Full Docket as Supreme Court Term Begins


ACRU Staff


September 30, 2011

This column by ACRU Senior Legal Analyst Ken Klukowski was published September 29, 2011 on The Washington Examiner website.

Monday, Oct. 3, marks the start of the annual term for the Supreme Court of the United States. Most of the court’s docket was set as of this week’s preterm conference, painting a picture of what to expect this year.

On their first day, the justices will hear a case on whether private parties have standing to sue states over Medicaid funding, or whether only the federal government can do so. This could prove decisive in many lawsuits, such as Planned Parenthood’s fight to keep subsidies in Indiana and other states that have shut them out of Medicaid.

On Oct. 5, the court will hear a case over whether Christian schools are exempt from the Equal Employment Opportunity Commission’s nondiscrimination authority. A church school will argue that it may hire teachers based on their beliefs because they fall under the “ministerial exception” to employment law — used for pastors and priests.

That same day, SCOTUS will also hear arguments on whether information in the public domain can be reclassified as copyrighted.

Nov. 7 will see arguments from a Jewish family who had a child in Jerusalem. They want his passport to read, “Jerusalem, Israel.” Federal law says parents can demand this, but President Obama objects on the grounds that Congress has no authority to dictate his foreign policy.

The following day, the court will hear arguments on whether it violates the Fourth Amendment if police hide a GPS device on someone’s car without a search warrant, marking the newest technology controversy involving police powers.

November and January will also usher in several cases on pitting federal power versus state sovereignty, over such issues as the federal Family and Medical Leave Act.

Early next year, the court will also consider the ability of private citizens to seek judicial review of Environmental Protection Agency actions that block their ability to use their own land.

SCOTUS will also consider a free-speech case, asking whether Federal Communications Commission regulations barring expletives and nudity on television violate the First Amendment.

Perhaps even more important are the issues not on the court’s calendar — at least not yet. There are no Second Amendment cases, although several parties in such cases petitioned for review. The justices are seeking additional information and could take one later. Gun rights advocates should proceed cautiously, because it’s unclear at this point how much further the current membership of the court is willing to expand gun rights.

One of the most important of the not-yet-granted Sept. 26 cases is Davenport v. American Atheists. The 10th Circuit has decreed that all crosses on public land — including all roadside crosses marking a death on a highway — are unconstitutional establishments of religion. One of the best SCOTUS lawyers in America, former Texas Solicitor General (and current U.S. Senate candidate) Ted Cruz, has taken this case, asking the justices to reverse this breathtaking decision to eradicate all crosses in public places.

Another petition not yet decided is immigration, as Arizona is seeking Supreme Court review of its high-profile immigration law. The law was struck down last year by the Ninth Circuit, and the Supreme Court will decide in about a month whether to take that case.

Finally, there is Obamacare. Several cases related to the new health care law are seeking Supreme Court review. The National Federation of Independent Business petitioned SCOTUS on Tuesday in the national Florida case, which is the one justices will likely hear. At this point, it seems likely that the court will hear the case next spring rather than waiting until fall of 2012.

The court’s term already presents a number of important national cases, with even bigger ones in the wings. So count on the Supreme Court to deliver plenty of big news stories this year.



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