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Immigration, Affirmative Action on New High Court Docket; Health Reform Awaited

October 3, 2011 at 12:00 AM EDT
The U.S. Supreme Court returned to work Monday and the court has a docket full of controversial cases on topics ranging from obscenity to strip searches to warrantless surveillance. Gwen Ifill previews the new term with The National Law Journal's Marcia Coyle and Scotusblog.com's Tom Goldstein.
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GWEN IFILL: It’s the first Monday in October. And you know what that means. The U.S. Supreme Court is back at work. The court has a docket full of controversial cases on topics ranging from obscenity to strip searches to warrantless surveillance.

Then there are the cases that haven’t officially reached the court yet, including a challenge to the constitutionality of the federal health care law.

Joining us to preview the term: NewsHour regular Marcia Coyle of The National Law Journal and Tom Goldstein, founder of the website SCOTUSblog.com.

Let’s first talk, Marcia, about the big case, the big elephant in the room that’s not actually on the docket. And that’s the health care law. How many states have brought this challenge to the court?

MARCIA COYLE, The National Law Journal: Well, I would say a total of 27 now — 26 states filed one lawsuit. Virginia filed its own lawsuit.

There are many lawsuits around the country, but, right now, the Supreme Court has, I think, maybe five petitions.

Does that sound about right, Tom?

Five petitions asking the court to get involved. And the Obama administration now has also asked the Supreme Court to review the legal questions. It’s probably the only thing that all the parties agree on at this point, is that the Supreme Court should get involved.

GWEN IFILL: So, when both sides agree that the Supreme Court should get involved sooner, rather than later, does that make it more likely to happen, Tom?

TOM GOLDSTEIN, SCOTUSblog.com: It does make it more likely. And, here, it’s all about certain.

A federal law was struck down as constitutional. The federal courts of appeals disagree. It is absolutely on the fast track.

GWEN IFILL: What other things are on — not quite on the docket yet that everybody is waiting for them to arrive?

TOM GOLDSTEIN: Well, the main event comes after health care gets granted.

We have Arizona’s very famous immigration law and the question of the states’ role in enforcing immigration policy. We have a critical case about affirmative action in higher education. This case is really important because it might be another place where the Roberts’ court takes a step to the right and back from earlier decisions, giving some room…

GWEN IFILL: University of Texas, right?

TOM GOLDSTEIN: Exactly right, and their program, where about 20 percent of the students have race as part of the consideration.

There’s a major religion case that is coming up that will tell us a little bit more about the role that the government can have. This is where the state of Utah is involved in a program of putting crosses by the side of a highway where officers die. There are a number of really hot-button social issues that are waiting in the wings.

GWEN IFILL: And these are — waiting in the wings means it may not necessarily get argued this year, but if the court takes it up, it’s significant in and of itself?

MARCIA COYLE: That’s true, Gwen.

I mean, the affirmative action case, there’s a petition that’s already been filed. So we will know this term probably if the court is going to take it or not. And the Arizona immigration case, the governor of Arizona has already filed a petition with the court. And we may well know this term yet if the court will take it.

GWEN IFILL: OK. Tom, let’s talk about some of the things actually on the docket. One of them is a case involving strip clubs — strip searches, not strip clubs — strip searches for people who have been — for this individual who was arrested on a minor offense.

You’re involved in this case, actually.

TOM GOLDSTEIN: Right, so I’m biased a little bit. I represent the defendant.

But there’s a battle of two important considerations here. These are people who have been arrested for minor offenses. There’s no real reason to believe they’re particularly carrying contraband, but they’re strip-searched. On the other hand, the jails have a concern about the smuggling into the facility. And the Supreme Court is going to have to deal for that tug-of-war.

GWEN IFILL: Now, in my defense, I said strip clubs because I was thinking about the nudity case which is also before the court, right?

MARCIA COYLE: Yes, compliments of FOX Television and ABC. The court is going to take a look at the Federal Communications Commission’s regulations that govern fleeting expletives and nudity that involves Cher and Nicole Richie who, during an awards — two separate awards shows used expletives, and also a segment of the now-defunct “NYPD Blue,” in which a woman’s naked buttocks was shown.

