Welcome back to LIIBULLETIN, the Legal Information Institute Supreme Court Bulletin.We at LIIBULLETIN are excited to cover the Supreme Court’s 2009–2010 term — the first for Justice Sonia Sotomayor. In August, the Senate confirmed Justice Sotomayor, the Court’s first Hispanic and only its third female justice, by a vote of 68 to 31. Justice Sotomayor replaced Justice David Souter, who retired in June. The addition of Justice Sotomayor is not expected to alter the Court’s ideological balance.
This September, while still officially in its summer recess, the Court, including newly appointed Justice Sotomayor, reheard Citizens United v. Federal Election Commission, No. 08-205. The Court had previously heard Citizens United, an important campaign finance case, in March. In this case, the Court will decide whether the Bipartisan Campaign Reform Act’s (“BCRA”) restrictions on corporate financing of “electioneering communications” apply to a nonprofit corporation’s ninety-minute documentary critiquing then-presidential candidate Hillary Clinton. The Court may also address the broader question of whether such restrictions violate the First Amendment rights of corporations. An affirmative answer to the latter would significantly decrease Congress's power to regulate corporate involvement and influence in political campaigns.
The Court’s 2009–2010 term begins in October. Below, we have identified several other high-profile cases from the upcoming term.
Controversial Issues on the Docket
Criminal Law and Procedure
In two cases originating in Florida, Sullivan v. Florida, No. 08-7621 and Graham v. Florida, No. 08-7412, the Court will clarify the applicability of the Eighth Amendment’s ban on cruel and unusual punishment to life sentences without possibility of parole imposed upon juveniles for non-homicide crimes. These cases follow in the wake of the Court’s recent Eighth Amendment decision in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), which limited the constitutional scope of the death penalty, holding that the Eighth Amendment prohibited the application of the death penalty in cases of child rape.
United States v. Comstock, No. 08-1224, presents the issue of whether Congress has the power to enact legislation providing for the court-ordered civil commitment of “sexually dangerous” persons who are either nearing the end of prison sentences or who are in federal custody because they were found mentally incompetent to stand trial.Congress authorized such court-ordered civil commitments for sexually dangerous persons in 2006 when it enacted 18 U.S.C. § 4248. A “sexually dangerous” person is one who “has engaged or has attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others.” 18 U.S.C. § 4247(a)(5).
The Court will clarify two issues regarding custodial interrogation and the Fifth Amendment in Maryland v. Shatzer, No. 08-680 and Florida v. Powell, No. 08-1175. In Shatzer, the Court will determine whether a suspect’s initial invocation of his right to counsel effectively bars the commencement of custodial interrogation two and a half years later. Powell presents the issue of whether under Miranda v. Arizona investigators must explicitly advise a suspect that he has the right to have counsel present during custodial interrogation, as opposed to only notifying a suspect that he has the right to speak to counsel before answering questions while in custody.
Corporate Law and Finance
The Court will determine in Free Enterprise Fund v. Public Company Accounting Oversight Board, No. 08-861, whether certain provisions of the Sarbanes-Oxley Act of 2002 regarding the Public Company Accounting Oversight Board (PCAOB) are unconstitutional based on a separation of powers theory. Under Sarbanes-Oxley, the members of the PCAOB wield significant executive power, yet the president lacks the power to remove or appoint its members. Petitioners claim that Sarbanes-Oxley unconstitutionally strips the president of his ability to control and supervise the executive branch of government and also violates the Appointments Clause.The Court will decide whether it is constitutional for Congress to restrict the president’s ability to supervise, remove, and appoint members of the PCAOB.
Antitrust Law
In a case involving the National Football League, the Court will examine a circuit split over whether the NFL and its individual member teams constitute a “single entity” that is immune from “rule of reason” claims that agreements among member teams and Reebok regarding logo licensing for sportswear products violate Section 1 of the Sherman Antitrust Act. American Needle v. National Football League, No. 08-661. Member teams of the NFL entered agreements among themselves not to compete with one another for the licensing of trademarks and logos for certain sportswear. In addition, the teams agreed that Reebok would be the exclusive 10-year licensee of all teams’ logos and trademarks for certain sportswear. The Court will consider whether the fact that the NFL member teams must coordinate and cooperate to jointly produce NFL games means that the member teams must be considered a single entity that is immune from Section 1 claims relating to agreements among individual member teams.
Intellectual Property Law
In Bilski v. Doll, No. 08-964, the Court will address the patentability of business methods under 35 U.S.C. § 101, which provides that “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor.” In this case, the Court will decide whether a “process” must pertain to a particular “machine or apparatus, or transform a particular article into a different state or thing” in order to be eligible for a patent. An affirmative decision will likely invalidate numerous business method patents and render it more difficult to obtain such patents.The Court’s decision in this case will have a broad-reaching effect on the banking, accounting, insurance, and software industries.
During its 2009–2010 term, the Court will hear these and many other significant cases.We at LIIBULLETIN look forward to watching the term unfold. Beginning this week, our condensed e-mail preview service will be accompanied by a full preview of each case on our website.
We hope you will join us for the 2009–2010 term!
Best regards,
Lauren Jones, Editor-in-Chief
Joe Rancour, Executive Editor