2012 Supreme Court Roundup: Richard W. Garnett Surveys the Supreme Court's Major Cases over the Last Year
Garnett, Richard W., First Things: A Monthly Journal of Religion and Public Life
Students in my constitutional law course are usually surprised, and often skeptical, when I propose that the most important case they will study is not about abortion rights, the death penalty, or the status of Guantanamo Bay, and does not concern Ten Commandments monuments, Christmas displays, or internet pornography, but instead involves an early-nineteenth-century tax-collection dispute between the state of Maryland and the cashier of the Second Bank of the United States.
I am happy to report that, this past year, in its biggest cases, the Supreme Court proved me right. It reminded us all that the important questions to ask about the Court and the Constitution are not whether one justice is mad at another, or who gets the most laughs during oral argument, or how often the Chamber of Commerce wins. They have to do instead with the role of unelected, politically unaccountable justices in enforcing the various ways the Constitution allocates, divides, structures, and constrains the authority of governments. In constitutional law, the question is not so much "What is to be done?" as it is "Who decides?"
The questions presented in that most important case, McCulloch v. Maryland in 1819, were whether Congress had the power to incorporate, and Maryland had the power to tax, the Bank. The former issue had been hotly debated three decades earlier. Alexander Hamilton, then the Secretary of the Treasury, had argued for the Bank, urging that the new nation's powers should be "construed liberally, in advancement of the public good." James Madison had insisted with no less force that, whatever the benefits of a national Bank might be, the federal government possesses and may exercise only those specific powers enumerated in the Constitution's text.
Madison lost, the Bank was approved by Congress, and Washington signed the relevant bill. Then as now, big banks and corporations were often unpopular, and the Bank's charter was allowed to lapse in 1811. However, the War of 1812 prompted many to re-examine their views, and the bill creating the second Bank was signed into law in 1816 by the first Bank's strict-constructionist foe, then-President Madison. A few years later, in the McCulloch case, the Supreme Court upheld the Bank's creation and vindicated Hamilton, presciently observing that "the question respecting the extent of the powers actually granted [to the national government] is perpetually arising, and will probably continue to arise so long as our system shall exist."
And so it has, as the Supreme Court's last term so strikingly illustrated. What Justice Sandra O'Connor once called the "oldest question of constitutional law"--that is, where have "we the people" lodged the power to regulate and rule?--is no less relevant, pressing, and difficult today than it was in 1819, or in 1787.
If the previous term was, relatively speaking, a bit sleepy, this one was the third-branch equivalent of Avatar or The Avengers, and its final week was one of the most anticipated in years. On the term's final day, June 28, the indispensable "SCOTUSblog" logged over three million hits and had more than 800,000 contemporaneous readers following their live coverage of the insurance-mandate ruling. (Unlike some major news outlets, SCOTUSblog got the story right.) Its coverage was CoveritLive's second most popular live web event all year, behind only ESPN's coverage of the NFL draft.
The justices in the Court's 2011-12 term engaged hard questions that implicate present-day politics, cutting-edge technologies, huge swaths of our economy, international relations, and impending elections. They considered protections for criminal defendants, limits on police, the rights of property owners, freedom of speech, and--of course--fine points about the workers' compensation coverage provided by the Outer Continental Shelf Lands Act. They heard cases involving the ownership of Montana riverbeds, the treatment of non-ambulatory pigs, the patentability of laws of nature, and the political status of Jerusalem. …