Edit Memo: The Supreme Court’s 2015-2016 Term Preview

FOR IMMEDIATE RELEASE: September 26, 2015

Contact: Laura Epstein or Drew Courtney at People For the American Way

Email: media@pfaw.org

Phone Number: 202-467-4999

To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way Foundation
Date: September 28, 2015
Re: Supreme Court 2015-2016 Term Preview

The beginning of a new Supreme Court term reminds us of the dramatic changes we have seen in the nation’s highest court in recent years.  Ten years ago, George W. Bush remade the Supreme Court by replacing William Rehnquist with John Roberts and, even more consequentially, Sandra Day O’Connor with Samuel Alito.  Conservatives who had long had a political agenda to take over the Court and impose their extreme ideology on the nation at last had their opportunity … and they have taken full advantage of the inroads they have made.

The past decade has seen the Court issue rulings often unmoored from logic or legal principle that would have shocked most Americans in 2005, driving the Court ever rightward.  Citizens United vastly augmented the ability of corporations and the wealthiest few to control our elections; Shelby County drove a dagger into the heart of the Voting Rights Act; Hobby Lobby said that for-profit corporations have religious rights and distorted the very definition of religious liberty; Ledbetter and subsequent cases rewrote our nation’s anti-discrimination laws to make it harder for victims of unlawful discrimination to protect their rights.

With so many poorly reasoned decisions reaching the desired right-wing result, conservative activists have been emboldened to file ever more extreme cases in the expectation that the Court majority would buy into them.  We saw them overplay their hand last term in cases like King v. Burwell (Obamacare subsidies) and Texas Department of Housing and Community Affairs v. The Inclusive Communities Project (fair housing), where even the conservative Roberts Court rejected their distorted readings of the law.

But such exceptions and last term’s landmark marriage equality ruling notwithstanding, it is an extremely conservative Roberts-Alito Court whose new term begins October 5.  They have chosen to hear a number of cases that risk continuing the aggressive rightward march that has characterized the past decade.  The 2015-2016 term may be yet another one where the American people enjoy less liberty, less equality, less power, and less control over our own democracy on the last day of the term than we had on the first.

Cases Currently Before the Court

Voting and Democracy

Evenwel v. Abbott:  One-Person, One-Vote

The Supreme Court is to decide whether (and if so, when) states must exclude those not eligible or not registered to vote from their population counts in state redistricting, in a case that could significantly weaken the political influence of urban areas and have substantial partisan implications.

One of the cornerstones of equality in a democracy is equality of representation in elected bodies, or “one person, one vote” in shorthand.  The Supreme Court addressed this in a landmark 1964 case called Reynolds v. Sims, which struck down an Alabama legislative apportionment plan where the most populous state senate district had more than 40 times more people than the smallest one, yet each had only one representative.

Citing the Equal Protection Clause, the Court ruled that state legislative districts must be based on population, with an effort to make sure that populations within each district are about the same.  Usually, as in this case out of Texas, the population counted is the total population, ensuring that all people have equal representation.

But the plaintiffs – voters Sue Evenwel and Edward Pfenninger, who live in rural Texas – say that the Constitution requires each vote to be equal, so districts should have the same number of eligible voters, regardless of overall population.  They claim their votes are unconstitutionally diluted because of a disparity in eligible voters.  In other words, the votes of Texans in districts with sizeable communities of non-citizens or disenfranchised formerly incarcerated people have significantly more weight than their votes, so much so that it violates the Equal Protection Clause. A similar argument claims that only those actually registered to vote should be counted for apportionment purposes.

If a majority of Justices rule that states must use some measure other than total population, it would reflect a dramatic shift for the Court.  The Supreme Court has ruled on numerous redistricting cases where total population was used without suggesting that was a problem.  In fact, the Court has previously said that states have the right to determine for themselves whether to use total population, citizen population, or eligible voter population.  As it put it in a 1966 case, these are “choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.”

A ruling in favor of Evenwel would not just be a dramatic shift for the Court: It would be a dramatic shift in American politics, as well, with diverse urban areas losing political power to suburban and rural areas.  It is for this reason that Richard Hasen has called this case “an attempted [partisan] power grab in Texas and other jurisdictions with large Latino populations.”

