Three Constitutional law experts discussed a handful of the most important cases the U.S. Supreme Court will hear during the 2009 Term at a USC Law event.
Theodore B. Olson, former U.S. Solicitor General; Pamela Karlan, Stanford Law professor; and Rebecca Brown, USC Law professor, examined several high-profile cases involving criminal law, juvenile sentencing and First Amendment rights. Freedom of religion, animal cruelty and gun ownership were also addressed.
Elizabeth Garrett, USC Law professor and an expert on law and politics, moderated the discussion.
The Oct. 5 event, held at USC’s University Club, drew an audience of nearly 200 USC Law alumni, students, faculty, students, staff and local attorneys.
The panelists discussed and debated the upcoming U.S. Supreme Court Term, which began that day. They looked at the dynamics of the Court, the addition of Justice Sonia Sotomayor and the Court’s future.
“It’s going to be a very unusual year and we’re lucky to have a very distinguished panel before us,” Garrett said.
“This is probably the most active bench in the history of the Supreme Court in terms of how many questions they ask,” Karlan said. “And this year more than any other, I expect many cases will be closely divided.”
Added Brown: “Four or five cases that the justices took up involve issues in which Justice Sandra Day O’Connor was very pivotal. Now that Justice O’Connor has been replaced with Justice Samuel Alito, the justices are going to take a second look and perhaps change some earlier rulings.”
Among several cases highlighted on Monday was Citizens United v. Federal Election Commission, which Olson argued on behalf of Citizens United in September.
The case centers on the 90-minute documentary “Hillary: The Movie” that Citizens United made and attempted to show during the 2008 election season. But because the movie was highly critical of Hillary Clinton, the FCC blocked the release, arguing it was a campaign ad and subject to regulation by campaign finance laws.
Olson believes those laws violate the 1st Amendment rights of corporations and unions by banning them from political speech.
“It’s a very important case because it has to do with speech and elections,” he said. “It hits at the very core of the 1st Amendment.”
Because the movie was financed with corporate money close to an election, Brown said the FCC could have a case. “I think we should think about it very hard when it comes to whether political statements should be made by corporations,” she said. “If corporations can give a percentage of their potentially huge net profits to campaigns, then they’ll have the ability to swamp deliberative democracy.”
Added Karlan: “I think the question is: What counts as a human being when it comes to according constitutional rights?”
Other cases to watch this term include United States v. Stevens, an animal cruelty case; Salazar v. Bono, which involves religious icons on public property; and McDonald v. Chicago, a gun rights case.
Sullivan v. Florida and Graham v. Florida question juvenile sentencing laws.
“Both cases ask the question: Can juveniles get life without parole?” Karlan said. “Is the cruel and unusual punishment clause violated when juveniles are sentenced to life without parole? It’ll be interesting to see if the Court leaves it to the states.”
Although not yet before the Supreme Court, Garrett asked Olson to discuss his challenge to Prop. 8, the ban on same-sex marriage in California, which is now in the federal courts. Olson is challenging the constitutionality of the ban with longtime adversary David Boies, who was on the opposite end of the Bush v. Gore case that Olson argued and won in 2000.
“Someone is going to bring a case and I thought it should be done right,” Olson said. “It’s a terrible, tragic mistake that we’re discriminating against people who happen to want to be married to people of the same sex. Everyone thought it was a great idea for David Boies and me to take it on. You have two people on the opposite side of the political spectrum showing that this isn’t a Republican issue or Democratic issue but a human rights issue.”
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