SCOTUS Cases Could Affect Presidential Race

The U.S. Supreme Court opens its 2011-2012 session Monday, in what could prove to be one of the most notable terms in years. The court is expected to hear cases about immigration, Medicaid and President Obama's landmark health care law. Michel Martin discusses the cases with George Washington University Law Professor Paul Butler and Eva Rodriguez, a Washington Post editorial writer who specializes in legal affairs.

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MICHEL MARTIN, host: I'm Michel Martin, and this is TELL ME MORE, from NPR News. Coming up, there is a grassroots movement aimed at clearing the name of George Stinney, Jr. He was put to death more than 60 years ago when he was just 14 years old, giving him the tragic distinction of being the youngest person to be executed in the U.S. since the 19th century. We'll tell you his story and what's behind the effort to exonerate him in just a few minutes.

But first, to the Supreme Court. The court opens its new session today, and while this is important every year, this session has the potential to influence the outcome of next year's presidential election. Why? The court is expected to hear cases dealing with some of the very issues that are already driving the campaign, such as immigration and Medicaid. That's the federal health insurance program for low-income Americans. But probably the most watched case this term could be a review of the constitutionality of the individual insurance mandate, which was a key provision of the Obama administration's landmark healthcare law.

Important to note that the healthcare case is not yet on the Supreme Court docket, but is widely expected to be at some point this session. So, to talk about this and more, we have with us George Washington University law professor Paul Butler. He's the author of "Let's Get Free: A Hip-Hop Theory of Justice," and Eva Rodriguez, Washington Post editorial writer who specializes in legal affairs. She's covered the Supreme Court, and she joins us from the studios at the Washington Post.

Welcome back to you both. Thank you both so much for joining us once again.

PAUL BUTLER: Hey, Michel. It's great to be here.

EVA RODRIGUEZ: Thanks.

MARTIN: So, Eva, I'm going to start with you. Last week, the Justice Department actually requested that the court rule on challenges to healthcare law filed by 26 states and the National Federation of Independent Business. Why would they do that?

RODRIGUEZ: Well, the case that they're appealing is a case where a lower court ruled against them. The court, and it's a court that's based in the South, based in Atlanta, ruled that the individual mandate, the sort of the cornerstone of the president's healthcare proposal that requires individuals - with a few exceptions - to buy healthcare, the court found that was unconstitutional. So, the Justice Department, on behalf of the entire administration, turned to the Supreme Court and said, hey. Please take a look at this and please overturn the lower court.

MARTIN: And Paul, it's Monday night, so I feel like I can use a football term, here, if that's okay. Is it possible that the court would punt this down a line, say I don't want to be - I don't want to participate in this? I don't want to be involved in this, because precisely because this is an election year. Is that possible?

BUTLER: It's possible, but I don't think likely. You know, there's a conflict in the circuits. One federal public court has ruled one way, saying the law is constitutional. The other has said that it's unconstitutional. It's an issue that the Supreme Court has got to resolve. So I think the thought will be: We might as well do it now. You know, they're technically not supposed to be involved in politics, so the fact that it's an election year and this is a hot-button issue, technically, that's supposed to be irrelevant to them.

MARTIN: Okay. So you think that it was logical and good strategy for the administration to take this before the court, even if they could lose?

BUTLER: Yeah, you know, either way, I think people have made up their mind on the politics of it. They're either for it or against it. So, the Supreme Court's ruling will just kind of be an exclamation point, and you either - that's what I thought, or yeah, you know, they're wrong. But it's not going to, I think, change the dynamic of what people in the political world think about this.

MARTIN: Another hot-button issue - okay. Eva, I wanted to move on. We have so many still to talk about. Another hot-button issue the court will weigh in on is immigration. The court's expected to tackle whether states can legally enforce - well, as, of course, I think everyone knows that a number of states like Arizona and Alabama most notably have passed statutes that are considered extremely tough, and then there's this question of whether they're superseding federal authority. But the issue that's specifically before the court on immigration - Eva, help me out on this - is a question of whether the length of a parents' lawful residence in the U.S. should be taken into account on whether a child may be deported.

RODRIGUEZ: Right, exactly. And the key here - and it involves - you know, it's really two cases, one involving a young Jamaican teenager who joined his mother in the United States when he was 14, 15 years old something like that, and a young Mexican national who joined his parents when he was just an infant.

But there are certain criteria in immigration law, and immigration law's incredibly complex and complicated, but it says that once you're granted legal status - in other words, you're a green card-holder - that if you commit a crime, if you do something wrong for which you may be deported, you don't have the right to challenge that unless you've been in the country after you've gotten that green card for a certain amount of time. And both of these kids had not been in the country long enough to earn the right to challenge their removal for, unfortunately, having committed crimes.

So they're arguing, well, gee, we individually haven't been here long enough, but our parents have, and we should be given credit for that time. Surprisingly for some folks, the Obama administration is arguing against them, saying the law does not allow that. The law shouldn't allow that. And these two young men, at this point, should not have the chance to challenge deportation.

MARTIN: If you're just joining us, you're listening to TELL ME MORE, from NPR News. We're talking about the opening of the Supreme Court session that's today. Joining us are Eva Rodriguez of The Washington Post editorial board and George Washington University law professor Paul Butler. And I always feel like I have to, you know, apologize during these conversations about the court session, because there's no way to address all the issues that we're going to want to talk about. And so, hopefully, you'll come back again and talk more about this as the court session, you know, proceeds.

But Paul, we've often talked about the role that Justice Kennedy has played in the court. And can you just talk about how - what role he's likely to play in these issues that we've discussed to, you know, to this point?

