MLM Counties News. Notices. Need-to-know Information.
To help you through the prognostication process, we’ve asked two court-watchers to handicap the likely outcomes of some of the cases. They are:
■ Professor Douglas Linder, of the University of Missouri-Kansas City Law School. Linder teaches constitutional law and is founder of the Famous Trials website.
■ Kimberly Atkins, U.S. Supreme Court reporter for The Dolan Company, parent company of Missouri Lawyers Weekly. Atkins writes the DC Dicta blog.
Here’s a look at the Supreme Court cases you will be asked to predict, with some commentary by our handicappers:
LINDER: When Xavier Alvarez introduced himself to fellow members of the Three Valley Water Board by saying, “Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy,” Alvarez was lying through his teeth. It is a federal crime punishable by up to a year in prison to falsely claim to have been awarded the Congressional Medal of Honor. Alvarez’s conviction was overturned by the 9th Circuit, with Judge Alex Kozinski noting, “For mortals, living means lying.” 9th Circuit judges worried about a slippery slope that might lead to prosecutions for lies people tell every day (“The check is in the mail,” “I’m busy Friday night,” “Gee, you look good,” “I only lost $10 at poker”).
The court will be looking for a limiting principle that would allow prosecutions for lies like the one told by Alvarez, while not opening the door to prosecutions for lies generally. Will the court be able to find a way to uphold Alvarez’s conviction without causing too much collateral damage to free speech values? Probably, but the path to that conclusion is not obvious.
Dep’t of Health and Human Services v. Florida
ATKINS: In the challenge to the provision of the federal health care law requiring individuals to purchase health insurance coverage, it could all come down to how two justices vote: Chief Justice John G. Roberts, Jr. and Justice Anthony M. Kennedy.
At oral arguments on the matter, the Court appears to be split on the issue. Justices Antonin G. Scalia and Samuel A. Alito, Jr. expressed doubt over the law’s constitutionality during arguments, and Justice Clarence Thomas, while silent during oral arguments for the past six years, has expressed strict views on the Commerce Clause’s power during speeches outside the Court.
One the other side, Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan seemed to lean in favor the law’s constitutionality.
That left Roberts and Kennedy as unknowns – and each expressed some serious concerns on both sides.
When Solicitor General Donald B. Verrilli, Jr. argued that virtually everyone will enter the health care market at some point in their lives without warning, Roberts asked how that differed from other situations.
“The same … would be true, say, for the market in emergency services: police, fire, ambulance, roadside assistance,” Roberts said. “So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services?”
Later, Kennedy expressed concern about young uninsureds, and its effect on commerce.
“I think it is true that if most questions in life are matters of degree, in the insurance and health care world … the young person who is uninsured is uniquely, proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries,” Kennedy said. “That’s my concern in the case.”
LINDER: Is the individual mandate contained in the Patient Protection and Affordable Health Care Act constitutional, and, if it isn’t, what else in the 2,700 page bill goes as well? That is the $64,000 question this term, and the answer is anyone’s guess. The electronic trading market, Intrade, rates the chances of the individual mandate being struck down at 56 percent, showing how evenly divided thinking is on this case.
We know for certain there are four votes to uphold the law in its entirety, meaning that the fate of the individual mandate rests with Justice Anthony Kennedy, although if Kennedy votes to uphold the mandate, Chief Justice Roberts is likely to come along with him and write the opinion. (In fact, either way this case comes out, it’s a good guess that it will be a Roberts opinion for the Court.)
One of the concerns that could tip the case is the perplexing problem of what else goes if the mandate does. The Court probably is reluctant to toss out the whole 2,700 pages, including popular provisions such as the one that requires that insurance companies allow young adults up to age 26 to be covered by their parents’ insurance, as well as seemingly unrelated provisions such as one that requires restaurants to make available to the public nutritional information. The Court could decide to just knock out the mandate and closely connected provisions such as the one disallowing denial of coverage for pre-existing conditions, but the severability question is a real can of worms that could lead to a decision to do the simple thing and uphold the whole law. Also, Justice Kennedy does seem to recognize that insurance is no broccoli.
The fact that President George Washington put his name on legislation requiring all able-bodied men to buy firearms and that President John Adams signed a law requiring seamen to buy insurance also undercuts originalist arguments against the law. This one could go either way, but the case leans slightly in the government’s direction.
