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Taking lessons from the high court’s term

The Supreme Court term that ends within the next few weeks could go down as among the justices’ boldest sessions ever.

The court, which has historically shied away from controversial issues in election years, took them on full bore in 2012, agreeing to decide whether President Barack Obama’s national health care law passes constitutional muster and if Arizona encroached on federal authority in its effort to combat illegal immigration.

“Traditionally, the Supreme Court has shown a great deal of restraint in taking highly divisive cases in an election year,” said Jonathan Turley, a George Washington University law professor who will be among several panel members discussing the court’s 2011-2012 term Thursday at the Maryland State Bar Association’s Annual Meeting in Ocean City.

“The justices are loath to be seen as playing a role in the political campaigns or influencing the presidential election.” Turley added.

The court’s reticence seemed to increase after its Bush v. Gore decision in 2000 stopped a vote recount in Florida, effectively sealing the presidential election for Republican George W. Bush against Democrat Al Gore, Turley said.

The high court’s image suffered then as critics of the 5-to-4 decision said it was driven more by politics than sound legal reasoning. The justices have been sensitive to this criticism and have engaged in an “unwritten rule of avoidance” with regard to election-year controversy, Turley said.

But such restraint was not evident this year, though Obama is in a tight re-election campaign against Mitt Romney in which the president’s health care plan and immigration reform will be major issues, Turley added.

“The court did not appear to be timid in its selection of cases,” the professor said.

Much of the two-hour session at the MSBA convention will be on the health care and immigration cases, which the high court is expected to decide before it adjourns.

In the health care case, Republican attorneys general argued that the federal Patient Protection and Affordable Care Act’s requirement that individuals buy health care insurance or pay a penalty exceeds the U.S. government’s authority under the Constitution’s Commerce Clause. The case is Department of Health & Human Services v. Florida, No. 11-398.

In the immigration case, the Obama administration opposes Arizona’s requirement that police check the legal status of people they stop for other reasons. The administration argued in Arizona v. United States, No. 11-182, that the federal government has the exclusive authority to enact and enforce immigration laws.

The MSBA session will also address what Turley referred to as among the most significant First Amendment cases in many years. United States v. Alvarez, No. 11-210, which awaits the court’s decision, addresses the constitutionality of the federal Stolen Valor Act, which makes it a crime for anyone to falsely claim they have been awarded a U.S. military decoration or medal.

The law differs significantly from other federal fraud statutes, which criminalize lies that are told to secure financial gain. The Stolen Valor Act makes the lie itself the crime, Turley said.

The act presents “one of the gravest threats to free speech,” he said. “Once you give the government the right to criminalize a lie, you give them the right to determine what is true and what is not.”

Turley is scheduled to be joined on the panel by attorney Patricia Ann Millett, a former assistant U.S. solicitor general and head of Akin Gump Strauss Hauer & Feld LLP’s Supreme Court practice in Washington; and Jess Bravin, the Wall Street Journal’s Supreme Court correspondent. Andrew H. Baida, a former solicitor general of Maryland who is now a partner with Rosenberg | Martin | Greenberg LLP in Baltimore, co-chaired the program with Court of Special Appeals Judge Robert A. Zarnoch and is scheduled to moderate the panel.

“By any measure, this will be a historic term,” Turley said. “We could literally spend weeks talking about these cases.”