When the rest of the government shuts down for a blizzard, the U.S. Supreme Court soldiers on. And so it is that this week, with the rest of the government shut down in a political deep freeze, the high court, being deemed essential, is open for business.
It is, after all, not just any week for the justices. It is the opening of a new term.
The docket this year has nothing quite as riveting as last year's same-sex marriage cases, or the challenge to President Obama's health care overhaul from the term before. But once again, the court is facing hot-button social issues and questions of presidential and congressional power.
Moreover, in a half-dozen cases the court's current conservative majority could well overturn long-established legal precedents.
"It can really knock ... the few legs out of prior, more liberal precedents," says Supreme Court advocate Tom Goldstein, "across an array of incredibly important issues like abortion and religion and civil rights law."
Precedent is, in many ways, the sacred touchstone of the law. To be sure, many famous decisions have overturned precedent. Notable examples are the landmark Brown v. Board of Education decision in 1954, declaring school segregation unconstitutional, and the Citizens United decision in 2010, striking down a century-old legal understanding that banned corporate spending in candidate elections. These, however, are the exceptions. Judges generally treat precedent with reverence.
As Chief Justice John Roberts said during his confirmation hearings, "It is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough that you may think the prior decision was wrongly decided."
Roberts also said a justice must consider numerous factors in deciding whether to overrule a prior decision. Some of these focus on the precedent itself — whether it has been workable, whether it has been relied upon, and whether it has been eroded by subsequent developments. But the court is also keenly aware that if it overturns precedent too frequently, it risks undermining its own institutional legitimacy.
With those considerations in mind, it is notable that the court has accepted for review so many cases that offer the opportunity for reversing precedent.
At the top of the list is a case to be argued this week testing aggregate limits on campaign contributions. In the 1976 case of Buckley v. Valeo, in the aftermath of the Watergate scandal, the court upheld an earlier version of these contribution limits. In Buckley, the court drew a line between contributions to candidates and parties, on the one hand, and expenditures by independent groups, on the other.
Since 1976, the court has repeatedly upheld the constitutionality of limits on contributions, stating that unlimited contributions create the potential for corruption or the appearance of corruption. Challengers to campaign finance restrictions are now seeking to obliterate that line, and there is ample reason to believe that the conservative majority may agree.
While there is no direct challenge to Roe v. Wade, there are cases that would allow the court to chip away at the right to abortion. In addition, the court is revisiting its 13-year-old decision allowing buffer zones to protect abortion clinic patients from close contact with protesters.
The court will also hear cases that involve religious questions. In Town of Greece v. Galloway, it will consider the constitutionality of prayers given by private clergy at city council meetings. The court is also likely to take on a case in which several for-profit companies are challenging the Affordable Care Act's contraceptive coverage requirement. The companies allege that the requirement infringes on the their religious rights.
After last term's shrug on affirmative action, it's back — in a way. This term, the court is not being asked to decide whether affirmative action policies are permissible in higher education. Instead, in a case from Michigan, the question is whether voters can use a referendum to ban affirmative action in higher education.
The Fair Housing Act faces a challenge in another civil rights case. The federal appeals courts have, for decades, uniformly approved the use of statistics to prove that minorities are being treated differently. Because proving discriminatory intent is difficult, statistics have been used to enforce civil rights statutes by proving that a particular action has a discriminatory effect on minorities. In a Fair Housing Act case before the court, the challengers are contending that statistics are not enough to prove discrimination.
Separation Of Powers
This term also brings two important cases testing the limits of executive and congressional power. One asks what, if any, limits there are on Congress' power to pass legislation implementing treaties.
The other case, NLRB v. Noel Canning, examines what constitutes a congressional recess. The Constitution allows the president to make recess appointments when the Senate is not available to vote on nominees' confirmations. At issue is whether Republicans can use 30-second "pro forma" sessions to prevent such appointments, and whether President Obama can circumvent those pro forma sessions by making appointments during a three-day recess.
