The new U.S. Supreme Court term boasts a fall line-up that Hollywood would envy, featuring high stakes cases involving abortion, religion, money, politics and power.
Although the docket has yet to match the landmark nature of last term’s same-sex marriage and voting rights rulings, “I think this has the potential to be a really big term, just as important as the last two,” said Pamela Harris of Georgetown University Law Center. “There are an unusual number of hot-button issues and the rulings will have very important doctrinal and spill-over effects.”
The justices will consider the constitutionality of President Obama’s use of the recess appointment power (National Labor Relations Board v. Noel Canning). They will re-examine the thus far sacrosanct limits on campaign contributions to candidates, political party committees and political action committees. (McCutcheon and Republican National Committee v. FEC) And they will consider the thorny issue of prayers at government meetings, among other matters. (Town of Greece, N.Y. v. Galloway).
As Harris and other close watchers of the court noted, the docket’s highest profile cases often include very aggressive briefing by the parties or their supporters who urge the justices to re-examine or overrule old and more recent decisions.
At least six of the court’s precedents are in play, from the seminal 1920 Holland v. Missouri, establishing Congress’ power to give effect to treaties entered into by the United States, to the 2000 Hill v. Colorado, governing protests around abortion clinics.
“This is the year of the sequel,” said veteran high court litigator Kannon Shanmugam of Williams & Connolly. In almost every major case scheduled for argument this term, he added, “The question is really going to be the extent to which a prior precedent governs the outcome of this case.”
The justices have slotted 41 cases (counting consolidated cases as one) for oral arguments. On Sept. 30, they will meet for their long or “summer” conference to decide what additional cases should be granted from among more than 2,000 filed just over the summer. They will add new cases until about mid-January when argument slots are generally filled. The court typically ends up with between 70-75 cases for decision.
Other potential game changers? A possible the return of the nation’s controversial new healthcare law. Two challenges have been filed involving owners of for-profit businesses who contend the insurance mandate on employers to provide contraceptive and abortion-related coverage violates their religious beliefs. Petitions for review also have been filed in two Fourth Amendment cases challenging the legality of warrantless cell phone searches.
A major battle between business and the Environmental Protection Agency over greenhouse gas regulations awaits the justices’ first review. And under the intellectual property umbrella, a key copyright case challenges laches—a delay in asserting rights—as a defense to copyright infringement claims.
For now, however, many eyes and ears will be trained on arguments on Oct. 8 for what some court watchers believe could result in Citizens United II.
In its 1976 landmark ruling in Buckley v. Valeo, the justices struck down federal limits on individual expenditures but upheld them on contributions. Limits on expenditures, they said, imposed a much greater burden on protected speech than limits on contributions which, while somewhat burdensome, posed a significant threat of corruption or the appearance of corruption. In Citizens United v. FEC, a 5-4 court took an additional and giant step towards deregulating money in campaigns by freeing from government restrictions corporate expenditures made independent of a candidate. Those expenditures, said a divided court, did not pose the threat or appearance of quid pro quo corruption.
If the Roberts Court continues its deregulatory bent, a path it carved beginning in 2006, the pressing question for campaign finance reformers is whether contribution limits are no longer sacred.
At issue in McCutcheon and Republican National Committee v. Federal Election Commission are so-called aggregate limits on contributions: the total amount an individual donor can contribute to party committees, PACs and federal candidates, in a two-year election cycle ($74,600 to all party committees and PACs; $48,600 to federal candidates).
Alabama businessman and GOP donor Shaun McCutcheon and the RNC attack the aggregate limits arguing that the justices should apply the Constitution’s most searching review—strict scrutiny—and strike them down. They contend those limits are no longer necessary to prevent circumvention of the law’s base limits on contributions (the amount one person can give to a single candidate). The circumvention argument was the justification adopted by the Buckley court.
And at least one organization, the libertarian Cato Institute, has called on the justices to overrule Buckley because, it says, the distinction between contributions and expenditures is “untenable and unworkable.”
“If the aggregate limits are struck down, a president, House speaker, Senate majority leader or other federal officeholder will be able to solicit multimillion dollar contributions from individual donors, and donors will be able to buy corrupting influence over federal officeholders and government decisions with these huge contributions,” warned Fred Wertheimer, president of Democracy 21, a campaign finance reform organization.
The week after the McCutcheon arguments, the justices return to affirmative action in a case that is the mirror image of the last term’s challenge to the consideration of race in the admissions policy of the University of Texas: Fisher v. U.S.
The case, Schuette v. Coalition to Defend Affirmative Action, involves a 2006 constitutional amendment approved by Michigan voters that bans affirmative action in the state. A closely-divided U.S. Court of Appeals for the Sixth Circuit struck down the ban because, it held, affirmative action is a constitutional remedy and the ban disadvantages minorities seeking access to that remedy on account of their race in violation of equal protection.
“Unlike Fisher, this case does not deal with what is a constitutional way to promote diversity,” said Joshua Civin of the NAACP Legal Defense and Educational Fund. “The Sixth Circuit said the voter initiative rigged the political process to disadvantage minorities. Allowing either side to manipulate the system creates problems.”
The appeals court relied on a Supreme Court precedent now vulnerable to attack in the case: Washington v. Seattle School District No. 1 (1982).
While campaign finance and affirmative action likely will dominate headlines about the court in October, the coming months will provide plenty of fodder for court junkies and scholars.
Given the breadth of the issues on the docket and the precedents in play, the new term, even if ultimately devoid of blockbuster decisions, may offer some of the best insights yet into the nine-year-old Roberts Court.
Contact Marcia Coyle at email@example.com.