This Could Be the Supreme Court’s Busiest Month in History
One month from now, several core principles of civil rights and governmental power will not be the same as they are today.
That’s because the Supreme Court, as it usually does, has saved its most contentious cases for last and will announce its decisions between now and the end of June. What’s unusual this year, however, is how important the remaining cases are. In terms of judicial impact, June 2015 may be the busiest month in Supreme Court history.
Three cases have attracted the most attention, but three others are sure to be contentious, however the court comes down.
First, King v. Burwell will probably be the last case on the core elements of the Affordable Care Act, aka Obamacare. That’s partly because Obamacare is now a going, working concern, and partly because most of the key constitutional and statutory questions will, after this month, have been addressed.
But King, of course, is about much more than Obamacare. It is a conservative activist lawsuit based on a four-word legislative glitch—one that drafters of the ACA have recently said was simply a drafting error. Read literally, it would undermine a significant part of the overall law; read in context, its literal meaning would need to be set aside.
This makes King a virtual referendum on Obamacare. Will a majority of the justices favor literalism over common sense? Will they do so out of an ideological opposition to Obamacare? Will Chief Justice John Roberts again save the law, perhaps repairing the Supreme Court’s reputation but endangering his own standing among conservatives? How will the court navigate this exceptionally political question of the role and size of government? All TBA.
The second most prominent case left on the docket is Obergefell v. Hodges and its associated same-sex marriage cases. The emerging consensus is that a federal marriage right is inevitable, though both the issues raised by the case and the questions asked at oral argument are anything but obvious.
In Obergefell, it is assumed that Justice Anthony Kennedy will provide the swing vote in yet another 5-4 decision. If he writes the opinion, he will go down in history as the jurist who changed LGBT equality forever, completing the suite of Romer v. Evans (recognizing gay people as a distinct class of people, rather than simply people who engage in a certain set of acts), Lawrence v. Texas (striking down sodomy laws), Windsor v. U.S. (striking down the Defense of Marriage Act), and now Obergefell.
On the other hand, some court-watchers wonder whether Chief Justice Roberts might surprise us once again, perhaps writing separately to require states to recognize other states’ marriages but allow them not to license gay marriages themselves. This “middle position” would likely not command a majority—it would be too much for the conservative wing, and too little for the liberal one—but would be another interesting case of positioning by the chief.
Or maybe not.
The third most eagerly anticipated case is Texas Dep’t of Housing & Community Affairs v. Inclusive Communities Project. On one level, the case is an important test of the Fair Housing Act and what plaintiffs must show to prevail. On another level, though, it will decide the continued validity (or invalidity) of “disparate impact” reasoning in civil rights cases.
Most people, I suspect, think that discrimination occurs in specific, intentional cases: a racist landlord, or cop, or employer. And if you can show that the boss is racist, you win. That is what civil rights lawyers call “discriminatory intent.”
The trouble is, discriminatory intent can be hard to prove. You need a smoking gun—a racist memo, a confession—and even then, sometimes racism is hard-wired into the system, going well beyond individual decision-makers.
That’s where disparate impact comes in. Under disparate impact reasoning, if a plaintiff can show that a policy—even a seemingly neutral policy—has an obvious racially disparate impact, then that alone may be sufficient to establish a civil rights violation.
When I was a law clerk, for example, there was a case of a particular union requiring a high school diploma for enrollment. There was no good reason for that requirement. A diploma was totally irrelevant to the work the union members did. The effect of it was to exclude disproportionate numbers of African Americans. The union was lily-white, and the non-unionized workers were mostly black.
That’s a classic disparate impact case: facially neutral requirements and no smoking gun, but also no valid reason, and a net effect of systemic discrimination. The Texas case is similar, involving landlords refusing to accept certain kinds of housing vouchers—with the end result being lily-white suburbs.
If disparate impact reasoning is held to be invalid under the Fair Housing Act, it will be suspect in other contexts, as well—and the effects, on anti-discrimination law, voting law, and many other areas, will be dramatic. It would be as big a setback to African-American civil rights as the 2013 case overturning parts of the Voting Rights Act and would signal a troubling trend in the Roberts court’s jurisprudence.
