On Monday, October 5, the Supreme Court will hear the first oral arguments of its 125th term, a term that will include a number of cases that have the potential to overturn decades of precedent and convince many on the left, who celebrated last term as a liberal turning point, that their faith was misplaced and premature.
One of the cases the Supreme Court has decided to take on is Evenwel v. Abbott which concerns several rural Texan voters who believe that the way their state is constitutionally required to define congressional districts unintentionally dilutes the strength of their votes. Under the current “one person, one vote” principle first clearly pronounced in Baker v. Carr, states need only draw the borders of their legislative districts so that they have roughly equal populations. In theory, such an injunction sounds fair; in practice, it means that (for instance) a congressional district with 450,000 people of voting age, 100,000 people below voting age, and 50,000 immigrants without voting rights, could exist alongside a district with 520,000 people of voting age, 75,000 people below voting age, and 5,000 immigrants without voting rights. In comparing the two, it is clear that the relative strength of a vote in the first district is greater than one in the second district, but states currently don’t have to take that disparity into account. If the voters bringing the case before the Court are successful, then states will either have to or be allowed to draw districts that maintain equality of voting-age population. Some say this will give disproportionate legislative influence to voters who tend to be older white people and reside in rural areas. The benefits of that shift of power would likely accrue overwhelmingly to the Republican Party, which under such a system could see its already commanding majorities of state legislative and national congressional seats rise further. For this reason, many liberal commentators see this case as a conservative sleeper attempt to give themselves an unnecessary advantage in legislative races as a ruling in favor of the appellants would portend that the Court has begun to see issues of politics and race in a more colorblind manner and places less emphasis on the rights of historically politically disadvantaged groups (i.e. visible minorities) to seemingly unfair advantages in the political process.
The Court is also hearing Fisher v. University of Texas II which also deals with race, although more explicitly this time. The Court has actually heard this exact same case before during the 2012-2013 term. Abigail Fisher, a white college senior from Texas, claims that her civil rights were violated when she applied to the University of Texas and was denied admission even though she was in the 88th percentile of her graduating class and was heavily involved in extracurricular activities. In the first iteration of Fisher the Court did not rule on the fundamental question of whether affirmative action (which, in addition to a rule whereby any Texan high school senior in the top ten percent of his or her graduating class is automatically admitted, is practiced by the University of Texas) could survive a direct (or “facial”) challenge; instead, they referred the case back to a lower court, which the justices adjured to consider the race-conscious admissions policy under the rigorous standard of strict scrutiny. The lower court once again sanctioned the race-conscious admissions policy even under that heightened standard of examination, and thus we have Fisher II. If the Court rules against the University of Texas, then it won’t take long for lower courts to declare unconstitutional all admissions policies that take race into account. This case too as with Evenwel v. Abbott, could have an outcome that shows that the Court believes the damage done by de jure and de facto racial discrimination in decades past might be sufficiently repaired and that the playing field can now be levelled once and for all with respect to race.
Two free-speech cases, Heffernan v. City of Paterson and Friedrichs v. California Teachers Ass’n, are set to broaden the protection of employees’ exercise of religion as regards their workplace activities. In Heffernan, a police officer who works for the city for Paterson, New Jersey stopped by a rally for the mayor of Paterson to pick up a sign for his mother who lives in Paterson. A superior noted his presence at the rally and presumed that he was engaged in political activities which was prohibited by the city police code of conduct, and Heffernan was consequently demoted. Heffernan took the case to court claiming that his First Amendment rights had been violated because he didn’t live in Paterson and thus couldn’t even vote for the candidate he was supposedly endorsing and because he was obtaining the sign for his mother and thus was not really the one engaged in any sort of political behavior at all. If recent free-speech Supreme Court cases are any indication, the Court will likely rule in favor of Heffernan.
As for Friedrichs, that case involves California public-school teachers who objected to paying dues to the teachers’ union because they object to the content of the speech that the union uses their dues to pay for. Under the relevant precedent, Abood v. Detroit Board of Education, public employees can be compelled to pay dues to a union whose political speech they otherwise would not condone in order to avoid the “free-rider problem,” whereby a union member who refuses to pay his or her dues benefits from all union negotiations with the employer without having to contribute any of their money; that is, they’re like someone who refuses to pay a fare on public transportation and thereby rides free on everyone else’s dime. However, as previously noted, the Supreme Court has given wide latitude to free-speech claims of late and only last term in Harris v. Quinn invalidated requirements that workers in a union that is only partially public in nature have to pay union dues, so a broadening of that precedent could follow this term. If the Supreme Court rules in favor of Friedrichs and declares Abood nugatory, the effect would be to weaken public-sector unions and thereby deal a lasting blow to the union movement in general, since such a large proportion of unionized workers now work for the public sector.
An abortion case might also make it onto the Court’s docket this term. These seem to be the most controversial cases before the Court and therefore pose the biggest threat to the much-touted “liberal streak” that the Court’s been on since last term. In the opinion of this reporter, however, the liberal streak was overwrought. In fact, the only ruling that was a true victory for the left last term was Obergefell, which legalized gay marriage, since most of the other rulings either upheld the status quo, which might have favored liberals, or ruled in a slightly conservative direction. This term, too, presents the Court with a number of opportunities either to affirm new, more conservative precedents or to maintain a more liberal status quo, which is a far cry from the truly groundbreaking liberal victories of the Warren Court of the 1950s and ‘60s. Will the Court take an abortion case and guarantee acrimonious debate? Will Kennedy or Roberts be the main swing vote in 5-4 cases? What obscure barbs will Scalia include in his dissents’ footnotes this term? SCOTUS will answer soon.
By Patrick Millican, Staff Writer