The United States Supreme Court opens a new term Monday, and, as always, many of the most contentious issues facing the country — including abortion, birth control coverage, public employee unions, affirmative action in higher education, voter participation — are likely to be before the court.
But there is a difference this term. Chief Justice John Roberts, despite his overall conservative record on the bench, has become a punching bag for candidates vying for the Republican presidential nomination.
Presidential candidates have often criticized the court, pledging that they would appoint a different kind of justice. It's been more than a half century, though, since politicians have put a chief justice, by name, in the cross-hairs of criticism. What is puzzling about the Roberts critique is that the right hailed this George W. Bush appointee when he was named ten years ago, and Roberts has a consistently conservative record on most issues.
He has voted with the court's conservatives to strike down most of the legal limits on campaign spending, opening election campaigns nationwide to a flood of new cash. He has consistently supported an individual's right to bear arms. He wrote the court's opinion in the 2013 case Shelby County v. Holder, which struck down the heart of the Voting Rights Act of 1965. He has consistently opposed any sort of racial preferences. Last term, he wrote the leading dissent when the court struck down state laws banning same-sex marriage.
On only one flashpoint subject has he parted ways with some or all or the court's most conservative members: Obamacare.
Yet, in the first two televised debates, Republican candidates took turns pummeling him, characterizing his nomination as a grave mistake, and suggesting that Roberts follows a political path rather than a legal one. If President George W. Bush had appointed someone more conservative than Roberts, said Sen. Ted Cruz, "Obamacare would have been struck down three years ago, and the marriage laws of all fifty states would be on the books."
Never mind that Roberts actually dissented in the same-sex marriage case. Jeb Bush, whose brother appointed Roberts, was less strident, but suggested nonetheless that Roberts was a "politically expedient" choice because he was a conservative whom the Senate could confirm. And Gov. Mike Huckabee said that he would require anyone he appointed to oppose all abortions and to see religious freedom as the first of all rights.
Nobody thinks it will be easy for Chief Justice Roberts or the other justices to ignore such talk. But, the job of the chief justice is, among other things, to guard the independence of the judiciary and to preserve the court's institutional role as a dispassionate arbiter of the nation's laws and the Constitution.
Notwithstanding the critique in the GOP debates, the Roberts court is most often a conservative court. But it is closely divided, and last term, for the first time in a decade, the court's liberals prevailed in the majority of 5-to-4 rulings. They did that by picking off not just Roberts and Justice Kennedy on Obamacare, and Kennedy on same-sex marriage, but other conservative justices in other cases.
Most experts see those liberal victories, however, as a product of an idiosyncratic mix of cases. This term, the issues play much more to the strength of the court's conservatives. There are cases that could further cut back affirmative action in higher education, hobble or destroy public employee unions, and make it easier to limit voter participation in elections.
There is a strong likelihood that the court will revisit the abortion question, as well as the issue of birth control coverage under Obamacare. "The worry is, does what goes around come around," said Tom Goldstein, Supreme Court advocate and publisher of SCOTUSblog, "and the writing on the wall sure seems to up there that has got the left scared — bejesus!"
The court, for instance, for the first time is being asked to determine the meaning of the one-person, one-vote principle in Evenwel v. Abbott. Does it mean that state legislative districts should have the same number of people, or the same number of eligible voters? Does the population count include children, non-citizen immigrants both in the country legally and illegally, and others like those with a criminal record who are thus ineligible to vote? Or does the population count include only those eligible to vote, or even just those registered to vote?
Virtually all state and local governments currently draw districts based on total population. But if those challenging that practice prevail, it could dramatically shift political power away from districts with lots of children and immigrants, and it would likely give Republicans a big boost in state legislative elections.
Also likely to come before the court are election cases involving strict voter ID laws and other provisions that make it more difficult to vote.
The union case, Friedrichs v. California Teachers Association, could also have huge political consequences by crippling public employee unions and possibly all unions. The case pits the practical needs of collective bargaining against the First Amendment. The nation's labor laws, as the court has interpreted them since 1977, have struck the balance this way. Once a majority of public employees vote to be represented by a union, those who choose not to join do not have to pay for the union's political activities, but they do have to pay for contract negotiations that they benefit from.
In short, they must pay their so-called "fair share." Otherwise they would become free riders on the backs of those who do pay. In two recent cases, four justices, and possibly five, have suggested that requiring such fair share payments violates the nonmembers' free speech rights.
Waiting in the wings at the high court are two politically incendiary cases: one involving abortion, the other birth control under Obamacare. The abortion test case will likely come from Texas, where the Republican-controlled legislature enacted strict new regulations on abortion clinics, requiring them to make costly renovations, and limiting the ability of doctors to perform abortions. The state maintains that the new law was aimed at protecting the health and safety of women. Abortion providers, backed by major medical organizations, counter that the regulations are unnecessary and that the law is in fact aimed at making abortions difficult to obtain.
The birth control case is a test of the Obamacare provision that exempts religious organizations from having to pay for birth control coverage in their health insurance plans. While churches, synagogues and the like are totally exempt, religiously affiliated organizations such as universities and hospitals are exempt only if they notify the federal government of their objections. That in turn triggers an independent mechanism to provide the coverage for those employees who want it. Some religious organizations contend that the notification requirement makes them complicit in facilitating birth control coverage and thus violates their religious principles.
— via NPR