As summer turns to fall, the new Supreme Court term is just two weeks away. While (with one notable exception), the Supreme Court rarely decides elections, Supreme Court decisions can alter the rules for elections and often become an issue in the campaign. Before leaving at the end of June, the Supreme Court had already accepted a significant number of cases for this term. Normally, they accept enough cases to fill the fall (October, November, and December) argument sessions with a handful left over for January. This time (while they have not yet officially published the December argument list), there are more argument slots available than cases. This post will focus on the cases already accepted. These cases will be heard between now and mid-December, with most of them likely to be decided around the time that the major presidential primaries are taking place. The next post will look at cases that might be accepted for the spring arguments.
October is looking very much like criminal procedure month (with two days set aside for death penalty cases and a juvenile homicide case). On other cases, there is an interesting case from my neck of the woods (Hawkins v. Community Bank of Raymore) involving the Equal Credit Opportunity Act. Among the provisions of the Act, the Act forbids banks from discriminating based on marital status. In this case, the bank (as a condition of a loan to a small business) required the owners’ wives to personally guarantee the loans. When the business could not repay the loan, the bank sued the wives who in turn claim that requiring them to guarantee the loan was discrimination based on marital status.
Another potentially interesting case from October (Campbell-Ewald Company v. Gomes) involves class-actions. In a class-action, one individual seeks to purse claims on behalf of a group of individuals who have similar claims. Part of the process requires the trial court to hold a hearing to determine whether the individual is sufficiently similar to the other members of the group (among other factors) in order to determine whether to allow the case to proceed as a class-action. In this case, the defendant offered to pay the plaintiff’s claim in full before the hearing. The primary issue is whether, under those circumstances, the class-action can proceed or does the settlement offer effectively eliminate the plaintiff.
Similarly, November is full of cases involving criminal procedures or the details of federal criminal law. Among the other cases is one (Spokeo v. Robbins) questioning whether Congress can allow a private party to sue to assert a violation of federal law when that party would otherwise not have an interest in the allegedly illegal act sufficient to create a right to sue. In this case, the company allegedly violated the Fair Credit Reporting Act, but the consumer allegedly did not suffer any quantifiable damages from the violation. Business groups (and so-called libertarian groups) are urging the Supreme Court to keep these suits out of court. Consumer groups are urging the Supreme Court to allow cases in these circumstances (recognizing that the ability of courts to award punitive damages for this type of misconduct when it is hard to prove exactly how errors in credit reporting have damaged the consumer may be the only way to discourage misconduct in credit reporting). There is also a case on whether a single judge can dismiss a challenge to a redistricting plan for failing to state a claim. (Generally, such cases are heard on the merits by a three-judge panel.)
Right now, the most explosive cases are likely to be heard in December (which would probably result in any opinion coming out after the effective end of the nomination process). There are four big cases likely to be heard in December — one dealing with affirmative action, two dealing with redistricting, and one dealing with union dues. The affirmative action case is round two of Fisher v. University of Texas. In its previous trip to the Supreme Court, the Supreme Court held that the lower court (the extremely conservative Fifth Circuit) gave too much deference to the University’s explanations of the reasons for their current affirmative action/supplemental admission program. Even after taking into account the Supreme Court’s directive to look more closely at those reasons, the Fifth Circuit upheld the plan. The key to this case is the replacement of Justice O’Connor (from the 2003 opinion upholding some types of affirmative action programs) with Justice Alito and the fact that Justice Kagan is recused due to her work on this case while Solicitor General.
The two redistricting cases are very different. Evenwell v. Abbott involves what population should be used for determining whether districts have equal population. Most states, including Texas, use total population as that number is easy to determine from the census. Some conservatives want to use a narrower definition — voting-age citizens or eligible voters — claiming that total population gives greater weight to people living in communities with a large number of non-citizens and non-eligible (primarily those with criminal records) voters. Of course, conservatives believe that both groups are over-represented in urban areas and that such a shift would reduce the number of urban (Democratic) districts and increase the number of rural (Republican) districts. The fact that this desperation move is coming in what is still a very red state reflects how much the demographic trends are against the Republicans in states like Texas and Arizona. The other case is round two of the Arizona redistricting commission cases. Last term, the Supreme Court found that the voters in Arizona and other states had the right to take congressional redistricting away from the state legislature. This term, they are considering whether deviations from strict equality in the legislative maps are sufficiently minor to be justified by the desire to achieve pre-clearance under the Voting Rights Acts (as the maps were drawn before the Supreme Court invalidated the pre-clearance requirement).
Lastly, the Supreme Court is returning to the issues of union dues. When a person works under an “agency shop” situation, they must pay union dues to reimburse the union for the unions activities in representing the workers. They do not have to pay for the union’s political activities. In most states, an employee has to affirmatively “opt-out” of paying for political activities. In this case, conservative political activists are claiming that “opt-out” is insufficient to protect workers First Amendment rights and that the only way to protect those rights is to only allow unions (in this case the California State Teachers Association) to collect dues for political activities from those who expressly opt-in. Needless, to say, there is some significant money for political activities involved her as a large number of workers are indifferent on this issue and thus do not currently opt-out but would be equally unlikely to opt-in. Because stockholders in corporations do not even have the right to opt-out, this effort to overturn sixty years of settled case law could alter the balance of campaign spending even more against workers and in favor of big corporations.
