U.S. Supreme Court

Chemerinsky: It's shaping up to be a momentous term for SCOTUS

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Erwin Chemerinsky

Erwin Chemerinsky.

Absent extraordinary circumstances, the docket for October Term 2014 is now complete, and it has the potential to be one of the most momentous in history. On Jan. 23, the Supreme Court took the last cases to be heard this term; anything granted after this almost certainly will be heard next fall in October Term 2015. Although each of the recent terms has had blockbuster cases, this term promises to be exceptional in its social and legal significance.

Three cases involving particularly divisive issues–the Affordable Care Act, the death penalty, and marriage equality–are likely to dominate the headlines in late June. But there also likely will be very important decisions this term in areas such as the First Amendment, criminal procedure, and federal court jurisdiction.

Affordable Care Act

In King v. Burwell, the Supreme Court will consider whether individuals who purchase health insurance from exchanges created by the federal government under the Affordable Care Act can receive tax credits. The ACA, often referred to as Obamacare, sought to make sure that virtually all Americans have health care coverage. To provide coverage for the poorest in society, the act requires that states provide Medicaid coverage to those within 133 percent of the federal poverty level.

For those above this level, but likely unable to afford insurance, the ACA provides that they will receive a tax credit from the federal government if they purchase insurance from a state-established exchange. The act requires states to create health insurance exchanges; if they don’t, the federal government is required to do so. To this point, only 16 states have created exchanges and the federal government has done this in the other 34 states.

The Internal Revenue Service ruled that those who qualify and who purchase insurance on a federally created exchange may receive these tax credits. The 4th U.S. Circuit Court of Appeals agreed, saying that the clear purpose of Congress was to use tax credits to make health care affordable. But the challengers argue to the Supreme Court that the statutory language is clear: tax credits are available only to those who purchase health insurance on a state-established exchange.

If the court reverses the 4th Circuit and denies tax credits to those who purchase insurance on federally created exchanges, millions of people no longer will be able to afford health insurance. Removing them from the insurance risk pools could have a significant effect on the entire program created by the Affordable Care Act.

Death penalty

On Jan. 23, the Supreme Court granted certiorari in Glossip v. Gross, as to whether the drugs used for lethal injection constitute cruel and unusual punishment in violation of the Eighth Amendment. A week earlier, in Warner v. Gross, four justices–Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan–would have issued a stay of an execution in Oklahoma to allow consideration of whether the drugs used risked significant pain and thus violated the Constitution. But the majority allowed the execution to go forward and some witnesses said that they heard Charles Warner, convicted of rape and murder, complain of a strong burning sensation.

In Glossip, three others facing death in Oklahoma are arguing that the three-drug execution protocol violates the Eighth Amendment because the first drug, midazolam, cannot reliably put the inmate into deep unconsciousness and the inmate may therefore suffer great pain while dying from the other two drugs’ effects. In Baze v. Rees, the court held in 2008 that lethal-drug executions do not violate the Constitution unless there is a clear risk of severe pain when compared to what would result by using an alternative protocol. In Glossip, the court will consider how this applies to the new protocol, especially after some much publicized instances of botched executions in which those put to death suffered greatly.

Marriage equality

To no one’s surprise, the Supreme Court granted certiorari Jan. 16 to review the 6th U.S. Circuit Court of Appeal’s decision in DeBoer v. Snyder, which upheld laws in Kentucky, Michigan, Ohio, and Tennessee that prohibit same-sex marriages. Previously, the 4th, 7th, 9th, and 10th Circuits had struck down state laws prohibiting marriage equality.

The Supreme Court granted review to two questions: Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? And, does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

In June 2013, in United States v. Windsor, the Supreme Court, by a 5-4 margin, declared unconstitutional Section 3 of the federal Defense of Marriage Act, which provided that for purposes of federal law marriage had to be between a man and a woman. Justice Anthony M. Kennedy wrote the opinion for the court and concluded that the federal law served no legitimate purpose. In DeBoer, the court will be asked to recognize heightened scrutiny for sexual orientation discrimination and, at the very least, to hold that laws denying marriage equality to gays and lesbians fail to serve a legitimate government purpose.

As of now, gay and lesbian couples can marry in 36 states, mostly because of federal court decisions since Windsor. The question is whether the court will take the right away in many of these states or extend it to the rest of the country.

First Amendment

There are several First Amendment cases that are likely to be quite significant. In Elonis v. United States, the court will decide what speech constitutes a “true threat,” thus making it unprotected by the First Amendment. The court long has held that true threats can be constitutionally punished, but it never has clarified how it is to be determined if the speech meets this standard. Is it an objective standard, of whether the reasonable person would feel that the speech is threatening; or, must the government prove that the defendant subjectively intended to threaten others?

In Reed v. Town of Gilbert, the court will consider the ability of local governments to constitutionally regulate signs, including their size and the length of time they can be displayed. In Williams-Yulee v. Florida State Bar, the court will decide whether states with elected judges may prohibit candidates for judicial office from personally soliciting funds. In Walker v. Texas Division, Son of Confederate Veterans, the issue is whether license plates are government speech so that the state may limit the messages that can be displayed on a plate.

Confrontation Clause

The most significant case concerning criminal law could be Ohio v. Clark, where the court will again consider what evidence is considered testimonial for purposes of the Confrontation Clause of the Sixth Amendment. In Crawford v. Washington, the court held in 2004 that prosecutors may not use testimonial statements of unavailable witnesses even if they are reliable. Courts have struggled for more than a decade over how to determine testimonial evidence.

In Ohio v. Clark, a pre-school teacher was told by a 3-year-old that his bruises were the result of his being hit by his mother’s boy friend. Ohio law requires that teachers report such information to the police. Darius Clark was convicted of the abuse, but the appellate courts in Ohio overturned this on the grounds that his rights under the Confrontation Clause had been violated. The Supreme Court has granted review over two questions: Whether an individual’s obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and, whether a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as testimonial statements subject to the Confrontation Clause.

Federal jurisdiction

In Stern v. Marshall, the Supreme Court held in 2011 that bankruptcy courts can not issue final judgments over state law claims unless they stem from the bankruptcy itself. The crucial question is whether a bankruptcy court may do so with the consent of the parties. If consent is sufficient, Stern is a relatively unimportant case because the parties will usually agree to this. But if consent is not allowed, then Stern has huge implications for the work of bankruptcy courts, magistrate judges, federal district courts, and perhaps even arbiters.

The circuits are split on this question and last term the court had the issue before it in Executive Benefits v. Arkison, only to decide the case on narrow grounds without reaching the issue of the permissibility of consent. In Wellness International Network v. Shariff, the court once more has before it the question of whether bankruptcy judges, who do not have life tenure, can issue final judgments over state law claims with the consent of the parties.

All of these cases are expected to be decided by the end of June. And next term already promises more of the same, as the court is expected to have high profile cases concerning abortion rights, affirmative action, and voting rights on the docket for October Term 2015. It is an amazing time in the United States Supreme Court.

Erwin Chemerinsky, Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment 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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