Starting Monday, Supreme Court to tackle tough cases - East Valley Tribune: Nation / World

Starting Monday, Supreme Court to tackle tough cases

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Posted: Saturday, October 1, 2011 7:45 pm | Updated: 11:25 am, Mon Oct 3, 2011.

WASHINGTON - The U.S. Supreme Court, in the 2011-12 term that starts Monday, will examine the legality of secret police tracking of motorists as well as jailhouse strip searches.

As important as those cases are, they are overshadowed by two issues the justices are likely to add to their docket in the next few months: a state's authority to regulate immigration and the federal government's authority to regulate health insurance.

Also awaiting review is a case that could enable the court's conservative majority to reconsider a 5-4 ruling in 2003 that upheld a limited form of race-based affirmative action at public universities.

In other words, the court is in a position to leave a giant footprint on public policy in the coming year.

The term is shaping up as historic, said Thomas Goldstein, a veteran Supreme Court litigator and founder of the influential website.

"The only thing that would be missing from the most incredible term in the history of the court would be gay marriage," which is at least a year away from the docket, he said. But the court could address gay rights in a case awaiting review involving Louisiana's refusal to recognize a same-sex adoption from New York.

The cases on the Supreme Court's calendar include a test of police authority to attach GPS tracking devices to cars and monitor their movements for extended periods.

Lower courts have disagreed over whether the monitoring is intrusive enough to constitute a search, which requires a warrant, or is merely another way to keep track of a suspect's movements.

If the court finds that police in Washington, D.C., needed a warrant to plant a GPS device on a car driven by a suspected drug dealer, the ruling could undo the murder conviction of Yusuf Bey IV for the death of Oakland journalist Chauncey Bailey.

Oakland police used a hidden tracking device to trace a car owned by Bey, leader of Your Black Muslim Bakery, to Bailey's apartment before the August 2007 shooting, and to the murder scene shortly after the shooting. The evidence helped convince a jury that Bey ordered the killing.

The court will also weigh claims of security versus personal privacy in the case of a New Jersey man who was strip-searched before being booked into jail on a minor charge that proved to be unfounded. Several courts have upheld jail policies that require strip-searching of all new inmates without evidence that they are hiding contraband.

A case with a potentially high financial impact will be taken up at the court's opening session on Wednesday. It involves suits by doctors, pharmacies and patients contending California has illegally cut several billion dollars since 2008 from the reimbursement fees paid by the state to health care providers under Medi-Cal, which serves 7.6 million low-income Californians.

A federal appeals court ruled that the reductions violate a federal law requiring fees to be set at levels that give the poor equal access to health care. California, joined by 31 other states and the Obama administration, argues that only the federal government can enforce that law and that private citizens have no right to sue.

The new national health care law, meanwhile, is on a fast track to the court. Last week, the Obama administration passed up further appellate review and proposed a timetable that would produce a Supreme Court ruling by the end of June -- well in advance of the November presidential election.

The multifaceted law is intended to provide coverage to 30 million of the 50 million uninsured Americans through business tax breaks and federal subsidies to private insurance exchanges. It requires insurers to accept applicants regardless of physical condition.

But Republican-backed lawsuits have focused on a single provision, which would require most people to buy insurance by 2014 or pay a tax penalty.

The mandate is intended to prevent young and healthy people from dropping out of the insurance market while the sick and elderly, newly eligible for coverage under the law, push costs upward.

But appeals courts have disagreed on whether requiring private citizens to purchase insurance is within the federal government's power to regulate interstate commerce -- one court said yes, another said no, and a third said the law can't be challenged until tax penalties are actually collected.

On another issue, the court majority suggested this year that it is skeptical of federal government claims of exclusive authority over immigration, the key to the dispute over a bellwether Arizona law awaiting the justices' review.

The law, a model for legislation passed by three other states, requires police to demand immigration papers from people they lawfully detain and reasonably suspect of being present illegally.

In a suit by the Obama administration, the federal appeals court in San Francisco blocked the law's central provisions in April, saying the state was turning its police into immigration officers and interfering with federal immigration authority.

In May, however, the Supreme Court upheld another Arizona law allowing the state to revoke the licenses of businesses that repeatedly hire illegal immigrants. The case involved a different issue -- the scope of a federal law allowing states to act against the licenses of offending businesses -- but arguments that Arizona was intruding on federal turf failed to sway the majority led by Chief Justice John Roberts.

Before that ruling, said Goldstein of, the court seemed virtually certain to strike down Arizona's "show us your papers" law. Now, he said, it's a toss-up.

Less prominent, but potentially just as important, is the prospect of new judicial restrictions or even an outright ban on affirmative action.

After ruling that quotas and set-asides for minorities and women violated constitutional guarantees of equal protection, the court in 2003 narrowly upheld a University of Michigan law school policy that considered applicants' race as one of several factors to promote campus diversity.

That ruling was written by now-retired Justice Sandra Day O'Connor, whose successor, Justice Samuel Alito, voted in 2007 to prohibit any consideration of race in public school enrollment. If the court agrees to review a University of Texas admissions program modeled after the Michigan policy, it could mean the majority is about to reverse course.

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