Today was the last day of the Supreme Court's 2009-2010 Term. As has become the norm, several of the Court's most closely-watched cases are announced on the final today, and this year was no exception. The Claremont Institute's Center for Constitutional Jurisprudence was involved in three of the four cases decided today, and its position prevailed in two of those three cases.
Most significant was the Second Amendment case out of Chicago, determining whether the Supreme Court's recent decision holding that the Second Amendment protected a personal right to keep and bear arms also applied to state and local governments. By a vote of 5 to 4, the Court held that states are covered, too! That's a big win for gun rights and for freedom. The CCJ's brief also urged the Court to reach that decision by reviving the Privileges and Immunities Clause of the Fourteenth Amendment, and while the majority opinion by Justice Alito declined to adopt that argument, it was advanced by a powerful originalist concurring opinion filed by Justice Thomas.
The second "win" for the CCJ was in the PCAOB case. The Public Company Accounting Oversight Board was a government agency established by the Sarbanes-Oxley law, which gave vast investigative, enforcement, and judicative powers to the new accounting oversight board. Unfortunately, the members of the new board could be removed only for cause, and then not by the president but only by the Securities & Exchange Commission. In another close 5-4 vote, this "twice-removed" removal power was held to violate the Constitution, which as the CCJ brief strongly pointed out, requires that all executive power be vested in the President of the United States. Another big win for the Constitution's structure, but before the accounting firms crack open the champagne, Chief Justice Roberts, writing for the majority, held that the unconstitutional removal restrictions were severable from the rest of the statute. PCAOB members can now be removed at will, but their enforcement powers remain in place.
The disappointment of the day was in Christian Legal Society v. University of California, Hastings College of Law. Hastings mandated that all law student groups be open to everyone in both membership and leadership positions. That violated the Christian Legal Society's national charter, which requires that leadership positions be open only to those who share the organizations religious views. Go figure! After several homosexual rights folks unsuccessfully tried to work their way into leadership positions in CLS, the policy was enforced against CLS, and this lawsuit followed, with CLS seeking to protect its rights to the free exercise of religion and association while being granted equal access to the Law School's facilities and forum. Justice Kennedy joined with the other four liberal members of the Court (Stevens, who officially retired today; Ginsburg, whose husband passed away yesterday), Breyer, and Sotomayor) to uphold the Hastings policy against the constitutional claims of the CLS. One sliver of hope --if CLS can prove that the policy was selectively enforced against it, they could yet prevail on remand; otherwise, the group will have to go underground if it wants to keep its expressive character and mission.