The Supreme Court is set to issue a number of landmark ruling this month (saving them for the end of the session, as usual). You can read Doug Mataconis or Evan Bernick for good conservative takes. I’ll do quick hits with how I think the Court will rule and how I think the should rule. And, of course, as each ruling comes down, I’ll put up a post.
The thing about the Roberts Court is that they are very conservative. Not in the political sense, but in the temperamental one. They prefer not to make broad sweeping decisions that upend masses of law and precedent. They tend to defer to legislatures. They like to rule narrowly and specifically. Roberts works very hard to build consensus (see last year’s slew of 9-0 decisions). They have been slow to defend civil liberties except for the First Amendment. So while I expect some landmark decisions, I don’t expect any that will radically reshape the law.
I do expect, however, to hear the losing side of several cases scream that the Court has exercised unprecedented power, set fire to the Constitution and brought plagues of locusts. Whichever side they oppose will be acting in a purely partisan fashion while their side are zealous defenders of the faith. You can decide if that hysteria is warranted.
Case: Arizona State Legislature vs. Arizona Independent Redistricting Commission sees the legislature fighting against the citizens. In 2000, Arizonans voted to vest districting power in an independent commission to avoid gerrymandering. The legislature is suing, saying that the Constitution vests them with that power.
How I Hope They Decide: This is tough. I love redistricting commissions. But the strict letter of the Constitution vests the power to design elections with the legislature. If the legislature had appointed this commission, I would favor upholding it. If my reading of the Constitution is right, Congress could also pass a law legitimizing these commissions.
How I think They’ll Decide: They’ll strike it down, probably on a 5-4 vote. There will be gnashing of teeth and, frankly, I’m sympathetic. I despise gerrymandering. But barring a Congressional law or Roberts buying the “the people are also a legislature” argument, I think this goes down. A pity.
The Case: Walker vs. Texas Division Sons of Confederate Veterans, Inc. concerns whether the state can refuse to issue a confederate-flag themed plate for the Sons of Confederate Veterans. It’s a bit complicated as the Court may also have to decide if such plates must be “viewpoint neutral” which means they would have to, for example, approve a specialty plate supporting drunk driving if MADD gets a speciality plate.
How I Hope they Will Decide: I’m mixed on this as well. I don’t think states should be compelled to issue plates they don’t approve of. We don’t allow people to get vanity plates with profanity on them. However, given the explosion of specialty plates, I think it’s hard to justify this sort of viewpoint discrimination.
How I think They Will Decide: I expect them to uphold the fifth circuit and let the plates be made. And I expect a liberal justice or two to join the conservatives. Expect Texas v. Johnson, the flag-burning case, to be cited. One rare strength this Court has had is in favor of free speech.
The case Horne v. Department of Agriculture sees farmers challenging a New Deal program that requires them to turn over some of their raisin crop to the federal government without compensation in order to artificially prop up the price of raisins. This is one of those programs P.J. O’Rourke once called “Goldilocks programs” because they barged on the taxpayers 80 years ago and won’t leave.
How I Hope They Will Decide: Strike that shit down. This is ridiculous.
How I think They Will Decide: I expect a narrow decision that calls for compensation. Probably a 5-4 decision, with the liberal wing deciding that it’s perfectly fine for the government to steal a third of someone’s raisin crop. Then again, I thought they’d strike down Kelo, so what the hell do I know?
The Case: Glossip vs. Gloss sees the Court deciding if the current lethal injection cocktail constitutes cruel and unusual punishment given a growing body of evidence that it leaves some recipients awake, aware and in excruciating pain.
Hope I Hope They Will Decide: Strike it down. The skeptics have convinced me that the three-drug cocktail used for lethal injection is inhumane and has a significant risk of a botched execution. If paralyzing someone and letting them die slowly in excruciating pain isn’t “cruel and unusual” I don’t know what is. Ironically, a firing squad would be more humane. I would prefer to let legislatures decide this, but when legislature won’t protect our Eight Amendment Rights, the Court must.
How I Think They Will Decide: They will let it stand. The last time this issue came up, it was rejected 7-2. The inmates might peel off another liberal justice, maybe two. But I don’t see the Court rejecting this. The Roberts Court very much prefers to leave that sort of thing to the states.
The Case: Reed v. Town of Gilbert Arizona looks at whether the town of Gilbert can put restrictions on a church’s signs that are stricter than those on political signs.
How I Hope They Will Decide: Strike it down. It’s discriminatory.
How I Think They Will Decide:: They’ll strike it down while upholding the general power of cities to restrict signage. It might even be unanimous.
The Case: King v. Burwell is the big one. It claims that when Congress established Obamacare subsidies, the law indicated that it was only applicable to people who lived in states that established their own exchanges. If upheld, that would deny Obamacare subsidies to millions of people with unpredictable effects on the insurance system.
How I hope They Will Decide:: I’m mixed on this. I really don’t want Obamacare to be gutted by a Court rather than the legislature. And it does appear that there is precedent for the Court deciding with the de facto interpretation of the law. However, the plain language of the statute (language that was changed during the legislative process) is with King.
Honestly, I just wish Congress would fix it.
How I Think They Will Decide: I expect the Court will split the baby on this one. They will likely find (5-4) that the letter of the law forbids subsidies to federal exchanges. But I expect they will either reject this case on very narrow grounds (i.e., King’s standing) or accept it with a moratorium on implementation. Either way, I expect them to fire a warning shot across Congress’ bow: “Fix this, now. Don’t make us deal with this mess you created.”
The Case: Obergefell v. Hodges is the same sex marriage case.
How I Hope They Will Decide: Let’s put the nail in the coffin on the SSM debate.
How I Think They Will Decide: They will forbid discrimination 5-4 or 6-3 but in a narrow way that stops short of proclaiming a right to marry. This will open the door to a future challenge on whether some kind of civil union can substitute for marriage.
So we’ll see what happens. To steal a line from TMQ: all predictions wrong or your money back.