The 2011-2012 US Supreme Court term, set to begin Monday, is best described by a case that isn’t even on the docket yet.
The case, HHS v. Florida, would instantly transform the high court’s upcoming nine-month session from an interesting and important collection of legal disputes into an historic constitutional showdown with major political implications – in a presidential election year.
The legal challenge threatens one of President Obama’s most ambitious accomplishments, the attempted wholesale reformation of the health care insurance market to extend health insurance to millions of Americans who otherwise couldn’t afford it.
Usually, the Supreme Court’s term is defined on the eve of the first Monday in October by the array of cases the justices have already agreed to hear and decide.
The unusual feature of the start of this year’s term is that the “Obamacare” case isn’t the only blockbuster looming on the high court’s horizon. In the weeks ahead, the justices are set to consider taking up a string of other potential landmark cases that could further transform the new term into a clash of constitutional titans. They include disputes examining:
• Whether the Second Amendment protects a right to carry a gun in public places for self-defense.
• Whether the use of racial preferences in university admissions programs is unconstitutional.
Bleeping dirty words on TV
In addition to that unprecedented cluster of potential mega-cases, the high court is already set to hear a dispute involving the power of the Federal Communications Commission to punish broadcast television stations for showing brief nudity or failing to bleep dirty words during prime time programming.
The case, FCC v. Fox Television, will examine whether the FCC’s indecency enforcement procedures violate the First and Fifth Amendments. At issue is the government’s attempt to police the public air waves to prevent not only obscene material, but also indecent communications offensive to a family-oriented audience.
The current indecency enforcement effort stems from a 1978 high court decision that upheld sanctions against stations that broadcast comedian George Carlin’s famous routine on the seven dirty words you can’t say on the public air waves.
For years, the FCC enforced a policy against the systematic and repeated use of offensive words, most of which had been identified – effectively and repeatedly – by Mr. Carlin.
In 2001, the FCC changed course. It began enforcing a prohibition not just on systematic indecency but also on the use of fleeting expletives – dirty words blurted out during a prime time program. Several celebrities during music award programs on Fox used the “F-word,” and the “S-word.” In addition, an episode of ABC’s NYPD Blue featured a scene revealing a woman’s bare buttocks.
The FCC declared the programs “indecent.”
The broadcasters fought back with a lawsuit, claiming the FCC’s censorship was ill-defined and difficult to decipher. The Second US Circuit Court of Appeals in New York agreed and struck down the FCC’s policy as unconstitutionally vague.
The government defends the FCC policy, noting that broadcasters had been given fair notice.
Legal analysts are watching the case to see if the court uses it to affirm traditional indecency standards or instead requires a more permissive policy in light of widespread use of the Internet and cable television.
“I think the thing that will interest the court most is just the prospect of chilling” and whether the FCC policy provides the requisite degree of clarity, John Elwood, an appellate specialist and former law clerk to Justice Anthony Kennedy, told a recent briefing at the National Chamber Litigation Center.
“One thing that makes [Justice Kennedy] really passionate, is will people know whether they can broadcast something,” Mr. Elwood said. “If it is a close question whether you can broadcast Schindler’s List because there are naked people in concentration camps, that is going to give him a lot of heartburn.”
In an important case involving the First Amendment’s separation of church and state, the justices will consider whether a former teacher at a Lutheran elementary school can sue the church-run school for alleged disability discrimination and retaliation.
School officials argue that the lawsuit is barred under the “ministerial exception,” a legal doctrine which blocks employment-related lawsuits against religious organizations filed by employees who perform important religious functions.
The ministerial exception is designed to insulate religious groups from interference and second-guessing by judges and others about how the group is carrying out its religious mission. It applies to pastors, priests, and rabbis.
The issue in the Lutheran school case is whether it also applies to a teacher who spent most of her day presenting a secular curriculum to her students, but who also was a “commissioned minister” who taught religious classes and led the children in prayer.
Douglas Laycock, a University of Virginia law professor representing the Lutheran school, says the case could trigger “a revolution in relations between church and state.”
“The ministerial exception is limited to employees who perform functions important to the employer’s religious mission,” he writes in his brief to the court. He says the teacher was dismissed for violating church rules and that the courts cannot decide her claim without becoming involved in underlying religious disputes.
“Allowing her claim to go forward would leave the church unable to control who teaches the faith to the next generation,” Mr. Laycock writes.
Lawyers for the teacher counter that generally applicable anti-discrimination laws are fully enforceable and “need not give way to religious exercise.”
