The Supreme Court returns


Published: October 4, 2009

The Supreme Court starts its new session this week with cases on its docket that could reshape the law in campaign finance, gun control and sentencing for juvenile crimes, and with the first new Democratically appointed justice in 15 years. That newest member, Justice Sonia Sotomayor, has been getting a lot of attention, but Justice Anthony Kennedy is likely to continue to wield the real power, on the most controversial issues.

Among the most anticipated cases so far are two that raise the question of whether it is constitutional to sentence juvenile offenders to life without parole. One of the defendants was just 13 when he raped an elderly woman in her home — an appalling and brutal crime, but one that did not involve homicide. We should not be giving up on a person for an act committed at 13. A few years ago, the court ruled that the death penalty for juvenile offenders amounted to cruel and unusual punishment. It should extend that reasoning to these cases.

The court has also agreed to hear the case of a man prosecuted for selling videos of dogfights, in which he was not involved. A federal appeals court ruled that his conviction violated the First Amendment. Animal abuse videos are truly loathsome, but the right approach is to criminalize animal cruelty, as all 50 states do, and not to infringe on free speech.

Following on a major case from last year in which the court struck down parts of the District of Columbia’s gun control law, the justices have decided to consider whether state and local gun control laws can also be challenged under the Second Amendment. The court should not use the case to prevent states and localities from enacting reasonable restrictions on guns.

The court will hear a First Amendment challenge to a cross that stands on land in California that once belonged to the federal government. The government gave the land to a private group to get around a court order that the cross violated the prohibition on state support for religion. The court should rule that despite the land transfer, the cross is unconstitutional.

The docket is heavy with business cases. One asks whether a way of hedging financial risk can be patented. Patents should be limited to more physical creations.

The most important business case, however, is one the court heard last month. In Citizens United v. F.E.C., the court could wipe out a longstanding ban on corporate spending on federal elections, which would allow big business to swamp democracy. We hope the court will avoid such recklessness, and rule narrowly.

The Citizens United argument marked Justice Sotomayor’s debut and she asked several questions that cut to the heart of the matter. A new justice always changes the dynamic of the court, but in ideologically charged cases, Justice Sotomayor’s positions are likely to be similar to those of Justice David Souter, whom she replaced.

That means the court is likely to remain divided between four moderate-liberals and a very conservative bloc of four, with the moderate conservative Justice Kennedy providing the swing vote. Barring any new changes in the Supreme Court’s composition, or any sudden changes of heart among the sitting justices, the law on many issues is likely to be, as it has been for several years now, what Justice Kennedy says it is.