Personal styles are on parade as Supreme Court opens term

McClatchy Washington BureauOctober 7, 2013 

— Eighty-year-old Justice Ruth Bader Ginsburg fired off the first question of the Supreme Court’s new term Monday, in a seeming retort to those who think that retirement might be in order.

Or maybe it was just a question, one of many during an hourlong oral argument in which every justice foreshadowed the roles they’ll play in the October 2013 term, which picks up speed Tuesday and will last through next June.

Justice Samuel Alito, a former prosecutor, dismantled an attorney with one incisive query. Justice Stephen Breyer, a former law professor, delivered a mini-lecture that ended with a question mark. Justice Clarence Thomas stayed silent as always, leaning far back in his chair and wearily rubbing his face.

Chief Justice John Roberts Jr., in a throwaway line, underscored the potential importance of every single word written by the court.

“You can say it’s only a footnote,” Roberts told an attorney at one point, “but it is what we said.”

When the history of the 2013 term is written, the inaugural case, called Madigan v. Levin, is itself likely to be relegated to a footnote, at best. Though initially built around an age discrimination complaint, the argument Monday was notable mostly for its largely technical nature and for the tentative performance of Chicago attorney Edward R. Theobald III, who struggled on behalf of a former Illinois employee who was fired at the age of 61.

“We could have done a better job, and I apologize for that,” Theobald said at the conclusion of his argument. “We could have done a better job.”

Instead, the 2013 term – which got underway despite the federal government shutdown – is bound to become known more for cases that involve campaign finance, affirmative action and presidential appointments, as well as a potential return to the Patient Protection and Affordable Care Act, among other hot-button issues.

From the flip side, the term also will be important for cases the justices choose not to hear.

On Monday, they denied more than 2,000 petitions, including one filed by three former Duke University lacrosse players hoping to sue the city of Durham, N.C., over a botched 2006 sexual assault investigation. Each term, the court rejects upward of 9,000 petitions for review and agrees to hear only about 75.

On Tuesday, before what’s expected to be a capacity crowd, the court will consider the latest high-profile challenge to campaign finance law. In McCutcheon v. Federal Election Commission, Alabama businessman and Republican donor Shaun McCutcheon is fighting the $123,000 aggregate limit on the amount that contributors may give to all federal candidates and parties in a two-year period. There also are limits on individual contributions within the aggregate total.

Conservative justices have previously unshackled campaign spending by corporations and labor unions. Some hope, and others fear, that the Roberts court might use the case to further undermine efforts to limit money in politics.

“I think the past couple of terms have shown there are five justices that tend to be skeptical of campaign finance limits,” former Solicitor General Paul Clement said at a Heritage Foundation briefing, adding that how aggressive the court might be “will come down to the chief justice.”

Underscoring the high stakes, an attorney for Senate Minority Leader Mitch McConnell, R-Ky., has been given time Tuesday to argue against campaign finance limits. McConnell wants the court to revisit and perhaps overrule a 1976 decision that permitted limits on campaign contributions while allowing unlimited campaign spending as an exercise of free speech.

“Not all persons have the name recognition of a George Clooney, a Bruce Springsteen or a Donald Trump, from whom a public endorsement or appearance would possibly carry weight,” attorney Bobby R. Burchfield wrote on McConnell’s behalf, adding that “for many if not most persons, a contribution of money is by far the most effective means of supporting a preferred candidate.”

Justices are scheduled to hear cases challenging a Michigan ballot measure that prohibits the consideration of race in state university admissions, as well as a challenge to the recess appointments that President Barack Obama made to the National Labor Relations Board. The Michigan case is slated to be heard Oct. 15; at present, citing the government shutdown, the court has announced only its intention to hear arguments through Oct. 11.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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