Monday, October 1, 2012

The Guys That Think Corporations Are People, Decide On More Major Rulings Starting Today

The Supreme Court term that begins Monday holds the prospect for major rulings about affirmative action, gay marriage and voting rights.

A look at cases the court already has agreed to hear and other top cases in the pipeline:

RACIAL PREFERENCES – In Fisher v. University of Texas, to be argued Oct. 10, the court will weigh Texas' limited use of race to help fill out its incoming classes. The outcome could result in a major cutback in the use of racial preferences at the nation's colleges.

ACCOUNTABILITY FOR HUMAN RIGHTS ABUSES – The justices will consider whether American courts may be used by foreign victims to sue over human rights violations abroad. The case of Kiobel v. Royal Dutch Petroleum, to be argued on Monday, concerns claims that the oil giant Shell was complicit in atrocities committed by the Nigerian government against its citizens in the oil-rich Niger delta.

DRUG-SNIFFING DOGS – Two disputes involving drug-sniffing dogs will be heard by the court on Halloween. In one, the question is whether a dog brought to the front door of a home to sniff for marijuana amounts to a search. In the other, the court will consider a dog's reliability and qualifications as a drug-sniffing animal in a case involving a traffic stop and a warrantless search that found the ingredients for making methamphetamines in a pickup truck.

FIGHTING TERRORISM – The government is trying to shut down a constitutional challenge to a law that lets the United States eavesdrop on overseas communications. Lawyers, journalists and human rights advocates filed a lawsuit that objected to the latest version of the Foreign Intelligence Surveillance Act. The issue at the high court, to be argued Oct. 29, is whether the law's challengers are entitled to make their case in federal court.

The following issues probably will be heard this term:

GAY MARRIAGE – The justices are expected to take up gay marriage in at least one of the many appeals pending at the high court. Several lower federal courts have struck down as unconstitutional a provision of the 1996 Defense of Marriage Act that denies federal benefits, including favorable tax treatment and health benefits, among many others, to legally married same-sex couples. The court almost always has the last word when federal laws are struck down. A separate appeal involves California's ban on gay marriage, ruled unconstitutional by federal courts.

VOTING RIGHTS ACT – Several appeals ask the court to invalidate a cornerstone of civil rights era legislation, a provision of the Voting Rights Act that requires all or parts of 16 states, most in the South and all with a history of past discrimination, to get approval from the Justice Department or the federal court in Washington before instituting any changes affecting elections and voting. Some justices expressed skepticism about the need for this measure in a 2009 decision that sidestepped a definitive ruling.


Earlier this morning, the Supreme Court asked for the Solicitor General to respond to a conservative university’s petition seeking to reactivate a challenge to the Affordable Care Act. Normally when the Court calls for such a response it means they are taking the petition very seriously. As SCOTUSBlog explains, the petition tries to breathe new life into a claim that the law’s insurance coverage requirements violate religious liberty, a claim that has not been taken seriously by lower courts:

The Supreme Court opened its new Term on Monday by asking the federal government to offer its views on whether the way should be cleared for new constitutional challenges to the federal health care law — including a new protest against the individual mandate that the Court had upheld last June. The request for the government’s views came in response to a rehearing request by a religious-oriented institution, Liberty University in Lynchburg, Va. The university’s earlier petition was simply denied in June, so it asked the Court to reconsider and wipe out a lower court ruling in order to revive the university’s religious challenges to both the individual mandate and the separate insurance coverage mandate for employers. There is also another challenge to the employer mandate, which did not figure in the Court’s decision last Term.

It is, of course, always dangerous to make predictions about the Supreme Court, especially where Obamacare is involved. Had the justices followed their own past opinions last term, there would have been at least seven votes to uphold the Affordable Care Act as a valid exercise of Congress’ power to regulate the national economy. Nevertheless, it is likely that today’s order is merely procedural housecleaning — not a sign that the justices want to pick up this contentious statute again any time soon.

The petition facing the justices concerns Liberty University v. Geithner, which is the only case where a court of appeals dismissed a challenge to the Affordable Care Act because they believed the case was premature under something called the Tax Anti-Injunction Act. Last June, of course, the Supreme Court disagreed with the Fourth Circuit on this point.

Because the Fourth Circuit kicked Liberty University on procedural grounds, it never actually reached the merits of the plaintiffs’ claims in that case. Broadly speaking,there were two. First, the plaintiffs claimed that the Affordable Care Act exceeds Congress’ enumerated powers — that was the argument that the Supreme Court rejected last June. Additionally, they also claimed that the law violates religious liberty. Neither the Supreme Court nor the court of appeals has weighed in on this second assertion.

There is absolutely no reason to believe that Liberty University should ultimately win its religious freedom claim. Nevertheless, the proper procedure when a case pending before the Supreme Court presents a live issue that was not considered by the court of appeals is to let the court of appeals weigh in on that issue before the Supreme Court does anything else with it. The most likely explanation for today’s order is that the justices intend to set this housekeeping process in motion, not that they are considering striking down Obamacare on religious freedom grounds.

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