CBJ - August 2012 #01. October 2011 term: An amazing nine months.

Author:By Erwin Chemerinsky

California Bar Journal


CBJ - August 2012 #01.

October 2011 term: An amazing nine months

The California LawyerAugust 2012October 2011 term: An amazing nine monthsBy Erwin ChemerinskyFew U.S. Supreme Court decisions in recent memory have attracted as much attention as National Federation of Independent Business v. Sebelius, which upheld most of the provisions of the Patient Protection and Affordable Care Act. Although this unquestionably was the most important decision of the year in terms of its practical and political significance, the term was filled with significant cases such as those extending the right to effective assistance of counsel to plea bargaining, finding crucial provisions of Arizona's controversial SB 1070 to be unconstitutional, and limiting the political influence of public employee unions.

The court decided only 65 cases after briefing and oral arguments, the fewest in decades. A year ago, the court decided 75 cases after briefing and oral arguments and as recently as the 1980s the Court was averaging over 160 cases a term.

Once more, Justice Anthony Kennedy was most often in the majority, 93 percent of the time, and was in the majority in more 5-4 and 5-3 decisions than any other justice (12 of 16). But Chief Justice John Roberts was close behind, being in the majority 92 percent of the time, and he wrote what was certainly the most important opinion of the term in upholding the Affordable Care Act.

In each of the six prior years of the Roberts Court, the conservative position prevailed much more often than the liberal one. But October Term 2011 was decidedly more mixed. There were key liberal victories, such as the decisions about the health care law, Arizona's SB 1070, limits on life sentences without parole for juvenile murderers, and free speech. But there also were crucial conservative victories in limiting contributions to public employee unions, allowing strip searches of inmates without reasonable suspicion, and in many civil rights cases where the court made it harder to sue government officials.

Patient Protection and Affordable Care Act

There were three parts to the court's holding in National Federation of Independent Business v. Sebelius. First, by a 5-4 margin, the court upheld the individual mandate, the centerpiece of the Act. There are 50 million Americans without health insurance and the Affordable Care Act seeks to remedy that. A crucial mechanism is to require that almost all individuals have health insurance and those that don't must pay a penalty to the Internal Revenue Service. Insurance companies are required to provide coverage to all and no longer can deny policies based on preexisting conditions, or charge higher premiums based on health conditions, or impose yearly or lifetime caps on payments.

Chief Justice Roberts, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, said that the individual mandate is a tax and within the scope of Congress's taxing power. He explained that the mandate is calculated like a tax; for example, in 2014, it is one percent of income or $95 for those who do not purchase insurance. It is collected by the Internal Revenue Service and the funds go to the federal treasury; it will generate about $4 billion in 2014. The court said that it was...

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