SCOTUS: Taking Care of (Unfinished) Business

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Kimberly Robinson

Sept. 15 — The U.S. Supreme Court kicks off its 2015 term October 5, and it looks like the justices are ready to take care of unfinished business.

It's not unusual for the Supreme Court to revisit issues it has previously addressed, UCLA law professor Adam Winkler told Bloomberg BNA.

Judges aren't like legislators who can pass comprehensive laws, he said. They are confined by the cases presented to them, so they have to work piecemeal, Winkler said Sept. 8.

The court most obviously took a gradual approach in its voting rights and campaign finance cases, the Cato Institute's Ilya Shapiro told Bloomberg BNA.

Next term, the top court will revisit not one, but two, hot-button issues: affirmative action and the viability of public sector unions.

Later = Now

Chief Justice John G. Roberts is an incrementalist, Shapiro said Sept. 1.

Changes in the law slowly drip from each case on a particular issue, he said.

He pointed to the court's controversial decision to strike down a key part of the Voting Rights Act in Shelby Cty. v. Holder, 81 U.S.L.W. 4572, 2013 BL 167707 (U.S. June 25, 2013).

Before Shelby County, the court strongly signalled that it was considering striking down the VRA's “coverage formula” in Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) (“NAMUDNO”). That coverage formula delineated which jurisdictions must get “preclearance” before making any change affecting voting.

Four years later, in Shelby County, the court did just that.

“One last chance” opinions—like NAMUDNO—are a way for the court to give notice of future, potentially disruptive decisions, Richard Re, also at UCLA Law School, told Bloomberg BNA.

In these one last chance decisions, there is reason to think that the court “deferred issuing a big decision in order to give notice of the possibility that it would do so later,” Re said in a Sept. 1 e-mail.

For public unions and affirmative action, “ ‘later' seems like it might be this term,” he said.

Re said two cases from the Supreme Court's upcoming term have been teed up for disruptive outcomes: Friedrichs v. Cal. Teachers Ass’n, review granted, 83 U.S.L.W. 3942 (U.S. June 30, 2015) (No. 14-915), the public union case, and Fisher v. Univ. of Texas at Austin, review granted, 83 U.S.L.W. 3928 (U.S. June 29, 2015) (No. 14-981), on affirmative action.

Sorting Out Anomaly

Friedrichs is the end of a “labor-law trilogy,” Shapiro said.

First came Knox v. Serv. Emps. Local 1000, 80 U.S.L.W. 4512, 2012 BL 153979 (U.S. June 21, 2012), then Harris v. Quinn, 82 U.S.L.W. 4662, 2014 BL 180311 (U.S. June 30, 2014), and now Friedrichs, he said.

Winkler—who is a member of the American Constitution Society Board of Directors—explained that in both Knox and Harris, the court more or less invited challenges to so-called agency-shop arrangements in the public sector.

These agency-shop arrangements—also called union fair share fees—allow unions to collect fees from nonmembers. However, the fees can only be used for collective bargaining, contract administration and grievance adjustment—not political activities.

The Supreme Court originally upheld these fees against a First Amendment challenge nearly 40 years ago in Abood v. Detroit Bd. of Education, 431 U.S. 209 (1977).

There, the court said the compulsory fees were necessary to avoid a free rider problem, whereby workers get the benefits of union representation without having to pay for them.

But the court signaled its willingness—or even desire—to overrule Abood in Knox and Harris, Winkler said, pointing out that both cases describe Abood as an “anomaly.”

Now it seems as though the court is ready to sort that anomaly out, Winkler said.

Although Friedrichs explicitly asks the court to overrule Abood, Shapiro said the court can still be incrementalist if it wants to.

The court can simply require non-members to “opt-in” to such fees, rather than overrule Abood outright, he said.

Of course, that would have the same basic effect, Shapiro said.

When Push Comes to Shove

But while Friedrichs involves the court's return to a favored subject matter, Fisher is distinct in that it involves the exact same case, Winkler said.

The court first examined the University of Texas at Austin's affirmative action program two years ago in Fisher v. University of Texas at Austin, 81 U.S.L.W. 4503, 2013 BL 167358 (U.S. June 24, 2013).

In a narrow decision, the court held that the Fifth Circuit didn't hold the university to the demanding requirements of strict scrutiny when it deferred to the university's determination that its affirmative action program was narrowly tailored to achieve a diverse student body.

