Supreme Court Preview Part I, Mysteries Revealed

(The following is the first in a multi-part series on the upcoming Supreme Court Term)

On Monday, the justices return from their summer recess to begin what could be the most momentous Supreme Court Term in recent memory.  This Term’s docket is jammed with hot button issues topics from terrorism to guns to football, as well as a number of pending cases which are likely to reveal many of the as-yet hidden views of the Court’s three newest justices:

• Federal Power: United States v. Comstock

With “tentherism” — the belief that everything from Medicare to Social Security to the federal minimum wage exceeds Congress’ constitutional power — experiencing a renaissance on the far right, the three newest justices are preparing to hear their first case concerning Congress’ authority to regulate.  Of the Court’s three longest-serving conservative justices, only Justice Thomas has tenther sympathies.  Both Justices Scalia and Kennedy recognize that the Constitution gives Congress sweeping authority to enact economic regulation — including the power to ban a substance such as cocaine or child porn from the marketplace.

Comstock, however, may tempt the court’s conservatives to take a bite out of Congress’ power.  Federal law permits the continued detention of “sexually dangerous” federal prisoners, even after those inmates have served the original sentence which placed them in federal prison.  Graydon Comstock, who is now challenging this law, was convicted of possessing child porn.  The only question is whether his time in federal custody can now be extended because the original law authorizing his imprisonment is constitutional, or whether the law authorizing his continued detention is an impermissible noneconomic regulation similar to a federal ban on violence against women that the Court’s conservatives struck down in 2000.

To be clear, the Court is not considering whether Comstock’s own rights are violated by a law that detains him even after his sentence is complete, the only issue here is whether the Court will recognize a new limit on Congress’ power to regulate.  If they do, especially if the new limit is far-reaching, tenthers will gain a new weapon in their war against the federal government.

• Guns and the States: McDonald v. City of Chicago

Over a century ago, the Supreme Court held that the Second Amendment applies only to federal laws.  Since then, state governments have been free to regulate firearms and other weapons in the way they deem most appropriate to protect their citizens — a piece of legal trivia that became a centerpiece of Justice Sotomayor’s confirmation hearings after her opponents disingenuously attacked her for following this longstanding precedent.  In truth, we don’t know for sure how any of the current justices feel about this issue.

The case for changing this rule is hardly a slam-dunk under existing legal framework. The framers of the Bill of Rights intended it only to constrain federal power.  While the Fourteenth Amendment changed this dynamic, several provisions of the Bill of Rights have do not presently apply to the states, including the Seventh Amendment right to civil jury trials and the Eighth Amendment’s ban on excessive bails and fines.  Under current Supreme Court precedent, the states are limited only by constitutional rights which are “necessary to an Anglo-American regime of ordered liberty,” and it is difficult to claim that a ban on firearm regulation is “necessary to . . . ordered liberty” in light of the fact that American liberty somehow did not collapse in the 219 years before the Supreme Court expansively interpreted the Second Amendment in DC v. Heller.

That said, it seems very likely that, having unexpectedly reconsidered the Second Amendment in Heller, that the Court’s conservative majority will take the additional step of applying it to the states.

• Separation of Church and State: Salazar v. Buono

The final mystery likely to be revealed this Term is just how deeply the Court’s conservatives plan to undermine the wall of separation between church and state.  For years, Justice Sandra Day O’Connor was the key fifth vote upholding the Constitution’s ban on government endorsements of religion, and Justice Alito is widely expected to provide the final vote to allow this ban to be whittled away into non-existence.

Buono, will consider whether a cross erected in the middle of a federal land preserve can be challenged under the First Amendment’s Establishment Clause, and while there is some uncertainty about how the justices will explain their decision to allow the cross to remain, their minds are probably already made up.  All that remains to be seen is whether the Court’s new majority will give free reign to the Roy Moores of the world, or whether they will save a complete gutting of the Establishment Clause for another day.