Barring any unforeseen government shutdown complications, the U.S. Supreme Court will open its new term on Monday, with campaign finance, affirmative action, religion and abortion just a few of the many issues making an appearance this go-round.
And other controversial cases are waiting in the wings for approval to be heard this term, including Hobby Lobby and Conestoga Wood, two cases that challenge the validity of the Affordable Care Act contraception mandate and raise the question of whether for-profit companies have constitutionally–protected religious freedom rights.
The justices roll into this term with declining public approval numbers, at their lowest level since 2005, according to a Gallup poll in July.
That’s not surprising given the public’s widespread disappointment with all branches of government and the Court’s own politicization, with controversial decisions often splitting 5-4 along the partisan divide.
Nor is it surprising given the perception that the justices have grown increasingly pro-business and anti-consumer, a belief strengthened by a report from the Constitutional Accountability Center that in 14 out of the 17 cases in which the U.S. Chamber of Commerce filed a friend-of-the-court brief, the justices ruled in favor of business interests.
The members of the Court have not helped matters by airing their own frustrations with the state of their own bench. Justices Ruth Bader Ginsburg and Antonin Scalia took to the speakers’ circuit this summer and bemoaned the direction in which justices of the opposing political persuasion were taking the Court – prompting Supreme Court watcher Dahlia Lithwick to label them “Grumpy Old Justices.”
Is it an age thing? Maybe. Ginsburg is 80 and Scalia, 77. They’re not alone. Justices Anthony Kennedy and Stephen Breyer are 77 and 75, respectively.
And with each passing term, the conversations about imminent retirements and vacant seats grow louder.
Though most appeals pending before the Supreme Court are significant, below are five to watch this term.
McCutcheon v. FEC
Perhaps the most widely debated case this term, McCutcheon v. FEC — dubbed “Citizens United II” by some and set for argument on Oct. 8 — brings campaign finance front and center before the Court once again. Shaun McCutcheon and the Republican National Committee are challenging the cap on contributions an individual donor can make to any one candidate (and, in the RNC’s case, to national political party committees) during an election cycle. Under current Federal Election Commission limits, an individual can give no more than $2600 to any one candidate and a cumulative total of no more than $48,600 during a two-year election cycle.
McCutcheon is not challenging the $2600 limit to one candidate but wants to be able to give that amount to as many candidates as he chooses. He argues that the cap on contributions restricts his First Amendment right of free speech and is unsupported by any corresponding important government interest.
That argument sets up a potential reconsideration of Buckley v. Valeo, a longstanding ruling in which the Court held that the government had greater power to limit contributions (as opposed to spending), because donations have more potential to corrupt the political process. That anti-corruption rationale, however, has since been weakened by the Court in other decisions.
Schuette v. Coalition to Defend Affirmative Action
In another sequel, Schuette revisits affirmative action – this time on the flip side of the question the Court punted on last term in Fisher v. University of Texas. There, the Court considered whether the university could consider race in admissions and sent the case back to the federal courts in Texas for specific findings as to whether the policy was necessary to guarantee student diversity.
In Schuette, set for argument on Oct. 15, the Court will consider whether a state can ban consideration of race in admissions. The case involves a challenge to a Michigan constitutional amendment that effectively banned racial preferences in any public space – universities, government contracting, public employment.
The U.S. Court of Appeals for the Sixth Circuit in Cincinnati ruled in November that as to college admissions, that ban violated the U.S. Constitution’s equal protection clause. The court based its decision in part on the fact that, by adopting the ban as a constitutional amendment, the state had effectively eliminated any avenues in which minorities could press for change, with efforts to repeal the amendment their only option.
The justices could consider the case through that procedural lens and once again side-step a direct challenge to the viability of affirmative action policies, but proponents fear that such a challenge is coming. And Schuette may be the case.
Town of Greece v. Galloway
In one of several religion cases making their way through the courts, this case addresses the question of legislative prayer.
The town council in upstate Greece, N.Y opens its meetings with prayers led by members of the clergy or local citizens. The 2nd U.S. Circuit Court of Appeals struck down that practice under the “establishment of religion” clause of the First Amendment, saying that the content of the prayers created the impression that the council was endorsing Christianity.
The town is challenging that “endorsement” test, arguing that government-meeting prayers should be forbidden only if they actually coerce someone into believing the message. Such “coercion” would generally be harder to prove.
The Court will hear argument on Nov. 6.
Mt. Holly v. Mt. Holly Gardens Citizens in Action
At issue in Mt. Holly is whether a party can establish that a housing practice is discriminatory under the Fair Housing Act by showing that minorities have been disproportionately affected (the “disparate impact” test), or must that party establish an intent to discriminate.
Lower courts – including the 3d U.S. Circuit Court of Appeals in this case — and the Department of Housing and Urban Development have applied the disparate impact test. But petitioners here, who sought to replace a blighted housing project in New Jersey with market rate housing, are challenging that test, arguing that the Act makes no reference to disparate impact.
Injecting an intent requirement would seriously hamper housing discrimination claims going forward, civil rights advocates say.
The Court has set Dec. 4 for argument. However, the parties are engaged in ongoing settlement discussions.
Cline v. Oklahoma Coalition
Cline, one of two abortion cases pending before the Court, arises out of an Oklahoma law that requires doctors to follow Food and Drug Administration dosage and other requirements for medical abortion pills (“RU-486?). That might seem like a fairly innocuous requirement. But since the FDA adopted those requirements in 2000, the medical profession has refined the procedure and actually lowered the dosage and allowed women in some instances to complete the pill regimen at home. In effect, then, the Oklahoma law compels doctors to take steps they now deem unnecessary and in some cases dangerous – likely resulting in far fewer doctors who would prescribe the drug.
What makes this case procedurally so dangerous is that it comes to the court on a relatively clean slate. An Oklahoma trial court judge threw out the law, finding it “so completely at odds with the standard that governs the practice of medicine that it can serve no purpose other than to prevent women from obtaining abortions and to punish and discriminate against those women who do.” But the state Supreme Court upheld that decision without analysis, saying in just three short paragraphs that “this matter is controlled by the United States Supreme Court decision in Planned Parenthood v. Casey . . . [a decision that] remains binding on this court until and unless the United States Supreme Court holds to the contrary.”
Abortion activists view that short affirmance as essentially an invitation to the court to reconsider Casey. There the Court affirmed the basic right to an abortion but held that the states could regulate the procedure, so long as the regulation did not impose a “substantial obstacle” preventing a woman from obtaining a legal abortion (the “undue burden” test).
The Court has not set an argument date yet, as it has sent questions back to the Oklahoma Supreme Court.
(The second abortion case, McCullen v. Coakley, concerns a Massachusetts law that prohibits abortion protesters from congregating in a buffer zone outside a clinic, which anti-abortion groups say violates the First Amendment.)
National Labor Relations Board v. Canning
Canning arises out of President Obama’s 2012 appointment of three new members to the National Labor Relations Board while the Senate was in a brief recess, and a Pepsi bottler’s challenge to the validity of an NRLB order entered when the Board included those recess appointees.
Although that move infuriated Senate Republicans at the time, the Senate has since confirmed those appointments. Nonetheless, the Court will still clarify the area of recess appointments, considering these questions: whether the only recess that counts is the one between sessions; when do vacancies “happen” for the President to fill; and whether the Senate is ever in recess when it is coming back to town in what are called “pro forma” sessions.
No argument date has been set.
|Photo of the U.S. Supreme court is in the public domain.|