There are other problems, as well.  For instance, if you base the population count on registered voters or on actual voters, then both systemic and intentional obstacles to voter registration and voting are made even worse, by further weakening the political influence of the targeted communities.  A community that has a lower registration rate or turnout for any reason should not be penalized by losing their right to representation in the legislature.

By upholding restrictive voter ID laws and weakening the Voting Rights Act, the Roberts Court has increased incentives for voter suppression, with devastating results across the nation.  A decision saying that only voters should be counted in redistricting could significantly increase those incentives, shifting political power even further away from targeted communities and doing more damage to our electoral democracy.

Harris v. Arizona Independent Commission:  Partisan Redistricting; Undoing Pre-Shelby County VRA Compliance

The Supreme Court is being asked to rule that population differences among districts cannot be justified on either partisanship or on pre-Shelby County efforts to obtain federal preclearance under Section 5 of the Voting Rights Act.

While this case, like Evenwel, involves one-person, one-vote and was accepted by the Court at the same time, it does not challenge the method of counting people as that case does.  Harris involves a state redistricting plan in Arizona that was based on counting everyone, and that method is not at issue here.  What is at issue is a plan adopted by the Arizona Independent Redistricting Commission (AIRC), which was created by ballot initiative to remove partisanship from both state and federal redistricting.  (That method of creating a commission for federal redistricting was upheld by the Court last June.)

The conservative plaintiffs in this case claim the independent redistricting commission itself acted for partisan reasons and packed white voters into larger and generally Republican districts, while putting minorities into smaller and normally Democratic districts, leading to population deviations among districts to the disadvantage of Republicans.  Claiming that partisanship is not a permissible reason to have such population deviations, the plaintiffs argue that one-person, one-vote has been violated.  (The maximum population deviation from the average was 8.8% between the largest and smallest districts.  Deviations within 10% among state legislative districts are generally considered in compliance with one-person, one-vote.)

The three-judge lower court  upheld the plan, finding that while partisan considerations had played some role in how lines were drawn, the commission’s main motivation was a good-faith effort to gain Section 5 pre-approval from the Justice Department (this was before Shelby County), and that that was a valid reason for population deviations.  The Harris plaintiffs argue that even if getting preclearance was a legitimate reason at the time, courts must now consider it illegitimate in light of Shelby County.  They compare the lower court’s action to one upholding school segregation if the segregation was imposed before Brown v. Board of Education.

In last term’s Arizona State Legislature v. Arizona Independent Redistricting Commission, the 5-4 majority noted that “partisan gerrymanders … are incompatible with democratic principles.”  But the Court also noted that it has not yet been able to identify any standard by which to determine whether unconstitutional partisanship had occurred.

It is unclear if this case will give them that opportunity.  Considering that the parties have a factual disagreement on the cause of the population deviations, and that the lower court concluded that the cause was not partisanship, it may be difficult for the Supreme Court to address the main partisanship question posed by the plaintiffs.  Indeed, the majority and dissenters were already sparring over this very issue in last term’s AIRC decision, even though it was tangential to the substance of the case.  However, these complications should not prevent the Justices from answering whether a good-faith effort to protect minority voters and seek Section 5 preclearance before Shelby County should now be tarred as an illegitimate justification for deviating from equal population distribution among districts.


The Rights of Working People

Friedrichs v. California Teachers Association:  Constitutionality of employees’ fair share payments to public sector unions for representing them.

In a case that threatens to severely weaken the ability of workers to come together and form  unions to negotiate their working conditions and benefits, the Supreme Court is to decide whether to overrule a longstanding precedent and strike down requirements that public sector employees who are not members of the unions that are required to represent them pay “fair share” fees to cover the costs of that representation.

This case threatens to overrule an important 1977 case on the rights of working people called Abood v. Detroit Board of Education, where the Court upheld public sector “agency shops” as constitutional.  Under an “agency shop,” since the union as the exclusive representative of employees is required to represent the interests of both members and nonmembers, it can charge non-members “fair share” fees to cover their costs – but only the costs related to collective bargaining, and not those for things like lobbying or political campaigns.  Fair share fees have long been recognized as needed to prevent free-riding by non-members, who would otherwise get the benefits of representation for free while others pay for it.

