Supreme Scene

The year ahead in the Supreme Court.

The justices of the Supreme Court kick off their 10th year together this week, hearing arguments in the first of the 80 or so cases they will decide between now and the end of next June. Most years, the court churns out interesting, hot-button decisions like last term’s decisions upholding affirmative action in higher education and a ban on cross-burning, and striking down state sodomy laws, but this year’s docket seems tame as of this week.

The biggest theme of the term so far is criminal law. The court can’t seem to take enough cases involving searches of cars, where their basic rule over the years has evolved into: “The cops can search whatever they want.” In three new cases, the court will review several state courts’ efforts to hold cops at bay. In the first, an Arizona court held that a car can’t be searched after the police arrest someone who has already gotten out of the vehicle. A second features a Maryland court that held that if the police find drugs in a car but all the occupants deny responsibility, they can’t arrest anyone.

The famous Miranda warnings—”You have the right to remain silent,” etc.—may also be on the chopping block this year. For decades, as the court became more conservative, it cut back on Miranda. So, when the high court flipped recently, sayingthe warnings were constitutionally required and Congress couldn’t just get rid of them, several lower courts took them at their word. This term the Supreme Court will decide several cases about the consequences of violating Miranda. Two stand out: Missouri wins the term’s chutzpah award for its policy of getting a confession by violating Miranda on purpose  and then giving the warnings and thus getting a second, valid confession. And the federal government urges, in a different case,that, even when the police fail to follow Miranda, they can still use physical evidence (like a gun) they find based on that illegal confession.

This term will also reveal whether the “states’ rights” freight train will chug full steam ahead. A few years ago, the Supreme Court started reading the Constitution’s 11th Amendment generally to protect the states from suits for money damages. The only exception is when Congress validly applies its lawmaking power to implement the 14th Amendment—a power a majority of the justices read very narrowly. Over the years, the justices have struck down a handful of federal laws, including the employment discrimination provisions of the Americans With Disabilities Act. But last term, the court surprised most observers by holding that states could be sued for damages under the Family and Medical Leave Act—because the Constitution gives more protection against gender discrimination than disability discrimination.

This term the court gets to decide whether two more federal statutes can be brandished against the states. One seems like a slam-dunk for the states under the court’s precedents: A court of appeals thumbed its nose at the Supreme Court’s 14th Amendment requirement to hold that Congress could also use its power to enact bankruptcy laws to render the states subject to damages. A second case, Tennessee v. Lane (full disclosure: I am co-counsel to a petitioner in this case), will be much closer. A court of appeals held that Tennessee residents—one of whom was required to crawl up the steps in order to get to criminal proceedings in his own case—could sue the state (under a different provision of the Americans With Disabilities Act that prohibits discrimination in public services, the services in question being Tennessee courthouses).

So far, the biggest free-speech case before the court is the monster challenge to the McCain-Feingold campaign-finance statute, which a lower court struck down in part in a ruling that is supposedly 1,600 pages long (although no one could bring themselves to read it). Congress took out its frustrations on the Supreme Court by requiring it to hear the case, which consumed four hours of oral argument (listen here if you dare) last month and technically last term. Expect the justices to be so sick of the case that they decide it by Thanksgiving, which will be, technically, this term.

After that, they can turn to their on-again, off-again relationship with Internet porn. In 1996, Congress tried to combat children’s access to Internet smut in the Communications Decency Act, which the Supreme Court struck down, finding it was not careful enough in targeting “indecent” and “patently offensive” speech. Congress tried again in the Child Online Protection Act, which a lower court initially struck down across the board, but which the Supreme Court reinstated last year. Given a second shot at the statute, the lower court invalidated it again, on a number of new grounds. The solicitor general has asked the court to take up the case again, which it is sure to do soon.

It could also prove a big year for religion rulings. The biggest decision of the term could come in the “Pledge of Allegiance” case, should the court decide to hear it. In the mid-1950s, Congress responded to the villainous spread of “godless communism” by building more nuclear bombs to protect our shores and by adding the phrase “under God” to the pledge to protect our souls. More than a dozen Supreme Court justices have at one time or another opined that the phrase doesn’t offend the First Amendment’s Establishment Clause(particularly because students haven’t been required to recite the pledge since a ruling in 1943), but the Supreme Court has never directly confronted the question. Two judges of the 9th Circuit initially found the phrase unconstitutional outright, then retreated to a more general ruling that the pledge as currently written couldn’t be recited in schools. Everyone asked the Supreme Court to hear the case—even the prevailing plaintiff, Michael Newdow, whose daughter is in a California public school—but the court might still decide to duck the issue, finding that Newdow didn’t have the right to pursue the case since he lacked custody of his daughter at the time.

Also on the religion front, the court in December will hear arguments in a challenge to a provision of the Washington state Constitution—a so-called “Blaine Amendment” that also exists in almost 20 other states—that prohibits the use of state funds to support religious organizations. Joshua Davey earned a scholarship based on his high-school grades and financial status, but the state denied it to him because he planned to study to be a minister. The question is whether Washington discriminated against religion (which is what the 9th Circuit decided) or engaged in laudable neutrality. The import of the case could be that if states issue vouchers for students to attend private schools, they will be constitutionally required to extend them to religious schools.

Overall, this term certainly isn’t going to do anything to improve the reputation of the 9th Circuit, based in California, as the nation’s most terminally loopy court of appeals. One-third of all the term’s cases come from the  9th, which generally gets a bum rap since it’s so big but which inevitably issues enough wacky decisions to delight its critics. In one case, the 9th Circuit ruled that the Las Vegas police violated the rights of Lashawn Banks when they executed a “knock and announce” warrant by waiting only 15 to 20 seconds before breaking into his apartment—apparently, the appeals court read the Fourth Amendment to guarantee suspected criminals more time to reload. The Supreme Court will also have to decide in the next few days whether to take up the 9th Circuit’s ruling that the First Amendment prevents the government from taking away doctors’ licenses to prescribe narcotics if they recommend the use of marijuana.

The court will fill the rest of its docket over the next few months, and, since none of the justices is likely to quit during a presidential election campaign, they will have a quiet little term. Which means that a year from today we can expect to see the same crew continue their historic streak together for an 11th consecutive term.