News From Terre Haute, Indiana

October 7, 2013

Supreme Court term begins amid government shutdown


Associated Press

WASHINGTON, D.C. — The justices take the bench Monday for the start of their new term with important cases about campaign contributions, housing discrimination, government-sanctioned prayer and the president’s recess appointments already on tap. Abortion, contraceptive coverage under the new health care law and cellphone privacy also may find their way onto the court’s calendar.

The court announced it will operate normally at least through the end of this week. The justices are hearing six arguments, including a challenge to limits on campaign contributions.  

The new term may be short on the sort of high-profile battles over health care and gay marriage that marked the past two years. But several cases ask the court to overrule prior decisions — bold action in an institution that relies on the power of precedent.

“There are an unusual number of cases going right to hot-button cultural issues and aggressive briefing on the conservative side asking precedents to be overruled,” said Georgetown University law professor Pamela Harris, who served in President Barack Obama’s Justice Department.

Paul Clement, a frequent advocate before the court and the top Supreme Court lawyer under President George W. Bush, agreed that the opportunity exists for dramatic precedent-busting decisions. But Clement said each case also offers the court “an off-ramp,” a narrower outcome that may be more in keeping with Chief Justice John Roberts’ stated desire for incremental decision-making that bridges the court’s ideological divide.

The campaign finance argument on Tuesday is the first major case on the calendar. The 5-4 decision in the Citizens United case in 2010 allowed corporations and labor unions to spend unlimited sums in support of or opposition to candidates, as long as the spending is independent of the candidates.

The new case, McCutcheon v. Federal Election Commission, is a challenge to the overall limits on what an individual may give to candidates, political parties and political action committees in a two-year federal election cycle, currently $48,600 to candidates and $123,600 in total. The $2,600 limit on contributions to a candidate is not at issue.

Since the Buckley v. Valeo decision in 1976, the court has looked more favorably on contribution limits than on spending restrictions because of the potential for corruption in large contributions. The big issue in the current case is whether the justices will be just as skeptical of limits on contributing as on spending.

Three justices, Anthony Kennedy, Antonin Scalia and Clarence Thomas, have signaled their willingness to do so. It remains to be seen whether Roberts and Justice Samuel Alito, the other two members of the Citizens United majority, are willing to go along.

Among other top cases already set for review:

While several cases call into question high court precedents, the justices will be writing on a blank slate when they take up the president’s recess appointment power under the Constitution.

In that case, the court will confront an appeals court ruling that effectively would end the president’s ability to make such appointments, if it is left standing.

Former Justice Department official Peter Keisler said that justices often ask a lawyer for the best case in support of his argument. “No one is going to ask that question because ‘t’aint none.’ No Supreme Court decisions are material here,” said Keisler, a partner at the Sidley, Austin law firm in Washington.

The impasse that led Obama to install members of the National Labor Relations Board and Consumer Financial Protection Bureau director Richard Cordray in office without Senate confirmation has been resolved. So what remains of the issue is whether Obama and his successors will be constrained in the future.

The topic splits Democrats and Republicans, but their view of the matter is almost entirely dependent on which party controls the White House.