Oyez, Oyez

The first Monday in October is when the Supreme Court of the United States traditionally meets for the first formal session of its annual terms. Yesterday was no exception. There is every reason to expect an active and controversial term to follow between now and June of 2014 when the session ends.

It’s worth noting that the Court today enters its fourth term with its current makeup. By now, most people know the setup of personalities. While all nine jurists are important, four stand out. Chief Justice John Roberts administers and guides the institution in a manner eerily reminiscent of John Marshall, mostly right of center but with his primary loyalty to the judiciary itself rather than to the partisan ideology that set in motion the political forces put him at the apex of the American legal profession. Antonin Scalia, the Court’s dean (meaning its most senior Justice), is the center of the Court’s so-called right wing, while the balance of intellectual power on the so-called left wing of the Court shifting seemingly to Justice Elena Kagan, leaving the fulcrum of power on close issues still resident, as it has been for years now, with Anthony Kennedy.

Because of Kennedy’s status as the perceived critical vote, a lot of litigants on both sides of many traditional ideological divides seem to think that they have an advantage in timing right now, before the makeup of the Court changes as it inevitably but unpredictably will in the future.

The High Court is considered an “essential” part of government and therefore is open for business despite the pending shutdown of the rest of the government. So yesterday, the High Court heard oral argument in two cases — one is a complex securities case presented in three related lawsuits, and the other is an age discrimination case. Most lawyers, I expect, will see the complex securities litigation in the wake of a collapsed Ponzi scheme as the meatier of the two, but the age discrimination case looks more interesting to me. The discrimination case deals with both a subject matter closer to my own area of practice and a maneuver of using a direct Constitutional claim to sidestep an inconvenient provision of a statute.

But neither of these are where the action is going to be this year. Looking up and down the Court’s docket, here are the cases this year that you should watch closely.

In McCutcheon v. Federal Election Commission, the Court will consider Congress’ power to regulate (that is to say, “limit”) contributions of money to candidate finance committees. Limits on individual contributions to individual candidate’s committees have been upheld since the inscrutably complex landmark campaign finance case of Buckley v. Valeo, although in the wake of the 2010 decision in Citizens United v. Federal Election Commission we’ve reason to question the premise that limits on contributions are consistent with the prevailing interpretation of the First Amendment as applied to election law. It’s unlikely but not inconceivable that Buckley will be overturned or modified such that all Congress can do is require sunshine on campaign finance but otherwise allow essentially anyone to contribute any amount of money at any time.

This case is up for oral argument today (October 8). If you’re one of those people who is still fuming over Citizens United, maybe you’ll want to make some time to pay attention to these arguments.

Near and dear to my interests is Town of Greece v. Galloway, a case involving a municipality’s use of sectarian prayers to open meetings of its council. A case affecting how my own city does its official business will be directly affected by the decision in this case, which represents the culmination of a national effort by religious conservatives to shift the law such that official entities may refer explicitly to their preferred religion. This case more than many others I can recall sets up a class between the Free Speech and Free Exercise Clauses on the one hand, and the Establishment Clause on the other: On the one hand, people should be able to pray as they like and its no business of the government telling them what they can or cannot put in their prayers. On the other hand, having a body of government solicit a prayer that endorses a specific deity sure looks like the government is endorsing the worship of that deity.

There’s two “structural” extent-of-power cases to watch: one dealing with Presidential power, one dealing with state power, and one dealing with judicial power.

Potentially among the most politically important cases is NRLB v. Noel Canning, because this case deals with the extent of the President’s ability to make appointments to agencies while Congress is in recess. When, as now, Congress and the President are deadlocked for political reasons, many appointments to fill executive-level vacancies in the bureaucracy seem possible only if the President can bypass the threat of a filibuster in the Senate or some other kind of interference from the House. This case will examine the validity of such a recess appointment while the Senate was engaged in procedural gamesmanship of its own.

Law geeks are going to be fascinated with Executive Benefits Insurance Agency v. Arkison. Bankruptcy courts are creatures of statute, not of the Constitution, like regular federal courts. So they don’t have the same ability as regular federal courts to hear all sorts of cases; they can only hear cases “arising under” Federal law. We learned this in the case of Marshall v. Stern, the famous Anna Nicole Smith probate case. Normally, such “core proceedings” are enough for bankruptcy courts to do do their jobs. But most (if not all) states have “fraudulent transfer” laws that can void transfers of money to shelter it from judgment creditors. So if I have $100,000, and I set up a dummy corporation and put my $100,000 in it, and then I file for bankruptcy and say I have no assets, can the bankruptcy trustee “claw back” the $100,000 in the limited jurisdiction of a bankruptcy court? Or, does the trustee have to go to a state court or a regular Federal court to get that money? And does it matter if my corporation consented to the bankruptcy court’s hearing the case?

In the realm of civil rights legislation, an examination of the extent of permissible use of statistical data to prove up an inference of discriminatory intent, in the context of the Fair Housing Act, will be up for review in Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. That’s how a lot of anti-discrimination law gets done, so if this one goes sideways, both the governmental and civil rights bars are going to have to take a step back and re-think what kind of evidence goes in to these cases.

There will also be another examination of affirmative action in higher education — here looking at the ability of voters to abolish race-based and sex-based considerations altogether though a ballot initiative — in Schuette v. Coalition to Defend Affirmative Action, a case dealing with the ever-controversial admissions office of the University of Michigan.

