WASHINGTON — The nine justices of the Supreme Court, who serve without seeking election, soon will have to decide whether to insert themselves into the center of the presidential campaign next year.
The high court began its new term Monday, and President Barack Obama's health care overhaul, which affects almost everyone in the country, is squarely in its sights.
The Obama administration's request last week that the justices resolve whether the health care law is constitutional makes it more likely than not that they will deliver their verdict by June 2012, just as Obama and his Republican opponent charge toward the fall campaign.
Already, GOP presidential contenders use virtually every debate and speech to assail Obama's major domestic accomplishment, which aims to extend health insurance to more than 30 million people now without coverage.
If as now expected the justices agree to review the law's constitutionality, those deliberations would certainly define the court's coming term. Their decision could rank as the court's most significant since the December 2000 ruling that effectively sealed George W. Bush's election as president.
Health care is only one of several issues that the court could hear that would make for a "fantastic Supreme Court term," said former acting Solicitor General Neal Katyal, now in private practice at the Hogan Lovells law firm.
Other high-profile cases on the horizon concern immigration and affirmative action, hot-button issues at any time and only more so in an election year.
Less likely, though still with a chance to make it to the court this year are cases involving gay marriage and the landmark Voting Rights Act that some Southern states argue has outlived its usefulness.
Decisions about whether to even to consider health care, affirmative action and immigration are a month off or more.
In the meantime, the justices will take up a First Amendment case looking at the regulation of television broadcasts as well as a couple of appeals involving the Fourth Amendment protections against unreasonable searches and seizures. One of those cases is a digital age dispute over the government's power to track a suspect's movement using a GPS device, without first getting a judge's approval.
Among the cases involving criminal defendants is one from an inmate awaiting execution in Alabama who missed a deadline to appeal his death sentence because the big-firm lawyers in New York who had been handling his case for free moved on to new jobs and letters from the court clerk sat in the firm's mailroom before being returned to sender.
The case of Cory Maples, convicted 15 years ago in the shooting deaths of two men, presents the question: "How much poor representation can one criminal defendant receive" before it violates the Constitution? said University of Maryland law professor Sherrilyn Ifill.
A lawsuit over a baby's passport also will be before the court in a case that has a taste of Middle East politics and a fight between the president and Congress.
Jerusalem-born Menachem Zivotofsky's parents want his U.S. passport to list his birthplace as Israel even though U.S. policy does not recognize the once-divided city as belonging to Israel. Congress, though, passed a law in 2002 giving Jerusalem-born U.S. citizens that option. Presidents of both parties have directed the State Department to ignore the law, saying it wrongly interferes with the president's powers.
Just over a third of the 48 cases the court has so far agreed to hear are of interest to the business sector, according to the U.S. Chamber of Commerce. But that list includes few big-ticket cases, unlike last term's victories for business interests in major cases seeking to limit consumer and employee access to the courts. Foremost among those was the decision to throw out a class-action lawsuit on behalf of up to 1.6 million female Wal-Mart employees.
The absence of high-profile business cases comes as something of a relief to Allison Zieve, the general counsel for Public Citizen, a not-for-profit group that calls itself a countervailing force to corporate power.
"The court seems more open to the plaintiffs' side in smaller civil rights cases. Smaller cases may be better for consumers," Zieve said.
The nation's major broadcasters are focused on one case that has the potential to reshape regulation of the airwaves. The federal appeals court in New York threw out the Federal Communications Commission's rules that apply when children are likely to be watching. That includes a ban on the use of curse words as well as fines against broadcasters who showed a woman's nude buttocks on a 2003 episode of ABC's "NYPD Blue."
The television networks argue that the policy is inconsistently applied and outdated, taking in only broadcast television and leaving unregulated the same content if transmitted on cable TV or over the Internet.
"Singling out broadcast television doesn't make much more sense anymore," said Jonathan Cohn, a former Justice Department official. Cohn's law firm, Sidley, Austin, represents Fox Television Stations in the case. The administration is defending the FCC's indecency policy.
In an earlier version of the same case, the justices and lawyers discussed the policy for an hour without uttering any of the offending words.
The court is beginning its second year with the same complement of justices after consecutive terms of welcoming new members, Sonia Sotomayor and then Elena Kagan.
