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Hot-button cases ahead for Supreme Court

| Monday, Sept. 3, 2012, 11:25 p.m.

On the heels of one of its highest-profile terms in recent years, the Supreme Court faces another politically charged session less than a month before the presidential election.

In October, the court will confront a major challenge to affirmative action policies and another test of the boundaries between state and federal authority over immigration law. It also could decide whether gay marriage bans violate the Constitution.

Retired Justice John Paul Stevens, the court's third-longest-serving member, warns against trying to predict how the five Republican and four Democratic appointees will rule.

“It's dangerous to predict what may happen in the next case on the basis of prior cases that are not exactly like the one that is coming up. You just have to wait and see,” Stevens, who retired in 2010, told the Trib last week.

These cases will be reviewed just months after Chief Justice John Roberts' court upheld the health insurance mandate, struck down much of Arizona's immigration law and banned mandatory life sentences for juveniles convicted of murder.

“There were a lot of blockbusters this term,” said Duquesne University Law School Dean Ken Gormley.

Yet despite the attention the court received this summer, it's difficult to say how large those decisions will loom in history.

“This term doesn't even begin to stack up with those of the late '50s and early '60s, for example, when the Warren Court was literally changing the social landscape of the country,” said Timothy Lewis, a former U.S. Third Circuit Court of Appeals judge practicing at Downtown law firm Schnader, Harrison, Segal and Lewis.

The court under Chief Justice Earl Warren banned segregation and official prayer in public schools, and ruled the Constitution protects the right to privacy and requires legal representation for criminal defendants.

No decision in this most recent term received more attention than the 5-4 ruling upholding most of President Obama's health care law. Gormley said law students will study that opinion. Others aren't so sure.

“The attention it received emanated from what it might portend politically in the upcoming election,” Lewis said. “This is similar to Bush vs. Gore back in 2000. That case had no legal consequence but tremendous political ones.”

The 2000 decision, in which the court stopped a Florida vote recount, may have contributed to declining public opinion of the court.

“It did damage to the court,” said Stevens, who believes the court should not have agreed to hear the case. “I think it's a most unfortunate decision.”

Public opinion sinking

A Gallup poll in June comparing American institutions found 37 percent of people hold “a great deal” or “quite a lot” of confidence in the Supreme Court, compared with 50 percent in 2002.

“We are in a time when regard for institutions, in general, is low,” said Frank Newport, Gallup's editor in chief.

When the three branches of government are compared, Americans gave the judicial branch the highest marks.

The court's popularity tends to swing with decisions and government upheaval. After Warren wrote a unanimous decision from a divided court to end racial segregation in public schools in the landmark 1954 Brown v. Board of Education, critics put up “Wanted” posters and billboards calling for his impeachment.

When Roberts sided with the court's liberal bloc to uphold the health care law, radio host Glenn Beck sold T-shirts with a print of Roberts' face over the word “Coward.” U.S. Sen. Rand Paul, R-Ky., refused to accept the ruling, saying, “Just because a couple people on the Supreme Court declare something to be ‘constitutional' does not make it so.”

In an aggressive dissent, Justice Antonin Scalia accused Roberts of rewriting law and criticized as “feeble” his argument that the insurance mandate is a tax.

“They seem to me to have made a rather deliberate, and it looked like almost an offensive, attempt to repudiate him,” said Charles Fried, a Harvard University law professor and U.S. solicitor general from 1985 to 1989.

Scalia in July denied that bad blood exists. Stevens said justices can disagree and remain friends.

“You can't afford to be too unhappy with somebody's vote in a particular case because in the next case down the line you may need his vote,” Stevens said.

Ongoing power struggle

Richard Thornburgh, the former Pennsylvania governor and U.S. attorney general, said angry conservatives missed the point. Roberts' majority opinion sided with conservatives on the most important issue: Congress' power under the Constitution's Commerce Clause to regulate trade.

Thornburgh considers Roberts' opinion the latest shot fired in a battle over federal authority dating to the New Deal. In the mid-1930s, Justice Owen Roberts sided with the court's liberal minority to uphold Washington state's minimum wage law, marking the end of a decades-long trend in which the court blocked government attempts to regulate businesses.

After that, Congress, with the court's blessing, used the clause to expand its reach, Thornburgh said. It's how Congress banned racial segregation in businesses, set a minimum wage and outlawed child labor.

This time, Roberts shielded the court from charges of politicization, Thornburgh said.

“He has put it in the hands of the political debate, which is where it should be,” said Alberto Gonzales, former attorney general under President George W. Bush.

To Lewis and others, the Roberts Court distinguished itself with an “unflinching willingness to strike down precedent.”

Critics often cite the Citizens United decision, when the court turned a narrow challenge of a provision of campaign finance law into a free-speech case. The case began when the Federal Election Commission kept the advocacy group Citizens United from airing its anti-Hillary Clinton program on pay-per-view cable too close to a 2008 presidential primary election.

“There was no need to come up with such a radical opinion,” Fried said.

Gormley, however, said it's a mistake to compare the deference to Congress in Roberts' health care ruling with the rebuke he delivered lawmakers in Citizens United. The Constitution gives Congress the power to regulate commerce but blocks it from regulating speech, he said, and Citizens United equated money with speech.

Respect for the court

The health care decision revealed something else about Roberts, Fried said: “This man is more subtle than people have given him credit for, and that maybe he cares about the court more than he does about some particular agenda — but that's just guessing.”

Every justice feels a responsibility to preserve the court's respect, Stevens said.

“The entire court is conscious of public respect for their work,” he said.

More contentious issues loom for the court, including a challenge to the use of affirmative action in college admissions that could upend decades of government hiring practices. Another could decide how much latitude states have regarding crimes that could lead to a legal immigrant's deportation. Both involve hot-button social issues — race and immigration — and are scheduled to be argued Oct. 10. The presidential election is Nov. 6.

In addition, several groups on both sides of the gay marriage issue asked the court to resolve, once and for all, whether the Constitution allows states to ban it.

Four of the justices are older than 70, so whoever wins in November could dramatically alter the court's direction with his appointments.

Jeremy Boren and Mike Wereschagin are staff writers for Trib Total Media. Boren can be reached at 412-320-7935 or Wereschagin can be reached at 412-320-7900 or

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