海角大神

The 2011-2012 US Supreme Court term, set to begin Monday, is best described by a case that isn鈥檛 even on the docket yet.

It now seems inevitable that the justices will agree to hear the legal challenge to President Obama鈥檚 health care reform law, the Affordable Care Act.

The case, HHS v. Florida, would instantly transform the high court鈥檚 upcoming nine-month session from an interesting and important collection of legal disputes into an historic constitutional showdown with major political implications 鈥� in a presidential election year.

The legal challenge threatens one of President Obama鈥檚 most ambitious accomplishments, the attempted wholesale reformation of the health care insurance market to extend health insurance to millions of Americans who otherwise couldn鈥檛 afford it.

Usually, the Supreme Court鈥檚 term is defined on the eve of the first Monday in October by the array of cases the justices have already agreed to hear and decide.

The unusual feature of the start of this year鈥檚 term is that the 鈥淥bamacare鈥� case isn鈥檛 the only blockbuster looming on the high court鈥檚 horizon. In the weeks ahead, the justices are set to consider taking up a string of other potential landmark cases that could further transform the new term into a clash of constitutional titans. They include disputes examining:

鈥� Whether the Second Amendment protects a right to carry a gun in public places for self-defense.

鈥� Whether the use of racial preferences in university admissions programs is unconstitutional.

鈥� Whether Arizona鈥檚 tough immigration law, SB 1070, is preempted by federal statutes and the more gentle policy positions embraced by the Obama administration.

鈥� Whether large crosses erected on public roadsides in Utah and a Ten Commandments display in an elected judge鈥檚 courtroom in Ohio violate the separation of church and state.

Bleeping dirty words on TV

In addition to that unprecedented cluster of potential mega-cases, the high court is already set to hear a dispute involving the power of the Federal Communications Commission to punish broadcast television stations for showing brief nudity or failing to bleep dirty words during prime time programming.

The case, FCC v. Fox Television, will examine whether the FCC鈥檚 indecency enforcement procedures violate the First and Fifth Amendments. At issue is the government鈥檚 attempt to police the public air waves to prevent not only obscene material, but also indecent communications offensive to a family-oriented audience.

The current indecency enforcement effort stems from a 1978 high court decision that upheld sanctions against stations that broadcast comedian George Carlin鈥檚 famous routine on the seven dirty words you can鈥檛 say on the public air waves.

For years, the FCC enforced a policy against the systematic and repeated use of offensive words, most of which had been identified 鈥� effectively and repeatedly 鈥� by Mr. Carlin.

In 2001, the FCC changed course. It began enforcing a prohibition not just on systematic indecency but also on the use of fleeting expletives 鈥� dirty words blurted out during a prime time program. Several celebrities during music award programs on Fox used the 鈥淔-word,鈥� and the 鈥淪-word.鈥� In addition, an episode of ABC鈥檚 NYPD Blue featured a scene revealing a woman鈥檚 bare buttocks.

The FCC declared the programs 鈥渋ndecent.鈥�

The broadcasters fought back with a lawsuit, claiming the FCC鈥檚 censorship was ill-defined and difficult to decipher. The Second US Circuit Court of Appeals in New York agreed and struck down the FCC鈥檚 policy as unconstitutionally vague.

The government defends the FCC policy, noting that broadcasters had been given fair notice.

Legal analysts are watching the case to see if the court uses it to affirm traditional indecency standards or instead requires a more permissive policy in light of widespread use of the Internet and cable television.

鈥淚 think the thing that will interest the court most is just the prospect of chilling鈥� and whether the FCC policy provides the requisite degree of clarity, John Elwood, an appellate specialist and former law clerk to Justice Anthony Kennedy, told a recent briefing at the National Chamber Litigation Center.

鈥淥ne thing that makes [Justice Kennedy] really passionate, is will people know whether they can broadcast something,鈥� Mr. Elwood said. 鈥淚f it is a close question whether you can broadcast Schindler鈥檚 List because there are naked people in concentration camps, that is going to give him a lot of heartburn.鈥�

In an important case involving the First Amendment鈥檚 separation of church and state, the justices will consider whether a former teacher at a Lutheran elementary school can sue the church-run school for alleged disability discrimination and retaliation.

The case is Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC and Cheryl Perich.

School officials argue that the lawsuit is barred under the 鈥渕inisterial exception,鈥� a legal doctrine which blocks employment-related lawsuits against religious organizations filed by employees who perform important religious functions.

The ministerial exception is designed to insulate religious groups from interference and second-guessing by judges and others about how the group is carrying out its religious mission. It applies to pastors, priests, and rabbis.

The issue in the Lutheran school case is whether it also applies to a teacher who spent most of her day presenting a secular curriculum to her students, but who also was a 鈥渃ommissioned minister鈥� who taught religious classes and led the children in prayer.

Douglas Laycock, a University of Virginia law professor representing the Lutheran school, says the case could trigger 鈥渁 revolution in relations between church and state.鈥�

鈥淭he ministerial exception is limited to employees who perform functions important to the employer鈥檚 religious mission,鈥� he writes in his brief to the court. He says the teacher was dismissed for violating church rules and that the courts cannot decide her claim without becoming involved in underlying religious disputes.

鈥淎llowing her claim to go forward would leave the church unable to control who teaches the faith to the next generation,鈥� Mr. Laycock writes.

