The Supreme Court term began Monday with a bang — not with what it did, but what it didn’t do. In refusing to take appeals, the court paved the way for marriage equality in at least five more states. While the court may still take another marriage-related appeal, it already has plenty of other potentially explosive cases on its docket. In the 10th year of the Roberts court, issues up for grabs include racial discrimination in housing and political line-drawing, the rights of a prisoner to grow a beard and a retail employee to wear a hijab, the contours of workers’ rights, and the power of the police, among others. A major question mark: Whether the court will take a case that could strip healthcare subsidies away from millions of Americans. Here’s what we already know.
RACIAL JUSTICE Last term, the court narrowly missed a chance to undermine the Fair Housing Act, the chief weapon for fighting housing discrimination, when the case taken by the court was settled. The highest court still seems eager to take a whack at the idea that, if an action has disparate impact on people of color, it violates the law, or whether plaintiffs have to show intentional discrimination, which is a very high bar to clear. In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., the state has explicitly asked the court to address these questions. The case concerns whether low-income housing vouchers were disproportionately allocated to majority-minority districts. Few are optimistic about its outcome.
POLITICAL POWERTwo cases out of Alabama, Alabama Democratic Conference v. Alabama and Alabama Legislative Black Caucus v. Alabama, will test how far Republican racial gerrymandering can go. Alabama Democrats and the Black Caucus argue that the state’s 2012 GOP-led redistricting plan packed African-Americans into as few state legislative districts as possible, limiting their influence in the legislature by ensuring they’d always be in the minority. Democrats say this violates the Voting Rights Act, but Republicans counter that it’s essentially what the Voting Rights Act requires. Here’s why this matters: It’s very common for Republicans, especially in the South, to do these partisan gerrymanders that paradoxically weaken minority political power by creating a few districts with huge majorities of minority voters, meaning white conservatives have the rest of the map largely to themselves. If Democrats win — which would be a surprise to most observers — it would make it harder to do that.
Another case with big implications for the ability to stop partisan gerrymandering is Arizona State Legislature v. Arizona Independent Redistricting Commission. In 2000, Arizona voters passed a constitutional amendment establishing an independent commission to do redistricting, taking it out of the hands of legislators. State Republicans, represented by conservative super-lawyer Paul Clement, argue that the U.S. Constitution bars cutting lawmakers out of the process. If the Supreme Court agrees, California’s much-praised independent commission would also likely be in jeopardy, and it would be harder for other states to set up similar commissions unless legislators signed off.
Florida is one of 39 states that bar judicial candidates from personally asking for campaign contributions. In Williams-Yulee v. The Florida Bar, that law is being challenged by a former candidate for county judge, who claims it violates the First Amendment’s free speech protections. If the law is struck down, it would make it harder to insulate judicial races from the influence of money in politics. And it would expand even further the Supreme Court’s embrace of the “money is speech” principle (see Citizens United and McCutcheon).
VOTING RIGHTSFour major Voting Rights Act cases either already have, or could soon, come before the Supreme Court: Voter ID laws in Texas and Wisconsin; a sweeping voting law in North Carolina that includes a voter ID requirement; and Ohio’s cuts to early voting. So far the court has only issued a narrow order saying the Ohio cuts can go into effect for the midterms, and it could take the same limited approach in the other three cases before the election. But it’s very possible that either this year or next, it could rule much more broadly in one of these cases, with big implications for access to the ballot going forward. Such a ruling would likely clarify whether, and in what circumstances, the post-Shelby Voting Rights Act can be used to stop voter ID requirements and other restrictions that disproportionately impact minorities. Essentially, just how deliberate does the evidence of racial discrimination need to be?
POLICE POWERSIf a police officer stops you, searches you, and arrests you based on a faulty understanding of the law, was the search still valid? That’s the question behind Heien v. North Carolina, which could broaden Fourth Amendment protections against unreasonable search and seizure. Nicholas Heien was stopped for a broken taillight, and a search of his car uncovered cocaine. But the state’s law only requires “a stop lamp,” so the question is whether Heien should have been arrested based on what Heien’s lawyers argue was an illegitimate reason.
WORKERS’ RIGHTSOvertime, last-minute scheduling, and what counts as “on the clock” work are all live issues in American labor relations right now. Pretty soon, the Supreme Court is going to have its say on the latter: In Integrity Staffing Solutions v. Busk, it will rule on whether Amazon warehouse employees are on the clock — and therefore entitled to wages — for the 25 minutes or so each day that they stand in line for security checks.
