WASHINGTON -- The Supreme Court opens a potentially epic term Monday that could roil debate in the 2012 presidential election campaign.
The justices have taken a raft of cases that would affect people in their daily lives, including on when police can track their cars with GPS devices and what racy material gets on television when children might be watching.
In coming weeks, the justices will announce whether they will take on two major disputes over federal power, the most closely watched involving the new requirement that most people buy health insurance by 2014. The other concerns Arizona's law allowing police to check the immigration status of people they have stopped.
"This could be a blockbuster term, depending on how events break," says Washington lawyer John Elwood, a former assistant U.S. solicitor general now in private practice. "If the justices grant the health care case, as seems likely, this could be a very consequential term."
The Justice Department asked the court Wednesday to review the constitutionality of the insurance mandate, part of a health law overhaul that is the signature of President Obama's domestic agenda. All major Republican presidential candidates have vowed to work to repeal the law. A ruling on the mandate could come by July, right before the party conventions.
Neil Kinkopf, a professor at Georgia State University and expert on immigration law, agrees this could be "a marquee term for the court." He says the Arizona immigration dispute has only become more compelling because other states, including Alabama and Georgia, have passed laws trying to discourage people from crossing the border illegally that potentially infringe on civil rights and tread on federal power.
The nine justices who will ascend the bench Monday are split ideologically. Power rests mainly with the five conservatives: Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito.
On the liberal side, and often in dissent in high-profile cases, are Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. When the liberal wing prevails, it is usually because Justice Kennedy, the most moderate of the conservatives, has swung over to their side.
Newest Justice Kagan easily worked her way into the rhythm of the court during her first term, becoming an active, strategic questioner from the bench and writing pointed, attention-getting opinions. Chief Justice Roberts praised her over the summer for sharp opinions, incisive questions and an ability to "hit the ground running."
Kagan was the first justice in 40 years appointed without prior judicial experience. She had been the U.S. solicitor general, representing the federal government, and appeared regularly in court.
In a talk at the Aspen Institute in August, Kagan said she was surprised by the collegiality among the justices behind the scenes, given the "sharp give-and-take" and divisions on rulings.
As the most junior of the nine justices, Kagan speaks last in their private conferences on cases and votes last as the justices decide how to resolve a case. She said that isn't always so bad on a court that tends to split 5-4 on closely watched cases. "There's certain drama to going ninth."
Health and immigration laws
The challenge to the requirement that all Americans have health insurance, part of the Obama-sponsored effort to make medical care more affordable nationwide, rivals all other cases pending at the court for political interest.
The law was challenged immediately after its passage in March 2010, and three federal appeals courts have since ruled. The Cincinnati-based 6th Circuit and Richmond-based 4th Circuit rejected challenges to the insurance mandate; the Atlanta-based 11th Circuit declared it unconstitutional, saying Congress had exceeded its power to regulate commerce.
The Obama administration has asked the justices to use that 11th Circuit case to resolve the matter. That challenge was brought by 26 states and the National Federation of Independent Business.
Government lawyers, led by new U.S. Solicitor General Donald Verrilli, contend the individual-insurance mandate is necessary to address the spiraling cost of medical care, caused in part by people without insurance who get sick, get treated and pass on billions of dollars in costs to people who carry insurance.
Another pending appeal traces to Arizona's law that is intended to discourage people from crossing the border. The law allows police to check drivers' immigration papers if officers suspect a person is here illegally. The Obama administration sued, asserting that the state impinged on federal authority, and lower federal courts blocked enforcement of the law. Attorney General Eric Holder earlier said the Arizona law could lead to racial profiling.
The U.S. Court of Appeals for the 9th Circuit, whose decision would be reviewed by the justices, said Congress wanted states to help stop people from illegally entering the country only under the attorney general's supervision. The appeals court said Arizona interfered with the federal government's authority and said part of the law should remain on hold.
Among the major cases scheduled for oral argument is one that tests whether police need a warrant before affixing a GPS device to a car. In the case from Washington, police put a GPS device on the car of Antoine Jones, a nightclub owner they suspected of drug trafficking.
Jones, convicted of conspiracy to distribute cocaine, argues that his conviction should be overturned because the police violated his Fourth Amendment protection against unreasonable searches by tracking him for a month without a warrant.
Justice Department lawyers said they need not take such a step to track people on public roads. The U.S. Court of Appeals for the District of Columbia Circuit disagreed, stressing the detailed surveillance over several weeks. The court said, "A reasonable person does not expect anyone to monitor and retain a record of every time he drives his car … rather, he expects each of those movements to remain disconnected and anonymous."
The justices also are scheduled to look again at the Federal Communications Commissions policy against "fleeting" expletives and nudity on broadcast television, this time in the face of a First Amendment challenge.
In the past, the FCC sanctioned repeated expletives only in broadcasts. In the early 2000s, the agency changed its policy and said even the one-time use of vulgarities associated with sexual or excretory functions could be found indecent and subject to a fine.
Cher prompted one case, when at a 2002 Billboard Music Awards ceremony she waved her lifetime achievement trophy and noted that critics had long said she was on her way out. "So (expletive) 'em," Cher declared. Another instance stems from a 2003 episode of NYPD Blue that included a shot of a woman's naked buttocks.
Television networks say the indecency policy is unconstitutionally vague and has led to inconsistencies. They note that some expletives, for example in a broadcast of the movie Saving Private Ryan, have been allowed. The government counters that the FCC rightly found the expletives in that World War II depiction integral to its realism. The government stresses that the court traditionally has given the FCC wide latitude to regulate material in TV and radio broadcasts because of the scarcity of the airwaves and because broadcast TV is uniquely accessible to children.
A New York-based federal appeals court struck down the policy, saying of the various FCC determinations on which programs were indecent, "There is little rhyme or reason to these decisions, and broadcasters are left to guess whether an expletive will be deemed 'integral' to a program."