Why the Supreme Court may swing right on key issues this session


JUDY WOODRUFF: It's the first Monday in October, and that means the Supreme Court kicks off its new term. The court will deal with several political issues, among them, affirmative action, voting rights and labor unions.

For what to look for in the months ahead, we are joined, as always, by Marcia Coyle of "The National Law Journal."

Welcome back to the program, Marcia.

MARCIA COYLE, The National Law Journal: Thanks, Judy. It's good to be back.

JUDY WOODRUFF: So, it is developing into a pretty big term.

MARCIA COYLE: It is, and not only the cases that the court has already agreed to hear, but there are some big ones waiting in the wings that the justices are likely to add to this term's docket.

JUDY WOODRUFF: Now, you were just telling me that there's a lot of conversations, before we get into some of the specifics, that this — a lot of conversation about how this could turn out to be a more conservative term than the last one.

What did you mean by that?

MARCIA COYLE: Well, so much of a term's character depends on the nature of the cases that the justices take, but it also depends on if those cases are controversial and the court is likely to split ideologically, Justice Kennedy is in the middle. He's the swing vote. And he tends to vote conservative more than he does to the left on certain issues.

And those certain issues are on the docket, as you mentioned, affirmative action, voting, First Amendment, unions.

JUDY WOODRUFF: Well, let's tackle a few of those, and let's start with affirmative action. This is Fisher vs. the University of Texas.


The University of Texas uses race as one of something like 17 different factors in its admissions policies. Its goal is to achieve broader diversity. This is the second time this case has come to the courts. But, several terms ago, the court sent it back to the lower courts because it believed that the lower courts hadn't applied strict scrutiny, that is, that it hadn't found — it hadn't first looked at whether race-neutral alternatives were used by the university before using race.

Went back to the lower court. The lower court once again said, this program passes constitutional muster. Comes back up to the Supreme Court. And, apparently, there are four justices, because you only need the votes of four, who still want to look at the use of race to achieve diversity in higher education.

JUDY WOODRUFF: So, as you say, the second time before the court.

Another Texas case, Marcia, this one on political redistricting, one person, one vote.


And it's hard to believe that the principle of one person, one vote is now before the Supreme Court in a very basic way. How should you count people in order to get to one person, one vote in legislative districts?

The state of Texas, in fact, just about every single state counts total population in order to get to that. But the challengers in this case say, no, you really should count voting population, eligible voters. And the reason it has politically high stakes is if you go with voting population, that tends to benefit rural areas, where people do vote more and they tend — trend to vote Republican.

If you do it on total population, which includes not only voters, but non-citizens, they tend to trend Democratic in voting.

JUDY WOODRUFF: So you're going to capture a bigger group, including…

MARCIA COYLE: Right. Exactly.

JUDY WOODRUFF: And it raises probably some questions about…


MARCIA COYLE: Favored cities, yes.

JUDY WOODRUFF: So, another case that we know is coming up has to do with public sector labor unions and individuals who are not paying members, dues-paying members of these unions, but who may receive benefits.

MARCIA COYLE: Well, back in 1977, the Supreme Court decided a case in which it had to strike a balance between the First Amendment rights of non-union members, as well as unions' rights. When they engage in collective bargaining, the benefits of collective bargaining also go to the non-union members in the public sector.

And the unions look at that as free-riding. And so the Supreme Court says the First Amendment rights of non-union members really aren't hindered if they contribute to the cost of collective bargaining, but they don't have to pay for the unions' non-collective bargaining activities, like political lobbying, speech, things like that.

But in the case before the Supreme Court, the court is being asked to overrule that 1977 decision and eliminate the fees that non-union members pay to unions. So, the stakes are very high for public sector unions, which remain the largest unions in the country.

JUDY WOODRUFF: And the other thing, Marcia, as you have told us, there are a couple of cases that are, in your words, in the wings, potentially really controversial cases.


Yes, there are two petitions pending, two cases pending right now involving abortion clinics and restrictions on how those clinics operate. This goes to the sort of art of the abortion right. How do you determine what is an undue burden on a woman's right to abortion? Do these restrictions or regulations, are they an undue burden and, thus, unconstitutional?

And in the second group of cases, there are seven right now and there probably will be more, come from religious nonprofits who are objecting to how the government accommodate their objections to contraceptive health insurance.

JUDY WOODRUFF: Well, it's enough to keep you very, very busy this term.

MARCIA COYLE: Potentially a very big term, Judy.

JUDY WOODRUFF: Marcia Coyle, thank you. We look forward to seeing you again soon.

MARCIA COYLE: My pleasure.

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