Supreme Court term heating up

Supreme Court term heating up

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The U.S. Supreme Court opened the second part of this year’s term on Monday with argument in a case that challenges the high court’s support for public sector unions, considering in Friedrichs v. California Teachers Association whether compelling non-union employees to pay their fair share of union fees violates the First Amendment.

But established Supreme Court precedent on unions is not the only body of law at risk this term; the underpinnings of reproductive rights, voting lines and affirmative action are all on the line in cases up for decision over the next few months.

Here’s a look at a few of the cases likely to frame the term.

The demise of public sector unions?

Since its 1977 ruling in Abood v. Detroit Board of Education, the Supreme Court has upheld laws requiring public employees who don’t belong to a union to nonetheless pay their fair share of union fees to cover costs incurred for the collective bargaining from which they benefit.

Ten California teachers have challenged that precedent in Friedrichs, arguing that the fees they pay cover not only bargaining but also lobbying and other political activities with which they disagree. They contend that they are being forced to pay for positions they don’t support in violation of their First Amendment rights of free speech.

A court ruling in the teachers’ favor – a distinct possibility based upon reaction to Monday’s argument – would impact millions of government workers and strike a major blow to public sector unions, according to labor advocates.

“It’s absolutely possible that there’s going to be a decision that is going to forever change the rights of public-sector workers,” Kate Bronfenbrenner, a senior lecturer at Cornell University, told The Atlantic.

“What could come out of it are two possibilities, one is that a frustration builds and there is a demand for new and different labor laws and the second is that the labor movement is forever weakened.”

Religious liberty v. reproductive rights

Legal experts and court watchers are calling this term a blockbuster one for reproductive rights – with two cases up for argument over the next few months that could dramatically alter women’s access to necessary health care.

The first, Zubik v. Burwell, is an effort to further push the limits of religious liberty already extended by the justices in their 5-4 ruling in Hobby Lobby, in which they held that for-profit companies whose owners objected to birth control on religious grounds were exempt from the Affordable Care Act’s contraceptive mandate.

In seven separate cases consolidated by the court under Zubik, hospitals, universities, nursing homes, and other religious nonprofits already exempt from the mandate are challenging the requirement that they notify their insurers of their religious objections to providing contraceptives. That notification, which enables the insurers to then provide the contraceptives directly to the employees, is an act which the challengers say is tantamount to their own provision of contraception and thus violates their religious beliefs.

The arguments in Zubik demonstrate just how distorted notions of “religious liberty” have become in recent years, according to Adam Sonfield of the Guttmacher Institute.

“Social conservatives have pulled together many of their long-standing political demands—targeting reproductive health and LGBT rights, most prominently—into an overarching campaign couched in the language of religious liberty,” Sonfield wrote in a recent report for the Institute.

And the conservatives on the Supreme Court have taken that bait, according to former Solicitor General Walter Dellinger. In a recent Center for American Progress forum on the Supreme Court term, Dellinger said that cases like Hobby Lobby reveal a court moving from allowing groups to avoid obligations because of religious beliefs to allowing groups to impose and burden others because of those beliefs.

The abortion TRAP

The war on abortion rights took a different turn in recent years, moving from outright bans to legislation restricting women’s access. Efforts to enact so-called TRAP laws (“targeted regulations against abortion providers”) accelerated in the summer of 2013 as Texas enacted a package of restrictions – over the objections of women in the legislature, including the sneaker-wearing and filibustering Wendy Davis – which among other things would require abortion clinics to meet the building requirements of ambulatory surgical facilities.

More than half of the abortion clinics in Texas have since closed, while more than 20 other states have adopted TRAP laws – including North Carolina with the passage of the “motorcycle vagina” bill in the summer of 2013.

The Texas law is now before the Supreme Court in Whole Woman’s Health v. Cole, set for argument on March 2, 2016, and the question for the justices, stripped bare, is just how far a state can go in regulating abortion before it unduly burdens a woman’s constitutional rights.

As summarized by Nina Martin at Pro Publica:

How far can states go to regulate abortion before the rights laid out in Roe v. Wade and the 1992 case Planned Parenthood v. Casey become all but meaningless? Is it enough for lawmakers to claim that tough clinic regulations have a rational basis, or must they prove that the rules are medically necessary?

Dozens of groups on both sides of the issue have filed friend-of-the-court briefs, including one on behalf of more than 100 women attorneys who have had abortions and who oppose the TRAP laws, and several on behalf of medical professionals who say the TRAP restrictions unquestionably harm women’s health.

One person, one vote

Who should states count when tabulating populations for redistricting purposes? That’s the question presented in Evenwel v. Abbott, a case that’s as much about state’s rights as it is about voting rights.

In 1964, the U.S. Supreme Court rejected an Alabama redistricting plan which allotted just one representative to heavily-populated and sparsely-populated districts alike, ruling in Reynolds v. Sims that under the “one person, one vote” concept of equal representation, legislative districts should have roughly equal populations. The high court has not, however, dictated how states should count population for purposes of drawing state legislative districts.

Typically states have counted the total population, giving all people equal representation. Voters in rural Texas have challenged that process in Evenwel, contending that by including non-eligible voters – those who aren’t citizens, for example, or those who’ve been in prison – in a district’s total population, the state gives greater weight to the far fewer votes that would be cast in such districts. They argue that instead each vote should be equal and that population count should be based on eligible voters only.

Many voting law experts predict that should the high court adopt the Texas position, a shift in political power from urban diverse areas to suburban and rural ones would follow.

Others add that a switch to limiting population to eligible voters plays into the politics of those lawmakers set on suppression through voter ID and other measures. In more blunt terms, Election Law Blog’s Rick Hasen called the case “an attempted Republican power grab in Texas and other jurisdictions with large Latino populations.”

Affirmative action, redux

The court is once again reviewing admissions policies at the University of Texas at Austin in Fisher v. University of Texas at Austin, a case with implications for the lawsuit pending here challenging admissions policies at UNC-Chapel Hill.

The justices first reviewed the case filed by Abigail Fisher, a white student denied admission to the University of Texas at Austin allegedly because of her race, in 2012. In a 7-1 decision the following spring, the justices sent the case back to the 5th U.S. Circuit Court of Appeals for further review. After a second look, the appeals court again upheld the university’s admissions policies in July 2014, finding that they withstood the strict scrutiny test for judging race-based policies.

How the high court rules this second go-round in Fisher will likely impact the UNC case, since challengers there as in the Texas case contend that the university admissions policies at issue cannot survive “strict scrutiny.”  In the UNC lawsuit, filed under the name “Students for Fair Admissions Inc.,” attorneys for plaintiffs — selected after a nationwide search by backers of Project for Fair Representation — argue that diversity at the schools can be achieved by race-neutral alternatives and that public colleges and others receiving federal funds should be ordered to end the use of race in admissions altogether.

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This past fall the Supreme Court heard three important cases concerning an individual’s ability to have his case heard by a court: Tyson Foods, Inc. v. Bouaphakeo, Campbell-Ewald Company v. Gomez, and Spokeo, Inc. v. Robins. For background on these cases, read here.

The high court is also set to consider whether to take the case challenging President Obama’s executive action on immigration, United States v. Texas, at its conference on January 15, 2016. If the justices take the case, it’s unclear whether it will be heard this term.

And making its way back up to the high court yet again is a request for review of the North Carolina Supreme Court’s most recent decision upholding, for a second time, the state’s voting maps in Dickson v. Rucho. The petition for review has yet to be filed, though attorneys for those parties challenging the maps say it’s in the works.

Stay tuned.