WASHINGTON (MEDIA GENERAL) – Lawsuits take years and meticulous planning to reach the U.S. Supreme Court and the outcome of five major pending cases changed instantaneously with the death of Justice Antonin Scalia.
The cases involve some of today’s most fiercely fought legal battles, including; abortion, affirmative action, immigration and voting rights.
In the first in a series of articles we’re calling “Courtside with Chance Seales,” SCOTUS experts peel back the court’s protective layers to share insights on the opaque institution’s inner-workings and idiosyncrasies.
In this installment, here’s what’s ahead for five of this term’s pending blockbuster cases. First, here’s a look at the panel of experts we consulted.
Chris Edelson, JD – Author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, American University assistant professor of government, Harvard Law grad.
Jeffrey Jost, JD – Georgetown adjunct law professor, author of Supreme Court Yearbook, 25-year SCOTUS journalist, and pens the column ‘Jost on Justice.’
Karen O’Connor, Ph.D., JD – Coauthor of American Government: Roots and Reform, founder of the Women & Politics Institute at American University, and distinguished professor of political science.
Issue: Whether Texas lawmakers placed an undue burden on women by restricting who can perform abortions and the facilities where they can be conducted.
Lower Court: Sided with Texas legislators, saying they did not impose unconstitutional restrictions.
Jost: A 4-4 tie would leave that decision in place, would leave the Texas abortion law on the books, but would not create a national precedent.
Edelson: Other circuit courts might reach different results, which would create a strange patchwork of decisions. If you live in New York, you might have different access to abortion than in Texas, which was how the law stood before Roe v. Wade.
Issue: Whether the University of Texas at Austin’s admissions policy, which takes race into account, is constitutional.
Lower Court: The Fifth Circuit Court of Appeals has twice upheld UT’s admissions policy.
Note: Justice Kagan recused herself due to previous work on the case as U.S. solicitor general, leaving seven justices to decide the case. Justice Kennedy will likely be the swing vote.
O’Connor: The court has been fraught with these cases and they keep taking them, and they’re unclear and then a state legislature goes in and enacts something else that’s slightly different, and then that ends up before the court. I honestly thought the issue of affirmative action was going to be dead about 15 years ago, and, instead, it’s like daffodils in the spring. It just pops up every term.
Edelson: What is clear is that the court wants to see this end at some point, and that’s what they’ve signaled.
Jost: Justice Kennedy has been skeptical of race-conscious admissions policies throughout his tenure on the Supreme Court … Most court watchers expect Justice Kennedy to take only a small step, not a big step … We’ll see how far the court wants to go in the Texas case, and really the question is how far Justice Kennedy wants to go.
Issue: Texas and 25 other states oppose President Barack Obama’s executive action temporarily shielding an estimated 3 million illegal immigrants from deportation. States say Obama overstepped his executive authority and would unlawfully force states to spend money on services for non-citizens (e.g., issuing driver’s licenses).
Lower Court: Federal appeals judges ruled that the president’s deferred action program unlawful, siding with 26 state leaders. SCOTUS justices originally broadened the case to comment on executive overreach, but a 4-4 tie would curtail that venture.
Edelson: That was upheld by the Fifth Circuit Court of Appeals. That means President Obama’s action cannot go into effect. If there’s a 4-4 decision, the lower court decisions would stay in place, and that would mean that the action is blocked [nationwide].
O’Connor: Some of those [executive actions] have been a little bit far reaching from what we normally expected was within the authority of the president, but the only way that that can be [permanently] stopped is by somebody challenging his authority via the Supreme Court.
Jost: In effect, that Supreme Court was going to put the president on trial, [asking] ‘Are you doing your job? We want to hear the arguments on that. A 4-4 tie would leave that decision on the books, and would leave the president’s policy a dead letter.
Issue: The “One Person, One Vote” policy, which includes non-citizens and prisoners, is utilized to count Texas residents and apportion political districts based on headcount. Rural voters contend that the inclusion of children, felons and non-citizens gives too much power to urban areas and dilutes votes in rural regions.
Lower Court: “One Person One Vote” was previously upheld by a panel of federal judges.
Jost: A three-judge court ruled in favor of the generally accepted definition that one person, one vote means everybody, including non-citizens, including prisoners who can’t vote, including children. The Texas case only affects the apportionment of seats in state legislatures, because the Constitution seems clear that one person, one vote for apportioning seats in Congress in the House of Representatives means counting everybody.
Issue: If public employee unions, like those representing teachers, can legally force non-members to contribute monetary dues.
Lower Court: An appellate court supported California’s state laws allowing public unions to demand mandatory dues, regardless of membership status.
O’Connor: Not much is going to happen there. We’re going to have to wait until we get an appointee.
Jost: It was quite clear that the liberal justices were not prepared to overturn the precedent that favors public employee unions, whereas the conservative justices were all quite interested in discarding that precedent [in a 4-4 tie]. Public employee unions can require non-union members to pay for the cost that the union incurs in representing them in collective bargaining and grievance procedures.
Follow Chance Seales on Twitter: @ChanceSeales