Court Watch

By Marc Seltzer; originally published on December 2, 2008, at

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The 2008 presidential campaign did not focus on potential Supreme Court appointments.  The financial crisis, two wars and the Obama phenomenon tended to dominate media coverage.

However, the last four presidents have each appointed two Supreme Court justices.  With the Supreme Court often split on hot button issues such as workplace discrimination, abortion restrictions and the death penalty, the constitutional authority of the President to appoint a potential deciding vote carries great weight.

The U.S. Supreme Court may remain below the radar for some time after President-elect Barack Obama takes office.  There are no justices signaling impending retirement, and ultimately, the choice is with them, not the President.

Regardless of which justices preside, there are a number of significant issues expected to come before the highest court in America.

The Right to a Trial

Challenges to the President’s power to imprison people suspected of terrorist or anti-American activities may come to the Court from cases arising out of Guantánamo Bay or other detention facilities.  Lawyers have challenged detention of Americans as well as foreigners on the grounds that they deserve a trial even if accused of fighting against U.S. interests.

The lower courts have not given President Bush a green light on detentions without trial, despite his argument for unfettered Presidential power on security issues in time of war.  President-elect Obama has not made clear what his policy will be with respect to detainees, but a shift from the Bush administration position may resolve some cases without the requirement of Supreme Court review.

Challenges to Federal Regulation from Progressive States

Another important issue concerns the balance of power between states and the federal government.

A number of states have challenged federal environmental and other regulations that limit the states’ ability to regulate for themselves.  States such as California and Massachusetts have sought stricter environmental regulations than those enacted by Congress or enforced by the Bush administration.

The question in these circumstances will be if a state is able to make different regulations than the federal government, or will the the traditional exclusive power of the federal government trump state efforts?

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