Some people just come alive at certain times of the year. Kids love Halloween. Women crave Fashion Week. Grown men get positively giddy about Spring Training. Grown men in feathers and sparkles perk up around New Year’s Day in Philadelphia. (In other parts of the country — like San Francisco — they just call it dress-down Friday)
Even lawyers have our own special time of the year. It’s called the First Monday in October, when the Supreme Court reconvenes after summer vacation and tears into the meaty issues that will cause controversy, crisis and concern among anyone who has a pulse. I feel like a kid on Christmas Eve.
Last term the court came down with some consequential decisions about gay marriage, affirmative action and voting rights. The year before, they weighed in on the most divisive issue of all, the ACA (which some refer to as the Abominable Care Act but is generally recognized as simply “Obamacare.”)
The last two terms had the court swinging back and forth between the right and the left wings, leaving the center (spelled A-N-T-H-O-N-Y-K-E-N-N-E-D-Y) reeling from the back draft. Of course, Justice Kennedy often cast the decisive vote in many of those cases, becoming a lightning rod for both praise and vilification.
For abortion rights activists, he’s the fellow who hates women because he deprived them of their preferred form of infanticide. Ruth Bader Ginsburg basically said as much in her dissent to Gonzalez v. Carhart, the case that outlawed a particularly gruesome form of late-term abortion.
For supporters of traditional marriage, Kennedy is the man who hastened Armageddon by opening the door to the closet. When he wrote the majority opinion in Windsor v. U.S. striking down a key provision of the Defense of Marriage Act, he essentially invited the LGBT community to storm the legislative barricades barring same-sex marriage at the state level. And they accepted the invitation with gusto.
So this term, all eyes are again on the guy from Sacramento who is always the biggest “October surprise.” While it’s still too early to predict which cases the court will agree to hear, the ones they’ve already accepted are extremely significant and — if initial indications are accurate — could end up putting smiles on conservative faces.
One of the more controversial, um, controversies deals with whether voters in a state can pass a referendum banning the use of race in admissions decisions. In Schuette v. Coalition to Defend Affirmative Action, the court will examine a voter initiative in Michigan that essentially overruled a court precedent authorizing racially based preferences. Kennedy has always been squeamish about allowing race to be a factor in preferential decisions, and if he teeters to the right on this one, it may toll the death knell for affirmative action.
Another interesting case involves this hot-button issue: prayer in the public square. In Town of Greece v. Galloway, the court will be asked to decide whether a municipality is within its rights to invite a minister to give a Christian invocation at a town hall meeting. No telling how the court will rule on this one, but one thing is certain: it won’t be unanimous for either side.
But the real showdown on religion will come with an almost-guaranteed review of what has come to be called the “Birth Control Mandate.” One of the most controversial aspects of Obamacare is the requirement that employer-provided insurance policies include coverage for contraceptives. A split in the lower courts virtually guarantees that the Supremes will examine the constitutionality of forcing an employer to subsidize the Pill for workers, overriding any religious objection the employer may have. That one is also too close to call but, given his past record, there’s a strong suggestion that Kennedy will veer to the right on what could be viewed as unfair encroachment on the Free Exercise clause. If that happens, Sandra Fluke is going to have to take a second job to pay for those Saturday night extras.
And then we have the abortion debate, which, thanks to Harry Blackmun and the penumbras that just keep on giving, will never go away. This term, the court has already granted certiorari on a case which deals with just how well you can muzzle the protesters. In McCullen v. Coakley, the court will decide whether a Massachusetts law that forces pro-life advocates to stay 35 feet away from clinic entrances violates their First Amendment rights. While this is more a free speech case than one that deals strictly with abortion, the subject matter of the “speech” is going to a lot of attention. Given the sympathetic reading the court gave to the rights of the gay-bashing Westboro Baptists, this might end up in the win column for those who mix rosaries and ovaries.
The court might also agree to hear other cases that limit abortion, like laws that mandate ultra sounds for pregnant women and acknowledge the concept of “fetal pain.”
Regardless of the actual results, it’s going to be a good year. Excuse me while I go set out cookies and milk for the justices.
Christine M. Flowers is a lawyer and columnist for the Philadelphia Daily News. Readers may send her email at cflowers1961gmail.com.
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