The U.S. Supreme Court begins its new term Monday, so what follows may surprise you. I’m not going to begin my annual court preview with a rundown of the top pending cases (I’ll get to them in due course), but with a few questions and observations about Pope Francis’ landmark visit to the United States.

How many pope watchers and admirers, I wonder, noticed that only four of the high court’s members—Chief Justice John Roberts and Associate Justices Anthony Kennedy, Ruth Bader Ginsburg and Sonia Sotomayor—showed up to hear the pontiff address a joint session of Congress last week?

Among the missing were the tribunal’s three most conservative voices, all hard-core Republicans and ostensibly devout Catholics—Justices Antonin Scalia, Clarence Thomas and Samuel Alito. You might think they would have wanted in on the celebration to demonstrate their fidelity, to see history in the making, or perhaps just to receive a personal blessing or two. Then again, you might be wrong.

So what gives? Was the nonappearance of the three judges a coincidence or the result of unavoidable scheduling conflicts? Or was the right-wing judicial troika sending a message of disapproval to Francis? After all, they’ve done much the same in recent years to President Obama by boycotting his State of the Union addresses.

Only Scalia, Thomas and Alito know the answers to these questions, and to be fair, Alito spoke at the University of Kentucky College of Law on the same day Francis addressed Congress. But I’m guessing the collective absence from the pope’s speech in the end had more to do with doctrinal differences than happenstance or calendar commitments. Indeed, even allowing for the pope’s archaic stance on abortion and same-sex marriage, after hearing Francis talk and reading his remarks there can be little doubt that he and the court’s three extremists reside at opposite ends of the moral universe.

From his espousal of the Golden Rule to his concern for climate change, his kindhearted attitude toward immigration and his antipathy to the greed of unfettered capitalism, the pope’s views on many of the most essential issues of our time are irreconcilable with the increasingly coarse and mean-spirited jurisprudence of Scalia and his cohorts and, all too often, the court as a whole.

Still, as critical as the subjects of climate change and immigration are, from an immediate, practical standpoint, what fundamentally sets the pope at odds with Scalia, Thomas and Alito—and what may well have made them too uncomfortable to attend the papal sermon on the eve of another court term—is Francis’ full-throated opposition to the death penalty.

As the pope told Congress:

“The Golden Rule also reminds us of our responsibility to protect and defend human life at every stage of its development.

“This conviction has led me, from the beginning of my ministry, to advocate at different levels for the global abolition of the death penalty. I am convinced that this way is the best, since every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes. Recently my brother bishops in the United States renewed their call for the abolition of the death penalty. Not only do I support them, but I also offer encouragement to all those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation.”

In complete contradiction to Francis’ teachings, the court ended its 2014 term last June with a heated 5-4 decision in Glossip v. Gross, authored by Alito, that upheld Oklahoma’s newly adopted three-drug lethal injection protocol for the execution of condemned prisoners.

As I’ve written in this column before, quoting professor Steven Schwinn of the John Marshall School of Law in Chicago, Alito’s Glossip opinion was “an exercise in circular reasoning that has established a new set of ‘Wonderland rules’ for method-of-execution claims.”

“Because capital punishment is legal,” Alito declared, “there must be a constitutional means of carrying it out.” Surveying the history of the death penalty, he explained that while methods of execution (from hanging to electrocution, firing squads, lethal gas and injections) have changed over the years, the Supreme Court “has never invalidated a State’s chosen procedure.”

Not content with Alito’s grim pronouncement, Scalia added a venomous concurrence in Glossip that began with the demented salutation: “Welcome to Groundhog Day.” From Scalia’s perspective, condemned prisoners have no business taking up the court’s precious time with futile objections to being executed.

What offended Scalia most, however, was that Justice Stephen Breyer suggested in an impassioned dissenting opinion that the nation’s experiment with creating a rational, reliable and fair system of capital punishment had failed and that the time had come to re-evaluate the entire system’s constitutionality. Breyer’s opinion marked the first time since the late Justice Harry Blackmun’s 1994 dissent in a case from Texas that an active member of the court had formally expressed an abolitionist outlook.

Scalia remains deeply afraid for the death penalty’s future. In a speech delivered at Rhodes College in Memphis, Tenn., two days before the pope’s Washington homily, Scalia said he “wouldn’t be surprised if the Supreme Court overturns the death penalty.” The court, he charged, is “terribly unrepresentative of our country,” lamenting that except for Clarence Thomas, the panel includes no one from the South, where capital punishment is still widely practiced.

Scalia’s fears—and the pope’s admonitions—will be tested in the first month of the new term, when the court hears death penalty cases that will once again expose the cruelty and irrationality of capital punishment. These cases and the other big-ticket items that have thus far made it onto the official docket include the following, broken down by name and subject matter:

The Death Penalty

Set for argument on Oct. 7 are two companion appeals—Kansas v. Carr and Kansas v. Gleason—that will require Scalia and his colleagues to re-examine the legal instructions given to juries at the conclusion of the penalty phase of a capital trial to guide them in weighing defense evidence presented in mitigation of punishment.

