Catching up with the Supreme Court -- and looking ahead

"Something very unusual happened at the nation’s highest court this year. The justices adjourned for their summer vacation and liberals were left feeling pretty good about the just-completed Supreme Court term. . . . [I]t is unlikely that liberals will feel the same way about the next Supreme Court term."

-- Ian Millhiser, in a ThinkProgress post today, "Coming Next:
The Revenge Of The Supreme Court’s Conservatives"

by Ken

As we know, the marquis cases decided by the Supreme Court in the just-ended term both went the un-conservative way, and both decisions were written by Court conservatives:

• the 6-3 decision in King v. Burwell, with the majority opinion written by Chief Justice John Roberts -- and joined by Justice "Slow Anthony" Kennedy as well as the Court's four moderate justices -- that no, the Affordable Care Act doesn't limit federal subsidies to health-insurance shoppers buying on the individual state exchanges rather than on the federal exchange (created as a backstop for citizens of states with fuck-you scumbag state governments);

• and the 5-4 ruling, with "Slow Anthony" writing the majority opinion, joined by the four moderates, that the Constitution provides a right to marriage for same-sex couples.


THE LATER DECISIONS

The most important decisions announced after the Big Two, which we haven't talked about yet, one had a good outcome and one a bad one.

• In the good outcome, Arizona State Legislature v. Arizona Independent Redistricting Commission et al., the Court refused to invalidate independent redistricting committees established outside the state legislature, rejecting the argument that this violates the Constitution's prescription: "The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations."

Justice Ruth Bader Ginsburg, in a lovely majority opinion joined by the other three moderates and by "Slow Anthony" Kennedy, made clear that states get to decide how legislative functions are accomplished and if a state authorizes ballot initiatives, that satisfies the constitutional requirement. She also paid ringing tribute to the quality, efficiency, and freedom from conflict of interest of independent redistricting commissions.

It would have been disastrous if the Court had ruled otherwise, as the four hard-line thug-justices would have done, depriving states of this excellent option for better-quality redistricting. The reason I say that the decision is more important for what it didn't do is that now all that democracy-averse Republicans have to do is make damn sure states don't empower independent commissions. I don't think we're going to see a lot of them in the foreseeable future.

• Then there's the bad outcome, Michigan et al. v. Environmental Protection Agency et al., Justice Nino Scalia, writing for the majority (with "Slow Anthony" Kennedy back in place), wrote that while yes, the EPA can issue rules regarding emissions from coal- and oil-fired power plants, "EPA must consider cost -- including cost of compliance -- before deciding whether regulation is appropriate and necessary." Note that no consideration is contemplated for the cost of negative health effects of emissions.

This seems to me a big victory for the polluting-power industries, and also seems to me that the Court is prepared to give a hearing to any pro-pollution case polluting industries can cobble together.


WAS THIS A "LIBERAL" TERM AT THE COURT?

The New York Times editorial board doesn't think so, and neither do I. Here's some of what was included in a 4th of July NYT editorial, "The Activist Roberts Court, 10 Years In":

After a series of high-profile end-of-term rulings that mostly came out the way liberals wanted, it is tempting to see a leftward shift among the justices.

That would be a mistake. Against the backdrop of the last decade, the recent decisions on same-sex marriage, discrimination in housing, the Affordable Care Act [links onsite -- Ed.] and others seem more like exceptions than anything else. If they reflect any particular trend, it is not a growing liberalism, but rather the failure of hard-line conservative activists trying to win in court what they have failed to achieve through legislation.

And even when a majority of the justices rejected conservative arguments, the decision to hear those cases in the first place showed the court’s eagerness to reopen long-settled issues. . . .

There is, indeed, an interesting view that the conservatives' weak showing in this term reflected a development described by Dartmouth Asst. Prof. of Government Brendan Nyhan in a June 25 nytimes.com "The Upshot" post: "What seem like liberal decisions may instead represent conservative overreach." He harks back to a case made in 2009 by political scientists Kevin T. McGuire, Georg Vanberg, Charles E. Smith Jr. and Gregory A. Caldeira, who --

predicted that conservatives would press their luck to take advantage when they had a majority on the court, appealing more cases they lost in lower courts. (Conversely, liberals would be less likely to appeal cases because they were more likely to prefer lower-court decisions and to fear creating damaging precedents.) Mr. McGuire and his co-authors then showed empirically that this process increased the number of conservative reversals of lower-court rulings but also increased the number of cases in which a more liberal ruling was affirmed because litigants guessed wrong about how far the court was willing to go.

As a possible example, in those last days the Court announced that it had declined to hear appeals by Kansas and Arizona of the 10th Circuit Court's ruling in Kobach v. U.S. Election Assistance Commission declining to make the commission require proof of citizenship on states' federal voter-application form. "Kobach" is Kansas's genuinely mentally diseased secretary of state, who -- among other crackpot far-right delusions -- sees Democrats everywhere engaged in voter-fraud conspiracies, which have escaped all efforts of detection by sane people. (Note, by the way, that the 10th Circuit ruling applies only to the federal portion of the registration form. It doesn't affect what nutjobs like Krazy Kris Kobach can put on the form regarding local and state elections.)


