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The Supreme Court Begins A New Term With Several Politically Charged Cases

Supreme Court Justices 2

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.

(…)

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.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. DrDaveT says:

    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.

    And yet, when corporate employers use the fruits of the workers’ labor to make large political donations, which the Court now assures us is a form of protected speech, that is somehow not compelled speech for the workers?

    Highly-rated. Helpful or Unhelpful: Thumb up 31 Thumb down 1

  2. Moosebreath says:

    @DrDaveT:

    “And yet, when corporate employers use the fruits of the workers’ labor to make large political donations, which the Court now assures us is a form of protected speech, that is somehow not compelled speech for the workers?”

    Or the shareholders. And with many companies making their 401-K contributions in company stock, there’s a large overlap.

    Highly-rated. Helpful or Unhelpful: Thumb up 22 Thumb down 0

  3. Scott says:

    @DrDaveT: I always wondered about Shareholder’s rights. Corporations using my share of the profits or net worth to fund political activities. Why shouldn’t my permission be sought before then.

    Like or Dislike: Thumb up 12 Thumb down 0

  4. Scott says:

    When I ponder the new Supreme Court session, I seem to have that feeling of dread similar to the end of any zombie or horror movie where everything has calmed down but you know there is one more burst of violence and fear.

    Like or Dislike: Thumb up 3 Thumb down 0

  5. Neil Hudelson says:

    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.

    Texas spent all that time disenfranchising voters, and ensuring new voters wouldn’t sign up, and this pesky law is making us still represent them. So annoying.

    Why can’t we limit who can vote, and then limit our representation of them? It’s only logical.

    Like or Dislike: Thumb up 12 Thumb down 1

  6. DrDaveT says:

    @Scott:

    Why shouldn’t [shareholders’] permission be sought before then?

    Presumably because the courts have held that buying votes is a routine business transaction, like buying paper for the copier and coffee for the galley.

    Like or Dislike: Thumb up 8 Thumb down 0

  7. Pinky says:

    @DrDaveT: It’s not compelled speech at all. I can’t go to the store and buy a can of beans under the condition that the company selling beans isn’t allowed to use the revenue for projects that I oppose. I can’t sell land and require that the recipient behave in a certain way. I can choose to buy products whose companies follow policies I support, but I can’t make them commit to future support.

    Like or Dislike: Thumb up 1 Thumb down 8

  8. DrDaveT says:

    @Pinky:

    It’s not compelled speech at all.

    Can you articulate that in a way that distinguishes why workers’ productivity (or shareholders’ partial ownership) does not result in compelled speech, but workers’ union dues does?

    Or are you agreeing that paying union dues does not, in fact, result in compelled speech?

    Like or Dislike: Thumb up 14 Thumb down 0

  9. Pinky says:

    @DrDaveT: I sell my productivity to my employer. The result of my labor is his to do with as he pleases. Likewise, the wages that I get from that sale should be mine to do with as I please. It seems to me that if an employer or union requires me to give a portion of my earnings to advocate for a cause, then that’s a violation of my rights. But I can use my money how I want to, as can my employer.

    Like or Dislike: Thumb up 1 Thumb down 7

  10. Pinky says:

    Dave – I’m hoping for a reply. This one seems really, really obvious to me, and I’m curious to see how you read it differently.

    Like or Dislike: Thumb up 1 Thumb down 1

  11. michael reynolds says:

    We’ve killed unions and we’re baffled that middle class incomes have stagnated despite productivity increases.

    Duh.

    Like or Dislike: Thumb up 14 Thumb down 1

  12. Tony W says:

    @Pinky: By your own reasoning, if you voluntarily sign up for a union job, then hand over the union dues – those unions have the right to use those funds any way they please.

    Or are you saying somebody is forcing American workers to take Union jobs at gunpoint?

    Like or Dislike: Thumb up 10 Thumb down 0

  13. Pinky says:

    @Tony W: As I understand it, the teachers are required to pay dues to the union.

    Like or Dislike: Thumb up 0 Thumb down 2

  14. DrDaveT says:

    @Pinky:

    But I can use my money how I want to, as can my employer.

    But not your union?

