A Constitutional-Law Nerd's Take on Upcoming Supreme Court Cases

While we wait for the main course -- the Affordable Care Act case -- the Court offers some intriguing appetizers

While we wait for the main course -- the Affordable Care Act case -- the Court offers some intriguing appetizers

lady justice-body.jpg

The clerk will not cry "Oyez!" until Monday, but the Supreme Court's October term has begun -- with less than a whimper -- with the Troy Davis case. It will probably end with a bang, as the Court decides the constitutionality of the Affordable Care Act.

These bookends offer instruction in how the world's most powerful court sees its role. I'm sure most of the justices are mystified by the criticism -- most cogently written by Dahlia Lithwick and Lisa T. McElroy -- of its still unexplained three-and-a-half-hour radio silence on the evening of Troy Davis's execution. In the Court's hermetically sealed world, the actual people affected by its decisions aren't just unimportant, they are basically nonexistent. Less than four hours is practically neutrino speed in Court terms.

I wouldn't be surprised if the health care challenge looks different to the justices than to outsiders as well. Media figures and barroom authorities alike view it through the lens of the 2012 election. Rejection of the "individual mandate," they reason, would be a sharp, and perhaps fatal, blow to the shaky prospects of a second Obama term. Since five of the nine clearly despise Obama, the assumption runs, these five will rush to deliver the coup de grace.

But to justices, presidents come and go; the Court remains, and so does the law it makes.  The smartest justices -- such as Chief Justice Roberts -- often think two or three cases ahead, to what direction they want the law to take over decades. It may be less clear to them that stomping Obama on this issue is the wiser course.

By filing a petition for review of the Eleventh Circuit's decision striking down the "individual mandate," the administration has made it all but certain that the Court will grant review of that decision during this term, setting up a decision for the spring.

But between now and the Affordable Care Act case, court watchers must keep themselves amused. Much of the Court's docket as announced thus far consists of workmanlike statutory cases concerned with topics like insider trading and consumer arbitration; cases that have huge practical impact but are devoid of drama. There are some important criminal-procedure cases as well. Better court-watchers than I will offer comprehensive term previews over the weekend. I offer here a con-law nerd's highly quirky list of a few cases that I will be watching over the next few months, sorted by oral argument date.

    October 5:  Hosanna-Tabor Church v. Equal Employment Opportunity Commission tests how far a church's designation of an employee as a "minister" can protect it from statutes barring discrimination. There is already a doctrine called the "ministerial exception," which asserts that the government can't require a Catholic Church to hire a female priest, even though the all-male priesthood is clearly discriminatory, for example. But can the church throw the "exception" over a wide swath of its employees? Cheryl Perich was a teacher at a Lutheran school in Michigan. She accepted the status of "commissioned minister." This brought increased pay and job security; but Perich was actually a teacher, whose duties focused on teaching ordinary secular subjects, as well as four 30-minute Bible classes per week. When Perich was diagnosed with narcolepsy, the school moved to terminate her despite statutory protections for the disabled. The EEOC sued on her behalf; the school invoked the ministerial exception. The Sixth Circuit ruled against the Church, and now the Court must decide how far the exception runs. Religious-freedom claims and anti-discrimination laws often collide; how wide should this exception be?

    Same day: Golan v. Holder asks whether Congress can, in effect, seize intellectual property from the public domain and give it to its foreign owners. The collision here is between the Copyright Clause of the Constitution and the First Amendment.

    Copyright in the United States is a fixed term of years (it currently expires 70 years after the death of the author; it used to be only 56 years from registration). Scores of works enter the "public domain" after that term ends. But U.S. law was less protective than that of other countries; in 1994, Congress passed legislation to address this disparity. The 1994 statute restored copyright protection to many works by foreign authors that had already entered the public domain. The plaintiffs are persons who had created "derivative works" based on these foreign works -- recordings of public domain musical scores, for example -- and who must now begin paying royalties to the restored copyright owners. This, they claim, violates their First Amendment rights and exceeds the copyright power. In 2003, the Supreme Court decided that Congress could extend the copyright term of works currently under copyright. But snatching works back from the public domain, after other creators have relied on their availability, is another question entirely.

