Supreme Court Kicks Off New Term As Hot-Button Issues Await

Abortion, affirmative action and prayer to highlight "year of the sequel."

October 3, 2013, 10:43 AM
PHOTO: Supreme Court To Hear Variety Of Issues
The Supreme Court will begin a term that touches on a broad variety of hot-button issues starting Oct. 7, 2013.
Getty Images/OJO Images RF

Oct. 3, 2013— -- The Supreme Court will take the bench today to begin a term that touches on a broad variety of hot-button issues such as campaign finance, affirmative action, religion, presidential power and abortion restrictions.

One theme to watch: the unusually high number of cases in which the court is being asked to reconsider prior precedent. "How the court treats pre-existing precedent; that is really going to be the theme of the term in many ways," says Kannon Shanmugam, a lawyer at Williams and Connolly who frequently argues before the court. "This is the year of the sequel."

Campaign Finance

The justices will hear McCutcheon v. Federal Election Committee Tuesday, the most important campaign finance case since the 2010 Citizens United ruling that struck down independent spending limits by corporations and unions. The new case concerns overall contribution limits.

Shaun McCutcheon, an Alabama businessman, was an active participant in the 2012 election cycle. He contributed a total of $33,088 to congressional races across the nation. But federal law blocked him from giving money to more candidates.

Joined by the Republican National Committee, McCutcheon is fighting aggregate contribution limits set by federal law. Such limits, he argues, impose an unconstitutional burden on core First Amendment activity.

He says an individual should not be restricted in how many candidates, parties or PACs he or she can contribute to within base limits. Campaign finance reform advocates, wary after losing Citizens United, fear the court could next overturn precedent regarding contribution limits. They say that without aggregate limits, some individuals might try to circumvent the base limits and pour money into the system.

Affirmative Action

Supporters of affirmative action held their breath last term for nearly nine months while the Supreme Court deliberated over an admissions plan at the University of Texas that took race into consideration. When the decision finally came down, the court had dodged a broad ruling, and the program survived.

Supreme Ct. Sends Affirmative Action Back to Appellate Judges

The court is hearing another case this tern regarding affirmative action, but in a different context. At issue in Schuette v. Coalition to Defend Affirmative Action is Proposal 2, a ballot initiative passed in Michigan in 2006 that bans affirmative action.

In court briefs, Michigan Attorney General Bill Schuette says the ballot initiative was passed because even though the Supreme Court has upheld race-conscious admissions policies in narrow circumstances, "the people of Michigan concluded that not having affirmative action in higher education was the best policy for the state."

"Nothing in the Constitution bars the people of Michigan from making that choice," he writes.

But critics of the proposal argue it violates the Constitution. "It effectively rigged the political system against advocates of race-conscious proposals that are otherwise constitutionally permissible," Joshua I. Civin of the NAACP Legal Defense and Educational Fund said.

A lower court invalidated the proposal, saying it placed a special burden on minorities within the governmental process. The lower court said, "Because less onerous avenues to effect political change remain open to those advocating consideration of nonracial factors in admissions decision, Michigan cannot force those advocating for consideration of racial factors to traverse a more arduous road without violating the Fourteenth Amendment."

California passed a similar initiative in 1996.


The court is poised once again to explore the boundary between church and state. Susan Galloway and Linda Stephens - two residents of Greece, N.Y. - have filed suit against the town, arguing that the practice whereby townspeople are chosen to open monthly town board meetings in prayer violates the Establishment Clause of the Constitution. With the exception of only a few non-Christian prayer givers such as a Wiccan Priestess, the vast majority of prayers have been Christian.

The court upheld the use of prayer in a case 34 years ago concerning the Nebraska legislature. The court said the prayer was, "deeply embedded in the history and tradition of this country."

But lawyers for Galloway and Stephens argue that their case is different from the Nebraska case. A legislative hearing, they say, is often populated by observers, whereas a town meeting is filled with participants who are often compelled to attend. A lower court ruled against the town of Greece, holding that legislative prayer itself was not unconstitutional, but that the totality of the circumstances surrounding the town's practice amounted to an unconstitutional violation of the Establishment Clause.

