We’re now in late September, so you know what that means. The first Monday in October, which starts the new Term of the Supreme Court of the United States, is just around the corner.
With that in mind, the Heritage Foundation wrangled a high-powered pair of panelists to offer their thoughts on October Term 2011:
- Paul Clement, former U.S. Solicitor General, now a partner at Bancroft PLLC; and
- Kannon Shanmugam, former assistant to the Solicitor General, now a partner at Williams & Connolly.
What did Messrs. Clement and Shanmugam have to say about the upcoming SCOTUS Term?
Before they started discussing the docket, Paul Clement and Kannon Shanmugam were introduced by moderator Todd Gaziano, director of the Heritage Foundation’s Center for Legal & Judicial Studies. Gaziano — a graduate of the University of Chicago Law School, a former law clerk to judicial diva Edith Jones (5th Cir.), and a former lawyer in the Justice Department’s elite Office of Legal Counsel — has a pretty glittering résumé.
But it would be tough to top the professional pedigrees of Clement and Shanmugam. In his introduction, Gaziano noted the similarities in their professional backgrounds:
- both graduated summa cum laude from distinguished undergraduate institutions (Georgetown for Clement and Harvard for Shanmugam);
- both then pursued graduate study at leading English universities (Cambridge for Clement and Oxford for Shanmugam);
- both graduated magna cum laude from Harvard Law School;
- both clerked on the Supreme Court for Justice Antonin Scalia; and
- both worked in the Solicitor General’s Office (Clement as SG and Shanmugam as assistant to the SG).
(Whew! Allow me to pause here; I’m a little winded from that résumé recitation.)
Shanmugam began the discussion by noting that preview events like this one can be much more difficult than Term recap events (like the ones that the Heritage Foundation and the Federalist Society sponsor each year). Even if the “Term in Review” events require presenters to review hundreds of pages of opinions, the preview events are difficult to the extent that they call for prediction. Given the unpredictability of
Justice Kennedy the Court, prognosticators can end up with egg on their faces, not unlike weather forecasters.
For the upcoming Term, the Court has about 50 cases on the docket so far. In recent years, SCOTUS has been hearing around 75 cases a Term, so there’s still room for more cases to be granted.
Shanmugam noted, quite candidly, that October Term 2010 was not a very noteworthy Term. But October Term 2011, he suggested, “has the potential to be as remarkable as the last Term was unremarkable.”
What on the OT 2011 docket is getting everyone all hot and bothered? Shanmugam and Clement cited a number of juicy cases already on the oral argument calendar (case name links go to the ever-helpful SCOTUSblog):
- FCC v. Fox Television Stations, Inc.: This is the First Amendment “fleeting expletives” case. In a prior decision, SCOTUS upheld the FCC’s regulatory authority in this area, reversing the Second Circuit. This latest stage of the litigation places the constitutional issue front and center.
- United States v. Jones: Better known as the “GPS case,” this matter calls upon the Court to decide whether it’s constitutional under the Fourth Amendment for the police to place a GPS tracking device on a car, without a warrant, and monitor the car’s movements over an extended period of time. (The D.C. Circuit said no.)
- M.B.Z. v. Clinton: This case involves a statute in which Congress directed the State Department to record the birthplace of U.S. citizens born in Jerusalem as “Israel” on U.S. passports. It raises important issues as to (1) the scope of the “political question” doctrine and (2) separation of powers.
Plus several other hot-button issues that are waiting in the wings, for this Term or future ones:
- Affirmative action: Shanmugam mentioned cases percolating in the Fifth Circuit, where the court upheld an affirmative action program over dissents from such notable judges as Edith Jones and Emilio Garza, and the Sixth Circuit, involving post-Grutter/Gratz developments in Michigan. Shanmugam suggested that the Fifth Circuit case could conceivably be heard by SCOTUS in this Term and that the Sixth Circuit case could end up in SCOTUS for OT 2012.
- Same-sex marriage: This will probably get to the Court as well, according to Shanmugam, but it’s not clear when. The Ninth Circuit litigation is in a holding pattern due to the certification of a standing-related question to the California Supreme Court. It’s unlikely that gay marriage will hit the Supreme Court anytime soon.
- Various challenges to DOMA: One such challenge is now pending in the First Circuit. This issue could eventually end up before the Supreme Court.
And finally, of course, there’s the huge issue of Obamacare (which will have implications for Election 2012). Paul Clement prevailed (in part) in a challenge to the controversial health care law in the Eleventh Circuit, and the government just filed a cert petition in that case.
Clement said he thinks it’s likely that the Court will consider health care reform in this Term, but what the Court will consider remains an open question. As followers of the litigation well know, there are several complex issues involved, including constitutionality of the individual mandate, severability of the mandate from other parts of the law, and questions of standing. As Clement put it, “You have almost a Term’s worth of constitutional issues that are raised by the health care cases.”
This is just a summary of a very interesting and wide-ranging discussion by two top Supreme Court advocates. Video and audio of the full panel will be posted on the Heritage website later this week, so feel free to check back later!
Supreme Court Preview: 2011 Term [The Heritage Foundation]
Justice Department Asks the Supreme Court to Review the Affordable Care Act [The Justice Blog]