It’s all over but the writing. Last Wednesday, the Supreme Court held its final day of scheduled oral arguments in its current term. Barring extraordinary events, the justices have now heard arguments in every case that they need to resolve before they begin their summer vacation at the end of June.
Three months ago, this term was setting up to be a bloodbath for liberals. Public sector unions were going to be stabbed in the gut. Affirmative action was on life support. The Court’s conservative majority signaled that it was prepared to drastically roll back the federal government’s power to fight climate change.
Then that majority ceased to be a majority.
Justice Antonin Scalia’s death last February means that, with one very notable exception, conservatives no longer have the votes to establish sweeping legal precedents that cause the law to lurch rightward. At the same time, however, an evenly divided Court does not mean that we have entered a golden age of judicial liberalism. Conservatives may still have a great deal to celebrate when this term is finished.
Affirmative Action (Fisher v. University of Texas)
If you had polled legal experts in January of 2006, when Justice Samuel Alito was confirmed to the Supreme Court, on whether affirmative action in university admissions programs would survive another decade, it’s unlikely that very many of them would have said “yes.” Less than three years earlier, in Grutter v. Bollinger, Justice Sandra Day O’Connor cast the key fifth vote to uphold such a program at the University of Michigan Law School. Justice Anthony Kennedy, the closest thing this Supreme Court has to a swing vote, was in dissent. And Alito replaced O’Connor with a staunch conservative.
And yet, here we are, more than ten years after Grutter, and the Court has yet to drop the ax on affirmative action.
To be sure, supporters of race-conscious admissions programs have had more than their share of scares in the last decade. In 2012, the Supreme Court heard Fisher v. University of Texas for the first time, and a majority of the Court appeared eager to strike down Texas’ affirmative action program, which closely resembles the plan that was upheld in Grutter. Indeed, Justice Kennedy reportedly started writing a majority opinion ruling against Texas, only to get cold feet and agree instead to send the case back down to the conservative United States Court of Appeals for the Fifth Circuit to take another look.
After the Fifth Circuit once again upheld Texas’s program, Fisher is once again before the justices this term. At oral argument, moreover, Kennedy once again seemed unsure whether he should cast the fifth vote to kill affirmative action. Though Kennedy still appeared quite skeptical of Texas’ admissions program, he once again flirted with sending the case down to a lower court for more proceedings.
An additional wrinkle in this case is that Justice Elena Kagan, an Obama appointee, is recused. Thus, only seven justices will decide the case, and Kennedy plus the three remaining liberals will constitute a majority.
It is unclear, however, which way a seven justice court cuts. On the one hand, Kennedy may decide that, with the Court’s membership in flux, this is his last chance to kill affirmative action so he better take it now. On the other hand, however, it would be highly irregular for the Court to hand down a major, precedent-setting opinion on such a contentious issue when one member is recused and the membership of the Court as a whole is in flux. A year from now, the Court could very easily have all nine seats filled, and it’s unclear that the new majority would feel bound by a decision striking Texas’ affirmative action program if the four conservatives took advantage of Kagan’s recusal in this way.
For this reason, Kennedy or another member of the conservative bloc may decide that it is better to stay their hand in Fisher then it is to potentially undermine the Court’s credibility.
Birth Control (Zubik v. Burwell)
The most unpredictable case currently pending before the justices will most likely be Zubik v. Burwell, a sequel to 2014’s Burwell v. Hobby Lobby, which concerns how much control employers who object to birth control on religious grounds have over their employees’ access to birth control.
Although Hobby Lobby held that the government could not require religious objectors to cover birth control in their own health plans, the conservative justices floated a compromise in the same opinion and strongly hinted that they would uphold that compromise if it came before them. It wasn’t long, however, before the Court started to signal that the language appearing to endorse this compromise in Hobby Lobby could not be trusted.
Under this compromise, which is now before the justices in Zubik, religious objectors may exempt themselves from their obligation to cover birth control by filling out a two-page form. In most cases, the insurance company that covers their employees will then work directly with the impacted women to make sure that their contraceptive care is paid for.
