October rolling around means the start of another Supreme Court term. It’s unlikely that this term will bring the kind of international attention as last term – when in its closing days the Court legalized same-sex marriage – but that doesn’t mean the Court won’t be dealing with important issues that touch on some of the most volatile political debates of the day.
Here’s a rundown of the big cases we’ll be hearing about between now and when the Court’s term ends in late June.
Abigail Fisher originally sued the University of Texas in 2008 over the school’s affirmative action plan, which includes race as a factor – one of many – in determining admissions. Fisher, a white woman, contends that the program unconstitutionally discriminated against her because of her race, because she was denied admission to the school. After the university won in the lower courts, in 2013, the Supreme Court ruled that those courts had to more closely scrutinize the program to determine if there was a race-neutral way the school could have achieved its goal of educational diversity. Last year, a federal appeals court applied this rigorous standard, and once again found that the university could continue its program.
Apparently not pleased with that decision, the Supreme Court has agreed to hear Fisher’s case one more time. Given the case’s history, as well as this Court’s general antipathy toward affirmative action, almost everyone expects the Court to strike down the university’s program – and possibly put a nail in the coffin of all public education affirmative action programs, even those that use race in the most minimal way possible to ensure some element of diversity on campus.
One of the Supreme Court’s most important decisions ever was 1964’s Reynolds v. Sims, which found that the Constitution requires “one person, one vote.” This means that legislative districts, both state and federal, must have roughly equal numbers of people in them, guaranteeing that legislatures don’t have lopsided representation favoring less populated areas, and that each person in a state’s vote counts roughly the same. Reynolds fundamentally re-shaped our country’s representative democracy in a more fair and equal way.
The Supreme Court has the opportunity to dramatically undercut Reynolds this term. In Evenwel v. Abbott, a Texas voter is claiming that the Reynolds system requires not a look at total population but rather total voting population. If total voters were the starting point, districts would be drastically re-drawn because in many urban, more liberal areas, there are large numbers of people who are not voters – such as children, undocumented immigrants and others who have been disenfranchised. If those non-voters don’t count, broadly speaking, urban representation goes down, and suburban and rural representation goes up. Accordingly, a ruling in favor of using total voting population would mean the re-drawing of districts across the country in a way that would mostly favor Republicans.
In 1977, the Supreme Court ruled that public unions could collect dues from non-members for collective bargaining efforts, but not for political activity. The reasoning was that collective bargaining benefits all workers, so the non-union workers should pay for that; however, political activity raises free-speech issues, and non-union workers should not be forced to speak in a way they don’t want to.
This compromise is at issue in Friedrichs v. California Teachers Association, in which non-union workers are claiming that even collective bargaining dues violate their First Amendment rights. The crux of their argument is that everything the union does – even setting wages and conditions of employment – is political in nature, so non-union members can’t be forced to participate in those political actions if they don’t want to. Given that the Court has of late been very skeptical of union rights generally, and the 1977 case specifically, it is very likely that the non-union workers will win this one, significantly setting back public-sector unions.
The death penalty
The Court has taken five different cases this term addressing different aspects of the death penalty. Although no case squarely presents the ultimate issue of whether the death penalty is constitutional, these cases are going to be heard against the backdrop of Justices Ruth Bader Ginsburg and Stephen Breyer declaring at the end of last term that the death penalty is likely unconstitutional. Some people hope their declarations inspire others to push the Court in the same direction, but the Court’s conservative majority has repeatedly allowed executions to continue, including just last week – a sign that the Court is not very eager to find the death penalty unconstitutional.
Although not yet on the Court’s docket, two major abortion cases are poised to be added in the next few months. Both Mississippi and Texas require doctors at abortion clinics to have hospital admitting privileges in order to perform abortions, a requirement that is not supported by evidence-based medicine. In Mississippi, the application of this rule would result in the state losing its one remaining abortion clinic. In Texas, an admitting privileges rule, plus a requirement that clinics effectively become miniature hospitals (which is also medically unnecessarily), would reduce the number of clinics in the country’s second largest and second-most populous state to fewer than 10.
Both state laws are on hold while the Court considers whether to hear the cases. But most experts expect the Court to take at least one, if not both, of them, setting the stage for the first major abortion case before the Court in almost a decade. With swing-vote Justice Anthony Kennedy approving almost every abortion restriction that’s come before the Court since he voted to uphold Roe v. Wade in 1992, abortion rights supporters are rightfully concerned.
Also not yet on the Court’s docket are several challenges to the Obama administration’s accommodation for religious non-profits that do not want to provide insurance coverage for contraception for their employees. Most lower courts have found that the accommodation – which requires only that the employer fill out a form and mail it in – is not overly burdensome, but one court has, and the organizations that are against it continue to press their case. With the Court already having found that for-profit businesses with religious owners do not have to provide contraceptive coverage – that was the infamous Hobby Lobby case – the fear is that the Court will take these cases, and once again pander to insignificant claims of religious objection.
Of course, there are other issues at stake before the Court this term, but these high-profile and highly political issues are likely to make the most headlines. Given the current make-up of the Court, most liberals are more than a little afraid in the Court’s opening days – and that fear is probably warranted.