Pamela Karlan, professor at Stanford Law School, used the final four cases heard by the U.S. Supreme Court last session as a means of elaborating on the court’s current tendencies, and what these might mean for the upcoming docket. To her, the main takeaways from the past session were the court’s interest in narrowing access to federal courts, and its extremely protectionist stance on free speech.
Karlan spoke about “The U.S. Supreme Court: Where It’s Been and Where It’s Going” at an Association of Business Trial Lawyers of San Diego meeting Monday. Before digging into the meat of the cases, Karlan pointed out that last session, the Supreme Court decided on fewer cases than it had in any year since Brown v. Board of Education. In the mid-1980s, when the quantity of cases heard began to decline, the court was hearing about 150 cases a year. Compare that to the average of 75 per year now, with only 65 signed opinions after oral arguments last session.
Karlan posited several reasons for this drop. These include declining numbers of paid petitions, in part because of no major federal statutes in the past decade save for the Affordable Care Act; changes in the rules about which cases the court must take; no judges granting certiorari on every death penalty case; and only two clerks carefully looking at the certiorari pool at present.
Of the four most recent cases, three produced written opinions, and only two were decided on after oral arguments. First American Financial Corp. v. Edwards was left unresolved, as the court dismissed certiorari as improvidently granted. While no ruling was obtained, Karlan said the oral arguments can be used to glean insights into the future of this court.
“It seemed the court might be poised to restrict standing to cases in which there’s a kind of common law injury, and not also cases in which there’s just violation of a federal statute and this person happens to be connected to the violation,” Karlan said. “This case suggests, as do a lot of cases coming down the line, that the Supreme Court is very interested in narrowing the access to federal courts across a variety of domains.”
Something the court is not narrowing is the definition of free speech. In United States v. Alvarez, the Supreme Court decided 7-2 that the stolen valor act was unconstitutional. This, taken alongside other speech cases, such as the California video games case and Snyder v. Phelps, shows how rabidly this court protects free speech.
“This is something where I think it’s fair to say the Roberts Court is probably the most libertarian court with regard to just straight-up speech issues that we’ve had in a long time,” Karlan said.
American Tradition Partnership Inc. v. Bullock was another such instance where the safety of a form of speech was protected. Here, the court ruled 5-4 to strike down a Montana law forbidding corporations from donating to political parties or candidates in light of the Citizens United case. Karlan found the dissent particularly interesting since the four justices admitted that the majority was so set in its ways that there was no point for an oral argument.
“The reason I say that that’s really interesting is that, first of all, it means that Justice Sotomayor and Jutice Kagan have decided they agree with the position that was taken by Justice Souter and Justice Stevens, so they’re now on record saying they think Citizens United is wrong,” Karlan said. “What does that [majority steadfastness] bode for the future? Well, it suggests that Citizens United not only is not going away, but that the expansions of Citizens United by lower federal courts and state courts may continue.”
The last of the four cases Karlan delved into was National Federation of Independent Businesses v. Sebelius, more commonly known as the Affordable Care Act. To Karlan, the court’s 7-2 ruling that the Medicaid expansion was unconstitutional on the grounds that it would take away existing state funds instead of simply denying additional funds, was odd. This is because the old Medicaid system worked in much the same way, meaning that if the new provision was coercive, so too was the old system.
“It looks like the Supreme Court is poised going forward to limit spending power,” Karlan said. “And I think you’re going to see a huge number of cases over the next couple of years in which people try to limit the spending power.”
Overall, Karlan saw this past term as focused on structures, while the upcoming session will be more about social issues, such as affirmative action, voting rights and the marriage definition.
As for the likelihood of an opening on the court in the next four years, Karlan said it depends on many factors, not least of which will be decided Nov. 6. She said the probability is orders of magnitude higher if Barack Obama is re-elected, considering that liberal-leaning Justice Ginsburg said she wants to retire at the same age as Justice Brandeis, which would be in 2014. With four justices over the age of 70, there is also the risk of an involuntary opening. Since every president who served a full term, except Carter, has had the occasion to appoint a judge to the highest court, Karlan said it is more likely than not that the next president will have the same opportunity.