Crucial Decisions Coming From SCOTUS

This is decision week for the Supreme Court, and an interesting one it is. There are seven cases for which opinions will be issued before the end of the month. Let’s take a look at those with the most impact.

The oldest case, Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, challenges whether the Fair Housing Act allows claims of discrimination based on disparate impact. Such claims depend only on a showing that the effect is to discriminate even if that is unintentional. This is a big deal and civil rights groups are understandably worried, as deliberate discrimination is often difficult to prove. This will probably be a close decision, and Justice Kennedy will likely be a tie-breaker and write the majority opinion. In previous cases, he has seemed to lean against liberal interpretations of affirmative action, but he is notoriously unpredictable and I won’t hazard a guess as the outcome.

Another case with wide-reaching implications is Arizona State Legislature v. Arizona Independent Redistricting Commission. This challenges Arizona’s delegation of redistricting to an independent commission on the basis that the U.S. Constitution clearly places this function in the hands of state legislatures. Other states, such as California, have also taken this action to minimize partisan redistricting. I haven’t read the arguments but it looks to me like these well-meaning efforts at good government are doomed.

Next we have the capstone case for this session, King v. Burwell. It challenges Obamacare subsidies for people who buy their insurance from federal exchanges that were set up as defaults in states that refused to set up their own exchange. The argument rests on a somewhat myopic reading of one provision of the law. King argues that the words are clear and unambiguous, and moreover that this was done deliberately to coerce the states into complying. The government argues for a contextual reading, in which the whole body of the law must be considered. They say this clearly shows that the overall intent was to subsidize all people for whom Obamacare is unaffordable. This case raises some of the most important issues in constitutional theory and it has the potential for bringing down Obamacare entirely if King prevails. It could go either way. Amusingly, if Obamacare is fatally damaged by this decision, Republicans in Congress will be hoist on their own petard. Even now, they are feverishly struggling to find a way out of what they have been so eagerly seeking. It won’t be easy to find a congressional fix that Obama will be willing to sign. But my guess is that the government argument will narrowly prevail, to big sighs of relief both at the White House and in Congress.

Johnson v. United States is somewhat convoluted. It started as a simple issue of whether having a sawed-off shotgun constitutes a violent felony for applications of the Armed Career Criminal Act. But the problem of how to define violent felonies clearly enough troubled the Justices and the case was re-argued to address this issue. Without getting into the weeds, it seems likely that current definitions as used in the residual clause of the ACCA are too vague, and I expect the Court to rule to strike it down. The significance is that this will remove a powerful tool that prosecutors employ in plea bargaining, since the penalties for certain felonies deemed violent are very severe.

A rival to Burwell for greatest significance in this session is Obergefell v. Hodges. Two years ago the Court struck down a provision of the Defense of Marriage Act that defined marriage as a union between a man and a woman only. This only applied to federal laws, although thousands of programs were affected. This case seeks to extend this opinion to the states, raising the questions of whether states can prohibit same-sex marriage and whether states can refuse to recognize marriages of same-sex couples performed in other states. It is hard to see how the second question could survive scrutiny under the Full Faith and Credit Clause of the Constitution. The first question, however, is a close call, and I suspect that the Court will defer to the Tenth Amendment and not try to impose the federal standard on the states.