Supreme Court

3 Supreme Court Cases to Watch in Fall 2015

What's at stake in the new SCOTUS term.

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Credit: Library of Congress

The U.S. Supreme Court is back in business today after its summer break and the new term is already shaping up to be another blockbuster. As the Court prepares to rule on some of the most important and contentious issues in American law, here are three cases to watch in the coming months.

1. Fisher v. University of Texas at Austin

If the name Fisher v. University of Texas at Austin sounds familiar, that's because the Supreme Court has already heard this case once before. In October 2012 the Court heard oral arguments over the use of race in undergraduate admissions at Texas' flagship state university. Eight months later, in June 2013, the Court issued its anticlimactic opinion, which simply kicked the case back down to the lower court for further proceedings. According to the majority opinion of Justice Anthony Kennedy, the U.S. Court of Appeals for the 5th Circuit had erred "by deferring to the University's good faith in its use of racial classifications," but "in fairness to the litigants and the courts that heard the case," Fisher should "be remanded so that the admissions process can be considered and judged under a correct analysis." The correct analysis the Court had in mind is the standard of judicial review known as strict scrutiny, which says that when the government employs racial classifications, that use of race must 1) serve a compelling government interest, and 2) be narrowly tailored to achieve that compelling interest.

Several months later, the 5th Circuit issued its decision on remand, once more upholding the school's actions. Shortly after that, the Supreme Court took up the case once more. In the coming months, the Court is expected to deliver a definitive ruling on the constitutionality of UT's affirmative action policy.

2. Luis v. United States

The Sixth Amendment to the U.S. Constitution protects the right to counsel in "all criminal prosecutions." At issue in Luis v. United States is whether that Sixth Amendment right prevents the government from freezing a criminal suspect's non-tainted assets before trial, thereby effectively denying that suspect the right to retain the counsel of her choice.

The case arose in 2012 when Sila Luis was indicted in Florida on charges of operating a complicated scheme that allegedly defrauded Medicare of upwards of $40 million. The prosecutor in her case sought and obtained a pre-trial order freezing all of her assets. The problem with that order is that while the Supreme Court has held that the government may freeze tainted assets before trial—meaning that the government may freeze any assets that can be traced directly back to the underlying alleged crime—the Court has never acknowledged the government's power to do the same thing to a suspect's non-tainted assets. In this case, Luis has some $15 million in undeniably legitimate assets that cannot be traced to any alleged Medicare fraud. She wishes to access those assets in order to pay for her defense.

Needless to say, this case has major implications for both the rights of criminal defendants and for property rights and asset forfeiture more generally. Oral arguments have been scheduled for November 10, 2015.

3. Friedrichs v. California Teachers Association

In a 1977 decision known as Abood v. Detroit Board of Education, the U.S. Supreme Court upheld a Michigan law that forced public-school teachers to pay the equivalent of union dues to the teachers union regardless of whether or not those teachers happened to be union members. In Friedrichs v. California Teachers Association, the U.S. Supreme Court will consider whether or not this controversial precedent should be overruled.

According to lead petitioner Rebecca Friedrichs, a California school teacher, the state's mandatory union-fee scheme violates her First Amendment rights by compelling her to subsidize political speech that she disagrees with. "Just as the government cannot compel political speech or association generally," Friedrichs and her lawyers told the Court, "it cannot mandate political speech or association as a condition of employment." The California Teachers Association counters by arguing that its collective-bargaining stance benefits even non-members like Friedrichs. Forcing her to pay the equivalent of union dues, the union maintains, prevents her from acting as a "free rider."

To say the least, this case presents a major challenge to the legal privileges currently afforded to public-sector unions. Oral arguments have not yet been scheduled.

Related: Watch Reason TV interview Rebecca Friedrichs below.

NEXT: Clinton to Unveil Gun Control Proposals, O'Malley Wants Candidates to Adopt His, 'Thousand Year' Rains in South Carolina, Evidence of 850-Foot Wave Megatsunami 73,000 Years Ago Found: A.M. Links

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  1. There is also some case about whether representatives (and I presume electoral college members, etc.) should be apportioned based on total population (including children, convicted criminals, and potentially illegal immigrants) or only on those eligible (or registered?) to vote. Don’t know the details, just heard a blurb about it on NPR.

    That’s going to be a contentious one. My initial take would be to just maintain the status quo, but I could see some potentially persuasive arguments for using only some subset of citizens/voters/etc.

    1. It’s certainly an interesting question with plenty of plausible answers. My own take is that it ought to be by actual votes cast, since everything else involves too much politically malleable guesswork. I would go one step further, and say that realigning districts is a waste of time and too corruptible. Instead, have legislators cast the votes they received in the election, making actual district size less important, and allow any property owner who is on the border of a voting district to switch to a neighboring voting district if that new district cast fewer total votes in the previous election; this would tend to naturally keep district sizes similar.

