Supreme Court Has Saved Toughest Cases for Second Half

Washington – The Supreme Court entered its holiday intermission with the starkest drama put off until the second act.

When justices return on Jan. 11 for their next oral arguments, they’ll barely have scratched the surface of the 2009 term. They’ve issued only four decisions so far, none dealing with the cases for which the term is likely to be remembered.

With more than 50 scheduled cases yet to be heard or decided, and other cases still to be added, some of these pending questions are pretty fundamental.

Does the government violate the First Amendment when it bans corporations from spending their own money on political campaigns? Do cities and states violate the Second Amendment when they ban gun possession?

“The people’s right to arms is inextricably tied to the equally fundamental right to defend oneself — to fight to save one’s own life,” argued Elizabeth Egan, the district attorney in Fresno, Calif., in one legal brief joined by dozens of other California and Nevada prosecutors.

Other pending questions are intriguing because of the facts.

Can Congress prohibit videos that purportedly depict animal cruelty, such as one that shows pit bulls attacking a domestic pig? Does the National Football League’s tightly controlled licensing of hats and apparel violate antitrust laws?

In addition to specific cases, the coming months will shed light on the future of the nation’s highest court itself.

Many court watchers expect Justice John Paul Stevens to announce his retirement, as the 89-year-old jurist hasn’t hired his full complement of law clerks for next year. At the other end of the career spectrum, the new year will further illuminate the evolving role of the court’s newest member, Justice Sonia Sotomayor.

Some things already are clear.

Since she heard her first oral argument on Sept. 9, Sotomayor has proved to be an active participant. She’s asked questions or made comments from the bench about 480 times, a McClatchy review of oral argument transcripts found.

Justice Clarence Thomas, by contrast, has kept his customary silence. Thomas hasn’t spoken, either to make a point or to ask a question, during any of the 36 hour-long oral arguments conducted since October.

Sotomayor’s sole written opinion so far was in a low-profile case, in which she attracted seven other justices for a majority opinion in which Thomas also partially joined. This inaugural opinion was largely technical and devoid of memorable flourishes. Her probings from the bench are persistent and often fact-centered rather than hypothetical.

“You haven’t answered my question,” Sotomayor bluntly told one attorney on Nov. 30.

An equal opportunity interrogator, Sotomayor a short while later trapped the attorney for the opposing side.

“So,” Sotomayor told the attorney, “you are admitting that you filed an improper complaint, that you didn’t have a good-faith basis for the complaint you filed.”

Another time, characteristically cutting to the chase, Sotomayor on Nov. 9 told one attorney, “You’re missing the point.” She’s pressed attorneys several times with variations on the theme, “How can you say that?” and she frequently plays off questions raised by her colleagues.

“You haven’t answered Justice Alito’s point,” Sotomayor reminded an attorney in a Nov. 9 oral argument about life prison sentences for Florida juveniles.

More important than her interrogative style will be Sotomayor’s decision-making, particularly in cases that are expected to be close. For instance, she and her colleagues are still wrestling with the complicated campaign finance case known as Citizens United v. Federal Election Commission, which was argued for the second time nearly four months ago.

Though the case originally centered narrowly on the financing of an anti-Hillary Clinton movie, conservatives hope that the court will use the case to strike down broader state and federal prohibitions on corporate campaign expenditures.

“We are suspicious of congressional action in the First Amendment area precisely because we — at least, I — doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents,” Justice Antonin Scalia said.

However, the most anticipated upcoming argument might come on March 2, when justices consider the case called McDonald v. City of Chicago.

The case challenges Chicago’s handgun ban as a violation of the Second Amendment’s right to bear arms. The city’s ban is essentially identical to a District of Columbia handgun ban that the Supreme Court struck down in 2008 on a 5-4 vote. Now, the justices must decide for the first time whether the Second Amendment applies to cities and states, as well as to federal jurisdictions such as Washington, D.C.