Supreme Court Cases Put Major Precedents in Play ; U.S. Justices to Deliberate on Race, Abortion and Religion in Coming Term

By Liptak, Adam | International Herald Tribune, October 8, 2013 | Go to article overview

Supreme Court Cases Put Major Precedents in Play ; U.S. Justices to Deliberate on Race, Abortion and Religion in Coming Term


Liptak, Adam, International Herald Tribune


The justices will deliberate this term on a number of high- profile cases that could set new precedents in divisive constitutional issues like race, abortion and the role of money in politics.

After back-to-back terms ending in historic rulings that riveted the United States, the Supreme Court might have been expected to return to its usual diet of routine cases that rarely engage the public.

Instead, the court's new term, which starts Monday, will feature an extraordinary series of cases on consequential constitutional issues, including campaign contributions, abortion rights, affirmative action, public prayer and presidential power.

"This term is deeper in important cases than either of the prior two terms," said Irving L. Gornstein, the executive director of the Supreme Court Institute at Georgetown University.

An unusually large number of the new cases put important precedents at risk, many in areas of the law the court has been rapidly revising since the retirement of Justice Sandra Day O'Connor. She was at the court's ideological center, and her moderate instincts played a crucial role in shaping the court's jurisprudence on abortion, race, religion and the role of money in politics.

Justice O'Connor was succeeded in 2006 by the more conservative Justice Samuel A. Alito Jr., and the impact of that switch is likely to be felt in new cases in all four of those areas, with the court revisiting and perhaps replacing precedents from earlier courts.

In the last term, the court grappled with the nature of equality - - in college admissions, in the voting booth and at the altar. The new term will include a run of cases on the structure of the political process, including ones on the balance of power between the branches of government and the role of money in politics.

One case, National Labor Relations Board v. Noel Canning, No. 12- 1281, is a test of President Obama's ability to bypass the Senate by making recess appointments. It has partisan overtones reminiscent of the clash over the constitutionality of his health care law.

"Canning seems to me the most important case on the court's docket to date," said Gregory G. Garre, a lawyer with Latham & Watkins who served as solicitor general in the administration of President George W. Bush. "Once again, the court and the president seem destined to face off, with potentially huge stakes for both institutions."

A second case continues a signature project of the court, led by Chief Justice John G. Roberts Jr., which has been subjecting campaign finance laws to skeptical scrutiny in a half-dozen decisions, including Citizens United v. Federal Election Commission, which in 2010 freed corporations and unions to spend without limit in candidate elections. The new case moves the court's focus from such independent spending to caps on direct contributions from individuals to candidates and political parties.

That case, McCutcheon v. Federal Election Commission, No. 12- 536, may imperil a foundational 1976 campaign finance precedent, Buckley v. Valeo.

The Buckley decision is not the only major precedent at risk this term. The court has been asked to overrule an unusually large number of major decisions, including ones on free speech, religious liberty and property rights.

The court has two cases concerning abortion on its docket. One of them, McCullen v. Coakley, No. 12-1168, is a challenge to a Massachusetts law that restricted protests near reproductive health care facilities. The court upheld a similar Colorado law in 2000 in Hill v. Colorado.

"This is probably the most likely precedent to be overruled," said Kannon K. Shanmugam, a lawyer with Williams & Connolly.

The second one concerns whether states may limit the use of abortion-inducing drugs. The case, Cline v. Oklahoma Coalition for Reproductive Justice, No. 12-1094, has taken a detour to the Oklahoma Supreme Court, which has been asked for a clarification. …

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