Privacy on Court's Docket; Health Law Cases in Wings

By Kenneth Jost
Supreme Court Editor, CQ Press
      The U.S. Supreme Court opens a new term on Monday with two closely watched privacy cases already on its docket and challenges to President Obama’s health care plan in the wings.
      Among other cases, the court will consider for the second time whether the Federal Communications Commission (FCC) can punish broadcasters for “fleeting expletives.” And in a case being closely watched by advocacy groups across the ideological spectrum, the justices will consider whether to allow private suits challenging state laws on federal preemption grounds.
      More important than any of the 48 cases already granted review are the multiple challenges to the Patient Protection and Affordable Care Act that Congress passed and Obama signed in March 2010 after a fiercely partisan legislative battle. Moves by both sides Wednesday in one of the cases appeared to make it all but certain that the justices can take up the issues in time for a ruling before the term ends next June, midway through a presidential election year.
      Three federal appeals courts have issued different rulings on the key issue in the cases: the constitutionality of requiring everyone to have health insurance or pay a penalty. The Sixth Circuit in Cincinnati upheld the law. The Fourth Circuit in Richmond, Va., rejected the challenges on procedural grounds. But the Atlanta-based Eleventh Circuit ruled the individual mandate unconstitutional in separate cases filed by Florida along with 25 other states and by the National Federation of Independent Business.
      Challengers have already filed their petition, Thomas More Law Center v. Obama, 11-117, asking the justices to review the Sixth Circuit decision. In separate moves on Wednesday, both sides in the Eleventh Circuit case asked the Supreme Court to review the decision in time to decide it this term. “We hope the Supreme Court takes up the case,” White House domestic policy adviser Stephanie Cutter wrote on the White House blog in late afternoon, “and we are confident we will win.” The government’s petition is U.S. Dep’t of Health and Human Services v. Florida, 11-398.
      Court watchers are anticipating two other major issues that the justices may decide to review this term. In Arizona v. United States, 11-182, the government is challenging Arizona’s immigration-related law known as SB 1070 that, among other things, makes it a state crime to fail to carry federally issued documentation. Critics call it the “show me your papers” law. The San Francisco-based Ninth Circuit upheld a lower court injunction blocking major provisions of the law. The state has appealed to the Supreme Court.
      In a second case, Fisher v. University of Texas, 11-345, an unsuccessful white applicant to the University of Texas’ flagship Austin campus is challenging UT’s admissions policy of treating race as a “plus factor” for minority applicants. A three-judge panel of the Fifth Circuit, in New Orleans, upheld the policy; the full court rejected an en banc hearing by a 9-7 vote, over a forceful dissent.
      Even without those potential cases, the court starts with a challenging array of issues following a term that many observers rated as lacking blockbuster decisions. The new term opens with the same lineup as last year’s with a generally conservative bloc of five Republican appointees, headed by Chief Justice John G. Roberts Jr., and a liberal bloc of four Democratic-appointed justices, including Obama’s two appointees: Sonia Sotomayor and Elena Kagan. In closely divided cases, Justice Anthony M. Kennedy, a moderate conservative, sometimes votes with the liberal bloc to give it a majority.
      The two privacy cases may test the conservative-liberal fault lines. In United States v. Jones, 10-1259 (argument: Nov. 8), the government is claiming the right to track a drug suspect using a global positioning system (GPS) device attached to his car without first obtaining a search warrant. The D.C. Circuit ruled that a warrant is necessary. In another high-tech search case a decade ago, two conservatives — Antonin Scalia and Clarence Thomas — joined three liberals in ruling that police need a warrant to use a thermal imaging device to “search” a home for evidence of indoor marijuana cultivation (Kyllo v. United States, 2001).
      Former acting U.S. solicitor general Neal Katyal, now in private practice, told a pre-term briefing sponsored by the American Constitution Society that a ruling to require a search warrant for GPS tracking could have “fairly dramatic consequences” for counterespionage and terrorism investigations conducted on U.S. soil. But Steve Shapiro, national legal director for the American Civil Liberties Union, rejected the government’s argument that GPS tracking does not invade personal privacy because it follows a suspect while he or she is out in public.
      “In a 21st century digital age, we can no longer think of privacy in binary terms,” Shapiro said at the ACLU’s annual preview session. “We have to think of privacy in a more nuanced way.”
      In a second case, Florence v. Board of Chosen Freeholders, 10-945 (argument: Oct. 12), a New Jersey man arrested in error after a traffic stop is challenging the policy at two county jails of strip-searching all detainees even if held for minor offenses. The Third Circuit in Philadelphia, differing from some other circuits, upheld the policy on grounds of prison security.
      The fleeting expletives case, Federal Communications Commission v. Fox Television Stations, Inc., 10-1293 (argument: expected in January), stems from the FCC’s appeal of a Third Circuit ruling striking down as unconstitutionally vague its 2004 policy of penalizing even a single use of a vulgarism. The case involves proposed penalties on stations for prime-time broadcasts in which the entertainer Cher and the reality show celebrity Nicole Richie uttered taboo words. The Supreme Court ruled in 2009 that the FCC had a sufficient basis for adopting the strict anti-indecency policy, but sent the case back to the Third Circuit for a ruling on its constitutionality.
      The justices open the term on Monday with a seemingly technical case, Douglas v. Independent Living Center of Southern California, 09-958 (argument: Oct. 3), with potential stakes for interest groups of all stripes. Health care providers and Medicaid beneficiaries are challenging California’s decision to reduce reimbursements under the joint federal-state program. The plaintiffs argue the cuts are preempted by federal law.
      The Ninth Circuit allowed the suits to proceed, but the government says the Medicaid law does not permit enforcement by private parties. Interest groups ranging from the U.S. Chamber of Commerce to the ACLU and NAACP Legal Defense Fund have filed friend-of-the-court briefs on the plaintiffs’ side, fearing the potential ramifications of a decision limiting private suits.
      Todd Garland, CQ Press legal intern, contributed to this story.

      On the Web: The U.S. Supreme Court provides docket information on cases: www.supremecourt.gov. The private SCOTUSBlog provides comprehensive coverage of pending cases, including links to all briefs: www.scotusblog.com. The ACA litigation blog has comprehensive information about challenges to the Affordable Care Act: http://acalitigationblog.blogspot.com/.