One would be hard pressed to find a better starting point for the 2009-10 Supreme Court term review than President Obama’s reproach to the Supreme Court during his State of the Union Address. As President Obama chastised the Court for overturning a century of Supreme Court jurisprudence, he espoused concerns similar to those found in Justice Stevens’ dissent, namely that the Court’s ruling in Citizens United may be interpreted to affirm the right of foreign-owned, domestically incorporated entities to influence the political process with using corporate funds. In Citizens United, the majority declined to reach this question, but, leaving aside for the moment the First Amendment implications of Citizens United, the separation of powers issues raised by President Obama’s actions are noteworthy. After all, it’s the Executive’s duty to enforce Supreme Court rulings.

Despite this vitriolic targeting of the Court, there were no signs of retaliation. In Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB), the Court addressed the constitutionality of the PCAOB audit board created by the Sarbanes-Oxley Act of 2002, with respect to the degree of removal control the President has. The Court expanded the power of a president that only six months ago chastised the Court during the State of the Union Address. Under Sarbanes-Oxley, the PCAOB members could only be removed for good cause by the Securities and Exchange Commission (SEC), and given that members of the SEC could only be removed by the President for good cause, “two layers of tenure protection” existed between the President and PCAOB. The Court found this level of insulation unconstitutional, and further defined the outer bounds of their decision in Morrison v. Olsen.

The Court also attempted to streamline a major aspect of civil procedure in Hertz v. Friend. In that case, the Court espoused a preference for the “nerve center” test in determining a corporation’s “principal place of business” under 28 USCA § 1332. The Court reasoned that the nerve center test is the most consistent with Congress’ expressed intent for a corporation to have citizenship in a “principal place” of business, i.e. a singular location. This preference amounts to a tacit rejection of the “brawn” test, i.e. whether sufficient aggregate activities are conducted in the state so as to render a corporation a citizen of that state for diversity purposes. In its decision, the Court noted that its preference for the “nerve center” test was informed by a desire to set forth a bright-line rule and streamline the diversity test among the federal courts.

Perhaps the most notable aspect of the 2009-10 term is the extent to which it defines the contours of First Amendment protections. In Citizens United, the Court found the Bipartisan Campaign Reform Act (BCRA) unconstitutional insofar as it suppressed free speech, rather than regulated it through disclosure and disclaimer requirements. Though the reception of the decision was contentious given its interpretation as a pro-business decision, a common misconception is that the decision extends not only to for-profit entities, but to trade associations, labor unions, and non-profit organization as well. Furthermore, since the Court left the door open to speech regulation through disclosure and disclaimer requirements, the potential for surreptitious manipulation of the political process by corporate America seems to be lessened, at least in theory if not in practice. In another major decision in furtherance of First Amendment protections, the Court in United States v. Stevens struck down a federal law criminalizing animal cruelty depictions. To quote the Chief Justice, “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

Nevertheless, a number of decisions implicating the First Amendment went the other way. In Christian Legal Society (CLS) v. Martinez, the Court vindicated UC Hastings’ refusal to officially recognize CLS as a student group due to their discriminatory, faith-based policies, in accordance with relevant state law. Here, the same four justices that voted in favor of free speech for corporations in Citizens United were of the opinion that to permit even this indirect restraint on speech was to provide the government with a “handy weapon” for suppressing the speech of unpopular groups in the future. The Court also limited free speech in Holder v. Humanitarian Law Project, affirming the constitutionality of a statute criminalizing all forms of aid to designated terrorist groups, including advice pursuant to legal, non-violent activities.

A final note on the 2009-10 term is due with regards to the McDonald v. Chicago decision, where the Court found that the Second Amendment right to “keep and bear arms” is incorporated by the Due Process Clause of the Fourteenth Amendment and applies to the states. This decision followed the Court’s 2005 decision in District of Columbia v. Heller and sought to clarify the uncertainty that remained in the wake of Heller, which struck down a D.C. handgun prohibition as an unconstitutional abrogation of the Second Amendment without taking the incorporation step found in McDonald.

To put it succinctly, the 2009-10 term clarified several areas of law that have been undergoing reification for decades. The contours of presidential removal power, the modern-day relevance of the Second Amendment, and the means for determining corporate citizenship in federal diversity suits have undergone substantial clarification. Nevertheless, the Court’s holdings have left many questions unanswered, particularly with respect to the First Amendment decisions. If one were to brave enough to offer a prediction, it would not be entirely surprising to see the issues raised in Citizens United find their way to the Court once again some time soon.