Federal Courts and Nominations

Supreme Court May Enter 2012 Election With Politicized Docket


By Greg Stohr – Oct 3, 2011 12:01 AM ET

The U.S. Supreme Court may be thrust into the 2012 election campaign with potential cases on President Barack Obama’s health-care law, illegal immigration and affirmative action in the term that starts today.

The nine-month session already includes fights over police use of tracking devices and nudity on broadcast television, and review of the health-care law is likely after the Obama administration asked last week for a hearing.

The court may increase the stakes by taking up appeals that aim to limit the use of race by university admissions offices and bolster the power of states to crack down on illegal immigration.

“This term could turn out to be one of the most momentous Supreme Court terms in decades,” said Elizabeth Wydra, chief counsel of the Washington-based Constitutional Accountability Center, which advocates for civil rights and broad federal power.

The court would probably decide the health-care, admissions and immigration cases at the close of its term in late June, less than five months before the November election.

Health care alone would create the rare if not unprecedented scenario of an election-year Supreme Court ruling on a president’s signature legislative accomplishment. Lower courts are divided on the constitutionality of the measure and its requirement that Americans either acquire insurance or pay a penalty. Both the Obama administration and a group of 26 states opposing the law filed Supreme Court appeals last week.

Campaign Issue

A ruling striking down the health-care law would set up the court as a campaign issue for Obama, said Lucas A. Powe Jr., a Supreme Court historian who teaches at the University of Texas School of Law in Austin. The president already has targeted the Supreme Court once, using his 2010 State of the Union address to criticize the court’s decision letting corporations spend unlimited sums on political advertising.

“If they strike down the law, Obama is going to be on the warpath,” Powe said. The court hasn’t been a major campaign issue since 1968, when Richard Nixon attacked criminal law rulings issued by the court under Chief Justice Earl Warren.

A ruling on the health-care law would provide fodder for Republican candidates, who are campaigning against the measure. If a ruling favors Obama, his opponents would highlight the prospect of vacancies on the high court, saying a Republican should be in office to fill it, said Stephen Wayne, a professor of government at Georgetown University in Washington.

“They’ll say that’s why we need to make sure the court reflects American public opinion,” Wayne said.

Race and Ethnicity

The immigration and university admissions cases would inject race and ethnicity into the political mix. The immigration case stems from Arizona’s first-of-its-kind law requiring local police officers to check the status of people stopped for questioning. Five other states have since enacted similar laws.

The Obama administration sued to challenge the Arizona measure, and a federal appeals court blocked it from taking effect. The panel said the state was interfering with the national government’s authority over immigration policy.

Arizona is now seeking Supreme Court review, arguing that federal officials have been lax in securing the nation’s borders and that U.S. immigration law lets states step into the void.

“The burden’s on the federal government to explain why it is that immigration is sufficiently different from every other area of the law that a state can’t effectively try to enforce the federal substantive law,” said Paul Clement, a Washington lawyer and former U.S. solicitor general who represents Arizona in the case.

Affirmative Action

The affirmative action appeal asks the Supreme Court to reconsider, or at least limit, its 2003 ruling upholding the use of race as a factor in university admissions decisions for purposes of classroom diversity.

The appeal is being pressed by Abigail Fisher, a rejected white applicant to the University of Texas at Austin. The university uses a hybrid system that combines racial preferences with a rule that guarantees admission to Texans who graduate in the top 10 percent of their high school class.

The composition of the Supreme Court has changed since 2003, most notably through the retirement of the earlier ruling’s author, Sandra Day O’Connor, and the appointment of Samuel Alito to succeed her. Alito was in the majority in a 2007 decision that put new limits on public school integration efforts.

‘Anxiety and Nervousness’

Among affirmative action backers, “there is a certain amount of anxiety and nervousness about the UT case,” said Sherrilyn Ifill, a professor at the University of Maryland School of Law inCollege Park.

The broadcasting case, likely to be argued in January, is perhaps the most significant of the court’s business cases. The court will decide whether federal regulators are violating the Constitution by imposing fines for on-air profanities and nudity. The case involves expletives uttered on two Fox network award shows and a scene with a naked woman on ABC’s “NYPD Blue.”

News Corp. (NWS)’s Fox and Walt Disney Co. (DIS)’s ABC are asking the court to overturn decades-old rulings that give the Federal Communications Commission more authority to regulate programming on broadcast stations than on cable or satellite.

The networks have reason for optimism, said John Elwood, a Washington appellate lawyer at Vinson & Elkins LLP. In an earlier phase of the litigation, several justices pointed to First Amendment concerns about the FCC crackdown. And in its most recent term, the justices ruled in favor of speech rights in four cases.

‘Uphill Battle’

Government lawyers “have something of an uphill battle” in defending the policy, said Elwood, a former law clerk to Justice Anthony Kennedy.

In another case, the question is whether police need a warrant before they can place a tracking device on a car to monitor a criminal suspect’s movements over the course of weeks.

The case will mark the first time the high court has considered how the constitutional ban on unreasonable searches applies to global positioning systems, better known as GPS devices. The case is set for argument Nov. 8.

Other cases already on the docket involve the deadlines for filing some securities-fraud suits, patent protection for diagnostic medical tests and strip-searches of newly arrested people.

“Not a lot of the cases are all that sexy at the moment, but there’s some pretty significant stuff on the horizon,” Elwood said.

More from Federal Courts and Nominations

Federal Courts and Nominations
January 17, 2024

The Leadership Conference on Civil and Human Rights Sign-On Letter Prioritizing Diverse Judges

Dear Senator, On behalf of The Leadership Conference on Civil and Human Rights and the...
Federal Courts and Nominations
July 31, 2023

Liberal justices earn praise for ‘independence’ on Supreme Court, but Thomas truly stands alone, expert says

Fox News
Some democrats compare Justice Clarence Thomas to ‘Uncle Tom’ and house slave in ‘Django Unchained’
By: Elizabeth B. Wydra, By Brianna Herlihy
Federal Courts and Nominations
July 7, 2023

In Her First Term, Justice Ketanji Brown Jackson ‘Came to Play’

The New York Times
From her first week on the Supreme Court bench in October to the final day...
By: Elizabeth B. Wydra, by Adam Liptak
Federal Courts and Nominations
July 8, 2023

The Supreme Court’s continuing march to the right

Major legal rulings that dismantled the use of race in college admissions, undermined protections for...
By: Elizabeth B. Wydra, by Tierney Sneed
Federal Courts and Nominations
June 25, 2023

Federal judge defends Clarence Thomas in new book, rejects ‘pot shots’ at Supreme Court

A federal appeals court judge previously on short lists for the Supreme Court is taking the rare...
By: Elizabeth B. Wydra
Federal Courts and Nominations
May 1, 2023

Supreme Court, done with arguments, turns to decisions

Roll Call
The justices have released opinions at a slow rate this term, and many of the...
By: Brianne J. Gorod, By Michael Macagnone