Friday, October 2, 2015

For Court's Conservatives, New Term Starts Now

      The Supreme Court opens a new term on Monday [Oct. 5], with conservative justices still licking their wounds after a term when they were on the losing side of most of the most important decisions. But for conservatives, this may be the new season that diehard sports fans are always told to wait until.
      The court has already teed up cases that give the conservatives the chance to deliver a gut punch to public employee unions, limit racial preferences in college and university admissions, and make class actions a little bit harder for consumers and workers. Farther back in the pipeline are new cases on state laws regulating abortion clinics and a second round on the contraception coverage mandate under the Affordable Care Act.
      Out on the hustings during the summer recess, two of the conservatives, Antonin Scalia and Samuel A. Alito Jr., both restated the losing arguments in their dissents from the 5-4 decision to recognize a constitutional right to marriage equality for gay and lesbian couples. Speaking at Rhodes College in Memphis, Tenn. [Sept. 21], Scalia called the decision “the furthest imaginable extension of the Supreme Court doing whatever it wants.”
      Earlier, Alito had complained that the marriage decision opened the door to striking down all sorts of laws under an expansive definition of liberty under the Due Process Clause. “There’s no limit,” Alito said in a friendly interview with conservative commentator Bill Kristol.
      Other liberal victories last term included the 6-3 ruling to uphold health insurance subsidies under the Affordable Care Act and the 5-4 decision to ratify a broad definition of discrimination under the Fair Housing Act. But the final day saw two significant conservative victories, both on 5-4 votes. The court threw out the Environmental Protection Agency’s rules on toxic emission by power plants and rejected a challenge to the drugs used in lethal injection executions.
      Turning the page, liberal experts and advocacy groups are now bracing for a conservative term. The conservative bloc appears to be the driving force in getting some potential game-changers on to the calendar.
      The public employee union case, Friedrichs v. California Teachers Association, is the prime example. In a 5-4 decision in 2014, the court’s conservatives stopped just short of overruling a 1977 decision (Abood) upholding so-called “fair share” laws. Those laws, on the books in 20 states, require non-union members to pay the part of union dues used to represent them in collective bargaining. The new case, financed by anti-union groups, asks the court directly to overrule the prior decision, a ruling that would give non-union members a free ride and hitt unions hard in their treasuries.
      The affirmative action case, Fisher v. University of Texas, also gives the court’s conservatives a second chance to take a bite out of a liberal precedent. UT’s flagship Austin campus uses race as a factor in admitting about 20 percent of its incoming first-year class, as allowed under a 2003 decision (Grutter). Ruling in the first round of this challenge, the court in 2013 told the federal appeals court in Texas to take a harder look at the policy. Now, the justices will be taking a hard look at the appeals court’s conclusion that the university’s policy passes constitutional muster.
      The court’s conservatives have time and again signaled their disquiet with class actions, the procedural tool used to turn de minimis injuries suffered by large numbers of consumers or workers into a viable lawsuit. Among several civil litigation cases, the most important appears to be Tyson Foods, Inc. v. Bouaphakeo, a case brought by workers at an Iowa meat processing plant claiming that Tyson has failed to pay overtime as required by federal law. The company did not keep good records, so the workers used statistical projections to calculate damages. The conservatives are likely to flinch at what they have previously called “trial by formula.”
      The court has not heard an abortion case since the 5-4 decision in 2007 (Carhart II) that upheld the federal law banning so-called partial birth abortions. Anti-abortion groups have used the court’s silence to enact laws regulating abortion clinics, ostensibly to promote women’s health but in reality to close as many clinics as possible. A Mississippi law would close the only clinic in the state; Texas’s law would leave only 10 clinics operating, none in the western part of the state. Those laws seem to run afoul of the court’s 1992 decision, Planned Parenthood v. Casey, that states cannot impose an “undue burden” on abortion rights. But anti-abortion forces hope the Roberts Court will take a relaxed view of that standard.
      The Obamacare contraception mandate is headed back to the court in cases brought by religious nonprofits: examples, a Catholic charity or college. They object on religious freedom grounds to signing a form for their health plans to provide cost-free coverage of contraceptives as required under an Affordable Care Act regulation. Seven out of eight federal courts of appeals to rule on the issue have rejected the argument. But the Roberts Court conservatives took an expansive view of religious freedom in the earlier decision (Hobby Lobby) allowing a private employer to skirt the regulation.
      With 13 cases added on Thursday [Oct. 1], the court now has enough to fill the calendar into January. As always, many cases are only partly ideological; and some, not at all. But on opening day, the court’s conservatives may well be thinking that this, indeed, is their year.

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