The 2014-2015 Term and the Future of the U.S. Supreme Court

Artemus WardDept. of Political Science

Northern Illinois Universityaeward@niu.edu

• The justices handed down more liberal decisions than at any time since the Warren Court (1954-1969). Why?• It was not necessarily due to the

justices becoming more liberal, so much as it was a function of the cases they chose to decide.• Specifically, conservatives have been

pushing issues to the Court that seek to undo long-established liberal policies. The Court’s moderate conservatives are, more often than not, unwilling to undo them.

The Most Liberal Term since the Warren Court

• Take Justice Anthony Kennedy, for example. He is the Court’s “median justice” or “swing vote” in most of its 5-4 decisions.• In previous terms, he leaned right in such cases

about 2/3 of the time. This time around, he voted with the liberals 8 times and with the conservatives 5.• Chief Justice John Roberts has also sided with the

liberals on occasion, also demonstrating an unwillingness to go as far as his conservative colleagues (Antonin Scalia, Clarence Thomas, Samuel Alito) would like.• Are Kennedy and Roberts becoming more liberal?

Obergefell v. Hodges (2015)

Obergefell v. Hodges (2015)• The Court ruled that the Constitution guarantees a right to same-sex marriage.• Justice Kennedy voted with the liberals to make up the 5-4 majority. As the senior justice in the

coalition, he assigned himself the majority opinion, solidifying his legacy as “the gay rights justice.”• He explained that same-sex couples seek marriages not to disrespect the institution but because

they respect how meaningful it is. “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”• He held that the 14th Amendment’s Due Process Clause is the basis for the right to marry: • “The fundamental liberties protected by this Clause include most of the rights enumerated in the

Bill of Rights. In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”• Dissenting in Obergefell, Justice Scalia accused the court’s liberals of a sort of intellectual

dishonesty in joining Justice Kennedy’s opinion, which he charged sacrificed legal rigor for soaring language. “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the court” that included such vague passages, he wrote, quoting one, “I would hide my head in a bag.”

King v. Burwell (2015)

King v. Burwell (2015)

• The case depended on reading four words in the statute. Federal subsidies now used by more than 6 million Americans, the challengers said, were intended for just a subset of health insurance marketplaces, only those "established by the state.“• Thus, the challengers argued, subsidies could not be used by Americans who lived

in states that chose not to establish their own health insurance marketplaces. Those Americans were using the federal health insurance marketplace.• Neither Kennedy nor Roberts bought the challengers’ argument. Roberts called the

four-word phrase "the ultimate ancillary provision: a sub-sub-sub section of the Tax Code," adding, "We doubt that is what Congress meant to do“ – to limit federal subsidies to only those who participated in state, rather than federal, health insurance marketplaces

Walker v. Sons of Confederate Veterans (2015)

Walker v. Sons of Confederate Veterans (2015)

• The Court ruled that Texas did not violate the First Amendment when it refused to allow specialty license plates bearing the Confederate battle flag. • The 5-4 majority was composed of the 4 liberals and Justice Clarence Thomas who

controlled the opinion assignment. He chose not to write the majority opinion and instead assigned it to Justice Stephen Breyer. • Breyer said that specialty license plates are government speech and are thus immune

from First Amendment attacks. “As a general matter, when the government speaks it is entitled to promote a program, to espouse a policy or to take a position.” Were this not so, he said, the government would be powerless to encourage vaccinations or promote recycling.• The decision was issued the morning after the shootings in Charleston, S.C. started a

national debate about the meaning of Confederate flag. The timing was coincidence.

Glossip v. Gross (2015)

Public Opinion

• With rare exception (school prayer, flag burning, term limits), the Court is broadly reflective of the preferences of the American people.• This past term proved the rule with the Court ruling in favor of gay marriage

and the health insurance subsidies provided by federal exchanges.• Last term, Justice Ginsburg remarked to the liberal American Constitution

Society: “The court is not in a popularity contest, and it should never be influenced by today’s headlines, by the weather of today. Inevitably, it will be affected by the climate of the era.”