GWEN IFILL: Haven’t we argued this before?

MARCIA COYLE: This case was before the Supreme Court before — on the fleeting expletives issue, but it didn’t deal directly with whether the regulations violated the First Amendment.

GWEN IFILL: OK.

There’s another case which is coming which also feels like it was taken from the entertainment world. And this is about GPS searches. There was a movie called “Enemy of the State” where you could follow a guy around based on something you attached to his car.

It turns out, now in this age of GPS, this is a real issue.

TOM GOLDSTEIN: That’s right. It’s happening today. The Supreme Court is going to have to decide, if the police want to attach a GPS tracker to your car, do they have to go get a judge’s permission in order to use that to know where you’re driving around?

And so that’s important in its own right, but it also is another step forward in the court’s trying to deal with new technologies and privacy and where to draw the line.

GWEN IFILL: It seems like we’re hitting every possible hot button in this court.

Eyewitness testimony, the reliability of eyewitness testimony, something which was a major question in this Troy Davis case we all lived through a couple weeks ago.

MARCIA COYLE: I don’t think the court is going to get right on point in terms of the reliability of eyewitness testimony.

This comes up in a different sort of fact pattern involving circumstances in which the police may have suggested that a certain person committed the crime, suggested it to the eye — person who is an eyewitness. But it is the first time in many, many years that the court is taking a look at how eyewitness testimony is viewed.

GWEN IFILL: And, of course, there is not a very amazing court session without religion involved in this. In this case, there’s a case about whether a religious school can, what, fire somebody who doesn’t share their religion?

TOM GOLDSTEIN: That’s right. The question is whether religious organizations, might be a school, might be a church, some other — something affiliated with a religion, the extent to which they’re subject to the federal civil rights laws, the laws that say you won’t discriminate on the basis of race, gender or religion.

Or does the application of that law, saying to this school in this instance you can’t fire someone or engage in retaliation against them, does that involve the government too much in religion? Where do you draw the line, where it’s actually the government dictating to the religion what its own religious beliefs are? On the other hand, how do we protect people from discrimination when they work in those institutions?

GWEN IFILL: When we look at what the court has decided to take and what they haven’t yet decided to take, what does that tell us about this reordered court? We now have a fairly settled group of justices. Nobody, we think, is resigning. There are no new justices, I think, for the first time since Justice Roberts took over.

So, what does that tell us? Anything?

MARCIA COYLE: Well, I think, instead of looking for big themes right now, I think what we’re seeing with this court is a continuation of interest in certain areas of the law, for example, the First Amendment.

We have seen some really interesting cases that the court has handled, the violent video games, the protests at military funerals. And now again, we have a First Amendment case involving the FCC and the fleeting expletives, a continuation of their interest in the Fourth Amendment, as we see with the GPS case and the strip searches.

One thing, Gwen, that we don’t see yet on the docket is a big business case. Last term, there were several huge business cases. It’s still early. The court can add cases to the docket generally up until about mid-January, add it for arguments in the current term. So we will see what happens there.

GWEN IFILL: Is the lack of a business case mean that this is more likely to be kind of a political court? The health care case could come down in the middle of an election year. A lot of these other cases touch on political issues.

TOM GOLDSTEIN: That’s what we’re going to look back on this term as.

If they take not only health care, but immigration, if they get involved in affirmative action and religion, this is going to be remembered as an incredibly ideological term, because, inevitably, those cases are going to be decided by very narrow margins between conservatives and liberals.

GWEN IFILL: Is it fair to say this is how the Roberts’ case will be defined, a year like this?

MARCIA COYLE: It might be. There was a similar year, 2006-’07, when the court had race and abortion and religion on the docket. And it was a very divisive term for the court. There were a lot of unhappy justices that term.

GWEN IFILL: OK.

Marcia Coyle, Tom Goldstein, we will be riding it through with both of you. Thank you.

MARCIA COYLE: Thank you.

TOM GOLDSTEIN: Thank you.