Hope, as they say, springs eternal. Lately, those of us who believe in the rule of law and an objective interpretation of the Constitution according to the original understanding of those who framed it (and the people’s representatives who ratified it) have been dealt some cruel blows. The two most prominent are the Supreme Court’s repeated upholding of the Patient Protection and Affordable Care Act (PPACA, or, as it more commonly known, ObamaCare), which clearly upends the basic principle of a federal government restricted to its enumerated powers, and the Court’s imposition of gay marriage on every state, in violation of the Tenth Amendment, whereby the Constitution recognizes that the primacy for domestic law remains with the states. Yet there is a rhythm to Supreme Court decisionmaking, and sometimes the Court swings back and appears to remember that ours is supposed to be a government of laws, not of men.
The Court’s current term, which will end in late June 2016, offers an extraordinary opportunity for a reaffirmation of sensible jurisprudence, and, quite possibly, five blockbuster cases for Court-watchers to anticipate. It is just possible that Chief Justice John Roberts and company will do the right thing and remind us that the Court’s job is to preserve, not to amend, the Constitution, that the judiciary is not a legislature but is supposed to be the guardian of our liberties, and that the duty of the justices is to protect us in the enjoyment of our constitutional rights. Without getting too technical, here is what’s at stake this term.
In Fisher v. Texas, the Court has a chance to stop the pernicious academic practice of the use of affirmative action to relax admission requirements for certain favored ethnic or racial groups. We are beginning to understand—as we were shown, for example, in the notable work of Richard Sander and Stuart Taylor, Jr.—that affirmative action hurts those it is supposedly designed to help by placing them in environments where they are academically unqualified to compete, thus producing frustration and despair. Much current campus activism railing against “white privilege” and other purported ills may simply be a symptom of the realization that an academic environment has been created for students where they are doomed to fail, not because of discrimination against them, but as a result of wrongheaded discrimination in their favor. The Court has previously flirted with coming out and saying that ours should and must be a colorblind Constitution, as the Framers of the 14th Amendment’s Equal Protection clause surely contemplated. Chief Justice Roberts has made clear that this is his view, as have Justices Clarence Thomas and Antonin Scalia. Justice Samuel Alito is probably similarly inclined, and if Justice Anthony Kennedy, who has seemed to favor a colorblind approach in the past, sticks to that principle, Fisher may all but kill affirmative action as we have known it.
In Whole Woman’s Health v. Cole, the Supreme Court revisits, for the first time in eight years, the highly contentious issue of abortion. In Roe v. Wade (1973), the Supreme Court, by an astonishing 7-2 majority, manufactured a “fundamental” constitutional right out of “penumbras” and “emanations” from the First, Fourth, Fifth, and Ninth Amendments, allowing women to terminate pregnancies before fetal viability. This feat of judicial legerdemain is unequaled in jurisprudence and was said to be a part of the “right to privacy” somehow inherent in the Constitution. This same right eventually led to gay marriage, first in Massachusetts and, last term, in the Supreme Court itself. As time went on, however, it became increasingly difficult to support the rationale of Roe, and subsequent opinions showed that support for the purported right to an abortion had dropped to 6-3, then down to 5-4.
In light of several Republican appointees to the Court since 1973, some Court watchers were predicting that Roe would be overturned. Nevertheless, in Planned Parenthood v. Casey (1992), the Court preserved the right manufactured in Roe, yet hinted that states were permitted to regulate or even discourage abortion, so long as they did not impose an “undue burden” on that judicially manufactured right. Whole Woman’s Health presents the question whether the state of Texas, in requiring abortionists to have admitting privileges at a hospital within 30 miles of their clinics, and in requiring those clinics to meet the same safety standards as those required for other ambulatory surgical facilities, imposes an “undue burden” on women seeking an abortion.
Since no one actually knows what the “undue burden” standard means—it was spun out of whole cloth by Justices Kennedy, O’Connor, and Souter in their plurality opinion in Casey—the outcome of the case is anyone’s guess. Because the national mood is somewhat less in favor of unrestricted abortion (given the abuses reported in cases such as that of the notorious Dr. Kermit Gosnell in Philadelphia), it is likely the Court will give Texas more leeway to protect women’s health by enforcing higher standards for those performing abortions. Still, abortion-rights advocates are insisting that to uphold Texas’s standards would close 75 percent of the abortion clinics in the state, which in their minds qualifies as an “undue burden.” Constitutionally, the Court should overturn Roe and leave the abortion question entirely to the discretion of the states. This is too much to hope for, given Justice Kennedy’s participation in Planned Parenthood v. Casey, but Whole Woman’s Health offers him the opportunity to reaffirm that when the Casey Court said states could actively discourage abortion in order to protect incipient human life, it meant it. That would at least be a move in the right direction.
