All Eyes Shifting to Supreme Court

All Eyes Shifting to Supreme Court
Ken Klukowski
Tuesday, June 08, 2010

While Tuesday is a major primary-election day across the country, once Wednesday dawns the nation’s eyes will start turning to the Supreme Court as the next major story in America’s capital. A number of big cases are yet to come down as the Supreme Court nears the end of its yearly term, as we also prepare to consider a new justice on our highest court.

By federal law, the Supreme Court’s annual term starts on the first Monday of October. That term goes until the last week or so of June, when the Court rises for its annual recess. We’re in the waning days of October Term 2009.

Although most of the cases the Supreme Court decides have a major impact on the law, none of the decisions handed down Monday are of the sort that grab headlines (to the disappointment of all of us in the press section of the Supreme Court’s magnificent courtroom).

As a result, the story for the day is that each of the next three Mondays will see major decisions come down. Among other things, the Court is considering a Florida case, presenting the question of whether a court order can amount to a taking of property, such that the Constitution requires the government to compensate you for the lost property. The Court’s also deliberating whether an oversight board created by Sarbanes-Oxley to impose heavy regulations on public companies and accounting firms is unconstitutional.

But it’s the social issues that will dominate the end of the Court’s term.

Religious liberty is on the table, as the Court is deciding whether religious groups can be kicked off of public universities for requiring its leaders to support the group’s religious beliefs in Christian Legal Society v. Martinez. Marriage is also on the ballot, with the Court considering whether the Constitution allows people who sign ballot initiatives for hot-button topics (same-sex marriage in this case) to keep their personal information private in Doe #1 v. Reed.

Of all these, the biggest case by far of the year, bigger even than the Citizens United campaign-finance case, is the gun ban case. McDonald v. Chicago presents the question of whether the Second Amendment applies to cities and states. If it does, then you have the same rights as you do against federal gun controls. If not, then the city or state where you live can ban all your guns.

The McDonald case also remains the biggest case because it requires the Court to examine the core meaning of the Fourteenth Amendment for the first time since 1969, considering how to what extent federal rights and federal power can impose on the sovereignty of the states.

These will be the last cases involving Justice John Paul Stevens, who has been serving on the Court since 1975. And the last of them should come down on June 28, the same day that the Senate Judiciary Committee begins its hearings on Elena Kagan, the president’s nominee to replace Stevens.

This all happens as a new USA Today/Gallup poll shows that Kagan’s public support is only 46% to be confirmed to the Supreme Court, less than the three most recent appointments (John Roberts, Sam Alito and Sonia Sotomayor) and close to that of Harriet Miers (who had 44% support), whose nomination failed.

These major cases, coupled with weak support for Kagan, will likely lead Republicans to direct heightened scrutiny to the Kagan nomination, as millions of Americans are reminded of the central role that the Supreme Court plays in the life of the Republic.

The next three weeks will be anything but boring for Court watchers.
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Constitution "Optional"
Scooter Schaefer
Monday, June 07, 2010

In a few weeks Obama's judicial nominee Elena Kagan will face the Senate Judiciary Committee and the American people in her nomination process to serve on the Supreme Court. As members of both parties draw their battle lines and rehearse their talking points in preparation for the hearings, conservatives are missing a clear opportunity to activate the American people in opposition to a global activist who will bring a Constitution "optional" judicial philosophy to the High Court.

If fiscal irresponsibility on the part of the federal government launched the current Tea Party movement, then disregard for the Constitution has fueled its flames. After all, it was an act of civil disobedience in Boston Harbor that would ignite a fire in the colonies and decades later culminate into a newly formed nation with a Constitution that would protect against the very same tyranny which spawned the original Tea Party.

As an academic, Elena Kagan and many of her elitist colleagues have shown disregard for the principles by which our nation was founded, and the importance of a document intended to restrain government and protect the individual.

In 2006 as Dean of Harvard Law School, Kagan overhauled the curriculum to no longer mandate Constitutional Law as a requirement to graduate; instead, Constitutional Law would be relegated to optional elective status. According to a Harvard press release concerning changes made to the curriculum, "each student will take one of three specially crafted courses introducing global legal systems and concerns - Public International Law, International Economic Law, and Comparative Law."

In the same press release Kagan goes on to explain that changes made will allow students to address "fact-intensive problems as they arise in the world," and to reflect on the "assumptions and methods of contemporary U.S. law and the perspectives provided by other disciplines."

Translation: Kagan effectively altered the curriculum at Harvard Law School to focus on international comparative law and issues rather than the traditional Constitutional Law framework which is the basis of our legal system.

Inevitably, Kagan's defenders in academia will point out that the Constitution is applied throughout the curriculum at Harvard and any other school of law and is therefore not needed as a required course of study. However, if you apply the same line of logic to other fields of study, such as American Foreign Policy, or U.S. History, it is easy to understand the significance behind omitting 'American' and 'U.S.' from a course simply because it may be implied.

In the changes she implemented as dean, Kagan advocated the philosophical convergence of the policies and laws of our nation and that of others. And, if the narrative coming out of one of our nations most "prestigious" law schools sounds familiar, look no further than comments made by the President at the recent West Point graduation ceremony. "All hands are required to solve the world's newest threats: terrorism, the spread of nuclear weapons, climate change and feeding and caring for a growing population."

In the past year and a half we have seen a movement spread like wildfire, advocating the simple message of a return to common sense in government. Comparisons to other nations and "perspectives provided by other disciplines" are not needed to restore our government to the way our Founding Fathers intended. Instead we should adhere to the principles that have made our nation great; fiscal responsibility, free markets, individual liberty, and protection from government infringement into our lives, defined by the Constitution.

What the American people must understand is that the fight for restraint in government will not just be won in the halls of Congress, but also in our courts. As a practioner of the current administration and its policies, Kagan will bring to the bench a global perspective on our laws and policies, while applying the Constitution as "optional."
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To read more about Elena Kagan, click here.