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Chemerinsky: Momentous Term for the ‘Kennedy Court’?

Posted Oct 3, 2011 8:54 AM CDT
By Erwin Chemerinsky

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Erwin Chemerinsky

Editor’s Note: On this First Monday in October as justices convene for the U.S. Supreme Court’s fall term, the ABA Journal welcomes constitutional law scholar Erwin Chemerinsky, who will write a regular online column for the ABA Journal featuring his commentary and observations about the high court.

The U.S. Supreme Court will begin its seventh term under Chief Justice John G. Roberts Jr. today, and for the first time in three years, there will not be a new justice on the bench.

Once more, as it has been for each of the last six years, it will be, from a practical perspective, the Anthony Kennedy Court. In ideologically divided cases, there are two blocs as distinct as any that have served on the court: Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. on the right; and Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan on the left.

Over the last six years, Kennedy has sided with the conservatives greater than 70 percent of the time in 5-4 decisions split along ideological lines. For example, last term there were 14 cases where the court divided ideologically 5-4 or 5-3; Kennedy was with the conservative bloc in 10 cases and with the more liberal justices in only four.

There are a number of interesting and important cases in which review already has been granted. But the cases that may be given cert in the next few months—on such issues as immigration, affirmative action and the health care law--may make this a momentous term.

The court granted review in 49 cases before it adjourned for the summer in June and took another seven cases last Tuesday. The court is likely to take about another 20 cases between now and early January to be decided by the end of June 2012.

Some of the most important decisions last year involved the First Amendment. This term the court will hear F.C.C. v. Fox Television, focusing on whether the Federal Communications Commission violates the First Amendment by prohibiting and punishing fleeting expletives and nudity in over-the-air television broadcasts.

Two of the most interesting cases already on the docket involve the Fourth Amendment. In United States v. Jones, the court will consider whether it violates the Fourth Amendment for the government, without a warrant, to place a GPS tracking device on a person’s car and follow it for a month. In Florence v. Board of Chosen Freeholders of County of Burlington, the court will decide whether the Fourth Amendment is violated when a jail conducts a suspicionless strip search of every individual arrested for any minor offense, no matter the circumstances.

There are also cases raising important procedural issues. Douglas v. California Pharmacists Association, presents the issue of whether a claim for preemption can be brought directly under the Constitution in the absence of a statute authorizing such suits. If the Supreme Court finds that such suits cannot be brought, it will significantly lessen the ability to ensure state and local compliance with federal law. In Pollard v. GEO Group, Inc., the court will consider whether a cause of action exists to sue guards at private prisons for violating inmates’ constitutional rights.

While all of these cases and others on the docket are important, those most likely to be significant have yet to be taken. In Arizona v. United States, the justices will be asked to rule on the constitutionality of Arizona’s controversial SB 1070, which requires state and local police to aggressively enforce federal immigration law. The United States District Court issued a preliminary injunction and the 9th U.S. Circuit Court of Appeals affirmed.

Last term, in Chamber of Commerce of U.S. v. Whiting, the court upheld a provision of an Arizona law allowing suspension and revocation of licenses for businesses that employ undocumented immigrants. In a 5-3 decision, the court rejected the argument that this was preempted by federal law.

Supporters of Arizona’s SB 1070 hope that this signifies that the five conservative justices are prepared to allow states significant latitude in attempting to control illegal immigration. But opponents of Arizona’s law note that the case would come before the court on review of a preliminary injunction, which may be overturned only if there is an abuse of discretion by the lower court. This is a very difficult standard to meet.

A second potentially momentous case is Fisher v. University of Texas, Austin, which involves the constitutionality of affirmative action programs in colleges and universities. In Grutter v. Bollinger, the Supreme Court reaffimed, 5-4, in 2003 that colleges and universities have a compelling interest in having a diverse student body, and may use race as one factor in admissions decisions to benefit minorities. Justice Sandra Day O’Connor, who has retired, wrote the opinion for the court.

O’Connor’s replacement, Justice Alito, has a decidedly different view. In 2007 he joined Chief Justice Roberts’ opinion in Parents Involved in Community Schools v. Seattle School District No. 1, which argued that color-blindedness is required by the equal protection clause. There are almost surely four votes--Roberts, Scalia, Thomas, and Alito–to overrule Grutter. The question, of course, is what Justice Kennedy will do. Kennedy has never voted to uphold an affirmative action program, though in Parents Involved he was not willing to go as far as the conservative justices in ending all race conscious programs.

In Fisher, the 5th U.S. Circuit Court of Appeals upheld the affirmative action program at the University of Texas and then denied en banc review in June by a 9-7 vote. A petition for certiorari was filed in September. It is very likely the court will hear the case this term.

The most eagerly anticipated cases, though, are those involving the constitutionality of the individual mandate in the Affordable Care Act. Three circuits have decided the issue, and they have come out three different ways. In June, the 6th U.S. Circuit Court of Appeals, in a 2-1 decision, upheld the individual mandate as constitutional. Thomas More Society v. Obama. By contrast, in August, the 11th U.S. Circuit Court of Appeals, in a 2-1 decision, declared this unconstitutional. Florida ex rel. Attorney General v. U.S. Department of Health and Human Services.

And in September, the 4th U.S. Circuit Court of Appeals, in a 2-1 ruling, found that the individual mandate is actually a tax and thus cannot be enjoined under a federal law, the Anti-Injunction Act, which prohibits federal courts from enjoining the collection of taxes. Liberty University v. Geithner. The issue was argued Sept. 22 before a panel of the U.S. Court of Appeals for the D.C. Circuit. A fourth decision is likely to be forthcoming soon.

In light of the importance of the issue and the split among the circuits, it seems certain that the court will hear the issue this term. Already petitions for certiorari have been filed from the 6th and 11th Circuit cases.

It is interesting that, with one exception, every federal judge appointed by a Democratic president has voted to uphold the individual mandate, and, with one exception, every federal judge appointed by a Republican president has voted to declare it unconstitutional. If the Supreme Court were to follow this pattern, the law would be struck down 5-4. But that may be far too simplistic because the court is likely to consider this the most important challenge to the scope of congressional power since the mid-1930s.

It seems likely that the court will consider the constitutionality of SB 1070, revisit the permissibility of affirmative action by colleges and universities, and decide the constitutionality of the individual mandate in the Affordable Care Act. That would truly make this term as momentous as any in recent memory.

Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.

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