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The Politic Blog

Full Court Press: Previewing SCOTUS’s New Term

The first Monday in October has come and gone, which means that the Supreme Court’s new term has begun. Although its likelihood of producing a case as momentous as last term’s Obergefell decision is small, it already features important cases in many areas of the law, including the death penalty, voting rights, unions, juvenile criminal law, and affirmative action. The Court will also almost certainly agree to hear cases on abortion and the HHS contraception mandate. In this space, I preview the major cases by introducing the issues they grapple with; in future posts, I may give my own opinions or predictions about some of them.

Affirmative action, redux: Abigail Fisher is back, and the University of Texas affirmative action scheme is under fire again. In October 2012, the Supreme Court heard her case. Many liberals feared that it was with the intention of decimating affirmative action programs. Instead, a near-unanimous (7-1) Court barely touched affirmative action in general, choosing instead to send this particular case back to the Fifth Circuit Court of Appeals for review under a stricter standard (i.e., to require the program to hurdle a higher bar to be found legal). The Fifth Circuit, which had approved the plan originally on its way up to the High Court, renewed its approval under the stricter standard, and Fisher has once more appealed to the Supreme Court. Liberals should probably be concerned again; affirmative action’s narrow survival two years ago may not be repeatable. Unsubstantiated rumors claim that a five-justice majority was ready to strike down or significantly roll back affirmative action two years ago, but, in the face of a blistering dissent that Justice Sotomayor was prepared to publish, blinked and settled on the compromise position instead. The Roberts Court has shown a pattern of taking a potentially milestone case on a significant issue, punting, and then taking a second case  and actually rendering a landmark decision (see, for example, the Voting Rights Act drama that culminated with Shelby County v. Holder in 2013, or the same-sex marriage cases that culminated with Obergefell in June). This case could end up adding to that pattern. I should also add that, although this ruling will be about a public university, whatever the justices decide will bind private universities as well through statutes such as the Civil Rights Act and the conditions schools must satisfy to get federal funding. So it will have far-reaching consequences. (Note: as she did for the last case, Justice Kagan has recused herself, presumably because she worked on this case as Solicitor General.)

Unions, redux: Friedrichs v. California Teachers Association challenges a decades-old Supreme Court case called Abood v. Detroit Board of Education. In Abood, the Supreme Court held that a state could force non-members of a public sector union (teachers, in the cases of Abood and Friedrichs) to pay fees equivalent to union dues in order to avoid a free-rider problem wherein employees might not pay the union while still receiving the benefits of the contract that the union negotiated for all employees. Of course, simply maintaining the union at all would be impossible if enough people opted to free ride. Thus, Abood was a big victory for unions. Harris v. Quinn, a 2014 case, presented the question of whether Illinois’s law requiring non-unionized home health care workers to pay such fees violates the Constitution. In a bitterly contested decision, the Supreme Court held 5-4 that such a law was unconstitutional, and that Abood did not apply because the home health care workers were not full-fledged state employees, as the teachers in Abood were. As Justice Kagan pointed out in dissent, while the majority did not overrule Abood, it could not “resist taking pot shots at Abood.” The conservative justices seem itching to overrule Abood, and Friedrichs, as a case concerning public school teachers, surely offers that opportunity, were they so inclined to take it. This could turn into another example of the conservative majority’s not missing its mark twice, and it is no exaggeration to say that the future of public sector unions hangs in the balance.

Death penalty: In my view, last year’s most contentious oral argument was in Glossip v. Gross, a death penalty case. The opinions the justices ultimately produced were no less acrimonious. The Court affirmed the legality of the death penalty in this particular case 5-4, and in dissent Justice Breyer, joined by Justice Ginsburg, made the case that there is a high likelihood that the death penalty violates the Constitution in all circumstances. It was a stark moment. It has been over twenty years since multiple sitting justices thought the death penalty was unconstitutional, and it remains to be seen if anyone will take up Justice Breyer’s invitation to challenge the practice altogether.

