Supreme Court starts with old favorites
This article first appeared in the St. Louis Beacon, Oct. 7, 2013: There are no blockbusters on the U.S. Supreme Court term that begins today. Nothing measures up to the landmark decisions of the past two terms -- upholding the Affordable Care Act, overturning the Defense of Marriage Act and gutting the most successful civil rights law in history, the Voting Rights Act.
But the court's calendar contains many of the divisive issues that have filled its docket for the past 40 years: abortion, affirmative action, school prayer and campaign finance.
"A roundup the usual suspects term," is the what Joel Goldstein of Saint Louis University law school calls it. Goldstein made his remarks at a recent forum on the Supreme Court's term at the law school.
The conservative wing of the court could win on most of the divisive issues. Chief Justice John Roberts and the conservative majority seem poised to allow even more money into political campaigns, permit more prayer in the public square, limit abortion rights and enable voters to outlaw affirmative action.
In the cases dealing with religion, abortion, campaign finance and affirmative action, Justice Sandra Day O'Connor's retirement and replacement by Justice Samuel Alito continue to reverberate and move the court toward the right.
One unique issue this term challenges President Barack Obama's use of recess appointments to fill vacancies when Republicans in Congress block his nominees. In this important separation of powers case, the court will decide whether the president can make recess appointments during "intrasession" recesses or only during recesses between sessions.
Congress has between five and 11 intrasession recesses because of holidays. Republican and Democratic presidents have used intrasession recess appointments to name more than 500 officials to office.
More political money
The most watched argument before the court today involves a Rex Sinquefield-type campaign contributor who makes substantial contributions to multiple candidates and libertarian causes. Shaun McCutcheon, who runs an electrical engineering company, is challenging the so-called "aggregate" limit on how much one person can give to all candidates and party committees during a two-year election cycle. The current limit is about $123,000.
The court is taking up the issue only three years after Citizens United, which enraged many Americans by opening the door to unlimited corporate and union funds to be used in elections on behalf of candidates. The unlimited funds cannot be given directly to the candidate's campaign.
Election law experts have predicted that wiping out the aggregate limits is the next step for the Roberts court on the way to deregulate campaign money. How the court goes about throwing out the aggregate limits will be important.
If it decides for the first time that campaign finance laws have to pass the highest level of constitutional review -- so-called strict scrutiny -- then it could doom campaign contributions limits to individual candidates. That would threaten the remainder of the post-Watergate campaign finance structure.
O'Connor's retirement from the court and replacement by Alito switched a 5-4 majority supporting campaign finance into a 5-4 majority seeing campaign regulations as violations of free speech.
O'Connor's absence may be about to be felt in church-state cases. O'Connor worked carefully over many years to come up with the "endorsement" test for judging cases involving religion in the public square. If a public body took a step that seemed to endorse religion and leave non-believers as outsiders, then it was a violation of the First Amendment.
That test could be in jeopardy in a case challenging the small town of Greece, N.Y., and its practice of opening council sessions with a prayer from a "chaplain of the month." Most of the prayers were from Christian denominations, although the town allowed prayers with Buddhist, Jewish and Bahai references after a resident challenged the constitutionality of the practice.
A federal appeals court ruled that the practice violated the First Amendment's bar on "an establishment of religion." But 30 years ago, the court upheld paid legislative chaplains in the Nebraska legislature, citing an "unambiguous and unbroken" history of legislative prayer dating back to the first Congress.
Legislative prayers are one of the ceremonial deisms the court has permitted, such as Thanksgiving proclamations and the motto "In God We Trust."
If the court throws out O'Connor's endorsement test, it could open the public square to more religious observances.
Last term the Supreme Court decided not to end affirmative action in a case from Texas. Instead it required universities to provide more evidence than ever that preferences are necessary to achieving diversity.
This term, it is deciding whether Michigan voters violated the rights of minorities and women by banning affirmative action in public universities. The voters took the step shortly after the Supreme Court had approved Michigan law school's narrow affirmative action plan.
A federal appeals court said the voters could not end affirmative action because such a step amounted to restructuring government to put minorities and women in less favorable position than others. High school athletes, musicians and any other group could argue for preferences in admission, but minorities and women could not.
Most experts think that Supreme Court will uphold the voters' ban on affirmative action.
Goldstein pointed out a recent forum that "the cases that have articulated that (political restructuring) doctrine are old. The most recent one was in the 1980s.... The Supreme Court has never said there is a constitutional right to have a race conscious affirmative action plan... . I would guess the court is going to leave that to the political process."
The court is returning to abortion to consider an Oklahoma law that seems to restrict the way that doctors use RU-486 to end pregnancies. The state wants to limit doctors to the FDA's guidelines for its use, even though doctors have found they don't need to administer as much of the drug as the FDA had thought. The high court has delayed arguments in the case until the Oklahoma Supreme Court interprets exactly what it means.
The court also will decide the validity of a Massachusetts law to keep abortion protesters 35 feet away from the door to an abortion clinic.
Previously the Supreme Court had upheld a restriction keeping abortion protesters at least eight feet away from women who were within 100 feet of the clinic door. But the Massachusetts law permits clinic workers inside the 35-foot zone while barring protesters. The court majority may decide that restriction discriminates against the speech of protesters, which would be a violation of the First Amendment.
Other abortion issues could make it before the court, including state bans on abortions after 20 weeks and the federal health-care regulations requiring insurers of denominational hospitals to provide women with birth control coverage.
Roberts' 'incremental' approach
Mark Smith, a lawyer and associate vice chancellor at Washington University, thinks the court may limit abortion rights in the Oklahoma case. Goldstein thinks Roberts probably opposes the abortion right, but he adds that the chief justice is likely to take a more "incremental" approach to abortion rather than "to swing for the seats."
"There are two factors that would cause Chief Justice Roberts to go more slowly ... . One is because of his institutional association with the court and the other is the fact that he's chief justice and has a long horizon," said Goldstein.
The first day at the court includes an Illinois case in which a 61-year-old lawyer, Harvey Levin, was released by Attorney General Lisa Madigan and replaced by a younger female lawyer. He is claiming age and gender discrimination.
Levin's complaint to the Equal Employment Opportunity Commission was unsuccessful, and he went to court claiming that the dismissal violates his constitutional rights.
The issue is whether a person claiming age discrimination can still raise the constitutional claim in court even though the EEOC procedure is a comprehensive system for dealing with discrimination. The court has sometimes said in the past that there is no constitutional claim in the courts if Congress has adopted a comprehensive plan to address the problem.