Month in Review: December at the U.S. Supreme Court

 

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The United States Supreme Court already heard oral argument on about 30 cases this term, which began in October.  That’s over 1/3 of the cases they took for review.

When the justices return from their short holiday break they will take up some of the term’s most anticipated cases, including cases involving the Affordable Care Act’s contraception mandate and restrictions on abortion.  Of special interest for New Jersey, oral argument on Heffernan v. Paterson is scheduled for Tuesday, January 19, 2016.

Oral Arguments Before the Court

In its short December session, the Court considered eight cases. Two of the most noteworthy involved voting rights. Evenwel v. Abbottcenters on the equality of voting power. The specific issue in the redistricting case is whether the “one-person, one-vote” principle under the Equal Protection Clause allows States to use total population, and does not require States to use voter population, when apportioning state legislative districts.

The issues in Harris v. Arizona Independent Redistricting Commission are also important. The first issue asks the justices to determine the acceptable level of partisanship in the redistricting process. The second question before the Court is whether the desire to obtain favorable preclearance review by the Justice Department allows the creation of legislative districts that deviate from the one-person, one-vote principle, particularly in light of the Court’s decision in Shelby County v. Holder, 133 S.Ct. 2612 (2013), which removed the preclearance requirement.

The Court also considered the latest chapter in the controversial affirmative action suit of Abigail Fisher. The issues this time around still revolve around the constitutionality of the University of Texas’s admissions policies, particularly its use of racial preferences. If the Court elects to make a bold ruling, the case could mark the end of affirmative action on college campuses around the country.

During oral arguments, Justice Antonin Scalia turned heads when he used questionable language to address the qualifications of minority candidates. “There are ­­ those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, … a slower track school where they do well,” he stated. With the exception of Justice Scalia’s commentary, the justices gave few clues on how they might rule in one of the most significant cases of the term. With Justice Elena Kagan recused from the case, it may be difficult to achieve a majority ruling.

Opinions Issued by the Justices

The Court has also issued several opinions. In DIRECTV, Inc. v. Imburgia, the Court that the California Court of Appeal erred in finding an arbitration clause required the application of state law despite its preemption by the Federal Arbitration Act (FAA). As Justice Stephen Breyer explained, “The Federal Arbitration Act is a law of the United States . . . Consequently, the judges of every state must follow it.” The key business law decision reflects the Roberts Court’s preference for upholding arbitration provisions in consumer contracts.

In OBB Personenverkehr AG v. Sachs, the Court unanimously ruled that the Foreign Sovereign Immunities Act, which shields foreign states and their instrumentalities from suit in U.S. courts, barred a California women’s injury suit. The justices specifically held that the Act’s commercial activity exception, which abrogates sovereign immunity for suits “based upon a commercial activity carried on in the United States by [a] foreign state,” did not apply because “the conduct constituting the gravamen of Sachs’s suit plainly occurred abroad.”

Key Cases on Deck

The justices return to the bench on January 11, 2016, when they will consider Friedrichs v. California Teachers Association. In what is being billed as the term’s most significant First Amendment case, the justices will determine whether Abood v. Detroit Board of Education is still good law. In Abood, the Court previously held that the First Amendment requires that public employees be allowed to opt out of financing a union’s political and legislative activities; however, it further held that unions should be allowed to impose a fee for the labor activities that benefit all workers, such as collective bargaining. The current case will determine the continued viability of so-called agency fees, and perhaps the future of public employee unions.

In January, the Court will also hear oral arguments in Heffernan v. City of Paterson, which hails from New Jersey. The specific question before the justices in the First Amendment case is whether the First Amendment bars the government from demoting a public employee based on a supervisor’s perception that the employee supports a political candidate. The Third Circuit Court of Appeals previously ruled in the negative.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.