The Washington Post

Political gridlock puts Supreme Court at center of controversial social issues

The Supreme Court on Monday resumes its role as the uneasy arbiter of America’s intractable social conflicts with a new docket that features battles over affirmative action, campaign finance and abortion, among other divisive issues.

No single case may thrust the court into the national spotlight as did its cliffhanger ruling on the constitutionality of President Obama’s signature health-care law in 2012 or June’s victories for advocates of same-sex marriage.

But taken together, the upcoming term “is actually deeper in important cases than either of the last two terms,” Irv Gornstein, executive director of the Georgetown University Law Center’s Supreme Court Institute, said at a recent forum.

The workload in the ninth term of Chief Justice John G. Roberts Jr.’s tenure also sounds familiar. “It is the year of the sequel,” said Kannon Shanmugam, a Washington lawyer who frequently argues before the court.

The court will again examine the use of race in university admissions and will almost certainly revisit the health-care law, called the Affordable Care Act, this time to rule on its requirement that insurance plans offered by private employers cover contraceptives. The court majority that decided the landmark Citizens United campaign finance case will also have a new opportunity to further loosen the restrictions on funding political campaigns.

The Supreme Court is set to hear Shaun McCutcheon v. Federal Election Commission, a case that could roll back campaign finance restrictions to those before the Watergate era. (Thomas LeGro/The Washington Post)

And the term will offer a chance for the conservative majority that has moved the court incrementally to the right to pick up the pace.

At least a half-dozen court precedents are being challenged, including rulings regarding abortion protesters and the role of religion in public life.

The Supreme Court’s pivotal role in the nation’s political conversation is not particularly welcomed by the justices, even the one whose decision is crucial to almost every important ruling. Justice Anthony M. Kennedy said last week that it is political gridlock that has thrust the court into such a key role.

“Any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy,” Kennedy said at a speech at the University of Pennsylvania. “I just don’t think that a democracy is responsible if it doesn’t have a political, rational, respectful discourse so it can solve these problems before they come to the court.”

That said, Kennedy — a Reagan nominee who most often sides with conservatives but is usually the defector when liberals claim a victory at the court — was the only justice in the majority in both of last term’s major decisions striking down acts of Congress.

He sided with the court’s four most consistent conservatives in throwing out a key provision of the Voting Rights Act, first passed in 1965 to protect minority voters and renewed by Congress in 2006, and he sided with the four liberals to declare unconstitutional the 1996 Defense of Marriage Act, which denied federal recognition of same-sex marriages and denied benefits to gay couples wed in the 13 states, plus the District of Columbia, where same-sex marriages are legal.

Those rulings were a reminder that each Supreme Court term is a snapshot, shaped by the issues that come before it.

Four of the five Supreme Court Justices that attended the 61st annual Red Mass at the Cathedral of St. Matthew the Apostle, Clarence Thomas, Chief Justice John G. Roberts, Jr., Stephen G. Breyer and Elena Kagan chat as they exit the church on Oct. 6 in Washington, D.C. (Katherine Frey/The Washington Post)

A year ago, some conservatives outraged by Roberts’s vote finding Obama’s health-care law constitutional openly wondered whether they had been duped by President George W. Bush’s nominee. Roberts dispelled any fears that he had gone “wobbly” by sharply criticizing Congress’s actions in reauthorizing the Voting Rights Act and objecting to the decision in the DOMA case. He filed a dissent in the latter, attempting to limit the reach of the ruling.

Roberts is always the most watched justice for clues about the direction of the court. In general, he favors incremental change rather than overruling precedents, a strategy that doesn’t always sit well with his more impatient conservative colleagues. “Faux judicial modesty” was how Justice Antonin Scalia described the strategy in a previous campaign finance case.

Most experts believe it is unlikely that Roberts will want the court to accept all the invitations from conservative challengers to overhaul the court’s jurisprudence. He “doesn’t want the headline at the end of the year to be about the Roberts’s term of overturning precedents,” said Martin Lederman, a law professor at Georgetown.

Scalia, 77, does not have the same patience as the 58-year-old Roberts. Although there is little possibility that Scalia would consider retiring with President Obama in office, he is the court’s longest-serving justice. He undertook an active schedule this summer, lecturing abroad and across the country.

He, too, has complained about the role that justices take on as “moral philosophers.” At a recent forum, he was asked how he might improve the Constitution. “Term limits?” he wondered. He meant for Congress, not the court.

But perhaps the most closely watched of the nine will be Justice Ruth Bader Ginsburg, the court’s oldest member at age 80. She, too, had an active summer and gave numerous media interviews — mostly to bat down suggestions from liberals that she leave the court soon so that Obama may nominate her replacement.

If anything, Ginsburg seems to have drawn energy as the leader of the court’s liberal wing and has sharply criticized conservatives for the Voting Rights Act decision. She has been careful not to set a time when she might retire, saying only that she will continue in the job while she feels she can do it.

She suggested in an interview with The Washington Post that the left should relax. “I think it’s going to be another Democratic president,” she said.

Here are some of the cases on the court’s docket, although others will be added throughout the term:

●ABORTION: After a break of several years, the court will turn its attention to what may be the nation’s most divisive social issue.

In McCullen v. Coakley, the court will review a Massachusetts law putting restrictions on entering a public sidewalk within 35 feet of a reproductive health-care facility. Abortion opponents say the law violates their First Amendment rights to “counsel” those entering the facility.

A lower court upheld the law, citing the Supreme Court’s 2000 ruling in Hill v. Colorado that approved a law keeping protesters eight feet from a health-care facility.

The court also has tentatively said it will consider an Oklahoma law that abortion proponents say would effectively ban drug-induced abortions, which are performed early in pregnancies. In Cline v. Oklahoma Coalition for Reproductive Justice, the court has asked the Oklahoma Supreme Court to clarify exactly what the law forbids.

●CAMPAIGN FINANCE: A conservative majority highly skeptical of campaign finance restrictions is being asked to find unconstitutional a limit on the total amount one individual can spend on federal candidates and political parties. Some challengers hope the court will use the opportunity to overrule Buckley v. Valeo, which said Congress can put limits on contributions. The case is McCutcheon v. Federal Election Commission, and will be argued Tuesday.

●AFFIRMATIVE ACTION: Last term, the court left in place a university’s ability to consider race in a limited way in university admissions. In Schuette v. Coalition to Defend Affirmative Action, the court will consider whether a state may pass a constitutional amendment banning racial considerations.

A lower court said that such a ban violates Supreme Court precedent that governments may not create more burdensome political obstacles for minorities seeking favorable government actions.

●LEGISLATIVE PRAYER: A lower court found that Greece, N.Y.’s practice of inviting local clergy to open town meetings with prayer constituted an endorsement of one particular religion because such a large majority of prayers were offered by Christians. In Town of Greece v. Galloway, the town contends that it does not discriminate against who may offer prayer, and relies on Supreme Court precedent that nonsectarian legislative prayers are allowed.

●RECESS APPOINTMENTS: In a fight between Obama and Congress over recess appointments, the court will be stepping into new territory, addressing what the Constitution means when it says the president may “fill up all vacancies that may happen during the Recess of the Senate.”

Presidents throughout history have used the power to put administration officials and judges into office while the Senate was on break and unable to confirm the nominees. Obama went further by making appointments when the Senate was away, but holding pro forma sessions.

The court in NLRB v. Canning will be considering a lower court ruling that would drastically reduce a president’s ability to make any such appointments.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.

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