Remember how good this summer’s win for marriage equality felt? I mean, sure, Justice Anthony Kennedy’s opinion in Obergefell v. Hodges embraced a very traditional, patriarchal view of marriage, and the opinion is pretty mushy in terms of constitutional analysis, but it was so nicely written! And most importantly, it struck down as unconstitutional state-level same-sex marriage bans, removing one significant obstacle in the quest for full LGBTQ equality.
Let’s hold on to those good feelings from Obergefell as long as we can. With the slate of cases the Roberts Court has agreed to hear so far, and a few other likely contenders waiting in the wings, I have a feeling it will be a while before we’re warm again with the glow of social justice. This term is shaping up to be one of the more contentious in the culture wars, and that’s saying a lot for the Roberts Court.
So, here’s a list of cases to watch in the coming term. It’s gonna be a doozy, folks.
Workers’ Rights on the Ropes. Again.
Sex. Abortion. Parenthood. Power.
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One of the Roberts’ Court most dubious legacies is its decimation of workers’ rights, and this term presents the conservative majority with yet more opportunities to wreak havoc. Among the first of these is Tyson Foods v. Bouaphakeo, which could make it infinitely more difficult for plaintiffs to band together and bring class-action labor lawsuits against employers to hold them accountable for things like wage theft.
By far the biggest workers’ rights case on the Court’s docket so far, though, is Friedrichs v. California, which looks at the fees unions collect, sometimes called “agency fees” or “fair share” fees. The rationale is that all workers, even those not in the union, typically benefit from union negotiations, in the form of higher wages and greater benefits. But those protections come with bargaining costs, such as lawyers’ fees. Currently, unions require all workers to pay a share of those costs, regardless of whether they join the union. In Friedrichs, the Roberts Court will look at whether it is constitutional for public sector employee unions to collect those fees. A ruling against the union in Friedrichs could cut off an important funding stream that allows the collective bargaining process to work.
Lastly, waiting in the wings is Home Care Association v. Weil, a case that challenges new rules issued by the Department of Labor requiring some categories of domestic workers to be eligible for minimum wages and overtime pay. The regulations are set to take effect on October 13, and three trade organizations—the Home Care Association of America, the International Franchise Association, and the National Association for Home Care and Hospice—have filed an emergency request with Chief Justice John Roberts to take up their challenge. The Court has not yet said whether it will. If it does, and rules in favor of the associations, domestic employees’ rights could take a major hit.
Will the Court Protect Abortion Rights and Contraception Access?
OK, I’m cheating a little bit here. So far, the Roberts Court doesn’t have either an abortion rights or a contraception case on its docket. But smart money is on at least one showing up before the year’s end.
The Court is most likely to take up Whole Woman’s Health v. Cole, the fight over HB 2, Texas’ clinic shutdown law. HB 2 requires all abortion providers to obtain local hospital admitting privileges, and every reproductive health-care facility offering abortion services to meet the same hospital-like building standards as an ambulatory surgical center (ASC). Those mandates have forced the closure of over half the clinics in the state so far. The Roberts Court has already stepped into this case twice to prevent HB 2 from closing even more clinics, both times to overrule Fifth Circuit decisions upholding the Texas requirements. Attorneys representing providers have asked the Roberts Court to permanently block both provisions, and I think the Court will do so.
Here’s why: It’s been almost ten years since the Court has taken an abortion rights case. The Court took no formal action at the close of last term in Jackson v. Currier, a nearly identical case out of Mississippi, where the last remaining abortion clinic in the state faces closure. That means the Court is likely waiting for the attorneys in the Texas case to finish their briefing before hearing both Cole and Currier together. It can then decide just how far states can go in targeting abortion clinics for closure before violating the Constitution.
A little less clear is whether or not the Roberts Court will take up challenges by religiously affiliated nonprofits to the religious accommodation to the Affordable Care Act’s birth control benefit. By last count, there were seven pending requests, including from Little Sisters of the Poor, for the Supreme Court to determine whether completing a form that allows the organizations to avoid complying with the birth control benefit in the Affordable Care Act unduly burdens their religious rights. Up until a few weeks ago, the federal courts all agreed the accommodation process was not a burden on religious rights. But then the very conservative U.S. Court of Appeals for the Eighth Circuit went and ruled the accommodation process is a burden on religious rights, increasing the likelihood that the Roberts Court steps in to settle the dispute.
If it does, we’ll see just how strong Justice Kennedy’s reasoning was in Hobby Lobby v. Burwell—the case that granted religious accommodations to the benefit to for-profit companies. In Hobby Lobby, the Court presumed the accommodation process was reasonable and extended it to for-profit businesses. This latest round of challenges will force the Court, should it take them, to definitively rule on how reasonable the accommodation process is. A ruling for the challengers would further roll back contraception access and threaten the birth control benefit altogether.
Affirmative Action, Round Two
Back in 2012, when Abigail Fisher first took her case against the University of Texas at Austin’s use of race-based admissions in its undergraduate program to the Supreme Court, pretty much everyone, myself included, thought the “post-racial” Roberts Court would gut the policy. That didn’t happen. Instead, Justice Kennedy ordered the case back to the appellate court for another look. The Fifth Circuit took one, and again endorsed UT Austin’s admissions policy. And again, Fisher appealed that decision to the Supreme Court. Will the Supreme Court kill off affirmative action policies this time around? Once again, the likely key to that answer lies with Justice Kennedy.
Election Law Cases in an Election Year. What Can Go Wrong?
If the Roberts’ Court record on workers’ rights is bad, its record on election and campaign finance law is worse. This term, the Court will dig into the part of the 14th Amendment that deals with the allocation of seats in the U.S. House of Representatives in Evenwel v. Abbott. That 14th Amendment provision states that “representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in that state, excluding Indians not taxed.” The phrase “whole number of persons,” requires non-citizens to all be counted in determining how many House members a state receives, even though these individuals counted cannot vote. That means places like Texas and California, which have significant numbers of non-citizen residents, receive extra representation in the House for those non-citizens. The plaintiffs in Evenwel want the Roberts Court to change the way states draw their districts so that they include an equal number of voters rather than an equal number of residents. If the Court sides with the plaintiffs, it could make the House even more conservative.
Deep Dive Into the Death Penalty and the Eighth Amendment
If there is one spot of hope in all this, it is the possibility, like Justice Antonin Scalia hinted at in some public comments, that this term will bring the end to the death penalty. At the close of last term in Glossip v. Gross, Justices Stephen Breyer and Ruth Bader Ginsburg stated in their dissents that they believe it “highly likely the death penalty violates the 8th Amendment.” The Eighth Amendment prohibits excessive bail, fines, and “cruel and unusual punishment.” Against the backdrop of an ongoing national conversation about the brutality of state-execution methods, the Court has granted review this term of five Eighth Amendment cases so far. Not all of these deal with the death penalty. But at least one, Hurst v. Florida, takes on a state’s capital punishment scheme directly, with the justices set to examine whether or not the Florida death penalty is constitutional. A broad ruling in Hurst v. Florida could spell the beginning of the end of state-mandated executions.
The Court’s term begins Monday, October 6. It will likely run through the month of June.