Constitution Daily

Smart conversation from the National Constitution Center

What to look for in the new Supreme Court term

September 29, 2011 by Lyle Denniston


Editor's Note: Lyle Denniston and John Payton, President and Director-Counsel of the NAACP’s Legal Defense Fund, explored the Supreme Court's upcoming term in a recent program at the National Constitution Center. Click the play button below to hear the podcast:


An old saying tells us that the Supreme Court follows the election returns.  On Monday,  the Court opens up a new term and, as it unfolds, the politicians will be following closely what the Justices do.

The Court probably will be faced, at some point in the nine-month session that is just beginning, with major constitutional questions closely related to some of the 2012 election campaign’s main issues: what to do about health care, how to deal with the undocumented aliens living in America, and where in public a gun-owner can carry a pistol or rifle.

Those could be added to a docket that is already crowded with major constitutional and legal disputes, ranging from government attempts to ban all four-letter words from TV and radio, to police use of high-tech devices to track suspects, to the states’ attempts to cure budget crises by cutting Medicaid benefits for the poor, to the use of questionable eyewitnesses to help get criminal convictions – an issue recently brought to prominence in the contested death-penalty case – and execution – of Troy Davis in Georgia.

And as all of this plays out between October and late June, the nation will continue to see how the two “rookie” Justices, Elena Kagan (second year) and Sonia Sotomayor (third year), move to make places for themselves among the nine.   Both have had impressive beginnings, and both promise to become increasingly influential in the Court’s inner councils, and public hearings.

The Court under Chief Justice John G. Roberts, Jr., is still expected to be dominated, most of the time, by its more conservative Justices.  But Kagan and Sotomayor seem sure to bolster the minority bloc of liberals and moderates.

It will take a few weeks into the term before the Justices make up their minds how deeply, if at all, they are going to get involved in the energetic public conversation about President Obama’s signature domestic program – the new health-care law.  That issue moved onto a faster procedural track just this week, so is due to come up quite soon.

The Court is still expected to be dominated by its more conservative Justices.

The key issue, of course, is whether Congress had the constitutional authority to order nearly every one in the country to have health insurance by the year 2014.  Lower federal courts are divided on that issue, and that very division enhances the chances that the Justices will step in.   It is already apparent that, as President Obama runs next year for reelection, health care is sure to be a dominant campaign issue.

At about the same time that the Court confronts the health care dispute, it is likely to react  to the contentious constitutional debate over Arizona’s tough new immigration-control law, written specifically to narrow the pursuits and opportunities of undocumented aliens in that state.   From the Republican presidential candidates’ debates this fall, it is already obvious that immigration controls will be a major issue in the 2012 election season.

Among the social controversies that are roiling the political discourse, none is more potent a source of constitutional controversy than the question of same-sex marriage.  The court cases raising that question, though, have taken some time to develop, so that question probably will not reach the Justices in the new term.  It seems unavoidable, in the long term, however.   Perhaps with all that now awaits the Justices in coming months, they might not mind waiting for that issue to arrive.


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