    October 11: Florence v. Board of Chosen Freeholders tests whether jails can require any person they detain to undergo a strip search upon entry, even though there is no particular reason to suspect the new inmate of smuggling contraband. Albert Florence was in the passenger seat when his wife was pulled for speeding. (The couple's four-year-old son was also in thecar.)  Because the car was a BMW, because Florence is black, and because he was driving in New Jersey, Florence figured being stopped frequently into his travel plans. He carried with him  documents that showed he had paid an earlier fine that had mistakenly led to the issuance of a warrant, later canceled. The officer refused to accept the documents. He arrested Florence on the canceled warrant (though failure to pay a fine is not a crime in New Jersey); the system held Florence for eight days and subjected him to a strip search on entry (though jail policy forbids such strip searches for those accused of minor offenses); when he was transferred to another jail, a second strip search followed.  Since the Court has earlier held that any offense, even one that carries no jail time -- in that case, failure to wear a seat belt -- can be used to arrest and detain an individual, the extension of automatic searches to every jailed person would create a broad exception to a very basic form of physical privacy.

    November 7:  Zivotofsky v. Clinton asks whether the president's so called "foreign affairs power" -- based on his textual duty to "receive ambassadors and other public ministers" --ousts Congress from directing foreign policy. When an American citizen is born in Jerusalem, the State Department issues a passport with "place of birth" listed as "Jerusalem." In 2002, Congress passed a statute directing the State Department to permit parents to choose either "Jerusalem" or "Israel."*  The State Department has consistently refused to do so, citing U.S. policy and the president's foreign affairs power. The family of a child born in 2002 now is suing to require Secretary of State Clinton to amend the passport to include "Israel."  Both the Bush and Obama Administrations have maintained, first, that Congress can't order the president to conduct foreign policy according to its rules, and, second, that in any case, that this kind of inter-branch dispute is what is called a "political question," meaning that the courts stand by while Congress and the president duke it out.  This case is a con-law prof's dream: important issues with almost no real-world consequences. I am so excited about it that I remind myself of Walt Kelly's Albert the Alligator, who once said, "I likes pure potato salad without no potatoes in her."

    November 8: United States v. Jones brings to mind Enemy of the State, but may be resolved on issues dating from the Middle Ages. District of Columbia police and FBI agents targeted nightclub owner Antwon Jones on suspicion of cocaine dealing. They followed him around (perfectly legal) and tapped his telephone (legally). A judge also gave them a warrant to attach a GPS transmitter to Jones' car; but the warrant was valid for only ten days, and for some reason they didn't get around to placing it until the 11th day.  The GPS was in place for four weeks; the data helped convict Jones. The Court of Appeals reversed his conviction, holding that the warrantless use of a GPS for such a long period was an "unreasonable search."  The government argues that a GPS tracker is not a search at all -- in effect, that the government could put GPS devices in all our cars and follow whoever it wants without any constitutional limitations. The surveillance-state implications are chilling; combining this case with Florence produces a world in which government can slap a GPS on any citizen and track him or her indefinitely; arrest him or her for not wearing a seat belt; and then strip search him or her. But observers at the preview conference theorized that the Court may actually focus narrowly on the physical act of putting a device on the car, and hold that that required a warrant.

I've omitted many cases that are more important to business owners, consumers, and criminal defendants than these; as the term progresses I will take at some of them.  But no matter what case the Court is considering, it will, of course, be only an appetizer to the main course, which will come late in the term.

* This post originally stated that in 2002, Congress passed a statute directing the State Department to add "Israel" after "Jerusalem." An alert reader points out that the statute actually directs the State Department to give the parents a choice of (1) "Jerusalem" or (2) "Israel." "Jerusalem, Israel" is not a statutory choice. We regret the error.