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Monday, September 30, 2013

High-Profile Issues Fill Docket For New Supreme Court Term

An American flag flies in front of the Supreme Court in Washington. (Alex Brandon/AP)

An American flag flies in front of the Supreme Court in Washington. (Alex Brandon/AP)

The nine justices of the U.S. Supreme Court head back to work today.

The docket for the new term includes cases involving abortion, separation of church and state and campaign finance.

The justices will begin hearing arguments a week from today.




It's HERE AND NOW, and the government might soon be shutting down, but the new session of the Supreme Court is informally starting up today. The nine justices holding a private conference to consider a huge list of cases they might consider. Next Monday, the traditional first Monday in October, the new Supreme Court term formally begins, and the docket includes several topics that sound familiar: affirmative action, campaign finance reform, the separation of church and state.

Let's get a primer from Emily Bazelon, our Supreme Court watcher and legal affairs editor for Slate, also a teacher at Yale's Law School. She joins us from their studios. Emily, welcome back.

EMILY BAZELON: Thanks so much.

YOUNG: And let's start with affirmative action. The court issued a ruling this summer. Very simply put, it was seen as sidestepping the core question of whether racial diversity justifies preferential treatment. Remind us what that ruling was about, and how does that case compare to the new one, which comes from Michigan?

BAZELON: That case from last summer involved the University of Texas and its affirmative action program. And essentially the court punted. The court made it a little bit harder for schools to defend race-based preferences but not impossible. And so this time around we're having a whole different picture.

YOUNG: How so? Tell us about the Michigan case.

BAZELON: This case is sort of the inverse of last year. It's not about whether schools and states can continue affirmative action, it's about whether the state of Michigan can bar all the schools in the state from granting any sort of race-based preferences in admissions.

YOUNG: And so tell us more. Who's bringing the case?

BAZELON: The case is being brought by someone who didn't get in to school in Michigan and felt that this was an impermissible move for the state to make. In other words, to single out race as the only category that you have a special constitutional amendment for, disallowing schools from using race, that that in itself is a violation of the Constitution's guarantee of equal protection.

YOUNG: Well, do you think between the two cases we could get a real precedent-setting ruling?

BAZELON: I think the Michigan case, it's very likely that the Supreme Court will uphold Michigan's law and say that it's OK for states to ban the use of race-based preferences. There are actually 10 states that already do that. I think it's unlikely, though, that the Supreme Court will step outside of the facts of this case and rule that states may not use affirmative action, if that makes sense. It's about whether...

YOUNG: Well, it sort of doesn't. Make the distinction, yeah. Make the distinction.

BAZELON: OK, so the usual question, the one we had last year, was can states keep doing affirmative action if they want to do it. In this case, the state of Michigan wants to not do it. They want schools to stop allowing any kind of use of race in admissions. And so that's why it's sort of the opposite of last year. It's can states order schools not to use affirmative action, as opposed to can schools that want to keep having affirmative action continue to do so.

YOUNG: OK (unintelligible) complicated. By the way, we'll have a link to the descriptions of all these cases at Let's move to the campaign finance case. It's called McCutcheon vs. Federal Election Commission. It has to do with limits on campaign contributions. Now, we know this is a court that also handled the Citizens United case, which opened the way for corporations and unions and others to have the same freedom of speech through donations that individuals had.

But the court put some limits on those donations. So how do these two cases dovetail, or what do they have to do with each other?

BAZELON: Well, you're right. Citizens United opened up a lot of spending by corporations and unions to what are called independent groups, so not the candidates themselves. This new case is about whether you can contribute unlimited amounts right directly into the candidate's bank account.

And at the moment, Congress has set limits. It's over a two-year congressional cycle about $48,000 for candidates and then another 74,000 and change for the PACs and the parties. And the question is: Is that constitutional, or can individuals give as much as they want directly to candidates and PACs and parties?

YOUNG: And in this case the individual that's questioning all this is Shaun McCutcheon. He's an Alabama businessman. He's saying he should have the right to have an aggregate as high as he wants of donations.

BAZELON: Exactly, and the Republican National Committee has come in to say we want all his money and Congress overstepped when it put these limits on what people can contribute. The big question here is whether the court will start to be just as skeptical about limits on contributions as it has been about spending.

In the past it always said you can't tell candidates they can't spend because that would violate the First Amendment. In that context money is speech. But you can tell people that they can't contribute as much as they want to. So the question is: Will that distinction hold up? And if it doesn't, we'll have a huge additional wave of funding directly into the bank accounts of candidates.

YOUNG: OK, moving on to separation of church and state, this is a case called Town of Greece vs. Galloway. This is a town in Upstate New York. Several local residents have challenged the town's practice of opening their monthly meetings with prayer. We feel like this is familiar. What's the precedent here?

BAZELON: You're right. Thirty years ago the court upheld prayer before government meetings in the state of Nebraska. And they said, look, this is long-standing history and tradition, and we're basically going to carve out an exception here to the rule that says you have to separate church and state.

So this little town in New York has been having town hall meetings that start with a prayer ever since. However, the appeals court said they could no longer continue to do so because essentially almost all of the meetings have opened with a Christian prayer, and so the appeals court said that appears to endorse Christianity, and that then fails what has been the constitutional test for disallowing religious expression in government settings.

YOUNG: Okay. Well, and there are two cases before the court involving abortion, one having to do with federal Food and Drug Administration protocol for medical abortions, the other with a Massachusetts law that prevents protestors from entering a 35-foot bubble outside clinic entrances, they have to stay 35 feet back. Your sense of these two cases and, you know, how they might intersect with the court's overall ruling on abortion.

BAZELON: The case about medical abortion and whether clinics have to follow the FDA protocol, which the clinics say are out of date, is a perfect example of whether the court is going to choose to chip away at the right to abortion.

So we don't have Roe vs. Wade kind of directly within the court's sights, but if the court says - makes it much harder for clinics to step away from the FDA protocol, then it will be buying into this notion that states that have passed laws against abortion or restricting abortion in the name of women's health are on a correct path.

And eventually that could lead if not to overturning Roe, certainly many more moves in that direction. So it's an incremental step that's at issue here but still an important one.

YOUNG: Well, and it's interesting that there is another case before the court, given that we are in talks with Syria. This involves chemical weapons. It's a case called Bond vs. U.S. It's going to be argued in November. It questions whether Congress - let me see if I can get this right - whether Congress constitutionally is allowed to implement a treaty. That pretty much simplifies it, but tell us about that case.

BAZELON: Well, the facts of this case are kind of awesome. A woman named Carol Anne Bond had a husband who had an affair, and she allegedly sought revenge by sprinkling toxic chemicals around his car and the mailbox of the woman he was having the affair with. And so then he was prosecuted under - she was prosecuted, I'm sorry, under a federal law that implements the chemical weapons treaty.

YOUNG: And are they - and is someone saying that there should - the Congress shouldn't be allowed to do that?

BAZELON: Exactly.

YOUNG: Because...

BAZELON: That seems kind of crazy to you, but the question is: Does Congress have the power to enact legislation implementing this international treaty?

YOUNG: Oh, all because of a nasty breakup. Emily Bazelon, legal affairs editor for Slate. We're going to watch that one closely. And we'll have again all the court's considerations at Emily, thanks so much.

BAZELON: Thanks for having me.

YOUNG: Back in a minute, HERE AND NOW. Transcript provided by NPR, Copyright NPR.

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Robin Young and Jeremy Hobson host Here & Now, a live two-hour production of NPR and WBUR Boston.

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