Four Specific Indicators to Look for (As Distinguished From Cases to Watch) This Supreme Court Term

Posted in: Constitutional Law

Last year at the Supreme Court, there was some level of drama about who would win or lose what I (and many other analysts) thought were the major cases; most people expected Justice Kennedy to join (as he did) with the more liberal Justices to recognize a national right of marriage equality for same-sex couples, but folks were less confident about the results in the Obamacare tax subsidies case and the challenge to Arizona’s independent redistricting commission, to name just a few. It turns out that the conservative wing of the Court lost in all three of these cases and (as I wrote in an earlier column) were worse off at the end of the Term than they were before.

The Term that kicked off this week seems to me different, in that the conservative side is likely to prevail in most of the high-profile hot-button cases, but often the key question will be not whether, but how it will win: will it win in big, sweeping rulings that wash away liberal precedents altogether, or will it win in more incremental ways that trim back earlier holdings (or purport simply not to extend them)?

In the space below, I identify four bellwether markers to keep your eye on to get a sense of whether the 2015-2016 Term will be seen as conservative movement or a conservative rout.

The Power of Public Labor Unions

In California, as in many other states, a public sector bargaining unit may, by majority vote, elect to create an “agency shop” in which the union is the collective bargaining agent on behalf of all the employees. Employees in the unit, whether or not they choose to become full-fledged union members (and they have a choice not to), must pay an “annual fee to cover the cost of union services related to collective bargaining (so-called chargeable services). Such chargeable services do not, and cannot, however, include expenses In Abood v. Detroit Board of Education, and then again in Chicago Teachers Union v. Hudson, the Court held that the First Amendment prohibits states from forcing public-sector employees to pay for the ideological or political activities of a union (as distinguished from the union’s collective bargaining activities) with which some employees may disagree. But, importantly, the Court has upheld systems in which the nonmembers who wish not to pay for political activities must affirmatively “opt out” of payment—silence on the part of such individuals enables unions to charge them for bargaining and political activities alike.

In Friedrichs v. California Teachers Association, the Court will revisit these earlier cases, perhaps taking on fundamental questions of whether collective bargaining itself is a political activity such that any distinction between the two is illusory, and also whether (assuming chargeable fees can ever be imposed on people who choose not to join the unions) an “opt out” regime should be replaced with an “opt in” regime, where only those individuals who explicitly choose to pay are billed.

The results of this case for public-sector unions seem ominous. Given the signals the Court has sent in recent years, it’s hard to imagine the Court leaving the status quo untouched; the real question seems to be whether the majority will simply require an “opt in” system for non-members, or instead whether the Court will scrap Abood altogether and hold that unions cannot require non-members to pay even for chargeable services. If the Court leaves chargeable services alone, a move from an opt-out to an opt-in for political expenditures will likely reduce public sector union political clout considerably, but the thing to look for here is whether the Court goes big and actually overrules Abood. If that happens, many employees will seek to be free-riders, benefitting from but choosing not to pay for the collective bargaining process. As a result, it may be harder for such unions to have the resources to engage in collective bargaining as effectively as they do now.

How Far Will Affirmative Action Be Cut Back?

The extent to which government can consider the race of individuals is also front and center in the Court this Term. In Fisher v. University of Texas the Court will address the admissions scheme at the University of Texas (UT). UT already accomplishes some racial diversity by admitting the highest (top ten percent) grade performers from each high school in the state regardless of standardized test scores. (This produces some diversity because many high schools are all or nearly all non-white, so the top grade-earners at these schools are also necessarily non-white). The question is whether UT can, on top of that program, give a preference to applicants who come from underrepresented racial groups such as blacks and Latino(a)s. In 2003 a bare five-person Court majority allowed the University of Michigan law school (in Grutter v. Bollinger) to give a plus to ethnic minority applicants, but Justice Alito (who seems to frown on race-based affirmative action) has since replaced Justice O’Connor (who wrote Grutter).

Everyone expects Justice Kennedy to be the pivotal vote in Fisher, and everyone also expects Justice Kennedy to reverse the Fifth Circuit opinion that upheld UT’s admissions policy on the strength of Grutter. What people do not seem sure of, however, is how broad or narrow Justice Kennedy’s dispositive position in this case will be. I see two real possibilities.

The broader option—holding that race may never be used at the individualized admission stage—is the one hard conservatives most hope for, but it is also the least likely to come to pass. For starters, notwithstanding language in Justice Kennedy’s concurrence in Parents Involved in Community Schools v. Seattle School District No. 1 (a case shortly after Justice Alito’s arrival that effectively refused to apply Grutter at the high school level) that flirted with a ban on individualized race consideration, and his separate writing in the 1980s case of City of Richmond v. J.A. Croson to the same effect, he has refused to disclaim Grutter’s professed approach altogether. Moreover, Justice Kennedy rarely likes to establish bright-line rules in constitutional cases, and affirmative-action cases seem no exception. Finally, Justice Kennedy explicitly said in his Grutter dissent that “[t]here is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity . . . [provided] each applicant receives individual consideration and that race does not become a predominant factor in admissions decision making.” That sounds a lot like acceptance of Justice Powell’s approach in Regents of the University of California v. Bakke, so long as courts ensure that a meaningful substantive strict scrutiny approach is rigorously followed.

