Mason Supreme Court Clinic Previews the High Court Term

By Noah Oberlander

Anticipating a rollicking new U.S. Supreme Court term, George Mason University’s Supreme Court Clinic, a partnership with Wiley Rein LLP, hosted its first Supreme Court Preview at the School of Law on the Arlington Campus. The event attracted a crowd of area practitioners, academics and law students who track the Supreme Court’s docket. Moderated by George Mason professor Neomi Rao, the event featured a panel discussion by veteran Supreme Court advocates Kannon Shanmugam, Pratik Shah and John Elwood, who combined have argued more than 30 cases before the high court.

The panelists agreed at the outset that if last term was the year of blockbuster cases, this term is the year of the sequel. The court is poised to render decisions following up on prior decisions involving campaign finance, disparate impact theory under federal fair housing laws, the political restructuring doctrine, federal treaty power and government prayer.

The panel began the discussion with NLRB v. Noel Canning, a nonsequel case involving the president’s recess appointment power. Elwood noted that while the case likely will not have profound practical significance, it will be the first time the Supreme Court has weighed in on the issue of presidential recess appointments. Shah noted that though the case appears superficially partisan, it likely will be decided on differences in constitutional interpretation and the use of sources, practices and consequence.

The panel discussed McCutcheon v. FEC, a case involving aggregate campaign contribution limits. Shah predicted that this case would go the way of the court’s previous controversial decision in Citizens United in which the court ruled that the First Amendment prohibits the government from restricting political independent expenditures by corporations, associations or labor unions. Alternatively, Shanmugam predicted that the Roberts’ court will likely attempt to distinguish challenged campaign finance regulations and decline any wholesale revisiting.

The panel also discussed Mount Holly v. Mt. Holly Gardens Citizens in Action, a case questioning whether disparate impact claims are cognizable under the Fair Housing Act (FHA). In this case, petitioners sought to replace blighted housing with new units that would be unaffordable to current residents who were mostly low and moderate income ethnic groups.

Shanmugam noted that a case raising the same issue went before the Supreme Court last term but was settled before the court issued an opinion.

Next to be discussed was Schuette v. Coalition to Defend Affirmative Action, a case involving a Michigan statutory prohibition on affirmative action in public university admissions decisions. Although an earlier court had struck down the law, Elwood predicted that a broad majority will reverse that decision.

Next, the panel discussed Bond v. United States, which arises from the prosecution of a woman for attempting to poison her neighbor under a federal statute implementing an international chemical weapons ban treaty. The panelists seemed to agree that the court would likely rule in favor of the petitioner. Shanmugam added that the court might adopt the petitioner’s unorthodox construction of the statute—treating the attempted poisoning as a peaceful use of chemicals—to avoid thorny constitutional questions regarding the scope of the treaty power. The Mason Supreme Court Clinic filed an amicus brief regarding this case.

In Town of Greece v. Galloway, a case involving the constitutionality of prayer before a local town council meeting, Shanmugam predicted that, given the court’s approval of congressional prayer in an earlier case, the town will likely win. Elwood added that the court will likely side with the town given Justice Kennedy’s continued dislike for the reasonable observer standard.

“This was a very successful event and very beneficial to those who came,” says Thomas R. McCarthy, JD ’01, co-director of the Supreme Court Clinic and a partner at Wiley Rein. McCarthy added he anticipated the clinic would do a similar preview next year.

Mason’s year-long Supreme Court Clinic provides pro bono legal representation before the U.S. Supreme Court and gives Mason law students the opportunity to work closely with Wiley Rein attorneys to identify cases of interest, research legal issues, and draft Supreme Court briefs.

(Reprinted from the Mason News, October 17, 2013)