Beth Miller, one of the audience questioners during the second presidential debate, was certainly correct when she said the Supreme Court is “perhaps the most important aspect of this election.”
A look at upcoming cases demonstrates the Bill of Rights is on the ballot in November.
“They interpret the Second Amendment as applying to state militias rather than individuals. It’s amazing the extreme position that exists that this is not a right for an individual.”
During the Obama administration, the Supreme Court voted in favor of religious freedom, in the Hobby Lobby ruling; for free speech, in the Citizens United case; and for an individual’s right to bear arms in the Heller case — all by just one vote. These are all matters that would seem to be basic constitutional freedoms.
Democratic presidential nominee Hillary Clinton didn’t resist laying out a litmus test for her Supreme Court justices in response to Miller’s question.
“I would want to see the Supreme Court reverse Citizens United and get dark, unaccountable money out of our politics. Donald doesn’t agree with that,” Clinton said. “I would like the Supreme Court to understand that voting rights are still a big problem in many parts of our country, that we don’t always do everything we can to make it possible for people of color and older people and young people to be able to exercise their franchise. I want a Supreme Court that will stick with Roe v. Wade and a woman’s right to choose, and I want a Supreme Court that will stick with marriage equality.”
Much of this was Democratic talking points, but her top priority was taking aim at allowing organizations to have free political speech during elections. For Clinton, the Citizens United case is personal. It stemmed from the Federal Elections Commission trying to suppress a negative documentary about Clinton, called, “Hillary the Movie.”
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“If a Hillary Clinton nominee is approved, I think you would see groups bring up a test case to get Citizens United overturned,” said Carrie Severino, general counsel for the Judicial Crisis Network, a conservative legal group. “The whole point of the case was blocking a movie critical of Hillary Clinton. If she is president, there will be an all-out attack on Citizens United.”
For his part, Trump — who already made a list of 20 potential court appointees — was “looking to appoint judges very much in the mold” of Justice Antonin Scalia, whose death this year left the vacancy that raises the stakes of the presidential contest. The only specific issue Trump raised was “the Second Amendment, which is totally under siege by people like Hillary Clinton.”
A Hillary high court could affect far more than just the first two amendments of the Bill of Rights.
The First Amendment
The Supreme Court will decide if a state can discriminate against religious institutions in providing state grants. Missouri’s 1875 “Blaine Amendment” is intended to outlaw public funds being used to aid a church.
Missouri has a program that offers grants to nonprofit organizations to install rubber surfaces from recycled tires to replace gravel to make playgrounds safer. But the state denied Trinity Lutheran Church’s application even though it ranked fifth out of 45.
The Trinity Lutheran Church of Columbia v. Pauley case began in 2013. Trinity argues there is no violation of the Establishment Clause and wants the same treatment as every other applicant. Singling the church out because it’s a church would violate the free expression of religion and Equal Protection Clause, the plaintiffs argue.
“Blaine Amendments” are in place in most states. The Alliance Defending Freedom argues that the state amendment shouldn’t mean church-owned organizations can be treated unfairly.
The 8th Circuit Court of Appeal ruled against the church’s preschool siting a 2004 case, in which a high court ruled a state could refuse public scholarship dollars for students enrolling in a seminary.
Severino notes that the Blaine amendments were introduced as anti-Catholic measures.
“Missouri has had the most extreme use of the Blaine amendment. Indirectly, this could mean a state or city isn’t allowed to fix a sidewalk in front of a temple or a mosque,” Severino said.
“This is not about funding the education of religious tenets. This is about not funding safe playgrounds,” she continued. “In this case [of] religious freedom, we are not talking about baking cakes. This is about saying if you are a religious group, you should get the same treatment as everyone else.”