BUTLER: You know, us lawyers always get into trouble when we try to predict how the court's going to rule on a specific issue, but I'll go ahead and do that anyway. So, the conventional wisdom is you have four people who are very conservative, and you've got four people who are progressive-to-moderate. And then you have one guy who's kind of in the middle. That's Justice Anthony Kennedy. So he has cannily made himself the most powerful person on the Supreme Court, because he's the swing vote.

So, you know, we kind of think we know how the justices will vote on the healthcare issue and the immigration stuff. We don't know what Justice Kennedy is going to do.

MARTIN: Tell me about the - and Paul, get your - can I get your perspective on these immigration cases here, though? Is it - the cases that are grabbing the headlines, of course, around Arizona and Alabama that imposed some - are intended to make those states very uncomfortable for people who are there without proper documentation to work, to use public services and so forth. You know, what - are - those cases really aren't before the court at this point, but the case that Eva was just telling us about, will it have implications for those?

BUTLER: Sure. You know, part of this is just the legal issues are so juicy. So there's politics, you know, immigration's in the news all the time now. It's going to be an issue in the election, as is healthcare. But the constitutional issues are just fascinating. So with the healthcare, it's, you know, it's about states' rights and it's about how much power the federal government has to make people buy something that they might not want to buy.

With immigration, the Constitution is clear. It's the federal government that controls. But states are saying you guys aren't doing enough. We're being overwhelmed with these quote-unquote "illegal immigrants." We're trying to do something because you won't. So, again, juicy, juicy constitutional issues.

MARTIN: So in the couple of minutes that we have left, I wanted to ask each of you to tell us about cases that have not grabbed as many headlines, but are important nonetheless. Eva, you wanted to talk about one involving GPS tracking of criminal suspects.

RODRIGUEZ: Yeah. Again, fascinating, important and hasn't gotten that much attention yet, but it will. And it involves the question of: Can law enforcement officials place a GPS tracking device on your car without having to seek a court's permission? The Obama administration - again, surprising for some - is saying of course we don't need a court's permission to do that. We can follow a guy in a car on public streets - you know, undercover officers - and we don't need court permission for that.

Why should we need court permission to use the next step of technology and just place a GPS tracking device on the guy's car and follow him electronically?

MARTIN: And is this related to pursuit of terrorism suspects, or is it just street-level crime?

RODRIGUEZ: No, this is a straightforward, you know, bread-and-butter criminal case. They put a GPS device on the car of a Washington, D.C., nightclub owner that they suspected of dealing drugs. So, nothing to do with terrorism. They're saying we should be able to do this in run-of-the mill cases.

MARTIN: Paul, what other cases fascinate you?

BUTLER: There are a couple really interesting criminal procedure cases. One involves a guy who got arrested for not paying parking tickets. They took him to jail, and they gave him two strip searches, including a body cavity search. He was humiliated. He wasn't even guilty of the crime. He had evidence that he paid the tickets. But the - they say, well, that's what happens when you get arrested.

So the issue is when you get arrested for a minor crime like that, is the government allowed to do that kind of invasive body cavity search? So that's real interesting.

Real quick, another one that's coming up is how much power the government has to regulate religious institutions. So, there was a woman who was fired from - well, she worked at a church school. She got fired. Typically, under the First Amendment, church schools have a lot of authority about who they can hire. But she's saying they didn't follow the civil rights rules, including the Americans with Disabilities Act.

So there's this tension between freedom of religion on the one hand and the power of religious schools to hire who they want. And on the other hand, you know, do they have to follow the same kinds of employment rules that every other employer has to follow?

MARTIN: Eva, there's another case that I also think you were interested in. It had to do with a death row inmate who says his lawyers quit on him.

RODRIGUEZ: Yeah, and quit on him and left him with - and basically botched his last, best chance to challenge his death sentence. And what happened was when the time came for Corey Maples - the name of the death row inmate - to file a challenge, documents went to his lawyers in New York, who were volunteering for him, but they were sent back return to sender because the lawyers had left their law firm and did not bother to tell the court.

And the justices are being asked to decide whether that's fair, whether Mr. Maples has to be stuck with the mistakes of his lawyer, or whether he should be given the chance that, you know, his lawyers undermined by essentially abandoning him.

MARTIN: And Paul, finally, you wanted to say that this is an important anniversary that you wanted to call attention to.

BUTLER: Justice Thomas, Clarence Thomas' 20th year on the court is one important anniversary. The other is five years since he's asked a question.

(SOUNDBITE OF LAUGHTER)

BUTLER: So, you know, maybe he will choose to ask a question this term just to break the suspense.

MARTIN: Well, we'll see. Paul Butler is a former federal prosecutor. He's currently a law professor at George Washington University. He joined us here in our Washington, D.C., studios. Eva Rodriguez is a Washington Post editorial writer who specializes in legal affairs. She used to cover the Supreme Court. She joined us from the studios of the Washington Post. Thank you both so much for joining us.

BUTLER: Always a pleasure.

RODRIGUEZ: Thank you.

(SOUNDBITE OF MUSIC)

MARTIN: Coming up, he regularly stirs things up in the Barbershop. Now author and civil rights attorney Arsalan Iftikhar is challenging us to think differently about Islam.

ARSALAN IFTIKHAR: You never need to resort to the politics of despair or rage. You can be proud, practicing Muslims while also adhering to a strict platform of nonviolence, as well.

MARTIN: Our conversation about the new book "Islamic Pacifism: Global Muslims in the Post-Osama Era," that's coming up on TELL ME MORE from NPR News. I'm Michel Martin.

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