Diary

The October 2013 Supreme Court Term Thus Far

There is still time for the Supreme Court to accept cases for argument beginning in October 2013. They are still holding weekly conferences and will likely grant new cases between now and the end of the current term which ends in June. Still to be decided this year are blockbuster cases involving affirmative action in college admissions, the validity of criteria used to determine Voting Rights Act coverage, and, of course, the two gay marriage cases that challenge California’s Proposition 8 and DOMA.

Thus far, the Court has granted review in some 22 cases for next term. The average number of cases taken per term is about 60 or so. Considering the number of petitions they receive yearly, the chances of being granted review by the Supreme Court are exceptionally low. There are two possible ways to increase one’s chance of getting a case before the Court. The first is to present a unique constitutional question. Some of these are the result of previous Court decisions which left certain questions unanswered until the actual scenario presents itself in a lower court. Then there are the absolutely unique questions. The likelihood that the Court will hear the case from the DC Circuit involving the National Labor Relations Board membership and recess appointments is one such case. Here, the Court will have to determine when Congress is technically in recess thus permitting the President to make recess appointments. Incidentally, the Obama administration was dealt a second blow in this area when the 3rd Circuit recently decided a case out of New Jersey coming to the same conclusions of the DC Circuit court.

The second way to get a case heard is to have what is called a “circuit split.” The various federal appeals courts must adhere to Supreme Court precedents. But, there will often be cases that present certain scenarios where that precedent may be variously interpreted. This often leads to confusion between the circuits which results in a lack of consistency nationally. For example, the Fourth Circuit may interpret a law or precedent one way while the more liberal Ninth Circuit may interpret it another way. Usually, if important enough, the Supreme Court will intervene and play referee between the courts. Admittedly, some of the lower court “confusion” is caused by the Supreme Court itself when they attempt to narrowly decide a question. This is especially a tendency of the Roberts Court. In fact, in the next term there are six of 22 cases which are jurisdictional in nature.

Coming in second are five cases which involve criminal law which implicate the Fourth, Fifth and Sixth Amendments and defendant rights. One area which is dominating the lower courts recently is a common ploy by those convicted of crimes in their appeals- the assistance of ineffective counsel argument. That is, once convicted, the criminal claims on appeal that they were assisted by ineffective counsel and they use that as grounds, under the Sixth Amendment, to have their conviction overturned. Obviously, there are cases where ineffective counsel does play a role in the ultimate conviction. One case to be heard in the upcoming term, for example, asks whether if counsel failed to reveal a plea deal, despite the defendant’s absolute assertion of innocence, rises to the level of “ineffective counsel.” Perhaps the most interesting criminal case this term is Bond V. United States since it implicates Federal law and an international treaty. In this case, a wife poisoned her husband and was convicted under state law. However, the poison used is one of many restricted under an international protocol against the use of chemical agents. In order to implement the treaty, the Congress enacted a law which made it a federal crime to use the poisons. Thus, the Court is asked whether this is an over-reach of the federal implementation law when conviction under the state’s homicide law will suffice.

Coming in third are three cases of a preemption nature involving securities law. In 1998, Congress enacted a law known as SLUSA which was in response to what many considered nuisance lawsuits against corporations for alleged securities fraud. Since securities transactions are regulated by federal laws dating to the New Deal, they amended those laws and preempted actions under state laws for securities fraud. The standards for bringing personal or class action suits were further restricted under federal law. However, certain state actors were exempt from SLUSA. Still, this law illustrates the complexity of such legislation and actions under it as concerns the state versus the federal government.

Then there are several other cases of a varying nature, all totaling one such case. There is one case involving the Americans with Disabilities Act as well as one under ERISA, a retirement income security law. Because that evil corporate villain Wal-Mart is involved, expect heavy press coverage on that one especially since Wal-Mart prevailed previously in the Court in the Dukes case. Then there is the obligatory patent law case (expect more) which seem to become greater in frequency because of the changes in technology. There is also the obligatory tax law case which, quite frankly, tends to be so convoluted and complicated that a three-part Redstate treatment would still do no justice to the analysis. There is one labor law case thus far involving a very controversial aspect of the FLSA- the definition of “changing clothes” (sarcasm intended). And there is an environmental case with some broader implications.

One tactic of environmental groups to delay projects is to sue in court to have those projects stopped. In the case granted, the Court must first get around whether that group has standing to sue in the first place. To have “standing,” some injury must be shown. Once past that hurdle, they must then rule on whether the Forestry Service must rule on any and all environmental impacts conceivable before amending their rules.

