Chemerinsky: 'Potential blockbuster' rulings expected in June
The Supreme Court’s docket for October Term 2015 is now set. Absent extraordinary circumstances, all cases taken between now and the end of June will not be heard until next fall. The docket for this term appeared to be unusually small until the court granted review in eight additional cases on Friday, Jan.15, and then took four more cases on Tuesday, Jan. 19. Once more this year, it is a docket filled with potential blockbuster decisions that promise to have an enormous effect on the law and on people’s lives.
In December and January, the court heard oral arguments in cases that could be hugely important in areas such as how election districts are drawn (Evenwel v. Abbott) when universities may engage in affirmative action (Fisher v. University of Texas, Austin) and whether it violates the First Amendment rights of non-union members to require that they pay the share of union dues that support collective bargaining (Friedrichs v. California Teachers Association).
The more recently granted cases on the upcoming argument calendars promise to be at least as important and as controversial.
In Zubik v. Burwell, the court will return to the issue of the contraceptive mandate and the Religious Freedom Restoration Act. Congress mandated that employer-provided insurance include preventative health care coverage for women. The Department of Health and Human Services promulgated regulations to implement this, including that contraceptive coverage be provided to women employees. Religious institutions that oppose contraception are exempt from this requirement. For-profit companies employing more than 50 people are required to provide insurance coverage for the 20 types of contraceptives approved for women by the Food and Drug Administration. In Burwell v. Hobby Lobby, the court held that it violates the Religious Freedom Restoration Act to require that close corporations provide this coverage when it violates the owners’ religious beliefs.
In Zubik v. Burwell, and six other cases consolidated with it, the court will consider a different aspect of the contraceptive mandate. The regulations provide that not-for-profit entities that are affiliated with religions that oppose contraception—like a Catholic university—need not provide such coverage if it files a statement attesting to this with the federal government. Filing such a statement would make women still eligible for contraceptive coverage from the insurance provider which, along with the federal government, would pick up the tab at no cost to the employer. The challengers argue, though, that filing such a statement makes them “complicit” in providing contraceptives that violate their religious beliefs. They argue that this violates the Religious Freedom Restoration Act. Seven federal courts of appeals rejected this and held that this is not a substantial burdening of religious beliefs; one circuit came to the opposite conclusion.
In Whole Women’s Health v. Hellerstedt, the court will return to the issue of abortion regulations and abortion rights. Texas adopted a law requiring that doctors performing abortions have admitting privileges at hospitals within 30 miles, and that all places where abortions are performed have surgical-level facilities, even if no surgical and only medically induced abortions are done there. This would have the effect of closing about 80 percent of the facilities in Texas where abortions are performed.
The Supreme Court will need to decide whether such regulations are an “undue burden” on the right to abortion. As part of this, the court will consider whether the government must show that such regulations actually will protect women’s health. Many states have adopted similar, as well as other restrictions on abortion in recent years, and this will give an indication of how the current court is likely to deal with such laws.
Criminal law and procedure
Last term, in Johnson v. United States, the court declared unconstitutional on vagueness grounds the residual clause of the federal Armed Career Criminal Act. The Armed Career Criminal Act provides that if a person is convicted of a crime involving the use of a firearm and the individual has three or more earlier convictions for a “serious drug offense” or a “violent felony,” the prison term is a minimum of 15 years and a maximum of life. The Act defines violent felony as: “any crime punishable by imprisonment for a term exceeding one year … that—”(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”
In 1990, the Supreme Court held in United States v. Taylor that each of these clauses is to be treated as a separate category and for the Armed Career Criminal Act to apply a person’s crime must fit into one of the categories. The last category—“or otherwise involves conduct that presents a serious potential risk of physical injury to another”—is known as the residual clause. In Johnson v. United States, the Supreme Court, in an 8-1 decision, declared that this provision was unconstitutionally vague.
Immediately the issue arose as to whether this applies retroactively to those whose sentences were final before June 26, 2015, when Johnson was decided. A split among the circuits quickly developed on this issue. On Jan. 8, 2016, the court granted review in Welch v. United States to decide whether Johnson v. United States announced a new substantive rule of constitutional law that applies retroactively to cases that are on collateral review.
In Bernard v. Minnesota, the court will decide whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood. In Missouri v. McNeely, the court held that police, on arresting a person for driving under the influence, generally may not take blood without a warrant. But the issue now before the court is whether a state may make it a crime for the person to refuse consent.
On Tuesday, Jan. 19, the court completed its docket by granting review in United States v. Texas, and agreeing to determine the legality of President Obama’s executive action with regard to immigration known as DAPA—Deferred Action for Parents of Americans.
There are approximately 11 million people in the United States illegally. Each year, the federal government deports about 400,000 undocumented individuals. President Obama’s executive action seeks to focus the government’s deportation efforts on those who are the most dangerous. The president said that the government will not seek to deport individuals who have children who are United States citizens or lawful permanent residents, who have been in the United States at least since January 2010, and who do not have criminal records.
Texas and 25 other states brought a challenge to this. The federal district court ruled in their favor and issued a preliminary injunction. The New Orleans-based 5th U.S. Circuit Court of Appeals, in a 2-1 decision, affirmed. The Supreme Court granted review on four questions, with the case likely to be heard in April and decided by the end of June. First, do the states have standing to bring the challenge? Second, did the president violate the Administrative Procedures Act by not following requirements for notice and comment? Third, did the president violate the Administrative Procedures by adopting a policy that is arbitrary and capricious? Finally, does the President’s action violate his duty to “take care” that the laws of the United States are faithfully executed?
The case is certainly of enormous importance for the 4 million individuals who would be able to remain with their children in the United States. The decision also could deal with important issues such as when state governments have standing to sue to challenge federal policies and when the President has discretion to choose not to enforce federal laws.
It is difficult for me to remember any stretch in recent American history where there were so many Supreme Court terms in a row with this many blockbuster decisions. The rulings, all likely in June, will be a powerful reminder in an election year of the importance of the Supreme Court and how the next president almost certainly will have nominations which could shape its decisions for many years to come.
Erwin Chemerinsky is Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).
Updated at 9:51 to cite the current name of Whole Women’s Health v. Hellerstedt, which was formerly known as Whole Women’s Health v. Cole.