Thursday, October 10, 2013

Abortion, Big Money In Elections, And Eleven Other Huge Cases The Supreme Court Will Hear Next Term

It’s become a cliché at the beginning and end of each Supreme Court term to comment on how important the term is or will be, and how the justices are hearing a myriad of major cases. And certainly after two terms featuring high profile cases on health care, immigration, voting rights and marriage equality — in addition to under the radar decisions blasting worker and consumer rights — there can be little doubt of the Court’s immense power to do harm (and its less frequently exercised power to do good).

The term that begins this fall, however, has the potential to be even more significant that the previous two. By this time next year, fair housing law could be neutered, unions could be hobbled, billionaires could be free to spend millions to put their favorite candidates in office, and the right to choose an abortion could be meaningless. With a wave of their hand, five conservative justices could achieve outcomes that Scott Walker, Rick Perry and Sheldon Adelson could never dream of accomplishing even at the height of their power.

Here’s a taste of what’s at stake in the next Supreme Court term:


The Supreme Court has not heard a major abortion case since 2007, when the conservative justices limited reproductive freedom in part because “some women come to regret their choice to abort.” Next term, they could hear two. The first, McCullen v. Coakley, concerns a Massachusetts law that prohibits people who don’t have business at a “reproductive health care facility” — most often, abortion protesters — from congregating within a buffer zone around the clinic’s entrance, exit or driveway. In what the lower court labeled an argument that “elevates hope over reason,” abortion opponents claim that the buffer zones violate Citizens United and a bevy of other First Amendment decisions. If five justices ultimately agree with this argument, it could not only wipe out the Massachusetts law, but also potentially endanger a federal law ensuring women can access clinics without intimidation, depending on the breadth of the Court’s decision.

While McCullen concerns how much harassment a woman may be subjected to before they can obtain an abortion, another case potentially strikes at the core of the right to choose. Although the specific issue at stake in Cline v. Oklahoma Coalition for Reproductive Justice concerns whether states can ban off-label use of abortion drugs, the case tees up the issue of how far states can go in restricting abortions by enacting laws ostensibly directed at making them safer. The Constitution quite correctly permits states to enact laws ensuring abortions are performed safely — otherwise, a state could not require surgical abortions to be performed by trained surgeons or ensure that operating rooms are sterile. Abortion foes, however, routinely use this power as a fig leaf to enact laws that can be spun as safety regulations, but which really exist for the sole purpose of restricting abortion. Common examples are bills requiring clinics have extra-wide hallways or to only employ doctors with irrelevant credentials. Extreme examples could force doctors to complete a 10,000 hour course before they can perform an abortion, or forbid an abortion clinic from operating unless it also qualifies as a level I trauma center.

Because of an unusual procedural issue involving a question the justices want the Oklahoma Supreme Court to answer, it is possible that the justices will not ultimately decide this case. Should they do so, however, they could potentially permit abortion foes to enact laws that make it literally impossible for abortion clinics to operate.

Campaign Finance

The Supreme Court’s Citizens United decision allowing corporations to spend unlimited money to shape the outcomes of elections is widely viewed as the high water mark in the justices’ willingness to allow big money to influence elections. Yet, after the Court hands down its opinion in McCutcheon v. Federal Election Commission — a case whose plaintiffs’ include the Republican National Committee — Citizens United could look quaint.

Although Citizens United permits unlimited donations to third-party groups such as SuperPACs which are ostensibly separate from candidates or political parties, the conservative justices have not yet struck a six-figure cap on total donations to candidates, political party committees and similar organizations. As the lower court explained in upholding this cap, “Eliminating the aggregate limits means an individual might, for example, give half-a-million dollars in a single check to a joint fundraising committee . . . because party committees may transfer unlimited amounts of money to other party committees of the same party, the half-a-million-dollar contribution might nevertheless find its way to a single committee’s coffers.” In other words, this case could conceivably allow billionaires to launder massive dollar donations to single candidates — who would no doubt feel very grateful to those billionaires should they win their election.

