A panel of some of Washington’s top legal brass
and constitutional law experts gathered at the National Press Club ballroom
this afternoon to gaze into their crystal balls and preview some of the top
cases coming before the Supreme Court this term, which begins Oct. 5.
Akin Gump Strauss Hauer & Feld partner and
frequent Supreme Court litigator Thomas Goldstein moderated the panel, convened
by the liberal American Constitution Society for Law and Policy.
Here’s a rundown of a few cases that the
experts said could be a big deal this term:
Citizens United v. Federal Elections
Commission: Technically an extension of last term and heard in a special session on Sept.
9, this case centers on the whether corporate expenditures in political
campaigns can be limited.
Doug Kendall, founder and president of the
Constitutional Accountability Center, debated the case with Jones Day partner
Michael Carvin. Though both agreed the case is expected to fall on the side of
corporations, they disagreed on whether or not that would be good.
Kendall said the likely ruling would be
“unleashing corporate campaign expenditures” and “violating the text and
principles” of the Constitution.
Carvin, on the other hand, said corporations
should and do have the same rights as individuals.
“I don’t think eliminating their core speech
rights could be reconciled with any text in the Constitution,” he said.
United States v. Stevens: Paul Smith, a partner at
Jenner & Block, said this First Amendment case should be watched closely.
“The U.S. is asking the Supreme Court, for the
first time in a quarter century, to make an exception to the free speech clause
for (depictions of) animal cruelty,” he said, adding that it’s not clear where
the court will stand.
Salazar v. Buono: This case asks whether a war
memorial in California—a giant cross—violates the establishment clause. Smith
said the decision is up in the air here too.
“I wouldn’t be surprised if we get a very
aggressive stand on an establishment clause ruling,” he said.
Black v. United States: This test of the federal law
that criminalizes the denial of honest business to the public or an employer could be decided by Justice Antonin Scalia, said Pamela Harris, executive director of the Georgetown University Law Center Supreme Court Institute.
“I think chances are pretty good, with Scalia
leading the charge, that the court is going to do something to limit the scope
of the statute,” she said. “The question is:How much?”
American Needle v. NFL: The case questions whether the NFL is a
single entity exempt from antitrust law or a group of 32 separate companies—the
teams. Morrison & Foerster partner Deanne Maynard said if the Supreme Court
rules in favor of the NFL, this case could have wide-ranging implications beyond
just sports organizations.
“I think it could affect any kind of joint
business venture,” she said. “It could mean that in doing these (joint)
activities, the companies are a single entity.”
Justice John Paul Stevens’ potential retirement
drew some speculation from the panel, especially Maynard, who said that a woman
like Solicitor General Elena Kagan could replace him.
“It’s a very intriguing thought, to me at least, that there
would be three women” on the Supreme Court bench, she said.
Of course, the panel said they were eager to
see how new Justice Sonia Sotomayor would change the landscape of the court,
but Kendall said the real story of this term could be that it becomes an indicator of where Chief
Justice John Roberts Jr. will take the court.
“I do think this term is going to be an
enormous test for Chief Justice Roberts and the conservatives on the court,” he
said. “Citizens United is probably the biggest we’ve seen so far if it goes the
way we expect it to.”