In two recent cases authored by Justice Alito (Knox v. SEIU and Harris v. Quinn), the Roberts Court went out of its way to criticize the reasoning of Abood and, in the latter case, essentially invited conservatives to generate a case to give them an opportunity to overrule it.  Accepting the invitation is a right wing organization called the Center for Individual Rights, which is representing Rebecca Friedrichs and several other California teachers who are not union members but who do not want to pay fair share fees to cover the union’s costs in fulfilling its legal requirement to represent members and non-members alike.

Friedrichs argues that public sector collective bargaining is no different from lobbying, and that fair share fees therefore compel her to financially support political activity she opposes, in violation of the First Amendment.

As an alternative, in case the Court doesn’t overrule Abood, Friedrichs is asking it to strike down the current “opt-out” system that has long protected non-union members’ right not to support the union’s political activities, those unrelated to collective bargaining.  Under that system, the union annually notifies non-members what portion of their fair share fees cover costs related to collective bargaining, and it gives them the ability to opt out of paying to cover other costs.  No non-member is required to fund political activities of any type, whether they agree with them or not.  Nevertheless, quoting Justice Alito’s five-justice majority opinion in Knox dealing with the opt-out issue in the narrow context of special assessments for specific union projects, the challengers in this case claim that only an opt-in system would protect their First Amendment rights.

The decision in this case will have an enormous impact on working people’s ability to join together and effectively negotiate for fair wages and benefits.


Equal Opportunities For All

Fisher v. University of Texas at Austin:  Affirmative Action

The Supreme Court is to decide whether the University of Texas’s limited affirmative action plan violates the Constitution.

This is the second time this case has been before the Justices.  Many on the far right were hoping that the Supreme Court would forever ban affirmative action programs in public colleges and universities three terms ago in Fisher v. University of Texas (Fisher I). But that is not what happened. Instead, with Justice Kagan recused (as she is this time as well), the Court issued a 7-1 opinion written by Justice Kennedy that pointedly did not overrule past cases (like 2003's Grutter v. Bollinger case) stating that public universities have a compelling interest in the educational benefits that flow from having a diverse student body and upholding limited affirmative action plans to make that possible. Grutter had upheld a law school’s limited use of race and ethnicity in the admissions process to promote diversity in the educational experience.  In so doing, the Court had cited the fact that all consideration of applicants remained individualized and there were no quotas and no numerical targets used in the selection process.

Once Grutter was decided, the University of Texas adopted a similar affirmative action program to enhance diversity among students.  Texas had already had a race-neutral program in place since 1998 through which  the university would guarantee admission to the top ten percent of students from all high schools, but it did not allow a focus on individuals and their unique backgrounds and failed to create classroom diversity: For instance, 90% of undergraduate classes had only one or no African American students, and 43% had only one or no Latinos.

So the university adopted a limited affirmative action plan based on Grutter for the 20-25% of each class that is not automatically admitted in the Top 10% plan.  In addition to applicants’ academic records, admissions officers look at their “personal achievement scores,” which are based on a review of their demonstrated leadership qualities, extracurricular activities, honors and awards, essays, work experience, community service, and special circumstances, such as the applicant’s socioeconomic status, family composition, special family responsibilities, the socioeconomic status of the applicant’s high school, and race.  Numerical values are never assigned to any of the components of personal achievement scores, and race is considered in the context of how it has affected a particular student’s unique life experience.

The Fisher I decision did not make a final constitutional ruling on the Texas affirmative action plan.  The Justices ruled that the lower court, in upholding the Texas program without the type of trial that had preceded the Grutter case, had not sufficiently inquired into whether the program is narrowly tailored to meet a compelling purpose, i.e., satisfied strict scrutiny. The lone dissenter was Justice Ginsberg, who felt there was already enough evidence to support the University of Texas's case without the need to remand it back to the lower court.

But return to the lower court it did, and in an opinion written by Reagan-nominee Judge Patrick Higginbotham, the court upheld the University of Texas’s affirmative action program as necessary for achieving the educational benefits of diversity.  And despite the very conservative lean of the Fifth Circuit, the judges voted 10-5 against reconsidering the panel decision.

Fisher claims that the Fifth Circuit’s analysis was too deferential to the University of Texas and, therefore, did not satisfy the strict scrutiny ordered in Fisher I.  If the Court agrees, it could make it much harder to justify effective efforts to maintain a healthy diversity at colleges and universities.