Thomas Hungar, a lawyer for the town of Greece, is appealing the decision to the Supreme Court. "Between the shoals of prohibited establishment and improper hostility lies a significant channel in which the government can permissibly respect the religious nature of our people and accommodate the public service to their spiritual needs," Hungar writes in briefs.

The Obama administration has filed a brief in support of the town, arguing that there is no evidence that officials attempted to denigrate any faith. Solicitor General Donald Verrilli Jr. says it is not the role of courts to parse the theological content of a particular prayer. Legal experts say the court might seek a chance to clarify church-state doctrines.

"At the heart of this case," Notre Dame Law School professor Richard Garnett says, "is whether the court should stick with a relatively bright-line rule that treats legislative prayers as presumptively permissible, given their long use in our country, or whether the court should move to more of an all-things-considered inquiry that treats such prayers like Christmas displays and the like."

Presidential Power

The court will hear a crucial case concerning presidential power that could all boil down to the interpretation of the word "the". At issue is the Recess Appointments Clause of the Constitution: "the President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate . . ."

The case stems from a dispute surrounding President Obama's controversial appointment of board members to the National Labor Relations Board (NLRB), an independent federal agency that enforces federal labor law. The board consists of five members appointed by the president and needs three members to constitute a quorum.

The president was frustrated with Senate inaction in January 2012 and decided to invoke his recess appointment power during what is called a "pro forma" session of Congress. Obama appointed three members of the NLRB. In a "pro forma session," Senators gavel in and out of session in a matter of seconds but no official business is conducted.

White House spokesman Dan Pfeiffer criticized the "pro forma" sessions at the time and wrote in a White House blog that "gimmicks do not override the president's constitutional authority to make appointments to keep the government running."

Critics of the president's appointments reacted swiftly. Noel Canning, a soft drink bottling company, objected to an adverse ruling from the NLRB and sued calling the ruling was invalid because the appointments to the board were invalid. By the time the case reached the U.S. Court of Appeals for the District of Columbia, most people expected the court to rule on whether the president could invoke his recess appointment power during a "pro forma" sessions.

But the Court of Appeals issued a much broader ruling. "This is a case that started off as a pretty important case but has become a remarkable case," David A. Strauss of the Law School of the University of Chicago says.

The lower court held that recess appointments could only be made during "the" official recess between congressional sessions. The court defined "the" recess as the one that occurs between the end of one session of Congress and the beginning of the next. The court said recess appointments could not occur in so called "intra-sessions" of Congress, those that take place during the course of a session. Furthermore, the court ruled that appointments could only be made for vacancies that had arisen within the recess. The complication with the ruling is that presidents from both parties have long interpreted the recess clause to apply to both inter and intra-sessions recesses.


One abortion case before the court, McCullen v. Coakley, concerns so called "buffer zones" around abortion clinics. At issue is a Massachusetts law that makes it a crime to "enter or remain on a public way or sidewalk" within 35 feet of an entrance, exit or driveway of an abortion clinic. The law exempts clinic employees who are "acting within the scope of their employment."

Eleanor McCullen, a 76-year-old grandmother, is one of the challengers to the law. McCullen's lawyers argue that she would like to be in contact with the women entering the clinic in a "compassionate and nonconfrontational way," but the law restricts her speech. Her lawyers argue that the Massachusetts law does not pass constitutional muster, in part, because only the speech of abortion protestors is restricted. "It is neither neutral nor permissible for the State to prefer clinic agents' use of public sidewalks over petitioners' wish to enter the same area to extend peaceful offers of alternative help," the lawyers write.

Massachusetts Attorney General Martha Coakley defends the law, saying it was passed after patients complained of access problems at clinics. Coakley says the law is necessary to protect public safety and that clinic employees are forbidden from any advocacy inside the zone.

The Supreme Court upheld a Colorado statute in 2000 that allowed an 8-foot buffer zone. That case was decided by a different composition of justices, but Justice Kennedy wrote a stinging dissent. "You can think of this as an abortion case and a free speech case," says John P. Elwood, a lawyer at Vinson and Elkins who is a former clerk to Justice Anthony Kennedy.

"Kennedy will think of this as a free speech case and he tends to vote in favor of the First Amendment."

There is another abortion case - one that gets closer to the core of abortion rights - that has been granted by the court, but it has been delayed for procedural reasons. It is unclear whether the case will be heard this term.

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