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The First Monday in October


Posted on October 8th, by Jonathan Levy in Musings. No Comments

This October has certainly been unique thus far.  Between the Obamacare exchanges opening, the capture of Anas al-Libi in Libya, and the proposed secession of North Colorado, and of course the one-week-and-counting government shutdown, the United States citizens and their government are defying traditions this month.

Except at 1 First St. NE, Washington D.C.

Roundtable readers are likely aware that yesterday, like every “First Monday in October” since 1917, the nine Supreme Court Justices held their first oral arguments of the October 2013 Term.  Yesterday, they heard oral argument in Chadbourne & Park LLP v. Troice and Madigan v. Levin, and today’s docket was for Burt v. Titlow and McCutcheon v. FEC.  From now on, your Constitutional Law class will become increasingly obsolete.

There are many detailed Supreme Court previews, like USA Today’s, The Heritage Foundation’s, and the Federalist Society’s, our sister organization.  More generally, however, it seems that October Term 2013 won’t feature headline-grabbing decisions like NFIB v. Sebelius, or Hollingsworth v. Perry to the same degree as the past two years.  And we may not see an OT13 Running of the Interns.  But this term is not lacking in momentous Constitutional decisions.  In McCutcheon v. FEC, for example, the Court could obliterate an erstwhile tenet of political speech, that Congress can limit overall donations to political campaigns.  In NLRB v. Canning (argument date not set), the Nine will have to interpret the Recess Appointments Clause (Article II.3), which they have never done before according to a quick Westlaw search.

Despite this potential, the Court has been reluctant to hand down expansive, precedent-setting cases. Take NFIB v. Sebelius, for example, to listen to pundits, President Barack Obama’s signature legislation was upheld in its entirety.  But by carefully counting the votes in the Chief’s opinion and Justice Ruth Bader Ginsburg’s dissent concurrence, only Obamacare’s Individual Mandate was clearly upheld.  The rest of the law, and whether the Commerce Clause has grown, shrunk, or stayed the same remains an open question of law.  Or consider Hollingsworth v. Perry, if your understanding of the case derived from Facebook posts, you might have thought that the Supreme Court had declared same sex marriage legal throughout the nation, but the case was clearly much narrower.  Such incremental Constitutional law may be the hallmark of the Roberts Court, and this Term may be no different.  Indeed, SCOTUSblog reporter Lyle Deniston already discounts the possibility of the McCutcheon case producing a large constitutional holding based on today’s oral argument.  Still, this case could reopen the doors on political speech and allow every citizen to make his case as loudly and effectively as Oprah.

That is… as long as the Court stays open. The Court will eventually run out of money to keep its doors open during this shutdown—in fact, it will run out of money on October 15 when its “rainy day” fund is drained.  No matter what you think of the nine Justices, the Supreme Court, if not the federal judiciary is a cornerstone of democracy and the rule of law.  Whatever the outcome between the Democrats and Republicans on the Hill, let us hope that the Courts aren’t shuttered as well.