Everything You Need to Know About the New Supreme Court Term

Election '16

The Supreme Court's fall term began with a eyebrow-raising suprise on Monday. Minutes after bringing down the gavel, Chief Justice John Roberts asked the federal government to reply to a brief by Liberty University—started by Christian evangelists—over whether Obamacare’s constitutionality should be reexamined on religious objections that weren’t settled when it upheld the law last June.

If progressives are lucky, we will see the Court’s record and impact return to the biggest national political stage, the 2012 presidential campaign, because the most contentious cases that are poised to come before the Court’s new term concern equal rights issues, centered on how far the government can go on an individual’s behalf.

Despite both campaign’s reluctance to discuss controversial issues like affirmative action in college admissions, race-based protections in voting rights law, gay marriage or benefits for gay partners, and expanded domestic surviellance in the endless war on terrorism, those issues are slated to come before the Court, or are likely to be heard by the Court because lower courts have taken conflicting stances.

Some respected legal reporters, like Politico’s Josh Gerstein, predict these issues will collide with the presidential campaign, even if no rulings are expected before Election Day. But there are cases on the Court’s schedule that could seep into the presidential debates. Beyond Monday’s surprise revival of religious objections to Obamacare, the highest profile civil rights case to first appear will be over university admissions.

That suit, brought by a white woman who was denied admission to the University of Texas, seeks to overturn decades of affirmative action. It will be heard a day before the vice presidential debates, and stands in contrast to the Obama Administration’s suspension of federal immigration enforcement against undocumented students. Its importance can be measured by how many briefs have been filed—more than 70 so far, with most seeking to preserve affirmative action.

The issue of gay marriage—which was supported by Michele Obama in her high-profile Democratic Convention Speech, and has been opposed by Mitt Romney throughout the campaign—is not yet scheduled to come before the Court. But there is a Massachusetts case on federal benefits to gay partners, and a California case on gay marriage. Either could allow the Justices to take up the issue on broader or narrower terms.

The federal surviellance suit will be heard a week before Election Day, which is too late in the race to be very impactful. Obama’s record on civil liberties in the war on terror has been one of his biggest failings to progressives. But there is little for Romney to gain by making it an issue—since Obama has continued and expanded policies created by George W. Bush, both domestically and abroad.

The voting rights cases heading to the court are harder to game. There are several now in play—over different issues—and unlike the other culture war issues, federal courts have an established history of intervening in elections. The state of Texas has been leading the charge to gut the centerpiece of the 1965 Voting Rights Act, which allows the federal government to reject election law changes in a handful of former Southern states and urban counties with prior histories of race-based discrimination. But there also are lawsuits before the federal courts over recently enacted state voter ID laws that impose more restrictions on voters.

The rights of foreigners to sue in U.S. courts also comes before the Court on Monday, when a group of Nigerians given political asylum sued Shell oil over human rights abuses that occurred in Nigeria before they fled the country. The ex-Nigerians claim Shell conspired with the Nigerian government to kill anti-oil environmentalists. They sued under the Alien Tort Statute, a federal law enacted in 1789 aimed at stopping pirates. That law says American courts can hear civil damage suits brought by a foreign national for “wrongs committed in violation of the law of nations, or a treaty of the United States.”

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