Barely catching its breath after a momentous 2015, the U.S. Supreme Court begins the new year under the politicized spotlight of a presidential election as it confronts blockbuster issues that include abortion, affirmative action, contraception and immigration.
But will the intense political climate affect how the justices decide those hot-button cases? The year 2016 may prove to be a new test of the century-old admonition of humorist Finley Peter Dunne’s character Mr. Dooley that the high court “follows the election returns” when it writes opinions.
“In most of these cases there are likely conservative justices who want to make big leaps and overrule past decisions, while there are others who would prefer to take smaller steps,” said University of Georgia School of Law professor Sonja West, who clerked for Justice John Paul Stevens. “The bigger the moves they make, however, the bigger the headlines and the more likely it becomes that the court will be an issue in the election. I doubt any of them wants that to happen.”
University of California at Los Angeles School of Law professor Richard Re, who clerked for Justice Anthony Kennedy, is not as sure. “There’s the bromide that the court might try to avoid becoming an object of political controversy in an election year,” Re said. “But what that means in practice is anyone’s guess.”
This year, a new dynamic may make it difficult to predict that compromise rulings or baby-step decisions by the court will keep the justices out of the headlines.
For example, the court could spark conservative outrage, not yawns, this year if it postpones the demise of affirmative action in Fisher v. University of Texas at Austin, or requires religious employers to accept the government’s workaround for providing contraceptive health care coverage in Zubik v. Burwell.
“The court will look more political” if its rulings compromise on constitutional principles with help from conservative justices, said Carrie Severino, a former Justice Clarence Thomas clerk who is chief counsel for the conservative Judicial Crisis Network. “They should never be thinking about what tomorrow’s headlines will be, but even if they illegitimately do, they won’t be able to avoid the controversy this year,” Severino said.
Republican candidates have already attacked Republican-appointed justices — especially Chief Justice John Roberts Jr. — for being too timid conservatives.
Sen. R. Ted Cruz, R-Texas, for one, is unlikely to give the court a pass if its conservative justices join decisions that fall short of conservative goals. In a Nov. 30 interview with Bloomberg News, Cruz lamented Republicans’ “abysmal record” in picking Supreme Court justices.
“About half of the nominees Republicans have put on the court have not just occasionally disappointed but have turned into absolute disasters,” Cruz said.
CAMPAIGNING: Supreme Court justices and the president largely refrain from criticizing one another, but 2016 presidential hopefuls don’t mince words about the high court and its rulings.AP / Mandel Ngan, Pool
Donald Trump, the leading Republican candidate in polls, last month called Roberts “disgraceful” for upholding the Affordable Care Act in recent cases. “Justice Roberts really let us down,” Trump said, adding that Thomas is his favorite on the high court.
But Republicans are not the only ones who will be watching the court in 2016, Stanford Law School professor Pamela Karlan said. “I can see candidates, from both parties, trying to rally their base in the general election by pointing to the number of hot-button issues that hang in the balance.”
Democratic candidates have already said they are comfortable with once taboo litmus tests for making their Supreme Court nominations. Former Secretary of State Hillary Clinton and Sen. Bernie Sanders, D-Vermont, have both pledged to pick individuals who would overturn the Supreme Court’s Citizens United campaign finance ruling.
With political figures ready to pounce on the court as an issue, Nan Aron, founder of the liberal Alliance for Justice, said, “For the first time in my lifetime the Supreme Court is going to be a major election issue for both sides. In 2016, every voter will know they are voting for control over two branches of government, not just one. The stakes could not possibly be bigger.”
With or without the election, the high court will be making headlines this year in waves.
The first phase begins on Jan. 11 when the justices return to the bench after their holiday recess. On that day, the court will hear arguments in Friedrichs v. California Teachers Association, a politically charged labor case. At issue is whether the First Amendment bars states from requiring union nonmembers to pay so-called “agency fees” for the costs of collective bargaining. Jones Day partner Michael Carvin, a high court veteran, is set to argue for the challengers.
Also in January, the court is likely to decide whether to grant review in United States v. Texas, the challenge brought by 26 states against President Barack Obama’s executive action to defer deportation of certain aliens.
The Justice Department earlier asked for expedited review. If the court grants review soon, arguments would be set for April.
On March 2, arguments in Whole Woman’s Health v. Cole will bring abortion rights back to the fore in a challenge to Texas regulations that clinics assert will pose an “undue burden” on reproductive rights and force them to shut down.
Whole Woman’s Health challenges two restrictions that Texas lawmakers imposes: physicians performing abortions must have hospital admitting privileges within 30 miles of the clinic and, second, abortion clinics must meet the same requirements as ambulatory surgical facilities.
The seven contraceptive coverage cases consolidated under the name Zubik v. Burwell will probably be argued in March or April.
After oral arguments for the term end in April, the high-profile decisions are expected to trickle out through the end of June. In addition to the cases already mentioned, a decision in the one-person-one-vote case Evenwel v. Abbott is much anticipated and highly political, because it could transform how legislative districts are drawn.
The court’s summer recess will begin in time for both the Republican and Democratic party conventions to take top billing in late July.
Barring an unexpected retirement on the court, the justices will not provide new fodder for the political debate until October. But it may already have made it mark.
“The justices are likely to cut a wide swath in 2016, leaving reproductive rights and affirmative action on life support and making rulings on voting and immigration that remind everyone of the court’s clout,” Harvard Law School professor Laurence Tribe said. “Anybody who imagines the Supreme Court won’t soon have another year like 2015 had better think again.”