Dahlia Lithwick and Mark Joseph Stern’s recent Slate.com post offers a brief preview of what’s to come this term in the nation’s highest court. For readers with a liberal bent, the news may be troubling, as they ask, rhetorically: “Is the court moving right, or far right, or really, really far right?”
The entire analysis is worth reading, as Lithwick and Stern cover the Court’s anticipated rulings on an array of topics. Below are just a few examples.
On unions:
Public-sector unions have been on constitutional life support for years—and this term, the court’s conservatives may finally pull the plug. In June, the court agreed to hear a case called Friedrichs v. California Teachers Association, which deals with [‘fair share’ union fees. Forty years ago, in Abood v. Detroit Board of Education, the Supreme Court held that nonunion members couldn’t be forced to pay full union dues. That, the court held, would violate their First Amendment rights by compelling them to associate with a union and fund its political activities. However, the justices found that public-sector unions could require nonmembers to pay fees associated with nonpolitical union representation, like collective bargaining. If nonunion members could opt out of fair-share fees, the majority noted, they would get all the benefits obtained by a union—while paying none of the costs.
Friedrichs gives [Justice Samuel] Alito the opportunity to [overrule]Abood. That outcome would likely cripple public-sector unions across the country by denying them fair-share fees from nonmembers. Unions might as well brace for the crash now: The conservatives will almost certainly use this case to push their deregulatory economic agenda on the country. In the Roberts Court era, the question isn’t whether unions will win or lose. It’s whether unions will take a single punch or a full-on beating.
On affirmative action:
[in 2013 in Fisher v. University of Texas], in a 7–1 ruling the Supreme Court decided not to overturn the University of Texas’ affirmative action program but did find that the program needed to be assessed more rigorously, under a ‘strict scrutiny’ test. The court kicked the whole project back to the 5th U.S. Circuit Court of Appeals to determine if the university’s affirmative action program passes this test. The 5th Circuit took another look and upheld the program. Again. ‘It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity,’ wrote the 2–1 majority. The very fact that the court [has now] agreed to hear Fisher 2.0 has supporters of affirmative action worried. [Justice Anthony] Kennedy has never upheld an affirmative action program. [Justice Elena] Kagan, who worked on Fisher as Solicitor General, is recused.
On life sentences for juveniles:
In 2012, in Miller v. Alabama, the court ruled that juveniles found guilty of murder could not be sentenced to a mandatory life sentence without parole. (The decision was 5–4, with Kennedy swinging liberal.) In Montgomery v. Louisiana, the issue is simply whether the Miller rule must be applied retroactively—that is, to defendants who were sentenced before juvenile mandatory life without parole was invalidated.
That’s a surprisingly tricky issue to decide. Under Supreme Court precedent, a typical procedural rule only applies once the court announces it. A new substantive rule, on the other hand, applies retroactively. If Miller is merely about the right of juvenile defendants to a fair hearing before getting life without parole, it’s a procedural ruling. If Miller is about the fundamental cruelness of mandatory life sentences for minors, it’s a substantive ruling.