2012 in Review: The top legal stories, part 1

December 5, 2012

2012 in review(Editor’s note: Throughout December, we’ll be looking at the top 20 legal events of 2012, as chosen by the Westlaw Insider editorial staff.)

American Tradition Partnership, Inc. v. Bullock and the Supreme Court’s ongoing fight over Citizens United

At the very end of 2011, the Montana Supreme Court upheld state restrictions that barred corporations from making contributions or expenditures “in connection with a candidate or a political committee that supports or opposes a candidate or a political party” (more on that in this post).  The ruling effectively flew in the face of the U.S. Supreme Court’s 2010 decision, Citizens United v. FEC.

Eventually, SCOTUS stepped in and reversed the Montana high court in a per curiam decision, but made some interesting revelations in doing so.  Namely, that the Court’s four liberal Justices still refuse to “accept” Citizens United, and would have used American Tradition Partnership as a means to overturn the 2010 ruling (see this post for more).

That so many of the Justices are still sour over a decision that’s approaching its third birthday is significant by itself.  However, this strong, persistent discontent may very well lead to a reversal of Citizens United in the near future – should the ideological makeup of the Supreme Court shift in the near future (see further below).

The defeat of SOPA and PIPA

These two bills (full names: Stop Online Piracy Act and Protect IP Act) were actually on 2011’s top 20 list, but they deserve some revisiting since I ended last year’s section on them with an open-ended question about whether opposition would become strong enough in 2012 to defeat these heavily-funded bills.

Turns out that it was.

Likely in response to several whitehouse.gov petitions, the White House issued an implicit veto threat against the two bills.  On January 18, 2012, the Internet protested SOPA and PIPA with several sites, such as Google, encouraging users to sign petitions in opposition, and several other sites, such as Wikipedia, blacking out completely for 24 hours. Shortly thereafter, momentum in Congress quickly reversed against these two bills, and they have since been shelved indefinitely.

The significance here isn’t just in the defeat of these two bills; instead, there’s more significance in the fact that the Internet was so effectively used to rally public opinion against two bills that enjoyed some of the strongest bipartisan support and were backed by some of the most well-funded lobbying groups in existence.

In short, the Internet demonstrated how it could be an effective – if not the most effective – vehicle for democracy.

Arizona v. U.S.

Arizona v. U.S. effectively marked the end of states’ taking immigration matters into their own hands – a topic that made 2011’s top 20 list.  Not that I ever believed that the case presented a genuine novel legal question (even though I mixed up Alito and Roberts, I accurately predicted the 5-3 ruling), but sometimes it takes a Supreme Court decision to stem even unconstitutional legal trends among the states.

Posner v Scalia

The Arizona decision actually led to another legal dispute: Scalia v. Posner.  No, there hasn’t actually be a lawsuit filed, but after Seventh Circuit Judge Richard Posner issued a rather voluminous critique of Justice

Scalia’s Arizona dissent, Scalia responded with more hostility.  We seem to be at a temporary cessation of hostilities, but not before the two jurists publicly went back and forth with one another for several months.  Ironically, this ideological spat is between two noted conservatives.

Prop 8 overturned

“Proposition 8,” passed in 2008, revoked the right for same-sex couples to marry in the state of California.  On February 7, 2012,  Ninth Circuit struck down Prop 8 on the grounds that it was unconstitutional for California to take away a fundamental right – such as the right to marry – once granted.

Obviously, this decision has implications for the state of California, but what about for everyone else?  Well, that depends.  Specifically, on whether the Supreme Court decides to hear the case.  I give a much more detailed analysis in this post, but it’s possible that the Court will hear the case and issue a broad ruling holding that states cannot limit the rights of same-sex couples to marry.

Of course, it is more likely that the Court won’t hear the case (and I give reasons for this in that post I mentioned), but regardless, it remains significant because the ruling represents the first time a state ban on same-sex marriage was struck down by a federal court as unconstitutional.

The reelection of President Barack Obama

Luckily, the 2012 presidential election didn’t end with an actual legal event (unlike in 2000), but the reelection of President Obama is certain to have a major impact on the nation’s legal landscape for the foreseeable future.

Obama Reelection

Naturally, a big part of this will be because of the influence over national policy that the Executive exercises.  However, I’m more focused on an area directly related to the legal practice: judicial appointments.

Federal judge appointments – both at the district and appellate levels – often have a very long-lasting impact over the ideological direction that case law moves.  In addition, the President’s power to pick Supreme Court nominees exerts even more influence that can far outlast a president’s term in office.

Within the next four years, it seems very likely that Justices Ginsburg and Breyer will retire, which wouldn’t necessarily shift the Court’s ideological balance.  With two conservative Justices approaching the age of 80, though, it’s entirely possible that biology could force one or two conservative retirements – which would lead to a significant ideological shift.  However, even if only Ginsburg and Breyer retire, it will still represent a cementing of a solid four Justice liberal bedrock for the next several decades.