SCOTUS for law students

Prostitution seems like an unlikely topic for a battle over freedom of speech, but that is precisely the focus of an important case to be argued in late April that tests the limits of the federal government’s ability to attach conditions to federal spending. The case is Agency for International Development v. Alliance for Open Society International, Inc., to be argued on April 22. The dispute involves a challenge by nongovernmental organizations (NGOs) to regulations implementing a federal law that provides funds to help combat the spread of HIV and AIDS throughout the world. The law, passed by Congress in 2003, is the Leadership Against HIV/AIDS, Tuberculosis and Malaria Act, more succinctly known as the Leadership Act. Congress authorized the spending of billions of dollars to put the United States in the forefront of efforts to stop the global pandemics. Congress said that one way to battle against HIV and AIDS was to actively work throughout the world to eliminate sexual trafficking and prostitution, which contribute to the spread of the virus and disease. Congress also recognized that private organizations (NGOs) would play an important role in the effort to stem the spread of disease.

On its face, the concept of preemption does not seem especially complicated: when federal law and state law clash, federal law prevails. This is the direct result of Article VI, section 2 of the Constitution, which makes the Constitution and federal laws “the supreme law of the land.” However, the doctrine of federal preemption has been anything but simple and straightforward in recent Supreme Court cases dealing with the interplay of federal prescription drug regulations and state tort laws. Next week, the Justices will wade into this thicket for the third time in just four years.

The U.S. Court of Appeals for the D.C. Circuit recently sent shockwaves through the federal government by ruling that President Obama exceeded his power under Article II of the Constitution to appoint executive branch officials when the Senate is in recess. Ruling on the appointment of three National Labor Relations Board members, the D.C. Circuit held that the president’s power is limited to the formal breaks in between congressional sessions and may not be used during shorter Senate recesses. That narrow interpretation of the President’s power to make recess appointments invites some reflection on Supreme Court history. There have been twelve recess appointments to the Court throughout its history, according to a Congressional Research Service study. But it appears that none of them would obviously suffer from the constitutional flaw that the D.C. Circuit identified. Still, it is interesting to contemplate what the consequences could have been for the Supreme Court when President Eisenhower made the last three recess appointments to the Court in the 1950s.

When the nine Justices go out in public together to a ceremonial occasion, even celebrity-studded official Washington stops to take notice. Sometimes, as with Monday’s presidential inauguration, that is because it is so unusual to see all nine together anywhere other than in the Supreme Court Chamber. At other times, like next month’s scheduled State of the Union address or the annual Red Mass last September, the focus may instead be on which of the nine show up. There is little question that the Justices are part of the most mysterious, least visible branch of the federal government. The question of how different ceremonial occasions fit with the relative seclusion and avoidance of politics by the Justices is a subject of some debate among those who follow the Court, and even among the Justices themselves.

With increasing frequency, the Justices of the Supreme Court face issues of new and changing technology; these cases almost always present a challenge, especially in the field of law enforcement. Just last Term, in United States v. Jones, the Court wrestled with whether law enforcement officials violated the Constitution when they used a GPS tracking device attached to the outside of a car to monitor a driver’s movements. In prior Terms, the Justices have considered questions about scientific evidence and cross-examination of lab experts. In other recent cases that did not involve law enforcement practices, the Court has considered whether Congress can regulate animal cruelty videos, as well as restrictions on violent video games by states, treatment of work text messages for employee discipline purposes, and efforts by the Federal Communications Commission to keep expletives off the primetime airwaves.

Earlier this month, the Court announced that it would review two cases involving same-sex marriage:  United States v. Windsor, a challenge to the constitutionality of the federal Defense of Marriage Act, and Hollingsworth v. Perry, a challenge to the constitutionality of California’s Proposition 8.  As might be expected, these cases have been covered widely in the press, but they have also focused new attention on a litigation practice with a long, if sometimes controversial, pedigree: the use of test cases to secure rulings by the Justices. A test case is typically one in which an interest group or an individual wants to create a challenge to a law in the hope of having the law overturned. The effort can be substantial:  the group or individual spearheading the challenge must – among other things – find the right plaintiff(s), determine the strongest legal arguments, and pick the proper judicial forum to create circumstances in which the issue will be teed up for decision. Although this can certainly happen in any court, for our purposes, let us consider the practice of test cases designed to get to the United States Supreme Court.

There is a perennial fascination that flows with every new presidential administration in recent decades: when will the president get to fill a Supreme Court vacancy, and whose seat will it be? In Washington, this speculation is already well underway. With divisive legal questions often decided narrowly by one or two votes, questions about who might be leaving or joining the Court are high-stakes issues for liberals and conservatives alike. How the election or reelection of the president shapes that process is a critical factor.

It has been twenty-five years since then-Chief Justice William Rehnquist observed that there was no real bar of specialists who regularly appeared before the Supreme Court. How things have changed! Today, there is most definitely a group of Supreme Court “regulars,” lawyers who make a specialty of taking cases to the Supreme Court. This group participates in a significant number of argued cases each Term, either handling the briefs and arguments for a party to the case or filing amicus – that is, friend-of-the-court – briefs. And many of the highest-profile cases of the Term feature the involvement of Supreme Court specialists.

It has been just a little over two weeks since the Justices last heard oral arguments, but don’t mistake their absence for inactivity. Among the many things that occupy their attention when they are not hearing oral arguments are emergency applications – particularly applications to stay the ruling of a lower court or to stay an imminent execution. Just in the past eleven days, the Court has acted on eight stay applications:  five in capital cases, two in election disputes, and one in a case involving a struggle over subpoenas from the British government to Boston College researchers. Sometimes stay applications simply present technical procedural requests, but at other times – for example, when an execution is imminent or election battles are looming – they can create real drama and suspense.