The Supremes are back, and another docket of big cases looms


McClatchy Washington Bureau

Joshua Banka died in his bathroom, surrounded by the drugs that consumed him.

A baggie of heroin sat near the sink. Several bottles contained oxycodone tablets and other potent painkillers. Syringes littered the room.

Now, the sordid scene discovered in April 2010 by officers in the town of Nevada, Iowa, provides the backdrop for high-minded Supreme Court consideration. The Iowa case is one of more than 40 already scheduled for the court’s new term, which starts Monday, Oct. 7, and will last – like its roller-coaster predecessors – through next June.

“They all seem to be action-packed in one way or another,” said John Malcolm, a senior legal fellow at the Heritage Foundation, a conservative policy think tank.

For the convicted Iowa drug dealer, Marcus Burrage, now serving 20 years in a federal prison in Texas, the upcoming Banka case presents a crucial chance to secure earlier release. The case could also be key for other accused dealers, as justices could determine what prosecutors must prove to secure conviction on a charge of distributing a drug that causes death.Put simply, it’s a question of testing the cause-and-effect connection between drug and death.

By the time the court’s 2013 term expires, though, the case called Burrage v. United States is likely to be eclipsed by others of more sweeping import. In coming months, the nine justices will:

– Revisit affirmative action, assessing whether Michigan voters went too far when they amended the state constitution to prohibit race-based or gender-based preferences in public university admissions.

– Potentially unwind campaign finance reform, by challenging the aggregate contribution limits that constrain how much total money individuals can donate to federal candidates.

– Consider, in separate cases, political prayers and presidential appointments.

It’s far too early to call the coming term a blockbuster. But with the court likely to docket another 30 or so cases before it’s done, there are definite history-making possibilities.

“This has the potential to be a really significant term,” said Pamela Harris, a professor at Georgetown University Law Center. “It’s a little bit under the radar right now.”

The new term will begin with four arguments on the storied first Monday of October, a little more than three months after the conclusion of the 2012 term at the end of June. Last term met the definition of “blockbuster” by any measure: The court effectively struck down a ban on same-sex marriage in California, struck down a ban on federal benefits afforded to same-sex couples nationwide and undercut a key provision of the Voting Rights Act.

Several of last term’s highest-profile cases were added well after October. For the upcoming term, many court-watchers expect to see cases challenging warrantless police searches of cellphones. In one, San Diego, Calif., police used photos and videos stored on a Samsung smartphone to link the phone’s owner to a criminal gang. The man says the search violated the Fourth Amendment, now a cutting-edge issue because of the proliferation of hand-held electronics.

“The question is, is there something fundamentally different about electronic devices, given the quality and quantity of information found on them,” said Catherine Crump, a staff attorney for the American Civil Liberties Union.

Some cases already on the docket could enable the court’s slim conservative majority to continue chipping away at old targets.

In the hotly contested 2010 case known as Citizens United, for instance, the court removed limits on campaign spending by corporations and labor unions. Last year, citing the same reasoning, the court struck down a Montana state law banning corporate campaign spending. This year, the court will consider whether to strike down long-standing limits on the total amount political donors can give during a two-year campaign cycle.

For the 2013-2014 campaign cycle, the current inflation-adjusted limits cap an individual’s total contributions to $123,300.

An Alabama resident and Republican donor named Shaun McCutcheon is challenging the aggregate contribution limits, declaring in a legal brief that the limits “effectively penalize those who wish to exercise their First Amendment rights robustly.” It’s already clear he has some allies among the justices who believe that political donations are tantamount to both political speech and political association.

“The past couple of terms have shown there are five judges who are skeptical of campaign finance reform limits,” said former Bush administration Solicitor General Paul Clement. “The question is whether this case is going to be another Citizens United.”

A different kind of political conflict centers on a challenge to President Barack Obama’s use of recess appointments to fill vacancies. Stymied by Senate Republicans, Obama used his recess-appointment authority to name members to the National Labor Relations Board and Consumer Financial Protection Bureau while the Senate was holding brief pro forma sessions. The court may now have to sort out what a Senate recess is, with potentially far-reaching implications for presidential clout.

“It’s become, actually, quite a remarkable case, at least potentially,” said David Strauss, a professor at the University of Chicago Law School.

In a case from New York state, justices will revisit a challenge to town legislators who open their session with prayer; the question is whether the prayers amount to a government endorsement of religion.

Among potential cases, the justices are likely to add a challenge by employers to the Patient Protection and Affordable Care Act’s so-called contraception mandate. Religious colleges and others argue the law’s requirement that employers include contraception in their health plans violates religious beliefs, and numerous lawsuits in several states all but oblige the high court to step in.

Email:; Twitter: @MichaelDoyle10

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