Access to Courts

Campbell-Ewald Company v. Gomez:  Cutting Off Individual and Class Action Lawsuits

The Supreme Court will address whether a defendant can terminate a class-action suit against it simply by making a settlement offer just to the individual representing the class, even if it’s not accepted.

This case involves the Article III requirement that there must be a “case or controversy” in order for a federal court to have jurisdiction in a case.  If a defendant offers the plaintiff a remedy and it isn’t accepted, does that make the plaintiff’s claims moot, so that a federal court no longer has jurisdiction?  And in a class action situation, can a defendant derail a class action lawsuit simply by offering the lead challenger a remedy before the class is formally certified?

The Campbell-Ewald Company allegedly sent unsolicited text messages to about 100,000 people in violation of federal law.  Jose Gomez sued on behalf of the proposed class, but before he filed his motion for a class action, the company offered him – and him alone – a settlement.  Gomez rejected it, finding it too vague on the settlement amount and insufficient for not covering his legal fees.  But the company now says that its offer, regardless of whether Gomez accepted it, moots the entire lawsuit, class action and all.

The company cites a 2013 case called Genesis Healthcare v. Symczyk, which involved a similar situation, involving a “collective action” under the Fair Labor Standards Act (FLSA).  In that case, the plaintiff had conceded in the lower court that her individual case had been mooted by the offer, so the majority assumed that was the case without actually deciding it, leaving the question open.  The Court’s decision was on the “collective action” aspect only.

Ruling 5-4, with Justice Thomas writing for the five conservatives, the Court ruled that the since the plaintiff’s individual case was moot, she no longer had any personal interest in representing others in the case, and so the collective action had to be dismissed.  But, relevant to this case, the majority distinguished precedents involving traditional class action suits by noting that they are “fundamentally different” from FLSA collective actions.

Article III of the Constitution created a federal judiciary with the vast authority to hear “all cases” arising under federal law.  To help fulfill that mandate, Congress allows class actions, which empowers large numbers to have their rights vindicated in federal court even though hearing all their cases individually would be unwieldy.  To enable powerful defendants to “pick off” plaintiffs initiating class actions before they can formally seek class certification would violate the constitutional and congressional plan.  It would also hand powerful corporations that have illegally wronged hundreds, thousands, or even millions of people a simple way to prevent federal courts from holding them accountable and bringing justice to their victims.

Spokeo, Inc. v. Robins:  Limiting Congress’s Power to Hold Wrongdoers Accountable in Court for Violating People’s Rights

The Supreme Court will address if someone has standing to sue in federal court if their “only” injury is that a right created by Congress was violated.

This is another case involving the constitutional requirement that federal courts have jurisdiction only where there is an actual case or controversy before them.  If someone hasn’t actually suffered an injury that can be redressed by a federal court, then the court cannot hear the case.  This case involves a lawsuit against a company called Spokeo, which provides detailed personal information about individuals to inquirers such as potential employers.  Thomas Robins discovered that Spokeo’s profile of him had several inaccuracies, including about his employment status, his family life, his education, and his age.  On behalf of himself and others similarly situated, Robins sued Spokeo for knowingly violating the Fair Credit Reporting Act, which allows consumers to go to court for actual damages sustained or, alternatively, “statutory damages” between $100 and $1,000.

Spokeo argues that Robins didn’t experience any concrete harm, classifying this as an “injury in law” as opposed to an “injury in fact.”  The violation of a statutory right, without some other, more concrete injury, is not enough to have standing in federal court under the Constitution.

As the United States points out in its amicus brief supporting Robins, Congress has passed many laws authorizing federal lawsuits for statutory damages by people whose statutory rights have been violated.  For instance, migrant workers can collect statutory damages for violations of federal law requiring employers to inform them of their rights, and recipients of prerecorded calls to their cellphones can collect statutory damages, all without being forced to prove some additional harm beyond the violation of their rights as guaranteed by statute.  It is perhaps for this reason that amicus briefs supporting Spokeo have been filed by big business interests like the Chamber of Commerce.

The Court had this same question before it in its 2011-2012 Term: First American Financial Corporation v. Edwards involved a violation of a federal law prohibiting real estate kickbacks.  However, the Court dismissed the case without any more explanation than that certiorari had been “improvidently granted.”  It seems the Court remains interested in this question, which could make it much easier for businesses to skirt their legal responsibilities with impunity.

