The end of the Term in plain English

By Lisa Tucker
on Jun 30, 2010 at 11:33 pm

Can you believe it’s over?  Well, of course, not everything is over – we are still glued to the TV, watching Elena Kagan’s confirmation hearings with enormous interest.  But the Court has finished issuing its opinions in the cases that were argued during the October Term 2009 (so-called because it began in October, 2009), and all seventy-seven argued cases have been disposed of.

Why was Monday was such a banner day at the Court?  Because in a single day, the Court handed down opinions in four cases, three of which were among the biggest of the Term; the confirmation hearings began; and Justice Stevens said farewell after thirty-four years of service.

Let’s talk about Monday’s decisions, starting with the case that had patent lawyers in a tizzy for months – after all, the biggest patent case in years, Bilski v. Kappos, was argued way back in November.  At issue was the question of whether a business method – such as a process or idea for a new way of doing business – could be patented.  In deciding the case, the Court had to decide whether to uphold the “machine or transformation” test, one that required patented inventions to be created by a machine or transformed from one kind of entity to another.

So, all of those patent lawyers who were waiting on Bilski are breathing a sigh of relief this week – or sort of.  The Court held that business methods are patentable, even if they don’t involve a machine or transformation; however, it cautioned inventors that “broad patentability” for such methods was probably inappropriate and gave a respectful nod to the Federal Circuit – the intermediate federal appeals court that deals with patent cases – and its wisdom in such matters.

Bilski is a great example of a case in which the Court is unanimous in its judgment but not in its reasoning.  What does that mean?  Well, it means that all of the Justices agreed about who should win the case , but not about why.  For example, Justice Stevens wrote a concurring opinion (joined by Justices Ginsburg, Sotomayor, and Breyer) in which he suggested that the ruling would lead to trouble – perhaps what lawyers call a “slippery slope” – and suggested that business methods should not be patentable at all.  In fact, based on the authorship of other opinions from the November sitting, many Court watchers predicted that Justice Stevens was writing the majority opinion in Bilski.  Perhaps he was originally assigned to write it, but could not get enough votes for his version?  We can speculate, but we may never know for sure.

The Court was cautious in more than one case on Monday.  As I explained here, in Christian Legal Society v. Martinez, the Court surprised many in holding that public universities can deny recognition and funding to student groups with exclusionary membership requirements.  In a poll of SCOTUSblog readers, this case didn’t hold much interest, but I join Tom in believing that it’s actually really compelling and far-reaching.  In this case, a Christian group at Hastings Law School sought campus recognition, which brought with it school funds and other benefits.  However, the group required its leaders to sign an oath stating that they agreed with the group’s key religious views, including that homosexuality was wrong.  When Hastings refused to declare it an official student organization, the group sued, stating that its right to freedom of association had been violated and that the law school had illegally engaged in religious discrimination.

As I noted when the case was argued, the issue was a tough call, presenting good arguments on both sides.  It looks like the Court saw it the same way, deciding five to four in favor of the law school, but cautioning that university policies about recognizing student groups must be neutral and aimed at organizations in general, not targeted at any particular group or type of group.  In other words, universities are not required to make special exceptions to their non-discrimination for religious groups.  In his dissent (which was joined by Chief Justice Roberts and Justices Thomas and Scalia), Justice Alito accused the majority of making a religiously biased decision that would allow the universities themselves to discriminate against student groups based on viewpoint.

This seems like a good opportunity to explain the concept of a dissent.  A dissenting opinion, while sometimes vociferous, has virtually no legal value.  Its primary purpose is to offer another way of viewing or deciding the case before the Court.  Although they are not the law of the land going forward, they sometimes resurface years down the road, with a new Justice or a new alliance borrowing language to use in a majority opinion.  The law does change, although slowly and incrementally in most cases, especially when Justices retire and others succeed them. Therefore, getting the viewpoint on the table is not as futile as it might otherwise seem.

And now, the case you’ve been waiting for . . .  McDonald v. City of Chicago.   I probably don’t need to say too much about this case, as SCOTUSblog is in the process of posting lots of commentary from folks who know an awful lot about the Second Amendment.  What’s more, you can’t turn on the radio or TV this week without hearing about this case, in which the Court was considering whether its 2008 ruling in District of Columbia v. Heller – the landmark case holding that the federal government cannot limit the right of individuals to keep and bear arms – should also apply to states and municipalities.  As I explained in a Plain English post here, the constitutional concept is called “incorporation”; also at issue (and also explained in the linked post) was just what portion of the Constitution the Justices would use when holding that the right was incorporated (as most were fairly sure they would do).

The case arose because Chicago had a law on its books outlawing handgun possession.  After Heller, most Court watchers and those interested in the gun lobby predicted that this law, like those in other cities and states, would also inevitably fall.  The Court did not surprise, with the same Justices who were in the majority in Heller voting for incorporation in McDonald.

Even though many agree with the four Justices who dissented, arguing that the decision could lead to violence, the Justices in the majority made the decision based on their reading of the Constitution, rather than on potential safety implications.  The case is therefore a great example of one in which the text and history of the Constitution drive a legal decision, even when the decision may lead to less-than-desirable practical consequences.  The same is often true when, for example, a Supreme Court decision about the Fourth Amendment leads to the release of a confessed criminal.  The remedy?  An amendment to the Constitution, a difficult and rarely successful enterprise.

Monday also featured one other opinion: Free Enterprise Fund v. Public Company Accounting Oversight Board. In this case – less well-known than the other three decided Monday, but no less important in many ways – the Court held that members of a Public Company Accounting Oversight Board  may be removed for reasons other than good cause, because the Securities and Exchange Commission oversees the Board.  Because the President oversees this component of federal law, the Act limiting removal to cases involving good cause was unconstitutional in restricting his power to do so.

I’ve got lots of questions in my Plain English inbox, including queries about what Justice Stevens will do now and why we have confirmation hearings if they’re just the “charade” many think them to be.   Another great question:  Just what do the Justices do over the summer, anyway?  Answers to these questions, plus a few thoughts about the Term, in my next post.  Until then!