Separation of Church and State

Retired Justice Sandra Day O’Connor long provided the fifth vote to strike down government efforts to promote religious views. As she warned in one of her final opinions on the bench, due to the “violent consequences of the assumption of religious authority by government . . . Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?”

In Town of Greece v. Galloway, the Supreme Court’s new majority will have the opportunity to trade a system that has served us so well for one that has served others so poorly. Justice O’Connor’s opinions relied on her view that government can neither endorse a religious view nor convey a “message of endorsement to the reasonable observer.” Galloway, however, tees up the question of whether such endorsements will now be permissible because O’Connor is no longer around to protect her legacy.

Housing Discrimination

Discrimination is often subtle. Indeed, discrimination lawsuits rarely uncover a smoking gun document where the defendant announces a racist intent. Nevertheless, there can be little doubt that race discrimination exists. In the housing sphere, a recent study on behalf of the Department of Housing and Urban Development found that black and Asian homeseekers are shown or told about 15 to 19 percent fewer homes than whites with similar credit qualifications and housing interests. During the subprime lending boom, African Americans with good credit scores were 3.5 times as likely as whites with good credit scores to receive higher-interest-rate loans, and Latinos were 3.1 times as likely to receive such loans. And the Federal Reserve found that in 2009, African Americans were twice as likely to be denied a loan, even controlling for income and other qualifying criteria.

These disproportionate impacts have become increasingly crucial to policies and legal challenges that seek to address housing discrimination, and proving discrimination through “disparate impact” has been accepted by all nine federal appeals courts to consider the question. This past January, HUD even issued a regulation interpreting the Fair Housing Act as allowing claims of disparate racial impact. But the Township of Mount Holly, New Jersey is now asking the Supreme Court to reverse all of that — a risk given the Roberts Court’s hostility to the Voting Rights Act, affirmative action, and other means for rooting out racial discrimination.

In 2011, future Secretary of Labor Tom Perez averted a Supreme Court ruling on this issue by asking the city of St. Paul, Minn. drop its appeal after and preserve existing precedent. Once again, this case may not make it to a Supreme Court ruling, as the parties are reportedly close to a potential settlement.

Affirmative Action

Last term, the justices surprised many court-watchers by leaving affirmative action jurisprudence in place, but not before warning that lower court judges better apply a whole lot of scrutiny in analyzing any race-based college admissions policy. This term, they have another opportunity to take a cut at policies that diversify universities and workplaces — and at least two U.S. Supreme Court precedents on race. While the justices last term considered whether universities can consider race in selection, they will this time consider whether states can ban consideration of race in university admissions.

The U.S. Supreme Court made clear in several previous cases that states cannot force minorities to jump through special hoops to pass laws that benefit them as a group. The state ban does just that. Because it is a constitutional amendment, it requires nothing less than a second constitutional amendment to repeal — a burden that places affirmative action advocates on unequal footing. As the appeals court judges explained it, this means that a student seeking to be admitted because family member is an alumnus of the school could appeal directly to the university, while a minority student seeking to reinstate affirmative action has no other choice but to “attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2.” The lower court’s opinion continued: “The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.”

The Future of Unions

Until last July, the most important case facing the justices this term appeared to be National Labor Relations Board v. Noel Canning, a case that could have potentially rendered much of federal labor law unenforceable and left the right to organize completely toothless. The National Labor Relations Board has exclusive authority to enforce much of the law protecting workers and unions, and a series of decisions by conservative court of appeals judges declaring President Obama’s recess appointments to this board unconstitutional threatened to shut the board down. In July, Senate Republicans agreed to stop preventing anyone from being confirmed to this Board thanks to Democrats’ threat to invoked the so-called “nuclear option,” effectively removing the risk that American labor law would shut down entirely for as long as the Board’s current members sit. Nevertheless, an important remaining question in the Noel Canning case is whether the decisions reached by Obama’s recess appointees before Republicans lifted their blockade on confirmations are valid. If the Court holds that they are not, literally hundreds of decisions could be invalidated and would need to be relitigated.