At oral arguments in Zubik, however, all four of the Court’s remaining conservatives appeared likely to side with religious objectors who also object to filling out the form. That raised the possibility for considerable chaos, as a 4–4 decision would mean that women in states presided over by a court of appeals that endorsed the fill-out-the-form alternative would have more rights than women in jurisdictions that backed the religious objectors. In some cases, an employer might even be subject to conflicting court orders from different jurisdictions.
Perhaps that’s why, the week after oral argument, the justices took the unusual step of floating yet another compromise that would slightly tweak the current fill-out-the-form rules. Yet this new compromise, as both the government and the objectors explain in their briefs, raises new problems for employers who “self-insure” — that is, those who pay out health claims directly to their employees rather than relying on an insurance pool to do so.
Zubik is, in other words, a huge mess. If Scalia were still alive, it is likely that he would provide the fifth vote to give the objectors what they want. Without Scalia, however, the eight justice Court appears to be searching for a way to afford the confusion that would result from a 4–4 decision, but it is far from clear that they will be able to do so.
Abortion (Whole Woman’s Health v. Hellerstedt)
The Court’s decision to hear Whole Woman’s Health v. Hellerstedt marked the most perilous moment for a woman’s right to choose an abortion in nearly a quarter century. This case concerns a pair of restrictions on Texas abortion clinics — one requires doctors to acquire an often difficult to obtain credential in order to perform abortions, the other requires clinics to comply with a long list of architectural and other requirements, some of which are quite expensive — that can best be described as sham health laws. That is, while both provisions appear, at least on the surface, to be attempts to protect women’s health, the provisions actually do virtually nothing to advance that goal, while simultaneously causing most of Texas’ abortion clinics to shut down.
Thus, the question in Whole Woman’s Health boils down to whether a state may enact a law that drastically reduces access to abortion, so long as that law is dressed up as a health regulation.
To prevail, Team Choice must flip Justice Anthony Kennedy, a conservative who typically votes to uphold abortion restrictions. At oral argument, Kennedy (as well as some other members of the Court) appeared bothered by a procedural issue and considered sending at least part of the case back down to a lower court for more trial proceedings. At the same time, however, he also hinted that, if he reaches the merits, he will vote to strike down Texas’ law. At one point, Kennedy even suggested that Texas’ argument leads to the conclusion that their law creates an “undue burden” on the right to obtain an abortion — a conclusion that would be fatal to the law under existing precedents.
Should the Court split 4–4, however, that would be terrible news for women seeking abortions in Texas — at least until the vacancy on the Court is filled. The Texas law was largely upheld by the conservative Fifth Circuit in an opinion that appeared designed to reduce Roe to a virtual nullity. That opinion will stand if the justices are unable to resolve this case.
Immigration (United States v. Texas)
The Obama administration faces a similar problem in United States v. Texas, where an especially conservative Fifth Circuit panel upheld a trial judge’s order halting programs that would allow nearly 5 million undocumented immigrants to temporarily live in and work in the United States. Because the Fifth Circuit sided against these programs, the administration needs to win 5 votes outright in the Supreme Court in order to reverse that decision.
Texas is an odd case, because the states challenging the immigration programs largely concede that much of what the administration seeks to do is legal. They concede, for example, that the executive branch may deem a class of immigrants low priorities for deportation. They concede that the administration may focus its limited resources for immigration enforcement on immigrants deemed a higher priority. And they even concede that the administration could distribute cards to immigrants deemed a low priority so that these individuals can know that they are not in line to be deported.
Indeed, at oral argument, much of the case against the administration’s programs seemed to turn on the fact that a memorandum describing some of the administration’s policies uses the words “lawfully present” — prompting Justice Elena Kagan to press Texas’ attorney on why the administration couldn’t move forward if it simply decided not to use those words. Though Chief Justice John Roberts and Justice Anthony Kennedy initially appeared skeptical that the challenged programs are lawful, both asked questions suggesting that they may have changed they mind after listening to Kagan take apart Texas’ arguments.
In any event, this was one of the last cases heard by the Court this term, so the justices have had relatively little time to figure out if they can reach an accord on this case. Because a 4–4 split is likely to be announced sooner than a decision upholding the programs, the administration and immigrants who hope to benefit from its programs should hope that the justices do not hand down their decision until shortly before the Court begins its summer break.