The Supreme Court begins a new term on Monday, even as the landmark rulings of last term continue to reverberate. The court has agreed to hear more than 50 cases so far on disputes both familiar and fresh: from affirmative action and freedom of speech, to campaign finance and the president’s power to make recess appointments.
No case yet promises the high-profile splash of rulings on national health care, voting rights or same-sex marriage, but in many of them, long-established Supreme Court precedents may be at risk.
AFFIRMATIVE ACTION A familiar issue, but this time the question is whether a state may amend its constitution to prohibit the consideration of race or sex in public university admissions decisions. Ten years ago, the court ruled that the University of Michigan Law School could use race as one factor in assessing applications. Michigan voters responded by passing a constitutional amendment banning the practice.
The court in Schuette v. Coalition to Defend Affirmative Action will now consider whether that amendment violates the equal protection clause. The court’s very narrow decision last term in Fisher v. University of Texas at Austin did not change the state of the law on the use of race to achieve diversity. This case risks doing so.
CAMPAIGN FINANCE In one of the most closely watched cases of the term, McCutcheon v. Federal Election Commission, the court will consider the constitutionality of overall limits on how much an individual donor may give directly to federal candidates, party committees and PACs in a two-year election cycle.
McCutcheon is the first major campaign finance case to reach the court since its controversial 2010 ruling in Citizens United v. Federal Election Commission, which struck down a ban on independent spending in campaigns by corporations and labor unions. In a 1976 case, Buckley v. Valeo, the court upheld limits on direct political contributions to prevent corruption. That precedent is being tested again in the McCutcheon case; the justices should reaffirm it.
FREEDOM OF SPEECH AND RELIGION In McCullen v. Coakley, anti-abortion protesters are challenging a Massachusetts law that sets a 35-foot “buffer zone” around health care clinics where abortions are performed. The Supreme Court upheld a similar buffer zone in 2000, but the protesters in this case say the law discriminates against them based on their point of view. That earlier ruling may not survive because four of the justices in the 2000 majority have left the court.
In Town of Greece v. Galloway, the court will decide whether the First Amendment permits a prayer before a town board meeting. A 30-year-old Supreme Court decision says that nonsectarian legislative prayers do not violate the Constitution, but in this case, all but a handful of the prayers were performed by Christian clergy. The question is whether this will make a difference to the justices.
ABORTION Cline v. Oklahoma Coalition for Reproductive Justice deals with the constitutionality of an Oklahoma law that requires doctors to use abortion-inducing drugs precisely as the Food and Drug Administration approved them 13 years ago. The law’s challengers point out that standard medical practice has changed and doctors routinely prescribe the drugs differently now (at much lower doses and two weeks later into a pregnancy), which is fully permitted by federal law.
Earlier Supreme Court rulings have struck down laws that pose an “undue burden” on abortion rights. The court should see Oklahoma’s tactics for what they are — part of an effort to undo the right to choose under the guise of protecting women’s health.
PRESIDENTIAL POWER National Labor Relations Board v. Noel Canning addresses issues as vast as the separation of powers and as small as the meaning of the word “the.” The case involves the president’s constitutional power to make appointments “during the recess of the Senate,” as President Obama arguably did in January 2012, when he appointed three members to the N.L.R.B. The board then ruled against a bottling company called Noel Canning in a labor dispute.
The company appealed, arguing, among other things, that the board members’ appointment was improper because the Constitution’s use of the phrase “the recess” refers only to the period when Congress is between sessions, and not to a break within a session. The Obama administration points out that presidents for more than a century have made appointments during breaks when Congress was out of town. Accepting the company’s extremely narrow reading of the Constitution would invalidate a practice that has resulted in hundreds of appointments over the years.
•
Beyond these cases, the new term could hold other surprises. Several of last year’s biggest cases were not accepted by the court until after the term began.
For instance, the justices have yet to decide whether to hear an appeal on the issue of the Affordable Care Act’s requirement that the health plans of private for-profit employers cover birth control. Several companies have challenged the rule on the grounds that it violates their religious freedom, and federal appeals courts have split on the issue, which makes it likely that the court will step in.
On many of these cases, the outcome may depend again on a single vote — and often, but not always, that means Justice Anthony Kennedy, whose vote decided more 5-4 cases than any other member of the court last year.