With Noel Canning somewhat defanged by the confirmation of new NLRB board members, the most important labor case facing the justices this term is probably Unite Here Local 355 v. Mulhall. Unite Here concerns the future of “neutrality agreements,” agreements where an employer agrees to remain neutral on a union’s attempt to organize its workforce, and sometimes provide other concessions to the union, rather than face a potentially contentious process that can divide a workforce and generate animosity with the union that may ultimately represent its workers. Non-union shops are notoriously difficult to organize under existing federal labor law, so the presence of a neutrality agreement often determines whether a unionization effort will be successful. According to a 2007 paper examining neutrality agreements, less than one-fifth of newly organized employees were unionized under the NLRB elections process that typically applies in the absence of an agreement. By contrast, “the Service Employees, the Needletrades, textile, Hotel and Restaurant Employees, and the Autoworkers all report that a plurality or majority of newly organized members have come” after a contractual agreement with the employer to remain neutral.

Several years ago, anti-union advocates developed a legal argument that could potentially shut these agreements down, or, at least, limit the ability of unions and employers to reach such agreements. Citing an anti-bribery law enacted in 1947, which forbids employers from paying “any money or other thing of value” to a labor union seeking to represent its workers, these advocates claim that neutrality agreements violate this ban on companies bribing unions. Initially, this argument did not meet with much success. Indeed, then-Judge Michael Chertoff, who later became Homeland Security Secretary under President George W. Bush, wrote that anti-union advocates are “unable to provide any legal support for the remarkable assertion that entering into a valid labor agreement governing recognition of a labor union amounts to illegal labor bribery.” That all changed last year, however, when the United States Court of Appeals for the Eleventh Circuit embraced the anti-union advocates’ reading of federal anti-bribery law, at least in some cases. If the Supreme Court sides against neutrality agreements in this case, it could eliminate the single most potent vehicle many unions can utilize to organize new workplaces.

Clean Air

Environmental regulation is the epitome of interstate and even inter-country regulation. Pollution to the air, water, and soil of one state inevitably runs into others, and not always the way we’d expect it to. Because of wind patterns, there are some states whose pollution contributes more to poor air quality in other states. Addressing this issue, and aiming to prevent 34,000 premature deaths and 400,000 asthma attacks each year, the Environmental Protection Agency imposed a rule to require 28 “upwind” states to not only ensure that their own air quality complies with federal standards, but also to mitigate their contribution to pollution in other downwind states.

Even the conservative U.S. Court of Appeals for the D.C. Circuit has made clear that this sort of regulation is needed. In fact, the D.C. Circuit ruled in 2008 that old EPA rules did not sufficiently protect downwind states from pollution. But they have since swung the other way, in what has been dubbed a “Goldilocks Conunudrum.” Last year, the D.C. Circuit ruled that EPA’s newest solution regulates downwind pollution too much and doesn’t defer enough to states’ own proposals for solving the problem. This is the ruling the Supreme Court will review this time around.

Versions of these rules have been wending their way through the courts for decades, during which time pollution has been regulated under outdated, ineffective standards, even though the court and EPA agree that the Cross State Air Pollution plan would be more effective. A U.S. Supreme Court ruling upholding the latest D.C. Circuit opinion would send EPA back to the drawing board yet again, and “seriously impede the EPA’s ability to deal with a grave public health problem.” It would also conveniently continue to spare the most polluting businesses from compliance. But don’t be surprised if the court’s five conservative justices who sometimes espouse judicial restraint reach out to question the judgment of an agency in fulfilling its own mandate.

Human Rights v. Corporate Immunity

Last term, the U.S. Supreme Court struck a blow to both human rights and corporate accountability when it narrowed the scope of a 200-year-old statute intended to address egregious human rights violations abroad. Shortly after that ruling, the court announced it would take another case dealing with the same statute.