The Obama administration’s Labor Department has had to fend off more than its fair share of legal challenges over the past few years, but Perez v. Mortgage Bankers Association could have implications extending across all federal agencies. At issue is whether regulatory departments need to issue notice for a public comment period not just when they change a regulation, but when they change their interpretation of a regulation. If it’s the latter, it could soon become harder for the executive branch to exercise regulatory discretion.
Another question before the court is this: When a worker is promised retiree health care benefits in a union contract, can that worker reasonably assume the benefits will keep coming in for the rest of her life? What if she outlives the duration of the contract itself? Is her former employer still on the hook to provide those benefits, even if the contract expired long ago? In M&G Polymers USA, LLC v. Tackett, the court will have to decide whether retiree benefits must continue indefinitely, regardless of whether or not that’s explicitly spelled out in the contract.
REPRODUCTIVE RIGHTSAfter UPS employee Peggy Young got pregnant, she asked for “light duty,” something already available for injured and disabled employees. Instead, she was put on extended unpaid leave and lost her medical coverage. But two lower courts claimed that didn’t violate the Pregnancy Discrimination Act. The court will hear Young v. United Parcel Service on Dec. 3.
After a win for Hobby Lobby, is filling out a form opting out of contraceptive coverage a burden on religion? On Friday, the University of Notre Dame asked the Supreme Court to take its case against the opt-out form, one of dozens filed by nonprofit accommodations dissatisfied with the Obama administration’s existing religious accommodation to covering birth control on insurance plans.
The court may also soon have the chance to weigh in on how far states can go in burdening women who seek abortions. Last week, an appeals court decision resulted in a total of 80% of Texas’ abortion clinics closing, and a petition to the Supreme Court is expected at some point. RELIGIOUS RIGHTSThe court will take up the question of religious freedom for prison inmates in Holt v. Hobbs. Gregory Holt, who is serving a life sentence in an Arkansas prison, is suing to be allowed to grow a half inch beard as an expression of his Muslim faith. The state argues its quarter-inch limit is needed to keep the prison safe. The justices must decide whether that rule imposes “a substantial burden on the religious exercise of a person residing in or confined to an institution,” as the 2000 Religious Land Use and Institutionalized Person Act states. Samantha Elauf was 17 when she applied for a job at Abercromie & Fitch in Tulsa, Oklahoma. She was turned down — because she wore a black hijab that managers believe violated the company’s “look policy.” In Equal Employment Opportunity Commission v. Abercrombie & Fitch, the court will decide whether Abercrombie is liable for discriminating against Elauf if she didn’t explicitly tell them she wore a hijab for religious reasons. (She didn’t know it was against their policy.) What’s at stake is how high of a bar courts can set for people who claim they have been discriminated by employers. The conservative Alliance Defending Freedom is representing Pastor Clyde Reed and Good News Community Church against the Town of Gilbert, Arizona, which says that the town’s policy on signage discriminates against churches. The appeals court said that since the rule applies to everyone equally, it isn’t discrimination. OBAMACAREThis is the most uncertain, yet most clearly consequential, issue the court could take on. At stake: The Obamacare subsidies that have helped millions of Americans afford health insurance. Conservative activists have brought cases claiming that the insurance subsidies available through the federal exchange are illegal because of the wording of the law, which refers to exchanges “established by the State.” Thirty-six states declined to set up their own exchanges. The federal circuit ruled against the administration, but the case is being reheard by the full panel of judges, which is expected to reverse it. If so, it will deprive the case of the circuit split that is common grounds for the Supreme Court to take the case, since the 4th Circuit Court of Appeals rejected the argument. It remains to be seen whether the Roberts court has the appetite to take away insurance from millions of Americans just two or so years after it upheld the law. Of course, the second part of that 2012 decision upholding Obamacare’s constitutionality also opened the door for millions of Americans to be denied Medicaid coverage, depending on what state they live in. Additional reporting by Zachary Roth and Meredith Clark. CORRECTION: An earlier version of this post mistakenly referred to the Alliance Defending Freedom as the Alliance Against Freedom.
Ned Resnikoff is an urban policy analyst, researcher, writer, and editor. His byline has appeared in a variety of publications, including the New York Times, San Francisco Chronicle, Dissent, and The Nation. He writes the newsletter Public Comment, which can be found at publiccomment.blog.
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