- The Washington Times - Friday, April 16, 2010

Justice Stephen G. Breyer predicted Thursday that the Supreme Court will one day be forced to pass judgment on the constitutionality of President Obama’s just-passed health care overhaul plan.

Justice Breyer told a congressional panel that the massive health care law, like most major federal legislation, is a good candidate for high court review.

Some 20 states, virtually all with Republican attorneys general, have already joined a suit seeking to challenge the law in federal court, arguing that its mandate that Americans get health insurance is unconstitutional. The White House and congressional Democrats insist the plan passes constitutional muster.

Justice Breyer said the court’s relatively light caseload in recent years will soon be a thing of the past, given the issues such as health care that may come before it.

“I’d predict that three, four years from today, no one’s going to ask us again why we have so few cases,” the liberal justice said before the House Appropriations subcommittee hearing on the high court’s budget for the 2011 fiscal year beginning in October.

Justice Clarence Thomas, also testifying at the hearing, said that the court’s caseload - a third less than it was 20 years ago - depends in large part on what is happening in Congress. “Until recently, there hasn’t been comprehensive legislation of the kind that would fill our docket,” Justice Thomas said.

Lawmakers also quizzed the justices about allowing cameras in the courtroom.

Justice Breyer has been much more open to televising court proceedings than other judges, including Justice Thomas. Americans’ understanding of the court would increase if they could see it in action more easily, Justice Breyer said.

But he said the justices also have serious concerns about things being taken out of context and having televised Supreme Court arguments hearings used as a precedent to try to open criminal trials to television cameras. He said juror and witness security must be taken into account.

Rep. Jose E. Serrano, the New York Democrat who chairs the subcommittee, said he worries that commentators might use court coverage to launch broadsides against the justices. “‘Did you hear Breyer? What a jerk.’ ‘Did you hear Thomas?’” Mr. Serrano said.

Justice Thomas, who rarely asks questions at court oral arguments, piped up at that point. “You mean, didn’t hear me,” the justice said.

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