No True SCOTUS
Tomorrow is Monday, October 3, the first Monday in October, and therefore the opening of the Supreme Court of the United States (SCOTUS) for the 2011–2012 session. The court’s current calendar was set in 1916 by an act of Congress.
Generally, First Monday proceedings are largely ceremonial. It’s not clear whether the court will memorialize Jill Clayburgh, who was the first woman appointed to the Supreme Court (at least in the movies). Still, I will raise a toast to one of my favorite actresses.
One bombshell announcement over the past week was that the Obama Administration asked the Supreme Court to consider the Patient Protection and Affordable Care Act (pejoratively referred to as “Obamacare”) sooner rather than later. Clearly, the Obama Administration senses a win-win (or at the very least, a win-draw) opportunity by forcing the issue and asking the court to adjudicate PPACA and announce their decision in the heat of the 2012 election season (presumably in June, at the last possible moment, as it usually does for big cases).
After the jump, we’ll run down a few of the most interesting cases that will certainly be considered by the court this term, and then preview some cases which might be considered but have not been officially added to the calendar (including PPACA).
I found two interesting and valuable video resources that I will use as the basis for this blog post.
One is a video preview of the 2011–2012 SCOTUS calendar from the conservative-leaning Heritage Foundation featuring Paul Clement and Kannon Shanmugam, who both clerked for Justice Antonin Scalia. Both offer an incisive and intelligent rundown of the upcoming SCOTUS term from a conservative legal perspective.
Paul Clement’s perspective on the PPACA and same-sex marriage issues is especially valuable, since he successfully argued the unconstitutionality of the individual mandate before the 11th Circuit Court and has also argued on behalf of Congress in support of the Defense of Marriage Act (DOMA).
The other video resource is a recording of a similar meeting hosted by the liberal-leaning American Constitution Society for Law and Policy (ACS). There were a number of panelists for the ACS forum, and their commentary is of varying quality.
For each case, I’ve included the timestamp from the Heritage and/or ACS videos linked above, so that you can jump directly to the discussion of the cases that interest you. There is also an excellent written summary on the CNN webpage. Obviously, I won’t be able to give even a brief rundown on all the interesting cases, so if there’s something I’ve left out, then feel free to drop it into the discussion below.
On the Calendar
October 3, Douglas v. Independent Living Center of Southern California: Legal Standing
The federal government has many requirements and restrictions associated with grants to the states. If a state refuses to disburse the funds in a manner commensurate with those rules, do the ultimate recipients of those funds have grounds to sue? Or is this merely an administrative matter, to be left up to a federal agency to address?
October 4, Maples v. Thomas: Due Process
If a convict misses a filing deadline because the notice of said deadline was never delivered to him, does he have a constitutional right to an extension?
October 5, Hosanna-Tabor v. EEOC: The Ministerial Exception to Hiring
For some time, the courts have recognized the so-called “ministerial exception” to equal employment laws. For example, it would be silly to argue that Catholic Churches discriminate against Wiccans in choosing priests. The Hosanna-Tabor case looks at whether this exception extends to clerical employees or parochial school teachers.
October 12, Florence v. Board of Chosen Freeholders of the County of Burlington, New Jersey: Illegal Search and Seizure
The prison in Burlington has a policy of strip-searching all persons who are jailed. Albert Florence was jailed for unpaid parking tickets (a charge he denies). He argues a cavity search for all prisoners, regardless of the nature of their crime, is needlessly intrusive and an affront to personal dignity. Prison officials, of course, argue that the strip searches are necessary for the safety of jail inmates and employees.
November 2, Perry v. New Hampshire: Eyewitness Testimony
One lower-profile case that I find fascinating, and think has the potential to profoundly change how cases are tried, is Perry v. New Hampshire. A suspect was presented to an eyewitness in handcuffs, and she identified him as a car thief. Was this prejudicial? Beyond the narrow issue, there are larger issues of the overall reliability of eyewitness testimony. The American Psychological Association has filed an amicus brief in the case. Since the last time this issue was considered by the court, there have been tremendous advancements in our understanding of brain science and the unreliability of memory that may strongly impact this case, and many others.
