This week in the Community we discuss the legacy of Justice Sandra Day O’Connor. During her tenure, she played a crucial role in many key decisions, but the Court’s more recent precedents have called a number of those holdings into question. This week, we ask your thoughts on what Justice O’Connor’s legacy is and will be.
On Tuesday the Court heard oral arguments in Federal Communications Commission v. Fox Television Stations. The question before the Court is whether the wording of the FCC’s policy banning “fleeting” indecency – including the “s-word”, the “f-word”, and images of nudity – is unconstitutionally vague. (Lyle recapped the argument here.) The case involves two separate proceedings, one of which has previously been before the Court. Three years ago, in Federal Communications Commission v. Fox Television Stations, the Court determined that the FCC had the authority to broaden its policy from banning repeated uses of profane language to banning any such usage; however, the Court did not decide whether the “fleeting indecency” ban was constitutional. Instead, the case returned to the Second Circuit, which held that the policy as a whole was unconstitutional. Applying that ruling in a separate case, the Second Circuit then struck down the use of indecency regulation against images of nudity on TV.
The Court will kick off its January sitting next Monday by hearing oral argument in the Texas redistricting cases. The cases concern the new districting maps enacted by the Texas legislature last year in the aftermath of the 2010 census, which saw the state obtain four additional seats in the House. After the state commenced the pre-clearance process regarding those maps pursuant to Section 5 of the Voting Rights Act, several groups sued in a Texas federal district court to block the maps from being used in the 2012 election cycle. That court granted an interim order blocking the legislatively enacted maps, replacing them with maps of its own. Our discussion topics this week will focus on how the Court should respond, how it likely will respond, and the Voting Rights Act more generally.
In this week’s Community, we’re discussing Christmas and the Court. Topics will include the Court’s Christmas party, its recent Establishment Clause cases, trends in the law regarding the relationship between church and state, and more! We look forward to hearing your views, and wish a happy holiday season to all of our readers.
In January, the Court will hear argument in Sackett v. EPA, No. 10-1062, a case involving governmental enforcement of federal environmental laws against private property owners. The specific questions presented concern the EPA’s use of so-called “administrative compliance orders,” which assert that the property owner is in violation of an environmental law provision and demands that the owner bring itself into compliance, and remedy the effects of the violation, within a certain time. The Court will decide whether the property owner can go to court to challenge the order or if it may only contest the EPA’s factual and legal assertions later, when the EPA sues the property owner civilly or criminally.
The case in itself warrants discussion, but it also provides the Community an opportunity to discuss broader questions regarding the Court’s approach to property rights and how it resolves potential conflict between property rights and environmental protection.