In March, the Supreme Court is scheduled to hear ten cases for oral argument including perhaps the granddaddy of them all this term, the two granted gay marriage cases. As is the case with many grants this term, several deal with patent law and the Federal Arbitration Act. The Court seems to be sorting out the correct role of courts- whether standing exists, which court has jurisdiction, does the issue even belong in the court system? Several of these cases arrive at the Supreme Court because there are serious differences between different lower appeals courts, generally a good recipe for getting your case heard before the Supreme Court. If there is one thing the Supreme Court dislikes besides the occasional rogue lower court, it is disagreement between different circuit courts of appeals. Of course, there would not be some of these differences of opinion if the Supreme Court itself would show some breadth in their rulings. But, that is not the trend of the Court under the leadership of John Roberts.
While many may dislike this avoidance of broad decisions, it is exactly these broad decisions that also often create what we call an “activist court.” Instead, the Court under Roberts, when it is not trying to avoid issues altogether, avoids making the broad sweeping constitutional declarations evident in the Warren Court and, to a lesser degree, by the Burger Court. To some on the Right and the Left, they are frustrated by this tendency for narrow rather than broad interpretations of constitutional law as applied to the case at hand. The result is often confusion with respect to the lower courts who rely on the Supreme Court for guidance. In a way, the Court cannot be a “in this instance this; in that instance something else” Court. That ensures that the issue will return to the Court. For example, look at the number of cases decided under the guise of habeas petitions arising out of their tortured interpretations of the Anti-Terrorism and Effective Death Penalty Act. Look at the number of decisions recently over interpretation of the Federal Arbitration Act.
The March sitting begins on March 18th when they hear a somewhat important voting rights case- Arizona vs. Inter-Tribal Council of Arizona. This is in response to Arizona’s Proposition 200 which passed in 2004. This law requires that voters in Arizona provide proof of US citizenship before voting. This seems like a rather straightforward, commonsense law. However, the Ninth Circuit ruled that the law is preempted by the federal National Voter Registration Act (or Motor Voter law). Specifically, Arizona argues that the Ninth Circuit erred in that they created a heightened level of preemption analysis in order to reach their decision. It would not be the first time the Ninth Circuit has creatively interpreted the law to reach a liberal political outcome. This case will be important going forward should either the Texas or South Carolina voter ID laws come before the Court. Actually, the legal barrier against their enforcement may come sooner should the Supreme Court rule that Section 5 and the Section 4 criteria that define “covered jurisdictions” under the Voting Rights Act of 1965 is outdated and unconstitutional (Shelby County, Alabama vs. Holder). If not, this could be an opportunity for the Supreme Court to yet again slap down the liberal Ninth Circuit. As is often the case with these liberal objections to commonsense voting laws, the great disenfranchisement they predict is very often not the case.
They also will hear a rather convoluted, complex and downright confusing bankruptcy case later that morning. In Sebelius vs. Cloer, the Court will be asked whether a claimant can recover legal fees for a claim under the National Vaccination Injury Compensation Progranm. Specifically, Ms. Cloer received three Hepatitis B vaccinations and later showed signs of multiple sclerosis. Her claim was dismissed in federal court as being filed in an untimely manner. However, her lawyers had accumulated over $118,000 in fees while they toiled in the Federal Circuit court system. The question is whether although not filed in a timely manner, enough good faith was demonstrated that would allow the woman to collect at least on the attorney fees. In Mutual Pharmaceutical Company vs. Bartlett, the Court will expound on a line of earlier cases regarding generic drugs, federal law, and state consumer protection laws. The Court has already ruled that federal law does not preempt state law which addresses design defects of generic drugs. In this case, they must decide if there is even a case if the manufacturer voluntarily withdraws the drug from the market.
Horne vs. the Department of Agriculture is the great California Raisin Case. Essentially, this boils down to the question as to which is the appropriate court jurisdiction to raise the alleged Taking Clause claims grape growers in California fall victim to. The federal government, in an effort to stabilize raisin prices, annually authorizes the removal of part of the crop to be held in reserve. A group of California grape growers were accused of attempting to circumvent the USDA policy. The program apples to processors and packers, not growers which the grape vineyard owners claim they are and, thus, not part of the program. The lower courts found against them and ordered them to pay more than $483,000 in civil fines and penalties. The growers charge that the government has engaged in an unconstitutional taking of their property without just compensation. The Supreme Court is not being asked whether it is a “taking” within the context of the Fifth Amendment, only which court has jurisdiction to hear that claim- either the Federal Court of Claims, or the Ninth Circuit Court of Appeals.
Dan’s City Used Car Company vs. Pelkey is another case of whether federal law regulating carriers preempts state consumer protection laws. The case is somewhat amusing if it wasn’t so sad. Pelkey, an invalid at the time, had his car towed because it was condominium policy to remove your car from the lot when it snowed so the lot can be plowed. Because he was shut in at the time, he never realized the car was towed until after he got out of the hospital after having his foot amputated and suffering a heart attack. When he got out, his lawyer tracked down his car, determined it had been towed, and that it was sold at auction. The appeals court ruled that the federal law did not preempt the state consumer protection laws.
The final cases to be heard will be the gay marriage cases. As oral argument draws near, a more detailed analysis of the arguments and what is at stake here will be discussed. Suffice to say, these cases are to this term what Obamacare was to the previous term.