2015-2016 Term

• The justices have already agreed to hear cases on affirmative action, voting rights (the meaning of “one person, one vote”), class action lawsuits, and they are likely to hear a major abortion case and possibly another case involving a religious exemption to the Affordable Care Act.• But there is a case on the docket regarding union organizing that provides an

important window into understanding the Court and its role in the American governmental system.• But first, a little background information on unions…

Public Opinion of Unions

• This case is part of the larger conservative strategy in American to destroy unions—which they see as the single greatest contributing factor for lower profits for owners and higher taxes for taxpayers.

• Indeed, the conservatives have been successful in recent decades in convincing Americans that unions are bad.• Since Congress passed the National Labor Relations Act in 1935 (the Court upheld it in 1937), public opinion

toward unions was consistently positive with between 2/3 and 3/4 of Americans approving of unions.• However, in recent years that approval has eroded to about 50% at best today, making unions ripe for attack.

• The massive decline in union membership has been a direct result of policy changes and the turn to a more conservative era in American society beginning with the election of Ronald Reagan in 1980.• Today, only 11% of the workforce belong to unions.

• While union membership has drastically declined overall and in the private sector, union membership in the public sector has increased over time.• Thus, we should

not be surprised that public unions are the latest target of conservatives.

• Indeed, more than half of all union members today are public employees.• Still, it is important

to remember that there are far fewer public employees than private employees in America.• In 2014, public-

sector workers had a union membership rate of 35.7%--more than five times the rate for private-sector workers, 6.6%.

Why Union

Membership

Matters:

Wealth Inequalit

y

Friedrichs v. California Teachers Association

• Friedrichs is a case brought by a California teacher who objects to paying dues to the union that has bargained the contract that secures her pay and benefits. The union does not collect any money from her to support its political activities, but, by virtue of the Court’s decision in Abood v. Detroit Board of Education (1977), and hundreds of later decisions based on Abood, she is obliged to pay that portion of her dues that goes to bargaining and administering her contract (but not the portion that goes to political activities such as endorsing candidates for public office). • That obligation, the court ruled in Abood, is essential if public

employees are to have an effective right to collective bargaining. If employees can benefit from union representation without funding the union, the court reasoned, the union could be weakened to the point that it couldn’t represent those employees adequately, if, indeed, at all.

Rebecca Friedrichs has taught In the Anaheim, CA public Schools for 30 years and has been required to pay union dues, currently $1,000 per year.

Friedrichs v. California Teachers Assoc.

• Two terms ago, Justice Samuel Alito invited union opponents to bring a challenge to Abood. The case in which he wrote the 5-4 majority opinion — Harris v. Quinn (2014) — concerned whether home-care workers, employed jointly by individuals and the state of Illinois and covered by a union contract, were required to pay dues. • While the majority confined its ruling to home-care workers, Alito devoted most of

his opinion to arguing that no public employee covered by a collective bargaining agreement should be required to pay dues. • As Justice Elena Kagan noted in her dissent, Alito was arguing a case that wasn’t

even before the Court, soliciting a challenge to the very idea of public-sector collective bargaining.• Friedrichs could be another major policy development that decimates unions—

specifically public unions, which have been a recent target of conservatives.

Future Retirements?

• Liberals:• Ruth Bader Ginsburg – Born: March 15, 1933 (age 82)• Stephen Breyer – Born: August 15, 1938 (age 77)

• Conservatives:• Antonin Scalia – Born: March 11, 1936 (age 79)• Anthony Kennedy – Born: July 23, 1936 (age 79)

• Average age at death for Supreme Court Justices: 90• Justice John Paul Stevens recently retired at age 90. He is now age 95.

Conclusion

• While the Supreme Court has been handing down some moderately liberal decisions in recent terms, there should be no mistaking the generally conservative bent of the current Court—particularly on economic matters.• In these areas (e.g. congressional authority to regulate the economy via the

Commerce Clause, union organizing, campaign finance) the Roberts Court has done more to protect the interests and increase the influence and power of the wealthy.• While decisions on civil rights and liberties are important, economic decisions can

have as much or even greater impact on American society.