Supreme Court: Reading Between the Lines

Supreme CourtWhen the U.S. Supreme Court commenced its current session this past Monday, it did so trailing the dust of controversy that has still not settled since the slim 5-4 vote to uphold President Obama’s much-disputed health care overhaul.

The question now in the minds of court-watchers everywhere is a simple one to ask but difficult to predict: what cases will the High Court take up? Regardless of the answer, however, it will be a notoriously small percentage of the total number of Petitions for Writ of Certiorari filed with the Supreme Court every year, which usually run in the thousands.

There is one contentious area of law that is unlikely to be argued and decided this year: the failure of the Administration to provide adequate protection for the religious liberties of faith-conscious employers that are now burdened by the new health care provisions. More than 27 cases challenging the law on religious freedom grounds have sprouted up. Two cases have been dismissed by federal trial courts on procedural grounds and one on the merits last Friday. In another case, Newland v. Sebelius, NRB member Alliance Defending Freedom (ADF) won an interim victory in obtaining a narrow temporary injunction against the heath care mandate, a ruling that protects only the plaintiffs in that suit. Appeals are pending in some of the cases, but are unlikely to be decided quickly enough by the Courts of Appeal to reach the Supreme Court this term.

Other cases with a much higher likelihood of review involve the gay rights agenda and the aggressive attempts to legalize same-sex marriage. Currently, the High Court is considering whether to take up an appeal from several federal courts that have struck down the Defense of Marriage Act (DOMA), a federal law signed by President Bill Clinton, but a law that the Obama Administration has decided not to defend in court because it establishes traditional one-man, one-woman marriage as the standard for federal purposes. There is a fair amount of intrigue over this issue because, if the Court were to take up the appeal from the First Circuit Court of Appeals, newly appointed Supreme Court Justice Elena Kagan, a likely vote for voiding the law, may be forced to recuse herself due to previous involvement as U.S. Solicitor General. Other appeals could be reviewed, instead, on the same issue and without the Kagan problem, but those have substantial procedural quirks that could bode poorly for same-sex marriage advocates.

The sensational Proposition 8 trial in California (attacking a state referendum that sustained traditional marriage) could also be accepted by the Court. It has already reviewed the case once before on a technical issue, and the justices criticized the trial judge’s attempt to allow TV cameras to televise the case and to permit Internet video replay of the proceedings in violation of federal rules. In a communications case, the Court of Appeals for the DC Circuit will be receiving the final briefs in November in Verizon v. FCC, the challenge to the Commission’s controversial Internet governance rules, popularly dubbed as “net neutrality” regulations. But oral arguments and a decision will probably not come in time for an appeal this term to the Supreme Court.

Yet, with a national election in November, the second most-asked question about the Court has to do with the justices themselves. The next President will likely have the chance to appoint at least one member of the Supreme Court. Conservative stalwart Justice Antonin Scalia will reach 80 in about four years, though there has been no hint of his desire to retire. Justice Ruth Bader Ginsburg, at the other far end of the jurisprudential spectrum, will be 80 next year. And though legal principles may reign during the arguments before the Supreme Court, still, as the old saying goes, “personnel is policy.”

By Craig Parshall, Sr. Vice President and General Counsel

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Published: October 4, 2012