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How the High Court Could Shake Up the 2016 Campaign

From immigration to abortion to the power of unions, the Supreme Court is entering this election year with a full plate of politically charged cases.


by Sam Baker     •     NationalJournal

The Court hasn’t of­fi­cially agreed to hear this one yet, but most ex­perts think it will—and that a de­cision will come by the end of June. That’s cer­tainly the Obama ad­min­is­tra­tion’s hope; win­ning at the Su­preme Court is the only way Obama will be able to im­ple­ment his De­ferred Ac­tion for Par­ents of Amer­ic­ans and Law­ful Per­man­ent Res­id­ents pro­gram, or DAPA, which would al­low some 4.3 mil­lion un­doc­u­mented im­mig­rants to re­main in the coun­try.

A rul­ing for the Obama ad­min­is­tra­tion would al­low DAPA to take ef­fect—and Demo­crat­ic front-run­ner Hil­lary Clin­ton has said she would stretch the policy even fur­ther. A loss for the ad­min­is­tra­tion, on the oth­er hand, would vin­dic­ate Re­pub­lic­an cri­ti­cisms that DAPA went too far, and would give a Re­pub­lic­an pres­id­ent a way out of the pro­gram without rolling back any leg­al pro­tec­tions him­self.


Un­der Chief Justice John Roberts, the Su­preme Court has largely stayed out of the abor­tion de­bate. But that will change in June, when the Court is ex­pec­ted to rule on the con­sti­tu­tion­al­ity of state laws that make it much harder for many wo­men to re­ceive an abor­tion. Spe­cific­ally, the Court is con­sid­er­ing a chal­lenge to Texas laws that say abor­tion clin­ics must sat­is­fy cer­tain sur­gic­al stand­ards and that pro­viders must have ad­mit­ting priv­ileges at a nearby hos­pit­al.

All but 10 of the abor­tion clin­ics in Texas would likely be forced to close if the state’s re­stric­tions are up­held—and Texas is not the only state to pass, or con­sider passing, sim­il­ar re­stric­tions. Abor­tion-rights ad­voc­ates say a win for the state at the Su­preme Court would have far-reach­ing con­sequences.

It could be one of the Court’s most sig­ni­fic­ant abor­tion de­cisions since 1992, when it ruled that states can reg­u­late the pro­ced­ure but can­not put an “un­due bur­den” on wo­men’s ac­cess to it. The Court did not give many de­tails about what would con­sti­tute an “un­due bur­den,” and the ques­tion be­fore it now is wheth­er Texas’s re­stric­tions have crossed that line.


Obama­care’s con­tra­cep­tion man­date is not a par­tic­u­larly crit­ic­al part of the law’s cent­ral aims, but the policy already took on out­sized polit­ic­al sig­ni­fic­ance when it reached the high court in 2014. That in­flu­ence could grow even big­ger in 2016, with an abor­tion case also on the dock­et and the pos­sib­il­ity of the first fe­male pres­id­ent just around the corner.

The Court is hear­ing a chal­lenge filed by re­li­gious-af­fil­i­ated non­profit groups. They’re not re­quired to cov­er con­tra­cep­tion in their em­ploy­ees’ health care plans; they can re­cuse them­selves from that duty based on a re­li­gious ob­jec­tion, and the re­spons­ib­il­ity for man­aging birth-con­trol cov­er­age then shifts to their in­sur­ance com­pan­ies. But the non­profits ob­ject to ini­ti­at­ing that pro­cess be­cause it still re­quires them to per­form an ac­tion that ends up with their em­ploy­ees re­ceiv­ing cov­er­age for con­tra­cep­tion.


One of the more com­plic­ated cases on the dock­et this term deals with state le­gis­lat­ive re­dis­trict­ing—and what could be more polit­ic­al than the rules of the polit­ic­al pro­cess?

States are sup­posed to draw their le­gis­lat­ive dis­tricts based on the prin­ciple of “one per­son, one vote.” For dec­ades, they’ve in­ter­preted that to mean that each dis­trict should con­tain roughly an equal num­ber of people. But a hand­ful of voters in Texas say dis­tricts should ac­tu­ally be drawn to equal­ize the num­ber of eli­gible voters, rather than the total pop­u­la­tion.

A vic­tory for those voters would lead to a massive up­heav­al in state re­dis­trict­ing—and would sig­ni­fic­antly be­ne­fit Re­pub­lic­ans, who already have a strong ad­vant­age in state-level polit­ics. The justices were deeply di­vided when they heard or­al ar­gu­ments in the case. Even if they don’t rule that states must re­draw their dis­tricts around eli­gible voters, a rul­ing that says they can draw dis­tricts that way would also be a ma­jor change.

Also: Race, the death pen­alty, uni­ons, and in­di­vidu­als vs. cor­por­a­tions

Be­hind the big-tick­et cases that could end up in pres­id­en­tial-cam­paign ads, the Court’s load of semi-big cases is also es­pe­cially polit­ic­al. Fore­most among them is the latest chal­lenge to af­firm­at­ive ac­tion, which Roberts has worked hard to roll back. The Court has also heard or­al ar­gu­ments in a hand­ful of cases on the death pen­alty, which the Court’s lib­er­als have fought hard to re­strict. While none of this term’s cases present a good vehicle for the Court to re­vis­it the ba­sic ques­tion of wheth­er cap­it­al pun­ish­ment is con­sti­tu­tion­al, they could place new lim­its on the prac­tice, par­tic­u­larly as it’s ap­plied to men­tally ill de­fend­ants.

On Jan. 11, the Court will hear or­al ar­gu­ments in a case that could fur­ther lim­it the power of pub­lic-sec­tor uni­ons—in­clud­ing teach­ers’ uni­ons, tra­di­tion­ally a power­ful Demo­crat­ic ally. A group of non-uni­on­ized pub­lic-school teach­ers is ask­ing the Court to over­turn an earli­er rul­ing that said uni­ons could col­lect dues from non-mem­bers, as long as that money wasn’t spent on polit­ic­al activ­ity.

The Court has already ruled in one of four cases that pit­ted in­di­vidu­al con­sumers against cor­por­a­tions, an­oth­er run­ning theme of the Roberts Court and of the cur­rent term. The justices said in Decem­ber that a class-ac­tion law­suit against Dir­ecTV could not go for­ward and had to be settled through ar­bit­ra­tion—a pro­cess that tends to fa­vor cor­por­a­tions. Three oth­er cases this term could sig­ni­fic­antly re­strict class-ac­tion suits.