Supreme Court justices will face tough choices and political potshots from both left and right when they reclaim their seats on Monday.
Over the next nine months, they could restrict affirmative action, alter congressional districts and weaken public service unions. And though Republican presidential candidates have been lashing the court’s GOP-appointed chief justice, conservatives still hold the upper hand.
“This term, I would expect a return to the norm in which the right side of the court wins a majority of cases,” said Irv Gornstein, executive director of the Supreme Court Institute at the Georgetown University Law Center.
The court is still capable of surprising us.
Attorney John Elwood
California teacher Harlan Elrich hopes so; at least, in part.
The 52-year-old Elrich teaches math at Sanger High School near Fresno in the state’s San Joaquin Valley. Unhappy with paying fees to an affiliate of the California Teachers Association, though he is not a member, Elrich joined a lawsuit conceived by attorney Terry Pell and the Center for Individual Rights.
The lawsuit called Friedrichs v. California Teachers Association is one of the most closely watched cases of the 50 or so currently pending on the court’s 2015-2016 argument calendar. If Pell, Elrich and their allies win, public service unions like those representing teachers and municipal workers could lose their ability to compel non-union members to pay agency fees.
“I’m not saying we need to get rid of unions; far from it,” Elrich said in an interview. “I’m saying we should have a choice. A lot of money is being taken from me to support bills and candidates I don’t support.”
The dissident teachers are directly challenging a 1997 Supreme Court decision that allowed compulsory fees to pay for employee-support activities like collective bargaining. If the mandatory fees are struck down, or made harder to collect by requiring workers to affirmatively agree to pay them, unions will take a hit.
“This case has a real potential to be a watershed in labor law,” said attorney John Elwood, a frequent advocate before the high court.
A different kind of watershed, with even more explicit political consequences, could arise in a legislative redistricting case that comes out of Texas.
The case, called Evenwel v. Abbott, follows up on the court’s one-man, one-vote doctrine that’s supposed to equalize voting power across state legislative and congressional districts. Broadly speaking, this has meant district populations are roughly equivalent. The question now is what “population” means.
Texas residents Sue Evenwel of Titus County and Edward Pfenninger of Montgomery County, and other challengers, want the Supreme Court to require states to draw districts based on the population of eligible voters. Texas and some other states use the total population, which includes immigrants, children and felons.
“The distinction didn’t matter so much in the 1960s when the number of immigrant residents was low,” noted Gail Heriot, a professor at the University of San Diego Law School. “It matters a great deal now in Texas and many other states.”
In particular, Tennessee legislators argued in an amicus brief, “the use of total population alone in redistricting over-weights the votes from urban areas to the detriment of those from rural areas.”
Conservative groups have lined up a battery of amicus briefs challenging how Texas handles redistricting, leaving the Southern state in the uncharacteristic position of defending what can be cast as as the liberal position.
Two of the most controversial cases come out of Texas, and in both cases, Texas is defending the liberal position.
David Cole, Georgetown University Law Center professor
On affirmative action, too, Texas is back at the Supreme Court, to defend the state flagship university’s use of race as a factor in admissions. The seemingly endless case is still called Fisher v. University of Texas, reflecting the legal battle begun in 2008 by Abigail Noel Fisher following her rejection by the university.
The return fight, and the replacement of Justice Sandra Day O’Connor by the stricter conservative Samuel Alito Jr., leaves in some doubt the future of racial considerations in college admissions.
“I think it’s a very tough case for the university,” acknowledged Neal Katyal, a former acting solicitor general in the Obama administration.
The cases granted so far amount to about two-thirds of the 75 or so typically heard by the Supreme Court during the term, which runs through June 30. Several incendiary issues, including abortion access and religious exceptions to the mandates of the Patient Protection and Affordable Care Act, could yet arise in cases still bubbling up from lower courts.
No justice has publicly indicated that he or she is preparing to step down, and 2016 seems an unlikely time for a voluntary departure. The last time a Supreme Court justice left amid a presidential campaign season was in 1956, when Sherman Minton resigned because of ill health.
Still, with four of the nine justices turning 77 or older next year, the possibility of an unanticipated vacancy occurring cannot be discounted. Even then, though, a slow confirmation process is all but certain, as Senate Republicans hold out hope for reclaiming the White House.
The court’s newest addition, Justice Elena Kagan, waited about three months between her May 10, 2010, nomination and her Aug. 5 confirmation. Democrats controlled the Senate at the time. With the Senate in GOP hands, Attorney General Loretta Lynch waited 166 days for confirmation.