For the past three months, the Supreme Court has been under fire from conservatives—members of Congress, op-ed writers, television pundits, even Republican presidential candidates—who saw the Court’s last term as a turn to the left.
Even if it was, legal experts say, it won’t last: The Court’s next term, which begins Monday, is already filling up with cases that fall well within Chief Justice John Roberts’s conservative comfort zone.
“This term, I would expect a return to the norm, in which the right side of the Court wins a majority but by no means all of the big cases,” Irv Gornstein, the executive director of Georgetown University’s Supreme Court Institute, said in a preview of the upcoming term. “The big question for this term, I think, is: How big will the wins be?”
The Court will hear a fresh challenge to the use of affirmative action in college admissions—an area where Roberts has already nudged the Court incrementally to the right. Abigail Fisher, who took her challenge to the University of Texas’s admissions policy all the way to the Supreme Court in 2013, is back again this year, seeking a broader ruling.
And many supporters of affirmative action fear she has a strong ally in Roberts.
"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts wrote in a 2007 ruling.
And the justices will also hear a fresh challenge to public-sector unions, another area where conservatives are on a winning streak. In 2014, a 5-4 decision narrowed public-sector unions’ ability to collect dues from certain independent contractors. This year, the Court will consider whether to scrap compulsory dues altogether—a move that would diminish the power of an already-embattled political force in the middle of a presidential election.
“Scott Walker has stepped out of the race; the Supreme Court may step in,” Georgetown University law professor David Cole said during a recent preview of the Court’s upcoming term.
Two of the Court’s highest-profile cases, however, are among the most difficult to predict: a likely challenge to state abortion restrictions, and a potentially groundbreaking case on legislative redistricting.
The Court hasn’t heard an abortion-rights case since 2007, when Chief Justice Roberts was just two years into his tenure. Now, nearly a decade later, the issue appears to be on a direct path back to the high Court.
Legal experts agree almost unanimously that the justices will take up a lawsuit challenging the latest trend in state restrictions on abortion—laws that require abortion providers to have admitting privileges at nearby hospitals and that impose new regulations on the clinics themselves.
A group of abortion providers in Texas has asked the Supreme Court to review the state’s abortion restrictions. About half of the state’s 40 clinics have closed since the rules were passed in 2013, and critics say all but 10 clinics could ultimately be forced to close their doors.
The 5th Circuit Court of Appeals upheld most of Texas’s restrictions this summer. But the Supreme Court stepped in to temporarily block the ruling—as well as the enforcement of Texas’s restrictions. And the justices’ intervention was widely seen as a sign that they expect to settle the debate themselves.
“A Redistricting Revolution”
A pair of cases already on the Supreme Court’s docket could reshape the way states draw their legislative districts—probably in Republicans’ favor, legal experts say.
The cases concern the meaning of “one person, one vote.” Most states draw their voting districts so that each one contains roughly the same number of people. But the challengers in Evenwel v. Abbott say districts should instead contain equal numbers of voters.
Such a change would likely dilute the power of dense, urban districts, which often contain a lot of people who aren’t eligible to vote—and which tend to lean Democratic.
“If the appellants win in Evenwel, it would amount to a redistricting revolution,” said Nicholas Stephanopoulos, a University of Chicago law professor who specializes in election law. “Essentially, all states have been equalizing people, rather than voters, for the past 50 years. So the implication of a victory for the appellants would be that just about every current district plan in America is unconstitutional and would have to be redrawn.”
But many legal experts don’t expect the Court to go that far, especially if the justices are worried that such a ruling could appear partisan.
“I think there are reasons for the Court, in terms of its legitimacy, to tread softly in this area,” Cole said.
This article is from the archive of our partner National Journal.
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