The Supreme Court begins its new terms today, and while this year is not (yet) marked with the kind of high profile cases we had last year, which included a decision early in the term to decline review of several same-sex marriage cases that dramatically expanded the number of states where marriage equality was the law of the land, there are still plenty of cases on the docket that are likely to be watched closely as we head into a Presidential election year:
WASHINGTON — The last Supreme Court term ended with liberal victories, conservative disarray and bruised relations among the justices. The new one, which opens on Monday, marks the start of Chief Justice John G. Roberts Jr.’s second decade on the court and will reveal whether the last term’s leftward drift and acrimony were anomalies or something more lasting.
The court will decide major cases on politically charged issues, including the fate of public unions and affirmative action in higher education. It will most probably hear its first major abortion case since 2007 and revisit the clash between religious liberty and contraception coverage.
It will consider three cases that could make it harder for workers and consumers to band together in class actions. And it will hear cases on the death penalty, a topic that twice led to unusually sharp and bitter exchanges on the bench last term, after Justice Samuel A. Alito Jr. accused opponents of capital punishment of pursuing a “guerrilla war” against executions. Justice Sonia Sotomayor responded that supporters of the death penalty would be content to allow condemned inmates to be burned alive.
Some of last term’s opinions were unusually barbed even by the standards of Justice Antonin Scalia. Dissenting from the decision establishing a right to same-sex marriage, Justice Scalia called Justice Anthony M. Kennedy’s majority opinion pretentious, egotistic and incoherent.
Chief Justice Roberts, who has said he hopes to guide his court toward modest and unanimous rulings, cannot have enjoyed the rancor. Nor was his summer brightened by attacks on him from Republican presidential candidates unhappy with his sustaining of the Affordable Care Act for the second time.
The new term’s biggest rulings will land in June, as the 2016 presidential campaign enters its final stretch, and they will help shape the political debate.
“Constitutional law and politics are certainly not the same thing, but they are interrelated, never more so than in a presidential election year that will likely determine who gets to appoint the next justice or two or three,” saidVikram D. Amar, dean of the University of Illinois College of Law.
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The case on unions, Friedrichs v. California Teachers Association, No. 14-915, may deal a blow to organized labor. “It could set the stage for a Citizens United-style reconsideration in the area of union dues,” said John P. Elwood, a lawyer at Vinson & Elkins, referring to the 2010 decision that transformed campaign finance law.
The new case takes aim at a compromise fashioned by the court in 1977 inAbood v. Detroit Board of Education.
In Abood, the court said public workers who decline to join a union can nevertheless be required to pay for the union’s collective bargaining efforts to prevent freeloading and ensure “labor peace.” But nonmembers, the court went on, cannot be forced to pay for the union’s purely political activities, as that would amount to forbidden compelled speech under the First Amendment.
The California teachers who brought the new case say t collective bargaining is itself political, as it concerns public policy on spending, seniority, class size and the like. Unions respond that the case is a First Amendment Trojan horse designed to further weaken the power of organized labor.
The unions have reason to be nervous. The court has twice signaled that it may be ready to overrule Abood notwithstanding the doctrine of stare decisis, Latin for “to stand by things decided.” Justice Alito, the court’s leading critic of Abood, offered a joking alternative definition in public remarks last month.
“It is a Latin phrase,” he said. “It means ‘to leave things decided when it suits our purposes.’ ”
The case on unions is not the only sequel on the docket.
In Fisher v. University of Texas at Austin, No. 14-981, the court will return to the subject of whether the Constitution permits public colleges and universities to take account of race in admissions decisions.
In 2013, in a short, vague compromise ruling in the case, the court refused to decide whether the admissions plan at the University of Texas at Austin — which combines race-neutral and race-conscious tools to achieve diversity — is constitutional. The court’s return to the subject after an appeals court sustained the hybrid plan has struck many supporters of affirmative action as an ominous sign.
