Why Liberals Should Fear the Supreme Court in 2015

Obamacare, religious freedom, and same-sex marriage equality are all on the judicial agenda.

National Journal
Sam Baker
Add to Briefcase
Sam Baker
Dec. 26, 2014, midnight

The Su­preme Court is poised for a block­buster year in 2015—and the list of high-pro­file cases could keep grow­ing.

Already, the Court is set to rule in a case that threatens to wreak hav­oc on Obama­care. The justices are also con­sid­er­ing ques­tions of re­li­gious free­dom, free speech, and lim­its on polit­ic­al fun­drais­ing.

That mix of cases poses big risks for lib­er­als, who were caught off guard by the Court’s en­thu­si­asm for an­oth­er high-stakes Obama­care battle. And un­der Chief Justice John Roberts, the Court has stead­ily chipped away at cam­paign-fin­ance lim­its.

But Re­pub­lic­an gov­ernors and so­cial con­ser­vat­ives also have a lot on the line: As soon as the justices re­turn from their hol­i­day break, they’ll have to de­cide wheth­er to take up same-sex mar­riage once again—a step many leg­al ob­serv­ers be­lieve the Court will simply have to take, and one that could clear the way for same-sex couples to leg­ally marry in every state.

Here are the highest-pro­file is­sues the Court will likely tackle just in the first six months of 2015, be­fore the cur­rent term ends around the end of June.


The justices will hear or­al ar­gu­ments March 4 in a law­suit that threatens to cripple the health care law, just three years after Chief Justice John Roberts helped save it. This time, the chal­lengers want the Court to in­val­id­ate the law’s premi­um sub­sidies in states that didn’t set up their own in­sur­ance ex­changes. Most states didn’t es­tab­lish their own ex­changes, and more than 80 per­cent of en­rollees are get­ting sub­sidies—so a win for the chal­lengers here would likely make in­sur­ance un­af­ford­able for about 5 mil­lion people and could make in­sur­ance mar­kets un­stable in most of the coun­try.

Obama­care’s sup­port­ers are nervous about this case, King v. Bur­well, not only be­cause of its im­plic­a­tions, but be­cause of the way the Su­preme Court de­cided to hear it. The justices took up the Obama­care case much earli­er than many ob­serv­ers had ex­pec­ted, opt­ing not to wait for a lower-court rul­ing that likely would have strengthened the Obama ad­min­is­tra­tion’s hand.

The fact that the Su­preme Court de­cided to jump in without wait­ing for that lower-court rul­ing was seen as a sign that the Court’s con­ser­vat­ive bloc is itch­ing for an­oth­er shot at the Af­ford­able Care Act. The big ques­tion now is wheth­er Roberts will save the law again.

Same-sex mar­riage equal­ity

The Court hasn’t yet said wheth­er it will act on the latest round of ap­peals in same-sex mar­riage cases, but just about every­one wants it to. When the justices meet on Jan. 9 for a private con­fer­ence to de­cide which cases they want to con­sider, chal­lenges to sev­er­al states’ mar­riage laws will be on the sched­ule—and even more states have asked the judges to just settle the mar­riage-equal­ity ques­tion once and for all.

The Court had tried to stay away from the is­sue since its land­mark rul­ings last year that struck down a key part of the De­fense of Mar­riage Act and opened the door to same-sex mar­riage in the states without man­dat­ing it.

When a fed­er­al Ap­peals Court up­held same-sex mar­riage in sev­er­al states, the justices de­clined to hear an ap­peal. But then the Court of Ap­peals for the 6th Cir­cuit up­held bans on same-sex mar­riage in Michigan and Ken­tucky, as well as state laws in Ohio and Ten­ness­ee. So now the Ap­peals Courts are di­vided over the con­sti­tu­tion­al­ity of state laws ban­ning same-sex mar­riage, and al­most all of the states in ques­tion have asked the Su­preme Court to settle the is­sue for good. Giv­en the patch­work of laws from state to state, many leg­al ob­serv­ers say it’ll be hard for the Court to stay on the side­lines this time.

Re­li­gious free­dom

Re­li­gious liberty was the de­fin­ing is­sue of 2014’s biggest rul­ing—the Hobby Lobby de­cision in­volving Obama­care’s con­tra­cep­tion man­date—and it’s back in a big way this term. The Court has already heard or­al ar­gu­ments in a suit filed by an Arkan­sas in­mate who wants to grow a beard, in ac­cord­ance with his Muslim faith but in vi­ol­a­tion of pris­on rules. Dur­ing or­al ar­gu­ments, the justices re­portedly seemed to be sid­ing with the in­mate, ques­tion­ing wheth­er the pris­on sys­tem could en­sure in­mates’ safety without such strict rules against beards.

