In McDonald v. City of Chicago, which involves a challenge to a Chicago handgun ban, the court will weigh in on whether the Second Amendment can be incorporated into the 14th Amendment so as to apply to the states. As Ashby Jones, our esteemed colleague who’s due back Monday from a well-deserved vacation, once said about the case: “It’s not an understatement to say that the entire gun-control regime in the U.S. hangs in the balance.” The smart money is that the court will rule 5-4 that the 2nd Amendment constrains the right of states to regulate firearms.
In Christian Legal Society v. Martinez, the high court will rule on whether a public university law school can deny official recognition —and funds — to a student organization that bars memberships to gays and non-believers. The case arose after the Christian Legal Society, a student group at the U.C. Hastings College of the Law, barred individuals who did not agree with its core religious views. The school responded by rescinding the group’s “official status,” and with that, access to school meeting space and funding from the school’s student activities-fee fund. The student group sued, the Ninth Circuit backed the university, and on Monday, the Supreme Court will have the final say.
We move next to Sarbanes-Oxley. The Supreme Court will examine the law’s constitutionality in Free Enterprise Fund v. PCAOB. The law gives the Securities and Exchange Commission power to name the members of the Public Company Accounting Oversight Board. The plaintiffs in the case — a free-enterprise group and an accounting firm — say the SEC’s naming authority violates a clause of the Constitution giving the president the power to appoint government officials. If the justices agree that the accounting board isn’t constitutional, it could force Congress to revisit Sarbanes-Oxley, or at least the portion of it that creates the accounting board. It could also call into question other independent agencies and how they appoint members of similar boards.
And then there’s Bilski, the case that will consider the validity of business-method patents. These sorts of patents — Amazon’s one-click checkout and Priceline’s reverse auction represent two examples — have been kicking around for over a decade, ever since the Federal Circuit’s State Street decision, which expanded the scope of processes that could be patented. The high court must now determine whether such swaths of modern business activity deserve patent protections (thereby opening the door to infringement lawsuits) or belong in the public domain (depriving their inventors of monopoly profits.)