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McDonald Reviews the Fifth Term of the Roberts Court

BarryBarry P. McDonald, professor of law, wrote a review of the fifth term of the Roberts Court in the September issue of California Lawyer. The fifth term was first for Justice Sonia Sotomayor and the last for Justice John Paul Stevens. McDonald noted that the chief justice asserted leadership during this term, “save for some divisive (and decidedly activist) decisions.”

McDonald reviewed the Court’s decisions regarding free speech issues, calling many outcomes “peculiar.” “On the one hand, corporations have free speech rights to inundate election eve airwaves with slick commercials to sell their candidate of choice (Citizens United), and commercial producers of twisted sexual videos portraying the torture of small animals enjoy the same constitutional protections as any ordinary speaker (U.S. v. Stevens, 130 S. Ct. 1577 (2010)).”

“Yet the Court also ruled that humanitarian lawyers can be criminally punished for counseling peaceful and legal conflict resolution techniques to foreign organizations accused of committing terrorism (Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010)), and that public universities can effectively penalize student religious organizations for requiring those wishing to become members or leaders of such groups to share their religious beliefs (Christian Legal Society v. Martinez, 130 S. Ct. 2971 (2010)).”

As far as the makeup of the Court, McDonald said if Justice Sotomayor's first term is any indication, her replacement of retired Justice David Souter will have little impact on the ideological tilt of the Court's decisions. Similarly, the replacement of retiring Justice Stevens by Solicitor General Elena Kagan isn't expected to significantly affect the ideological makeup of the Court.

McDonald, who has taught at Pepperdine since 2000, is a recognized scholar in the area of First Amendment law. He has published several articles and essays on the law governing freedom of expression and religion in such prominent journals as the Emory Law Journal, Northwestern University Law Review, Notre Dame Law Review, Ohio State Law Journal, and Washington & Lee Law Review. He teaches courses in constitutional law, First Amendment law, and intellectual property law.

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