WASHINGTON – The Supreme Court is beginning a new term with controversial issues that offer the court’s conservative majority the chance to move aggressively to undo limits on campaign contributions, undermine claims of discrimination in housing and mortgage lending, and allow for more government-sanctioned prayer.
Assuming the government shutdown doesn’t get in their way, the justices also will deal with a case that goes to the heart of the partisan impasse in Washington: whether and when the president may use recess appointments to fill key positions without Senate confirmation.
The court was unaffected for the first few days of the government shutdown and there was no expectation that arguments set for October would have to be rescheduled.
The new term that starts Monday may be short on the sort of high-profile battles over health care and gay marriage that marked the past two years. But several cases ask the court to overrule prior decisions – bold action in an institution that relies on the power of precedent.
“There are an unusual number of cases going right to hot-button cultural issues and aggressive briefing on the conservative side asking precedents to be overruled,” said Georgetown University law professor Pamela Harris, who served in President Barack Obama’s Justice Department.
Paul Clement, a frequent advocate before the court and the top Supreme Court lawyer under President George W. Bush, agreed that the opportunity exists for dramatic precedent-busting decisions. But Clement said each case also offers the court “an off-ramp,” a narrower outcome that may be more in keeping with Chief Justice John Roberts’ stated desire for incremental decision-making that bridges the court’s ideological divide.
There is a familiar ring to several cases the justices will take up.
Campaign finance, affirmative action, legislative prayer and abortion clinic protests all are on the court’s calendar. The justices also will hear for the second time the case of Carol Anne Bond, a woman who was convicted under an anti-terrorism law for spreading deadly chemicals around the home of her husband’s mistress.
The justices probably will decide in the fall whether to resolve competing lower court decisions about the new health care law’s requirement that employer-sponsored health plans include coverage of contraceptives.
An issue with a good chance to be heard involves the authority of police to search the contents of a cellphone found on someone they arrest. Justice Ruth Bader Ginsburg said over the summer that the right to privacy in the digital age “is bound to come up in many forms” in the years ahead.
The court may hear its first abortion case since 2007, a review of an Oklahoma law that would restrict the use of certain abortion-inducing drugs such as RU-486.
The campaign finance argument on Tuesday is the first major case on the calendar. The 5-4 decision in the Citizens United case in 2010 allowed corporations and labor unions to spend unlimited sums in support of or opposition to candidates, as long as the spending is independent of the candidates.
The new case, McCutcheon v. Federal Election Commission, is a challenge to the overall limits on what an individual may give to candidates, political parties and political action committees in a two-year federal election cycle, currently $48,600 to candidates and $123,600 in total. The $2,600 limit on contributions to a candidate is not at issue.
Since the Buckley v. Valeo decision in 1976, the court has looked more favorably on contribution limits than on spending restrictions because of the potential for corruption in large contributions. The big issue in the current case is whether the justices will be just as skeptical of limits on contributing as on spending.
Three justices, Anthony Kennedy, Antonin Scalia and Clarence Thomas, have signaled their willingness to do so. It remains to be seen whether Roberts and Justice Samuel Alito, the other two members of the Citizens United majority, are willing to go along.
Among other top cases already set for review:
– Greece, N.Y., a suburb of Rochester, is asking the court to uphold its practice of opening town council meetings with a prayer, despite an appeals court ruling that found the invocations a violation of the First Amendment because they almost always were Christian prayers. The court could use the case to rule that courts should take a more hands-off approach to religion in the public square or it could hold more narrowly that the town’s practice is consistent with a 1983 decision upholding prayer at the start of government meetings.
– Mount Holly, N.J., is defending a plan to demolish and redevelop a rundown neighborhood against claims that it discriminates because it disproportionately affects African-American and Latino residents. At issue is whether there also must be an intent to discriminate under federal housing law. The issue affects a range of transactions involving real estate and applies to banks and mortgage companies as well as governments, such as the one involved in this case.
– Michigan is fighting to preserve a constitutional amendment that bans the use of racial preferences in education after a federal appeals court ruled that the constitutional ban is itself discriminatory. This case, unlike last term’s look at a University of Texas admissions plan, does not involve the viability of affirmative action, but rather whether opponents of racial preferences can enshrine that ban in the state constitution.
– Massachusetts is defending a law that creates a 35-foot buffer zone at abortion clinics to limit protesters’ ability to interact with patients. The court upheld a buffer zone law in Colorado in 2000, but Roberts and Alito have replaced members of that majority and are considered more sympathetic to the free-speech claims of the protesters.
While several cases call into question high court precedents, the justices will be writing on a blank slate when they take up the president’s recess appointment power under the Constitution.
In that case, the court will confront an appeals court ruling that effectively would end the president’s ability to make such appointments, if it is left standing.
Former Justice Department official Peter Keisler said that justices often ask a lawyer for the best case in support of his argument. “No one is going to ask that question because ‘t’aint none.’ No Supreme Court decisions are material here,” said Keisler, a partner at the Sidley, Austin law firm in Washington.
The impasse that led Obama to install members of the National Labor Relations Board and Consumer Financial Protection Bureau director Richard Cordray in office without Senate confirmation has been resolved. So what remains of the issue is whether Obama and his successors will be constrained in the future.
The topic splits Democrats and Republicans, but their view of the matter is almost entirely dependent on which party controls the White House.
In another area, little drama is expected. Four justices are over the age of 75, but none is expected to retire in the coming year.
Ginsburg, at 80, is the oldest member of the court. Scalia and Kennedy are 77, and Justice Stephen Breyer is 75.
Ginsburg made clear in a series of media interviews this summer that she will stay on the court as long as she is able to do the work. Before the summer, Ginsburg had said she wanted to emulate Justice Louis Brandeis and stay on the bench as long as he did, 22 years. She will reach that mark in 2015, which also coincides with what is widely believed to be Obama’s last opportunity to name her replacement because the presidential election year of 2016 is an unlikely time to fill a high court vacancy, especially in the eighth and final year of a presidency.