November 7, Zivotofsky v. Clinton: Executive Privilege
This unusual case has united the Bush Administration and Obama Administration in their disdain for Congressional “meddling” in affairs of State. Menachem Binyamin Zivotofsky was born on October 17, 2002 in Jerusalem. His parents want to list “Jerusalem, Israel” on his “Report of Birth Abroad” and his subsequent passport application. It is longstanding State Department policy that the city of Jerusalem is written, simply, Jerusalem, with nothing following. No other municipality on the planet is styled this way — a passport always has City, State or City, Country listed, with Jersualem being the sole exception.
In 2003, Congress passed a statute (the Foreign Relations Authorization Act of 2003, Section 214(d)) directing the State Department to write the birthplace on the passport as “Jerusalem, Israel”. President George W. Bush issued one of his infamous “signing statements” declaring the provision unconstitutional. His claim was that Article II, Section 2 of the U.S. Constitution allows the Executive the sole discretion in recognizing ambassadors, with the lesser included power of deciding where Jerusalem is located on a map. The Obama Administration agrees. Does the Executive have the ability to declare an Act of Congress unconstitutional? Even though this is by itself a tiny issue, it raises much larger questions especially related to the Executive’s prosecution of the War on Terror. Paul Clement calls this “the sleeper case of the term”.
November 8, U.S. v. Jones: Illegal Search and Seizure (4th Amendment)
The issues raised by U.S. v. Jones point up the disconnect between rapidly evolving technology and slowly evolving legal standards.
Antoine Jones was a suspected drug dealer. The FBI obtained a valid search warrant from the courts of the District of Columbia to install a GPS tracking device on his car, but it was good only for 10 days. On the 11th day, they located him in Maryland and installed the tracking device. Based on the information from the tracking device, police discovered 100 kilograms (220 pounds) of cocaine and $850,000 in cash in Jones’ possession. He was sentenced to life in prison. The questions raised by this case include:
- Does extended tracking violate a reasonable expectation of privacy?
- Is the initial placement of the GPS device intrusive, and therefore a violation of the 4th Amendment?
Before answering too quickly, consider this. Visiting a web site on the Internet (say, logarchism.com) is analogous to visiting a public place, and courts have repeatedly ruled it’s okay for the government to track that activity. But what about technology that allows the government to track all individuals that visit (say) the Logarchism site, Heritage Foundation website, farm supply sites, and bomb-making sites, on the presumption that the combination is evidence of some sort of illegal activity? Would that be intrusive?
December 7, Mayo Clinic v. Prometheus Laboratories, Inc.
Another lower-profile case that makes my science geek juices bubble is this patent law case, which concerns the question of whether a naturally occuring process in the human body can be patented. Prometheus has attempted to patent a process where a drug is given to a patient with intestinal problems, and then the level of the drug’s metabolites is measured, and the dose adjusted accordingly. This maximizes the benefits of treatment and minimizes side effects. From the Prometheus patent filing:
1. A method of optimizing therapeutic efficacy for treatment of an immune-mediated gastrointestinal disorder, comprising:
(a) administering a drug providing 6-thioguanine to a subject having said immune-mediated gastrointestinal disorder; and
(b) determining the level of 6-thioguanine in said subject having said immune-mediated gastrointestinal disorder,
wherein the level of 6-thioguanine less than about 230 pmol per 8×108 red blood cells indicates a need to increase the amount of said drug subsequently administered to said subject and
wherein the level of 6-thioguanine greater than about 400 pmol per 8×108 red blood cells indicates a need to decrease the amount of said drug subsequently administered to said subject.
To make a rather silly analogy, it’s as if Monotreme Industries filed a patent for a process where a young man would administer a dose of grain alcohol to a young woman, then asked her if she wanted to come home with him. If she says “yes”, then the effective dose is recorded; if she says “no”, then the dose is increased. If you think this is worth a patent, then you may want to file an amicus brief on behalf of Prometheus.
To Be Scheduled
FCC v. Fox Television Stations: Indecent Speech and Brief Nudity (1st Amendment)
For some time, the court has been happy with the Pacifica case: those seven words George Carlin said you can’t use on the airwaves? You can’t.
Now they’re asked to judge the constitutionality of what are called “fleeting expletives” and brief nudity (in this case, on the ABC TV show NYPD Blue).
The 2nd Circuit Court ruled the current policy, based on Pacifica, to be unconstitutionally vague. One interesting note: since Justice Sotomayor was sitting on the 2nd Circuit when it ruled on the case, she must recuse and the decision will be made by eight Justices.