No case is working up the court pipeline to overturn the Heller decision protecting an individual’s right to bear arms. However, conservative attorney Larry Layman filed a lawsuit in a federal court in Florida challenging the constitutionality of President Barack Obama’s executive actions. Obama in January expanded the definition of who is “engaged in the business” of selling guns. The goal was to regulate more sales at gun shows. This would require more gun sellers to obtain a federal license.
According to a WikiLeaks email, Clinton press secretary Brian Fallon said “as president — universal background checks of course, but also closing the gun show loophole by executive order and imposing manufacturer liability.”
This could send gun control back to the high court and at least chip away at the 2008 Heller ruling.
“There are four votes for overturning Heller now,” Severino said. “They interpret the Second Amendment as applying to state militias rather than individuals. It’s amazing the extreme position that exists that this is not a right for an individual.”
Quartering of soldiers seems the least likely to arise, but a federal district court has ruled in a Nevada case that Henderson city police requiring a family to temporarily house officers in their home did not violate the Third Amendment.
Since the 2015 ruling against the Mitchell family, the case hasn’t moved forward. But, the matter of whether cops and soldiers are in the same category could potentially emerge again, particularly given the anti-cop bent of the Democratic National Convention that nominated Clinton.
Surveillance would likely be a key issue under any presidency. After the Edward Snowden revelations, Obama scaled back on metadata collection.
The Obama Justice Department sought to search cellphone data without cause or a warrant, which a unanimous Supreme Court ruled in 2014 violates the Fourth Amendment in the case of Riley v. California. The court determined that today, a cellphone contains most of a person’s life. So, it seems unlikely Clinton could reverse this with her judiciary picks. But she could modify the policy and make another go at it with a more sympathetic court less inclined to care about executive overreach.
The Supreme Court will hear the case of Murr v. Wisconsin that involves the “Takings Clause.”
Four family members own two connecting waterfront properties in St. Croix, Wisconsin. One property has a cabin, the other is vacant land. In 2004, the Murr family considered developing or selling the land without a cabin. However, due to zoning restrictions, the two lots were considered one. The Murrs argued in state court that Wisconsin had effectively taken their second property because it was regulated into having no value without providing compensation. So the court was deciding if two separate lots with the same owners should be treated as one or two.
“Is it fair for the state to regulate to the point where land has no value, and not have to pay?” Severino said. “It’s unclear what the balancing test is for big property and takings.”
The court will be revisiting this issue that came up in 1992, when the Supreme Court ruled that after South Carolina regulated property into being useless, it owed the property owners compensation under the Fifth Amendment. However, the Wisconsin courts referred to a separate 1978 Supreme Court ruling that determined courts count a parcel as a whole in takings cases, thus decided there was not an actual taking.
While the case itself seems clunky and a bit dull, it could have far-reaching consequences on private property rights, already undermined by the 2005 Kelo decision. It’s difficult to imagine Clinton nominating a justice that would enthusiastically support private property rights.
Last year, the Supreme Court ruled 5-4, in the case of Glossip v. Gross, that using a death penalty drug for lethal injection did not constitute cruel and unusual punishment, prohibited by the Eight Amendment.
However, in his dissenting opinion, Justice Stephen Breyer wrote, “The matters I have discussed, such as lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quintessentially judicial matters.” He further asserted, “At the very least, the court should call for full briefing on the basic question.”
This could be viewed as an invite for the case to return. Thus, a new liberal majority on the Supreme Court could reverse the court’s longstanding view on the death penalty.
“Originalists would not have considered the death penalty cruel and unusual punishment because it was being applied” when the Eight Amendment was ratified, Severino said. “The founders might think lethal injection is too easy. But liberals on the court bring this up pretty regularly.”
The Six and Seventh Amendments that guarantee a right to a jury trial for a criminal or civil case don’t seem to have a clear and present legal threat. Meanwhile, the Ninth Amendment is too broad to point to specific threats, even if the federal government is arguably always seeking ways to undermine individual liberties. Federal encroachment on state power does pose a threat to the 10th Amendment — however, the amendment is rarely used as an argument in court.