At least one prominent constitutional scholar has identified McCutcheon and Schuette as the clear headline cases of the Term. Perhaps that’s because there are no direct abortion cases on the docket this year — nothing, not voting rights and not same-sex marriage, electrifies the Court quite like abortion.

The closest we come to an abortion case is Cline v. Oklahoma Center for Reproductive Justice, a case involving a state law requiring doctors to strictly adhere to FDA guidelines superceded by advances in scientific research but not yet updated in the FDA approved labels, when administering certain drugs that can be used in aborting pregnancies. (I hesitate to call these drugs “abortifacents,” because I lack the medical knowledge to apply such a label. But I suspect it is appropriate.) For instance, can the state limit the ability of a doctor to prescribe a certain drug only to terminate ectopic pregnancies based upon the FDA approved label referring only to that situation?

There is also a case involving “buffer zones” for protestors around abortion clinics, so that’s always ripe for some interesting First Amendment issues in the world of fine-tuning time, place, and manner legislation. I predict, though, that McCullen v. Coakley will be interesting only as an examplar of whether particular time, place, and manner restrictions are appropriate under the First Amendment or not.

There’s two criminal procedure cases that some court watchers have flagged to keep an eye on. In Kansas v. Cheever, the defense proffered an expert psychologist to testify that the defendant could not have formed the requisite mental state necessary to be found guilty of the crime, and the state rebutted with its own expert evidence based in part upon statements made to a court-appointed mental examiner during an early mental evaluation. Does use of those statements by the prosecution to rebut the defense expert violate the Fifth Amendment’s prohibition against self-incrimination, or does the defense’s introduction of the expert testimony waive the right against self-incrimination?

Potentially more broad in effect than Cheever is Fernandez v California. Can your roommate give consent for the police to conduct a warrantless search of your home? I wonder if the roommate can give consent to search a shared area of the home like the living room, but not an informally “reserved” area like the defendant’s bedroom. Which might seem both fair and realistic for a roommate situation, but that’s a much more complex inquiry for a court to get into, and as a matter of law, all roommates have equal rights to the whole of the rented premises. I see a tangential effect of this ruling on electronic surveillance — if your cell phone company consents to a search of data that it co-owns with you, is that an effective consent or an unreasonable search?

On my own, I’m interested in Navarette v. California. Police get an anonymous tip that a vehicle is being driven by someone who is inebriated. Is that enough to pull over the vehicle, or is corroborating evidence (likely the officer personally witnessing erratic or dangerous maneuvers) needed to justify the stop?

Not currently on the docket, but reasonable candidates to become mid-term additions, are any of a number of challenges to various facets of the Affordable Care Act (most likely, in my opinion, Free Exercise-based challenges to the contraceptive mandate) and the New Mexico case of Elane Photography v. Willock.

Also of interest on today of all days is a decidedly odd interview given by Justice Scalia to New York Magazine. I call it “odd” because it is a remarkable departure from the ideal of judicial reticence to publicity and scrutiny, and in its own way is deeply personal to a polarizing figure. But it’s fairly clear that Justice Scalia is going to do what he wants and insist that there’s nothing wrong with what he does. IMO, he skirts but does not cross the grounds of judicial propriety. A few passages are remarkably insightful, in particular this relating to the seeming gravitational attraction between conservative legal thought and emphasis on the power of the executive branch:

Q: You came to Washington as a lawyer during the Nixon administration, just before Watergate. What on Earth was that like?

A: It was a sad time. It was very depressing. Every day, the Washington Post would come out with something new—it trickled out bit by bit. Originally, you thought, It couldn’t be, but it obviously was. As a young man, you’re dazzled by the power of the White House and all that. But power tends to corrupt.

Q: Then you served in the Ford administration. That must have been an awfully lonely time to be a young conservative.

A: It was a terrible time, not for the Republican Party, but for the presidency. It was such a wounded and enfeebled presidency, and Congress was just eating us alive. I mean, we had a president who had never been elected to anything except … what? A district in Michigan? Everything was in chaos. It was a time when people were talking about “the imperial presidency.” I knew very well that the 900-pound gorilla in Washington is not the presidency. It’s Congress. If Congress can get its act together, it can roll over the president. That’s what the framers thought. They said you have to enlist your jealousy against the legislature in a ­democracy—that will be the source of tyranny.

I hadn’t particularly thought about the attraction conservatives hold for executive power in terms of a reaction to anti-Watergate Congressional activism. I’d always thought conservatives of that era were reacting to the Warren Court’s restrictions on criminal procedure during a time of high public apprehension about crime. It’s worth pondering how much of the reaction to Congress trying to prevent another Watergate was considered and principled from a Constitutional perspective, and how much of it was reflexive and motivated by a need to backstop a loss of partisan efficacy. Remarkable either way that this banner is still being carried out into the field forty years later, and that it still shows through, with eyebrow-raising candor, in Justice Scalia’s remarks.

I commend the entire interview to you, Readers of all political stripes. Love him, hate him, or simply find him a critical and fascinating figure, Antonin Scalia is one of the Court’s centers of gravity, and an insight into Justice Kagan’s hunting buddy’s decision-making process will be illuminating.

His decision-making process, as that of his eight Brother and Sister Justices, will be hot topics as we move through this year’s term.
 
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.