Although it hinges on a detail, the case has enormous ramifications in the current political climate. The president has made "the most aggressive use of the recess appointment power imaginable," says Paul Clement, a former solicitor general under President George W. Bush. But even Clement concedes that presidents of both parties have made hundreds of recess appointments since the founding of the republic. Under the lower court ruling in this case, nearly all of those would have been unconstitutional.
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It's MORNING EDITION from NPR News. I'm Renee Montagne.
STEVE INSKEEP, HOST:
And I'm Steve Inskeep. Good morning. It's the first Monday in October which means it is time for the opening of a new term of the United States Supreme Court. That term begins despite the government shutdown. The court is deemed to be essential. NPR legal affairs correspondent Nina Totenberg has this preview of a term that will be dominated by hot button social issues and important tests of presidential and congressional powers.
NINA TOTENBERG, BYLINE: There is nothing on the docket this year that's quite as riveting as the big bonanza same-sex marriage cases of last term, or the challenge to President Obama's health care overhaul. But in a half dozen cases, the current conservative court majority may well overturn long established legal precedents affecting major social issues. As Supreme Court advocate and scotusblog founder Tom Goldstein puts it...
TOM GOLDSTEIN: It can really knock one of the few legs out of prior, more liberal precedent across an array of incredibly important issues like abortion, and religion, and civil rights law.
TOTENBERG: Yes, prior rulings can be overruled, and have been, in cases ranging from the landmark 1954 decision declaring school segregation unconstitutional, to the 2010 case striking down a century old understanding that banned corporate spending in candidate elections. But judges generally treat precedent with some reverence. Here, for example, is Chief Justice John Roberts at his confirmation hearing.
(SOUNDBITE OF CONFIRMATION HEARING)
TOTENBERG: In considering whether to overrule a prior decision, Roberts said, a justice must consider other factors: maintaining the legitimacy of the court as a consistent intuition, whether the precedent has been workable, whether people have relied on it, and whether the precedent has been eroded by subsequent developments.
Considering all that, it's worth noting that the court has this year chosen a half dozen cases that offer the conservative justices the chance to overrule liberal precedents. At the top of the list is a case to be argued later this week that tests aggregate limits on campaign contributions.
In 1976, in the aftermath of the Watergate scandal, the court upheld an earlier version of these contribution limits, drawing a line between contributions to candidates and parties, on the one hand, and spending by independent groups on the other. In the decades since then the court has repeatedly said that direct limits on contributions to candidates are constitutional because unlimited contributions create the potential for corruption and the appearance of corruption.
Those opposed to limits on campaign contributions are now seeking to obliterate that line, and there is ample reason to believe that the conservative majority may agree. On the question of abortion, there is no direct challenge to Roe versus Wade, but there are cases that could allow the court to chip away at the right to abortion. In addition, the court is revisiting its 13-year-old decision that allows buffer zones to limit protesters from close contact with patients entering abortion clinics.
The court will hear cases on religious questions as well. One will test whether prayers may be offered by private clergy at city council meetings. There's also a case in which several for-profit companies are challenging the Affordable Care Act on its requirement that insurance policies include contraceptive coverage for women.
On civil rights, affirmative action is back - in a way. The issue is not whether there can be affirmative action in higher education. Instead, the question is whether voters can ban affirmative action in higher education by referendum. Another civil rights case involves the Fair Housing Act. It tests the use of statistics to prove that minorities are treated differently.
Because proving discriminatory intent is very difficult, statistics have been used to enforce a variety of laws by proving that a particular action has a discriminatory effect on minorities. Two cases provide important tests of executive and congressional power. One asks what, if any limits, there are on congressional power to pass legislation implementing treaties.
The other case tests what constitutes a congressional recess. The Constitution allows the president to make recess appointments when the Senate is not in session to vote on confirmation. At issue is whether Republicans can use 30 second pro forma sessions to prevent such appointments, and whether President Obama can circumvent those pro forma sessions by making appointments during a three day recess.
Although it turns on a detail, that case has enormous ramifications in the current political climate, since both parties have made hundreds of recess appointments since the founding of the republic.
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.