The U.S. Supreme Court begins its new term Monday under an election-year spotlight, with a chief justice who has become a campaign issue and a docket that seems designed to remind Americans about the importance of the high court in the presidential contest.
The nine justices enter the next decade of the John Roberts court likely to confront issues that animate the political agenda: the legality of racial preferences to encourage diversity; how far government must go to accommodate religious liberty; and how far government may go to restrict a woman’s right to abortion.
The last term ended on a high note for liberals, with a landmark decision finding a constitutional right for same-sex couples to marry. It was the first time since Roberts debuted as chief justice 10 years ago that, in some of the court’s most closely contested and important decisions, the court’s liberal minority attracted one conservative or another to consistently prevail.
Few look for a repeat based on the issues the court will hear this term.
“I would expect a return to the norm, in which the right side of the court wins a majority, but by no means all, of the big cases,” said Irv Gornstein, head of the Supreme Court Institute at Georgetown Law Center.
Track record
The court already has a track record on the likely marquee cases of the term, and that record is giving the right a reason to be optimistic.
Back for further review are the affirmative-action remedies employed by the University of Texas to increase diversity at the flagship campus in Austin. The court has previously expressed its skepticism about these measures.
The contraceptive mandate of the Affordable Care Act is also making a return. The court already told the government last year, in Burwell vs. Hobby Lobby, that the mandate can impinge on the religious freedoms of employers directed to carry it out.
And, because the court long ago decided that states may impose some restrictions on abortion, the question in a coming case will be how far they will go before it becomes an “undue burden” on a woman’s right? The court has provided little guidance on what that term means.
Conservative side
The pivotal justice on each issue will probably be Justice Anthony Kennedy. The issues all appeal to Kennedy’s conservative side, but he does not always share the zeal for dramatic change that his colleagues on the right might pursue.
“I have the greatest respect for him, but I long ago gave up trying to predict him,” conservative U.S. Circuit Judge Harvie Wilkinson III said recently at a panel discussion at William and Mary Law School.
“The best thing you can do is issue one of those weather forecasts that says sunny with considerable clouds and a chance of rain.”
Conservatives long ago gave up on Kennedy as a reliable vote, but the surprise of the summer and fall is the suspicion with which many now view Roberts.
At the most recent debate of Republican presidential candidates, Sen. Ted Cruz, R-Texas, bluntly called Roberts a “mistake.” Former Florida Gov. Jeb Bush said Roberts “did not have a proven, extensive record” when his brother, President George W. Bush, chose him, and he pledged that he would not make “politically expedient” choices for the court.
Affordable Care Act
The case against Roberts consists almost entirely of his votes upholding the Affordable Care Act. In 2012, he wrote the opinion turning down a constitutional challenge to President Obama’s signature domestic achievement. In June, Roberts and Kennedy were part of a 6-to-3 decision that rejected a reading of the law that would have drastically cut back the number of Americans it covered.
On the other side of the ideological ledger, Roberts has voted to restrict abortion rights, overturn campaign finance restrictions, recognize a Second Amendment right for individual gun ownership, and severely cut back the reach of the Voting Rights Act.
Studies have shown him to be one of the modern justices most protective of business interests. He is a consistent supporter of the death penalty, an issue that bitterly divides the court and which will again be a common thread on the term’s docket.
Tilt the balance
Any change in even a single justice could tilt the balance of the court, and many predict that the next president may have the chance to nominate as many as three members of the court.
Liberal Justice Ruth Bader Ginsburg, Antonin Scalia and Kennedy will all be in their 80s on Inauguration Day 2017, and liberal Justice Stephen Breyer will be 78. The court currently has five Republican nominees and four chosen by Democratic presidents.
Abortion restrictions
The court has yet to accept the abortion or contraception cases for this term, but they are considered highly probable.
The former case concerns new restrictions on abortion providers that have been enacted by states around the country, such as requiring doctors at abortion clinics to have admitting privileges at nearby hospitals and that clinics must meet surgical standards that abortion providers say are unnecessary and prohibitively expensive.
At issue is whether the standards put an undue burden on women seeking abortions, a standard the Supreme Court set in a 1992 case, Planned Parenthood of Southeast Pennsylvania vs. Casey. Kennedy was one of the justices who set the standard.
The court is likely to look at Texas’ new law, and “I think it will be the most important case since Casey,” said Jennifer Dalven, director of the ACLU Reproductive Freedom Project.
“It will give us some guidance on the meaning of the undue burden standard and how courts should evaluate the multitude of abortion restrictions that are coming out of the states.”
The contraception case would be a sequel to the court’s decision last year.
This time, it is religious organizations such as hospitals, charities and universities that want to be freed from the requirement.
Two other cases also have partisan overtones.
One concerns whether public employee unions may collect a fee from nonmembers to cover the cost of collective bargaining.
And a challenge to the way almost every state draws electoral districts presents a partisan dilemma. States use total population numbers from the census to meet a constitutional requirement that they are roughly balanced for “one person, one vote.”
But conservative groups are challenging that, saying the districts should be drawn based on the number of eligible voters in the districts.
