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Supremely Consequential
The High Court begins a term that could be its most significant in decades.


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Jonathan H. Adler

Today marks the opening of what could be a blockbuster Supreme Court term. When the Court adjourned in June, it had already agreed to hear a number of important cases implicating everything from “fleeting expletives” on television and the application of civil-rights laws to religious employers to GPS surveillance of criminal suspects and the ability of Congress to direct executive action in foreign affairs. Additional high-profile cases, such as those concerning same-sex marriage and Arizona’s notorious immigration law, were already waiting in the wings. Then, in August, a divided panel of the U.S. Court of Appeals for the Eleventh Circuit invalidated the individual mandate. This decision virtually ensured that a challenge to the recently enacted health-care-reform law would reach the High Court, but when? It appears the time is now. Last week, the Obama administration declined to seek additional review before the Eleventh Circuit, filing a petition for certiorari with the Supreme Court instead. The stage is set for what could be the term of the decade — if not also for many more decades to come.

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Because the petition for certiorari was just filed, the Court will not officially decide whether to hear the individual-mandate case for several months yet. Assuming certiorari is granted, as everyone now expects, the case will be heard next spring, and a decision will be unlikely before late June or July. In the meantime, the Court faces a healthy diet of meaty cases, including several implicating the First Amendment and other constitutional guarantees.

The Roberts Court has already distinguished itself as a highly speech-protective court by striking down a wide swath of government restraints on expression. Last term the Court extended First Amendment protection to offensive protests at military funerals, violent video games, and pharmaceutical-company marketing practices. It also reinforced the constitutional protection of campaign expenditures and political expression from government regulation, as it had in Citizens United. This is a Court that rarely considers speech or expression to be unworthy of judicial protection.

If this speech-protective trend continues, the Court will be likely to reject the Federal Communications Commission’s effort to regulate “fleeting expletives” — such as those sputtered by celebrities on live awards shows — in FCC v. Fox Television. Even if the Court finds that regulation of “indecency” over the airwaves is acceptable in principle, as it has in the past, it is likely to conclude that the FCC’s policy is unconstitutionally vague and, as a consequence, unnecessarily chills otherwise protected expression. In another First Amendment case, Knox v. SEIU (yes, that SEIU), the Court will consider what sort of notice non-union government employees must receive before they are forced to pay union dues that could subsidize political activity. Again it is likely those claiming First Amendment protection will prevail.

One of the criminal-law cases before the Court this term concerns whether use of a GPS tracking device on a criminal suspect’s vehicle constitutes a “search” under the Fourth Amendment. In United States v. Jones, police attached a GPS receiver to a car owned by Antoine Jones, a nightclub owner suspected of dealing drugs. The problem is that the police did not have a valid warrant. The police nonetheless monitored the vehicle’s movements for several weeks before eventually arresting Jones on several drug charges. After trial, Jones successfully challenged his conviction, arguing that use of the GPS device without a warrant was an unreasonable search and violated his Fourth Amendment rights. Although the Supreme Court has long held that people do not have a reasonable expectation of privacy in their travels on public roads, some question remains as to whether this principle allows the police to engage in continuous surveillance of a vehicle’s movements for an extended period of time. This case presents an important test of how traditional Fourth Amendment principles apply to the state’s use of modern technology.

Zivotsky v. Clinton is a potentially significant separation-of-powers case in which the justices will have to decide whether federal courts can even hear the question at hand. It has long been official U.S. policy not to recognize Jerusalem as the capital of Israel. As a consequence the U.S. embassy is in Tel Aviv and passports for American citizens born in Jerusalem do not list Israel as their country of birth. Congress disagreed with this policy and, in 2002, enacted legislation directing the State Department to identify Americans born in Jerusalem as having been born in Israel if they so desire. President Bush signed the law, but the State Department still objects, and has declined to enforce the law as an unconstitutional intrusion on the executive branch’s control over foreign affairs. Litigation ensued, but lower courts refused to resolve the dispute on the grounds that it raises a “political question” not amenable to resolution in federal court. If the justices agree, it will be a useful reminder that there are some issues, particularly those implicating foreign affairs, the judiciary just should not touch.

Federalism issues also return to the Court as the justices will consider whether federal law preempts state regulation of certain slaughterhouse practices and whether sovereign immunity protects states from private suits under portions of the Family and Medical Leave Act. As if that were not enough, the Court will also consider the scope of the “ministerial exception,” which generally protects religious organizations from employment-discrimination suits, as well as whether Congress may implement a treaty removing works from the public domain, and whether private landowners have a right to challenge an EPA determination that their property contains wetlands before applying for a permit or risking prosecution. 

This year’s docket is just over half full, and there’s already enough on it to keep Court-watchers busy — and then there’s Obamacare. Yet the constitutionality of the individual mandate is not the only hot-button issue the Court may add to this year’s roster. Pending petitions for certiorari ask the Court to reconsider the constitutionality of race-based affirmative action in college admissions and to begin defining the scope of the individual right to bear arms protected by the Second Amendment. Additional petitions seek Court rulings on the constitutionality of applying state sales taxes to product purchases made on the Internet from out-of-state vendors and the liability of corporations for allegedly tortious actions overseas. There’s also some chance the Court will consider whether federal law preempts Arizona’s infamous immigration law and whether the Defense of Marriage Act is constitutional. Any one of these cases would add substantially more fuel to an already explosive docket, but this term the Court might hear them all — and in an election year no less.

President Obama and President Bush were each able to name two justices to the current Court. This term, more than any other thus far, should tell us what these nominations have wrought. Are Chief Justice Roberts and Justice Alito as committed to constraining the scope of federal power and protecting state prerogatives as were Chief Justice Rehnquist and Justice O’Connor? Are Justices Sotomayor and Kagan as reliably liberal as Justices Souter and Stevens had become before they retired? Can the current chief justice build consensus when big questions are at stake? Or will the current Court break predictably on issue after issue along ideological lines? This term will provide some answers, while also resolving the most pressing question of federal power considered in the past ten years. In short, the October 2011 term is not one to miss.

— Jonathan H. Adler, a contributing editor of National Review Online, is the Johan Verheij Professor of Law at the Case Western Reserve University School of Law, and the director of its Center for Business Law and Regulation.



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