      I would also have each voting district send the top three vote winners to Congress. This would mitigate the effects of the two party system while discouraging the massive splintering common to many European systems where parties have 1 or 2 members, and it would buttress the point of reps casting the votes they received rather than the total votes in the election.

      1. I would say that total population should matter more than who is voting, because ultimately everyone is subject to the laws that get passed. But I can also see the argument that someone who can’t vote shouldn’t be influencing outcomes by their mere presence.

        Again, this is just my first take.

        It is an interesting question and I think strong arguments can be made for both. I suspect where most thoughtful people come down will closely follow their overall opinion on democracy/voting.

        Unfortunately, it will be framed as a battle between Republicans that want to disenfranchise poor minorities vs Democrats that want to use illegal immigrants to throw election math in their favor, so there will be about zero thoughtful discussion of the underlying questions.

      2. Personally, I’d go with citizens rather than all people. Not sure why we would say non-citizens are entitled to representation in Congress.

        1. “Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.” (Amendment XIV, sec. 2)

          A state might be able to take away someone’s right to vote, but I don’t see how they can not be counted.

          1. Hmmm, if Indians aren’t counted because they aren’t taxed, is that a justification for not counting illegal aliens…?

              1. Explain. Why not?

          2. It’s pretty clear cut in the Constitution, no matter what you think of it. Just because you don’t vote doesn’t mean you should be stripped of equal representation under the law. There will be attempts to make voting onerous on vulnerable groups to lessen further their political influence.

          3. Well, there is this from the same amendment and section:
            Amendment XIV, Section 2:
            But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

            Later modified as to age and sex eligible to vote.

            1. That clause was added as a disincentive for southern states to deny the vote to freed slaves. There was a question on the 1870 census, in all states,

              21) Male Citizen of U.S., of 21 Years of age and upwards
              22) Male Citizen of U.S., of 21 Years of age and upwards, whose right to vote is denied or abridged on other grounds than rebellion or other crimes

              So if a citizen was eligible to vote, they could be denied for rebellion or being a criminal, but if for other reasons they were subtracted from the total number of residents for purposes of apportionment

    2. In the second case at issue, this law and order nut job court will hold that prosecutors can seize all of a persons assets, even if they know it had nothing to do with a crime. That’s because this court prides itself on being a rubber stamp for prosecutors! They are a bunch of overpaid bums!

  2. In the coming months, the Court is expected to deliver a definitive ruling on the constitutionality of UT’s affirmative action policy.

    Continuing race wars is so very much in the narrow interest of some in the government.

    1. Clarence Thomas on Affirmative Action in Grutter v. Bollinger:

      “For the immediate future, however, the majority has placed its imprimatur on a practice that can only weaken the principle of equality embodied in the Declaration of Independence and the Equal Protection Clause. “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U.S. 527, 559, […] (1896) (Harlan, J., dissenting). It has been nearly 140 years since Frederick Douglass asked the intellectual ancestors of the Law School to “[d]o nothing with us!” and the Nation adopted the Fourteenth Amendment. Now we must wait another 25 years to see this principle of equality vindicated. I therefore respectfully dissent from the remainder of the Court’s opinion and the judgment.”

      Thomas referenced Douglass who talked about “positive injury,” the notion that deciding what is best for someone violates that person’s agency. It is truly a shame that a black man in America, a qualified Supreme Court Justice at that, is unheeded by race baiting proselytizers and zealous patronizing ideologues.

      Bonus note: The SCOTUS stated that “25 years” from the Grutter decision would likely be the end of Affirmative Action. That case was decided in 2003. Halfway there!

    2. It’s unreal that racial preferences are condoned by the courts despite clearly violating both the 14th amendment and the very, very explicit text of the Civil Rights Act. If SCOTUS is going to endorse it yet again, I hope some righty legislators get a little subversive. I’d force every college that wants to favor certain races to define those races, and the exact percentage/lineage requirements.

      No more leaving it up to the applicant to self-certify. If there’s truly a compelling govt interest in racial discrimination then the govt has a right to define the “racial” component of that discrimination. I want to see an official matrix of every possible race, and mixture thereof, and the benefit/disadvantage accorded to it. Admissions discrimination would end pretty quickly if someone was forced to put racial bean counting to paper.

  3. In this case, Luis has some $15 million in undeniably legitimate assets that cannot be traced to any alleged Medicare fraud.

    The bigger question is why those assets weren’t not just frozen but seized to pay for the government’s war on Medicare fraud.

    1. Presumably because she can afford to fight the government on this (assuming she wins *this* case, of course). The guy on the street they steal $800 and a car from can’t.

  4. Forcing her to pay the equivalent of union dues, the union maintains, prevents her from acting as a “free rider.”

    The union can always cease its bargaining efforts.

