Court Gets Back to Business
Union fees, affirmative action on new docket.
With the future of affirmative action, union's agency shop fees, and the counting of one person, one vote in redistricting in the balance, the Roberts Court's conservative majority may return to dominate major rulings in the new term. But will it be conservative with a small or a big "c"?
In the last U.S. Supreme Court term, justices on the left led the major rulings from same-sex marriage to specialty license plates.
"The story of the last term is the left side of the court did a lot of winning," said Irvin Gornstein, executive director of the Supreme Court Institute at Georgetown University Law Center. "Justice [Anthony] Kennedy was the justice who usually joined the left side, but the chief justice and even Justice [Clarence] Thomas added to or provided the margin of victory."
But now, Gornstein predicted, "I would expect a return to the norm in which the right side of the court wins a majority but by no means all of the big cases with Justice Kennedy again the key vote in most of the key cases."
The main question in the new term is how conservative will any of those victories be, his Georgetown colleague, David Cole, said. Will the justices on the right take the broad or narrow path in deciding the most contentious issues, he asked.
"I would say generally when [the conservative majority] has had the option to take the moderate conservative route, that is what they have done, with some notable exceptions," Cole said.
The justices have agreed to decide 48 cases thus far. Thirteen of those cases were added to the docket three days after their Sept. 28 conference during which they culled more than a thousand petitions filed throughout the summer months.
The court used to issue the list more quickly, but last year it adopted an unwritten policy of taking more time to be sure that cases it is granting are teed up properly and don't have procedural flaws or other "vehicle problems."
Some of the more closely watched issues on the horizon, including abortion-clinic regulation and the contraceptive mandate in the Affordable Care Act, were put off or not acted on. The court did not act on United States v. Newman, in which the federal government appealed a decision by the U.S. Court of Appeals for the Second Circuit that limited insider-trading liability.
The threat for progressives, civil rights groups and consumer organizations comes in the cases involving the always divisive issues of affirmative action, union dues, voting and even class actions. And if, as predicted by many, the justices do take up pending petitions on abortion-clinic regulation, religious nonprofits' objections to contraceptive health insurance, and voting rights, the stakes in the term for those groups would likely skyrocket.
At least six petitions have been filed by nonprofit religious organizations challenging the government's method of accommodating their objections to providing contraceptive health insurance. The government had won those cases in six federal appellate courts until Sept. 17 when the U.S. Court of Appeals for the Eighth Circuit created a split.
The government has urged the justices to grant review to resolve the split and it suggests taking the D.C. Circuit case, Roman Catholic Archbishop of Washington v. Burwell, because it involves all types of insurance plans.
The two cases involving abortion-clinic restrictions are a Mississippi case — Currier v. Jackson Woman's Health Organization, which has been distributed for the justices' conference seven times — and a case from Texas, Whole Woman's Health v. Cole, which was just filed Sept. 2 with a response due Oct. 5. Two panels of the Fifth Circuit are in conflict and the justices are likely waiting for the Texas response to be filed before deciding whether to grant review in either or both cases.
David Strauss of the University of Chicago Law School noted that many of the biggest issues on the docket have already been before the justices, such as affirmative action.
"But for some reason, they haven't resolved the issue," he said. Strauss added: "I think they will get an abortion case this term. There are so many cases out there that, however unappetizing it is to them to get back into abortion, I think they will."
The justices will face mostly unexceptional arguments for the next two weeks. The second week of the October argument cycle will bring a parade of solicitors general to the lectern. In three cases being argued after the Columbus Day holiday, no fewer than four former or current U.S. solicitors general will argue before the court.
What follows is a look at some of the key cases already granted review.
The justices will decide in Evenwel v. Abbott the politically potent question of whether the one-person, one-vote principle for drawing state legislative districts allows states to apportion based on total population or requires states to use voter population. In past cases, the justices have suggested both.
"This has fairly major implications for how elections are run in this country," Jones Day's Hashim Mooppan said.
Nearly every state, including Texas, uses total population and has been doing so for half a century.
The primary force behind the challenge is the same man behind the term's affirmative action case — Edward Blum of the Project for Fair Representation.
For the second time in two years in Fisher v. University of Texas-Austin, the justices will examine whether the university's consideration of race as a factor in its admissions policy passes the Constitution's most searching review — strict scrutiny.
After the high court in a 7-1 decision sent the case back to the Fifth Circuit to apply stricter strict scrutiny, that appellate court re-endorsed the university's policy. Bert Rein (left) of Washington's Wiley Rein returns to the lectern to argue for Fisher.
Two straightforward questions face the justices in Friedrichs v. California Teachers Association: Should Abood v. Detroit Board of Education (1977) be overruled, ending public-sector "agency shop" arrangements? And, does the First Amendment require that public nonunion members affirmatively opt in to paying fees related to collective bargaining on their behalf, and not opt out as is the current practice.
"I would not feel very good coming into this if I were [the union] given what I've seen from the Roberts Court on this issue in the past few years," said Erin Murphy of Bancroft. "This isn't a few justices offhandedly suggesting they're open to reconsidering Abood. This comes on the heels of two back-to-back, solid five-justice majority opinions that fundamentally undermine every aspect of the reasoning in the Abood decision."
An estimated 2,000 prisoners in Montgomery v. Louisiana are hoping the justices will decide that their decision invalidating mandatory life in prison without parole for juvenile murderers applies retroactively.
The Georgia death penalty case Foster v. Chatman involves a particularly egregious use of race-based peremptory juror challenges by the prosecution. Although the case has attracted considerable attention, it may not have much impact beyond its particular facts. However, peremptory challenges have been controversial for some justices, such as Stephen Breyer, who has suggested the only way to end their discriminatory use is to abolish them.
The high court also continues to wrestle with administration of the death penalty and will examine
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