Zubik v. Burwell involves both abortion and the PPACA. The case poses the question whether religious organizations, such as the Little Sisters of the Poor, a Catholic charity ministering to the needs of the indigent, must follow the dictates of the bureaucrats administering ObamaCare who require that all employers furnish their employees with healthcare plans that cover birth control, including abortifacients. The Catholic charity argues that the federal Religious Freedom Restoration Act (1993) guarantees the Little Sisters relief from implementing this provision. The Obama administration, engaging in a sort of bait-and-switch, has claimed that no one’s rights are infringed, because insurers (not the Little Sisters per se) are required to provide the birth control. The Little Sisters argue that this is pure form over substance, and that they are being made to betray their deepest beliefs in the sanctity of every life. They clearly demonstrate these beliefs every day they remain on the job. There are now six Catholics on the Court (Roberts, Scalia, Kennedy, Thomas, Alito, and Sonia Sotomayor—Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan are Jewish), and it will be interesting to see if the Catholic justices have sympathy for the nuns. Zubik offers the Court a chance to make a firm statement in favor of religious freedom and against an overweening bureaucracy, and given the recent Hobby Lobby case, which protected the religious rights of private employers in a similar situation, it is likely the Little Sisters will prevail.
A fourth important case before the Court this term is Friedrichs v. California Teachers Association, which will decide whether public-employee unions are violating the First Amendment. For many years the law has permitted unions to extract, even from nonmembers, an amount of money equivalent to union dues, on the theory that collective bargaining benefits all public workers. The Court may or may not revisit that issue, but it will focus on a related problem: the fact that public-employee unions use some of these extracted funds to engage in political activity, which tends disproportionately to benefit Democratic candidates and causes. It seems reasonable to assume that union members, and, a fortiori, nonmembers, might not want their money to be used for political advocacy for causes in which they do not believe, but how this might be prevented has not been settled. Right now, nonmembers may engage in a burdensome process to opt out, so to speak, of being required to make political contributions, but the Court is being asked to rule that their First Amendment right to be free of compelled speech entitles them not to make such contributions unless they affirmatively opt in. A ruling against union coercion could seriously and adversely affect Democrats who depend on public-employee contributions, and might further diminish the overall power of unions, including teachers’ unions, in our society.
The fifth blockbuster—and, in some ways, the most important—case of the term is one that the Obama administration has quite recently asked the Court to take up, and the odds are good that the Court will comply and issue a decision this June. United States v. Texas would determine the propriety of the President’s executive order allowing five million undocumented immigrants—aliens who would have been covered by the Obama administration’s proposed DREAM Act—to stay in the country, conferring, in effect, a favorable legal status on them and shielding them from deportation. Seeking to confer this status without legislation amounts to an extraordinary violation of the separation of powers, and President Obama’s refusal to act against these undocumented aliens might well be viewed as a blatant violation of his constitutionally mandated duty to “take care” that the laws be faithfully executed. The President maintains that declining to remove these illegal immigrants is simply a manifestation of “prosecutorial discretion,” but that doctrine has long been understood to apply only to decisions regarding individual miscreants, not whole classes of wrongdoers. The Court has an opportunity to affirm the Fifth Circuit’s ruling striking down the President’s action, and could do so either by boldly reaffirming the Constitution’s separation of powers and definition of presidential responsibilities, or on the more prosaic basis that the President’s action does not conform to the requirements of the Administrative Procedure Act, which requires a period for review and comment that the President’s men have neglected to offer. Either way, a decision on this case is likely to signal the Court’s belated realization that arbitrary power cannot be tolerated.
The Constitution is our ultimate protection against the usurpation of our liberties, and, in our current political situation, the Court may be the only effective guarantor of the Constitution. The American people may at some point wish to reassert their sovereignty and amend the Constitution in a manner that might better safeguard it from abuse by all three branches of the government, but until that day we can only hope that the Court will return to a more appropriate pattern of decisions. By the end of June, we’ll know if that has happened.