Preview: Supreme Court 2013-2014 Term

The Supreme Court began its current term on October 7, 2013; on the docket are cases dealing with issues ranging from affirmative action to free speech to separation of church and state. While this term lacks a blockbuster case such as the constitutionality of the Affordable Care Act two years ago, or the same-sex marriage cases last year, this term contains plenty of cases that will have a large impact on the American legal and political landscape.

McCutcheon v. FEC

First up is a case considered by some to be the second coming of Citizens United, the landmark 2010 ruling that reduced limitations on corporate political spending. McCutcheon has the potential to once again shake up the campaign finance regulatory structure, calling into question the cyclical limits on aggregate campaign contributions. Under current law, individuals may only contribute a total of $48,600 to political candidates every two-year cycle. Shaun McCutcheon, an Alabama businessman with backing from the Republican National Committee, sued the Federal Election Committee (FEC) claiming this regulation to be unconstitutional.

Opponents of the regulation claim the limits are arbitrary and violate an individual’s first amendment right to free expression; proponents believe striking down the aggregate limits would pave the way for wealthy donors to obtain an outsized voice in the political process. While this case does have the potential to strike down a significant piece of the regulatory framework, many believe that even if the case is decided against the FEC, democratic process is already tainted by the Citizens United decision that allows wealthy donors to contribute large sums of money.

Town of Greece v. Galloway

The next case gives the court an opportunity to rule on the proper place of religion in public life. In Town of Greece v. Galloway, the justices will consider whether the opening of legislative sessions with prayer violates the establishment clause of the first amendment. The last time the court ruled on this was the landmark 1983 case Marsh v. Chambers in which it held that a state supporting a chaplain opening legislative sessions was constitutional, for, in the words of Chief Justice Warren Burger, the practice was “simply a tolerable acknowledgement of beliefs widely held among people of this country.”

At the presentation of oral arguments on November 6, many justices were skeptical that this practice is not a state endorsement of religion. However, many court observers doubt the court will hand down a sweeping ruling holding all cases of legislative prayer to be in violation of the establishment clause. The court, especially the conservative justices, are unlikely to make the bold step of directly overturning a precedent that would have such far-reaching effects. Legislatures all around the country, including the United States Congress, employ chaplains to deliver prayers at the opening of sessions.

The court, yet again, visits the use of racial consideration in university admissions. Last year, in Fischer v. Texas, the court upheld affirmative action as a tool to promote diversity, though it raised the standard of the acceptable use of that tool. In Schuette v. Coalition, the court considers whether an amendment to the Michigan state constitution banning affirmative action violates the U.S. Constitution. The respondents in the case argue that a ban on affirmative action places an undue burden on individuals seeking to have race considered as one of many factors in university admissions; the plaintiffs argue both that race-based preferences are unnecessary and that overturning this ban would encroach on the right of people to govern themselves.

While the conservative justices seemed skeptical about the arguments put forth seeking to overturn the ban, there is a significant obstacle in upholding the ban; in a similar ruling in 1982 the court struck down a voter initiative banning school busing plans on the grounds it violated the equal protection clause of the fourteenth amendment. Even with this obstacle, it is expected the court will rule in favor of Michigan.

NLRB v. Canning

In the next case, the court will consider the scope of executive power and settle a dispute over the separation of powers. This case calls into question several recess appointments made by President Obama. Senate Republicans claims that they were made when the Senate was in session, while President Obama claims that the body was in recess. At the heart of the case lies the question of who has the power to decide when the Senate is in session.

At stake is a potential rebuke of executive power and broader implications for the recess appointment powers of the president. While recent changes to the filibuster have made recess appointments unnecessary in the short term, this case could make it much more difficult for President Obama to fill vacancies in the executive branch should the Republicans gain back the upper house in the 2014 elections.

McCullen v. Coakley

Before the court is a question of how far first amendment protections extend. Pro-life activists often engage in “sidewalk counseling” outside of reproductive health clinics and attempt to dissuade women from seeking abortions. Lawmakers in Massachusetts found this form of protest going too far. In order to give patients a clear path to the clinics, thirty-five foot buffer zones where “sidewalk counseling” is banned were established. Protestors sued, claiming that the law is in violation of their constitutional right to free speech. Defenders of the law claim these protests are a form of obstruction, putting an undue burden on distressed patients seeking care, and therefore not subject to first amendment protection.

The case will be the next in a line of case that help define the understanding of the first amendment and further refine what actions can be considered “speech”. Court observers predict that the court will rule that while the Massachusetts buffer zone extends too far, such zones are not inherently unconstitutional.

Harris, Bond, and Sebelius

There are several other cases that political and legal observes will be keeping a close eye on. In Harris v. Quinn, the court has the potential to bring the practical demise of public sector unions. In Bond v. United States, the court will test whether constitutional structural limits of federal power constrain congressional authority to implement international treaties. Finally, in Sebelius v. Hobby Lobby Stores, the court will consider whether the contraceptive mandate of the Affordable Care Act infringes upon religious liberty.

In the first eight terms of Chief Justice Robert’s tenure, legal observers have noted a continual conservative push on case law. This term should be no different. In areas ranging from campaign finance to affirmative action, the court again has the opportunity to use its conservative majority to adjust the law. However, this court has been wary of making broad constitutional leaps or directly overturning precedents. As the court hands down these major cases, look for a series of conservative rulings, but don’t expect any monumental changes.