What's Ahead for Sotomayor on the Supreme Court

When the U.S. Supreme Court convenes in an unusual special session next week, it will hear reargument in the Citizens United v. Federal Elections Commission case which may overturn the limitations on political speech created in the 2002 McCain-Feingold law.

And — even though she wasn’t on the court to hear the first round of arguments — new Justice Sonia Sotomayor will be among the justices hearing the argument and deciding the case.

Citizens United
is the first of three cases in which interested court-watchers will have their first opportunity to observe Justice Sotomayor and get a better idea of her impact on the jurisprudential leaning of the Court.

The first case of interest could signal the death knell of McCain-Feingold, the strict regulations against political speech that Congress passed in 2002. The Supreme Court has scheduled a rehearing of arguments in Citizens United v. Federal Elections Commission for September 9, nearly a month before the justices formally convene their fall term. The court heard arguments in the high-profile case last term but ordered the rehearing to determine whether the “electioneering communication” provision of McCain-Feingold is constitutional.

The implications of Citizens United are profound. The plaintiffs are arguing that their film, Hillary: The Politics of Personal Destruction, is not express advocacy and thus should not be regulated under the onerous provision of McCain-Feingold. The government, in turn, argued that movies and express advocacy by corporations have distortive effects on elections.

In response, Citizens United has argued that this “anti-distortion” rationale, created in Austin v. Michigan Chamber of Commerce, is incompatible with recent Supreme Court precedent and that government has no compelling interest in attempting to equalize political speech. The marketplace of ideas is broad and diverse, and the FEC shouldn’t decide that one actor’s First Amendment rights are any less salient that another. This argument was not lost on nine former Commissioners of the FEC who filed a friend of the Court brief in support of the plaintiff.

If Austin falls, then there is little intellectual footing supporting the Court’s decision in FEC v. McConnell, which upheld most of the provisions in McCain-Feingold. Without McConnell, the critical “electioneering communication” provision is history, and with it, most of Congress’s ill-conceived attempt to regulate different classes of political speech.

In sum, Citizens United could be the case free-speech advocates had hoped for during the Bush administration, but instead were left with a bitter taste and heightened FEC scrutiny.

The second case is Devine v. Smith. Its outcome could loosely be described as the Kelo of personal property.

In Devine, the plaintiffs had their cars and other personal property seized by Chicago police officers. The personal property, which was not returned for over a year, was seized without warrants and not one of the plaintiffs was ever formally charged with a crime. All the plaintiffs ask of the Supreme Court is that their due process rights be satisfied through a hearing immediately after the seizure of their property, rather than be subjected to indefinite confiscation.

When Justice Sotomayor hears this case in the fall, she will be confronted with established precedent. Every single court of appeals has ruled for the individual when property is seized without a warrant; a post-deprivation hearing should be granted.

Will Justice Sotomayor side with property owners who have been denied their due process rights or with the government’s heavy-handed approach?

The final notable case once again involves the tired litigation concerning religious symbols on government property. In Kempthorne v. Buono, Frank Buono, a Roman Catholic, challenged the placement of a cross on federal property by the Veterans of Foreign Wars (VFW). While Buono “does not find a cross itself objectionable,” he claims to be offended simply by the display of a religious symbol on government property.

When the case was pending in district court, Congress attempted to bypass any establishment clause challenges by conveying the land on which the cross sat to the VFW, in exchange for an equal-sized parcel. In a strange twist, the lower court then issued an injunction, preventing Congress from transferring the land, and then ruled that the federal government was violating the First Amendment because Congress still controlled the property.

As one of the dissenting judges noted, since Congress attempted to cure the First Amendment violation, the lower court ruling amounted to “nothing short of a judicial bait-and-switch.”

The Buono case will be court-watchers’ first opportunity to examine Justice Sotomayor’s Establishment Clause jurisprudence.

Many court-watchers and scholars have reviewed Justice Sotomayor’s lengthy record as a lower court judge without really being able to predict her judicial philosophy on many of the hot-button issues before the Supreme Court. Soon, however, we’ll all be provided more clarity, at least on issues dealing with property rights, the establishment clause and political speech.