Likely to Be on the Calendar
PPACA and the “Individual Mandate”
Can Congress compel citizens to purchase a product, or suffer a tax penalty as a result of non-compliance? The constitutionality of the “individual mandate” has been questioned. If the individual mandate is overturned, is that provision “severable”, that is, can the rest of the law exist without the individual mandate? (In my opinion, it may be an open legal question, but as a practical, financial matter, the answer is a firm “no”.) An even larger issue, raised by 28 states in their version of the lawsuit, is whether the Federal government can penalize states for non-compliance with PPACA provisions under the same Commerce clause.
This issue looked to languish in the lower courts for several more years, until last week, when the Obama Administration announced it was asking SCOTUS to review the lower court rulings in the present term. This drops a politically sensitive decision squarely in the middle of the 2012 Presidential election. Is this a shrewd move by the Obama Administration, or a huge miscalculation?
If this case comes to the Supreme Court, it probably won’t be from California’s Proposition 8 case, where the circuit court and State Supreme Court are playing shuttlecock with the issue of standing (i.e. who can sue). The more likely case to be reviewed this term would be the Defense of Marriage Act (DOMA). President Obama has suspended the United States’ defense of the 1996 law, angering House Republicans, who are fighting the legitimacy of same-sex marriages performed in New York and Connecticut. The 1st Circuit Court of Appeals case is the more likely case to be heard by SCOTUS, if they pick up the issue this term.
All 50 state legislatures have considered immigration reform laws (1,592 in all for this year alone). Many states have passed “Arizona-style” laws, based on an Arizona statute that requires police to check the immigration status of those suspected of breaking other laws. The technical question is whether immigration is solely under Federal (i.e., Congressional) jurisdiction, or whether it can be legislated at the state level. If Congress acts, then the point will be rendered moot. The Supreme Court would prefer that Congress act. I find that prospect unlikely.
Just when you thought affirmative action fights were over, the same two cases that were last reviewed by SCOTUS — one from the University of Michigan and the other from the University of Texas — are back again. Jennifer Gratz, a white student, was wait-listed at the University of Michigan. The 6th Circuit ruled, 2–1, that the current Michigan standard was unconstitutional. The month before, the 5th Circuit in Texas ruled that existing Texas affirmative action standards were constitutional. These clashing values must be aligned by the Supreme Court.
We’re going to have some more detailed posts on the days each of the more interesting cases has their oral arguments. We’ll describe the litigants, the circumstances of the case, and an outline of the arguments on each side. Then we’ll open the floor to you, our readers. What do you think of the merits of each side? Which side should win? Which side do you think will win, and on which side will each Justice land?
- A Preview of the Upcoming Supreme Court Term (abovethelaw.com)
- Obama bets health reform on SCOTUS (politico.com)
- Hugh Hewitt: Obamacare Headed To SCOTUS (hughhewitt.com)
- How SCOTUS could pass off the ACA (politico.com)
- DoJ to SCOTUS: Review health law (politico.com)
- Major Religion Case Ushers in SCOTUS Term (blogs.wsj.com)
- Krauthammer: Mid-election cycle SCOTUS ruling on ObamaCare a ‘win-win’ for president (Video) (gunnyg.wordpress.com)
- Supreme Court To Weigh Churches’ Hiring Rights (huffingtonpost.com)
- SCOTUS Watch: Cert. Petitions Filed (asclepiusandjustitia.wordpress.com)
- SCOTUS to Judge Its Own Relevancy in Upcoming Obamacare Ruling (rogueoperator.wordpress.com)
- Supreme Court To Examine ‘Ministerial Exemption’ Case (brandtstandard.com)
- The Coming SCOTUS Term: What’s In It For Business? (blogs.wsj.com)
- SD Attny General Announces State SCOTUS Challenge to ObamaCare (dakotavoice.com)
- Health suit might head to SCOTUS (politico.com)
- Lara Croft, Cancer Raider
- The Cost of Opposing Reform
- Supreme Court Watch: Salinas v. Texas
- Supreme Court Watch: United States v. Windsor
- Supreme Court Watch: Hollingsworth v. Perry
- The Hatter Resolution
- Supreme Court Watch: Shelby County v. Holder
- Supreme Court Watch: Millbrook v. United States
- M’aider, Medicaid
- Supreme Court Watch: Levin v. United States