Public interest in the U.S. Supreme Court skyrocketed following last term's landmark healthcare decision, and a panel of longtime high court litigators said yesterday that the court is likely to stay in the limelight as it prepares to take on everything from affirmative action and same-sex marriage to drug-sniffing dogs next term.
"Sizing Up the Supreme Court," an event sponsored by The National Law Journal and Legal Times and hosted at George Washington University Law School, featured four veteran high court lawyers: Latham & Watkins partner Greg Garre; Alan Morrison, an associate dean at George Washington University Law School; Wiley Rein founding partner Bert Rein; and Jenner & Block partner Paul Smith. NLJ Supreme Court correspondent Tony Mauro moderated.
The panelists began with a look back at last term's big cases, notably the decision upholding the controversial individual mandate of the Affordable Care Act. Smith said that while the court was subjected to intense scrutiny during and after it considered the healthcare case, he thought there would have been even more vitriol and accusations of being politically-motivated had the court struck down the law in its entirety. Rein called the majority decision, which upheld the mandate as a type of tax, a "tour de force" by Chief Justice John Roberts Jr.
Morrison said that while the court's decision to uphold the mandate as a tax while finding it unconstitutional under the Commerce Clause didn't have any practical significance for the healthcare decision, it was unclear how it might affect other cases involving the Commerce Clause in the future. He also said that the court's decision to strike the provision stripping states of federal Medicaid funding if they didn't comply with the law's expansion of the program could also open up new areas of litigation over how the federal government places limits on spending.
Garre spoke about the high court's take on cases involving ineffective assistance of counsel claims. The court recognized new areas where such claims applied, including the guilty plea stage of proceedings. But Garre warned that while the decisions would likely give rise to more cases, defendants would still need to meet a high bar to prevail. "I doubt that this is the last that we've heard of this area," he said.
Looking forward to next term, Smith said he thought the court was likely to grant at least one of the pending same-sex marriage-related cert petitions. Cases surrounding a section of the Defense of Marriage Act have been moving through courts across the country and Smith said that for the court to not to hear one "would create enormous chaos." Whether the court would take on California's Proposition 8, which bans same-sex marriage, was less certain, Smith said, and could depend on how DOMA plays out.
The discussion offered a preview of one case already scheduled for arguments on October 10 — the latest battle over affirmative action. Rein, who will be representing a woman suing the University of Texas over its admissions policy, and Garre, who will be defending the university, weighed in, although they joked about wanting to play it close to the chest as far as strategy.
"The popular view of the case departs from the legal view of the case," Rein said, explaining that he thought the case had less to do with the broader issue of affirmative action and more to do with the type of "strict scrutiny" universities could face over how they craft such policies.
Garre said he thought it was significant that the court took the case, since the core arguments — setting aside amicus briefs that have poured in from all sides on the broader issue of affirmative action — have to do with issues that are somewhat specific to the Texas situation. He also noted that the case could end in a 4-4 split because Justice Elena Kagan recused herself. When there's a split, he said, the court usually affirms. Garre spoke about two other cases he's preparing to argue next term about the use of dogs to detect drugs, which he said could have significant implications for law enforcement.
Last term was "extraordinary," Mauro said at the beginning of the discussion, but he added that "next term is shaping up as another significant term."
National Law Journal photo by Diego M. Radzinschi. Above, from left, Greg Garre, Bert Rein, Paul Smith, Alan Morrison and Tony Mauro.