Other Cases The Court May Take

Since most of the cases to be heard this term have yet to be accepted, the Roberts Court will no doubt be deciding many more critically important cases on a variety of issues affecting the rights of people across America.  Below are some key issues the Court may address this term.

Reproductive Freedom and Choice

Women’s constitutional right to abortion may be on the line again in one or more cases this term involving TRAP laws (targeted regulation of abortion providers).  TRAP laws are sold as protections for women’s health, but in reality they are designed to reduce if not eliminate women’s access to abortion.

Choice advocates are hoping the Court takes Whole Woman's Heath v. Cole, an appeal of a Fifth Circuit opinion upholding Texas’s requirements that (1) licensed abortion facilities meet the same building requirements as an ambulatory surgical center, and (2) those performing abortions have admitting privileges at a hospital within 30 miles.  These are medically unnecessary regulations with the intent and effect of putting an undue burden on women’s ability to exercise their constitutional rights, the test set forth by the Supreme Court in 1992’s Planned Parenthood v. Casey.

Fortunately, the Supreme Court issued a stay of that ruling until they can decide whether to review it this term, a decision that four of the Justices – Roberts, Scalia, Thomas, and Alito – disagreed with.  The issuance of the stay makes Court review more likely, which could lead to the most important abortion rights case in more than twenty years.

Another TRAP law case the Supreme Court may hear comes out of Mississippi.  In Currier v. Jackson Women’s Health Organization, the anti-choice side is asking the Court to review a Fifth Circuit ruling striking down Mississippi’s admitting privileges law.  The law, if enforced, would shut down the state’s only licensed abortion clinic, since nearby hospitals will not grant admitting privileges to the clinic’s doctors.  The certiorari petition has been considered by the Justices at their weekly conferences numerous times without a decision on whether to hear the case.

Religious Liberty

There is a strong likelihood that the Supreme Court will address the accommodation for religious nonprofits seeking to opt out of the Affordable Care Act’s contraception coverage requirement.  Under the accommodation, the employers simply tell the insurer or the federal government of their objection, at which point the insurer must offer the coverage separately to employees who want it. This way, the employees can get the coverage without their employers having to contract, arrange, or pay for it.  But some religious nonprofits assert that even the accommodation violates their religious liberty under the Religious Freedom Restoration Act (RFRA).  Under RFRA, no federal law imposing a substantial burden on religious exercise can be sustained unless it is the least restrictive means of achieving a compelling government purpose.

The list of circuit courts that have roundly rejected this argument is long:  The DC Circuit, the Second Circuit, Third Circuit, the Fifth Circuit, the Sixth Circuit, the Seventh Circuit, and the Tenth Circuit.  But in September 2015, the Eighth Circuit ruled in favor of the nonprofits and found the accommodation violated RFRA.  Now that there is a circuit split, it seems likely that the Supreme Court will take up the issue via the appeals from one or more of these circuit decisions.


Last November, the Department of Homeland Security, which oversees immigration enforcement, announced a major policy change regarding the removal of undocumented immigrants.  Specifically, given the limited resources Congress makes available for enforcement, DHS stated that it would give top priority to certain categories of undocumented immigrants, like those who are national security threats, convicted felons, or gang members.  DHS also announced a Deferred Action for Parental Accountability (DAPA) program, in which longtime residents whose children are citizens or lawful permanent residents can apply for a temporary reprieve from deportation.  After a case by case review, DHS could grant the reprieve.

Congress specifically gave the president authority to set enforcement policies and priorities in the Homeland Security Act of 2002, a necessity since it does not allocate anywhere near the funds necessary to enforce the immigration laws against all undocumented people.

However, there are challenges to the executive actions as being unlawful.  A federal district judge issued an injunction on putting the new rules into effect, and the Fifth Circuit is considering the Obama Administration’s appeal.  Given the importance of the issue, it seems likely that any decision by the Fifth Circuit will be appealed to the Supreme Court, which may very well take the case up.


The 2015-2016 term promises to be another one with an enormous impact on Americans across the country, ruling on matters affecting the health of our democracy and our access to justice.  By summer, we will know if the conservative Court that gave us Citizens United and Shelby County will have done even more damage to our nation.