Precedents on the Line in New Term

The Roberts Court will confront pleas to reconsider or overrule a number of key decisions undergirding hot-button issues on the new term's docket. Will the justices take baby steps or the giant strides the activists prefer as another critical term unfolds? At least six of the court's precedents are in play, and how the court deals with them may well define the October 2013 term.

The identity of a new Supreme Court takes roughly nine years to emerge, longtime court scholar A.E. Dick Howard of the University of Virginia School of Law has said. Under the leadership of Chief Justice John Roberts Jr., the court begins its ninth year on October 7, and at least in one area of the law, its path seems clear.

When Justice Samuel Alito Jr. in 2006 succeeded Justice Sandra Day O'Connor, a supporter of campaign finance regulations, the court's conservatives gained the fifth vote needed to take several small but significant steps toward deregulation of money in federal elections. But in 2010, they leapt forward by lifting a ban on corporate independent spending in Citizens United v. FEC.

The shadow of Citizens United and the huge influx of money in the last election cycle loom over the campaign finance challenge to be argued October 8, one of at least a half-dozen cases where a landmark precedent will take center stage.

In McCutcheon and Republican Nation­al Committee v. FEC, the justices will decide whether to strike down the federal limits on the total amount an individual donor can contribute to party committees, PACs and federal candidates in a two-year election cycle. Some organizations, like the libertarian Cato Institute, have raised the stakes by urging the court to overrule Buckley v. Valeo. The 1976 landmark case created the distinction between limits on individual contributions (constitutional because of the greater risk of corruption) and limits on individual expenditures (unconstitutional).

McCutcheon has both campaign finance reformers and their opponents spinning, judging by the near daily media briefings on the case by reform groups and the number of competing amicus briefs. Shaun McCutcheon, the Alabama GOP donor who wants to exceed the aggregate contribution limits, has his own website and public relations firm hawking interviews with him. The Republican National Committee's case was brought by James Bopp Jr. of The Bopp Law Firm in Terre Haute, Ind., the same lawyer who brought Citizens United to the high court and who has become a one-man wrecking ball to campaign finance regulations.

But the court may balk at bringing down Buckley and the law's limits on the thus far sacred contributions.

"We've got a shot," said Fred Wertheimer, president of Democracy 21, a campaign finance reform group. The court has never stepped outside the framework of Buckley. The key, he said, will be Roberts' commitment to stare decisis (standing by precedent). To remove the aggregate contribution limits, he added, "All of a sudden you are overruling Buckley, McConnell v. FEC, Republican National Committee v. FEC and [Justice Anthony] Kennedy's own stated view of corruption and contributions."

Roberts was key to the outcome in Citizens United and he abandoned stare decisis with his vote to overturn a 1990 precedent and a key part of the McCain-Feingold campaign finance law that had been reaffirmed just seven years earlier. As far as overruling Buckley, he did vote to reaffirm it in a 2006 case involving Vermont's contribution limits. However, at least three justices — Kennedy, Antonin Scalia and Clarence Thomas — have indicated repeatedly that they are ready to reconsider. Roberts and Alito may be the needed two votes.

Striking down the aggregate contribution limits "would have a convulsive effect and would make it virtually impossible for legislatures to pass such limitations. And several justices think that would be a good thing," said Martin Lederman of Georgetown University Law Center. "On the other hand, overturning Buckley, like Citizens United, would cause an outcry and be viewed as something of an aggressive move."

Another potential game changer that is drawing very aggressive briefing involves an area that has entangled justices for decades: government's accommodation of religion.

In Town of Greece, N.Y. v. Galloway, the court will decide whether the town's practice of opening its meetings with prayers by local clergy — predominantly Christian prayers, according to the lower appeals court — violates the First Amend­ment's establishment clause. The lower court said the practice would appear to a reasonable observer to endorse a particular faith. O'Connor crafted the endorsement test, one of several used by the justices for establishment clause violations.

The town has asked the justices to throw out the three-prong test in Lemon v. Kurtzman (1971), from which the endorsement test was derived. Some groups are urging an end to the endorsement test and the use of a test for whether the religious practice is coercive.

REMEDYING A TRAIN WRECK

"Whatever side one is on, our establishment clause jurisprudence is a train wreck in terms of the proliferation of tests," said Scott Gaylord of Elon University School of Law.

The court could use the case to try to bring some coherence to this area, say some scholars and court litigators. However, the conservative justices generally have been sympathetic to more government accommodation of religion so the challengers in the Greece case have an uphill fight.

"The court has been very receptive to claims there needs to be room for more religion in the public square," said Pamela Harris, former principal deputy to the assistant attorney general for the Office of Legal Policy at the U.S. Department of Justice. "But whose religion? I think this case will force the court to begin to grapple with that question."

Or, not. The justices may take an "easy off ramp" because of their 1983 decision in Marsh v. Chambers, upholding the Nebraska Legislature's opening prayer practice. Marsh held that the practice was constitutional as long as there was no impermissible motive and the prayers did not disparage any other religion, said high court litigator Andrew Pincus of Mayer Brown.

"The court could say this is government prayer; we have Marsh, and that's the answer," Pincus said. His colleague, Paul Clement of Bancroft, agreed, adding, "This is going to be Marsh redux. It's about the last place where the court would want to think doctrinally about the establishment clause."

Along with Buckley and Lemon add to the endangered list: Hill v. Colorado (2000), upholding a buffer zone around abortion clinics; Washington v. Seattle School District No. 1 (1982), striking down a voter initiative that burdened racial minorities within the government process; Missouri v. Holland (1920), establishing Congress' power to give effect to treaties ; and even Kelo v. City of New London, Conn. (2005), the taking of private property to sell to private development for public use.

"If there are six to 10 cases in which a court precedent is vulnerable, you can be sure the court is not going to overrule the vast majority of those precedents," Georgetown's Lederman said. "It doesn't want the headline at the end of the year to be about the Roberts term of overturning federal precedents."

The new term, however, becomes one in which the past clearly raises the stakes for the future, not only for the future of the Roberts Court but potentially for a broad swath of constitutional law.

Reprinted with permission from the September 30 edition of The National Law Journal © 2013 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.