Brief End-of-Year U.S. Supreme Court Review

As many of you know, a U.S. Supreme Court term starts on the first Monday in October and runs until the Court completes its work the following year. This is usually sometime in June. The Court has already started its 2010-2011 term, but there have been no major opinions released thus far this term. In general, the important opinions are released after Jan. of the new term. Thus, all the important decisions for the 2009-2010 term were released in 2010. Those are the subject of this review.

There were two notable victories for the Bill of Rights over government control. For the first time in 40 years or so, the Court held that a provision of the Bill of Rights was incorporated into the due process clause of the Fourteenth Amendment and were thus applicable against the states. This provision was the Second Amendment and the case was McDonald v. Chicago (130 U.SA. 3020). As expected, the liberals lined up against incorporation, the conservatives were for it, and Kennedy provided the swing vote. This is a landmark case for civil liberties in the U.S. It follows on the heels of another landmark case, D.C. v. Heller (2008) which made it clear that the Second Amendment protects individual even though they are not connected to any formal militia.
Second was Citizens United v. Federal Elections Commission (130 U.S. 876). This was a complex case. See the link below for more information on this and other cases. The Court struck down some and upheld other restrictions on expenditures, disclosure, etc. In spite of all the rhetoric it was clear that the intent/effect of the law was to give the Left and Democrats an edge in elections. The Court did not say this, but anyone intelligent enough to ask “who benefits” could see this. One of the main purposes of the First Amendment is to protect the “marketplace of ideas,” from government interference. The statutes clearly interfered, and the decision was true to the rationale of the First Amendment.
What is ironic and troubling about these decisions is that the usually political roles were reversed. Most liberals screamed like stuck pigs and most conservatives were pleased. Libertarians were overjoyed. Obama publicly criticized Citizens United. Liberals have usually championed incorporation and the First Amendment and conservatives have been more cautious on these issues. The roles were reversed, suggesting that both the liberals and conservatives are not really interested in either the Bill of Rights except when it conforms to their ideology. Only Kennedy seems to be making decisions on the basis of the Constitution, not political ideology. Hypocrisy abounds. For instance the left-leaning ACLU filed an amicus brief in Citizens United that was, in essence asking the Court to not markedly expand First Amendment rights in the case. They filed no brief in McDonald. This is a “civil liberties” organization? Yes, one where left wind ideology trumps the Bill of Rights and Fourteenth Amendment when they don’t like the decision.

There were some bad decisions, as usual. I will just mention two and not go into detail. See the opinion or the ACLU summaries of these cases at LINK

Left-wing political correctness triumphed over the First Amendment in Ginsburg’s majority opinion in Christian Legal Society v. Martinez (130 U.S. 2971). The Court continued to weaken Miranda rights in Berghuis v. Thompkins (130 U.S. 2250). Overall, it appears to me that the Court is willing to give the government the benefit of the doubt too readily, especially in capital cases.

The big news, of course, was the retirement of Justice Stevens and the confirmation of Elena Kalgan to the Court. Stevens, was, in my humble opinion, an ideologue who was more interested in furthering his leftwing policy views than in upholding the Constitution. Kagan can probably be expected to be a knee-jerk liberal. Thus there will be no overall change in the ideological balance on the Court. As is usually the case, Kennedy was, and will continue to be the, the swing vote and thus the most powerful Justice on the Court. Kennedy strikes me as being the Justice who will most likely base his decisions more on the Constitution than on policy preferences.
Finally Justice Breyer conducted an embarrassing tour to promote his newest book. Not only did he appear to be more of am egotistical, self-promoting huckster than a Supreme Court Justice, his new book confirms his left-leaning La-La Land approach to the Constitution.

In conclusion, beware! Your rights often hang by a single vote on this badly divided Court.