Since I’m in Washington for law school, I’m going to do my best over the coming weeks to watch oral argument in front of the Supreme Court. The Court doesn’t sit during the summer months, when most people are here for tourism or when I was here working summer jobs, so not too many people have the opportunity to get to see oral argument. Seating in the Court is incredibly limited, especially to the general public, so getting a seat often requires standing in line from about 5 am on the day of argument. I’m going to do it at least once, though.
Also, today, Sunday, Oct 2, is the date of the Red Mass, the traditional service on the Sunday before the opening of the Supreme Court term, attended by (most of) the justices and many other politicians, sometimes even the president. It’s also just a normal Sunday morning mass, open to the public.
So, with the Court opening for argument on Monday, I thought I’d just summarize some of what I’ve gathered that the Court is facing this Term and my own take on how they are likely to come out on the issues. It seems to be a very active and diverse list of cases that have much more importance on big matters of public debate than the past few terms have had.
1. The justices are being asked to decide the constitutionality of the individual mandate of the Affordable Care Act. Essentially everyone with a stake in the game just wants the Court to decide, since everyone knows it will come to that anyway. Instead of deciding on the merits of the case, however, the Court could decide on a procedural issue: the Court could say that the plaintiff lacks standing to sue, basically since no one has been harmed by the fee imposed if you don’t buy health insurance since it hasn’t gone into effect yet. Our justice system (usually) requires that parties come to a court with an actual injury, not merely the threat or knowledge of one. On the merits, though, my bet is on the Court upholding the law in its entirety as a proper exercise of Congress’ ability to use any “necessary and proper’ means to regulate activities that substantially impact interstate commerce (i.e. the nation’s health care system). Justice Kennedy’s opinion will likely become law here; he will likely write the opinion for whichever side he comes down on. But I see him upholding the law. It may also be possible to get Roberts or another justice to uphold it. We’ll have to see. One other side note: so, does this mean that Congress could require everyone to eat three pieces of broccoli every day? In theory, yes. But besides the impossibility of actually enforcing such a law, that law would be so uncommonly stupid and such an onerous burden on the people that the solution would be a political one: elect new Congresspeople and a new President to repeal the law. A political solution, not a judicial one, is the best option here.
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2. The Court will examine the ability of states to enforce strict immigration laws and whether this conflicts with the Constitutional principle of federalism by preempting an inherently federal realm of control: immigration. My instinct is that the Court will lean toward keeping immigration policy and enforcement at a federal level.
3. The Court will look at a new affirmative action case from the University of Texas, where officials take into account a student’s race to try to make the student body more reflective of the state’s population. Justice O’Connor was the critical vote last time for affirmative action in college admissions (but against hard quotas), so we’re not sure how the Court will come out here.
4. The Court has a case called Zivotofsky v. Clinton, which involves a statute in which Congress directed the State Department to record the birthplace of U.S. citizens born in Jerusalem as “Israel” on U.S. passports. It presents major separation-of-powers questions that ask whether the executive may ignore Congress’s directions. The law basically declares that Jerusalem is part of Israel and that is to be put on passport designations issued by the State Department, which says the United States has no position on whether Israel has sovereignty over Jerusalem.
5. The GPS case: United States v. Jones: Do police need a warrant before attaching a GPS device to a person’s automobile to track him 24 hours a day for an indefinite amount of time? It is basically asking whether the blindingly fast pace of modern technology has reshaped Americans’ notion of privacy. This 4th amendment case is particularly interesting to me because normally, police are allowed to follow you and observe your public movements, but it requires them to actually do that (the scenes from old movies where they stake out a guy in the squad car). This is novel because now they just throw a device on anyone’s car (yours, mine, your neighbors, someone who disagrees with the government) and can watch his movements indefinitely with no further action. No probable cause. I hope the Court sides with privacy here over the government’s argument that they have this power. I’m generally not a fan of slippery slope arguments, but things like this would be the start of a slide toward a security state “1984” style.
6. There is a case on whether the Federal Communications Commission’s standards for indecency on television are too vague to meet constitutional standards. Also the court may wade into the FCC’s ability to regulate the Internet, another huge emerging issue with drastic impacts on your everyday life.
7. Another really important criminal case about strip searches: Whether jails can strip-search all newly booked inmates without evidence that they are concealing contraband. Another 4th Amendment case on whether a strip search is a reasonable search if the government can’t show probable cause. I hope, again, the Court sides against the government’s power here.
8. Interesting case out of California about pork. No, not political pork. Actual pig meat pork. The court is asked to answer whether California can prohibit the sale of pork made from “downer” pigs, those too feeble to walk before they were slaughtered. I don’t think I have an opinion about this, at least yet, but kind of an interesting case to look forward to.
Finally: 2 things that will likely not be on the docket this year, but will be sometime soon. First, Same-sex marriage: The case most likely to reach the court is out of California from the Prop 8 fight a while ago. Those parties are currently arguing over issues of standing there, so it will be at least a year until the Court accepts any case- and probably longer. Eventually, though, I don’t think there is any legitimate legal argument against full marriage equality. The Court, I believe, will side with advocates for marriage. Second, and related, is a challenge to the Defense of Marriage Act coming from a dispute in which the State of Louisiana refused to recognize the marriage of gay couple in Massachusetts for purposes of adoption of a child in Louisiana. This implicates broad Constitutional questions of Full Faith and Credit, Equal Protection of the Laws, etc. I certainly know where I stand here, but we’ll have to see if the Court takes the case and then where it comes out on it.