THERE'S ALREADY OMINOUS NEWS FOR NEXT TERM

Those last-days-of-term announcement dumps included some ominous news about cases the justices have already agreed to take up in the next term, revisiting issues that the Court has already been closing in on, suggesting that there are at least four justices, if not already a majority, prepared to further tighten the vise.

Which brings us back to Ian Millhiser's ThinkProgress post today, "Coming Next: The Revenge Of The Supreme Court’s Conservatives," from which I quoted at the top of this post -- you know, about it being unlikely that liberals will be cheering the next Supreme Court term. (Links onsite.)

Based on two major cases that the Court has already agreed to hear, and a third that is likely to be added to the Court’s docket this fall, next term is shaping up to be a much more conventional term rife with longtime conservative boogie men waiting to be slain by the Court’s right flank.

Abortion: Although the justices have not yet agreed to hear a major abortion case next Supreme Court term, it is likely that they will hear at least one of two cases involving sham health laws that conservative states have enacted in an attempt to get around what remains of the Court’s decision in Roe v. Wade. States such as Texas and Mississippi enacted laws that, at a superficial level, appear to be designed to make abortion clinics safer and to ensure that physicians who perform abortions are well-credentialed. In reality, however, these laws do little to advance women’s health, while simultaneously subjecting clinics to regulatory burdens that will force many of them to close down. At the moment, the only thing keeping multiple Texas abortion clinics open is a temporary stay issued by a 5-4 Supreme Court preventing that state’s law from going into full effect.

The Court will likely announce whether they will hear a challenge to these sham health laws in the fall. If they choose not to hear the Texas case, that could cause almost as much damage to the right to choose in Texas as an adverse Supreme Court decision, as it will allow a lower court decision cutting deeply into reproductive freedom to take effect. Should the justices agree to take this case, which seems likely, the fact that Justice Anthony Kennedy agreed to grant a temporary stay halting the law is a positive sign for advocates of abortion rights.

Nevertheless, no one in the choice community should count on Kennedy’s vote Prior to the Texas law reaching the Court, Kennedy voted on 21 abortion restrictions and allowed all but one of them to go into effect.

Affirmative Action: Two years ago, the Supreme Court gave affirmative action an unexpected stay of execution. Though Court-watchers largely expected the Supreme Court to end race-conscious university admissions programs in Fisher v. University of Texas, the Court voted instead to send the case back down to a lower court for reconsideration.

A year later, the conservative United States Court of Appeals for the Fifth Circuit upheld the University of Texas’s affirmative action program once again. Then, just last week, the Supreme Court announced that they would hear this case for a second time.

Justice Anthony Kennedy has demonstrated that there is some distance between himself and the Court’s four other conservatives, who hold much more absolutist views on race. At the end of this recently concluded term, he voted with the Court’s liberals to preserve a key prong of the Fair Housing Act, which prohibits race discrimination in housing. Nevertheless, there are several signs that he is unlikely to break with the Court’s conservative bloc in Fisher‘s second trip to the justices.

According to one judge, “it would be difficult for UT to construct an admissions policy that more closely resembles the policy approved by the Supreme Court” in 2003 then the aspect of Texas’s policy that is now being considered by the Supreme Court. Yet Kennedy dissented in that 2003 case — a strong sign that he’s already decided that the Texas admissions policy is unconstitutional. Indeed, at oral arguments in Fisher I, Kennedy accused Texas of creating an admissions program where “race counts above all.” That’s very bad news for defenders of affirmative action.

Unions: The Court also announced last week that it will hear Friedrichs v. California Teachers Association, a case that will send many public sector unions’ finances into turmoil if its plaintiffs prevail before the justices.

The core question in Friedrichs is whether non-members of a union can be required to compensate the union for the costs of bargaining on their behalf. Under longstanding law, unions are required to bargain on behalf of all workers in a unionized shop, regardless of whether those workers elect to join the union. Thus, members and non-members alike share in the higher wages and increased benefits that typically come along with unionization.

To prevent a free-rider problem, where workers elect not to join the union because they know that they will benefit regardless of whether they pay their share of the union’s bargaining costs, current law allows unions to charge what are known as “fair share” fees or “agency fees,” which cover each non-member’s share of the cost of bargaining on their behalf. Without these fees, public sector unions may struggle to raise the funds that they need in order to operate, and all workers in many unionized workplaces could eventually lose the benefits of unionization.

The Supreme Court voted 5-4 to limit many unions’ ability to charge these fees in 2014. That’s an ominous sign for public sector unions who have a stake in Friedrichs.

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