The teacher is not asking any court to take sides in a religious dispute, her lawyers say. Rather, she merely seeks a determination of whether her dismissal violated generally applicable provisions of a federal anti-discrimination law.
The disputed status of Jerusalem
In Zivotofsky v. Clinton, the high court will wade into a clash between Congress and the executive branch over a sensitive matter of foreign affairs – the disputed status of Jerusalem.
As a result, children born in Jerusalem to US citizens are listed on birth documents as having been born in Jerusalem. No country is noted on the State Department documents.
Pro-Israeli members of Congress who disagree with this neutral posture, sponsored and passed a law directing the State Department to record the place of birth as Jerusalem, Israel.
The issue came to a head following the birth of Menachem Zivotofsky, a US citizen, in Jerusalem. His mother applied for a passport for her infant son and asked that the place of birth be recorded as Jerusalem, Israel. When the State Department refused, the parents sued to enforce the federal statute.
A federal judge threw the case out, saying it presented a political question best left to the elected branches of government to iron out. The federal appeals court in Washington affirmed.
In agreeing to take up the parents’ case, the high court asked both parties to address an additional issue: Whether Congress’s Jerusalem law impermissibly infringes on the president’s power to recognize foreign sovereigns?
During a recent Supreme Court preview briefing, Professor Kinkopf told the American Constitution Society that four of the nine justices had prior work experience arguing separation of powers issues on the side of the president.
This prior experience, he said, will “orient the court to look favorably on the president’s position.”
But Kinkopf warned, “The way they do it could have dramatic consequences because Congress has other powers and the president has other exclusive powers, like the commander-in-chief power.”
How the court resolves the Jerusalem issue could set the stage for larger confrontations, he says.
“Can Congress use its spending power to limit the way the president exercises the commander in chief power?” Kinkopf asks.
Two important Fourth Amendment cases are also high on the court’s docket this term.
In Florence v. Board of Chosen Freeholders, the justices have agreed to decide whether the government has the power to order the routine strip search of persons detained by law enforcement regardless of how minor the offense or any individual assessment of his or her likelihood to be carrying a weapon or contraband.
Tracking criminal suspects' cars
The court will also decide in United States v. Jones whether the Fourth Amendment allows law enforcement officials to install a GPS tracking device on a suspect’s car to conduct continuous round-the-clock surveillance without first obtaining a judicially-authorized warrant.
By far the most significant case of the term – and perhaps for a generation – will be the constitutional challenge to the Affordable Care Act.
Did Congress act within its commerce clause powers when it approved the ACA’s individual mandate?
The ACA requires every American to purchase a government-approved level of health insurance or pay a penalty.
Opponents say never before has the US government required citizens to purchase a private service or face punishment. Supporters say the measure is well within Congress’s power to regulate interstate commerce.
A panel at the Eleventh US Circuit Court of Appeals in Atlanta voted 2 to 1 to strike down the individual mandate as exceeding Congressional authority. A different panel at the Sixth Circuit in Cincinnati ruled that the mandate did not violate commerce clause restrictions. A third panel at the Fourth Circuit in Richmond threw the case out on other grounds.
“The federal government’s assertion of power, under the commerce clause … is unprecedented, lacks cognizable limits, and imperils our federalist structure,” the Eleventh Circuit majority declared.
In a brief urging the high court to take up the case, US Solicitor General Donald Verrilli said the Eleventh Circuit had jettisoned “the considered judgment of the elected branches of government – after years of study and deliberation – on how to address a crisis in the national health care market.”
He added: “The minimum coverage provision is squarely within Congress’s power to regulate interstate commerce, lay and collect taxes, and enact legislation.”
“The court of appeals’ contrary decision is fundamentally flawed and denies Congress the broad deference it is due in enacting laws to address the nation’s most pressing economic problems and set tax policy,” he wrote.
It is now up to the Supreme Court to resolve the disagreement. Initial briefs have already been filed. Reply briefs are expected by the end of the month. The court could announce in November whether it will hear the case, and which questions it will decide. A final decision could be expected by late June.
The ACA is one of the Obama administration’s greatest achievements – an attempt to fundamentally reshape the provision of health insurance nationwide. But it is also controversial. Attorneys general from 26 of the 50 states are co-litigants who urged the Eleventh Circuit to declare the law unconstitutional.
The reform effort has also split the nation. That division is expected to continue and deepen with each stage of the litigation extending well into the 2012 presidential campaign.