    1. I don’t get the free rider argument. She ought to be missing out on certain union protections if she isn’t in the union, right? And if the argument that her contract closely follows and therefore benefits from the union contracts, that undercuts the argument that the union is needed to protect workers in the first place. I mean, by the union’s logic, it should be a race to the bottom.

      1. And if the argument that her contract closely follows and therefore benefits from the union contracts, that undercuts the argument that the union is needed to protect workers in the first place.

        What do you mean? If the union raises the standards that other people then follow, it would mean standards wouldn’t necessarily rise without the union first obtaining results. And if the contracts are public (are they?) then non-union members know what to ask for and demand.

        1. But supposedly unions are able to get a better deal because they can bargain collectively, giving them more leverage than a set of individuals. If an employer is willing to give an individual without the leverage the same contract as a union worker, then it undercuts the argument that collective bargaining is necessary to get a favorable contract/working conditions.

          I can think of some counter arguments, the two most obvious being that 1) the marginal cost of just giving an individual a generous but already-understood contract is less than trying to negotiate all the details of a contract that is slightly more favorable to the employer and 2) unions get special legal advantages that make this anything but a free-market transaction.

          But at the very least it should make people go “Hmmmm….”

          1. If an employer is willing to give an individual without the leverage the same contract as a union worker, then it undercuts the argument that collective bargaining is necessary to get a favorable contract/working conditions.

            I don’t know. The fact that the details of the individual contract follow union results would seem to have the opposite effect. I think there are probably better arguments.

    2. Unions are the only thing stopping a return to child slave labor!

      1. If children were teachers and adults the students, a lot of nonsense would be eliminated, replaced by much more adult nonsense such as “I see London, I see France, I see Nancy’s underpants.”

  5. What’s at stake in the new SCOTUS term.

    The same thing as always: our freedoms.

  6. Preet got a well deserved slap in the face, apparently.

    Insider trading witch hunts get your face in the news, though, so I doubt we’ll see fewer of them.

  7. I love when liberals fret about “free riders,” given that they make up 85% of Democratic voters.

    1. Free riding is the whole point of the state.

  8. Free riders are worse than Hitler.
    Literally.

  9. Just gotta hope that Roberts stops rolling ones on his WIS checks.

  10. “Just as the government cannot compel political speech or association generally,”

    SRSLY?

  11. Every SCOTUS term is a new opportunity for expanding the creativity of logical argument…

  12. The California Teachers Association counters by arguing that its collective-bargaining stance benefits even non-members like Friedrichs. Forcing her to pay the equivalent of union dues, the union maintains, prevents her from acting as a “free rider.”

    Oh, was there a Constitutional exception for stopping free riders? “Yeah, it is a violation of your first amendment rights, but we think you benefit anyway, so pay up.”

    Though I assume they will try to argue that she is wrong about her first amendment rights.

  13. The Luis case is the one I’m worried about – if prosecutors can’t freeze somebody’s assets it removes a weapon in their arsenal to coerce a plea deal and guilty people may go free. Assuming, as the police, prosecutors, judges, and juries so often do, that everybody the police arrest is obviously guilty – why else would the police have arrested them if they’re not guilty? Just as the court allowed anonymous phone calls to establish reasonable suspicion and police ignorance of the law to establish probable cause and still have not taken up the cause of admitting the plain fact that your computer and your phone are covered by the Fourth, this Supreme Court is god-awful terrible on protecting civil liberties from your friendly neighborhood police department and their big brother in DC.

  14. An Ultra- Safe Long Term Savings Plan?

    Dear “Reason” reader, I don’t care who gets elected, or what the Fed does/does not do, or whether we are in for a recession, a depression, a deflation, hyper inflation or whatever. Why? Because whatever happens, my long term savings will be safe and protected and will , 9 times out of 10, grow at an average of 8% per year over and above the inflation rate, year in, year out, as it has since 1986 when I started it.

    Financial Safety Services
    onebornfreesfinancialsafetyreports.blogspot.com/

    1. Sounds good, but when that Nigerian Prince frees up his golden hoard and sends me my share, I will be so rich I will be immune to any fiscal disaster.

  15. I wish we could get a constitutional amendment in place requiring the Supreme Court to issue their decisions on their cases immediately after the hearings are held. I really hate this “wait until June” crap… on top of it being unnecessary, it seems to fly in the face of the Speedy Trial Clause.

    1. speedy trial, sure. no one ever said anything about a speedy appeal.

  16. It’s going to be interesting to see if the same justices who (in the gay marriage case) ruled that everyone has to be treated equally, turn right around and (in the affirmative action case) rule that….well, we didn’t really mean EQUAL equal. Some can be treated a little “more equal” than others.

  17. 2. Luis v. United States

    i assume this case will be decided by simply asking the united states if they can demonstrate any connection between a criminal charge and the $15 mln. when they say “no” or ramble incoherently, that should be the end of it, right?

  18. Our justices are all overpaid bums! They could care less about the people. They usually rule in favor of the government and personal injury lawyers.

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