The plaintiffs in this case allege that car manufacturer DaimlerChrysler acted in cahoots with the Argentine military during the “dirty war” in arresting and detaining workers, some of whom disappeared. They are seeking to hold DaimlerChrysler accountable for this alleged life-threatening exploitation of workers through the Alien Tort Statute, which allows lawsuits by “aliens” — meaning non-U.S. parties. Even under this statute, however, parties have to meet general court rules about jurisdiction, meaning they must have some connection to the United States. Federal court decisions before last term’s Kiobel ruling allowed lawsuits that challenged torture abroad by two foreign actors to proceed in U.S. courts because the defendants had lived or were living in the United States. DaimlerChrysler has claimed that the plaintiffs do not have jurisdiction to sue them in the United States, because DaimlerChrysler is based in Germany and is suing over actions in Argentina. But the U.S. Court of Appeals for the Ninth Circuit ruled that DaimlerChrysler’s California subsidiary was sufficient to establish jurisdiction in California.

The ruling could clarify the scope of last term’s ruling, and whether many corporations with a major presence in the United States who profit from exploiting more permissive countries will be even better insulated from liability. Some commentators wonder whether the Supreme Court took this case to narrow the scope of U.S. Courts’ jurisdiction over corporations more generally, and not just under this one statute.

Whether Treaties Can Be Enforced

As President Obama struggles to enforce international norms forbidding the use of chemical weapons in Syria, the justices will turn their eyes to a much smaller violation of those norms. A vengeful spouse named Carol Anne Bond stole toxic chemicals from her employer and applied them to her husband’s mistress’ mailbox, car doors, and her house’s doorknob in an attempt to poison the mistress. This violated the federal law implementing the 1993 Chemical Weapons Convention, which makes it a crime to “receive, stockpile, retain, own, possess, use, or threaten to use” a chemical weapon.

Nearly a century ago, the Supreme Court held that, when the United States enters into a valid treaty, “there can be no dispute about the validity of the statute [implementing the treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government.” Bond now asks the Roberts Court to repudiate this holding, or at least to limit it enough to allow her to avoid prosecution for her use of the stolen poison under the statute implementing the chemical weapons treaty. If the justices take her up on this request, they could potentially curtail America’s ability to meet its treaty obligations to a significant degree.

If they do reach such a result, it would not be the first time the Roberts Court cut into our nation’s ability to meet our international obligations. In 2008 — in a case argued by future Sen. Ted Cruz (R-TX) — the Court held that Texas could ignore a treaty requiring foreign nationals arrested within the United States to be informed of their right “to request assistance from the consul of his own state.” Even North Korea honored this treaty in 2009 when it took two American journalists captive, although Texas did not.
Privacy And The Police

With new-technology questions swirling about the ability of the Fourth Amendment to protect against secret surveillance, a case next term will answer a more fundamental question about police power to search the home of a suspect. The home has always been particularly sacrosanct under the Fourth Amendment, but one of the ways police can get around the usual search warrant requirement is by getting consent to search a suspect’s home. Under current case law, if the police come to your door without a warrant and you’re not home, your roommate can give an officer consent to perform a search of the home on your behalf. But what if you have previously told the police that they are not authorized to search your home? Can they come back later when you’re not home and try again? In this case, police took advantage of that scenario. They came to the defendant Walter Fernandez’s apartment, and Fernandez said they had no right to search his home. Recognizing a tattoo on Fernandez as matching that of a burglary suspect, they arrested Fernandez. They visited the apartment an hour later — with a guarantee that Fernandez would no longer be there to decline the search — and Fernandez’s girlfriend gave her consent for police to search the home.

There are obvious reasons to worry about allowing others to waive your Fourth Amendment rights. But this concern is heightened where a suspect has explicitly rejected a search, and police are incentivized to arrest that suspect simply to gain access to that person’s home. With surveillance tactics threatening to collect even more from the Internet than police might find in someone’s home, questions about consent may also tell us how willing the justices will be to defend our privacy from government intrusion.

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