When the rest of the government shuts down for a blizzard, the U.S. Supreme Court soldiers on. And so it is that this week, with the rest of the government shut down in a political deep freeze, the high court, being deemed essential, is open for business.
It is, after all, not just any week for the justices. It is the opening of a new term.
The docket this year has nothing quite as riveting as last year's same-sex marriage cases, or the challenge to President Obama's health care overhaul from the term before. But once again, the court is facing hot-button social issues and questions of presidential and congressional power.
Moreover, in a half-dozen cases the court's current conservative majority could well overturn long-established legal precedents.
"It can really knock ... the few legs out of prior, more liberal precedents," says Supreme Court advocate Tom Goldstein, "across an array of incredibly important issues like abortion and religion and civil rights law."
Precedent is, in many ways, the sacred touchstone of the law. To be sure, many famous decisions have overturned precedent. Notable examples are the landmark Brown v. Board of Education decision in 1954, declaring school segregation unconstitutional, and the Citizens United decision in 2010, striking down a century-old legal understanding that banned corporate spending in candidate elections. These, however, are the exceptions. Judges generally treat precedent with reverence.
As Chief Justice John Roberts said during his confirmation hearings, "It is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough that you may think the prior decision was wrongly decided."
Roberts also said a justice must consider numerous factors in deciding whether to overrule a prior decision. Some of these focus on the precedent itself — whether it has been workable, whether it has been relied upon, and whether it has been eroded by subsequent developments. But the court is also keenly aware that if it overturns precedent too frequently, it risks undermining its own institutional legitimacy.
With those considerations in mind, it is notable that the court has accepted for review so many cases that offer the opportunity for reversing precedent.
At the top of the list is a case to be argued this week testing aggregate limits on campaign contributions. In the 1976 case of Buckley v. Valeo, in the aftermath of the Watergate scandal, the court upheld an earlier version of these contribution limits. In Buckley, the court drew a line between contributions to candidates and parties, on the one hand, and expenditures by independent groups, on the other.
Since 1976, the court has repeatedly upheld the constitutionality of limits on contributions, stating that unlimited contributions create the potential for corruption or the appearance of corruption. Challengers to campaign finance restrictions are now seeking to obliterate that line, and there is ample reason to believe that the conservative majority may agree.
While there is no direct challenge to Roe v. Wade, there are cases that would allow the court to chip away at the right to abortion. In addition, the court is revisiting its 13-year-old decision allowing buffer zones to protect abortion clinic patients from close contact with protesters.
The court will also hear cases that involve religious questions. In Town of Greece v. Galloway, it will consider the constitutionality of prayers given by private clergy at city council meetings. The court is also likely to take on a case in which several for-profit companies are challenging the Affordable Care Act's contraceptive coverage requirement. The companies allege that the requirement infringes on the their religious rights.
After last term's shrug on affirmative action, it's back — in a way. This term, the court is not being asked to decide whether affirmative action policies are permissible in higher education. Instead, in a case from Michigan, the question is whether voters can use a referendum to ban affirmative action in higher education.
The Fair Housing Act faces a challenge in another civil rights case. The federal appeals courts have, for decades, uniformly approved the use of statistics to prove that minorities are being treated differently. Because proving discriminatory intent is difficult, statistics have been used to enforce civil rights statutes by proving that a particular action has a discriminatory effect on minorities. In a Fair Housing Act case before the court, the challengers are contending that statistics are not enough to prove discrimination.
Separation Of Powers
This term also brings two important cases testing the limits of executive and congressional power. One asks what, if any, limits there are on Congress' power to pass legislation implementing treaties.
The other case, NLRB v. Noel Canning, examines what constitutes a congressional recess. The Constitution allows the president to make recess appointments when the Senate is not available to vote on nominees' confirmations. At issue is whether Republicans can use 30-second "pro forma" sessions to prevent such appointments, and whether President Obama can circumvent those pro forma sessions by making appointments during a three-day recess.
Although it hinges on a detail, the case has enormous ramifications in the current political climate. The president has made "the most aggressive use of the recess appointment power imaginable," says Paul Clement, a former solicitor general under President George W. Bush. But even Clement concedes that presidents of both parties have made hundreds of recess appointments since the founding of the republic. Under the lower court ruling in this case, nearly all of those would have been unconstitutional.