    As @Tony W said, on your anlaysis I don’t see the obvious difference between a company using its profits as it sees fit vs. a union using its collected dues as it sees fit. By your analysis, both are instances of funds arising from voluntary contracts on the part of the individuals in the firm or union(*). It gets even less clear when you include the example of shareholders (as I did above), where you can’t plausibly claim that a firm does not speak for its owners at least as much as a union speaks for its members.

    (*) If it’s not a voluntary contract — e.g. if you have to pay dues even if you’re not a member of the union — then I don’t see how one could pretend that the union is in any way speaking for its dues-payers when it speaks.

    Like or Dislike: Thumb up 7 Thumb down 0

  15. Pinky says:

    @DrDaveT:

    If it’s not a voluntary contract — e.g. if you have to pay dues even if you’re not a member of the union — then I don’t see how one could pretend that the union is in any way speaking for its dues-payers when it speaks.

    The text or intent of the speech could not be considered to be approved by all members. But the volume of the speech (the cash) wouldn’t reflect that ambiguity.

    Beyond that, I’m not sure what you’re going for. The ownership of a stock is a voluntary act of participation in the company’s decisions. Employment is primarily a voluntary agreement to perform services for wages. The involuntary payment of dues to a union of which one is not a member can’t be compared to those.

    Like or Dislike: Thumb up 0 Thumb down 3

  16. Moosebreath says:

    @Pinky:

    “Employment is primarily a voluntary agreement to perform services for wages. The involuntary payment of dues to a union of which one is not a member can’t be compared to those.”

    Because? Why is the act of being employed a voluntary agreement, but the act of being employed in a job with a union representing you not? Just as one can elect to leave a non-union job if one does not agree with the employer, one can leave a union job if one does not agree with the union.

    Like or Dislike: Thumb up 8 Thumb down 0

  17. Pinky says:

    @Moosebreath: In this case, I am free to negotiate with my employer. My employer is free to negotiate with me. Neither of us are free to negotiate with the union. The union is a third party in a deal made by two parties. If a third person shows up on a date invited, he’s a chaperone. If a third person shows up on a date uninvited, he’s a stalker.

    Like or Dislike: Thumb up 0 Thumb down 1

  18. Moosebreath says:

    @Pinky:

    “I am free to negotiate with my employer. My employer is free to negotiate with me. Neither of us are free to negotiate with the union. The union is a third party in a deal made by two parties.”

    First (but somewhat irrelevant), the employer is not merely free, but under labor law is required, to negotiate with the union.

    Second, since the union was there first, who is the chaperone/stalker in your example? Or in other words, if you took a job knowing there was a union present, why can you then complain about the presence of the union? You could have simply refused the job.

    Like or Dislike: Thumb up 7 Thumb down 0

  19. DrDaveT says:

    @Pinky:

    The ownership of a stock is a voluntary act of participation in the company’s decisions.

    And yet, when the company speaks without consulting minority shareholders, those shareholders are NOT held to be making compelled speech. Why is that, if voluntary participation is the important distinction?

    I don’t see how you can have it both ways. Either both small shareholders and union members are victims of (forbidden) compelled speech, or neither is.

    On a separate topic, I’ll note that I think you are factually in error in asserting the primacy of employer and employee in all employment contracts. Under US labor law, in the presence of a collective bargaining agreement the principals are the company and the union. Individual employees, like individual shareholders, have no direct role in that negotiation.

    Like or Dislike: Thumb up 4 Thumb down 0

  20. DrDaveT says:

    @Pinky:

    Dave – I’m hoping for a reply.

    I’m doing my best. If any of it sounds snarky, that’s an inadvertent failure on my part. I tend to lapse back into classroom lecture mode sometimes.

    Like or Dislike: Thumb up 0 Thumb down 0

  21. DrDaveT says:

    @Pinky:

    The text or intent of the speech could not be considered to be approved by all members. But the volume of the speech (the cash) wouldn’t reflect that ambiguity.

    You’ve lost me there — I’m honestly not sure what you’re saying. Either speech by the union is to be construed as speech by (all) the members, or it isn’t. If not all members are equally speaking, then there’s no compelled speech for those who are less equal than others.