FCC v. Fox Television
LINDER: In 1978, the Court ruled 5 to 4 that the FCC could punish a radio station for broadcasting George Carlin’s monologue about the “seven filthy words” you could never, ever say on the radio. Since that decision the list of seven has shrunk, but the Court is now being asked to rule whether the FCC can still ban fleeting use the “F-word” on television, as Cher did in 2002 and Nicole Richie in 2003. This is a tough case to call, and with Justice Sotomayor sitting it out, it’s even tougher. At least three justices (Roberts, Alito, and Scalia) tipped their hands in oral arguments, revealing through their questions that they believe it is altogether appropriate for the FCC to carve out a “safe haven” on the airwaves for programming that doesn’t bombard viewers and listeners with four-letter words.
Meanwhile, Justices Kagan and Breyer expressed concern with the vagueness and arbitrariness of an FCC policy that allows indecent language and nudity in some programs (as it did for “Saving Private Ryan”) and yet prohibits single four-letter words (Cher’s single use of the “F-word”) and brief glimpses of partial nudity in others (“NYPD Blue”). Justice Thomas has stated he thinks it might be time to end the double standard that allows cable channels to show virtually anything they want, but leaves broadcasters open to the whims of the FCC.
Look for Justice Kennedy to try to seek a middle ground, leaving the FCC free to police indiscriminate use of four-letter words, but finding the FCC violated the First Amendment in punishing broadcasters for the single, unscripted use of a four-letter word. FOX might win this one, but the issue is unlikely to go away.
Astrue v. Capato
ATKINS: As sympathetic as a story of a woman who conceived babies though in vitro fertilization using the sperm of her husband, who died years earlier form cancer, may be, during oral arguments on the case Astrue v. Capato, the court did not seem inclined to grant the children Social Security survivor benefits
The justices seemed receptive to the government’s arguments that granting such benefits would create a messy situation — something that Congress didn’t intend.
Though the attorney representing the family stressed that the children were the insured’s biological kids, that didn’t seem to be enough for the court.
“Let’s assume Ms. Capato remarried but used her deceased husband’s sperm to birth two children,” said Justice Sonia M. Sotomayor at one point during arguments “They are the biological children of the Capatos. Would they qualify for survivor benefits even though she is now remarried?”
“That’s an interesting and … difficult question,” the family’s attorney replied.
“A situation like that is what is making me uncomfortable,” Sotomayor said, “because I don’t see the words ‘biological’ in the statute. I don’t see the word ‘marriage’ directly within the definition of ‘child.’”
The case isn’t a slam-dunk, though — in part, thanks to the muddy wording of the statute in question. “It’s a mess!” exclaimed Sotomayor at one point.
Miller v. Alabama (linked with Jackson v. Hobbs)
LINDER: You can predict the outcome of this case if you can answer what is so often the critical question in close Supreme Court cases, “WWKD?” (What would Kennedy do?) In cases striking down the death penalty for crimes committed while a minor, and life-without-parole for non-homicide crimes committed while a minor, Justice Kennedy provided the key fifth vote and wrote the opinions. In this case, Kennedy might be looking for a compromise, perhaps by ruling that life-without-parole sentences for minors can never be mandatory and can never be imposed at all for minors below a certain age, such as 15, but leaving open the possibility of life-without-parole for older teens. The test in Eighth Amendment cases is whether the punishment is inconsistent “with evolving standards of decency,” and Kennedy has generally joined the four liberals in finding evidence of evolution. Whatever happens, it’s all up to the man in the middle.
ATKINS: One of the issues that the justices of the Supreme Court seemed to struggle with most this term was whether the Constitution imposes an age limit on being sentenced to life in prison in murder cases.
During oral arguments in the cases Miller v. Alabama and Jackson v. Hobbs, the justices seemed to struggle heavily to answer the question: how severe is too severe when it comes to juvenile sentences under the Eighth Amendment? It’s far from clear what the answer will be.
The question made for some difficult line-drawing at oral arguments. “What about 50 years? Is that too much?” Justice Antonin G. Scalia asked. “[Or] 60 years or 70 years? … What’s the distinction between [age] 14 and 15?”
The attorneys arguing on behalf of the states stressed that the defendants in the cases had been convicted of serious crimes – one of the 14-year-olds was convicted of robbing and brutally beating a man before setting him on fire – and should receive a punishment commensurate to his disregard for human life.
But the justices knew the issue wasn’t that simple.
“You say the sanctity of human life, but you’re dealing with a 14-year-old being sentenced to life in prison, so he will die in prison without any hope,” Justice Ruth Bader Ginsburg said. “Essentially you’re making a 14-year-old throwaway person.”