Lawyers for the teacher counter that generally applicable anti-discrimination laws are fully enforceable and 鈥渘eed not give way to religious exercise.鈥�

The teacher is not asking any court to take sides in a religious dispute, her lawyers say. Rather, she merely seeks a determination of whether her dismissal violated generally applicable provisions of a federal anti-discrimination law.

The disputed status of Jerusalem

In Zivotofsky v. Clinton, the high court will wade into a clash between Congress and the executive branch over a sensitive matter of foreign affairs 鈥� the disputed status of Jerusalem.

Because Jerusalem is a disputed territory and a major source of disagreement in Middle East peace talks, the US government has tried to remain neutral on the Jerusalem issue.

As a result, children born in Jerusalem to US citizens are listed on birth documents as having been born in Jerusalem. No country is noted on the State Department documents.

Pro-Israeli members of Congress who disagree with this neutral posture, sponsored and passed a law directing the State Department to record the place of birth as Jerusalem, Israel.

The issue came to a head following the birth of Menachem Zivotofsky, a US citizen, in Jerusalem. His mother applied for a passport for her infant son and asked that the place of birth be recorded as Jerusalem, Israel. When the State Department refused, the parents sued to enforce the federal statute.

A federal judge threw the case out, saying it presented a political question best left to the elected branches of government to iron out. The federal appeals court in Washington affirmed.

In agreeing to take up the parents鈥� case, the high court asked both parties to address an additional issue: Whether Congress鈥檚 Jerusalem law impermissibly infringes on the president鈥檚 power to recognize foreign sovereigns?

Neil Kinkopf, a law professor at Georgia State University, says the added question may telegraph a decision in the president鈥檚 favor.

During a recent Supreme Court preview briefing, Professor Kinkopf told the American Constitution Society that four of the nine justices had prior work experience arguing separation of powers issues on the side of the president.

They include Justices Elena Kagan, Antonin Scalia, Samuel Alito, and Chief Justice John Roberts.

This prior experience, he said, will 鈥渙rient the court to look favorably on the president鈥檚 position.鈥�

But Kinkopf warned, 鈥淭he way they do it could have dramatic consequences because Congress has other powers and the president has other exclusive powers, like the commander-in-chief power.鈥�

How the court resolves the Jerusalem issue could set the stage for larger confrontations, he says.

鈥淐an Congress use its spending power to limit the way the president exercises the commander in chief power?鈥� Kinkopf asks.

鈥淐ould Congress say to the president no money may be spent for military operations in Libya, or no money may be spent for a surge in Iraq,鈥� he asked.

Two important Fourth Amendment cases are also high on the court鈥檚 docket this term.

In Florence v. Board of Chosen Freeholders, the justices have agreed to decide whether the government has the power to order the routine strip search of persons detained by law enforcement regardless of how minor the offense or any individual assessment of his or her likelihood to be carrying a weapon or contraband.

Tracking criminal suspects' cars

The court will also decide in United States v. Jones whether the Fourth Amendment allows law enforcement officials to install a GPS tracking device on a suspect鈥檚 car to conduct continuous round-the-clock surveillance without first obtaining a judicially-authorized warrant.

By far the most significant case of the term 鈥� and perhaps for a generation 鈥� will be the constitutional challenge to the Affordable Care Act.

Did Congress act within its commerce clause powers when it approved the ACA鈥檚 individual mandate?

The ACA requires every American to purchase a government-approved level of health insurance or pay a penalty.

Opponents say never before has the US government required citizens to purchase a private service or face punishment. Supporters say the measure is well within Congress鈥檚 power to regulate interstate commerce.

A panel at the Eleventh US Circuit Court of Appeals in Atlanta voted 2 to 1 to strike down the individual mandate as exceeding Congressional authority. A different panel at the Sixth Circuit in Cincinnati ruled that the mandate did not violate commerce clause restrictions. A third panel at the Fourth Circuit in Richmond threw the case out on other grounds.

鈥淭he federal government鈥檚 assertion of power, under the commerce clause 鈥� is unprecedented, lacks cognizable limits, and imperils our federalist structure,鈥� the Eleventh Circuit majority declared.

In a brief urging the high court to take up the case, US Solicitor General Donald Verrilli said the Eleventh Circuit had jettisoned 鈥渢he considered judgment of the elected branches of government 鈥� after years of study and deliberation 鈥� on how to address a crisis in the national health care market.鈥�

He added: 鈥淭he minimum coverage provision is squarely within Congress鈥檚 power to regulate interstate commerce, lay and collect taxes, and enact legislation.鈥�

鈥淭he court of appeals鈥� contrary decision is fundamentally flawed and denies Congress the broad deference it is due in enacting laws to address the nation鈥檚 most pressing economic problems and set tax policy,鈥� he wrote.

It is now up to the Supreme Court to resolve the disagreement. Initial briefs have already been filed. Reply briefs are expected by the end of the month. The court could announce in November whether it will hear the case, and which questions it will decide. A final decision could be expected by late June.

The ACA is one of the Obama administration鈥檚 greatest achievements 鈥� an attempt to fundamentally reshape the provision of health insurance nationwide. But it is also controversial. Attorneys general from 26 of the 50 states are co-litigants who urged the Eleventh Circuit to declare the law unconstitutional.

The reform effort has also split the nation. That division is expected to continue and deepen with each stage of the litigation extending well into the 2012 presidential campaign.