The court sent the case back to the Fifth Circuit, which upheld the university's affirmative action program once again (758 F.3d 633 (5th Cir. 2014)).

Fisher I was a 7-1 decision, with Justice Elena Kagan recused.

Winkler said the nearly unanimous decision seemed to hide deep divisions between the justices on affirmative action.

Both he and Shapiro noted that Fisher I was argued in October, at the beginning of the court's 2012 term. But the opinion wasn't handed down until the last week of the term in late June.

The opinion itself was a short, “almost nothing” opinion, Shapiro said. It left people wondering why it had taken the court so long, he said.

Many predicted Fisher I was going to be a harsh, 5–3 decision limiting affirmative action, but Justice Anthony M. Kennedy—who wrote for the Fisher I majority—was somehow convinced to write a more narrow opinion, Shapiro said.

It's likely that the court will answer in Fisher II questions that it left for another day in Fisher I, Winkler said.

Now the question may very well be how much the court will scale back affirmative action, he said.

When push comes to shove, it's the Kennedy court, Winkler said. So all eyes will be on this often-swing justice.

In the past, Kennedy has been hostile to race-based policies, Winkler said.

Kennedy has never slammed the door on affirmative action programs, but he's never voted to uphold one either, Shapiro noted.

However, Winkler said that if the last few terms have taught court watchers anything, it's that it's dangerous to try to predict how the justices will vote.

And Re said that “part of the point of the ‘one last chance' is to generate more information that might dissuade the Court from following through” on a disruptive result.

Court watchers will likely get their first peek at how the justices are thinking about Friedrichs and Fisher before the year is out. Although not yet scheduled, oral arguments will likely occur in both cases in December.

To contact the reporter on this story: Kimberly Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

More Miller

The court once again has the retroactive application of an important criminal issue on its plate.

In Miller v. Alabama, 80 U.S.L.W. 4560, 2012 BL 157303 (U.S. June 25, 2012) (80 U.S.L.W. 1784, 6/26/12), the court held that a mandatory sentence of life without possibility of parole for juvenile offenders violates the Eighth Amendment's prohibition against cruel and unusual punishment.

Whether that decision applies retroactively to inmates that were serving life sentences when Miller was handed down is a question that has divided trial and appellate courts.

The Supreme Court agreed to weigh in last term in Toca v. Louisiana, dismissed, 83 U.S.L.W. 3647 (U.S. Feb. 3, 2015) (No. 14-6381), but the case settled before the justices heard oral argument.

The court teed up the issue again this term when it granted Montgomery v. Louisiana, review granted, 83 U.S.L.W. 3742 (U.S. March 23, 2015) (No. 14-280).

That case is set to be heard Oct. 13.


Redistricting Redux

Another issue that will make a repeat appearance during the court's 2015 term is redistricting.

“Each decade of redistricting presses on the boundaries of unsettled legal issues, particularly issues at the intersection of race and partisan politics,” NYU law professor Richard H. Pildes told Bloomberg BNA.

“The Court and Congress consider these cases to raise issues of exceptional importance, which is why in many of these cases, the Supreme Court is required by statute to hear the case,” he said in a Sept. 1 e-mail.

Just last term, the court heard two redistricting disputes: Ala. Legislative Black Caucus v. Alabama, 83 U.S.L.W. 4210, 2015 BL 81884 (U.S. March 25, 2015) and Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n, 83 U.S.L.W. 4633, 2015 BL 206163 (U.S. June 29, 2015).

The Arizona case focused on the problem of political gerrymandering, and whether states could take the task out of the hands of the legislature and put it with an independent commission.

In dissenting from the majority's determination that states could employ this mechanism, Chief Justice Roberts criticized the effectiveness of independent commissions at curbing political gerrymandering. Evidence shows that these commissions aren't immune to “partisan influence,” the chief said, citing Harris v. Ariz. Indep. Redistricting Comm'n, 993 F. Supp. 2d 1042 (D. Ariz. 2014).

The very next day, the Supreme Court agreed to hear the Harris case, review granted, 83 U.S.L.W. 3942 (U.S. June 30, 2015) (No. 14-232).

The case invokes the “one-person, one-vote” principle, as does another redistricting case the court has agreed to hear next term, Evenwel v. Abbott, review granted, 83 U.S.L.W. 3867 (U.S. May 26, 2015) (No. 14-940).

Request Litigation on Bloomberg Law