Linda Greenhouse \u2013 October 10, 2013<\/p>\n
Ms. Greenhouse began by noting that it is an under appreciated aspect of the Supreme Court that the Court gets to decide which cases it wants to decide.\u00a0 There are some cases where the Court is more likely to intervene, such as with Sebelius<\/em> because there was a circuit conflict, or Windsor <\/em>because lower courts had struck down an act of Congress, but in many cases the Court gets to decide on the case.\u00a0 Notably, a lot of cases the Roberts Court has taken have not had circuit conflicts or any other indicia.\u00a0 Ms. Greenhouse put forth the thesis that the Roberts Court is using this discretionary jurisdiction to decide where the Court wants to reshape the law.\u00a0 She specifically identified four areas: (1) Race, (2) Religious Accommodation, (3) Abortion, and (4) First Amendment.<\/p>\n Regarding race, Ms. Greenhouse believes that the Roberts Court is trying to get the government \u201cout of the business of race\u201d.\u00a0 For example, she notes that Shelby County <\/em>is one of the most \u201cactivist\u201d and \u201castonishing\u201d decisions of the Court because they wretched out the meaning of the 15th<\/sup> Amendment and ignored precedent.\u00a0 She frames Shelby County <\/em>as an enormous judicial power grab, which was ironic because the Majority in Shelby County <\/em>was in the minority in Windsor<\/em> saying that the Court should defer to Congress.\u00a0 In Fisher<\/em>, she said that there was no circuit split and that there were a number of problems with the case, including the issue of standing.\u00a0 She considers Fishe<\/em>r to be an overreach by the Court \u2013 4 justices granted cert on the assumption that they could get Kennedy, but they couldn\u2019t get him all the way.\u00a0 She noted that in both Fisher<\/em> and Shelby County <\/em>that there was very little legal analysis and the opinions boil down to simply that the Court could get 5 justices.\u00a0 Further, when the conservative justices realized in mid-spring that Fisher<\/em> wouldn\u2019t be a vehicle to overturn affirmative action, they granted cert to Schuette<\/em> for this current term. It\u2019s obvious that these justices want to overturn the 6th<\/sup> Circuit and finish what they couldn\u2019t in Fisher<\/em>.<\/p>\n Second, Ms. Greenhouse identified the Court\u2019s goal of expanding the scope of religion.\u00a0 This term is the case of Greece, where volunteer chaplains were used by the town to start meetings and the chaplains gave explicit Christian prayers.\u00a0 The 2nd<\/sup> Circuit distinguished Marshall v. Chambers<\/em>, which ruled that nondenominational prayers in Congress were ok, on the grounds that there\u2019s passive observance in Congress by the public, but in Greece<\/em> the public is forced to be active in the meetings.\u00a0 Cert was granted by the Court and it has attracted a large amount of amici briefs.\u00a0 The pro-religion groups want O\u2019Connor\u2019s Establishment Clause test to be scrapped and replaced with a more flexible test.\u00a0 Ms. Greenhouse isn\u2019t sure that there are 5 votes on that issue, and so it\u2019s puzzling that the Court took this case.<\/p>\n Third, the Court has had a limited chance to deal with abortion.\u00a0 In 2007, the Court decided Gonzales v. Carhart<\/em>, which allowed bans on partial birth abortion.\u00a0 It\u2019s clear in this case, according to Ms. Greenhouse, that the switch from Justice O\u2019Connor to Justice Alito flipped the decision of the Court.\u00a0 The question in Gonzales<\/em>, as is the question in Cline<\/em> for this term, is: What is an undue burden on the access to abortion?\u00a0 This is under the framework established in Casey<\/em> (1992).\u00a0 In Gonzales<\/em>, the Court ruled that there was no undue burden because alternative abortion procedures could be used.\u00a0 In Cline<\/em> the critical issue is whether a state law effectively imposing a ban on medical abortion pills in the early term is an undue burden.\u00a0 Ms. Greenhouse noted that Casey<\/em> has been law for 21 years, but we still don\u2019t know what an undue burden is.\u00a0 She sees Cline<\/em> as essentially up to Kennedy to define undue burden.\u00a0 She doesn\u2019t believe Kennedy will abandon the Casey<\/em> framework, but she has no idea why Cline<\/em> was granted cert given that hypothesis considering the Oklahoma Supreme court found that the law imposed an undue burden.\u00a0 Interestingly, Ms. Greenhouse noted that the Oklahoma Supreme Court tried to \u201ccert proof\u201d the case by giving an extremely short opinion, but that the Supreme Court, after granting cert, then asked the Oklahoma Supreme court for more reasoning in the case.\u00a0 The Roberts Court wouldn\u2019t have granted cert if it wasn\u2019t interested, so the Court will decide the case on the merits.<\/p>\n Ms. Greenhouse also noted the case of McCullen v. Coakley<\/em>, which deals with the issue of buffer zones around reproductive health clinics to stop anti-abortion proponents from speaking to women entering the clinic.\u00a0 She noted that the Court has dealt with this issue twice already, and both times upheld the buffer zone.\u00a0 However, it\u2019s a different First Amendment now, as it\u2019s very likely the Court will find a robust First Amendment right in the case.<\/p>\n The last Roberts Court Project, according to Ms. Greenhouse, is on First Amendment issues.\u00a0 She believes that liberals haven\u2019t really caught onto this because everyone is programmed to approve of broad free speech rights.\u00a0 However, she believes the Roberts Court is using the first amendment as a powerful tool of deregulation, such as in Citizens United<\/em>.\u00a0 She also noted that this view of the First Amendment is even creeping into basic administrative law cases, such as in Sorrell v. IMS Health<\/em>, where the Court invalidated a New Hampshire law that prohibited the names of doctors prescribing medications to big pharma. \u00a0She noted that the Court\u2019s view of the First Amendment is even causing the Obama Administration to decline to appeal cases to the SC, for example a recent DC Circuit case the struck down tobacco regulations that require graphic labeling on First Amendment grounds.\u00a0 Ms. Greenhouse views this as a new Lochner<\/em> regime, where deregulation is being clothed as First Amendment jurisprudence.<\/p>\n In conclusion, Ms. Greenhouse noted that the court is reaching out to take cases that fit their objections with the law.\u00a0 She believes that the conservatives on the Court view the present as being as good as it will get for them because they have 5 votes for a lot.<\/p>\n","protected":false},"excerpt":{"rendered":" Linda Greenhouse \u2013 October 10, 2013 Ms. Greenhouse began by noting that it is an under appreciated aspect of the 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