Last June, in the wake of some significant Supreme Court decisions, many perceived a leftward turn for the consistently conservative Roberts Court. I would argue, however, that instead of representing a year of change in the Court’s jurisprudence, the 2014 term was, more than anything, a fluke. Certainly there were some smaller victories for liberals, such as the decision to allow redistricting authority in Arizona to be vested in an independent commission rather than the state legislature, as well as the decision that ended the racially biased allocation of housing tax credits in Texas. But the two major cases that liberals embraced were fairly predictable in their outcomes. One decision upheld the Affordable Care Act’s subsidies in those states that had opted out of creating their own exchanges, relying instead on subsidies from the federal government. The other was, of course, the case that legalized gay marriage.
Given that Chief Justice Roberts upheld the Affordable Care Act in the more difficult case determining its constitutionality in 2012, it seemed clear that he would once again choose to uphold the law based on the ACA’s obvious statutory intent to insure all Americans. Even Justice Kennedy joined the majority, making the case a 6-3 ruling. The pattern of favorably decided gay rights cases in the last decade-and-a-half written by the Court’s “swing justice,” Anthony Kennedy, made the legalization of gay marriage the next ostensible landmark in gay rights. Since Justice O’Connor left the Court, Kennedy’s opinions have proven to be the hardest to predict, although the precedents he has set in past decisions are often telling. In both Lawrence v. Texas (the case that struck down anti-sodomy laws) and United States v. Windsor (the case that struck down part of the Defense of Marriage Act), Kennedy wrote expansive pro-gay rights arguments that left little doubt as to how he would rule in Obergefell v. Hodges. These cases represented major landmarks for gay rights and were rightly celebrated by liberals nationwide. However, two of the major cases taken up by the Court for the current 2015 term could spell certain disaster for liberals.
These cases concern issues of significant importance: abortion rights and affirmative action. While the idealistic half of me hopes that the Court will rule the right (left) way in these cases, the history of past decisions, and the history of Justice Kennedy’s rulings in particular, leads me to an uneasy conclusion: the Court’s rulings in these cases will likely represent a strong year for conservatives. The case dealing with abortion rights challenges a Texas law that represents a broader set of TRAP (Targeted Regulation of Abortion Providers) laws that have been enacted in recent years. These laws have been created under the thin veneer of supporting women’s health. In reality, they make it extremely difficult for women to have access to an abortion, especially lower-class women who do not have the financial resources to adjust to these restrictive laws.
The law forces abortion clinics to be equipped with the same resources and equipment as an ambulatory surgical center. One such arcane requirement demands that hallways be a certain width. While this might be necessary for an actual hospital, it is of course quite absurd to require this of an abortion clinic. The law also mandates that doctors in Texas clinics have admitting privileges to a hospital within thirty miles. In theory, this provision exists to protect women’s health; if something should go wrong during the procedure, the clinic can transport the patient to the hospital, pursuant to the admitting privileges. Just as the ambulatory surgical center requirements create ridiculous burdens, so too do the admitting privileges requirements. If a clinic is not within thirty miles of a hospital (or whichever distance a particular law specifies), it gets shut down. As one might expect, there had been many abortion clinics in rural Texas that were more than thirty miles from a hospital. They no longer exist. More than half of the forty-one clinics that operated throughout the state have been shut down due to this law. The fact that an abortion is one of the safest medical procedures in existence only adds to the deceptiveness of this pointless law.
The Court will also be reviewing an affirmative action case, brought by a woman who wishes to see the University of Texas do away with its affirmative action policy and become “color-blind” in its admissions policy. This would be disastrous to diversity on college campuses and would turn a blind eye to systemic disadvantages that many racial and ethnic minorities in our country have been subjected to over the years. When the Court last heard an affirmative action case, the majority ruled 5-4 in favor of it, but the opinion of the Court also explained that within twenty to thirty years, integrating campuses would not likely be necessary. This leaves no doubt as to whether or not the Court believed that affirmative action should be a permanent fixture in the college admissions process.
As is often the case, Justice Kennedy will have the deciding opinion in both of these cases. His track record supports neither. In the last high-profile abortion rights case, Burwell v. Hobby Lobby, Kennedy ruled with the conservative majority. In the major 5-4 affirmative action case, Grutter v. Bollinger, Kennedy sided with the conservative minority against the policy of affirmative action. While Kennedy could certainly have changed his mind in the interim, it is an unlikely scenario. Considering this, the Court is stacked on the conservative side of these cases, which could have the consequence of rendering abortion rights and affirmative action--both crucial aspects of our democracy--null and void.