Thus far, perhaps the cases to generate the most controversy involve the Establishment Clause of the First Amendment, affirmative action, and campaign finance. The Establishment Clause case is Town of Greece v. Galloway- a case from upstate New York. The Town of Greece, near Rochester, opens it Board meetings with a prayer invocation. The Second Circuit Court of Appeals ruled this unconstitutional since the majority of the prayers were of a Christian nature. This, they concluded, amounted to the impression that an outside objective observer could reasonably conclude that the government body was endorsing a particular religion- namely, Christianity. The Court has not ruled on such a case in 30 years and no member of the current Court was present on the bench in 1983. This could be interpreted in one of two ways. The first is that the Roberts Court is prepared to make a bold announcement in the area of religion in the public sphere. Conversely, they may simply rule given the specifics of this case and whether the Second Circuit overreached when analyzing this case. Admittedly, there were complaints between 1999, when the practice began, to 2010 where residents complained of the practice yet town officials did nothing to dispel the accusations that they were promoting Christianity. However, that is a detail that the liberal wing of the Court may use to justify a liberal conclusion to this case. Some of this case illustrates the ludicrousness of interpretation of the Establishment Clause in the first place. If a town whose residents are overwhelmingly Christian decide to open a meeting with a prayer or invocation from a Christian minister, it makes intuitive sense. In effect, the 2nd Circuit is arguing for some kind of religious affirmative action in order to cover the town’s butt because use of the Christian minister may offend the lone few non-Christians or atheists in the audience. Of course, there is the commonsense solution- if it is so offensive to the few, perhaps the few should show up a few minutes late to Board meetings or stick earplugs in their ears during the invocation.

Another case sure to generate some controversy is an affirmative action case out of Michigan. Largely in response to Supreme Court decisions, Michigan amended their state constitution to bar affirmative action in state college admission decisions. Incidentally, other states, notably Oklahoma, has gone further and approved state constitutional amendments against affirmative action programs in state hiring and college admission decisions. This case asks whether such state amendments violate the Equal Protection Clause of the Constitution. Like the Fisher case whose decision is pending this term, it is sure to ignite some fireworks from the Left’s feminist and racial quota contingent. We will likely hear about the advantages of diversity on the campus and in classes and all that feel-good stuff that sometimes serves to weed out more qualified applicants to college all in the name of…well, making us feel good about race and gender. Unlike Fisher which involves a policy adopted by the college system itself, this involves the State stepping in and prohibiting the use of affirmative action.

The final case and one to generate the most controversy is McCutcheon vs. Federal Elections Commission. This case seeks to strike down the biennial campaign contribution limits directly to candidates or to independent groups. If not struck down outright, the petitioner in this case asks whether the limits in place are unconstitutionally low. This case will reopen the debate over 2010’s Citizens United case which has generated so much controversy, especially in light of current headlines involving the IRS. Recently, the Court refused to hear a case out of Montana involving state campaign finance laws that ran afoul of Citizens United thus leaving the injunction against enforcement of the state law in effect. This was a stealth reaffirmation of Citizens United which prompted the rare statement from the Liberal wing of the Court. They stated that they joined in refusing the grant although they hold to their belief that Citizens United was wrongly decided, but they wished not to entertain another case that would likely end up 5-4. In effect, the vote was 9-0 not to grant review. This new case takes on campaign contribution limits directly and would one-up Citizens United.

While the recent IRS controversy was tangentially reopened the debate over campaign finance laws (Liberals insist it was prompted by Citizens United), some argue that the laws need to be enforced and tightened against independent groups through passage of the DISCLOSE Act in Congress. However, an equally persuasive argument- one which I believe- is that campaign finance laws should not be reformed, but abolished. Using the crystal clear interpretation from Citizens United, these laws only serve to stifle, not enhance, political discourse. The argument for these laws is that certain special interests “buy elections.” First, looking at 2012, the success rate of groups that engaged in political advocacy was somewhere south of 50% when it came to backing a candidate or, more regularly, attacking a particular candidate (negative ads are more common). Second, there are few, if any, documented cases of a bought election. In fact, the whole notion defies logical explanation. Why, for instance, would a group that advocates alternative energy give to a candidate who supports coal? Are they going to change that candidate’s mind? That is, the money follows the position, not the position following the money. The latter is called lobbying and there are admittedly serious problems with that scenario. Third, the liberal assumption is that the candidate who spends the more money is guaranteed electoral success. Again, the facts from the 2012 election do not support that notion. Just ask Karl Rove the success rate of his contributions in getting candidates elected.

In conclusion, one should watch for three potential cases that may have a good chance of making it to the Supreme Court docket in the October 2013 term. The first is the aforementioned recess appointment case involving the NLRB. George Will had a recent article comparing the NRLB to George Wallace in the 1950s. Then, like now, the government essentially told the courts “you have your opinion and we reject it.” The NRLB has simply ignored the DC and now the Third Circuit Court of Appeals. There are two checks on the overreach of an imperial presidency- the courts and the people. Since we are stuck with Obama for the next three years, the Supreme Court may be the best chance the people have. The second case is one out of Illinois involving gun control. Illinois is the ONLY state that absolutely prohibits concealed carry permits under any circumstance by anyone. The Sixth Circuit ruled that law unconstitutional under both Heller and McDonald and gave Illinois 6 months to either appeal or change the law. They opted to challenge the ruling. The third area is a series of cases brewing in the DC Circuit involving regulations designed to decrease greenhouse gases promulgated by the EPA. Most of the government’s rationale is based on the weirdly decided EPA v. Massachusetts decision which allowed the EPA to define greenhouse gases, like naturally occurring carbon dioxide, to be declared a pollutant and subject to regulation. That case referred to moving vehicles like cars and light trucks. The current litigation involves stationary structures like power plants and factories. Taken to its logical conclusion, a stationary structure may even be a house. Just as McCutcheon is an opportunity to double down on Citizens United, these cases are an opportunity to reign in an increasingly burdensome regulatory agency like the EPA which, in all honesty, is the closest thing we have to a Gestapo in the United States.