The Opinion Pages | EDITORIAL


The Biggest Questions Awaiting the Supreme Court

By THE EDITORIAL BOARD, The New York Times National Edition, October 5, 2015, p. A22.

http://static01.nyt.com/images/2015/10/05/opinion/05mon1/05mon1-master180.jpg

When the Supreme Court’s most recent term ended in June, same-sex marriage was legal nationwide,
and two major pieces of federal legislation — the Affordable Care Act and the Fair Housing Act —
remained intact, despite carefully coordinated legal attacks meant to destroy them.

The court’s new term, which starts Monday, will jump right back into high-profile constitutional
battles like voting rights, affirmative action and the death penalty, as well as a new attack on
public-sector labor unions. And the justices may well agree to take up issues of abortion and
contraception again, in cases that could further strip away reproductive rights. The decisions last
term showed a court willing to take into account the effects of the law on individual lives. This
term, the justices have many opportunities to show that same type of awareness.

One person, one vote

The legal principle of “one person, one vote” got its fullest expression in the 1964 case Reynolds
v. Sims, which ruled that state legislative districts must contain roughly equal numbers of people.
Before then, district populations varied widely, an intentional practice that gave more power to
rural white voters than those in the more diverse cities. While the court has never defined who
counts as a person, the vast majority of states count all people who live in a district, even if
they are not eligible to vote.

In Evenwel v. Abbott
, two Texas voters are challenging that principle. They want to force the state to count only the
number of voters in apportioning districts. This approach, besides being at odds with long-accepted
practice, is both inflexible and impractical. The census, which provides the data that most states
use, counts people, not voters.

Of course, the plaintiffs know that getting rid of a system that counts all people would hurt
Democratic-leaning urban areas with large, noncitizen Latino populations, and would favor rural and
conservative areas where more Republicans live. In other words, the suit is an effort to transfer
political power from Democratic to Republican regions. The Supreme Court has never required that
states follow this or any other specific method of apportionment, and there is no reason to start
now.

Affirmative Action

In 2003, the court upheld the University of Michigan Law School’s right to use a race-conscious
admissions policy, as it had 25 years earlier in a case involving the University of California.

The court is again considering that question in Fisher v. University of Texas at Austin, in which
Abigail Fisher, a white student who was denied a spot at the university, is challenging its policy
to consider race as one factor among many in a small percentage of its admissions. In 2013, when
the justices first reviewed Ms. Fisher’s case, they ordered the federal appeals court for the Fifth
Circuit, which had upheld the university’s policy, to look more closely at the Texas approach. Last
year, the appeals court did that andupheld the policy again
.

In agreeing to hear Ms. Fisher’s appeal of that ruling this year, the justices are sending a
worrisome sign that they are prepared to ban any consideration of race in admissions.

Crime and punishment

Last term, in the case of Glossip v. Gross, which upheld Oklahoma’s lethal-injection drug protocol,
Justice Stephen Breyer wrote in dissent that the death penalty, as it is applied today, “likely”
violates the Eighth Amendment’s ban on cruel and unusual punishment.

Until a majority of justices come around to Justice Breyer’s view, however, the court continues to
tinker with state-sponsored killing. In a handful of cases this month, the justices will consider
whether death sentences in several states violate the Constitution.

In one, a prosecutor is accused of having intentionally removed all potential black jurors from the
capital murder trial of a black defendant, in violation of the Sixth Amendment’s guarantee of a
fair jury trial. Another challenges a Florida rule that requires judges, not juries, to find facts
that would subject a defendant to a death sentence — a practice the Supreme Court has already
banned.

The justices will also decide whether their 2012 decision that banned mandatory life without parole
sentences for juveniles should apply to the more than 2,000 inmates who were sentenced before that
case. Clearly, as a matter of basic fairness and legal coherence, it should.

A longstanding precedent of labor law is at risk in Friedrichs v. California Teachers Association.
For decades, public-sector unions have been allowed to charge non-members for the costs of
collective bargaining on their behalf, but not fees for the unions’ political and lobbying
activity, which are paid only by members.

This arrangement, upheld by the court in 1977, strikes a reasonable balance — allowing workers to
opt out of paying for political activities they may disagree with while avoiding the “free rider”
problem, where non-members benefit from the higher wages and better working conditions achieved
through collective bargaining without paying their fair share.

The anti-union movement, which is spreading around the country, wants to weaken and destroy public
unions by shrinking their coffers. But the current law is sensible and has been repeatedly upheld
by the court. There is no reason to overturn this principle in the California case.

Reproductive freedom

Finally, the court is likely to again address disputes over abortion, contraception and issues of
reproductive freedom.

One case will probably come from Texas, where a 2013 law has closed nearly half the state’s clinics
where abortions are performed. The law requires these clinics to meet the same equipment and
staffing standards as ambulatory surgical centers, and their doctors to have admitting privileges
at a hospital within 30 miles of the clinic. The obvious intent of these requirements is, as a
federal district judge wrote, “to reduce the number of providers licensed to perform abortions,
thus creating a substantial obstacle for a woman seeking to access an abortion.”

The Texas law, like many others like it around the country, imposes an unacceptable burden on
women, especially the poor who don’t have the money or means to travel hundreds of miles to a
clinic, and prevents them from exercising their fundamental right to reproductive choice.

Another case the court is likely to review is a challenge to the Affordable Care Act’s guarantee of
free access to contraceptives. The government exempts religiously-affiliated institutions from
providing birth control to their employees. But they must notify the government if they want an
exemption, and many institutions have said that even giving this notification violates their faith.
The complaint has been rejected by all butone federal appeals court that has considered this issue,
for good reason: It is hard to see how merely informing the government of a refusal to comply
tramples on religious freedom.