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Recess Is Over: What the Supreme Court Has in Store for Us Now

Posted on Feb 14, 2014

By Bill Blum

(Page 2)

In a saner world, Thomas’ ravings might be consigned to a harmless segment of “The Daily Show.” But with the court’s recess drawing to a close, Thomas’ views have the potential to shape the outcome of a range of cases that will have a lasting impact on our laws, politics, the environment and the economy, including:

Affirmative Action: Schuette v. Coalition to Defend Affirmative Action (argued in October)

Last term, the court dealt a mild setback to colleges that have chosen to adopt race-conscious programs when it remanded a case involving the University of Texas’ admissions plan back to a federal appellate panel for reconsideration under a more stringent and difficult-to-meet constitutional test (Fisher v. Texas). This time, in a case from Michigan that offers Thomas the opportunity to deny others the benefits he once received, the question before the court is far more extensive: whether a state, by a legislative act or popular initiative, can prohibit affirmative action even if a university system chooses on its own to implement or maintain a race-based program.

Environment: Environmental Protection Agency v. EME Homer City Generation (argued in December)


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At the request of the Obama administration, the American Lung Association and environmental groups, the court has taken up a federal appellate ruling that had invalidated the Environmental Protection Agency’s Cross-State Air Pollution rule, which is designed to enforce the Clean Air Act by setting limits on nitrogen oxide and sulfur dioxide emissions from coal-fired power plants in 28 Eastern states. Although some observers see the decision to hear the case as a sign of support for the EPA, don’t take any deep breaths. The Roberts court has a dismal record on environmental protection, aligning itself time and again on the side of corporate interests and polluters.

Unions: Harris v. Quinn (argued in January)

To put it bluntly, the Roberts court hates unions, especially public sector unions that contribute financially to Democratic Party candidates and progressive political causes. In 2012, in SEIU v. Knox, the court made it harder for public unions to collect “fair share” fees from nonunion members of established bargaining units to combat anti-union ballot initiatives. Now, the court will decide if collecting any fair share fees, including those for non-electoral purposes, from nonunion workers to promote collective bargaining violates the First Amendment associational rights of those workers. Another union defeat could spell the end for labor’s already dwindling influence on the nation’s political life.

Separation of Powers: NLRB v. Canning (argued in January)

Next to unions, the five-member Republican majority on the current court dislikes Obama. The Canning case involves the president’s temporary “recess” appointment of three candidates to the Republican-dominated National Labor Relations Board in January 2012, while the Senate was holding pro forma sessions every three days but was for practical purposes closed for business. Although the appointees were subsequently confirmed by the full Senate, the case is widely regarded as a test of presidential authority.

In another era, reining in executive power might be seen as a much-needed affirmation of shared authority among the three branches of government. Given today’s dysfunction in Washington, a loss for Obama may mean even more tea-party obstruction.

The Death Penalty: Hall v. Florida (to be argued in March)

In 2002, the court held that executing the mentally disabled violated the Eighth Amendment prohibition against cruel and unusual punishment. However, the court left it up to the states to define disability.

Florida is one of 10 states (the others are Arkansas, Delaware, Idaho, Kentucky, Maryland, North Carolina, Tennessee, Virginia and Washington) that use IQ scores of 70 as a bright line establishing disability. Freddie Lee Hall, convicted of murder and himself a victim of horrendous abuse as a child, has tested at or below the cutoff on several occasions. His co-defendant received a life sentence, proving once again the arbitrary nature of the death penalty.

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