5 cases

5 cases to watch as Supreme Court term begins 

Judges may take up cases on abortion and immigration.

By Josh Gerstein

After a year in which liberals scored impressive, high-profile Supreme Court victories, conservatives could be in line for wins on some of this term's most contentious issues, as the justices consider cases that could gut public sector labor unions and roll back affirmative action at state universities.

However, as the court's new term kicks off Monday, uncertainty surrounds several other politically potent cases that could wind up on the court’s agenda.

Litigation over state efforts to limit abortion by regulating clinics and doctors is making its way to the high court. And the justices are already facing a batch of petitions involving the rights of religious institutions to opt out of providing contraception under Obamacare.

Both issues seem likely to land on this term's docket, although the justices haven’t formally taken up either.

Many in the Obama administration would also like to see the court weigh in on immigration in coming months, upholding the president’s right to grant quasi-legal status and work permits to millions of immigrants who entered the U.S. illegally as children.

But it’s unclear whether that fight will get to the justices in time for a decision this term or whether Obama’s effort to expand his executive actions on immigration will remain blocked by a lower court order until the president leaves office.

Here’s POLITICO’s look at five of the most important cases the justices could grapple with soon:

A potential body blow to labor

Public-employee unions and politicians of both parties are keenly focused on a California dispute about whether states can compel government employees to pay union dues. A loss for the unions could sharply diminish the clout of a movement already struggling with its political relevance.

The case, Friedrichs v. California Teachers Association, was brought by Orange County, Calif. schoolteacher Rebecca Friedrichs and other teachers, who are arguing that forcing them to pay union dues violates their First Amendment rights. They also contend that unions should have to get permission before collecting dues used for political purposes, as opposed to the current system that requires objecting employees to opt out.

“The significance is substantial, either way it comes out,” said University of California at Irvine Law Professor Catherine Fisk. “The reason why conservative lawyers are bringing these case is the hope that a significant number of government employees choose not to join the union and certain government employee unions will be weaker.”

The Roberts court has not been friendly to unions, issuing a 5-4 ruling last year that prohibited mandatory union fees for home health workers but stopped short of banning so-called “agency shops” in government.

The new case directly asks the justices to overturn a 38-year-old precedent that allows all workers covered by union negotiations to be charged for representation.

How the case will be resolved is unclear, partly because the conservative justices often see limits on government employee’s First Amendment rights when their speech is at issue. Fisk said the unions are “rationally fearful” about what the court will do, but she thinks the justices might end up dumping the case after it’s heard. “I think the case raises so many doctrinal problems for them,” she said.

Higher ed affirmative action back in the crosshairs

Two years after punting the case back to an appeals court, the justices will take a second crack at resolving a dispute about the constitutionality of the University of Texas Law School’s affirmative action program. The case was brought by rejected applicant Abigail Fisher, who contends she was rejected because of her race.

The last time Fisher’s case went before the high court, affirmative action opponents hoped it would serve as a vehicle to pare back preferences for racial and ethnic groups at government-run schools. However, the justices instead told the 5th Circuit it had been too deferential to the University of Texas’s claims that the programs were narrowly tailored to promote diversity. Justice Anthony Kennedy won the support of six other justices for a decision that said such programs must be handled with "strict scrutiny,” but the decision did not suggest they were automatically unconstitutional.

Justice Elena Kagan has recused herself because she was involved in the case during her previous service as solicitor general. The real question is whether Kennedy will join the four other Republican appointees in setting such a high bar for affirmative action that many public colleges will abandon the preferences and admissions practices they use to achieve racial and ethnic diversity.

The meaning of "one person, one vote’ 

A Texas case has the potential to deal a blow to Latino political clout, tilting the balance of power away from urban areas and towards suburban and rural areas with more white voters. Evenwel v. Abbott presents the question of whether state legislative districts can be apportioned using a count of eligible voters rather than a count of all people.

If immigrants (both illegal and legal) as well as children can be left out of the count, “the rural areas where voters tend to have fewer non-citizens or where there are fewer young people concentrated would necessarily gain,” said New York University Law Professor Rick Pildes. “It’s a reasonable inference if the urban areas are more Democratic leaning that they would lose power to more Republican rural areas.”

Congressional redistricting shouldn’t be directly affected by the case, Pildes said, because the Constitution says the U.S. census used for that reapportionment should be based on each state's population. But others say the ruling could spill over into Congressional redistricting down the line.

Religious nonprofits and Obamacare 

In the Hobby Lobby case last year, the justices allowed for-profit companies to seek religious exemptions from Obamacare’s coverage requirements. But now, several religious-affiliated schools and institutions –including the Little Sisters of the Poor nursing home in Denver – have filed lawsuits, too.

They argue that the administration’s process for allowing religious nonprofits to opt out of the contraception requirement requires them to violate their religious beliefs. The Supreme Court has eight petitions – including one that just arrived from the federal government — on this issue.

Some prominent judges are effectively begging the Supreme Court to jump in by lamenting the refusal of some courts to protect the largely-Catholic religious entities from sanctions for failing to fill out paperwork that triggers the contraception exemption but also sets in motion coverage from others.

“How ironic that this most consequential claim of religious free exercise, with literally millions of dollars in fines and immortal souls on the line, should be denied when nearly every other individual religious freedom claim has been upheld by this court,” 5th Circuit Judge Edith Jones complained in a dissent last week. “How tragic to see the humiliation of sincere religious practitioners, which, coming from the federal government and its courts, implicitly denigrates the orthodoxy to which their lives bear testament. And both ironic and tragic is the harm to the Judeo-Christian heritage whose practitioners brought religious toleration to full fruition in this nation. Undermine this heritage, as our founders knew, and the props of morality and civic virtue will be destroyed.”

The justices haven’t signaled which of the challenges, if any, they’ll consider but are expected to do so in the coming weeks.

Testing when abortion clinic regulations go too far

Two of the latest tactics in the abortion wars could wind up before the justices this term: requirements that doctors performing abortions have admitting privileges at nearby hospitals and that abortion clinics meet standards for hospitals or surgical centers.

An appeals court has upheld most such limits in Texas, but in June the Supreme Court voted, 5-4, to block key parts of the law until the justices decide whether to weigh in. Petitions to take up that case and a similar law in Mississippi are already pending at the Supreme Court.

Supporters of the laws say they are designed to protect women's health, but abortion providers and abortion rights advocates say the laws would force many clinics to close and penalize poor women who could not afford travel to distant clinics.

A similar Wisconsin law led to combative oral arguments in front of the 7th Circuit last week. Judge Richard Posner suggested the law was a transparent effort to prevent abortions, not aid women.

“Governor Walker, before he withdrew from the presidential competition, said he thought abortion should be forbidden even if the mother dies as a result, " Judge Richard Posner said to a lawyer for the state, in remarks first reported by the Milwaukee Journal-Sentinel. "Is that kind of official Wisconsin policy?"

“That perhaps is Governor Walker’s personal view, but it’s not a state policy,” Assistant Attorney General Brian Keenan replied. Keenan insisted requiring doctors to have admitting privileges was a reasonable precaution to aid women.

“The admitting privileges would benefit the continuity of care for the woman when she goes to that hospital,” he said.

Posner said the fact that the law was intended to kick in one business day after it was passed made clear the authors' intentions. “That statute can’t be justified in terms of women’s health,” the judge said.