Supreme Court Watch The term of the century? Blockbuster cases await the U.S. Supreme Court this term

By Kimberly Atkins

The Daily Record Newswire

BOSTON -- This U.S. Supreme Court term has all the makings of a blockbuster, with issues such as the constitutionality of the federal health care reform law, the ability of states to pass tough immigration enforcement laws and same-sex marriage rights all set to fall squarely at the Court's doorstep.

And those are just the cases that have not officially been added to the Court's docket -- yet.

"Some people are calling it the term of the century," said former Acting Solicitor General Neal Katyal, who is now a partner in the Washington office of Hogan Lovells, at a recent Supreme Court discussion.

With major Fourth Amendment, criminal, employment and arbitration cases already on the docket, this could be the most important term in recent memory.

Biggest cases yet to be granted

When the justices return from summer hiatus, the list of petitions they will take up includes what would arguably be the most important and controversial case of the year: the challenge to the constitutionality of the federal health care law.

"If the Supreme Court reviews the constitutionality of the health care act this term, no other case is likely to have as great a potential economic impact, or address issues as fundamental to the nature of our constitutional system of government," said Donald M. Falk, a partner in the Palo Alto office of Mayer Brown.

Several states and organizations have challenged Congress' authority to enact the provision requiring individuals to purchase health care coverage. In a petition for a writ of certiorari, the Thomas More Law Center, a national public interest law firm, urged the Court to reverse the 6th Circuit ruling in Thomas More Law Center v. Obama, which held that the individual mandate was within Congress' power under the Commerce Clause. The group asked the justices to strike the law down to "establish a meaningful limitation on congressional power under the Commerce Clause."

The 6th Circuit was the first appellate court to rule on the issue, and lower courts have split on whether the law is constitutional -- with some ruling not only that the individual mandate is unconstitutional, but that the provision cannot be severed from the rest of the law. With both issues in play, the Supreme Court could decide whether the health care law is constitutional in its entirety.

Even the decision of whether to grant certiorari this term rather than putting the matter off until October 2012 will have far-reaching implications.

"This case is almost certainly going to be playing out in the context of a hotly contested presidential election," said Amy Howe, a partner in the Washington office of Goldstein & Russell. While the Supreme Court is not usually considered part of the otherwise politically charged climate of Washington, even when it rules in high-profile cases such as Bush v. Gore, Howe said this time could be different.

"As a challenge to one of the incumbent president's signature programs, this has the potential to put a spotlight on the Court, and make the Court an issue, during the campaign in a way that it hasn't been in recent memory," Howe observed.

But if the Court decides to take the approach of the 4th Circuit, which ruled that the mandate is a tax and cannot be challenged prospectively under federal law, the case may not make it to the Court for years, as the mandate does not go into effect until 2014.

Other big cases that have yet to be accepted, but which certainly promise to have a huge impact on the term if certiorari is granted, include: a challenge to the Arizona law that authorizes police to assess individuals' immigration status (U.S. v. Arizona); a challenge to the California voter-approved ban on same-sex marriage (Perry v. Brown); and challenges to the consideration of race in college admission programs in Texas (Fisher v. State of Texas) and Michigan (BAMN v. Regents of the University of Michigan).

Fourth Amendment, employment, arbitration cases already accepted

There are many high-impact cases already on the Court's docket dealing with issues involving criminal law, employment and arbitration.

In U.S. v. Jones, the Court will decide whether police may install a GPS device into a vehicle to monitor its movements without a warrant and without violating the Fourth Amendment

The Jones decision could have an impact far beyond criminal and constitutional law. The case also gives the Court a chance to address privacy concerns related to the use of technological data to track individuals' whereabouts. As an ACLU staff attorney recently noted on the organization's blog: "The Court's decision in Jones could have a significant impact on everyone's privacy because most of us are carrying a tracking device everyday: our cell phone."

In another major Fourth Amendment case, the Court will decide in Florence v. Board of Chosen Freeholders of the County of Burlington whether it is constitutional for jails to strip search arrestees upon their admission to the general population, regardless of the severity of their alleged offenses.

After twice confronting the Confrontation Clause's limitations on evidence in recent terms, in Melendez Diaz v. Massachusetts and Bullcoming v. New Mexico, the justices will take up the issue again in Williams v. Illinois, which considers whether an expert witness in a rape case is permitted to render an opinion based on the results of DNA analysis performed by a private laboratory.

Other criminal cases include Howes v. Fields, which considers whether a prisoner is "in custody" for Miranda purposes any time that he is isolated from the general prison population and questioned about conduct occurring outside the prison, and Perry v. New Hampshire, which asks whether due process protections against unreliable identification evidence applies to all identifications made under suggestive circumstances, or only when the suggestive circumstances were orchestrated by the police.

In the employment and labor arena, the Court will take up a highly anticipated case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which considers whether the First Amendment's ministerial exception applies to bar employment discrimination claims brought by a teacher at a religious school who teaches a full secular curriculum in addition to performing religious duties.

The Court will also decide if state employment can be conditioned upon payment of a union "political action" fee without first providing notice and the opportunity to object in Knox v. Service Employees International Union, Local 1000.

And the Court will consider whether claims by a pilot of mental and emotional anguish are sufficient to establish "actual damages" in a suit against the government for disclosing information about his HIV status under the Privacy Act in FAA v. Cooper.

On the arbitration front, the Court will take up Stok & Associates v. Citibank, which asks when a party has irrevocably waived its right to arbitrate by "participating" in litigation, as well as CompuCredit Corp. v. Greenwood, which considers whether claims arising under the Credit Repair Organizations Act are subject to arbitration.

Published: Fri, Sep 16, 2011