Several cases challenging the death penalty on particular grounds, however, will be heard this term. Foster v. Humphrey challenges a prosecutor’s use of peremptory strikes to strike black potential jurors. In a criminal case, each side may strike a certain number of jurors without giving any reason (such as a suspicion that a juror would be biased), but in Batson v. Kentucky, the Supreme Court held that race could not be the only basis for such a strike. In this case, the prosecutor struck each of the potential black jurors, prevailed against the defendant’s Batson challenge—a proceeding where the prosecutor must provide a non-racial reason for the strike(s)—and then won a death sentence from an all-white jury. Years later, the prosecutor’s notes from trial were uncovered, and it’s quite clear that those strikes were, in fact, racially motivated. Foster now seeks a new trial. Justice Thurgood Marshall, agreeing with the Batson decision, expressed his wish that the Court had gone further, for he believed that eliminating racial bias in the jury selection process altogether “can be accomplished only by eliminating peremptory challenges entirely.” No sitting justice is on record supporting that view, although Justice Breyer has gone nearly that far, calling for peremptory challenges to be reconsidered and remarking that they “seem increasingly anomalous in our judicial system.”

Perhaps the most consequential death penalty case scheduled so far is Hurst v. Florida. Supreme Court case law (namely, Ring v. Arizona) prohibits judges from deciding, without any aid from juries, that the aggravating circumstances sufficient for a death sentence are present in a particular case. A judge may overrule a jury’s finding (changing the sentence from death to life or vice versa), but the jury must be involved. Florida’s death penalty scheme, however, requires a judge to make “independent findings” about aggravating factors, making it quite likely to be unconstitutional. Additional interesting questions raised by the Florida case are whether the instructions to the jury that its role is merely “advisory” unconstitutionally diminish jurors’ sense of responsibility, as Caldwell v. Mississippi outlaws, and if the jurors’ death sentence must be unanimous (Florida does not require unanimity).

A third death penalty case, Kansas v. Gleason, asks whether courts must explicitly instruct juries that mitigating factors (factors to be considered when deciding on a death sentence versus life without parole) need not be proven beyond a reasonable doubt. This case presents a classic dilemma between the original meaning of the Constitution and what Supreme Court case law has (perhaps mistakenly) evolved to hold that the Constitution means. On its face, the Eighth Amendment appears to prohibit only a certain class of punishments—those that are cruel and unusual—and to say nothing at all about procedural matters employed to arrive at a punishment. Particularly in the context of the death penalty, however, the Court has imposed many regulations on juries’ deliberation and the sentencing process.

Juvenile punishment, redux: The Supreme Court held in Miller v. Alabama that a law cannot constitutionally enforce mandatory life without parole (LWOP) punishments for juvenile offenders. A juvenile offender may still be sentenced to LWOP, but only if the sentence is imposed by a judge using his discretion in a particular case, and not by a law that requires LWOP for all juvenile offenders who commit a certain class of crime. The current case, Montgomery v. Louisiana, concerns whether the Miller holding is retroactive. In other words, is everyone who was sentenced to LWOP under a mandatory sentencing scheme for a crime committed before turning eighteen eligible to be resentenced? Retroactivity questions are complex; one factor the Court considers is the practical consequences of applying a rule retroactively. In Teague v. Lane, the Court held that in habeas proceedings, rules are generally not applied retroactively, but this case may qualify for one of Teague’s exceptions to that rule because Miller changed the substance of the law, and not just procedure, and because deciding for Montgomery (who is 69 years old and in jail for a murder he committed when he was 17) would mean reopening only sentences, and not entire trials. Miller sparked a lot of raw emotions on the Court in 2012; this case will probably do the same.

Lastly, Abbott v. Evenwel concerns the proper way to draw legislative districts. That the Constitution requires adherence to the “one person, one vote” principle is long-settled.  The question here is how to count persons. Must legislative districts be apportioned to have the same number of citizens? May they instead have the same number of registered voters? Can they have the same number of people? This question raises an interesting matter about democratic theory—who exactly are the elected representatives supposed to represent?—but now also one of constitutional law. The petitioners (the same legal group behind Abigail Fisher’s affirmative action challenge and the case that gutted the Voting Rights Act in 2013) seek to constitutionalize the “equal number of citizens” standard. Burns v. Richardson ruled that this matter was up to the states, and in that particular case, the Court permitted Hawaii to draw its districts on the basis of registered voters. Putting aside whatever pure motives the petitioners may have, the result of deciding for Evenwel would be to reduce the political influence of largely Democratic urban areas that have a significant undocumented population. Such areas would get fewer state representatives. (Be aware that, contrary to what some commentators have claimed, this case is, for now, about state representatives and their districts and not congressional representatives and theirs.) If the Supreme Court decides to overrule or retreat from its 1966 Burns decision and hold that the Constitution mandates one particular person-counting metric, this would fundamentally recast the famous “one person, one vote” Reynolds v. Sims case and become one of the most important voting rights cases since that 1964 decision.

Coverage to come on contraception and abortion once the Supreme Court grants those cases.