WASHINGTON (RNS) After two blockbuster terms in which it saved President Obama’s health care law and advanced the cause of same-sex marriage, the Supreme Court appears poised to tack to the right in its upcoming term on a range of social issues, from abortion and contraception to race and prayer.

(RNS1-OCT05) Members of the U.S. Supreme Court heard arguments on Oct. 5 in a case that pits government anti-discrimination law against the autonomy of religious groups to hire and fire employees on the basis of religion. For use with RNS-SCOTUS-HIRING, transmitted Oct. 5, 2011. RNS photo courtesy U.S. Supreme Court.

Members of the U.S. Supreme Court heard arguments on Oct. 5 in a case that pits government anti-discrimination law against the autonomy of religious groups to hire and fire employees on the basis of religion. Photo courtesy U.S. Supreme Court


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The justices, whose term begins Monday (Oct. 9), could rule against racial minorities in two cases and abortion rights in one or two others. They also could uphold prayers at government meetings, ease restrictions on wealthy political donors, strike down federal environmental regulations and take a first bite out of Obamacare.

The court, whose work won’t be halted by the government shutdown, also may be ready to restrict the power of the federal government and stand up for states and municipalities in several cases, furthering their defense of federalism.

“They don’t defer to the other branches. They don’t seem to care about precedents,” said Stephen Wermiel, a constitutional law professor at American University Washington College of Law. The justices, he says, are “more than willing to step up to the plate.”

That was evident in June, when the court on successive days struck down the most important sections of the Voting Rights Act of 1965, over the objections of President Obama and congressional Democrats, and the Defense of Marriage Act of 1996, over the objection of Republicans.

“You could not have less deference to a legislative institution,” said David Salmons, an appellate lawyer who has argued 14 cases before the high court. “This is a court that’s very comfortable in exercising their power.”

Conservative interest groups, perhaps seeing their best chance in years to advance their causes, have argued aggressively in their briefs to the court not only for favorable rulings but for overturning some of the court’s time-honored precedents: a 37-year-old campaign finance decision, a 31-year-old ruling on racial integration, even a 93-year-old opinion allowing the federal government to supersede state laws when implementing international treaties.

“They think they have the wind at their back,” says Pamela Harris, a former Justice Department lawyer now teaching at Georgetown University Law Center.

Most of the high-profile cases on the docket fall into one of two categories: Lower courts sided either with liberal activists or federal agencies. They include:

  • A challenge to the Federal Election Commission’s limit on how much donors can contribute over two years to candidates, parties and political action committees. It comes from a Republican businessman, Shaun McCutcheon, who wants to exceed the current $123,200 cap.
  • A defense by Michigan’s Republican attorney general of the state’s 2006 constitutional amendment banning affirmative-action policies at state universities. If the justices reverse the lower court’s decision, it could bolster such bans in other states, including California.
  • The Greece, N.Y., town board’s defense of its policy allowing local clergy to deliver prayers at town board meetings. The lower court sided with two women who argued the predominance of Christian clergy and prayers is coercive.
  • A challenge by abortion opponents to a Massachusetts law setting up 35-foot buffer zones around reproductive health clinics that perform abortions. The lower court dismissed what it labeled arguments “old and new, some of which are couched in a creative recalibration of First Amendment principles.”
  • A defense by Oklahoma Republican officials of a state law that has the effect of blocking most medical abortions. The law bans off-label uses of drugs that end pregnancies, including RU-486, even though doctors routinely prescribe the drugs that way.

The court also is likely to choose from among dozens of challenges to the Obama health law’s requirement that employers include contraceptive services in preventive health insurance plans. In that case, lower courts have ruled both ways, and the government is among those seeking the high court’s review — but conservatives have the most to gain.

“The court will get another shot at the Affordable Care Act,” says Paul Clement, a former solicitor general under George W. Bush and the nation’s premier Supreme Court litigant. Clement represented states challenging the law in the historic 2012 case.

The medical abortion case probably won’t be the last effort to push the justices into further limits on abortion rights. More cases are in the pipeline, including state laws banning abortions after 20 weeks, mandating ultrasound tests and imposing new restrictions on abortion clinics.

Even the landmark cases most recently decided on same-sex marriage, voting rights and affirmative action could get encores at the high court in the near future. The lawyers who defeated California’s Proposition 8 ban on gay marriage joined a Virginia case that seeks to legalize the practice there.

Such cases, says Tom Goldstein, publisher of Scotusblog.com and a frequent Supreme Court litigant, are “making their way to the Supreme Court like a rocket ship, or a series of rocket ships.”

(Richard Wolf writes for USA Today)

12 Comments

  1. Thanks, guys and gals, but it’s really too late now to pretend to be conservative. With your help (and the assistance of Mr. Evolving-Beliefs-In-Chief), America is now locked into a collision course with spiritual disaster, to be followed by national, disaster.

  2. CarrotCakeMan

    It’s really mighty funny the author quotes Paul Clement, since he’s the one who lost DOMA and the California H8te Vote for the “Gay Obsessed Party.” Righ-wingers can go right ahead and hope for the new term, but until late June, they were still insisting the Supreme Court was going to destroy the existing marriages of hundreds of thousands of legally married American same gender couples and “ban gay marriage nationwide.” Remember, members of the “Gay Obsessed Party” also thought Willard Romney was going to win in a landslide.

  3. Earold Gunter

    Misdiagnosis again Doc, sorry. Although the SC may have had certain moments of clarity. Moments that have obviously caused panic for some, as it has potential to change their narrow, hate filled view of what everyone in America should be forced to live like. The SC should have also given them some hope to keep their false faith, and hate filled beliefs alive, because it has also leaned far right with decisions like Americans United which could go a long way towards the realization of the Borg nation they seem to be yearning for.

    However, because those on the far right have many false beliefs, religion included, they are blinded by the reality that most of Americans don’t agree with their agenda, as evidenced in the last two nation wide presidential elections.

    Although I don’t agree with CCM’s suggestion, Russia is too damn cold, but perhaps you should consider some changes in your life that would make you happier. It is better to live this life happy and content than angry, frustrated and full of hate, as it is the only one we have.

    Consider living life, and loving people, without needing to believe in any reward for doing so, or punishment for not.
    Good day!

  4. Lets hope SCOTUS uses all of it power to protect the over 27,000 innocent unborn children killed each week mostly for reasons of convenience and comfort.

  5. Earold D Gunter

    Frank, I hope that we get to a point where we don’t count on the SC (Choosing not to add OTUS, as we currently don’t have a United States these days, just red and blue states) or any other entity to stop medically unessesary abortions, but ourselves. Not because of some religious reason, but rather for one purley based on loving each other. Wild idea huh?

    Consider living life, and loving people, without needing to believe in any reward for doing so, or punishment for not.
    Good day!

  6. Earold Gunter

    Frank, You just have to place your faith in something real. Something that you can touch, see, have real two-way communications with, and prove is real; humans. Not in something that you can’t; God.

    We have the power within us to treat each other well, just because we should.

    Consider living life, and loving people, without needing to believe in any reward for doing so, or punishment for not.
    Good day!

  7. Earold Gunter

    Good luck with that brother.
    Consider living life, and loving people, without needing to believe in any reward for doing so, or punishment for not.
    Good day!

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