Supreme Court faced with tough major decisions

Lisa Neff, Staff writer

One of the nation’s more liberal nonprofits and one of the most conservative U.S. think tanks may not agree on the best outcomes of the new Supreme Court term, but there’s concurrence on the most significant cases before the justices.

There also seems to be all-around agreement that progressives may not win the type of landmark victories achieved in the 2014–15 term, most notably the high court’s ruling in late June that paved the way for marriage equality across the country. Conservative wins are far more common from the Roberts court.

The court began its new term on Oct. 5, with 34 cases already on the docket and many more expected. The justices will hear arguments in 10 cases this month and arguments in another 10 in November.

Days before the term opened, the liberal People for the American Way issued its “term preview” and the conservative Heritage Foundation issued its “overview.” Both groups said the most significant cases to be heard this fall will deal with affirmative action, organized labor and redistricting. The court also is likely to take up cases dealing with religious liberty, abortion rights and affordable health care.

PFAW, in its preview, cautioned that the justices “have chosen to hear a number of cases that risk continuing the aggressive rightward march that has characterized the past decade. The 2015–16 term may be yet another one where the American people enjoy less liberty, less equality, less power and less control over our own democracy on the last day of the term than we had on the first.”

The Heritage Foundation did not issue such a warning.

A look at new term …

To be argued:

• Redistricting. Perhaps the most prominent case currently before the court is Evenwel v. Abbott from Texas. The justices will decide whether states can or must exclude those not eligible to vote or not registered to vote from population counts in redistricting.

The case deals with equal representation in elected bodies, the constitutional guarantee of “one person, one vote.” The plaintiffs, who live in rural Texas, maintain that the Constitution requires each vote to be equal, so districts should have equal numbers of eligible voters not equal populations. Current practice is to count everyone in the district.

Another case, Harris v. Arizona Independent Commission, involves a state redistricting plan adopted by the Arizona Independent Redistricting Commission, which was created as a result of a ballot initiative aimed at removing partisanship from the mapping process.

The plaintiffs argue that the commission, for partisan reasons, created a map that carved out districts for both parties but to the disadvantage of Republicans.

• Affirmative action. Fisher v. University of Texas at Austin. The court will hear this case for a second time. The plaintiff’s first equal protection challenge to the use of race in undergrad admissions at UT was heard in 2013. Then, the court said schools must prove their use of race in admissions decisions is narrowly tailored to further compelling government interests and remanded the case to the Fifth Circuit Court of Appeals.

Heritage says the justices will decide whether UT’s diversity rationale for enrolling more minority students from majority-white high schools justifies using race in admissions.

• Union representation. Friedrichs v. California Teachers Association. In this case, the plaintiffs argue that because they are not union members, they should not pay fair share fees toward the public employee union’s costs in representing members and non-members alike. The plaintiffs’ claim is that public sector collective bargaining is like lobbying and their fair share fees support political activity, violating their First Amendment rights.

PFAW says, “The decision in this case will have an enormous impact on working people’s ability to join together and effectively negotiate for fair wages and benefits.”

Possible arguments:

• Abortion rights. Whole Woman’s Health v. Cole out of Texas. The case is a challenge to Texas’ requirements that licensed abortion facilities meet the same building requirements as an ambulatory surgical center and that doctors performing abortions have admitting privileges at a hospital within 30 miles.

Doctors and choice advocates maintain that these types of regulations — adopted in Wisconsin under Gov. Scott Walker — are medically unnecessary and infringe on women’s ability to exercise their constitutional rights.

Another case, Currier v. Jackson Women’s Health Organization, challenges a court ruling against a Mississippi admitting-privileges law.

Conservatives would like the court to hear Currier and progressives would like the court to hear the Texas case.

• Religious liberty. Multiple petitioners want the court to address the accommodation for religious nonprofits to opt out of the Affordable Care Act’s contraception coverage requirement. The faith-based groups argue that even the accommodation violates religious liberty under the Religious Freedom Restoration Act.