New York Times

October 5, 2014

by Adam Liptak

WASHINGTON — The Supreme Court on Monday returns to work to face a rich and varied docket, including cases on First Amendment rights in the digital age, religious freedom behind bars and the status of Jerusalem.

Those cases are colorful and consequential, but there are much bigger ones on the horizon.

“I’m more excited about the next 12 months at the Supreme Court than about any Supreme Court term in its modern history,” said Thomas C. Goldstein, who argues frequently before the court and is the publisher of Scotusblog.

In the coming weeks, the justices will most likely agree to decide whether there is a constitutional right to same-sex marriage, a question they ducked in 2013. They will also soon consider whether to hear a fresh and potent challenge to the Affordable Care Act, which barely survived its last encounter with the court in 2012.

The terms that concluded with those rulings riveted the nation. Now the two issues may return to the court — together.

“This term could become the ‘déjà vu all over again’ term of the century,” said Pratik A. Shah, a Supreme Court specialist with Akin Gump Strauss Hauer & Feld.

Chief Justice John G. Roberts Jr. is entering his 10th term, and it is one that could define the legacy of the court he leads. Should the court establish a right to same-sex marriage, it would draw comparisons to the famously liberal court led by Chief Justice Earl Warren, saidDavid A. Strauss, a law professor at the University of Chicago.

“It is only a slight overstatement to say that the Roberts court will be to the rights of gays and lesbians what the Warren court was to the rights of African Americans,” Professor Strauss said.

Petitions seeking review of decisions in the marriage and health care cases have already been filed. They may be joined in short order by ones on abortion and affirmative action.

“The prospect that every major social issue will collide before the justices may be historic,” Mr. Goldstein said.

For now, the court has agreed to hear some 50 cases, enough to fill out its argument calendar into February. Like the cases on the horizon, some of the most significant ones are sequels to earlier decisions.

In Zivotofsky v. Kerry, No. 13-628, a major separation-of-powers case, the court will return to the question of whether Congress may require the State Department to treat Jerusalem as the capital of Israel in American passports.

A notation in a travel document may seem like a small thing, but presidents from both political parties have said allowing Congress to decide the status of Jerusalem in even that setting would interfere with the constitutional authority to conduct foreign affairs.

The court might be inclined to duck the issue, since any ruling from it could be seen as taking sides on the underlying question of American policy regarding Jerusalem. But the justices tied their own hands in 2012, ruling that the case did not involve a “political question” beyond the federal courts’ power to decide.

William P. Marshall, a law professor at the University of North Carolina, said the case had great potential for legal and political mischief. “It’s a big fight over nothing that can cause a lot of problems down the way,” he said.

The justices will also take another look at race and voting in Alabama. Last year, in Shelby County v. Holder, they effectively struck down Section 5 of the Voting Rights Act, which had required permission from the federal authorities before some states and localities could change their voting procedures. In a supporting brief, Alabama had urged the court to rule that way.

In a consolidated pair of new cases, Alabama Legislative Black Caucus v. Alabama, No. 13-895, and Alabama Democratic Conference v. Alabama, No. 13-1138, the court will consider challenges from Democratic lawmakers who say the Alabama Legislature packed minority voters into a few districts, diluting their voting power.

State officials responded that Section 5 partly justified the legislative maps, which were drawn using data from the 2010 census when that provision still stood.

A divided three-judge Federal District Court panel ruled last year that the redistricting plan was lawful. In dissent, Judge Myron H. Thompson said that “there is a cruel irony to these cases” in light of the Supreme Court’s 2013 decision in the Shelby County case.

Many of the other cases on the court’s docket have unusual facts that mask the significant legal issues they present.

In Yates v. United States, No. 13-7451, for instance, the court will decide whether the Sarbanes-Oxley Act of 2002, a federal law aimed primarily at white-collar crime, also applies to fish. The law makes it a crime to destroy “any record, document or tangible object” in order to obstruct an investigation, and a fisherman, John L. Yates, was convicted of violating it by throwing three undersized red grouper back into the Gulf of Mexico.

The Supreme Court has been wary of stretching federal laws to fit minor crimes, ruling in June, for instance, that a chemical weapons treaty could not be used as the basis for a prosecution of a domestic dispute. In the fish case, Solicitor General Donald B. Verrilli Jr. told the justices that the 2002 law was not limited to financial crimes and was intended by Congress to address all sorts of obstructions of justice.

Another case, Elonis v. United States, No. 13-983, will require the justices to make sense of rap lyrics, a task that will almost certainly be a new experience for most of them. (“My colleagues are all enamored of opera,” Justice Sonia Sotomayor said at the University of Tulsa last month, adding that opera was “not my favorite form of cultural entertainment.”)

The case concerns Anthony Elonis, who adopted the rap persona Tone Dougie and posted tirades laced with violent imagery on Facebook in the form of rap lyrics after his wife left him. He was convicted under a federal law making it a crime to issue “any threat to injure the person of another,” and he was sentenced to 44 months in prison.

The question in the case is whether Mr. Elonis’s intent mattered, and the court’s answer will affect many prosecutions for threats made using social media including Facebook, Twitter and YouTube.

On Tuesday, in Holt v. Hobbs, No. 13-6827, the court will consider whether a Muslim prison inmate in Arkansas may grow a half-inch beard. Corrections officials there say such beards can pose a threat to security, as a place to hide contraband and as a way for escaped inmates to quickly change their appearance.

To decide the case, the court will apply a version of the legal test it used in June in the Hobby Lobby case, in which it ruled that some corporations could refuse to provide contraception coverage to their female workers on religious grounds.

The test, set out in federal laws, including one specifically directed at protecting prisoners’ rights, requires judges to consider whether the challenged government regulation places a substantial burden on religious practices. If it does, the government must show that it had a compelling reason for the regulation and no better way to achieve it.

In its last term, the court achieved a remarkable degree of consensus, with the justices deciding two-thirds of its cases unanimously. That is unlikely to be repeated.

Indeed, the court will probably also be divided on the threshold question of whether review is warranted on the two biggest issues awaiting its attention: same-sex marriage and the new challenges to the health care law.

The most important factor in whether the Supreme Court agrees to resolve an issue is usually whether there is a split among the federal appeals courts. But such disagreements are lacking in both sets of cases.

In the same-sex marriage cases, all of the recent federal appeals court decisions have struck down state bans on such unions. In recent remarks, Justice Ruth Bader Ginsburg suggested that this might be a reason for the Supreme Court to move slowly.

In the new health care challenges, there was initially a vivid splitbetween the federal appeals courts in Washington and in Richmond, Va., which in July issued conflicting decisions within hours of each other.

The appeals court here ruled that the federal government could not provide insurance subsidies to people in states that had chosen not to establish the marketplaces known as exchanges.

The court in Virginia took the opposite view. It said the contested phrase in the law, limiting subsidies to “an exchange established by the state,” was “ambiguous and subject to multiple interpretations.” That means, the court said, that the Internal Revenue Service’s interpretation, allowing subsidies without regard to whether the exchange is run by a state or by the federal government, is entitled to deference.

The split between the two courts was wiped out last month when the full United States Court of Appeals for the District of Columbia Circuit vacated the July ruling and set the case for argument in December.

The Supreme Court is not required to wait. A petition seeking review of the Virginia decision has already been filed, and it takes only four votes to grant review. Four members of the court — Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. — made their hostility to the Affordable Care Act more than clear in their fiery joint dissent in 2012.