October 2013 Term Preview: U.S. Supreme Court to Reevaluate Precedents

Photo courtesy of www.nola.com
Photo courtesy of www.nola.com

by: Lauren Gailey, Associate Editor


The United States Supreme Court kicked off its October 2013 term last week despite the government shutdown, which has not yet affected the Court’s argument schedule.  This term’s docket includes cases dealing with a wide range of important and divisive issues such as affirmative action, abortion rights, and campaign finance.

The 2013 term is not expected to feature cases of the same significance to the public as last term’s Fisher v. University of Texas, which called into question the validity of affirmative action in higher education (although the Court ultimately did not decide the issue), and United States v. Windsor, which effectively gutted the federal Defense of Marriage Act.

The Court will still face difficult questions, many of which require it to decide whether to overturn its own past decisions.  Georgetown University Law Professor Pamela Harris told the Associated Press that “aggressive briefing on the conservative side” has called many precedents into question.  Some of the most notable of these cases include:

  • McCutcheon v. Federal Election Commission (No. 12-536) – In Citizens United, the Court famously held independent campaign expenditures unconstitutional under the First Amendment, but left the holding of 1976’s Buckley v. Valeo, which permitted Congress to limit campaign contributions, undisturbed.  In McCutcheon, the Court will revisit the constitutionality of the limit on aggregate contributions in light of changes over time—and in the composition of the Court.
  • Schuette v. Coalition to Defend Affirmative Action (No. 12-682) – The Court will be called upon to decide whether Michigan’s state constitutional amendment forbidding race- or gender-based discrimination or preferential treatment in higher education admissions violates the Equal Protection Clause.  The case implicates the “restructuring doctrine,” applied in 1969’s Hunter v. Erickson and 1982’s Washington v. Seattle School District No. 1, which prevents states from passing the authority to decide a racial issue from one political entity to another when the result is more politically burdensome.
  • McCullen v. Coakley (No. 12-1168) – A Massachusetts law provides for a 35-foot buffer zone on public sidewalks around abortion clinics but exempts the facilities’ employees.  The case will likely turn on whether this exemption renders the buffer-zone “content-based” for First Amendment purposes in that the exempted employees could deliver pro-choice messages.  Because of the exemption and the larger buffer zone, the question is not resolved by 2000’s Hill v. Colorado, which dealt with a “content-neutral” 8-foot buffer zone banning both pro-life and pro-choice protestors.
  • Bond v. United States (12-158) – On its second trip to the Supreme Court, the case of a woman convicted under an anti-terrorism statute after allegedly exposing her husband’s mistress to poisonous chemicals implicates the Treaty Power.  The question is whether the statute in question, which was intended to implement the Chemical Weapons Treaty, is valid as applied to the woman’s conduct.

The Court will also decide a high-profile question of first impression in National Labor Relations Board v. Noel Canning.  There, the justices will be called upon to determine whether President Obama acted within the bounds of the Recess Appointments Clause when he placed National Labor Relations Board and Consumer Financial Protection Bureau director Richard Cordray in office without confirmation by the Senate.  The Court’s decision could limit the president’s power to make such appointments in the future.  Unlike most of the other 2013 term cases, Noel Canning will break new ground.  “No [previous] Supreme Court decisions are material here,” former Department of Justice Official Peter Keisler told the Associated Press.

Ms. Gailey will be working the SCOTUS beat this school year.  Be sure to check back to the Juris Blog for continuing coverage on the major decisions from the 2013 SCOTUS Term.

Lauren Gailey is a third-year student at Duquesne University School of Law.  A former television talk-show producer, Lauren has interned in the U.S. Attorney’s Office and the United States District Court for the Western District of Pennsylvania.  She plans to join Jones Day’s Pittsburgh office in October 2014.

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