The Supremes are Back in Town

The justices of the U.S. Supreme Court sit for their official photograph on October 8

The American media concentrates mainly on the stresses and strains of the executive and legislative branches of the US government, often seen as a contest where the President and Congress knock heads. However, the influence of the Supreme Court should never be ignored. The Court is as much a political body as the other branches. Justices are nominated by the President and their appointment is approved by the Senate. To assume the Court is the weakest branch would be foolhardy, yet the Court is often referred to as “the least dangerous branch.”

The Court begins its new term next week. This is an election year so its decisions will be carefully scrutinised, especially as the docket seems designed to remind Americans about the importance of the country’s highest court during a presidential contest. The nine justices seem ready to confront issues that enliven the political agenda: the legality of racial preferences to encourage diversity; how far government should go to accommodate religious liberty whilst restricting a woman’s right to abortion, and a reconsideration of the death penalty.

This term, the affirmative-action remedies employed by the University of Texas to increase diversity at the flagship campus in Austin has been returned to the Court for review.  The University’s admission policy has been challenged because race was a factor in college admissions. Evidently, such action may be inconsistent with another Court ruling where it was ruled that race should have an appropriate but limited role in admissions.    

Obamacare is before the Court yet again. The Republicans are like dogs with a bone. This time, they are challenging the contraceptives coverage mandate of the Affordable Care Act. In the 2014 ruling in Burwell v Hobby Lobby, the Court told the government that the mandate impinged on the religious freedoms of some employers. And, because the court long ago decided that states may impose some restrictions on abortion, the question in the case will be how far may the states can go before it becomes an “undue burden” on a woman’s right? The court has provided little guidance on what that term means.

The death penalty is shaping up to be a big issue. There are six capital-punishment cases on the docket. The Court is set to hear arguments over the constitutionality of capital sentences in Florida, Georgia, Kansas and Pennsylvania. The focus on execution issues follows a 5-4 ruling last term involving a sedative used for lethal injections. The split exposed a growing rift among the Justices over the death penalty. There seem to be at least two Justices who believe executions violate the Constitution.

Until 2012, the Court was thought to have a conservative bias but decisions by the Chief Justice Roberts and Justice Kennedy have caused observers to reconsider. The last court term ended in June, 2015, on a high note for liberals, with a landmark decision finding a constitutional right for same-sex couples to marry. The term saw other closely contested and important decisions where the liberal minority on the Court attracted one conservative justice or another. Liberal causes often prevailed. It will be fascinating to discover whether the trend will continue

Irv Gornstein, head of the Supreme Court Institute at Georgetown Law Centre, is reported to have said: “I would expect a return to the norm, in which the right side of the Court [i.e. the conservative wing] wins a majority, but by no means all, of the big cases. The question for this term is, how big will the big wins be?”

The pivotal justice will probably be Justice Kennedy. Kennedy is a conservative but he does not always share the zeal for change that his colleagues on the right pursue. “I have the greatest respect for him, but I long ago gave up trying to predict him,” conservative U.S. Circuit Judge J. Harvie Wilkinson III said recently. “The best thing you can do is issue one of those weather forecasts that says sunny with considerable clouds and a chance of rain.”

The position of Chief Justice Roberts is never predictable. In 2012, he wrote the opinion turning down a constitutional challenge to the Affordable Care Act. In June, 2015, Justices Roberts and Kennedy were part of a 6-to-3 decision that rejected a reading of the law that would have drastically cut back the number of Americans who could take advantage of Obamacare. However, Roberts has voted to restrict abortion rights, overturn campaign finance restrictions, recognize a Second Amendment right for individual gun ownership, and severely cut back the reach of the Voting Rights Act.  Incidentally, he is a consistent supporter of the death penalty.

The Court currently has five justices nominated by Republican presidents. The others were nominated by Democratic presidents. Three members of the Court are nearing the end of their terms of office. Justices Ginsburg, Scalia and Kennedy will soon be 80.  Also, Justice Breyer is in his late 70s. Many predict that the President elected next year will have the chance to nominate as many as four new justices.

I cannot predict or even guess what the Court will do this term but two things are certain. In arguably the most political city on the planet, the Supreme Court is not above politics and its influence on important election issues will be felt. Furthermore, whichever political party wins the White House and the Senate next year will influence the Court for a generation.