United States Supreme Court Wrap-up 2007
By Colin Darke
Colin Darke is a student in the Graduate Program in Banking and Financial Law at Boston University School of Law. He can be contacted at colindarke@gmail.com.
The honeymoon is over for U.S. Supreme Court Chief Justice John G. Roberts. In his inaugural 2005–06 term, Chief Justice Roberts touted that he would push for unanimity in the Court’s decisions, and he was able to deliver many 9–0 decisions. The Court’s 2006–07 term, however, provided many contentious 5–4 decisions, which revealed more of the true makeup of the Roberts Court. Below are a few cases highlighting the Court’s new dynamic.
One for Schools
Chief Justice Roberts wrote the majority opinion in a controversial First Amendment case known as the “Bong hits for Jesus” case, which presented one of the more sensational fact patterns in recent Court history, Morse v. Frederick, 127 S.Ct. 2618 (2007).
The 2002 Olympic Torch Relay was slated to come through Juneau, Alaska, on January 24. A few students at the local high school used the media coverage of the torch relay as an opportunity to share their unique humor with the world. As the relay came by the students’ high school, the students (who were across the street from the school) unfurled a large banner that read, “BONG H[I]TS 4 JESUS.” Reacting to the banner, the school principal, Deborah Morse, ran across the street and demanded that the students take down the banner. One of the students, Joseph Frederick, refused and was eventually expelled from the school.
Frederick sued Morse and the school board for violating his First Amendment right to freedom of speech, and the case progressed all the way to the Supreme Court.
Siding with the school, the majority relied on two trouble-free conclusions: First, drugs are bad. Second, schools can legally prohibit speech that promotes drug use during school-sanctioned and school-sponsored events. Presumably, the Court characterized the event as a school-sanctioned and school-sponsored event based on the fact that the school allowed its students to gather outside of the school to watch the relay. To determine that the banner constituted nonprotected speech, the Court relied on the school principal’s subjective interpretation of the banner as a command to take bong hits or as a celebration of taking bong hits.
In his dissent, Justice Stevens asserted that the majority’s opinion went against the Court’s decision in Tinker v. Des Moines Independent School Dist., 393 U.S. 503 (1969). In Tinker, the Court condemned a school’s action of expelling students who wore black armbands to protest the Vietnam War as violating the students’ First Amendment right to freedom of speech. The Tinker Court stated that the school’s actions could not be upheld if the school could not establish that “the students’ activities would materially and substantially disrupt the work and discipline of the school.” Noting the Tinker decision, Justice Stevens stated in Morse, “It is one thing to restrict speech that advocates drug use. It is another thing entirely to prohibit an obscure message with a drug theme that a third party subjectively—and not very reasonably—thinks is tantamount to express advocacy.”
One for the Environment
Justice Stevens is arguably the leader of the Court’s liberal side. He is the senior member of the Court (which gives him authority to delegate opinion writing when the Chief Justice is on the losing side), and he is the most likely of the Justices to draft long, thorough dissents to majority opinions. One case this term in which Justice Stevens’s side won the day is Massachusetts v. EPA, 127 S.Ct. 1438 (2007). In Massachusetts, the Environmental Protection Agency (EPA) denied a group of private organizations’ petition for EPA to promulgate a rule to restrict greenhouse gas emissions from motor vehicles. EPA claimed that the Clean Air Act (CAA) did not authorize it to regulate global climate change, and EPA further asserted that such a regulation was unwise because the Bush administration had already stated a position for addressing such issues. The private organizations sought review of EPA’s decision by the United States Court of Appeals for the District of Columbia Circuit, at which point the State of Massachusetts intervened as an interested party. The D.C. Circuit sided with EPA, and the Supreme Court granted certiorari to review the D.C. Circuit’s decision.
Writing for the majority, Justice Stevens initially considered whether any of the petitioning parties had standing. The Court stated that the harms associated with global warming, such as sea level change, were “well recognized” and concluded that Massachusetts had “a special position and interest” in the case as Massachusetts’s coastline was experiencing the detrimental effects of global warming. EPA argued that it was unable to remedy the harms associated with global warming, and therefore the petitioners could not meet the test for standing. The Court rejected EPA’s argument and held that while EPA might not be able to fix global warming at once, it could start the process toward finding a solution for global warming.
