Metropolitan News-Enterprise


Thursday, August 27, 2009


Page 3


Kenneth Starr, Erwin Chemerinsky Preview Supreme Court Term




A pair of cases set for argument in the Supreme Court in the next six weeks could have long-lasting significance, a pair of constitutional scholars from opposite philosophical camps said yesterday.

Law schools deans Erwin Chemerinsky of UC Irvine and Kenneth Starr of Pepperdine University, addressing a lunchtime gathering sponsored by the local chapter of the Federalist Society, suggested that court-watchers pay particular attention to Citizens United v. Federal Elections Commission and Salazar v. Buono.

Starr, a onetime federal appellate judge who served as U.S. solicitor general during the Reagan administration, said Citizens United “has a just claim to the be the most important case” the court will decide this term.

The case, which was originally argued in March and will be the subject of a rare pre-term re-argument Sept. 9, is a challenge to an FEC ruling that a film created by a nonprofit political group and titled “Hillary: The Movie” was subject to regulations governing “electioneering communications.”

Citizens United is a conservative, Virginia-based advocacy organization whose production arm has released documentaries attacking former President Clinton, President Obama, illegal immigrants and the ACLU, and praising former President Reagan. The “Hillary” film, made at a time when its subject was thought likely to be the Democratic presidential nominee “does not expressly advocate Senator Clinton’s election or defeat, but it discusses her Senate record, her White House record during President Bill Clinton’s presidency and her presidential bid,” according to the group’s Supreme Court brief.

At issue before the high court is not only the validity of the FEC’s characterization, but the constitutionality of campaign finance restrictions, including the ban on direct federal campaign spending by corporations, dating back to the days of President Theodore Roosevelt.

Chemerinsky suggested that five justices—Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito, Antonin Scalia and Clarence Thomas—“probably think all restrictions” on electioneering communications and campaign spending violate the First Amendment. What the case will test, he said, are those justices’ views on the role of stare decisis.

To reach the result argued for by Citizens United and some of its amici, who include U.S. Senate Minority Leader Mitch McConnell, R-Ky., the court would have to overrule several decades of its own decisions, Chemerinsky noted.

Salazar, which will be argued Oct. 7, raises the issue of whether Congress can negate an Establishment Clause challenge to the presence of a religious symbol on public land by transferring the property to a private group. The case could significantly alter existing jurisprudence regarding the separation of church and state, both scholars agreed, depending on how the court disposes of the case, which also features a standing issue that could result in a narrow holding.

Chemerinsky and Starr, in a discussion moderated by Ninth U.S. Circuit Court of Appeals Judge Sandra Ikuta, also addressed some of the cases decided by the high court last term, including Northwest Austin Municipal Utility District Number One v. Holder. The justices declined to strike down legislation extending the sunset date for Sec. 5 of the Voting Rights Act but said jurisdictions subject to the act, even those that do not register voters and administer elections, may ask a court to find them exempt from the requirement that they obtain preclearance of election law changes from the Justice Department.

Starr, who criticized Sec. 5 as an infringement on state sovereignty and said it has been used for purposes far beyond the sponsors’ vision of protecting minorities from being disenfranchised, said the 8-1 decision was “an enormous victory for Chief Justice Roberts’ vision” of a court that can find common ground on difficult issues.

It was “no small achievement,” Starr said, to get all nine justices, including Thomas, who wanted to strike down the law outright, to join in the view that Sec. 5 has serious constitutional problems.

Chemerinsky, however, said the ruling may wind up being viewed as a victory for Sec. 5’s supporters. He reasoned that in any future appeal, the appellant is likely to be a jurisdiction with a history of discrimination, which will have a difficult time showing that it should be exempt from the preclearance requirement.

Ikuta summarized:

“So we have unannimity, but we don’t know what it means.”


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