5 things: The Supreme Court and the shutdown

Five things you may have missed about the Supreme Court while the partial government shutdown and the debt ceiling deadline grabs the headlines.

1. Business as usual, sort of

The federal courts have maintained "normal" operations this month, the only part of the federal government to remain fully staffed and functional during the two-weeks and counting partial shutdown.

That's because judicial officials planned ahead, stocking away contingency funds to offset any forced furloughs or reduction of services. But the emergency money runs out at week's end, and individual courthouses are already planning for the worse.

It's a little known aspect of the judicial system, where the 87 federal judicial districts around the country have a lot of discretion to manage their budgets.

Some have defiantly designated all their staff to be "essential," vowing not to lay off anyone. Others have followed the advice of the Administrative Office of the U.S. Courts and begun readying shutdown plans.

"Frustration" is the word judges have said. Part of it has to do with their lack of institutional political clout. The federal courts only comprise a tiny fraction of the federal budget and judges by custom stay out of partisan policy fights.

But they don't like how the other two branches are handling the fiscal crisis in their sphere. And the ongoing "sequester" cuts leading to staggered layoffs in past months have exasperated an already tough situation for the courts.

Big money goes before the Supreme Court
Big money goes before the Supreme Court


    Big money goes before the Supreme Court


Big money goes before the Supreme Court 02:07
Five Things - Supreme Court
Five Things - Supreme Court


    Five Things - Supreme Court


Five Things - Supreme Court 01:47

Senior Judge Richard Kopf, a Nebraska-based 1992 appointee of President George H.W. Bush, summed up the feeling of many on the bench when he wrote this week in his personal blog: "Tell Congress to go to hell -- all federal court employees are essential."

Justices prepare for hot-button cases

2. Race and politics

The U.S. Supreme Court is also taking the budget mess day-to-day, and has not canceled any of its public sessions, including Wednesday's two hours of oral arguments.

Its building is one of the few government institutions open to tourists and the general public. But that may change next week if the standoff continues.

The justices have not said anything public about the political crisis, and have carried on with their work. They have enough controversy to deal with without messing with budget politics.

The clearest example was Tuesday's arguments on affirmative action. Questions of race and remedies have always touched a nerve with the courts, and the takeout from this appeal may prove disappointing to civil rights activists.

The issue is Michigan's Proposal 2, a voter-approved referendum, that bans race preference in state college admissions. The conservative majority seemed to support the idea the voting public could decide such things, despite the effect it might have on efforts to promote diversity in the classroom.

3. Money and politics

For political junkies, it's never to soon to start thinking about the 2014 mid-term elections, little more than a year away.

And for those that provide the fuel of partisan politics -- the billions of dollars in individual donations expected to pour into Republican and Democratic coffers -- all eyes are watching the high court.

The justices last week held arguments in a case testing whether Congress can continue to limit the "aggregate" or total amount individuals may give to federal candidates and national parties.

An Alabama businessman named Shaun McCutcheon has become the new face of campaign finance reform-- both cheered and reviled depending on your views on the case.

He claims a First Amendment right to donate to as many federal office seekers as he wants, so long as no one candidate gets more than the $2,600 per election limit.

But supporters of existing regulations say the law prevents corruption or the appearance of corruption. They say if the rules are loosened, a well-heeled donor could fork over more than $3 million per election in direct donations.

Again, the conservative majority may be poised to strike down or severely weaken the current restrictions, similar to what it did three years ago in the so-called "Citizens United" ruling.

Citing free speech, the 5-4 majority eased longstanding restrictions on "independent spending" by corporations, labor unions, and certain non-profit advocacy groups in political campaigns.

The Citizens United ruling helped open the floodgates to massive corporate spending in the 2012 elections, and some fear the high court may be on a steady path to eventually gut all campaign regulation, in the name of free speech.

4. Clearing the air

Hot-button issues like abortion, gay marriage, and healthcare reform may get all the headlines, but ask both liberal and conservative court watchers what area of the law the Roberts Court has had the greatest impact, and they will tell you it's business regulation.

From limiting lawsuits against the employers, to loosening government oversight, the conservative bench has been forging a not-so quiet revolution.

The court on Tuesday accepted review of an important environmental case over regulating greenhouse gases form "stationary" sources like power plants.

It's the second case over carbon emission standards that will be decided this term. These petitions pit the Obama administration and its environmental allies against a range of business and "limited government" interests.

5. Ginsburg going?

If one group of federal employees can be considered "essential" and beyond any furlough, it's the federal judges themselves. If you don't believe so, it's in the Constitution. Article III gives judges life tenure and guaranteed salary. So long as they maintain "good behavior," they cannot be removed from office That means they get paid despite any shutdown, and can continue their regular duties.

But as determined as some justices may want to stay on the job -- now and for years to come -- politics and age may conspire against them.

Take Justice Ruth Bader Ginsburg, at 80 the oldest of the nine-member court. Her past health issues -- she's a two-time cancer survivor -- have led many fellow progressives to not-so gently insist she retire. Now.

They want President Barack Obama to get another crack at filling the high court, ensuring a liberal legacy will continue for perhaps decades.

They cite the influence Justices Sonia Sotomayor and Elena Kagan -- both in their 50s -- have had, inside the court and with the public at large.

A Republican president elected in 2016 could upset that legacy, and move the court further to the right with future appointments.

But Ginsburg has pushed back, suggesting she is in no hurry to go. The senior associate justice gave several candid press interviews over the summer-- unusual for a justice not promoting a book-- to suggest she may stay on for a few more years.

The justice told CNN Senior Legal Analyst Jeffrey Toobin she would stay on this term, and perhaps the next, at least. To the New York Times she was more coy: "There will be a president after this one, and I'm hopeful that that president will be a fine president."

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