Monday, October 05, 2009

Two Key Supreme Court Cases

The Supreme Court session begins today, October 5, and there are two cases that I find of particular interest.

The first is Salazar v. Buono. This is the case related to the 8 foot cross on top of Sunrise Rock in the Mojave National Preserve.

The cross was originally placed in 1934 as a Veteran’s Memorial by the Veterans of Foreign Wars (VFW). The cross was slated for removal by the park service in 2000 but then the Republican Congress passed a bill prohibiting the use of public funds. Then in 2003 it gave the small parcel of land to the VFW effectively removing the cross from public lands in order to circumvent a lower court’s ruling to remove the cross. The lower courts have also taken a dim view of the land transfer recognizing it as a somewhat obvious attempt to get around the court order.

Now the Supreme Court will address the issue. Exactly what issue it’s going to address is the question.

What the court should do is ratify the decisions of the lower courts, disallow the land transfer and order the park service to remove the blatantly religious symbol.

Or should it?

Some version of that cross has been in place as a Veteran’s Memorial for over 70 years and history and tradition do count for something. The cross should never have been raised over public land in the first place but the Great Depression had folks a tad distracted back then.

There is also the issue of the authority of the courts. Congress was clearly trying to pull a fast one and trying to circumvent a decision it disagreed with. That’s not something the courts can allow without establishing a potentially awkward precedent.

They might try to have their cake and eat it too by slapping Congress on the wrist for the fast one but overruling the lower court about the appropriateness of the cross display.

I have a bad feeling about this one but it might tell us where Sotomayor sits on Separation of Church and State issues. If I remember correctly, the CFI was a bit nervous about that and only offered a tentative endorsement.

The second case is American Needle v. National Football League. This case addresses whether professional sports leagues are exempt from anti-trust legislation.

The genesis of the case is when American Needle wanted to produce merchandise with official team logos but the NFL chose to give Reebok an exclusive contract. The basic question is whether the NFL is a single entity or a collection of 32 companies.

If the NFL is a single entity, then it would be essentially exempt from anti-trust laws, but if it’s a collection of 32 businesses colluding for benefit…

Needless to say all the other leagues, like Major League Baseball and the National Basketball Association, are very interested in the result of this case. It could have repercussions for fans and players as well. Imagine if the players had to negotiate with 32 individual teams rather than the NFL as a whole? On the other end, imagine if the league decided that it should determine ticket prices?

I think, I’m not sure, but I think, the court should decide that the NFL is a single entity. Any other decision would lead to way too much uncertainty. It would take years for all the dust to settle.

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