Surprisingly, the swing vote in this case may turn out to be Justice Antonin Scalia, who at oral argument seemed reluctant to throw out a form of judicial reasoning that had worked well for decades. Then again, he may simply have been playing devil’s advocate, testing out his own positions in court. Once again: TBA.
Beyond these three cases, though, are a handful of other cases that are interesting, divisive, and still pending.
In Zivitofsky v. Kerry, the court will decide a key question of separation of powers—and potentially cause an uproar in the Middle East. For years, Congress has repeatedly stated its view that Jerusalem is the capital of Israel, and for years the executive branch has done nothing about it. That satisfies the “Israel Lobby” in Washington and avoids a provocative, unilateral action by the United States.
The plaintiffs in Zivitofsky are American citizens whose child was born in Jerusalem in 2002. The Bush administration, citing the executive branch’s sole authority to conduct foreign affairs, listed the baby as born in Jerusalem, with no country attached—even though Congress had just stated, yet again, that Jerusalem is the capital of Israel and that babies born there should be listed as being born in Jerusalem, Israel.
Having ruled, in 2012, that this is a legal and not purely political question, now the Supreme Court finds itself in the middle of a heated U.S.-Israel political battle. Will it defer to executive authority here, notwithstanding grave (and legitimate) concerns about the executive’s increasingly imperial authority on foreign affairs? Will it check that authority, pleasing Israel’s lobbyists but potentially causing friction in the Middle East? We’ll soon find out.
Like these other cases, Glossip v. Gross is about many things at once. On the surface level, it’s about whether a particular drug used in lethal injections constitutes unconstitutionally cruel and unusual punishment. But coming in the wake of increasingly fractious debate over capital punishment, it is also about the death penalty more generally.
As the justices angrily noted at oral argument, the state of Oklahoma is only using the problematic drug because more reliable ones are unavailable, thanks to worldwide pressure on drug manufacturers not to make them. That is the same reason Utah recently reinstituted the firing squad as a method of capital punishment.
So Glossip is about whether states have this particular fall-back—or whether capital punishment can effectively be rendered impossible by activists. With many Republicans now doubting (and banning) capital punishment, most recently in Nebraska, Glossip will be a crucial bellwether on its constitutionality.
And then there’s Elonis v. U.S., one of the court’s most important cases about free speech online. At issue is a set of rap lyrics posted on Facebook by Anthony Elonis, aka Tone Dougie, which included threats to his estranged wife. (Those of us old enough to remember Eminem’s Slim Shady get the picture.)
But what constitutes a threat? Did Elonis have to mean it? Or are the threats enough, if a reasonable person would understand them that way?
To be clear, anyone would understand them that way. Among Tone Dougie’s masterful rhymes are “If I only knew then what I know now… / Would have smothered your ass with a pillow / Dumped your body in the back seat / Dropped you off in Toad Creek / And made it look like a rape and murder.” Moreover, the “lyrics” are just posts on Facebook. (This New York Times piece on the case has screenshots.) They look exactly like regular statements.
So is this artistic free speech? Or is Elonis guilty of threatening another person with murder? Does it matter that it was on Facebook? More questions to be answered this month.
That’s not even all of the remaining cases. There’s a fascinating one about whether Abercrombie & Fitch discriminated against a Muslim woman by saying her hijab violated the store’s dress code. There are crucial environmental cases on whether the EPA must consider the costs of emission limits on power plants.
And in the most head-twisting case of all, the ACLU is suing the state of Texas for not allowing Confederate flags on their license plates. And not just Texas—but its governor at the time, Rick Perry, who said that “we don’t need to be scraping old wounds.” So, the ACLU is supporting the Confederate flag, Perry is opposing it, and the Supreme Court will decide in the next few weeks whether Texas was engaging in viewpoint discrimination.
And people say law is dry.
Why is this year’s final month so packed? In part, it’s coincidence; there just happen to be a number of highly contentious cases left on the docket. In part, it’s the nature of this court: divided, increasingly engaged in lecturing, and concerned both about its own legacy and the way American society and government appear to be headed. The Supreme Court is as divided as Congress is—the difference is that the court actually has to decide something. So they’ve saved the best for last.
Supreme Court opinions are issued on Mondays and Thursdays at 9:30 a.m. If you want to geek out and follow them live, the website SCOTUSblog is the place to be. See you there.