Analysts Discuss the Coming Supreme Court Term

By The NewsHour, The NewsHour - October 3, 2011

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GWEN IFILL: It's the first Monday in October. And you know what that means. The U.S. Supreme Court is back at work. The court has a docket full of controversial cases on topics ranging from obscenity to strip searches to warrantless surveillance.

Then there are the cases that haven't officially reached the court yet, including a challenge to the constitutionality of the federal health care law.

Joining us to preview the term: NewsHour regular Marcia Coyle of The National Law Journal and Tom Goldstein, founder of the website

Let's first talk, Marcia, about the big case, the big elephant in the room that's not actually on the docket. And that's the health care law. How many states have brought this challenge to the court?

MARCIA COYLE, The National Law Journal: Well, I would say a total of 27 now -- 26 states filed one lawsuit. Virginia filed its own lawsuit.

There are many lawsuits around the country, but, right now, the Supreme Court has, I think, maybe five petitions.

Does that sound about right, Tom?

Five petitions asking the court to get involved. And the Obama administration now has also asked the Supreme Court to review the legal questions. It's probably the only thing that all the parties agree on at this point, is that the Supreme Court should get involved.

GWEN IFILL: So, when both sides agree that the Supreme Court should get involved sooner, rather than later, does that make it more likely to happen, Tom?

TOM GOLDSTEIN, It does make it more likely. And, here, it's all about certain.

A federal law was struck down as constitutional. The federal courts of appeals disagree. It is absolutely on the fast track.

GWEN IFILL: What other things are on -- not quite on the docket yet that everybody is waiting for them to arrive?

TOM GOLDSTEIN: Well, the main event comes after health care gets granted.

We have Arizona's very famous immigration law and the question of the states' role in enforcing immigration policy. We have a critical case about affirmative action in higher education. This case is really important because it might be another place where the Roberts' court takes a step to the right and back from earlier decisions, giving some room...

GWEN IFILL: University of Texas, right?

TOM GOLDSTEIN: Exactly right, and their program, where about 20 percent of the students have race as part of the consideration.

There's a major religion case that is coming up that will tell us a little bit more about the role that the government can have. This is where the state of Utah is involved in a program of putting crosses by the side of a highway where officers die. There are a number of really hot-button social issues that are waiting in the wings.

GWEN IFILL: And these are -- waiting in the wings means it may not necessarily get argued this year, but if the court takes it up, it's significant in and of itself?

MARCIA COYLE: That's true, Gwen.

I mean, the affirmative action case, there's a petition that's already been filed. So we will know this term probably if the court is going to take it or not. And the Arizona immigration case, the governor of Arizona has already filed a petition with the court. And we may well know this term yet if the court will take it.

GWEN IFILL: OK. Tom, let's talk about some of the things actually on the docket. One of them is a case involving strip clubs -- strip searches, not strip clubs -- strip searches for people who have been -- for this individual who was arrested on a minor offense.

You're involved in this case, actually.

TOM GOLDSTEIN: Right, so I'm biased a little bit. I represent the defendant.

But there's a battle of two important considerations here. These are people who have been arrested for minor offenses. There's no real reason to believe they're particularly carrying contraband, but they're strip-searched. On the other hand, the jails have a concern about the smuggling into the facility. And the Supreme Court is going to have to deal for that tug-of-war.

GWEN IFILL: Now, in my defense, I said strip clubs because I was thinking about the nudity case which is also before the court, right?

MARCIA COYLE: Yes, compliments of FOX Television and ABC. The court is going to take a look at the Federal Communications Commission's regulations that govern fleeting expletives and nudity that involves Cher and Nicole Richie who, during an awards -- two separate awards shows used expletives, and also a segment of the now-defunct "NYPD Blue," in which a woman's naked buttocks was shown.

GWEN IFILL: Haven't we argued this before?

MARCIA COYLE: This case was before the Supreme Court before -- on the fleeting expletives issue, but it didn't deal directly with whether the regulations violated the First Amendment.


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