The Court went on to address EPA’s reasons for denying the rulemaking petition and stated that the Court could “reverse [EPA action that is] arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” EPA argued that it did not have authority to promulgate rules regulating greenhouse gas emissions because carbon dioxide is not an “air pollutant” as defined by the CAA. In dismissing this argument, the Court found that the CAA broadly defines “air pollutant” in a manner that incorporates carbon dioxide and other greenhouse gasses emitted from cars and trucks.
The Court then addressed the EPA’s argument that it chose not to regulate based on other current Bush administration priorities in place. The Court found the EPA’s argument unavailing and stated that the EPA had to state a reason for its action or inaction based on whether the air pollutant in question, such as carbon dioxide, did or did not “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare” (as outlined in the language of the CAA). As such, the political issues that the EPA considered in denying the rulemaking petition were impermissible, and therefore its action was “arbitrary, capricious, or otherwise not in accordance with the law.”
One for Congress
The 2006–07 term established Justice Kennedy as the Court’s crucial swing vote. One of this term’s cases where Justice Kennedy’s powerful vote swung more to the conservative side is Gonzales v. Carhart, 127 S.Ct. 1610 (2007).
Gonzales was one of the Court’s more controversial cases as it dealt with the contentious issue of a woman’s reproductive rights. In 2000, the Court struck down a Nebraska ban on “partial-birth” abortion in Stenberg v. Carhart, 530 U.S. 914 (2000). The Stenberg Court held that the Nebraska statute was unconstitutional because (1) it did not have an exception to the ban on “partial-birth” abortions for situations involving the preservation of the mother’s health and (2) it placed an undue burden on a woman’s ability to choose an abortion by prohibiting more than late-term “partial-birth” abortions.
In response to the Stenberg decision, Congress enacted the Partial-Birth Abortion Ban Act of 2003. In Gonzales, certain physicians sued then-United States Attorney General Alberto Gonzales to prohibit enforcement of the Act. The physicians argued that the Act was unconstitutional on its face similar to the way that the Nebraska statute in Stenberg was unconstitutional. Writing for the majority, Justice Kennedy quickly distinguished the language of the Partial-Birth Abortion Ban Act from the language used in the Nebraska statute. The Court found that the Act, unlike the Nebraska statute, was not void for vagueness because it prohibited a physician from “knowingly perform[ing] a partial-birth abortion . . . that is [not] necessary to save the life of the mother.” The Act also explicitly defined the prohibited procedure. The Act’s scienter requirement and explicit definition saved it from the vagueness problem of the Nebraska statute because a doctor “of ordinary intelligence [has] a reasonable opportunity to know what is prohibited.”
The Court further reasoned that the Act was in line with its previous Planned Parenthood v. Casey and Roe v. Wade decisions in balancing a woman’s reproductive rights against a state’s rights in protecting the health, safety, and welfare of its residents. The Court explained that the Act did not regulate first-trimester abortions, but rather a specific second-trimester procedure referred to as “intact dilation and evacuation.” The Court also asserted that the Act was not overly broad because it recognized a state’s interest while not imposing an undue burden on a woman’s right to an abortion.
One for Big Business
Justice Kennedy was also the crucial swing vote in several Supreme Court decisions this term that some commentators felt favored big business. One such case was Leegin Creative Leather Products, Inc. v. PSKS, Inc., 127 S.Ct. 2705 (2007), in which a retailer sued a manufacturer for violating federal antitrust laws by “refusing to sell to retailers that discount its goods below suggested prices.” The retailer and the lower courts relied on the Court’s decision in Dr. Miles Medical Co. v. John D. Park & Sons Co., 31 S.Ct. 376 (1911), for the per se rule that such vertical pricing agreements violated Section 1 of the Sherman Act.
The manufacturer argued that the Dr. Miles decision was outdated and that the common law rule of reason for antitrust cases should be applied to its case. The lower courts relied on the per se rule and would not consider any procompetitive justifications for the manufacturer’s policy .
Writing for the majority, Justice Kennedy sided with the manufacturer. The Court overruled the Dr. Miles decision and sided with the manufacturer’s argument that the decision was outdated and not in line with contemporary economic realities. The Court held that the rule of reason, which requires a fact finder to weigh “all of the circumstances,” including “specific information about the relevant business” and “the restraint’s history, nature, and effect,” was a more appropriate recognition of the underlying antitrust policies. Specifically, the Court held that courts should have the ability to distinguish between those restraints that are anticompetitive and those that may be procompetitive and should not be handcuffed to a per se rule.
 

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