Today is the first Monday in October and with it the beginning of the Supreme Court's new term. For the occasion, Politico's Josh Gerstein gave readers "5 cases to watch as Supreme Court term begins," using rather loaded language in the story to give a heavy liberal spin to the docket preview.
From the jump you'll notice just how slanted the language is. Here's the lead paragraph (emphasis mine):
After a year in which liberals scored impressive, high-profile Supreme Court victories, conservatives could be in line for wins on some of this term's most contentious issues, as the justices consider cases that could gut public sector labor unions and roll back affirmative action at state universities.
First here's how Gerstein looked at what either he or an editor subtitled "A potential body blow to labor" (again the emphasis is mine):
Public-employee unions and politicians of both parties are keenly focused on a California dispute about whether states can compel government employees to pay union dues. A loss for the unions could sharply diminish the clout of a movement already struggling with its political relevance.
The case, Friedrichs v. California Teachers Association, was brought by Orange County, Calif. schoolteacher Rebecca Friedrichs and other teachers, who are arguing that forcing them to pay union dues violates their First Amendment rights. They also contend that unions should have to get permission before collecting dues used for political purposes, as opposed to the current system that requires objecting employees to opt out.
“The significance is substantial, either way it comes out,” said University of California at Irvine Law Professor Catherine Fisk. “The reason why conservative lawyers are bringing these case is the hope that a significant number of government employees choose not to join the union and certain government employee unions will be weaker.”
The Roberts court has not been friendly to unions, issuing a 5-4 ruling last year that prohibited mandatory union fees for home health workers but stopped short of banning so-called “agency shops” in government.
The new case directly asks the justices to overturn a 38-year-old precedent that allows all workers covered by union negotiations to be charged for representation.
How the case will be resolved is unclear, partly because the conservative justices often see limits on government employee’s First Amendment rights when their speech is at issue. Fisk said the unions are “rationally fearful” about what the court will do, but she thinks the justices might end up dumping the case after it’s heard. “I think the case raises so many doctrinal problems for them,” she said.
Notice how this is processed through the lens of the political clout of labor unions, not the fundamental rights of freedom of speech and freedom of association of persons forced to join them.
Next Gerstein looked at "Higher ed affirmative action back in the crosshairs" (emphases mine):
Two years after punting the case back to an appeals court, the justices will take a second crack at resolving a dispute about the constitutionality of the University of Texas Law School’s affirmative action program. The case was brought by rejected applicant Abigail Fisher, who contends she was rejected because of her race.
The last time Fisher’s case went before the high court, affirmative action opponents hoped it would serve as a vehicle to pare back preferences for racial and ethnic groups at government-run schools. However, the justices instead told the 5th Circuit it had been too deferential to the University of Texas’s claims that the programs were narrowly tailored to promote diversity. Justice Anthony Kennedy won the support of six other justices for a decision that said such programs must be handled with "strict scrutiny,” but the decision did not suggest they were automatically unconstitutional.
Justice Elena Kagan has recused herself because she was involved in the case during her previous service as solicitor general. The real question is whether Kennedy will join the four other Republican appointees in setting such a high bar for affirmative action that many public colleges will abandon the preferences and admissions practices they use to achieve racial and ethnic diversity.
Again, notice the language is about the effect on "affirmative action" and its "preferences for racial and ethnic groups" rather than the fundamental question of whether affirmative action amounts to an unconstitutional reverse-discrimination on the basis of race.
Rather than considering the case as one of Ms. Fisher's civil rights and whether they were violated or not, Gerstein is examining this through the political lens of its impact on backers of affirmative action, typically a constituent group of the Democratic Party's base.
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Skipping ahead to the last section of Gerstein's article, "Testing when abortion clinic regulations go too far," notice how heavy emphasis was placed on criticisms of abortion-clinic regulation by a federal judge who ruled previously against them. Also note that there's nothing quoted from a parallel case in another circuit which upheld similar restrictions (emphasis mine):
Two of the latest tactics in the abortion wars could wind up before the justices this term: requirements that doctors performing abortions have admitting privileges at nearby hospitals and that abortion clinics meet standards for hospitals or surgical centers.
An appeals court has upheld most such limits in Texas, but in June the Supreme Court voted, 5-4, to block key parts of the law until the justices decide whether to weigh in. Petitions to take up that case and a similar law in Mississippi are already pending at the Supreme Court.
Supporters of the laws say they are designed to protect women's health, but abortion providers and abortion rights advocates say the laws would force many clinics to close and penalize poor women who could not afford travel to distant clinics.
A similar Wisconsin law led to combative oral arguments in front of the 7th Circuit last week. Judge Richard Posner suggested the law was a transparent effort to prevent abortions, not aid women.
“Governor Walker, before he withdrew from the presidential competition, said he thought abortion should be forbidden even if the mother dies as a result, " Judge Richard Posner said to a lawyer for the state, in remarks first reported by the Milwaukee Journal-Sentinel. "Is that kind of official Wisconsin policy?"
“That perhaps is Governor Walker’s personal view, but it’s not a state policy,” Assistant Attorney General Brian Keenan replied. Keenan insisted requiring doctors to have admitting privileges was a reasonable precaution to aid women.
“The admitting privileges would benefit the continuity of care for the woman when she goes to that hospital,” he said.
Posner said the fact that the law was intended to kick in one business day after it was passed made clear the authors' intentions. “That statute can’t be justified in terms of women’s health,” the judge said.
