Coming Next: The Revenge Of The Supreme Court’s Conservatives

Ian Millhiser Senior Constitutional Policy Analyst, Think Progress

Coming Next: The Revenge Of The Supreme Court’s Conservatives

Something very unusual happened at the nation’s highest Court this year. The justices adjourned for their summer vacation and liberals were left feeling pretty good about the just-completed Supreme Court term. Marriage discrimination is dead, and Obamacare is alive. America’s civil rights laws were left largely intact, and state election laws were not cast into turmoil.

As we’ve explained, many of these outcomes most likely stem from conservative overreach — litigants looking to disrupt progressive legislation brought long shot cases because they were encouraged by the Roberts Court’s record of conservatism and decided to “press their luck.” In any event, it is unlikely that liberals will feel the same way about the next Supreme Court term as they do about this recently completed one. Based on two major cases that the Court has already agreed to hear, and a third that is likely to be added to the Court’s docket this fall, next term is shaping up to be a much more conventional term rife with longtime conservative boogie men waiting to be slain by the Court’s right flank.

Abortion: Although the justices have not yet agreed to hear a major abortion case next Supreme Court term, it is likely that they will hear at least one of two cases involving sham health laws that conservative states have enacted in an attempt to get around what remains of the Court’s decision in Roe v. Wade. States such as Texas and Mississippi enacted laws that, at a superficial level, appear to be designed to make abortion clinics safer and to ensure that physicians who perform abortions are well-credentialed. In reality, however, these laws do little to advance women’s health, while simultaneously subjecting clinics to regulatory burdens that will force many of them to close down. At the moment, the only thing keeping multiple Texas abortion clinics open is a temporary stay issued by a 5-4 Supreme Court preventing that state’s law from going into full effect.

The Court will likely announce whether they will hear a challenge to these sham health laws in the fall. If they choose not to hear the Texas case, that could cause almost as much damage to the right to choose in Texas as an adverse Supreme Court decision, as it will allow a lower court decision cutting deeply into reproductive freedom to take effect. Should the justices agree to take this case, which seems likely, the fact that Justice Anthony Kennedy agreed to grant a temporary stay halting the law is a positive sign for advocates of abortion rights.

Nevertheless, no one in the choice community should count on Kennedy’s vote Prior to the Texas law reaching the Court, Kennedy voted on 21 abortion restrictions and allowed all but one of them to go into effect.

Affirmative Action: Two years ago, the Supreme Court gave affirmative action an unexpected stay of execution. Though Court-watchers largely expected the Supreme Court to end race-conscious university admissions programs in Fisher v. University of Texas, the Court voted instead to send the case back down to a lower court for reconsideration.

A year later, the conservative United States Court of Appeals for the Fifth Circuit upheld the University of Texas’s affirmative action program once again. Then, just last week, the Supreme Court announced that they would hear this case for a second time.

Justice Anthony Kennedy has demonstrated that there is some distance between himself and the Court’s four other conservatives, who hold much more absolutist views on race. At the end of this recently concluded term, he voted with the Court’s liberals to preserve a key prong of the Fair Housing Act, which prohibits race discrimination in housing. Nevertheless, there are several signs that he is unlikely to break with the Court’s conservative bloc in Fisher‘s second trip to the justices.

According to one judge, “it would be difficult for UT to construct an admissions policy that more closely resembles the policy approved by the Supreme Court” in 2003 then the aspect of Texas’s policy that is now being considered by the Supreme Court. Yet Kennedy dissented in that 2003 case — a strong sign that he’s already decided that the Texas admissions policy is unconstitutional. Indeed, at oral arguments in Fisher I, Kennedy accused Texas of creating an admissions program where “race counts above all.” That’s very bad news for defenders of affirmative action.

Unions: The Court also announced last week that it will hear Friedrichs v. California Teachers Association, a case that will send many public sector unions’ finances into turmoil if its plaintiffs prevail before the justices.

The core question in Friedrichs is whether non-members of a union can be required to compensate the union for the costs of bargaining on their behalf. Under longstanding law, unions are required to bargain on behalf of all workers in a unionized shop, regardless of whether those workers elect to join the union. Thus, members and non-members alike share in the higher wages and increased benefits that typically come along with unionization.

To prevent a free-rider problem, where workers elect not to join the union because they know that they will benefit regardless of whether they pay their share of the union’s bargaining costs, current law allows unions to charge what are known as “fair share” fees or “agency fees,” which cover each non-member’s share of the cost of bargaining on their behalf. Without these fees, public sector unions may struggle to raise the funds that they need in order to operate, and all workers in many unionized workplaces could eventually lose the benefits of unionization.

The Supreme Court voted 5-4 to limit many unions’ ability to charge these fees in 2014. That’s an ominous sign for public sector unions who have a stake in Friedrichs.


This has been reposted from Think Progress.


Stock photo © Veni

Ian Millhiser is a Senior Constitutional Policy Analyst at the Center for American Progress Action Fund and the Editor of ThinkProgress Justice. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the New York Times, The Los Angeles Times, U.S. News and World Report, Slate, the Guardian, the American Prospect, the Yale Law and Policy Review and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox News and many radio shows.

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