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Another big Supreme Court year on tap

Kimberly Atkins//October 1, 2013

Another big Supreme Court year on tap

By Kimberly Atkins

//October 1, 2013

WASHINGTON — After two U.S. Supreme Court terms full of high-profile cases involving closely-watched issues ranging from the constitutionality of the Affordable Care Act to the fate of same-sex marriage laws, no one is calling the upcoming term a blockbuster.

But perhaps they should be.

When the justices reconvene for the October 2013 term, they will face a docket already packed with major issues, including abortion, public prayer, affirmative action, Fourth Amendment rights, housing discrimination and immigration. Other significant cases, including another challenge to the federal health care law, are waiting in the wings. And with dozens of cases yet to be added to the calendar — the docket is only about half full — the court is just getting started.

Free speech, prayer and reproductive rights

The First Amendment makes a major comeback to the high court this term, with cases that include an Establishment Clause challenge to a town meeting prayer policy in a Rochester, N.Y. suburb.

When the justices take up the invitational prayer policy in Town of Greece v. Galloway, they will have to draw the line between honoring history and tradition and adhering to the language of the Constitution.

The court has traditionally not been receptive to Establishment Clause challenges to prayers before legislative meetings, a practice that dates back to the time of the Constitution’s drafting. But the challengers in this case argue that unlike prayers before Congress or state legislature sessions, town meeting prayers place pressure on those with business before local governmental bodies to participate or face negative consequences.

Kannon K. Shanmugam, a Supreme Court litigator in the Washington office of Williams & Connolly LLP, predicted that argument will be a tough sell.

“History is very likely to win out here,” Shanmugam said at a recent Supreme Court preview discussion at Georgetown University Law Center in Washington.

The justices could add another religion-based challenge to the docket with one of the certiorari petitions that have been filed arguing that the federal requirement that contraception be covered by employee health care plans violates the religious rights of private-sector employers under the Religious Freedom Restoration Act and/or the First Amendment.

Another First Amendment case, McCullen v. Coakley, is one of two cases that bring the issue of abortion back before the justices. This case involves Massachusetts’ “buffer zone” law, designed to keep anti-abortion protesters from approaching patients entering reproductive health care facilities by barring everyone except patients and employees from coming within 35 feet of the entrance, exit or driveway.

The case gives the justices the opportunity to revisit and perhaps overrule the 2000 case of Hill v. Colorado, which upheld a similar speech restriction on the grounds that it was necessary to protect patients’ safety and access to care.

Shanmugam called Hill a “vulnerable” precedent.

“I think this is the most likely precedent to be overruled” this term, he said.

In the other abortion case, Cline v. Oklahoma Coalition for Reproductive Justice, the court will take up a state law requiring the early-term abortion-inducing drug Mifeprex — formerly known as RU-486 — to be administered according to the Food and Drug Administration protocol on its label, which requires specific physician qualifications and administration processes.

The law bans any off-label use, forbidding alteration of the dosage amount, barring nurse practitioners from administering the drug and preventing its use in the latter part of the first trimester.

Challengers argue that off-label drug usage is a common and necessary practice long embraced by the medical community, and that the measure is crafted not in the interest of patient safety but rather as an effort to ban a form of abortion.

The case could lead to the most significant abortion ruling since the 1993 decision in Planned Parenthood of Southeastern Pa. v. Casey, which established the “undue burden” standard for evaluating laws restricting abortion.

“I don’t think they’ll overturn Casey,” said Pamela Harris, a professor at Georgetown University Law Center and former Supreme Court litigator at O’Melveny & Myers LLP in Washington, speaking at the Georgetown panel. “They will apply Casey — and that will raise a lot of questions unanswered by Casey. What do you do with the consensus of science” when evaluating a state abortion restriction?

If the court does rule against Massachusetts in McCullen and in Oklahoma’s favor in Cline, the effect would be to “simultaneously make it more difficult to get a [medically-induced] abortion and more difficult to get to a clinic,” said Amy Howe, editor of the website SCOTUSblog.

Balance of power

In another battle between historical use and the text of the Constitution, the court will decide whether President Barack Obama had the power to make controversial recess appointments to the National Labor Relations Board in 2012 despite efforts by some members of Congress to prevent the move by holding short pro forma sessions.

In NLRB v. Noel Canning, the D.C. U.S. Circuit Court of Appeals held that that the president did not have that power, because the language of Appointments Clause of the Constitution not only requires that recess appointments only be made during the formal recess period between two sessions of Congress — not just a brief break in congressional action during a session — but also that such appointments can only be made when the vacancy at issue occurred during that intersession recess.

Although Senate confirmation of the president’s nominees earlier this year has reduced the potential impact of the case, the broad lower court decision could lead the justices to a constitutional interpretation that could dramatically shift power between the executive and legislative branches of government.

“The linguistic argument in this case is far from airtight,” said David Strauss, a professor at the University of Chicago Law School and editor of the school’s Supreme Court Review, discussing the case at a panel event in Washington hosted by the American Constitution Society.

Despite the language of the Constitution, Strauss said, past administrations have made recess appointments outside intersession breaks.

“There is a pretty good argument that Congress has acquiesced to these appointments,” he said.

Discrimination, affirmative action and immigration

In Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., the court will decide for the first time if disparate impact claims may be brought under the Fair Housing Act.

The outcome will determine whether residents who are displaced by local redevelopment plans, like the New Jersey project at issue in this case, can bring claims alleging that the proposed redevelopment has a disproportionately negative impact on minority communities.

Disparate treatment claims under the FHA are traditionally difficult to make, since municipalities often assert that redevelopment plans are designed for the purpose of reinvigorating blighted neighborhoods, not driving people out based on race.

“They are economically-deprived areas,” said Georgetown professor Randy Barnett, speaking at the ACS panel. “That is a reason why they are targeted.”

Less than a year after the justices toughened the constitutional analysis for affirmative action policies in Fisher v. University of Texas at Austin, they will once again consider the issue in Schuette v. Coalition to Defend Affirmative Action, which asks whether Michigan violated the Equal Protection Clause in amending its constitution to prohibit the consideration of race or gender in public university admission decisions.

And in what stands to be a major immigration decision, the justices will consider in Mayorkas v. Cuellar de Osorio whether children who are being sponsored by a family member to receive visas, but who age out from “child” eligibility before the visa is approved, may be granted relief under the Immigration and Nationality Act.

Criminal law, patents and the environment

Other notable cases on the justices’ desks include Rosemond v. U.S., which considers whether the federal crime of aiding and abetting the use of a firearm in a violent or drug felony — one of the most commonly charged federal crime on the books — requires proof that the defendant encouraged the use of a gun, or merely was aware that a gun was present.

In the search-and-seizure case of Fernandez v. California, the justices will decide if a defendant’s co-tenant could grant police access to the defendant’s home even though the defendant had previously refused to allow police inside.

The court will also take up significant cases in the patent and environmental arenas.

In Medtronic, Inc. v. Boston Scientific Corp., the justices will decide if a patent licensee has the burden of proving that its products do not infringe on the patent, or if the burden rests on the the patentee to prove infringement.

And in the consolidated cases of EPA v. EME Homer City Generation and American Lung Association v. EME Homer City Generation, the court will consider the validity of a federal rule requiring upwind states to reduce power plant air emissions that affect downwind states’ air quality.


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