A liberal nightmare at the Supreme Court?

CommentaryOctober 9, 2013 

The Supreme Court will hear three cases during the 2013-14 term that might dramatically alter the landscape of constitutional law. Campaign finance reform, abortion and the separation of church and state are all on the agenda.

When the dust settles, if the conservative justices hold sway, Americans could find themselves living in a different country. As has been the case in recent years, Justice Anthony M. Kennedy's votes will likely be decisive in each case.

Campaign finance

First on the docket is campaign finance. In Buckley v. Valeo, the court in 1976 held that the dangers of corruption justify significant government regulation of direct campaign donations by groups and individuals. But it did not allow the government as much leeway to regulate independent expenditures by those groups and individuals to advance the interests of a candidate or campaign.

After Congress tried to place some limitations on the political expenditures of corporations and unions, the court, in 2008 in Citizens United v. FEC, granted corporations and unions the same rights as private individuals to make independent political expenditures. The Citizens United decision, however, did not address the important distinction made in Buckley between groups or individuals giving money directly to a candidate or campaign versus the independent expenditures.

All of that may change. In McCutcheon v. FEC, argued Tuesday, the court will hear a case brought by a Republican donor from Alabama and the Republican National Committee challenging limitations on aggregate contribution limits to political parties and candidates.

Although this case does not directly challenge the distinction made in Buckley between contributions and expenditures, conservative amicus briefs are urging the court to abolish that distinction and invoke the First Amendment to prohibit the regulation of campaign contributions.

Given Kennedy's long-standing antipathy toward campaign finance reform (he wrote the Citizens United opinion), as well as the other conservative justices' belief that money equals speech, this case could be the knockout punch that limits legislative efforts to reduce the corrosive effects of money on political campaigns.

Not surprisingly, a host of public interest groups and law professors are lining up on the other side. Justice Elena Kagan is on record as being vehemently opposed to using the First Amendment as a blunt tool to stifle campaign finance reform.

Government and religion

The relationship between government and religious liberty is also at issue this term. The town of Greece, N.Y., begins its monthly City Council meetings with a prayer. From 1997-2007, every prayer was a Christian one. After a lawsuit was filed in 2008 challenging this practice, the town invited clergy from other faiths, but it still allows the prayers to refer to specific deities instead of limiting them to nondenominational references. The lawsuit brought by two residents of the town will be argued Nov. 6.

Here again, there are a host of amicus briefs filed by conservative organizations seeking to drastically move constitutional law to the right. The last time a prayer case involving a government entity reached the Supreme Court, in 1983 in Marsh v. Chambers, the justices upheld nondenominational prayers by a Christian chaplain solely on the basis that throughout American history, such prayers have been allowed (never mind that discrimination against women and gays has also been allowed throughout U.S. history and is now generally prohibited).

But many conservatives are not content to simply urge the affirmation of or even extension of Marsh to the prayers at issue in Greece. They want the court to broadly hold that government endorsements of religion never violate the First Amendment's establishment clause unless the government is actually coercing religion.

Such a finding would create a "coercion test," long the wish of Justice Antonin Scalia, which would allow the government to place religious symbols on public property without limitation and permit overtly Christian (or any other religious) prayers at legislative sessions without any judicial check.

This test would also largely prohibit only what is already foreclosed by the free exercise of religion clause of the Constitution, thereby rendering the establishment clause obsolete.

There are probably four liberal votes against such a radical interpretation and four conservative votes in favor, with Kennedy the likely deciding voice. Should he turn to the right here, the wall between church and state, a wall that Scalia doesn't think exists, will be dramatically lowered.

Abortion returns

Finally, for the first time since 2007, the court is likely to return to the abortion wars. Although the justices have asked for a clarification of the facts in Cline v. Oklahoma Coalition for Reproductive Justice, that clarification is unlikely to stop the court from hearing the case, which involves a complicated dispute over the correct way to prescribe pills used to terminate early pregnancies.

Despite a host of medical evidence indicating that the FDA's earlier instructions for the use of this pill were too strict, Oklahoma wants to require doctors to adhere rigorously to those rules. Should the case go forward, it will give the justices the opportunity to clarify or possibly overturn the current test for abortion regulations, which prohibit all laws that pose an "undue burden" on the right to choose.

The "undue burden" test was created by Justices Kennedy, David H. Souter and Sandra Day O'Connor in the 1992 Casey v. Planned Parenthood decision. Since then, lower courts have often disagreed on what exactly the test means.

Souter and O'Connor are now gone, and Justices Scalia and Clarence Thomas have repeatedly urged the court to abandon the "undue burden" standard and replace it with a reasonableness test that would give lawmakers much more discretion to restrict abortions. Based on their prior writings, it is a fair bet that Justices Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. agree.

Therefore, Kennedy is again the key. Although it is unlikely he would vote to overturn Roe vs. Wade, if he turns right even a little bit, the ability of women to obtain safe and affordable abortions might be severely threatened.

The only thing likely to stand between a radical move to the right on all three issues -- campaign finance laws, the separation of church and state, and the right to choose -- is Kennedy. Depending on how he votes, this country might look very different at the end of June 2014.

Eric J. Segall, a law professor at Georgia State University, is the author of "Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges." He wrote this for the Los Angeles Times.

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