In the political, religious and cultural battles fought out before the United States Supreme Court these days, sometimes the cases that do not reach the court have the greatest impact.
Steve Shapiro, Chief Counsel for the American Civil Liberties Union, noted in Boston remarks Tuesday that keeping certain cases off the Supreme Court docket, where the decisions below have struck a blow for civil liberties, is sometimes important.
Thus, working for the Supreme Court to deny cert for cases that strike down city ordinances preventing rental of apartments to undocumented aliens, striking down an Arizona statute that makes illegal any abortion after twenty weeks (clearly prior to the recognized point of fetus viability), preventing review of the 9th Circuit decision striking down a Florida executive order requiring executive employees of all agencies to undergo drug tests, keeping the Supreme Court away from revisiting a free speech case in which a Pennsylvania high school student was cleared of violating school rules by wearing the popular bracelet “I love boobies,” all represent a victory for civil liberties positions.
Turning to cases the Supreme Court did hear this term:
The Court has struck down race as one of the factors in admission to University of Michigan. This case generated an impassioned dissent by Justice Sotomayor, suggesting that the Court majority was out of touch with the realities of discriminatory effects which need be addressed in an affirmative manner.
The Court has also: supported the right of town councils to begin each meeting with a sectarian prayer; and, struck down a statutory cap on the aggregate of political donations given by an individual to all candidates during a given year. These latter two decisions were by 5-4 vote.
In the election donation decision, the government argued that a donor making contributions to numerous candidates of one party would thereby obtain tremendous power within the party and excessive access to the political process. Chief Justice Roberts stated that the purpose of the donation laws was to prevent corruption by means of “bribery;” access to the political process is politics and not corruption, he maintained.
At this dictation there are still pending for decision a variety of cases including two key ones:
- A Massachusetts case involving the 35’ buffer zone around abortion clinics, being challenged as an infringement on free speech;
- A challenge to the Affordable Care Act (ObamaCare) by private company Hobby Lobby, wherein the owner of Hobby Lobby maintains that, when the Act requires him to provide health insurance for employees wherein contraceptive devices are included without a co-pay, this violates his personal religious rights.
The latter case is interesting legally; the corporation is the employer and not the individual, and one of the questions is whether a corporation will be treated as a “person” for purposes of determining matters of religious freedom. It is one thing, under the Citizens United Case, to say that corporations are persons for purposes of political donations; but religious freedom is a matter of conscience, and there is a real question as to whether a corporation has a “conscience” in a constitutional sense.
In general discussion, it was noted that the Supreme Court itself has a great lack of diversity, divided among six Catholics and three Jews who have attended only two law schools, with only one Justice ever having tried a criminal case, only one Justice from West of the Appalachians, and with no Justice from the South. Query whether such a demographic is conducive to the best delivery of “Justice.”