WASHINGTON -- Back from its summer break, the U.S. Supreme Court is hearing its first pair of cases on Monday -- the beginning of what's shaping up to be a controversial new term.
But it won't be long until things start to heat up with cases that examine the future of affirmative action at public universities, the livelihood of public-sector unions, and whether the Constitution grants representation to everyone or just to registered voters in state legislative districts.
So far, legal observers and commentators agree those disputes -- Fisher v. University of Texas, Friedrichs v. California Teachers Association and Evenwel v. Abbott -- are the big constitutional cases the Supreme Court will be hearing and deciding in the next nine months. For someone like The New Yorker's Jeffrey Toobin, this means "the coming liberal disaster."
All of these cases come at a controversial time for the court: Public perception of the justices' work is at or near record lows, and Chief Justice John Roberts himself celebrates a closely watched 10 years at the helm of the institution -- with conservatives increasingly skeptical of his record after he twice voted to save President Barack Obama's health care law.
That skepticism should be cast aside with this new batch of cases, not only because Roberts remains consistently conservative in his views but because the court he leads retains a willingness to entertain cases that are decidedly conservative in origin, engineered with sweeping conservative wins in sight.
Take the Fisher and Evenwel cases. Both were brought by the same conservative advocate who was behind Shelby County v. Holder, the case that in 2013 blew a hole in the Voting Rights Act of 1965. The advocate, Edward Blum, has had a remarkable success rate with the Supreme Court, and the fact that now two of his cases -- in the areas of college admissions and voting rights -- are before the justices tells you that he and his lawyers understand very well the court and the dynamics they're dealing with.
Fisher is a do-over of the exact same affirmative action case the court decided sheepishly in 2013. The aggrieved white student in that case, Abigail Fisher, didn't prevail in the ruling -- the justices merely sent her case back to a lower court to determine whether the University of Texas had, indeed, met the correct constitutional standard for the use of race in admissions. That court again ruled that it did, giving Fisher another loss and Blum another opportunity to ask the justices to cast doubt on the constitutionality of affirmative action at public universities.
Evenwel concerns the Constitution's "one person, one vote" principle. The precedent giving states the freedom to draw state legislative maps on the basis of total population has been settled since the 1960s, but now conservative voters -- represented by Blum's legal team -- are telling the court that Texas is "diluting" their voting power by drawing state district maps on the basis of everyone living in them, including undocumented immigrants, children and other non-voters. Does the Constitution grant them representation, too?
Friedrichs is another deeply conservative case, also fanciful for how it could deal a blow to public-sector unions under an application of the First Amendment to "fair-share" union fees. These fees, the plaintiffs argue, represent "the largest regime of compelled political speech" in the country because they require California teachers to contribute to their unions, which in turn are engaged in "the quintessentially political act of extracting policy commitments from local elected officials." Unions are rightfully worried about how the Supreme Court might come down in the case.
Both Evenwel and Friedrichs are curious battles for conservatives because they rely on the rights to equality and free speech under the Constitution to undermine state democratic choices in electoral and labor matters. A victory for either set of plaintiffs -- voters complaining of voter dilution or teachers who don't want to be forced to pay union fees -- would go against the concern for states' rights that conservatism has historically defended.
If that weren't enough cause for some hand-wringing by liberals, also awaiting Supreme Court consideration are other potentially news-making cases, including a new controversy under the Affordable Care Act that pits religious liberty against women's health and a couple of abortion cases from Texas and Mississippi that could chip away at Roe v. Wade. The court should be deciding whether to hear those cases in the coming weeks or months.
The above set of blockbusters is part of the reason University of California at Irvine law professor Richard Hasen, who writes often on the work of the Supreme Court, has called its future composition "the most important civil rights cause of our time." For him and others who are concerned where the nation is headed, there is simply too much at stake to not care how the court will rule in these matters.
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