Supreme Court Preview Provides Insight on New Court Cases

September 26, 2013 —

 “This term is deeper in important cases than either of the prior two terms,” said Visiting Professor Irv Gornstein, executive director of Georgetown Law’s Supreme Court Institute, as he opened this year’s Supreme Court press preview. 

Prior precedent and standards of review are common themes in six of the most prominent cases on the term’s docket. And nowhere is this more obvious than in McCutcheon v. Federal Election Commission, which questions the constitutionality of the aggregate federal contribution limits established in Buckley v. Valeo. It’s a case that is being watched especially closely after Citizens United v. FEC, in which the Court ruled that restrictions on independent campaign contributions violate the First Amendment.

“The Court could rule against the government in this case without overruling Buckley, and I suppose that this will be the most likely outcome,” said Visiting Professor Pamela Harris. 

Professor Martin Lederman noted that one consideration is how prominent in the public's mind a precedent might be. “How sacred is it?” he asked. A case that’s not as well known is easier to overrule. But overruling Buckley would have a major impact of its own. “Strict scrutiny applied to contribution limits would have a convulsive effect on what lower courts do with existing limitations and make it virtually impossible for legislatures to pass further such limitations,” Lederman said. Although five justices might want to overturn a ruling, he added, they must consider the potential outcry from such aggressive action. 

The panel also tackled Schuette v. Coalition to Defend Affirmative Action, which considers a state ban on racial preferences in university admissions. Panelists agreed that it was likely the Court would overturn the lower court’s decision striking down the state law as a violation of equal protection. In Town of Greece v. Galloway, which considers the proper test to apply in deciding whether legislative prayer violates the constitution, the Court was unlikely to change course from its earlier decision in Marsh v. Chambers, upholding the practice. “It seems like the last place that the court would want to start thinking doctrinally about … the establishment clause,” said Adjunct Professor and former Solicitor General Paul D. Clement (F'88).

Bond v. United States, which considers the federal prosecution of local crime under federal legislation enacted to implement the chemical weapons ban treaty, is a case that has the potential to overrule Missouri v. Holland — a case decided nearly a century ago — and dramatically alter the scope of the treaty power. “The constitution evolves to keep pace with the changes … [and] our reading of constitutional provisions ought to change and evolve,” Harris said.

Panelists had various opinions about the potential outcome of NLRB v. Noel Canning, which concerns the president’s power to fill vacancies under the Recess Appointments Clause. “On one hand it begins to feel as if the president is superseding Congress’s own determination of this kind of recess. On the other hand this practice of holding pro forma sessions essentially to defeat the president’s exercise of the recess appointments power is a relatively recent one,” said panelist Kannon Shanmugan of Williams & Connolly.

The 2013 Supreme Court term begins Monday, October 7.

A webcast is available here.

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