So the most likely Fisher result is something less extreme, with Justice Kennedy holding that UT’s plan simply does not survive a sincere application of the “strict scrutiny” test that applies. The reasoning Justice Kennedy will most likely embrace centers on the existence of the “Top Ten Percent” plan. Even if a Harvard-style “plus” plan (of the kind that Justice Powell described in Bakke and that the Court upheld in Grutter, in which individuals of minority ethnicity are given “plusses” in their application files) can sometimes pass constitutional muster because it is necessary to accomplish educational diversity, it cannot be considered necessary—and thus constitutionally permissible—if a “percentage plan” like Texas’s is already operating and accomplishing results that exhibit some meaningful diversity. This move would be most consistent with Justice Kennedy’s key concurrence in Parents Involved that permitted, if not encouraged, the racial identity of groups to be considered when deciding what criteria of geographical student assignment and educational programming should be (akin to deciding what the admissions criteria at UT should be), but distinguishing that from the consideration of the race of individuals when the criteria are applied.

Justice Kennedy need not definitively affirm or disclaim his prior suggestions that race of individuals might sometimes be taken into account because the percentage plan’s modicum of success in achieving diversity makes that question unnecessary to answer. We cannot predict with certainty whether the opinion will require all states to experiment with percentage plans before ever making individualized use of race, or will simply indicate that those states which do have percentage plans that are working reasonably well have no occasion to do anything else. But either way, Texas can’t make use of race in the way it has tried.

So the key things to look for here are how close to color-blind Justice Kennedy wants to get, and how much he requires jurisdictions to experiment with percentage plans before ever taking race into account.

It is also important to note that whatever the Court holds here could apply not just to prominent public universities like UT, UC Berkeley, and the University of Illinois, but also to private colleges and universities—such as Yale, Harvard and Stanford—that are bound to the same norms as public schools by virtue of federal funding statutes.

Abortion Rights and the Meaning of Undue Burden

Although there is no abortion case yet on the Court’s docket (and it has been a while since the Court has taken up a major abortion case), there is a high likelihood that the Court will grant review in Whole Woman’s Health Center v. Cole, a challenge to a Texas statute that applies the same regulatory standards to abortion clinics as are applied to “ambulatory surgical centers,” and also requires abortion-providing doctors to have admitting privileges at a hospital near to where they perform abortions. These two provisions would, if fully implemented, have the effect of reducing the number of abortion clinics in Texas by about three quarters, to around a dozen facilities. The Supreme Court blocked a lower court ruling that had allowed these provisions to be enforced, and when the Court grants a stay of (or a hold on) a lower court ruling, it very often decides to take the case up for itself. (I should note that it takes 5 Justices to grant a stay, and only 4 to grant review.)

If the Court does hear the case on the merits, the key question to focus on is how the Court applies the “undue burden” standard; under current precedent (Planned Parenthood v. Casey), laws that impose “undue burdens”—that is, laws that have the intent of effect of placing a substantial obstacle in the path of women seeking an abortion before a fetus is viable—are unconstitutional. If the Court (and the matter will likely turn on Justice Kennedy, who is the last remaining architect of the Casey plurality opinion) concludes that a law such as Texas’s does not create an undue burden, there is a strong argument that the meaning of that standard will have been watered down, and the door opened more widely for aggressive state laws regulating abortion access. That would diminish abortion rights from their present state in a significant way, and mark a big victory for those who think the substantive due process right to abortion is not adequately grounded in the Constitution in the first place.

The Death Penalty Under Pressure

Finally, let us look at another issue that has been debated vigorously in the twenty-first century—the death penalty—and the possibility that the conservative Justices could lose ground on this matter. On the docket this year is Hurst v. Florida, which examines Florida’s death penalty regime, the only one in the country that allows a jury to find the existence of aggravating circumstances beyond a reasonable doubt (something the Court has held in the past is necessary before a death penalty can be imposed), and to recommend a sentence of death, by use of a simple majority vote.

Given the importance that a majority of Justices (including conservatives like Antonin Scalia) have attached to having juries—as opposed to judges—make key findings in criminal cases, Florida’s scheme may be a hard sell. So this is a death penalty case conservatives might lose. But the bigger question—and the one on which to keep a close watch – is whether this case is one that begins to set up a full-frontal challenge to the death penalty altogether. That would be a silver lining for liberal Justices even if the Term as a whole seems pretty dark. Justice Scalia recently told students in Tennessee that he “wouldn’t be surprised” if the Court were to invalidate the death penalty as a general matter. Last Term, Justice Breyer, joined by Justice Ginsburg, intimated that he was now of that view, and it is hard to imagine that Justices Sotomayor and Kagan would not follow suit if there were a fifth vote to constitutionally abolish capital punishment. That brings us to pivotal Justice Kennedy again. Do Justices Breyer and Scalia know something the rest of us do not about Justice Kennedy’s thinking on this topic?

That is the thing to keep an eye on. It is highly unlikely that the Court would sweepingly invalidate the death penalty without asking for and considering briefing on that big question, but the Florida case could be a vehicle for doing so, or, more narrowly but still importantly, at least be an opportunity for Justices Sotomayor and Kagan to join Justices Breyer and Ginsburg in such a way as to make clear to the world and to Justice Kennedy that he is, yet again, in the pivotal position.

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