As the reconstituted cast of the Supreme Court heads into its first full term Oct. 2, cases involving hot-button sociopolitical issues began arriving on the docket in pairs. Before last week's Sept. 25 "mega-conference," in which the justices sorted through cases awaiting orders, they had already agreed to review a pair that will test the federal ban on partial-birth abortion, along with two that turn on the use of racial quotas in public-school admissions.
Then on Sept. 26, the high court announced it had selected nine new cases from the stack of 1,900 that had piled up since its last major conference in June, including another flashpoint pair: Davenport v. Washington Education Association (WEA) and Washington v. Washington Education Association, cases involving the political use of union fees.
Both appeals arose from a controversial ruling in which the Washington state Supreme Court struck down a state law that required union officials to obtain the prior consent of "agency-shop" public employees before spending "agency fees" on politics. Agency-shop employees are non-union members who pay fees in order to benefit from the union's collective bargaining agreement, but who decline paying full dues that would support other aspects of union operations.
In September National Right-to-Work Foundation attorneys representing agency-shop teachers filed an 11th-hour brief in reply to what foundation attorneys said was an attempt by WEA lawyers to mislead the high court so that it would not take up the case. The Right-to-Work brief charged that the union claimed falsely that the Washington law prohibited unions from spending any money on politics, rather than simply banning the unauthorized use of agency fees.
The foundation brief also responded to union lawyers' assertion that the campaign finance law had somehow placed unfair burdens on the WEA: "Who, trying to obtain money from another, would consider it a burden to have to actually ask for the money?" it said.
The question of "burden" is also at issue in Gonzales v. Carhart and Gonzales v. Planned Parenthood. Both cases appeal lower court rulings that struck down the federal Partial-Birth Abortion Ban Act of 2003. In September 2004 U.S. District Judge Richard Kopf sided with abortionists from New York, Virginia, Iowa, and Nebraska who argued that the PBA ban was unconstitutional because it lacked a health exception, causing an undue burden on a woman's "right to choose." In July 2005, a three-judge panel of the 8th U.S. Circuit Court of Appeals upheld Kopf's decision.
"The issue now before the court is, is this a valid law since Congress didn't provide a health exception?" said U.S. Justice Foundation attorney Colette Wilson, who filed a brief in the case. "Congress found that there weren't any cases better served by this type of abortion than other types. The ban simply draws a line where abortion starts to cross over into infanticide."
Meanwhile, another pair of high-court appeals will challenge school-district policies that divide students along racial lines. Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County [Ky.] Board of Education will test the application in public schools of Supreme Court jurisprudence in Grutter v. Bollinger and Gratz v. Bollinger. Those 2003 rulings upheld the consideration of race in University of Michigan law school admissions, but struck them down in undergrad admissions.
The Seattle case on the current high-court docket challenges a public-school district policy that uses race as a "tiebreaker" in determining acceptance of students to area high schools when those institutions are near full capacity. In the Kentucky case, parents are challenging a longstanding race-balancing policy in which K-12 students are bused up to 90 minutes one way in order to maintain a black student population of 15 percent to 50 percent at each district school.
Francis J. Mellen Jr., attorney for the Jefferson County school board, said he will argue "that if considering race is important in law schools, it's even more important in K-12 schools, because that's the foundation stone of education."
The original lead plaintiffs in the case were a group of black parents who brought suit as Jefferson County was set to close a local high school due to lack of enrollment, even though a significant number of black students had been turned away from the school under the district's race-balancing plan. Later, a white parent, Crystal Meredith, joined the lawsuit after the plan imposed a three-hour round-trip bus ride on her elementary-age son. A judge consolidated the case and named Meredith the lead plaintiff.
"If it had not been for that, there would be a black parent before the Supreme Court instead of a white parent named Meredith," said Honi Goldman, a spokeswoman for the parents' attorney. "This is not a case about reverse discrimination. This is a case about the 14th Amendment and how every child in the Jefferson County school system should be treated equally."
The high court hasn't finalized its 2006-07 agenda yet. With "a number of very important flagship cases on the docket right now," American Center for Law and Justice senior litigation counsel Walter Weber noted that "a lot of very interesting questions are coming in the pipeline." More than a dozen cases await orders-or a final determination of whether the high court will hear them this term-and turn on issues of interest to conservatives. Among them:
- Christian Civic League (CCL) of Maine v. Federal Election Commission (FEC): In March 2006, CCL brought suit against the FEC, claiming that the agency's application of the Bipartisan Campaign Reform Act (BCRA) of 2002 violates the First Amendment. The FEC blocked CCL's plans to run a radio "issue ad" that stressed the importance of protecting traditional marriage because the ad named Sen. Olympia Snowe (R-Maine), who was a candidate up for reelection in the GOP's June primary.
BCRA prohibits issue ads that mention the name of a candidate within 30 days of a primary or 60 days of a general election. CCL argues that its issue ad had nothing to do with Snowe's campaign. The CCL suit "is being brought by people who are running legitimate issue ads, but are not allowed to tell people who to call for action because that person is up for election," Weber said.
- Evans v. City of Berkeley: The Berkeley Sea Scouts, a multi-ethnic group that includes youth from all economic backgrounds, for more than 50 years has taught area kids sailing and seamanship. The group enjoys an affiliation with the Boy Scouts, a relationship that the city of Berkeley demanded that the Sea Scouts end in 1998, citing the Boy Scouts' "discriminatory" stance on homosexuality. When the Sea Scouts refused to do so, the city rescinded free berthing privileges, resulting in a financial hit to the group of $500 per month.
In 2000, the U.S. Supreme Court affirmed the Boy Scouts' right to "expressive association," to pattern its membership according to its own moral code. "Berkeley's position is, yes, you've got that right but we're going to penalize you for it," Weber said. "The implications are enormous because [a decision favoring the city] would transfer religious exercise into the legal equivalent of racism."
- Anderson v. Durham School Dept.: Since 1879, the state has paid tuition for Maine children to attend a public or private school of their choice when their small town did not have a public school of its own. For the first century, students could even attend religious institutions. But the state's attorney general nixed that in 1980, saying the policy violated the First Amendment's establishment clause.
Parents now are challenging that action, arguing that the state doesn't have reasonable First Amendment grounds to discriminate against religious schools. If the Supreme Court takes the case and agrees with the plaintiffs, the ruling could further solidify the right of parents to use publicly funded vouchers at religious institutions.
- Grace v. Freedom from Religion Foundation: In June 2004 the Freedom from Religion Foundation (FRF) filed the first lawsuit that challenged the creation of the White House Office of Faith-based and Community Initiatives. FRF argued that President Bush, in using general appropriations to fund the faith-based initiative, had violated the establishment clause. In Grace, the district court ruled that FRF taxpayers could not sue the executive branch, but the 7th Circuit reversed the decision. The pending Supreme Court appeal seeks to stop FRF's case from proceeding in the lower court. If the high court declines review, the future of the Bush administration's faith-based initiative-and any government spending perceived to benefit a faith-based group-could hang in the balance.