Those two justices, on the liberal-leaning side of the court, voted together on almost every case last year. The same was true for Chief Justice John Roberts and Justice Samuel Alito on the other side of the ideological spectrum.
Last year, Kagan sat out seven of the 12 cases the court heard in its first month because of her prior work as the Obama administration's top Supreme Court lawyer. This October, she will be absent from just one case, involving Congress' power to give copyright protection to works by foreign composers, directors and other artists, among them Sergei Prokofiev's "Peter and the Wolf," that long have been in the public domain.
There have been various calls for Kagan, as well as for Justices Antonin Scalia and Clarence Thomas, to sit out the health care case, but no indication that any of those justices intends to do so. Critics cite Kagan's former administration position, Scalia's address to the U.S. House tea party caucus, which opposes the law, and the public advocacy against the law by Thomas' wife, Ginny.
Also unlikely in the next year, with the presidential election imminent, is a retirement, At 78, Justice Ruth Bader Ginsburg is the oldest justice, but has said repeatedly she's not going anywhere anytime soon.
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THE PATH TO THE SUPREME COURT, by HuffPost's Mike Sacks:
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Round 1: The District Courts Divide
U.S. District Judge George Caram Steeh, a Clinton appointee sitting in the Eastern District of Michigan, released the first major Affordable Care Act decision in October 2010. In <a href="http://www.mied.uscourts.gov/news/docs/09714485866.pdf" target="_hplink"><em>Thomas More Law Center v. Obama</em></a>, Steeh sided with the government to hold the law constitutional.
"The decision whether to purchase insurance or to attempt to pay for health care out of pocket is plainly economic," Steeh wrote. "These decisions, viewed in the aggregate, have clear and direct impacts on health care providers, taxpayers and the insured population, who ultimately pay for the care provided to those without insurance."
Round 1: The District Courts Divide
At the end of November 2010, another Clinton appointee, Judge Norman Moon of the Western District of Virginia, agreed with Judge Steeh. In <a href="http://www.vawd.uscourts.gov/OPINIONS/MOON/LIBERTYUNIVERSITYVGEITHNER.PDF" target="_hplink"><em>Liberty University v. Geithner</em></a>, Moon wrote that "by choosing to forgo insurance, plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now, through the purchase of insurance."
Round 1: The District Courts Divide
In December 2010, however, Judge Henry Hudson, a George W. Bush appointee sitting in the Eastern District of Virginia, ruled otherwise. In <a href="http://media.washingtonpost.com/wp-srv/metro/docs/Hudson_ruling.pdf?hpid=topnews" target="_hplink"><em>Virginia v. Sebelius</em></a>, Hudson struck down the individual mandate, writing that "an individual's personal decision to purchase -- or decline to purchase -- health insurance from a private provider is beyond the historical reach of the commerce clause." Importantly, Hudson also held that the individual mandate is severable from the rest of the Affordable Care Act, which means a court can strike it down while allowing the law's remaining provisions to stand.
Round 1: The District Courts Divide
Finally in January 2011, Judge Roger Vinson, a Reagan appointee in the Northern District of Florida, evened the score but upped the ante. In <a href="http://www.scribd.com/doc/47905937/Health-Care-Ruling-by-Judge-Vinson" target="_hplink"><em>Florida v. Department of Health and Human Services</em></a>, not only did he strike down the individual mandate as exceeding Congress' power under the commerce clause, but he also took the whole health care law down with it.
"The act," Vinson wrote, "like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker."
Round 2: The Appeals Courts Split
In June 2011, the U.S. Court of Appeals for the 6th Circuit <a href="http://www.ca6.uscourts.gov/opinions.pdf/11a0168p-06.pdf" target="_hplink">upheld, by a 2-1 vote</a>, Judge Steeh's decision in <em>Thomas More Law Center</em>. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, was the first judge chosen by a Republican president to reject the commerce clause challenge, writing that "no one must 'pile inference upon inference' to recognize that the national regulation of a $2.5 trillion industry, much of it financed through" national health insurance companies, "is economic in nature." He joined Judge Boyce Martin, a Jimmy Carter appointee, in the majority, while Judge James L. Graham, a Reagan appointee, wrote a vigorous dissent.
