Affirmative Action, Labor Unions, Voting: Conservative Pushback in New Term?

The U.S. Supreme Court has begun a new term with several contentious cases on the docket, including ones involving affirmative action, abortion and teacher’s unions. Some presidential candidates are talking about the Supreme Court justices and the prospect of replacing some of them over the next few years.

The justices are returning to the bench for their first public appearance together since a number of high-profile decisions in June that highlighted passionate – sometimes barbed – disagreements, and suggested bruised feelings. But most people will still be thinking of the historic nature of the cases decided last term and the fact that for the first time, the left side of the Roberts’ court won more 5-4 cases than the right. In a series of cases challenging the emerging Jim Crow regime in the former Confederate states, especially the infamous decision in Plessy v. Ferguson (1896) upholding the doctrine of “separate but equal”, Justice John Marshall Harlan dissented over and over again, famously declaring, “Our Constitution is color-blind, and neither knows nor tolerates classes among its citizens”.

-Union fees: Labor unions representing government workers square off with opponents over whether the unions can collect mandatory fees from those who choose not to join. The University of Michigan ruling allowed Universities to use race as one of many factors in determining whether a student can be admitted, as long as the affirmative action program is ‘narrowly tailored’.

By the time the next president is inaugurated, Justice Stephen Breyer will be 78; Scalia and Kennedy will be 80, and Justice Ruth Bader Ginsburg will be 83. Unions are rightfully anxious about how the Supreme Court might come down in the case. Two months later the partisan approvals hadn’t changed much, with Republicans at 26% and Democrats at 67%. Ted Cruz, R-Texas, bluntly called Roberts a mistake. In conservative legal circles, Souter’s nomination, by George H.W. Bush, was a disaster because the practically unknown nominee ultimately ended up voting on a consistent basis with the Court’s more liberal wing. “We have none, and they have none”, he said.

How the case will be resolved is unclear, partly because the conservative justices often see limits on government employee’s First Amendment rights when their speech is at issue. There was no mention of Roberts. And if the court rules against Texas, it could help challengers who have mounted an even broader assault on affirmative action against Harvard University and the University of North Carolina cases that could reach the high court in the future.

The new challenge, all but invited by the court’s conservatives, comes from California teachers who object to paying for the costs of collective bargaining.

At issue in this case is a challenge to the way Texas draws its state legislative districts.

-Juvenile life without parole: A Louisiana inmate in prison since 1963 wants the justices to rule that their 2012 decision outlawing mandatory life sentences with no chance of release for young killers also should apply to past cases.

■ Rebuffed an appeal from Kenneth Fults, an African-American man on Georgia’s death row who said bias deprived him of a fair trial because a white juror used a racial slur. But to a remarkable degree, the Court – and in particular, its conservative chief justice, John Roberts – is at the center of a political storm ginned up by Republicans who don’t think Roberts is conservative enough.

Take the Fisher and Evenwel cases.

Another case that has attracted business interest is the challenge to an Obama administration regulation aimed at encouraging efficiency in the electricity market by having electrical grid operators pay users to reduce consumption at peak times. The lower court found that the legislature’s justification of promoting women’s health was sufficient; the challengers argue that there’s no evidence that these regulations promote health, and that they’re really about impeding women’s access to abortion.