A Look Ahead at Supreme Court Term

Top legal scholars discuss key cases

-By Gilien Silsby

Three of the nation's top constitutional law scholars - Michael McConnell and Jeffrey Fisher of Stanford Law School and Rebecca Brown of USC Gould School of Law – offered insights on some of the most important cases before the U.S. Supreme Court at a recent 2011 Preview event at USC.

Sponsored by USC Law and the student chapters of the Federalist Society and American Constitution Society, "U.S. Supreme Court: A Preview," drew an audience of more than 250 USC Law alumni, law and undergraduate students, faculty, staff and local attorneys.

The diverse group of experts spotlighted areas to follow as the Supreme Court Term begins on Oct. 3. USC Provost Elizabeth Garrett, a USC Law professor who clerked for Justice Thurgood Marshall, moderated the event.

"The Roberts Court is establishing its voice and reputation,' said Garrett. "The Chief is playing an increasingly large role as a leader. And of course, everyone is watching Justice Anthony Kennedy, the pivotal vote in so many cases. While the Chief and Justice Kennedy get a lot of coverage, other justices are also getting attention and will play key roles in cases we will discuss today. "

The panelists discussed some the biggest cases on the Court's docket, including Zivotofsky v. Clinton, a separation of powers case; United States v. Jones, the Fourth Amendment GPS tracking case; and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the "ministerial exception" to the American with Disabilities Act(ADA) case.

McConnell, who clerked for Justice William Brennan and is former U.S. 10th Circuit Court of Appeals judge, said Hosanna-Tabor v. EEOC is “a very important sliver of American life” because it challenges the  “ministerial exception” to the ADA, which currently allows religious institutions to give religious preference to staff hirings.

“This is one of the most important, interesting and difficult cases we’ve seen in decades,” said McConnell. “The question is whether churches have a right to hire and fire their own clergy,” who have traditionally been exempt from the ADA.

McConnell, who filed an amicus brief on behalf of several Protestant churches, added, “This is the case every church in America is looking at. The puzzle is: What is the constitutional basis for it? … We argued that the exception is well-grounded in the First Amendment: the Establishment Clause, Freedom of Religious Association and the Free Exercise Clause.”

Zivotofsky v. Clinton, which looks at whether Congress can force the president to recognize foreign governments, is one of the few separation of powers cases before the Court in recent history, said Brown, who clerked for Thurgood Marshall and organized the Preview.

Zivotofsky was born to American parents in West Jerusalem, and his parents wanted his passport to say that he was born in Israel. George W. Bush signed a bill directing the State Department to list Israel on the passports of American children born in Jerusalem for those who requested it. However, the State Department refused, saying it doesn’t recognize Jerusalem as the capital.

“This is a fascinating case for constitutional law buffs,” said Brown. “We haven’t really had a case involving a clash between Congress and the president since Justice Roberts took over as Chief.. Four of the justices have served in the executive branch, so you might think they would be sympathetic to the president. But Congress makes a strong case – they are saying, ‘We grant citizenship to those born abroad under our naturalization power, and so this is our bailiwick’… The question is what role will the Court play in refereeing the dispute between the two political branches?”

Another case discussed was United States v. Jones, which looks at whether police officers need to obtain a warrant before placing a global positioning device on a suspect’s car.  “It kind of raises the specter of 1984,” said Fisher, who clerked for U.S. Supreme Court Justice John Paul Stevens. “There is an ick factor to the case. It’s going to be fascinating how these cross elements play out.”

McConnell said the notion of a reasonable expectation of privacy no longer provides a meaningful baseline for determining the boundaries of the Fourth Amendment. Police warrants allow law enforcement to do something “that if a regular citizen did would be considered trespassing. I think the Court is going to have to think long and hard about this. The Internet has changed everything – GPS allows the government to virtually paint a picture of someone’s life.”

The panel also discussed Health Care Reform litigation, which they predict will eventually wind its way to the Supreme Court.

“In my view this isn’t a hard case at all," said Brown. "The regulation of the health care sector is quite clearly the regulation of interstate commerce under all the Court’s precedents.  The only question is, when it regulates interstate commerce, are there limits to what Congress can do?  But the cases show that the answer to that question is no.   And so, unless five justices are willing to depart from precedent, or to recognize a new individual constitutional right not to be required to purchase insurance, they are going to have to follow the general rule that Congress, and not the Court, decides how it uses its power to pass laws governing the national economy." 

Following the Preview, panelists mixed with alumni, professors and students at a reception. “I have been to the Supreme Court Preview for the past three years, and I always find it interesting and informative,” said Alex Fullman, a junior at USC. “It's always a great event with incredibly distinguished and insightful panelists. I enjoy the discussions on some of the important cases before the Supreme Court and keep an eye out for these decisions in particular.”

Chris Cook, a third-year USC Law student and president of the USC Law Federalist Society student chapter, added, "USC Law students were privileged to have panelists who could share not only their scholarly expertise, but personal insights gained from arguing over a dozen cases in front of the Supreme Court.  Every student I spoke to following the event was impressed with the diversity of the perspectives shared and the depth of the discussion."