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 11^th 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.

(Her­itage Foun­da­tion 12:32)

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.

(Her­itage Foun­da­tion 15:40)

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.

(ACS 31:40)

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”.

(Her­itage Foun­da­tion 21:50, ACS 12:27)

Novem­ber 8, U.S. v. Jones: Ille­gal Search and Seizure (4^th 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 11^th 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 4^th Amendment?

Before answer­ing too quickly, con­sider this. Vis­it­ing a web site on the Inter­net (say, log​a​rchism​.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?

(Her­itage Foun­da­tion 16:35; ACS 6:00)

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.

(Her­itage Foun­da­tion 30:15; ACS 20:30)

To Be Scheduled

FCC v. Fox Tele­vi­sion Sta­tions: Inde­cent Speech and Brief Nudity (1^st 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 2^nd Cir­cuit Court ruled the cur­rent pol­icy, based on Paci­fica, to be uncon­sti­tu­tion­ally vague. One inter­est­ing note: since Jus­tice Sotomayor was sit­ting on the 2^nd Cir­cuit when it ruled on the case, she must recuse and the deci­sion will be made by eight Justices.

(Her­itage Foun­da­tion 9:17; ACS 26:17)

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?

(Her­itage Foun­da­tion 39:10; ACS 1:00:00)

Same-​​Sex Marriage

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 1^st Cir­cuit Court of Appeals case is the more likely case to be heard by SCOTUS, if they pick up the issue this term.

Immi­gra­tion

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.

(ACS 1:09:30)

Affir­ma­tive Action

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 6^th Cir­cuit ruled, 2–1, that the cur­rent Michi­gan stan­dard was uncon­sti­tu­tional. The month before, the 5^th Cir­cuit in Texas ruled that exist­ing Texas affir­ma­tive action stan­dards were con­sti­tu­tional. These clash­ing val­ues must be aligned by the Supreme Court.

(Her­itage Foun­da­tion 36:20; ACS 52:15)

Com­ing Up

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?

Related arti­cles

• A Pre­view of the Upcom­ing Supreme Court Term (abovethelaw​.com)
• Obama bets health reform on SCOTUS (politico​.com)
• Hugh Hewitt: Oba­macare Headed To SCOTUS (hugh​he​witt​.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) (gun​nyg​.word​press​.com)
• Supreme Court To Weigh Churches’ Hir­ing Rights (huff​in​g​ton​post​.com)
• SCOTUS Watch: Cert. Peti­tions Filed (ascle​piu​sand​justi​tia​.word​press​.com)
• SCOTUS to Judge Its Own Rel­e­vancy in Upcom­ing Oba­macare Rul­ing (rogue​op​er​a​tor​.word​press​.com)
• Supreme Court To Exam­ine ‘Min­is­te­r­ial Exemp­tion’ Case (brandt​stan​dard​.com)
• The Com­ing SCOTUS Term: What’s In It For Busi­ness? (blogs​.wsj​.com)
• SD Attny Gen­eral Announces State SCOTUS Chal­lenge to Oba­maCare (dako​tavoice​.com)
• Health suit might head to SCOTUS (politico​.com)