Q&A: Second chances and blockbusters
November 2015 - Q&A with Erwin Chemerinsky
Interview by Alyssa E. Lambert
Q: Justice Anthony Kennedy joined the four liberal justices in nine of the split decisions from the October 2014 Term. Will we see a similar trend in the next Term, or does it depend on the case lineup?
A: It depends entirely on the case lineup. There are some areas where Justice Kennedy consistently sides with the liberals—gay and lesbian rights would be an example—and there are some areas where he sides with the conservatives—separation of church and state would be an example of that. This past Term, there were more cases in the areas where Justice Kennedy traditionally sides with the liberals. Next year, though, there are cases about affirmative action, union members’ rights, and voting districting—areas where he has more often sided with the conservatives.
Q: What is the most surprising case the Court agreed to hear this Term?
A: I was surprised it decided to hear Friedrichs v. California Teachers Association [which addresses whether public sector agency shop arrangements should be invalidated under the First Amendment]. There is no factual record in Friedrichs. It is a lawsuit that was brought entirely to overrule Abood v. Detroit Board of Education, which the Court had the opportunity to do in 2014, and didn’t. The plaintiffs filed the lawsuit in federal district court and essentially asked the court to issue a fast judgment for the defendants. They wanted the case to get to the Supreme Court. There are so many factual issues that are necessary to resolve the case, and I was surprised the Court took it without a factual record.
Q: Could a decision in Friedrichs overruling Abood have a big impact?
A: I think it would have an enormous impact on unions if the Court overrules Abood. The Supreme Court has always been concerned about the “free rider” problem—though people benefit from a union, they won’t have to pay their fair share of union dues if Abood is overruled. Everyone in a workplace benefits from a union in terms of wages, hours, and working conditions. Abood said that workers should have to pay their fair share of the collective bargaining activities of the union, but they don’t have to pay for the union’s political activities. The concern is that if they don’t have to pay, they won’t, and they become free riders. If many people do that, it will tremendously decrease the money that unions have to represent employees.
Q: It seems like this is going to be a Term where the Court revisits several old issues. The first one on that list is Fisher v. University of Texas at Austin upholding affirmative action in undergraduate admission decisions. Why do you think the Court agreed to hear it again after issuing a 7-1 decision in 2013?
A: Joan Biskupic, in her book Breaking In, which came out last fall, reported that when the Justices first met in conference in Fisher, there were five votes to overrule Grutter v. Bollinger. She then discussed how the Court issued a much narrower ruling. It is clear that there are four Justices who would want to overrule Grutter. Chief Justice John Roberts, in his 2007 opinion in Parents Involved in Community Schools v. Seattle, said that the Constitution requires the government be colorblind. He said that diversity was not a compelling interest, and he was joined by Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. So, clearly there are four votes to overrule Grutter. Will Justice Kennedy go along with them? On the one hand, he didn’t go along with the entirety of Roberts’s opinion in Parents Involved. On the other hand, he has never voted to uphold an affirmative action program in any context since coming onto the Court in 1987.
Q: Voting rights is also coming up again, and the Court will review two cases on the issue of “one-person, one-vote”—Harris v. Arizona Independent Redistricting Commission and Evenwel v. Abbott. What do you make of this?
A: Voting rights is before the Supreme Court, in one way or another, almost every Term. The potentially more important of these two is Evenwel. The challengers are saying the districts have to be based on eligible voters and not based on population. That kind of law would have an enormous effect on how districts are drawn. It would work to the detriment of cities compared to suburbs, especially cities with significant minority populations.
Q: The New York Times recently called Fisher, the voting cases, and Friedrichs “creations of legal entrepreneurs,” noting that the Court basically issued invitations to revisit these topics. How would you respond to that characterization?
A: I think it’s legal entrepreneurship in a couple of senses. One is that there are certain ideological groups that look to bring lawsuits that further their ideological mission. Also, there is a sense of legal entrepreneurship in that the Supreme Court has signaled that it wants these cases brought to it. That said, there is absolutely nothing wrong with it. Liberal and conservative groups have long used the Court to advance their views. The Supreme Court has long signaled to lawyers the areas where it is most interested in hearing cases.
Q: Abortion rights could be a big issue this Term. What is the likelihood that the Court will grant one or both cert petitions in Currier v. Jackson Women’s Health Organization and Whole Woman’s Health v. Cole?
A: The Justices had the cert petition in Currier before them throughout June, and they didn’t take it. The Court last decided an abortion rights case in 2007 in Gonzalez v. Carhart, so I would not be surprised to see it take another case. Also, many states have adopted restrictive abortion laws in the last five years, which are now making their way through the courts. I think it’s very likely the Court will take one or both of these cases from the Fifth Circuit, with issues like: Can a state require a doctor to have admitting privileges at a local hospital to perform abortions? Can a state require clinics performing abortions to have surgical facilities, even if surgical abortions are not performed there?
Q: A few weeks after the last Term ended, the Eighth Circuit issued two abortion decisions as well. How do you see those decisions factoring in?
A: The Eighth Circuit urged the Supreme Court to clarify the meaning of the undue burden test. There was a case involving a North Dakota law banning abortions after the sixth week of pregnancy, which essentially would have prohibited almost all abortions. The Eighth Circuit rightfully struck it down and said to the Supreme Court: Give us guidance as to the meaning of the undue burden test. So I think the Court is going to be taking several abortion cases in the next few years, and I think it’s going to start with these cases in the Fifth Circuit [Currier and Whole Woman’s Health].
Q: After the decisions last Term involving the Affordable Care Act and marriage equality, do you think those issues are settled? Or are we going to see them again this Term?
A: I don’t foresee any marriage equality cases coming to the Supreme Court this Term. I think the justices decisively resolved the question and said that laws prohibiting same-sex marriage violate due process and equal protection. I think the Affordable Care Act is going to come back, but in a very different way. We’ve now seen the end of the global challenges—the ones that would strike down the whole bill. Otherwise, the cases about the ACA are most likely to be about issues concerning the contraception mandate, which is important, but it doesn’t call into question the validity of the entire statute.
Q: Arbitration and class actions are also regularly on the Court’s radar, and four cases are already on the docket dealing with one or both issues. Why is that?
A: This is a Court that has been consistently hostile to class actions, and it has consistently favored arbitration over court adjudication. It’s in that context that one would have to think about this and the other cases in this area.
Q: Are there any other notable cases on the docket?
A: An enormously important case that’s been granted is Montgomery v. Louisiana—asking whether Miller v. Alabama applies retroactively. Miller says that there cannot be mandatory sentences of life without possibility of parole for homicides committed by juveniles.
Q: Do you want to offer any other predictions for the upcoming Term?
A: At the end of next June, we will all be waiting with great anticipation for blockbuster decisions. Again, I want to emphasize that only half the docket has been set. Last year at this time, the Court had not yet accepted review in the marriage equality and ACA cases, and the list could go on. Blockbusters are already there, but there are more to come.