Coming up at the Supreme Court: "The Revenge of the Conservatives"?

They're ba-a-ack!

by Ken

Are you ready for it, constitutional-law fans? Yes, it's Ian Millhiser's fall preview. "Next Monday," ThinkProgress's legal maven noted in his post this morning ("Everything You Need To Know About The Big Supreme Court Cases The Justices Will Hear This Term"),

the Supreme Court will gavel in its newest term and the justices will take the bench for the first time since last June, when the conservative Roberts Court handed down a string of uncharacteristically liberal decisions. This term, however, liberals will need to swim upstream, with the justices poised to consider a number of issues — unions, voting rights, race, and abortion — where the members of the Court’s conservative bloc have not often show a penchant of heterodoxy.

The latter link is to a July post of Ian's called, ominously, "Coming Next: The Revenge Of The Supreme Court’s Conservatives," in which he ventured that "it is unlikely that liberals will feel the same way about the next Supreme Court term as they do about this recently completed one." He reminded us of his basic argument about last term, which left liberals "feeling pretty good": that "many of these outcomes most likely stem from conservative overreach -- litigants looking to disrupt progressive legislation brought long shot cases because they were encouraged by the Roberts Court’s record of conservatism and decided to 'press their luck.' "

Based on the cases the Court has already accepted for this term, and rumblings about other prospects, Ian doesn't see that happening again. In fact, trying to match the issues at hand with the Court's recent record, he's not optimistic at all.

For Ian's full thinking, check out the post. Here are the issues he's looking at:

• "Defunding Unions"

The issue is so-called "right to work" laws, under siege nationwide. But the case, Friedrichs v. California Teachers Association, deals not with them as such but as the workaround unions have used: "fair share" or "agency" fees, by which all those who benefit from unions' collective bargaining can be made to pay a share for the costs of it, whether they're union members are not, preventing them from getting a totally free ride on the dues payers' backs.

many Court-watchers believed that the justices would declare right-to-work laws mandatory in public sector unions in 2014’s Harris v. Quinn. At oral argument in that case, however, Justice Antonin Scalia expressed concerns that the plaintiffs’ legal theory, which seeks to subject workplace bargaining to First Amendment scrutiny, could create serious problems for government managers. In the end, Harris wound up imposing a right-to-work regime on home health care workers, but it left the rest of the public sector workforce unscathed.

The biggest question in Friedrichs, in other words, is whether the Court’s relatively modest holding in Harris is a sign that at least one of the Court’s conservatives does not want to go as far as the Friedrichs plaintiffs wish to take them, or whether these justices simply decided that it would be best to make a radical shift in America’s labor and First Amendment law incrementally through several decisions. In any event, it appears that the best hope of many unionized workers is Justice Scalia. That’s never a happy position for a worker to find themselves in.

• "Free House Seats For White People"

The case is Evenwel v. Abbott, "which seeks to shift congressional representation away from communities with large numbers of immigrants." You'll recall that the allotment of congressional districts to the states is based, per the 14th Amendment, not on the number of eligible voters but on "the whole number of persons in each state." But that doesn't necessarily mean, this suit argues, that the congressional districts should be divvied up based on the same consideration.

So Texas, which has a significant number of largely Latino non-citizens, receives extra representation in the House for these non-citizens, even though they cannot vote.

When Texas drew its district lines, it complied with one person, one vote by drawing districts that had roughly equal population — even though this meant that some of those districts (typically, the ones with fewer non-citizens) have more voters than others. The plaintiffs in Evenwel want the Supreme Court to require states to draw districts with equal numbers of voters, instead of residents — so non-citizens will no longer count for purposes determining district populations. As a practical matter, this would shift representation away from Democratic-leaning communities with large numbers of Latinos to other communities that are more likely to support Republicans.

If the Evenwel plaintiffs prevail, in other words, Texas will continue to get extra seats in Congress for its large non-citizen population, but white Republicans will play a disproportionate role in selecting who occupies those seats.

Ian points out, though, that this case may not be quite so ominous. Unlike most cases that the High Court accepts based on a minimum of four votes in favor of acceptance, "this case came up through the Court’s mandatory jurisdiction, meaning that the Court had to at least give it cursory review. The fact that Evenwel will instead receive a full hearing, however, is not necessarily a sign that a significant faction within the Court is eager to use this case to shift power towards white voters."

• "Affirmative Action"

"One of the biggest surprises of Chief Justice John Roberts’ tenure," Ian writes, "is that the Court he leads has not struck down affirmative action on his watch." And the case is one that's well-known both to the justices and to Supreme Court groupies, Fisher v. University of Texas." When it first came before the Supremes, the general assumption was that the end was near for affirmative action.

Instead, the Court’s first Fisher opinion reemphasized [Justice Anthony] Kennedy’s concern [voiced in his 2003 dissent in Grutter v. Bollinger, in which the Court upheld limited affirmative action] that racial affirmative action programs are subject to the highest level of constitutional scrutiny, and returned the case to the conservative United States Court of Appeals for the Fifth Circuit to reconsider Texas’s program.

A year later, the Texas admissions program dodged another bullet when it was upheld again by a divided Fifth Circuit panel.

Now, however, the Fisher case is before the justices again. The question this time around is whether one or more members of the Court’s conservative bloc flinched the first time because they have a lasting concern about striking down this particular program, or whether they simply expected the Fifth Circuit to do so for them. If the later is true, expect them to take matters into their own hands.

Since Grutter was decided, Ian notes, Justice Sandra Day O'Connor, who wrote the decision, has been replaced by the knee-jerk far-right-wing Sammy "The Hammer" Alito. Couple that with "Slow Anthony" Kennedy"s on-the-record problems with affirmative action, and it looks like this could be it.

• "The End of Roe?"

Looming over the entire term are at least two major reproductive health cases that the justices are very likely to agree to hear, even though they have not yet done so. The first case asks whether states can enact sweeping restrictions on abortion so long as they dress them up as sham health laws that appear, on the surface, to do something to protect women’s health. The second is a follow up to Hobby Lobby which asks whether religious objectors can refuse to comply with rules promoting birth control access that literally requires them to do nothing more than fill out a form asking for an exemption from the law.

Both of these cases are discussed at greater length, in addition to another major reproductive rights case that the Court could potentially agree to hear, at this link.

Again, you'll have a better idea of what you'll find at the link of you know the title of the post Ian is directing us to here: "How The Supreme Court Could Destroy Reproductive Rights In One Term."

Getting the picture? It could be a rough ride, this Supreme Court term.

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