Supreme Court about to start most interesting term in years

McClatchy NewspapersSeptember 29, 2011 

WASHINGTON — California health-care conflicts will kick off a Supreme Court term that will, in time, turn toward the truly dramatic.

States and doctors have multi-billion-dollar stakes in the California case that starts the new term Monday. They're weighing in, on competing sides. And just over the horizon is the lumbering giant: all-but-certain Supreme Court review of the Obama administration's health care law right in the middle of an election year.

"It might be a fantastic Supreme Court term," said Neal Katyal, formerly the Obama administration's acting solicitor general.

The term will be the second for the court's newest justice, Elena Kagan, and the seventh for Chief Justice John Roberts Jr. Though three other justices are 75 or older, no retirements appear imminent.

For now, the court has agreed to hear some 50 cases that cover everything from jailhouse strip searches and GPS snooping to swear words and California's proposed Medicaid reimbursement cuts.

In early November, for instance, the court will weigh whether Washington, D.C., police who planted a GPS tracking device on a drug suspect's car without a valid warrant violated his constitutional rights. The trickiest question may turn on whether the police improperly infringed on private property when they affixed the device.

Later in November, the court will consider whether the Federal Communications Commission can fine television networks for "fleeting expletives." The case goes back to Fox TV shows in 2002 and 2003, when semi-celebrities blurted out what attorneys now discreetly call "the F-word" and "the S-word."

Court-watchers think that the broadcasters will prevail.

"The court has rarely seen a First Amendment (argument) it doesn't like," noted lawyer Kannon Shanmugam, who's argued 10 cases before the Supreme Court.

Potentially ahead, if the court agrees to hear them, are challenges to affirmative action at the University of Texas, Arizona's crackdown on illegal immigrants and, most anticipated of all, Obama's signature health care program.

The court's nine justices will add more cases for the next several months, until they reach their usual limit of about 75 for the term. At least four justices must agree to hear a case for it to be added to the docket. The challenge to the Obama administration's health care law almost certainly will meet this threshold, in part because appellate courts are badly split.

The 11th U.S. Circuit Court of Appeals, which covers Florida, Alabama and Georgia, found the insurance mandate unconstitutional. The 6th U.S. Circuit Court of Appeals, which comprises Kentucky and three other states, concluded otherwise.

The biggest pending challenge may be to the requirement that individuals be covered by insurance or pay a fine. Another tossup question is whether the entire law can survive if the high court, now dominated by Republican appointees, strikes down part of it.

"It does seem likely the court will consider the health care case sometime this term," former Bush administration Solicitor General Paul Clement said, with some understatement. "The interesting question is what, exactly, they will consider."

On Wednesday, the Justice Department formally asked the court to hear the health care case.

A lower-profile health care dispute will captivate the justices during the term's inaugural hourlong oral argument Monday morning. The immediate question is who can sue, but the outcome could help determine whether states can save money by cutting Medicaid reimbursements.

"It's a really interesting case for the Supreme Court, and a really formidable lineup on both sides," said Elizabeth Papez, a lawyer and former Supreme Court clerk.

In 2008 and 2009, amid a grinding budget crisis, the California Legislature imposed cuts of 1 percent to 10 percent in reimbursements to pharmacists, hospitals and others. This adds up, as California's total Medicaid spending exceeds $41 billion annually.

Santa Rosa Memorial Hospital and other health care providers sued, arguing that the federal Medicaid law effectively blocks states from imposing reimbursement cuts. California, in turn, argues that such private parties can't invoke the Constitution in challenging the state's use of Medicaid.

Thirty-one states — including Alaska, Florida, Idaho and North Carolina — are siding with California. So is the Obama administration, whose solicitor general, Donald Verrilli Jr., will help argue the case Monday.

Groups as diverse as the U.S. Chamber of Commerce and the American Civil Liberties Union have allied in support of the doctors, because the case is fundamentally about who gets to sue. These organizations like to use lawsuits to challenge government regulations or practices.

"The entire health-care safety net is at risk if this case is lost," said Los Angeles-based lawyer Lloyd Bookman, who represents the California Pharmacists Association and others. "If the states win, and hospitals are precluded from suing, what states will do is continue to reduce their reimbursement rates."

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