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
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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.

Obama­care

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.

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