First Monday in October Brings Epic Legal Cases to Supreme Court

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Today the US Supreme Court began what is shaping up to be one of the most influential terms in decades. Under consideration will the fundamental issues of universal health care, free speech, privacy and immigration.

“The docket seems to be changing,” Justice Anthony M. Kennedy told reporters at a judicial conference in August, but legal experts do not expect the court to turn away from the controversial cases that are being presented this term — cases that move to the heart of how America is governed, testing the limits of the power of Congress, states’ rights and judicial interference.

As Alexis de Tocqueville observed in 1835: “scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate.”

“The fact that the issues are politically charged and it is an election year won’t cause them a moment of hesitation,” said Harvard Law School professor Richard Lazarus.

Yet, the decisions of the five Republican appointees and the four Democratic, (usually split along ideological lines) will, in this election year, likely take on greater significance.

What are the high stakes issues that will be argued about this term?

Health care and the power of Congress

Where else can we start but with the Administration’s health care bill – a case that threatens to overshadow all others with decisions on the power of Congress, the reach of judicial review and the play-off between federal and states’ rights?

Republican officials from 26 states will continue to argue that Congress overstepped its power by attempting to regulate the health insurance market. The commerce clause, the plaintiffs argue, cannot be used by Congress to compel all Americans with taxable income to buy health insurance by 2014, or face a tax penalty.

This case may prove to be a defining moment for Chief Justice John G. Roberts Jr, going into his seventh year as court leader.  From the conservative tradition, Judge Roberts believes in limits on the powers of the federal government, but also in a limited role for judges in deciding highly political questions. In this case, these principles have been scripted on warring teams.

On one side, upholding the individual mandate will suggest that the federal government can tell Americans what they must buy, redefining the powers of Congress. On the other side, throwing out the law would be the court’s most dramatic veto of major government legislation since the New Deal in 1935. And in a half-way measure that voids only the individual mandate, reformers will be left with the body of a machine without the internal mechanisms.

Immigration and states vs. federal government

The controversial immigration bill passed in Arizona this April, aimed at identifying, prosecuting and deporting illegal immigrants, faced immediate criticism both from immigration advocates and the President himself.

In March the Supreme Court already backed a law, with a 5-3 ruling, that punishes businesses who hire illegal immigrants — a law that the administration says steps on the toes of the federal government who have traditionally been in control of all immigration matters.

In the review of this new, wider-ranging bill, Arizona Governor Jan Brewer wants the Supreme Court again to rule in favor of state control over in-state immigration. Lower courts have previously blocked this law from taking effect arguing for exclusive federal control over these matters.

A similar law in Alabama is following suit through the lower courts, drawing out the state-federal dispute over immigration. If the Supreme Court upholds the Arizona law, more states, including Alabama, (already well on the road), will be empowered to adopt crackdown measures.

Affirmative action and higher education

This is a sensitive subject deeply connected with the goals of the civil rights era.  President Kennedy, in 1961, created the Committee on Equal Employment Opportunity with an executive order. This committee was the first to mandate projects, financed with federal funds, to take affirmative action in order to ensure that hiring and employment practices were free of racial bias. President Johnson followed this lead with the far broader Civil Rights Act of 1964 that prohibited discrimination of all kinds based on race, color, religion or nationality.

The case being made now by two white students who were turned down for admission by the University of Texas, is that higher education institutions have wrongly used race to favor minorities at the expense of white and Asian Americans — so-called positive discrimination.

The desired outcome for the plaintiffs will be the end of affirmative action in public universities. In an interesting precedent, the Supreme Court has already ruled with a 5-4 decision to prohibit public schools from assigning students based on race to achieve classroom diversity.

The Fourth Amendment protections

As we wrote about last week, the Supreme Court will need to consider GPS tracking in the context of reasonable searches and the kind of warrants required, and is then expected to rule on the constitutionality of a system that the Chicago appeals court said would make the nightmare state envisioned by George Orwell in 1984 “seem clumsy.”

The case in question was brought forward by a known-criminal who had his car tracked without his knowledge. But this decision on the Fourth Amendment expectation of privacy will have broad ramifications for consumers, whose whereabouts and actions, found using the GPS chips in cellphones, may be used by the federal government.

A second Fourth Amendment case asks whether people arrested and held for minor offenses may be routinely strip-searched. This is another case, as the New York Times reports, highlights the renewed focus on the criminal justice system this term.

The First Amendment, “fleeting expletives” and “ministerial exception”

The case between the Federal Communications Commission and Fox (in addition other interested parties), will ask the court to consider whether an extended ban on broadcasting indecency violates the First Amendment.

Under the administration of George W. Bush, the FCC began for the first time to punish broadcasters for “fleeting” expletives and nudity. This includes over-excited winners at awards ceremonies, and other short instances of profanity in shows like NYPD blue.

The Obama administration upholds this need for control and argues that broadcast media should remain a sanctuary where parents know their children will not be exposed to indecent material.

In opposition, the broadcasters together with the New York federal appeals court say that the indecency policy is unconstitutionally vague and has led to inconsistencies. For example, some expletives, such as those in the the movie Saving Private Ryan, have been allowed. And in this instance, the government countered that the FCC rightly found the expletives integral to the realism of the depiction of war.

The New York court struck down the policy, arguing that there is “little rhyme or reason” to the FCC decisions and “broadcasters are left to guess whether an expletive will be deemed ‘integral’ to a program.”

The First Amendment also arises in a case concerning the 40 year old legal doctrine of “ministerial exception” that protects religious institutions from government interference in employment decisions. Following the firing of a teacher at a church school, the court needs to decide whether it is fair and prudent for religious institutions be exempt from anti-discrimination laws.

Any decision on government interference in religion always promises to further muddy the doctrine of a separation of church and state.

The Sixth Amendment right to a fair trial

In a pair of cases to be argued at the end of the month, the justices will consider, with reference to custody under Miranda (Miranda vs. Arizona), whether defendants who were not told of favorable plea deals or were advised to reject them may pursue claims for ineffective assistance of counsel.

In conclusion

Health care, the struggle for higher education, GPS tracking and profanities on television are all issues that affect the daily lives of American citizens. But the cases presented this year also address some fundamental constitutional issues that will establish sweeping precedents for how the United States is governed, the powers of Congress and the Judiciary, and the freedom of all Americans.

What could be more important than the rights of individuals in a well-functioning democracy?

An epic term it certainly will be.

Related articles

• AT&T, Sony PlayStation and the End of Class Action (legallyeasy.rocketlawyer.com)
• Justice Kennedy on Vanishing Big Civil Suits (trialinsider.com)
• High court backs Arizona immigration law that punishes businesses  (articles.cnn.com)
• Is the University of Texas’ Admissions Policy Legal? (blogs.wsj.com)
• Supreme Court to rule on ‘Big Brother’ Tracking (legallyeasy.rocketlawyer.com)
• In New Term, Supreme Court Shifts Focus to Crime and First Amendment(nytimes.com)
• Hot Topics Before High Court (online.wsj.com)
• Supreme Court set to open crucial term (latimes.com)
• Supreme Court to Examine ‘Ministerial Exception’ Case (huffingtonpost.com)