Many reasonable accounts from high court correspondents suggest the U.S. Supreme Court appears likely to uphold a Michigan constitutional amendment banning the use of race-conscious admissions policies at public universities.
On Tuesday, with hundreds of protestors gathered outside the courtroom, oral arguments in Schuette v. Coalition to Defend Affirmative Action were presented to eight justices of the high court, with Justice Elena Kagan recusing herself. The constitutional amendment at issue, passed via state referendum in 2006, faces a challenge from a coalition of affirmative action advocates that claims the amendment violates the Equal Protection Clause by placing an undue burden on minority populations. In part, the Coalition says that legacy students could lobby university officials for preference in the admissions process, while minority students must win a statewide repeal of the amendment before taking similar action.
In general, the Supreme Court’s conservative justices did not appear ready to support the Coalition’s arguments. For example, in response to civil rights attorney Mark Rosenbaum, arguing on behalf of the Coalition, Reuters reports that Chief Justice John Roberts “leaned forward from his center chair on the mahogany bench and said curtly: ‘You could say that the whole point of…the Equal Protection Clause is to take race off the table.’” He went on to ask if it was “unreasonable for the state to say, ‘Look, race is a lightning rod…We want to take race off the table and try to achieve diversity without racial preferences’?”
For his part, Justice Anthony Kennedy was restrained in his questioning, appearing to seek a narrow justification for upholding the Michigan amendment while leaving in place important precedent. After all, rulings in 1969 and 1982 in cases from Akron and Seattle – in which the Court struck down voter measures that removed anti-discrimination laws in education and housing – complicate any path to upholding the amendment. Michigan Solicitor General John Bursch suggested a possible distinction: earlier cases involved anti-discrimination laws, while the amendment at hand only demands equal treatment. “This was a broad-based law that was primarily motivated by the people of Michigan’s decision to move past the day when we are always focused on race,” Bursch explained.
Politicians in Ohio have gone to great lengths to end abortion in their state. They’re not taking the blatantly unconstitutional route of North Dakota and Arkansas and just banning abortion outright in an attempt to overturn Roe v. Wade. Rather, politicians in Ohio are doing what they can to make it as difficult and expensive as possible to get an abortion. They are also passing measures with the intent of coercing, shaming, and judging a woman seeking an abortion. Make no mistake: these attempts are just as harmful as an all-out ban on abortion, and are increasingly encroaching upon a woman’s constitutional right to abortion.
A pregnant woman in Ohio who decides on abortion faces multiple, politician-imposed, medically unnecessary steps. She must receive information intended to dissuade her from her decision and shame her for the deeply personal decision she has made. This now includes forcing her to visit the clinic so doctors can test for a fetal heartbeat and offer her the chance to hear it, and forcing her to listen to a description of the odds of carrying the pregnancy to term. She must then wait 24 hours before obtaining the medical care she originally sought. As an Ohio woman seeking an abortion said, “It’s a hard decision for anybody to make. To make it more difficult by passing these laws and making women feel guilty is terrible.” (And these new requirements are only part of the numerous abortion restrictions that became law in Ohio this year).
Unfortunately, these efforts in Ohio are part of a national trend. Abortion opponents have continued to push the boundaries in an attempt to further challenge the core constitutional protections for a woman’s decision to have an abortion. In the last three years, states have passed a record number of abortion restrictions. These include requirements that a woman undergo a medically unnecessary, physically invasive ultrasound before obtaining an abortion, prohibiting a woman from purchasing a comprehensive health insurance plan that includes coverage of abortion, and imposing unnecessary, costly, and burdensome requirements on the clinics and doctors who provide abortions in an effort to shut them down.
The government shutdown has not resulted, so far, in the Supreme Court shuttering its doors and its 2013-2014 Term starts Oct. 7. The new Term might fairly be dubbed a stealth term, especially after two "blockbuster" ones that produced major rulings on health care reform, marriage equality, voting rights and affirmative action. But the new term, like many terms, carries the potential for significant change.
Justice Ruth Bader Ginsburg recently tagged the Roberts Court as the most activist in terms of overturning acts of Congress. It's also a Court that has made it more difficult for many Americans to access the court system and produced win after win for business interests.
So let's look at a few of the cases that should be on everyone's radar. These cases should also remind us of the importance of judges who interpret the Constitution with a deep understanding of our challenges today and the ability to apply the Constitution's broad language and principles to them. For it makes little sense, as Erwin Chemerinsky notes in this ACSblog post, "to be governed in the 21st century by the intent of those in 1787 ...." For additional discussion of the forthcoming Term, see the annual preview hosted by the American Constitution Society for Law and Policy (ACS).
The latest wrecking ball flailing around in the rubble of America’s election and campaign finance laws, McCutcheon v. Federal Election Commission, will be argued in the Supreme Court on October 8. Once again we can expect counsel and some members of the Court to be on the lookout for deviant, “forbidden” thinking about money and democracy.
At issue is whether the federal aggregate contribution limits (currently $48,000 to candidates and $74,000 to party committees) violate freedom of speech under the First Amendment. One plaintiff is Shaun McCutcheon, CEO of a company that services the coal and mining industry. Although he was among a handful of people who contributed hundreds of thousands of dollars to candidates and SuperPACs in the last election cycle, he claims that his freedom of speech is violated by the federal aggregate limit of $123,000. The other plaintiff is the Republican National Committee, whose members naturally wish to receive as much money as they can, and claim that the aggregate limits violate their freedom of speech.
Erin Ryan’s analysis of potential constitutional challenges to environmental laws in the wake of the NFIB v. Sebelius decision makes a strong case that even under the Supreme Court’s new Spending Clause jurisprudence, these laws are constitutionally sound. (I came to a similar conclusion last year when I asked whether Sebelius casts constitutional doubt on Title IX.) Ryan’s analysis also makes clear, however, that the fundamental incoherence of the Supreme Court’s coercion analysis in Sebelius means that it is difficult to predict how it will be applied going forward. While the Court claimed to reason from contract law in finding the terms of the Medicaid expansion so coercive as to render a state’s implementation of the expansion involuntary, it is difficult to imagine the Court finding such a bargain coercive in other contexts. Consider, for example, another Medicaid case, Harris v. McRae.
In 1976, Cora McRae needed to terminate her pregnancy for medical reasons, but she had very little money. She had health insurance through Medicaid, but under a provision of federal law known as the Hyde Amendment initially passed in 1976, federal Medicaid funds cannot pay for abortions, including medically necessary abortions, though Medicaid covers other medically necessary expenses, including the costs of childbirth. McRae joined with other plaintiffs to challenge this law, arguing that by paying for childbirth expenses, but not for medically necessary abortion expenses, the government was unconstitutionally coercing her reproductive decisions and denying her constitutionally-protected right to end her pregnancy. In 1980, the Supreme Court rejected McRae’s challenge to Medicaid’s failure to fund medically necessary abortions. “Although Congress has opted to subsidize medically necessary services generally, but not certain medically necessary abortions,” the Court wrote, “the fact remains that the Hyde Amendment leaves an indigent woman with at least the same range of choice in deciding whether to obtain a medically necessary abortion as she would have had if Congress had chosen to subsidize no health care costs at all.”
In other words, refusing to provide Medicaid coverage for abortions did not represent unconstitutional coercion of a poor woman’s reproductive choices, according to the Court, because in the end it was her poverty that constrained her choices, rather than any barriers the federal government had placed in her way. That she was poor and might be forced to make certain choices because of her poverty—like going through with a potentially dangerous pregnancy because she could not afford an abortion--wasn’t the government’s fault, the Court held.