A Supreme Court Preview

Posted: Sep 29, 2011 11:58 AM

Two preeminent attorneys, skills honed by many hours arguing before the Supreme Court, predict that this coming Supreme Court term will be a momentous one – and one that may include Obamacare. “It promises to be every bit as remarkable as last year’s was unremarkable,” attorney Kannon Shanmugam laughed.

Yesterday the Heritage Foundation hosted a Supreme Court preview panel featuring former US Solicitor General Paul Clement and attorney Kannon Shanmugam.

Shanmugam admitted an aversion to preview events, “It’s like forecasting the weather,” he said.

Despite the fact that the term begins in October 3rd, there are more cases still to be chosen. But those already confirmed have powerful constitutional and practical implications. FCC v. Fox Television Stations, Inc., mentioned by Shanmugam, revisits the issue of television decency during prime-time hours. This deals specifically with “fleeting expletives” and “nudity” used during certain hours: before 10 p.m. and after 6 a.m. “For some reason people seem to be particularly prone to using fleeting expletives when they appear on awards shows...” remarked Shanmugam. In light of the court’s affection for First Amendment rights, Shanmugam contends that this will be a blockbuster case. This is “a court that has rarely seen a First Amendment claim that it doesn’t like. This case may yet test that proposition,” he said.

Clement tackled a case that is sure to interest any property owner: Sackett v. Environmental Protection Agency. Clement dubbed this as a due process issue, as the case addresses the “inability of the property owner to challenge an EPA determination that their back yard is, in fact, a wetland.” There is no good option for such homeowners, who Clement said have two options: either come into compliance (which can cost a fortune) or be in violation and face the possibility of fines – (fines that could be tens of thousands of dollars per day – aka: a fortune). Such homeowners have no ability to appeal the EPA’s pronouncement.

The two also weighed in on the possibility of Obamacare being included on the docket. Clement said this was probable: “It does seem likely that the court will consider the health care case at some point during this term.” But what exactly that means is a different matter. Clement, who has worked to successfully strike down the individual mandate in 26 states, said that the individual mandate is just the “tip of the constitutional iceberg.”

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If the healthcare legislation is chosen for this coming term, the timeline is intriguing, as the case would be decided right before 2012 elections. “I suspect that it was informed by political as well as legal considerations,” Shanmugam remarked about the timing. “It’s for others to sort of speculate as to the propriety of that,” he continued.

The full video of the preview can be found here - with far more legalese and commentary.

(This post was authored by Mary Crookston)