I wrote about the new affirmative action case when the Court accepted the case earlier this year. As I noted at the time, notwithstanding the fact that the Justices had essentially punted on the issue when Fisher was first before the Court two years ago, even when the case was argued the first time it seemed apparent that there was a majority on the Court that was skeptical of the arguments being made by the University of Texas in support of its admissions preferences. At the same time, though, the fact that the Court declined to issue an all encompassing ruling in the case, instead sending it back to the lower courts for resolution of certain issues that arguably weren’t necessary for the Court to rule on the merits if it actually wanted to, was an indication of the Court’s historic tendency to essentially split the baby on the question of racial preferences by public institutions. In Regents of the University of California v. Bakke in 1978, the Court did not fully reject the race-based admissions policies at issue in that case, but it also didn’t completely say that they were acceptable either. The result was a mixed holding that suggested that some admissions policies that took race and ethnicity into account were acceptable so long as they didn’t amount to quotas. The problem for institutions and students, as well as lawyers, law professors, and law students, is that the Court in Bakke didn’t really provide much guidance on what would and would not be acceptable under the 14th Amendment and other laws. The Court didn’t hear another high profile affirmative action case, though, until Grutter v. Bollinger in 2003. In that case, the Court largely upheld an affirmative action policy instituted by the University of Michigan’s Law School which used race as a factor in admissions with the alleged goal of making the student body more diverse. Largely because it was decided by a narrow majority, though, Grutter did not resolve the unanswered questions that were left in the wake of Bakke, though, and many conservatives were frustrated with the Court’s failure to deal with the issue head-on. When the Fisher case was in the Court the first time, many observers expected a comprehensive decision from the Court, thus making the decision that was handed down in 2013 rather disappointing. This time, though, it seems unlikely that the Justices will be able to dodge the issue this time and, given the composition of the Court, it seems likely that we’ll be seeing a decision limiting affirmative action to some extent.
As for the public employee unions case, there the Court will be asked to rule whether the rights of government employees are violated when they are compelled to pay dues to unions that they do not want to join. Given the fact that we’re talking about government workers, this is an issue that raises First Amendment implications along with the labor law issues typically raised in cases involving the “right to work” issue. Essentially, the workers who have brought this case are arguing that they cannot be compelled to pay dues to support to political and social messages of a union that they do not want to be a part of because doing so would constitute impermissible compelled speech. Given the fact that the Court has already ruled that employees already have at least some right to opt out of a public employee union, it seems clear that the Court is likely to rule against the unions in this case unless one of the Justices that ruled for the employees in that case ends up switching sides, which seems unlikely.
In addition to affirmative action and public employee unions, the Court will also be ruling on what could turn out to be a major voting rights case. In Evenwel v. Abbott, the Court is being asked to rule on the meaning of the “one person, one vote” requirement when it comes to drawing state and Federal legislative districts. In the case, the Plaintiffs argue that Texas Senate districts violate the rule because they take into account total population rather than just the total population of eligible voters, thus giving greater legislative power to high population areas regardless of whether or not their populations are eligible to vote. This is an issue the Court has never ruled on before, and as Lyle Denniston and Rick Hasen both explained at the time the case was accepted, it’s ruling here could have serious political implications going forward. If the Court holds that drawing district lines based on total population is acceptable, then little of what we know as the status quo will change. However, if the Court rules as the Plaintiffs are asking then it would potentially represent a significant shift of political power away from more populated areas and toward more rural areas, a move that most observers agree would help Republicans in state legislatures, the House of Representatives, and to some extent the Electoral College.
In addition to the cases the Court has already accepted, there are a number of cases making their way through the lower Federal Courts that are likely to find their way to the Justices in more than enough time to be added to the docket for the new term. The Justices already have before them a challenge to Texas’s newest law designed to restrict the number of abortions, and there are a number of similar cases from Texas and elsewhere currently pending in lower courts. While there’s no guarantee that the Court will accept any of these cases, the fact that the Court has not ruled on a case dealing with the issue for eight years now, and has not ruled on a major case dealing with state abortion laws in some fifteen years. Given the number of new laws that have been passed in the past several years, it seems inevitable that the Court will be required to accept one of them at some point. Another case out of Texas that is likely to make its way to the Court soon involves the challenge by several states to the President’s executive action on immigration. In that case, a lower Court granted the state’s request for a stay on the program and that issue is now before the Fifth Circuit where it has been pending for some time since oral argument. Given the fact that a Fifth Circuit panel had previously upheld the stay in a previous ruling, things are not looking good for the Administration in that case. Regardless of which way the Fifth Circuit rules, the issue will be appealed to the Supreme Court and it seems likely that the Court will feel compelled to accept the appeal given the issues it raises. Similarly, the District of Columbia Circuit is currently dealing with the case filed by the House of Representatives challenging certain aspects of the White House’s implementation of the Affordable Care Act. Recently, the Judge handling the case ruled that the House did have standing to bring certain parts of the lawsuit, a decision that arguably runs contrary to decades of other Court rulings on the issue of standing. The Justice Department has already applied for leave to appeal this issue to the Court of Appeals for the D.C. Circuit and, if granted, it’s likely we’ll get a ruling on that issue some time early next year, which could be sufficient time for the Supreme Court to accept the case and schedule it for argument. Finally, there are a number of cases dealing with the Affordable Care Act, including several dealing with issues related to the contraception mandate that were not resolved by the Hobby Lobby decision, that could find their way to the nation’s highest court very soon.
Given the fact that all of this will be happening in the midst of a Presidential election, it seems certain will be on the front burner of American politics quite a lot over the next eight months.