In August, the 11th Circuit, reviewing <em>Florida v. HHS</em>, <a href="http://www.uscourts.gov/uscourts/courts/ca11/201111021.pdf" target="_hplink">produced a near mirror-image result</a>. Judge Frank Hull, a Clinton appointee, joined the Reagan-appointed Judge Joel Dubina to affirm District Judge Vinson's decision to strike down the individual mandate. Judge Stanley Marcus, a Clinton appointee, dissented, quoting heavily from Sutton's 6th Circuit concurring opinion. All three 11th Circuit judges found the mandate severable from the rest of the Affordable Care Act, reversing District Judge Hudson's decision to deep-six the entire law.
Both appeals courts unanimously rejected the government's taxing power argument, insisting that if Congress had thought the penalty for not buying insurance was a tax, it would have explicitly called it a tax. On this issue, a third appeals court created another circuit split.
Round 2: The Appeals Courts Split
In September 2011, the 4th Circuit dismissed two challenges to the health care law, finding that the plaintiffs did not have standing to bring their lawsuits. The panel did find that <a href="http://pacer.ca4.uscourts.gov/opinion.pdf/102347.P.pdf" target="_hplink">the penalty for not buying insurance was a tax</a> -- a good sign for the government's defense of the law. But rather than hold that the individual mandate was a valid exercise of Congress' taxing power, Judges Diana Gribbon Motz, a Clinton appointee, and James Wynn, an Obama appointee, said that another federal law, the Anti-Injunction Act, prevented the plaintiffs from challenging the mandate until they actually had to pay the tax -- which cannot happen before the provision goes into effect in 2014.
The third judge, Obama appointee Andre Davis, said he wouldn't have dismissed the lawsuits and would have upheld the individual mandate based primarily on commerce clause ground.
Regardless of the methodology, the Obama administration was now winning 2-1 in the courts of appeals against the Affordable Care Act's challengers.
Final Round: The Supreme Court Takes The Case
The Supreme Court is most likely to choose to hear a case for one of three reasons: The constitutionality of a federal law hangs in the balance, the circuit courts disagree on the same issue, or the solicitor general advises the Court to take the case. Cases that fulfill just one of these considerations stand a good chance of reaching the justices. The health care cases had all three.
In November 2011, the justices <a href="http://www.huffingtonpost.com/2011/11/14/obama-health-care-law_n_1092387.html" target="_hplink">agreed to review</a> the 11th Circuit's decision. To signal how seriously it took the challenges, the Court soon thereafter scheduled six hours of oral argument to take place from March 26 to 28, 2012. Normally, even for blockbuster cases, the justices only allot one hour for oral argument.
Final Round: The Supreme Court Hears Oral Argument
All eyes turned to the Supreme Court in late March 2012 when the justices heard oral argument and gave their first public hints of where they stood on the Affordable Care Act's constitutionality.
On the first day, March 26, liberal and conservative justices alike <a href="http://www.huffingtonpost.com/2012/03/26/health-care-law-supreme-court_n_1373455.html" target="_hplink">showed little interest</a> in following the 4th Circuit's decision to throw out the challenge to the health care law on a technicality before ever reaching the constitutional merits of the individual mandate.
That display of unity disappeared on Tuesday, March 27, as the Court took on the <a href="http://www.huffingtonpost.com/2012/03/27/supreme-court-health-care_n_1373469.html" target="_hplink">main event</a>: two hours of argument over the mandate. The Court's four Democratic appointees all appeared to find the mandate well within Congress' powers to regulate interstate commerce, as the 6th Circuit had held; the Court's five Republican appointees, in concert with the 11th Circuit, seemed to think otherwise. Only in the final moments did swing vote Justice Anthony Kennedy soften his tone by musing aloud whether the health insurance market is different enough, after all, to allow a mandate to prevent cost-shifting where it might not be permissible in another market. "[M]ost questions in life are matters of degree," he said.
On Wednesday, March 28, the justices <a href="http://www.huffingtonpost.com/2012/03/28/health-care-case-supreme-court-john-roberts_n_1386692.html" target="_hplink">considered</a> what other parts of the Affordable Care Act would fall if they found the mandate unconstitutional. No majority emerged. Several justices agreed with the challengers that the whole law must fall. Several others agreed with the Obama administration that two key (and popular) provisions could not survive without the mandate. Still others indicated some sympathy for severing the mandate alone and allowing the rest of the law to stand.
A decision is expected by the end of June.
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MARK SHERMAN 10/03/11 10:34 AM ET Associated Press