In 2010, the Court ruled in Graham v. Florida that the Eight Amendment barred sentencing juveniles to life without parole in non-murder cases in a 6-3 ruling. But the instant cases before the Court could give them some wiggle room: the cases were not consolidated, leaving open the possibility that the justices could issue fact-specific conclusions that could lead to different outcomes in each case. That makes the case of the boy convicted of felony murder – after a robbery accomplice shot a store clerk – a little closer than the other, more heinous case.
LINDER: In 2010, Arizona passed a sweeping immigration law that, among other things, allows police officers to check the immigration status of suspected illegals, establishes a new state crime of fail to carry an immigration registration document, and makes it a crime for an illegal immigrant to take a job. It is already a federal civil crime, with deportation the government’s remedy, for an immigrant to be in the country illegally, but Arizona goes a step further in allowing such persons to be sent to state prisons.
Many of the objections to the Arizona law related to the racial profiling that opponents worry follows from the law, but the majority of the Court does not see profiling as the issue—at least in the case now before it. Rather, the question is whether state laws like Arizona, which might result in the rounding up of large numbers of illegal aliens, sufficiently messes up the federal government’s immigration enforcement priorities as to justify the conclusion that such state laws are pre-empted.
Federal immigration laws do not expressly pre-empt state laws in this area, but the federal government argues it has “occupied the field” of immigration law and that diverse state regulations could frustrate federal policies. Arizona claims it is exercising a traditional police power and that it has every right to protect its border.
Justice Kagan is not participating in this case, opening up the possibility of the Ninth Circuit’s decision, striking down key portions of the Arizona law, will be affirmed by an equally divided 4 to 4 vote. It seems more likely, however, based on questions asked during oral argument, that the Court will uphold most, but probably not all, parts of the bill.
Several justices seem to be persuaded by Arizona’s argument that the law does not require the federal government to do anything it did not want to do. Look for key portions of the law, including the provision allowing arrests of suspected illegals, to be upheld
ATKINS: Trying to predict how the court will rule in preemption cases is probably tougher than in any other area of law because the justices frequently come down on different sides of the issue in different cases, sometimes with lopsided votes and other times in 5-4 squeakers. Some court watchers have deemed the court’s preemption jurisprudence “schizophrenic.”
But at oral arguments In Arizona v. U.S., the justices of the Supreme Court seemed surprisingly skeptical of the Obama administration’s claim that Arizona’s law was preempted by the federal immigration control scheme. Of the eight justices who heard the case (Justice Elena Kagan recused herself, presumably due to her work on the case as solicitor general), three seemed to be leaning in favor of Arizona’s right to regulate immigration enforcement: Chief Justice John G. Roberts Jr. and Justices Antonin G. Scalia and Justice Samuel A. Alito Jr. Clarence Thomas, who did not speak during arguments but who has expressed animosity toward implied preemption claims in general, also likely will vote in Arizona’s favor, meaning the best government could hope for is a tie.
But in this case, a tie would be a victory of sorts for the administration since it would affirm the decision below in which the federal government was granted an injunction preventing the law from being implemented. The matter would still have to be adjudicated on the merits in the 9th Circuit.
But that tie may be tough to come by, as it would mean convincing noted swing voter Justice Anthony M. Kennedy. Solicitor General Donald B. Verrilli Jr. had a tough argument to make on the case. At one point, even Justice Sonia M. Sotomayor, who seemed inclined to vote in the federal government’s favor said to Verrilli: “You can see it’s not selling well. Why don’t you try to come up with something else?”
ATKINS: It appears that the man accused of assaulting former Vice President Dick Cheney who is seeking to sue Cheney’s Secret Service detail for retaliatory arrest is out of luck. The justices of the Supreme Court seemed disinclined to hold the plaintiff had a cause of action for violation of his free speech rights.
The argument that law enforcement officials should be free to do their job of protecting the vice president without fear of civil litigation seemed to resonate with the court. Secret Service agents should be worried about taking a bullet, not taking a lawsuit, the lawyers argued.
When the lawyer for the man accused of assaulting Cheney argued that a cause of action can exist where an officer bases an arrest on the content of speech, Chief Justice John G. Roberts, Jr. wondered how such cases could be proven — or defended.
“So under your theory a person can put on his car a bumper sticker that says, ‘I hate the police’ and every time they are pulled over they will have certainly a plausible case [the officers] violated [his] First Amendment rights,’ Roberts said.
Justice Elena Kagan recused from considering this case, leaving it to the eight other justices. But there is no danger of a tie in this case. Expect a lopsided victory for the Secret Service agents.
