice John Paul Stevens, apparently the word is that he hasn't been hiring enough clerks, so that's supposed to be a sign of something.

MARCIA COYLE: It's one of the tea leaves that all of us read. Most of the justices hire clerks for the next Supreme Court term, so they're a term ahead of themselves. Justice Stevens, who was always one of the justices who hired earliest, has only hired one clerk for the next term. And that's a sign to some that he may be thinking about retiring.

GWEN IFILL: Does that really affect the work of the court when there's that potential or there's that buzz in the hall? Or do people just do their jobs and leave it to those of us on the outside to speculate?

MARCIA COYLE: Well, I think it doesn't -- well, I don't know how it affects the justices. I'm sure -- I think they respect each other's decision- making process. And I'm sure, if they're wondering if he hasn't really indicated to anybody if he's keeping his own counsel, I'm sure they're wondering like the rest of us.

And Justice Stevens would be -- to lose him would have, I think, a major impact on the court. Even though he is on the wing of the court that doesn't often prevail in cases, he has been sort of a master strategist at winning Justice Kennedy and preserving some liberal victories.

GWEN IFILL: Whereas Justice Sotomayor's ascension doesn't really change the balance of power or ideology on the court that much.

MARCIA COYLE: It does not. I mean, she's viewed as having views very similar to her predecessor, Justice Souter. However, we don't really know. I mean, there are certain areas where she may not be Justice Souter, and I would think, maybe in criminal procedure, given her background as a former prosecutor and trial judge, maybe in some of the business cases. She was a corporate litigator.

We have to wait and see. We didn't learn much about her during her hearings, also, in terms of how she looks at the Constitution, so I think the cases that we just talked about will give us greater insights into how she views the law.

The legacy of Justice O'Connor

Marcia Coyle
National Law Journal
The truth of the matter is, she was replaced by Justice Alito, and he's more conservative than she was. She was a true swing vote on the court, and she swung in more areas than Justice Kennedy does today.

GWEN IFILL: Final thought on a court-related issue. Retired Supreme Court Justice Sandra Day O'Connor gave remarks this weekend at the College of William and Mary in which she was asked whether she regretted -- I think the way she -- I think the word "dismantled" was actually put to her -- that people were dismantling her legacy, yet but she agreed.

MARCIA COYLE: Yes, she did. I mean, the truth of the matter is, she was replaced by Justice Alito, and he's more conservative than she was. She was a true swing vote on the court, and she swung in more areas than Justice Kennedy does today.

So the court is more conservative now with Justices Alito and Chief Justice Roberts than it was when she sat on it. So those cases in which she did tend to lean more to the left, to the liberal wing, they may not stand much longer.

GWEN IFILL: And yet, she said, she was happy to see -- even though we assume she doesn't agree with everything that Justice Sotomayor may believe in, she was happy to see another woman on the court.

MARCIA COYLE: She and Justice Ginsburg have been very outspoken in recent years about the need for more women, more minorities on the court, more diversity, not only in terms of gender, but also in terms of background.

GWEN IFILL: What are you looking forward to the most?

MARCIA COYLE: I think just learning, learning about the new justice, Justice Sotomayor, and also seeing if some of the hints that the Roberts court dropped last term about how it may undo some recent precedents, whether that's going to come true.

GWEN IFILL: Well, Marcia, we're looking forward to hearing your take on events at the court as always this term. Thank you so much.

MARCIA COYLE: My pleasure, Gwen.