What's at Stake before the Supreme Court?

Immigration, workers' rights, reproductive health and affirmative action will come under review in upcoming judicial term.

Alan Morrison, GW Law Lerner Family Associate Dean for Public Interest and Public Service Law.
Alan Morrison, GW Law Lerner Family Associate Dean for Public Interest and Public Service Law.
February 01, 2016

By Ruth Steinhardt

Contentious issues like immigration, workers' rights, reproductive health and affirmative action will come under the eye of the Supreme Court in the next few months, with several cases under review whose outcomes might have wide-ranging implications. Alan Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law at the George Washington University Law School, broke down some of the most potentially significant cases for George Washington Today. (Click on a case name to expand.)

United States v. Texas

"Politically, this might be the most important case. It is the challenge by states to President Obama's executive order on immigration. The principal question is whether the state of Texas even has the standing to get to court and challenge President Obama's program. In order to have standing, they need to show injury. Texas says that they are required to give lawfully admitted aliens the benefit of a drivers' license and that the cost to the state of those licenses is a significant injury.

"They also say that this part of the program is a 'rule' under the definition of the Administrative Procedure Act. If so, it cannot lawfully go into affect until the federal government has provided public notice and ability to comment, which it didn't do. The argument on the other side is that this is not a rule; it's a statement of policy. But the court of appeals agreed that it was a rule, and as a result they've halted the program—not just in Texas but across the country—until the notice and comment requirement is met.

"If Texas can get to court, they'd like to challenge the decision not to deport more than 400,000 people a year, including particularly the parents of children who are lawfully here. The government contends—and I think they have the better of this argument—that we can't possibly deport 11 million people, or however many Texas wants to deport, every year. The federal government doesn't have the personnel, money or time to do that, unless Congress gives them more, which it won't do. Given that limit on resources, immigration policy is a 'matter committed to the discretion of the agency,' in this case the Department of Homeland Security.

"What I don’t think really is part of the case is whether the federal courts have the ability to say that the president is disregarding the law. In the first place, he’s not. The law cannot require him to do the impossible—to deport millions of people. No one can force the federal government to deport anybody who is here illegally, let alone everybody. Moreover, not that many people will get additional benefits immediately even if the program continues, because it won’t be back in effect until the summer. And if the Republicans get in office next January, they can change the national policy anyway.

"I think the administration has a pretty good chance in this case, and their agenda won't be much harmed if they lose. So the republic will go on whichever way this case goes. But a loss would be a tremendous political slap at Obama."

Visit SCOTUS Blog to read more on United States v. Texas 

Friedrichs v. California Teachers Association

"This is a challenge to the ability of public sector unions, and probably also private sector unions, to compel people who don't want to be union members to pay a 'fair share' in the union's collective bargaining agreement. By law, those agreements cover all employees in the bargaining unit, whether they are union members or not. A previous case, Abood v. Detroit Board of Education, said it was constitutional to make people pay a 'fair share'—maybe 75 or 80 percent of full union dues—as long as the union did not use that money for 'ideological' activities such as campaigning for political candidates or civil rights or whatever else the union may do.

"But the challengers in this case say that when the union takes positions on issues of tenure or classroom size, these are ideological—leaving virtually nothing on the acceptable side of the policy line. And in recent years, the Supreme Court has been making big noises about wanting to look at that underlying Abood issue.

"A loss doesn't look so bad for unions on the face of it. If only 20 percent of the members of a profession are non-union, and the fees they were being compelled to pay are, say, 75 percent of union dues, we're only looking at a small loss of revenue to the unions. But if none of that 20 percent has to join, then some or perhaps many of the union members who previously figured 'If I'm going to be compelled to pay 75 percent, I might as well just join the union and get all the benefits' may decide that they don't want to join at all. If the challengers win, there will essentially be what I've previously called 'a First Amendment right to freeload.' So that could be a big, big defeat for labor."

Visit SCOTUS Blog to read more on Friedrichs v. California Teachers Association.

Evenwel v. Abbott

"This is a case from Texas that the Supreme Court was required to take under statute because it came up as a voting rights challenge. Under the Constitution, both congressional and state legislative districts must be apportioned according to population. Until now, everyone has assumed that the denominator of a 'population' is the total number of people living there. So if there are five million people living in a state with 20 districts, you divide 5 million by 20 and get the total number of people who should be in each district.

"But the challengers in this case say that the determining unit shouldn't be the total population; it should be the population of voters. Nobody really knows how this would work out, but it seems likely that it would shift representation to districts that didn't have as many 'non-voters,' meaning, chiefly, children under the age of 18 and immigrants. Those groups are statistically more likely to throw support to Democrats.

"The challenge raises some really bothersome issues. We understand how to count total population because we have a census that does that. But we don't have a very good count on voters. And what would that even mean? Registered voters? People who actually vote? And what do we do about the fact that voter rolls are woefully out of date? People move, people have felony convictions, et cetera.

"If the plaintiffs lose—which is my guess—nothing will happen. But if they win, it could throw our apportionment system into total chaos."

Visit SCOTUS Blog to read more on Evenwel v. Abbott.

Little Sisters of the Poor Home for the Aged v. Burwell

"This is the case challenging the contraceptive mandate in an Affordable Care Act regulation. I don't have a strong sense of how this case is going to come out. It's another potential slap at Obama, but I don't think a loss would spell the end of the ACA except insofar as it shows all the places where objectors to it could chip away at its requirements."

Visit SCOTUS Blog to read more on Little Sisters of the Poor Home for the Aged v. Burwell.

Whole Woman's Health v. Cole

"Essentially, this is a case about whether Texas has gone too far in imposing burdens on clinics that provide abortion services, making abortions unavailable as a matter of fact even if they are available as a matter of law. I am not a sufficient expert to know all the implications of the case, but if the Texas law were upheld, it would give the impetus to lots of other states to begin imposing other restrictions. At the very least, that would mean people have to go to court and spend money trying to reopen clinics that have had to be shut down. If the law is struck down, it may put a check on anti-abortion groups, and it may also give the lower courts a sense that they can step in on restrictive laws and say, 'no, this has gone too far.' So it'll be important either way."

Visit SCOTUS Blog to read more on Whole Woman's Health v. Cole.

Fisher v. University of Texas at Austin

"This is the affirmative action case that is still kicking around. The court didn't have to take this case first time, and they surely didn't have to take it the second time, but they did. So the question now is whether the justices will agree on anything more substantial.

"The first time around, Justice Andrew Kennedy said 'Look, we can't decide this on general principles; we need facts and details.' But I've read the transcripts, and the plaintiffs really haven't provided much. The record is terribly stale and was not prepared with the opinion of the court in mind. There also continues the problem that there's no relief available for [Abigail] Fisher, who was denied admission to the state university in Austin in 2008. The only possible relief would be her $100 application fee back, especially because the state has pretty conclusively demonstrated that she would not have been admitted even if their diversity policy were not in place.

"In a way, the first decision empowers universities because it really sets a high burden for the challenger. They can't just go in on theory. People will have to spend a lot of money and time to bring these challenges.

"Nobody has asked the court to strike down the whole notion of affirmative action. So I doubt anything dramatic will happen."

Visit SCOTUS Blog to read more on Fisher v. University of Texas at Austin.

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