Cases to Watch: Three Predictions and a Very Scrambled Summary

Checking in at the Supreme Court

N.B. This post was written and set to publish prior to President Obama’s announcement that he has chosen Solicitor General Elena Kagan to fill Justice Stevens’ seat. More on that is bound to come–in the meantime, pardon the outdated paragraph below.

As John Paul Stevens’ last term on the Supreme Court draws to a close and the Senate prepares for another confirmation battle, speculation is rife on Capitol Hill about which woman (it’s bound to be a woman) President Obama will anoint as the next part of his legacy on the nation’s highest court. Before we jump ahead to summer, though, I want to recap a few of this term’s most interesting cases and offer my predictions on their outcomes. Counter-predictions in the comments—especially when accompanied by wagers of delicious beverages—are always welcome.

Salazar v. Buono

It defies the laws of logic to predict an outcome already known, so this is less of a prediction and more of a confused attempt at understanding what’s going on with this case.

On April 28, the Supreme Court handed down its decision in Salazar v. Buono. The case concerns a federal statute conveying a small chunk of the Mojave Desert from the federal government to the Veterans of Foreign Wars. The parcel of land in question contains a 65-year-old veterans’ memorial—a memorial that happens to be shaped like a cross—and Congress enacted the land-transfer statute after a 2002 decision by the 9th Circuit declared the memorial’s existence on federal land a violation of the Establishment Clause.

The reasoning in this case is incredibly fractured. Only two and a half justices joined the official opinion, and the three concurrences and two dissents bring the total number of opinions to six. By a vote of 5 to 4, the Court opted to reverse the 9th Circuit’s decision that the land-transfer statute was unconstitutional in light of the 2002 injunction and remand for further proceedings. From my perspective, the most interesting issue here—the question of whether “offended observer” status is grounds for standing before the Court—remains to be decided in another case. If you’re interested, you can find a PDF of the syllabus and opinions here.

McDonald v. Chicago

A state/municipal law version of District of Columbia v. Heller, McDonald asks whether the Second Amendment extends to the invalidation of a Chicago ordinance prohibiting the registration of handguns. This case is interesting not only on the firepower front but because, in the March 2 oral argument, counsel for petitioner Alan Gura attempted to convince the Court to strike down the Chicago statute using the Privileges and Immunities Clause of the Fourteenth Amendment—a clause that has essentially been dead letter since the Slaughterhouse Cases were decided in 1873. (Lest anyone think him completely crazy, Gura did concede that if the Court rejects his P&I argument, he’d be happy to see McDonald win via substantive due process.)

Prediction: Based on the justices’ reception of the privileges and immunities pitch, I think the Court will reject Gura’s reasoning but overturn the Chicago statute anyway. Vote: 5 to 4.

CLS v. Martinez

Depending on whom you ask, this case is either about standard restrictions on access to a subsidy, in which a discriminatory organization has legitimately been denied minor benefits when it refused to comply with a neutral and generally applicable policy, or it’s about the right of a private association to organize around particular ideas and exclude from leadership those who disagree with its fundamental principles, and also (kind of) about viewpoint discrimination.

At stake is the future of the Christian Legal Society chapter at the University of California Hastings College of the Law, which was denied official recognition for failing to comply with the sexual orientation clause of Hastings’ nondiscrimination policy, which then turned into an “all-comers” policy, which then turned into a policy permitting registered student organizations to exclude students on the basis of attendance, competitive performance, or the nonpayment of dues but not on the basis of “status or belief.” None of Hastings’ justifications for denying CLS recognition should pass constitutional muster—the first was viewpoint discriminatory, the second is overbroad, and the third violates the right of expressive association—but Hastings’ perpetual shapeshifting leaves the case open to allegations of disputed material fact.

Prediction: A vote in Hastings’ favor is highly unlikely. Based on the justices’ questions in oral argument, I think that a vote to reverse (which would be a victory for CLS) is slightly less likely than a vote to vacate and remand for further factual determination. In any case, the opinions are bound to be fractured.

Doe v. Reed

I had the chance to sit in on the oral argument for this case, which involves petition signatures for a definition-of-marriage ballot initiative in Washington state. Washington public records law requires that the signatures be released, which pro-marriage advocates argue—on the basis of the post-Prop 8 uproar in California—will expose signers to harassment. I find this case particularly fascinating since Justice Scalia, whom I would have expected, offhand, to side with the petitioners, made a compelling case in OA that the First Amendment protection of political speech does not extend to a protection against being heckled because of the content of that speech. In other words, participation in political discourse requires a degree of “civic courage.”

Prediction: I think the vote will go 6-3 in favor of the state (unless Kennedy makes the fourth vote on the petitioners’ side, which he does sometimes in speech cases), with a couple of concurrences.

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