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Supreme Court Lines up Potentially ‘Explosive’ Election Year Docket

December 13, 2011 at 12:00 AM EDT
Supreme Court justices agreed Monday to take up a tough immigration law from Arizona that would, among other things, punish illegal immigrants who apply for work in the state. Gwen Ifill discuses this and other controversial cases with the National Law Journal's Marcia Coyle and author Jeff Shesol.
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GWEN IFILL: Finally tonight, how the Supreme Court could reshape the political year.

Tackling separate controversial cases, the court will rule on the limits of government power in three branches of government: judicial, legislative and executive. Just yesterday, the justices agreed to take up a tough immigration law from Arizona that would, among other things, punish illegal immigrants who apply for or work in Arizona, and require law enforcement to detain anyone suspected of being in the state unlawfully.

The court has also agreed to consider whether federal judges acted properly when they redrafted legislative and congressional district lines in Texas. And in what could turn out to be the year’s most consequential case, the court will decide whether a new federal law that requires individuals to possess health care coverage is constitutional.

The high court is expected to hand down all three decisions by this summer.

Joining us to assess the court’s big year are NewsHour regular Marcia Coyle of The National Law Journal, and Jeff Shesol, author of the book “Supreme Power: Franklin Roosevelt vs. the Supreme Court.”

Marcia, starting with you, how are these cases alike and how are they different?

MARCIA COYLE, The National Law Journal: Well, they’re different because they involve either different laws or different provisions within the Constitution.

They’re alike because they all have to do, if you step back from them, with the proper role of the different branches of government, as well as the relationship between the federal government and state governments. If you boil it down simply, they all have to do with power, who should exercise it properly under the Constitution.

GWEN IFILL: In your experience covering the court, how unusual is it for all three branches of government to get Supreme Court review like this?

MARCIA COYLE: Well, I don’t think it’s unusual at all.

But I think what’s unusual about these three cases is the potential political ramifications they may have for the upcoming election, as well as issues that people really care about and could have an impact on individuals’ lives.

GWEN IFILL: Jeff Shesol, let’s talk about that. How big a political impact does the almost accidental collision of these three cases have on this court? And how unusual is that?

JEFF SHESOL, “Supreme Power: Franklin Roosevelt vs. the Supreme Court”: Well, I think each one of these cases has an impact politically.

If you take each one of these issues, they all have a tendency to be explosive, particularly in an election year. And when you line them up like this and you get by June a series of decisions that may add up to one big message from the Supreme Court, there’s the potential to really amplify the debate that we’re already having in this budding election year about the proper role of government.

It’s a debate we always have in American life. But there are periods of time when that debate really flares up. And I think, in the years since the economic crisis, since 2008, we have been in a kind of rolling argument about this. And it’s certainly set to be ratcheted up a few notches in the election year.

GWEN IFILL: Is there any way to compare this to past election years where the court has had its impact?

JEFF SHESOL: Absolutely. I think that the Supreme Court is often an election issue, the balance of power on the court is almost always at stake in a presidential election. A new president or a continuing president usually has the chance to appoint somebody.

So there’s that. But I think you really do have to go all the way back to 1936, when Franklin Roosevelt was facing his first re-election fight, to find a Supreme Court docket in an election year that was as packed with political dynamite as this one.

GWEN IFILL: Marcia, in order for something to get to the court, as we talk about on this program all the time, there has to be some disagreement in lower courts.

In the case of the redistricting case in Texas, how did it end up coming to the court?

MARCIA COYLE: The redistricting case is very complicated procedurally, because it’s playing out right now in three different courts.

It came to the Supreme Court because the state of Texas challenged a federal court in San Antonio, Texas, which had drafted what is known as an interim redistricting plan. The Texas legislature drafted a redistricting plan after the 2010 census.

Texas is what is known as a covered state under the Voting Rights Act because it had past discrimination against voters. As a covered state, its redistricting plans have to be approved either by the Department of Justice or a federal district court in Washington. It has not yet gotten clearance.

The Department of Justice has raised questions about some of the districts that have been drafted. A whole raft of organizations, civil rights groups, have challenged the redistricting plan in a federal court in San Antonio, Texas.

Because this has dragged on and has Texas not gotten pre-clearance or a final decision, the court in San Antonio felt it needed to draft an interim plan, because the primary was coming up, filing deadlines were coming up. Texas said that court didn’t apply the proper standard in drafting its plan and appealed to the Supreme Court.

GWEN IFILL: And the Arizona case, this is something in which the government — the governor of Arizona wants the Supreme Court to provide some kind of clarity.

JEFF SHESOL: Absolutely.

There’s a lot of energy in the Republican Party right now to bring problems, as we define them, back to the states and to empower the states to handle these problems. There’s a strong belief on the right that that’s what the Constitution says and that the federal government has been overreaching.

And so you have a great desire not only on the part of Arizona, but on the part of a number of states, to take over essentially immigration enforcement, enforcement against illegal immigration. And, so, yes, Arizona wants clarity, but they want clarity in a particular direction. There’s a very clear outcome they’re aiming at.

GWEN IFILL: And a lot of states want clarity on the health care mandate as well.

How is it that all these kinds of challenges end up at the court at once? Anybody watching this would think, innocently, that there is a design behind this. But that’s not the way it works, is it?

(LAUGHTER)

MARCIA COYLE: No, it really isn’t.

The cases come to the court based on how quickly the lower courts act, how quickly a lawsuit is filed and then the lower courts act. Everyone knew, in a sense, that these three issues would be challenged, the law, as well as the redistricting plans and immigration.

But it’s purely coincidence. The court has discretion on what it takes. With the health care law, it was a no-brainer that they were going to take it, because a lower federal appellate court struck down an act of Congress. The solicitor general of the United States, who is obligated to defend acts of Congress, went to the Supreme Court. It’s classic for the court to take a case like that.

With Arizona, it had some discretion. The Obama administration said, wait, there are lots of these challenges pending in the lower courts. Wait until several federal appellate courts have dealt with it, and then you can look at the arguments and consider it. But the court decided to take it.

And Texas, it was a little bit ahead of the game because the lower federal courts not yet ruled on the redistricting plan. However, the primary is coming up. The filing deadlines are there.

GWEN IFILL: Right.

MARCIA COYLE: So, obviously, the court felt it had to move.

GWEN IFILL: And there’s an affirmative action case percolating out there somewhere as well.

MARCIA COYLE: There is. In fact, it’s right on — the court has conferenced on it, and we’re waiting to see if it’s going to take it. It involves the University of Texas.

GWEN IFILL: Jeff, how fair is it for non-legal observers to look at this and think that it’s perfectly natural for the court to be — to involve itself in political matters?

JEFF SHESOL: Well, these are political matters, but they’re also constitutional matters. And I don’t think anyone is arguing that there are not legitimate and big constitutional questions at stake in these cases.

I think that there are always folks who imagine that the court wants to stay out of these matters, doesn’t want to become an issue in a campaign year, doesn’t want to become an issue ever. And certainly that’s true. The court is not eager to become an issue.

But I think what three cases remind us is that this court, and particularly as constituted by its present members, is not at all shy about stepping right into some of the biggest debates we’re having in this country.

GWEN IFILL: Jeff Shesol, author of “Supreme Power: Franklin Roosevelt vs. the Supreme Court,” and Marcia Coyle, our regular, NewsHour regular, from National Law Journal, thank you both very much.

MARCIA COYLE: Pleasure.