Most all of the news coming out of SCOTUS this year has been less than heartening for the conservative battalions around the nation. Okay… who am I kidding? It’s been pretty much of a disaster. But you might find a bit of good cheer to kick off September by reading this bit of prognostication from Jeffrey Toobin a the New Yorker. Toobin acknowledges that cases such as Obergefell v. Hodges, King v. Burwell and Texas Department of Housing and Community Affairs v. Inclusive Communities Project all went badly for the Right. But with those defeats in the rear view mirror he warns that the Left shouldn’t get too comfortably in their winning ways.
Don’t expect the streak to last. The liberals’ big victories last term arose from a very particular set of circumstances. Justice Anthony Kennedy has displayed a consistent respect for the rights of gay people, which made his alliance with the four liberals (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) on same-sex marriage almost a foregone conclusion. In King v. Burwell, a group of conservative legal activists pushed such a transparently fraudulent claim about the text of the Obamacare law that Chief Justice John Roberts and Kennedy (who are no fans of the law) had to reject the claim.
But the conservatives on the Court are poised for a comeback, and the subjects before the Justices appear well suited for liberal defeats.
One of the cases he’s looking at in particular deals with affirmative action. The court already heard Fisher v. University of Texas once but kicked it back down to the state level. The case seeks to limit racial preferences in college acceptance but has broader implications beyond that. Toobin’s take is that it is highly unlikely that they would agree to hear it a second time just to keep everything the way it is, and John Roberts has been no fan of racial quotas since he arrived on the bench.
The second, perhaps more surprising situation involves abortion restrictions. Nobody is predicting a complete rejection of Roe v. Wade, but there are several cases brewing which involve twenty week limits on the procedure and requirements for the qualifications of doctors working at clinics. Kennedy has looked favorably on at least some abortion restrictions in the past, so Toobin thinks he’s probably ready to line up with the four conservatives on at least some of these cases.
The last item under discussion is one that we’ve talked about here before… Friedrichs v. California. That’s one that the labor unions are watching very closely because if it goes against them the public sector unions won’t be able to take dues out of non-members’ paychecks without their permission. The unions have been on a streak of bad luck in the courts lately and if that one goes pear shaped on them it will cost them a fortune.
None of these are a sure thing, of course. I think Chief Justice Roberts has already shown us that you never know what he’s going to do on any given day, but Toobin’s reasoning seems solid. You’ve still got a full sixteen months or more of Obama being in the Oval Office, so you may has well have something to look forward to.