The Court has agreed to hear a second, sim­il­ar case, but hasn’t yet sched­uled or­al ar­gu­ments. This one con­cerns a wo­man who was denied a job at an Aber­crom­bie & Fitch store be­cause the head scarf she wore, as a prac­ti­cing Muslim, wasn’t con­sist­ent with the com­pany’s “Look Policy.” The ques­tion in the case is wheth­er a busi­ness can dis­crim­in­ate against someone’s re­li­gion if it didn’t know that a re­li­gious ac­com­mod­a­tion was needed.

Free­dom of speech

The Court has teed up three po­ten­tially sig­ni­fic­ant cases on free­dom of speech un­der the First Amend­ment—in­clud­ing one that wades in­to the Roberts Court’s fa­vor­ite free-speech sub­ject: cam­paign fin­ance law.

The first, in which the justices have already heard or­al ar­gu­ments, con­cerns so­cial-net­work­ing sites and asks what type of mes­sages con­sti­tute a “threat.” The case con­cerns a man, An­thony El­onis, who pos­ted vi­ol­ent Face­book mes­sages about an ex-wife, in­clud­ing some that dis­cussed killing her. But the ques­tion is wheth­er those mes­sages meet the leg­al stand­ard for a “threat,” which says that a “reas­on­able per­son” must con­clude that the per­son mak­ing the state­ment is ac­tu­ally ex­press­ing an in­tent to com­mit vi­ol­ence.

The second free-speech case the Court has agreed to hear deals with a Flor­ida law that pro­hib­its ju­di­cial can­did­ates from per­son­ally so­li­cit­ing cam­paign con­tri­bu­tions—they have to set up a fun­drais­ing com­mit­tee, to avoid situ­ations in which a per­son wins and be­comes a judge, then has to try to re­main im­par­tial while de­cid­ing a case that in­volves a ma­jor donor. The Roberts Court hasn’t found many cam­paign fin­ance laws it likes, and crit­ics fear that a rul­ing against Flor­ida’s fun­drais­ing ban would have broad­er na­tion­al im­plic­a­tions that threaten judges’ in­de­pend­ence.

Fi­nally, there’s the free-speech is­sue that nev­er dies: the Con­fed­er­ate flag. Of­fi­cials in Texas re­jec­ted a pro­posed li­cense-plate design from a group called Sons of Con­fed­er­ate Vet­er­ans, which, un­sur­pris­ingly, in­cluded the Con­fed­er­ate flag. The state said the li­cense plate would con­jure up as­so­ci­ations with “ex­pres­sions of hate,” but a lower court said the design should have been al­lowed. Now the Su­preme Court will have to de­cide who’s right.

What We're Following See More »
Tying Republicans to Trump Now an Actionable Offense
25 minutes ago

"Some Republicans are running so far away from their party’s nominee that they are threatening to sue TV stations for running ads that suggest they support Donald Trump. Just two weeks before Election Day, five Republicans―Reps. Bob Dold (R-Ill.), Mike Coffman (R-Colo.), David Jolly (R-Fla.), John Katko (R-N.Y.) and Brian Fitzpatrick, a Pennsylvania Republican running for an open seat that’s currently occupied by his brother―contend that certain commercials paid for by the Democratic Congressional Campaign Committee provide false or misleading information by connecting them to the GOP nominee. Trump is so terrible, these Republicans are essentially arguing, that tying them to him amounts to defamation."

Former Congressman Schock Fined $10,000
34 minutes ago

Former Illinois GOP Congressman Aaron Schock "recently agreed to pay a $10,000 fine for making an excessive solicitation for a super PAC that was active in his home state of Illinois four years ago." Schock resigned from Congress after a story about his Downton Abbey-themed congressional office raised questions about how he was using taxpayer dollars.

Clinton Reaching Out to GOP Senators
1 hours ago

If you need a marker for how confident Hillary Clinton is at this point of the race, here's one: CNN's Jeff Zeleny reports "she's been talking to Republican senators, old allies and new, saying that she is willing to work with them and govern."

Filipino President Duterte Threatens to Expel U.S. Troops
1 hours ago

On Tuesday, President Rodrigo Duterte of the Philippines threatened to kick U.S. troops out of the country, adding that if he remains president for more than one term he will move to terminate all military deals with America. Last week, Duterte called for a separation between the two countries, though other government officials immediately said he did not mean that literally.

Trump Admits He’s Behind
1 hours ago

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.