SOC'S Last 5-4

With the vote to confirm Judge Alito in the bag, Justice O'Connor has left the building. The Court does not hear argument again until February 21, when Alito will take his spot as the newest member. Justice O'Connor left, fittingly, in two ways. First, with a 9-0 opinion in an abortion case Ayotte v. Planned Parenthood of Northern New England (January 18) and, second, by supplying the 5th vote on January 23rd in a sovereign immunity case, Central Virginia Community College v. Katz. (Katz held that States are subject to suit by bankruptcy trustees seeking preferential transfers for the debtor's estate).

Both cases are fitting because she strove mightily to forge unanimity and succeeded more often than she is given credit for (i.e. Feist), but also because on issues where the Court was sharply divided, as a pragmatist, she wanted the law to work for people, and did not see it as an ideological exercise.

The Katz case is interesting both because it would have come out the other way with Justice Alito on the bench, and because of its implications for Railway Labor Executives Ass'n v. Gibbons, 455 U.S. 457 (1982), a case that has featured prominently in debates about Congress's power to enact intellectual property legislation under the Commerce Clause, a connection noted by Justice Stevens' majority opinion (p. 11 n.9). Justice Thomas's dissent makes repeated references to copyright, stating in one passage that he could see no reason under the majority's view to distinguish between Commerce Clause power and the power to establish uniform bankruptcy laws or to grant exclusive rights under Article I, sec. 8 clause 8 (p.4. See also p. 6).

It will be interesting to see what this leads to in the lower courts and if the matter reaches the Supreme Court again, what the force of stare decisis is, a topic of much recent discussion.