SCOTUS Watch: Time to Decide

Posted by AzBlueMeanie:

The last two weeks of June are always viewed with a combination of trepidation and excitement by attorneys. This is traditionally the time that the U.S. Supreme Court announces its most controversial decisions of the term before the federal government leaves town for the July 4th break.

There were 67 cases argued this term, a lesser number of cases than in previous terms, but with several highly controversial political cases. Of the cases argued, 53 cases have been decided. Amy Howe at SCOTUSblog has a list of the Remaining merits cases: In Plain English, which includes these controversial cases that will have political repurcussions in the fall election that we will be following:

The health care cases:

Argued March 26-28, 2012

• Department of Health and Human Services v. Florida

Plain English Issue: (1) Whether Congress has the power under the Constitution to require virtually all Americans to obtain health insurance or pay a penalty; and (2) whether the Anti-Injunction Act, which prohibits taxpayers from filing a lawsuit to challenge a tax until the tax goes into effect and they are required to pay it, prohibits a challenge to the Act’s provision requiring virtually all Americans to obtain health insurance or pay a penalty until after the provision goes into effect in 2014.

• Nat’l Federation of Independent Business v. Sebelius

Plain English Issue: (1) Whether Congress can require states to choose between complying with provisions of the Patient Protection and Affordable Care Act or losing federal funding for the Medicaid program; and (2) whether, if the Court concludes that the provision of the Act requiring virtually all Americans to obtain health insurance or pay a penalty is unconstitutional, the rest of the Act can remain in effect or must also be invalidated.

• Florida v. Department of Health and Human Services

Plain English Issue: (1) Whether Congress can require states to choose between complying with provisions of the Patient Protection and Affordable Care Act or losing federal funding for the Medicaid program; and (2) whether, if the Court concludes that the provision of the Act requiring virtually all Americans to obtain health insurance or pay a penalty is unconstitutional, the rest of the Act can remain in effect or must also be invalidated.

Also, the federal preemption question regarding SB 1070:

Arizona v. United States

Argued on April 25, 2012

Plain English Issue: Whether an Arizona law that, among other things, requires police officers to check the immigration status of anyone whom they arrest, allows police to stop and arrest anyone whom they believe to be an illegal immigrant, makes it a crime for someone to be in the state without valid immigration papers, and makes it a crime to apply for or hold a job in Arizona without proper papers, is invalid because it is trumped by federal immigration laws.

Less political in nature, but still of interest:

Federal Communications Commission v. Fox

Argued on January 10, 2012

Plain English Issue: Whether the Federal Communications Commission’s standards for indecency on television are too vague to be constitutional.

Knox v. Service Employees International Union

Argued on January 10, 2012

Plain English Issue: Whether the First Amendment gives state employees the right to decline to pay union dues used for political advocacy by the union.

United States v. Alvarez

Argued on February 22, 2012

Plain English Issue: Whether a federal law that makes it a crime to lie about receiving military medals or honors violates the First Amendment’s guarantee of the right to free speech.

The remaining cases all involve criminal matters or procedural due process matters.

There are also some orders that we will be watching for, in particular American Tradition Partnership, Inc. v. Bullock, the challenge to Citizens United v. FEC by the Montana Supreme Court upholding a state statute that bans corporate spending in state elections, taken up by the Court at its Thursday Conference last week.

Arizona's appeal from the 9th Circuit regarding Prop. 204 proof of citizenship to vote using federal voter registration forms has been delayed by the Court. Lyle Denniston reports at SCOTUSblog that Delay in Arizona election case (FINAL UPDATE):

The divided en banc Ninth Circuit Court ruled in April that the citizenship proof requirement conflicts with a 1993 federal law passed to make it easier for individuals to sign up to vote. The state took its plea for a delay of that ruling, for the duration of this year’s election season, to Justice Anthony M. Kennedy, who has the option of acting alone or referring the issue to his eight colleagues.

* * *

Justice Kennedy has issued a temporary order delaying the Ninth Circuit Court’s ruling, at least until further briefs are filed in the case. The Circuit Court mandate was due to be issued tomorrow, but now will be delayed until at least next Wednesday afternoon. The challengers to the Arizona citizenship proof requirement are to file a brief by Monday afternoon, with a state reply due by noon Wednesday.   Earlier today, this post was updated to provide a link to the application, here.

Now you are going to ask my predictions. That is a fool's game. I will say that if the Court were to follow its own precedents and stare decisis, the Court will uphold the Affordable Care Act and find that the federal government has exclusive jurisidiction over immigration policy, preempting SB 1070. But this conservative activist court has departed from its own precedents and stare decisis before in Citizens United v. FEC, and appears inclined to do so again.

Just to make things interesting, the Court could issue a mixed opinion with something for all sides to argue about, leaving the waters muddied. We'll soon find out.

Finally, we are treated today to the lunatic ravings of the "Patrician Prevaricator," George Will, urging the conservative activist court to impose his dream of a plutocratic corporatocracy through 5 votes on the Supreme Court, not by legislation in Congress or the will of the people through democratic elections. Unleash the high court. I truly despise George Will.