    Like or Dislike: Thumb up 1 Thumb down 0

  22. al-Ameda says:

    @Pinky:

    @Tony W: As I understand it, the teachers are required to pay dues to the union.

    Does not the union negotiate the terms of salary and benefit compensation, and other workplace conditions with district management on behalf of all teachers? And as such, do not all teachers benefit from union negotiation efforts on their behalf?

    This is not complex. There is a direct nexus between member dues paid to the union and union efforts to secure better compensation and workplace conditions for teachers. Should a teacher who does not want to pay dues realize any benefit that may derive from negotiated agreements that other members have paid dues for? Really?

    Like or Dislike: Thumb up 6 Thumb down 0

  23. Tony W says:

    @al-Ameda: And, to Pinky’s point, did any teacher get into that profession thinking there was no union representation? Was the union somehow a surprise, or was the position attractive despite/because of the union?

    The party of personal responsibility sure doesn’t think very highly of people’s ability to take personal responsibility for their decisions.

    Like or Dislike: Thumb up 6 Thumb down 1

  24. Just 'nutha ig'rant cracker says:

    @DrDaveT: Ironically enough, the “champions” of workers’ rights to be free of union coercion never seem to see that one as a problem, since the money in question never belongs to the workers anyway. I’ve been watching laborers, with the assistance of their unions and the courts, shoot themselves in the foot for about 30 years now. If they wish to gut their own interests and impoverish their families, I no longer care.

    Like or Dislike: Thumb up 1 Thumb down 0

  25. Just 'nutha ig'rant cracker says:

    @Pinky:

    I can’t sell land and require that the recipient behave in a certain way.

    Actually you can, some restrictive covenants are legal. For example, I can sell a farm with the restriction that it can only be purchased by a farmer.

    Like or Dislike: Thumb up 4 Thumb down 0

  26. Pinky says:

    @DrDaveT: If we’re talking about the dues being used to advocate, then all of the money raised is being used to advocate for the same cause. It’s not like a union goes to government officials and says, “we want 75% better conditions and 25% to stay the same”, or testifies that “class size is an important issue to 2/3 of the workforce”. They’re advocating with the financial weight of all the dues-payers, voluntary or otherwise.

    Like or Dislike: Thumb up 0 Thumb down 2

  27. Pinky says:

    @Just ‘nutha ig’rant cracker: Restrictive covenants are rare, and never implied.

    Like or Dislike: Thumb up 0 Thumb down 1

  28. Moosebreath says:

    @Pinky:

    “It’s not like a union goes to government officials and says, “we want 75% better conditions and 25% to stay the same”, or testifies that “class size is an important issue to 2/3 of the workforce”. They’re advocating with the financial weight of all the dues-payers, voluntary or otherwise.”

    And yet, you are supporting the position that a member of the union should have the right to receive the benefits of the advocacy done on his behalf without paying for it.

    Like or Dislike: Thumb up 6 Thumb down 0

  29. DrDaveT says:

    @Pinky:

    If we’re talking about the dues being used to advocate, then all of the money raised is being used to advocate for the same cause.

    And all of the profits used by companies to fund political campaigns are used to fund the same campaigns, regardless of the mix of political views among the shareholders.

    Until you articulate the alleged difference between (shareholders and corporate speech) vs. (dues-payers and union speech), I don’t think you’ve really addressed the question.

    Like or Dislike: Thumb up 4 Thumb down 0

  30. Just 'nutha ig'rant cracker says:

    @Pinky: Neither are closed shop agreements.

    Like or Dislike: Thumb up 2 Thumb down 0

  31. Rick DeMent says:

    Everyone is acting like the union employees are forced into something. Votes are held, leadership is elected, if the union members don’t like what the leadership is doing they have a voice in changing it. It’s a purely democratic system, just like stockholder votes. You are not required to join a union unless the union has been democratically voted into being that that place of work. Don’t like it? Convince your other union members to change. Can’t get then to vote your way? Then I guess you can quit just like a stockholder can sell their shares.

    The reason to form a union is to leverage the power of a group of individuals to speak in one voice, that’s exactly what corporations do which is why unions are useful when dealing with that block of power. Those people who would give that up over some petty beef over dues or politics are fools.

    Like or Dislike: Thumb up 8 Thumb down 0