The Supreme Court’s ‘Stealth’ Term May Hold Significant Changes

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The government shutdown has not resulted, so far, in the Supreme Court shuttering its doors and its 2013-2014 Term starts Oct. 7. The new Term might fairly be dubbed a stealth term, especially after two “blockbuster” ones that produced major rulings on health care reform, marriage equality, voting rights and affirmative action.

But the new term, like many terms, carries the potential for significant change. Justice Ruth Bader Ginsburg recently tagged the Roberts Court as the most activist in terms of overturning acts of Congress. It’s also a Court that has made it more difficult for many Americans to access the court system and produced win after win for business interests.

So let’s look at a few of the cases that should be on everyone’s radar. These cases should also remind us of the importance of judges who interpret the Constitution with a deep understanding of our challenges today and the ability to apply the Constitution’s broad language and principles to them. For it makes little sense as Erwin Chemerinsky notes in this ACSblog post, “to be governed in the 21st century by the intent of those in 1787 ….” For additional discussion of the forthcoming Term see the annual preview hosted by the American Constitution Society for Law and Policy (ACS).

In 2010, the Supreme Court, led by its conservative bloc, issued Citizens United v. FEC, which as Adam Liptak recently put it “reshaped American politics by striking down limits on independent campaign spending by corporations and unions.” In its new Term, the Court could again weaken a campaign finance regulation – a cap on the amount of money an individual can give to candidates. An Alabama businessman and the Republican National Committee are urging the high court to strike the limit on contributions, arguing that it violates their free speech rights. That businessman, Shaun McCutcheon, told Liptak “we need to spend more money on politics, not less.” In McCutcheon’s small circle, spending lots of money on politics is a luxury and also aimed at supporting politicians and polies that protect the wealthy. Campaign finance regulation has a long history in this country of ensuring the powerful do not undermine democracy. Money spent on politics – primarily by the super wealthy – has been increasing and it’s having an impact. See, for example, Justice at Risk, a report sponsored by ACS, showing that business contributions to state Supreme Court justices are paying off. If the conservative justices in McCutcheon v. FEC remain hostile to campaign finance regulation, it will further embolden a tiny few to the great detriment of many.

The justices will consider two cases that could provide setbacks in the ongoing struggle to achieve genuine equality. In Schuette v. Coalition to Defend Affirmative Action, the justices will weigh the constitutionality of a Michigan ban on public universities using race-and-gender conscious admission policies. Educational opportunities in this country for too many African Americans, Latinos and the poor still remain out of reach. In 2003, the Court ruled in Grutter v. Bollinger that such admissions policies were constitutional and still necessary to achieving not only diverse student bodies at traditionally exclusive institutions but also to overcoming entrenched societal and institutional barriers to educational opportunities for minorities. The conservative justices have already weakened the holding in Grutter; with Schuette they could do even more damage. If so public universities will have to find new ways to ensure their institutions are inclusive.

Similarly in Mount Holly v. Mt. Holly Gardens Citizens in Action, the conservative justices could strike a blow to another major civil rights law, the Fair Housing Act. Last term, in Shelby Count v. Holder the conservative bloc invalidated a key enforcement provision of the Voting Rights Act of 1965. Now, a New Jersey town is asking the high court to undermine the effectiveness of the Fair Housing Act, intended to combat discrimination in housing. The New Jersey town wants to destroy homes in a neighborhood of primarily African Americans and Latinos and create upscale housing accessible only to a privileged few. Such an action by the New Jersey officials would disproportionally harm minorities, something the Fair Housing Act has long prevented. New Jersey officials nonetheless are urging to the Supreme Court to take another look at the law and narrow its scope. The officials argue their actions are economic-based and not motivated by discrimination. If the high court’s conservatives are swayed by that argument, then the most vulnerable among us are again piled upon, their lives become even more difficult. Such a ruling would also be another example of justices so devoted to advancing a cramped ideology of constitutional interpretation that they too easily invalidate work legitimately in Congress’s purview.

Reproductive rights will also be considered this Term. For example, in McCullen v. Coakley Massachusetts is defending a law intended to end harassment and intimidation at reproductive health clinics. The law requires protesters – regardless of their messages – to remain at a specific distance from the clinics’ entrances. The law, however, is being challenged as a violation free speech rights. Massachusetts argues the law does not stamp out speech, it instead provides for safe entrances to health care clinics.

There are significant cases to watch affecting labor rights. NLRB v. Noel Canning is one. It also happens to be a case that could weaken the president’s power to use recess appointments to fill executive vacancies. In this instance President Obama used recess appointments to make the five-member National Labor Relations Board (NLRB) operational. The NLRB is charged with protecting the right of workers to organize and engage in collective bargaining. If the high court were to agree with a lower court ruling, it would weaken the president’s ability to fill important executive branch vacancies and an integral labor board.

The Court could also consider more challenges to the Affordable Care Act, specifically its contraception policy. Several for-profit businesses have challenged the provision, arguing that religious-based outfits cannot be forced to provide health care plans including access to contraceptives. Those cases are really about whether employers can use their religious beliefs to shield themselves from laws prohibiting discrimination. It’s not just the contraception policy these groups are gunning for. The businesses are seeking to create precedent, which would protect employers who argue their religious beliefs no matter how removed from their work protect them from adhering to anti-discrimination laws.

The Supreme Court’s new term may not attract the kind of attention its last two did, but don’t be deceived. The Roberts Court has ample opportunity to impact lives, not just unravel or create new jurisprudence.

Leaming is Director of Communications at the American Constitution Society for Law and Policy. He is editor of the ACSblog, and helps to shape the organization’s external messaging on an array of priorities through the blog, publications, and media outreach.

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