The Kansas cases will be followed on Oct. 13, when the court will consider Florida’s unique death-penalty sentencing practices in Hurst v. Florida. Alone among the states, Florida permits juries to recommend the death penalty by a simple 7-5 majority vote. Florida is also one of a handful of states that permit judges to override jury recommendations of life in prison. Such procedures, abolitionists argue, undermine the Sixth Amendment right to trial by an impartial jury as well as the Eighth Amendment ban on cruel and unusual punishment.A fourth death penalty case, slated for argument Nov. 2, is Foster v. Chatman, from Georgia, dealing with claims of racial discrimination and the exclusion of African-Americans in jury selection.

Taken separately or together, the court’s lineup of death-penalty suits could either assuage or heighten Scalia’s trepidations that the days of capital punishment are numbered.

Affirmative Action

Abigail Fisher, the young woman who was denied admission to the University of Texas, Austin, is back with a second challenge (Fisher v. University of Texas) to the Lone Star State’s affirmative action program for higher education. Under that program, students graduating in the top 10 percent of their high school classes are granted automatic admission to any public university in the state. Other UT applicants are evaluated under a “holistic” review process that may take a student’s racial background into account for purposes of achieving the goal of on-campus diversity.

Fisher was recruited to contest the Texas plan on 14th Amendment equal-protection grounds by Edward Blum (no relation), a right-wing libertarian who runs the Project on Fair Representation, a nonprofit legal defense fund located in Austin. The project has bankrolled other race-focused cases in the Supreme Court, including Shelby County v. Holder, the landmark 2012 decision that gutted the Voting Rights Act.

In a 2013 ruling, the Supreme Court remanded Fisher’s lawsuit to the Fifth Circuit Court of Appeals for more rigorous constitutional analysis. To the surprise of many observers, the circuit court upheld the 10 percent program, prompting the Supreme Court to take another look at the case.

This time, the prospects look especially dim for the survival of race-based affirmative action, which had been hanging by a legal thread even before Abigail Fisher came along. With Scalia’s track record of thundering against all forms of “racial entitlements” and with few staunch defenders on the court apart from Justices Sotomayor and Ginsburg, affirmative action’s epitaph could be written by the close of the present term at the end of June. No oral argument date has been set.


Another lawsuit from Texas financed by the Project on Fair Representation and also awaiting a date for oral argument is Evenwel v. Abbott, a case with profound political ramifications for the way states draw legislative district boundary lines.

Under decades-old Supreme Court precedents, legislative districts must be devised as closely as possible to the ideal of “one person, one vote,” roughly equalizing populations in each district so that no individual’s vote carries more weight than any other’s when electing state and federal representatives. Left undecided by the high court’s prior cases, however, is whether the “one person, one vote” rule requires states to use total population figures, including children and noncitizens who can’t vote, for drafting district lines or merely the number of registered voters.

The fair-representation project isn’t asking the question for abstract, academic reasons. It wants the Supreme Court to hold that registered voters are the operative population group in order to weaken the political clout of Hispanics, who lean Democratic and tend to have big families with young children and whose communities also include large numbers of immigrants. With such people excluded for apportionment purposes, Texas Hispanics could legally be gerrymandered into fewer voting districts, diluting their electoral potential.

Union Busting

With Alito crafting bitterly divided majority opinions, the Supreme Court has taken dead aim at public-sector unions, the last bastion of organized labor in America and a key source of campaign money for liberal political causes and candidates.

In 2012 (Knox v. SEIU) and 2014 (Harris v. Quinn), the court came perilously close to overturning the long-established “fair-share” system, which requires employees who exercise their right not to join a union nonetheless to pay a percentage of regular union dues to cover the costs associated with collective bargaining and contract administration. Fair-share fees exclude dues spent on political measures.

The fair-share system is under review once more this term in Friedrichs v. California Teachers Association. Brought on behalf of 10 Orange County schoolteachers and the Christian Educators Association International by the Washington, D.C.-based Center for Individual Rights, the case seeks to end fair-share arrangements, threatening to turn the nation’s entire public sector into one enormous “right-to-work” jurisdiction.

The case, as I’ve noted previously, is based on a twisted interpretation of the First Amendment, which asserts that mandatory fair-share fees are a form of compelled speech that undermines the rights of nonunion workers to freedom of association.

Oral argument has not yet been set.

Pending Petitions, the 2016 Elections, and the Pope’s Long Shadow

Before the court concludes its business next summer, it definitely will add other important cases to its docket. Among the most prominent under consideration are two police-misconduct suits from Texas (Mullenix v. Luna) and California (City of Los Angeles v. Contreras) dealing with the appropriate use of deadly force by law enforcement. Although each case involves Latinos, each could have an impact on the Black Lives Matter movement.

But no matter which cases the court elects to add as the current term unfolds, the presidential election will loom ever closer. As always, the court will be swept up in the quadrennial national debate over its proper role as the final arbiter of constitutional rights.

By then, of course, the pope will be long gone from the U.S. But his message of tolerance, fairness and equality will linger, casting a shadow over the deliberations of the justices—Scalia, Thomas, Alito and the rest—every time they violate those values.

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