Where Do We Go from Here?
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Where Do We Go from Here?

October 2013

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The last two U.S. Supreme Court terms have produced an unusual number of high-profile cases affecting every American. The issues have included the constitutionality of the Affordable Care Act, the right to marriage equality for gays and lesbians, the future of affirmative action, and the continuing legality of key provisions of the Voting Rights Act of 1965.

The high court's upcoming term, which begins Monday, October 7, includes yet another potent docket. With about half that docket already in place, the Court has signaled that it stands ready to tackle more major cases involving abortion rights, affirmative action, campaign finance, freedom of speech, delicate church-state questions, and the vitally important separation of powers doctrine. Here's what's in the lineup so far:

- Abortion rights. With many state legislatures recently adopting new limits on abortions, the Court has opted to review a case dealing with a state's ability to restrict the use of prescription drugs to induce an abortion. (Cline v. Oklahoma Coalition for Reproductive Justice, 292 P.3d 27 (Okla. 2012), cert. granted, 133 S.Ct. 2887 (2013).) At issue is an Oklahoma statute that prohibits the use of certain drugs to induce abortions unless they are administered according to the specific protocols provided in the FDA-approved labels. Because doctors have come to use the drugs differently than this (at lower dosages, for example), the challengers contend the law will greatly (and unconstitutionally) restrict drug-induced abortions.

The lower courts struck down the Oklahoma law because it posed an impermissible undue burden on a woman's right to have an abortion. The Supreme Court granted certiorari but in an unusual move said that it would hold the case, asking the Oklahoma Supreme Court to clarify exactly what the law prohibits with regard to the use of these drugs. Stay tuned.

- Affirmative action. In 1996 California voters passed Proposition 209 (Cal. Const., Art. 1, § 31), which prohibits the government from discriminating or giving preference based on race or gender in contracting, education, or employment. In 2006 voters of Michigan passed a similar initiative, commonly referred to as Proposal 2. (See Mich. Const., art. 1, § 26.)

In an en banc decision, the Sixth Circuit held that Proposal 2 violated the equal protection clause because it impermissibly restructured the political process along racial lines. As the court noted, any group can seek beneficial treatment from the Regents of the University of Michigan in the admissions process - except for racial minorities, who could only obtain constitutionally permissible racial preferences by amending the state constitution. The Sixth Circuit said that this discrepancy amounted to a racial classification that failed to satisfy strict scrutiny. (Schuette v. Coalition to Defend Affirmative Action, 701 F.3d 466 (6th Cir. 2012) (en banc), cert. granted, 133 S.Ct. 1633 (2013).) The issue in Schuette is not whether an affirmative action program is constitutional, but whether a state can prohibit race-based affirmative action in its constitution while allowing other preference programs to exist free of such restrictions.

- Campaign finance. For a generation, the Court has generally held that although restrictions on campaign contributions are constitutional, restrictions on independent expenditures in support of candidates are unconstitutional. (See Buckley v. Valeo, 424 U.S. 1 (1976).) Three years ago in the celebrated Citizens United case, the Court declared unconstitutional restrictions on independent expenditures by corporations in federal election campaigns. (Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010).) This term, the Court will consider a constitutional challenge to campaign contribution limits. (McCutcheon v. Fed. Election Comm'n, 893 F. Supp. 2d 133 (D.D.C. 2012), cert. granted, 133 S.Ct. 1242 (2013).)

By way of background, the Bipartisan Campaign Finance Reform Act (Pub. L No. 107-155, also known as McCain-Feingold) imposes an aggregate limit on campaign contributions: An individual contributor cannot give more than a total of $46,200 to candidates or their authorized agents, or more than $70,800 to anyone else in the political arena per two-year election cycle. Within the $70,800 limit, a person cannot contribute more than $30,800 per calendar year to a national party committee. In McCutcheon, the Court will decide whether these limits violate the First Amendment, and in doing so it may reconsider the distinction between contributions and expenditures that has been at the heart of the Court's approach to campaign finance regulation since Buckley was decided 37 years ago.

- Freedom of speech. In 2000, the Court upheld a Colorado law that prohibits approaching without consent within 8 feet of a person who is within 100 feet of a health care facility, for purposes of oral protest, education, or counseling. (Hill v. Colorado, 529 U.S. 277 (2000).) Earlier this year, the First Circuit upheld a Massachusetts law which makes it a crime for speakers other than clinic "employees or agents ... acting within the scope of their employment" to "enter or remain on a public way or sidewalk" within 35 feet of an entrance, exit, or driveway of a "reproductive health care facility." (McCullen v. Coakley, 708 F.3d 1 (1st Cir. 2013), cert. granted, 133 S.Ct. 2857 (2013).) The issue before the Supreme Court in McCullen is whether the Massachusetts law is unconstitutional under Hill and, if so, whether Hill should be overruled.

In another case (which I will argue), the Court will consider whether a federal law allowing commanders of military bases to bar individuals from access (see 18 U.S.C. § 1382) can be applied to a public street outside of the military base which is on federal land, but over which an easement for public use has been granted. (United States v. Apel, 676 F.3d 1202 (9th Cir. 2012), cert. granted, 133 S.Ct. 2767 (2013).) If the statute does apply, the question is whether the military's restriction of speech on a public road violates the First Amendment.

- Separation of church and state. In Marsh v. Chambers (463 U.S. 783 (1983)), the Supreme Court held that prayers before legislative sessions do not violate the Establishment Clause of the First Amendment, but the Court stressed that these must be nonsectarian prayers. Since 1999 the town board of Greece, in upstate New York, has opened its monthly meeting with a prayer. Except for a few months in 2008, these prayers have always been explicitly Christian in their content. The Court will consider whether that practice violates the First Amendment. (Town of Greece v. Galloway, 681 F.3d 20 (2d Cir. 2012), cert. granted, 133 S.Ct. 2388 (2013).)

- Separation of powers. In one of the highest-profile cases of the new term, the Court will consider the ability of the president to make appointments during a congressional recess. (NLRB v. Noel Canning, 705 F.3d 490 (2012), cert. granted, 133 S.Ct. 2861 (2013).) The case concerns three recess appointments that President Barack Obama made to the National Labor Relations Board between December 17, 2011, and January 3, 2012, to ensure that the agency had a quorum to do business. During that time the Senate went into an intrasession recess, but it continued to meet in pro forma sessions every three days.

The District of Columbia Circuit Court declared the appointments unconstitutional, holding that the president can only make recess appointments during intersession recesses, and only for vacancies that occur during those recesses. In addition to reviewing that ruling, the Supreme Court has asked for briefing and argument over what constitutes a recess.

If this brief cross-section of the current docket is any indication, the country is in for another term loaded with important cases that touch on vital issues.

Erwin Chemerinsky is the dean and a professor at the UC Irvine School of Law. Students Katherine Riley and Jamie Tremmel (both 3L) provided excellent research assistance.

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