Tomorrow's Big Fix for SCOTUS Junkies

Tomorrow will be a big news day for SCOTUS junkies. Feel free to use this thread to air thoughts on any of tomorrow's anticipated developments: Kagan's confirmation hearings, Stevens' retirement (lawyers at the Court will apparently all be wearing bow-ties), the death of Justice Ginsburg's husband today, tomorrow's expected rulings, or anything else that takes your fancy.

Three cases, in particular, are very interesting to me. First is Bilski, the business methods patent case. Pretty much everyone expects a unanimous holding that business methods are no more patentable than a "method of speed dating" (Sotomayor), a method of "wealth maximization [by buying low and selling high]" (Roberts), or a "method of teaching antitrust law that keeps 80 percent of students awake" (Breyer). What I hope for is an opinion that is as clever and crass as the oral argument transcript.

Second is McDonald v. City of Chicago, which asks whether the Second Amendment is incorporated against the states. The case brings plenty of irony along party lines as conservative types clamor for incorporation and liberal types clamor for state power.¹ My hope (and, it seems, the sound money) is that a divided Court will hold that it is incorporated by the due process clause (but not the privileges or immunities clause). Depending on how broad the Court construes the right to bear arms, I think it is safe to expect immediate lawsuits against (among other places) the City of San Francisco, which has been phenomenally successful at burdening handgun ownership.

Third are two potential First Amendment developments. The first is Christian Legal Society v. Martinez, the UC Hastings First Amendment case. Lots of background gossip in this case as well, after Professor McConnell's repeated confrontations with the Justices at oral argument were, um, less than graceful. The second is a set of expected orders in Petitions from big tobacco, which has asked the Court to grant cert on (among other things) whether the massive cultural effect of tobacco litigation and health issues in America makes their tobacco advertising political -- and not commercial -- speech. My gut finds that argument clever but not convincing, although my brain has a hard time drawing a line between commercial and political speech in this case -- especially after Citizens United. Anyway, if the Court decides to review that issue I think we can expect some interesting coverage in the coming year.

Finally, tomorrow is Justice Stevens' last day of active service, and the beginning of SCOTUS nominee Elena Kagan's confirmation hearings. So it should be a busy day on C-SPAN and a slow day of bar review, at least for us nerds.

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¹Update, June 28th: Two thoughts, having now read the opinion.

First, I think it is safe to say the Court was aware of the irony as well: "Municipal respondents’ main argument is nothing less than a plea to disregard 50 years of incorporation precedent and return (presumably for this case only) to a bygone era." (Slip Opinion, pg. 33.)

Second, is it just me or is Justice Alito becoming the Court's leading example of excellent opinion writing? One need not be pleased with his conclusions to agree that his writing is clear, precise, direct, and approachable. I'm thinking in particular of today's decision in McDonald, and last fall's decision in Jones v. Harris Associates. He ought to teach a seminar. I am sure law students everywhere would be pleased to see Justice Kennedy attend.