Aside from blockbuster cases involving health care, immigration and redistricting, the U.S. Supreme Court at midterm has a roster full of other potentially major challenges.
The cases raise such issues as indecency and the First Amendment, sentences of life without parole for juvenile murderers, lawsuits against corporations and organizations under the Alien Tort Statute, and immunity for private lawyers hired by government bodies.
By the end of 2011, the justices had heard arguments in 36 cases and had issued two signed decisions and four per curiam rulings. Justice Antonin Scalia wrote the term’s first decision — a unanimous ruling in Greene v. Fisher that interpreted the meaning of “clearly established Federal law, as determined by the Supreme Court of the United States” in the Antiterrorism and Effective Death Penalty Act of 1996. Justice Elena Kagan authored the second decision — also unanimous — in an immigration challenge, Judulang v. Holder.
The justices’ first conference of the new year was held on Jan. 6, and the first arguments of 2012 begin Jan. 9. The high-profile challenges to redistricting in Texas fill 70 minutes of argument time on the afternoon of Jan. 9, but the first session that morning features an important environmental case — Sackett v. EPA.
Though it raises a somewhat technical question, the Sackett case is being closely watched by environmentalists, property rights organizations and the business community. Michael and Chantell Sackett graded a small lot in a subdivision to build a home. Acting on a complaint, the U.S. Environmental Protection Agency found that the Sacketts had filled a wetland in violation of the Clean Water Act. The agency issued an administrative compliance order with potentially severe financial penalties for noncompliance. The issue for the justices is whether, under the Administrative Procedure Act, the Sacketts can get a court hearing on the order before it is enforced, and if they cannot get pre-enforcement judicial review, are their due process rights violated?
At stake, according to groups following the case, are not only property owners’ rights to a hearing but the ability of EPA to respond quickly to environmental threats through its use of those compliance orders.
January also brings the “sexiest” First Amendment challenge on the Court’s docket: the case of the fleeting expletives and the bare buttocks. In Federal Communications Commission v. Fox Television Stations, the justices will take a second look at the FCC’s indecency regulatory scheme. The challenge is really two cases merged into one petition by then Acting Solicitor General Neal Katyal.
The U.S. Court of Appeals for the 2d Circuit struck down the FCC’s indecency regulations on vagueness grounds in a case stemming from the use of the F-word and the S-word during two awards programs on Fox in 2002 and 2003. The appellate court subsequently applied that decision in a second case involving the now-defunct ABC show NYPD Blue, which showed part of a nude female breast and the fully naked buttocks of a woman in one show segment.
The justices, who will hear the FCC case Jan. 10, will decide whether the regulatory scheme violates the First or Fifth amendments. The case has drawn an array of amicus briefs from broadcasters and First Amendment advocates supporting Fox and ABC and from family and religious groups supporting the FCC.
The justices in January also take up two very different types of immunity questions. In Coleman v. Maryland Court of Appeals, they will decide whether states can be sued for violating the self-care leave provision in the Family and Medical Leave Act. The 11th Amendment sovereign-immunity question arises from a suit filed by a fired employee of the Maryland courts. And in Filarsky v. Delia, a California employment lawyer, hired by a city to help with an internal affairs investigation, argues that he and similarly retained private attorneys are entitled to the same qualified immunity from suit as those government employees with whom they are working.
In an amicus brief on behalf of a number of local government associations, Geoffrey Eaton of Winston & Strawn tells the Court, “Without the protection of qualified immunity, lawyers called upon to perform public duties will have their service rewarded with a lawsuit. The result will be to severely chill lawyers’ willingness to undertake important work on behalf of the public, with potentially disastrous consequences for the institutions that rely on them.”
Coleman will be argued on Jan. 11, and Filarsky on Jan. 17.
In February, another First Amendment case is likely to capture headlines. In U.S. v. Alvarez, the Obama administration defends the constitutionality of the Stolen Valor Act, struck down on First Amendment speech grounds by the 9th Circuit. The federal act makes it a crime to lie about being awarded a decoration or medal authorized by Congress for the armed forces.
The 9th Circuit said, “If the speech targeted by the Act is to be declared among those classes of speech which can be prohibited without any constitutional problem (the exceptions to the First Amendment), the speech must fit within those ‘historical and traditional categories long familiar to the bar.’ We find no authority holding that false factual speech, as a general category unto itself, is among them.”
Xavier Alvarez, an elected member of a water management agency, claimed to be a retired Marine who had been wounded many times and had received the Medal of Honor. His case will be argued on Feb. 22.
Two of the term’s most important business cases will be heard on Feb. 28. The business community would like to see the Alien Tort Statute shut down as an avenue for lawsuits against corporations for alleged human rights violations and other violations of “the law of nations.” In Kiobel v. Royal Dutch Petroleum, the justices will decide whether those suits can be filed against corporations or only against individuals. The 2d Circuit held that the statute cannot be applied to corporations, although corporate officers could still be sued for human rights violations.
The Kiobel case stems from a lawsuit by 12 Nigerians who alleged human rights violations by three oil companies in connection with oil exploration in the Niger Delta in the early 1990s.
Mohamad v. Rajoub is the second case and involves the Torture Victim Protection Act. The widow and sons of Azzam Rahim sued the Palestine Liber­ation Organization and the Pales­tin­ian Authority for abducting, torturing and killing Rahim, who was visiting his homeland. The justices will decide whether the D.C. Circuit was correct in ruling that the act’s language permitting lawsuits against “any individual” of a foreign nation who subjects another to torture does not apply to organizations, only to individuals.
March is also a big month and not just because the Court will spend three days (March 26, 27, 28) on challenges to the Patient Protection and Affordable Care Act. On March 20, the justices will hear back-to-back arguments in Miller v. Alabama and Jackson v. Hobbs, both of which make Eighth Amendment arguments against life in prison without parole for 14-year-olds convicted of murder. Bryan Stevenson of the Equal Justice Initiative in Montgomery, Ala., is counsel of record for the juveniles in both cases.
The justices have yet to announce the April arguments, which will almost certainly include Arizona v. U.S., in which that state contends that its tough new anti-immigration law is not pre-empted by federal immigration law.
To paraphrase Bette Davis’ character in the movie All About Eve: Fasten your seat belts, it’s going to be a bumpy ride.
Marcia Coyle can be contacted at firstname.lastname@example.org.