28 June 2010


The U.S. Supreme Court ended its term with four decisions today. It is Justice Steven's last day on the bench, at least publicly. The theme for today as the Court decided the hard questions reserved for the end of the term was that the decisions were minimalist, deciding as little as possible to resolve the cases before it without setting clear guidelines to resolve the follow up questions that inevitably flow from its decisions.

The decisions:

1. In McDonald v. Chicago, the Court holds that the Second Amendment applies to the states to the same extent that it applies to the federal government; the standard of review is not determined. The decision is 5-4 with the usual conservative majority suspects; the minority votes not to incorporate the Second Amendment. A privileges and immunities clause expansion is rejected. The scope of Heller, which revived the right to possess a handgun for self-defense as an individual Second Amendment right subject to reasonable restriction of some sort, has not been fully established. Dicta in Heller which has been seized upon by the federal courts, suggest that almost all current federal gun control laws are reasonable restrictions on the Second Amendment right to bear arms, and presumably many state law restrictions would pass muster as well. But, there are many gray areas.

By clearly loosening the standard for incorporation of constitutional rights under the 14th Amendment Due Process Clause, the case also leaves open a slightly greater chance that some of the remaining few rights under the Bill of Rights that apply only to the Federal Government might be incorporated or might be incorporated more fully to apply to the states. The unincorporated rights include the right to indictment by a grand jury, the right to a civil jury trial, and the right to a unanimous criminal jury.

2. In Christian Legal Society v. Martinez, a requirement that all organizations be open to all students in order to receive funding through student fees at a public college is upheld. Some of the harder issues in the case were avoided because they were not preserved in litigation over facts that were stipulated.

3. In Bilski v. Kappos, the availability of business patents is narrowed, but they are not completely eliminated as they would have been under a ruling from the en banc U.S. Court of Appeals for the Federal Circuit. The method of hedging risk in the energy industry patented was invalidated on the basis that it was an abstract idea under existing precedents in a way that could be applied to many business patents. The precise scope of business method patents in future cases was not defined.

There were four votes to end business method patents entirely that did not prevail. But, those votes signal hostility on the court to a broad reading of business method patent scope.

4. In Free Enterprise Fund v. PCAOB, the Court holds that "the Public Company Accounting Oversight Board, was created as part of a series of accounting reforms in the Sarbanes-Oxley Act of 2002 . . . composed of five members appointed by the Securities and Exchange Commission" is unconstitutional as constituted, because "the SEC . . . cannot remove Board members at will, but only “for good cause shown,” “in accordance with” specified procedures . . . [and] the Commissioners, in turn, cannot themselves be re-moved by the President except for “ ‘inefficiency, neglect of duty, or malfeasance in office.’” Two layers of tenure remove the PCAOB to far from Presidential control. The remedy, the Court determines is to allow the PCAOB members to be removed at will by the SEC. The PCAOB otherwise continues undisturbed. The four liberal Justices, in dissent would have upheld the tenure protections for PCAOB members from the SEC as well.

Solicitor General Kagan has been nominated to replace Justice Stevens on the Court and is expected to be confirmed sometime this summer.

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