RENEE MONTAGNE, HOST:
It's MORNING EDITION from NPR News. I'm Renee Montagne.
STEVE INSKEEP, HOST:
And I'm Steve Inskeep. Good morning. It's the first Monday in October which means it is time for the opening of a new term of the United States Supreme Court. That term begins despite the government shutdown. The court is deemed to be essential. NPR legal affairs correspondent Nina Totenberg has this preview of a term that will be dominated by hot button social issues and important tests of presidential and congressional powers.
NINA TOTENBERG, BYLINE: There is nothing on the docket this year that's quite as riveting as the big bonanza same-sex marriage cases of last term, or the challenge to President Obama's health care overhaul. But in a half dozen cases, the current conservative court majority may well overturn long established legal precedents affecting major social issues. As Supreme Court advocate and scotusblog founder Tom Goldstein puts it...
TOM GOLDSTEIN: It can really knock one of the few legs out of prior, more liberal precedent across an array of incredibly important issues like abortion, and religion, and civil rights law.
TOTENBERG: Yes, prior rulings can be overruled, and have been, in cases ranging from the landmark 1954 decision declaring school segregation unconstitutional, to the 2010 case striking down a century old understanding that banned corporate spending in candidate elections. But judges generally treat precedent with some reverence. Here, for example, is Chief Justice John Roberts at his confirmation hearing.
(SOUNDBITE OF CONFIRMATION HEARING)
CHIEF JUSTICE JOHN ROBERTS: I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough that you may think the prior decision was wrongly decided.
TOTENBERG: In considering whether to overrule a prior decision, Roberts said, a justice must consider other factors: maintaining the legitimacy of the court as a consistent intuition, whether the precedent has been workable, whether people have relied on it, and whether the precedent has been eroded by subsequent developments.
Considering all that, it's worth noting that the court has this year chosen a half dozen cases that offer the conservative justices the chance to overrule liberal precedents. At the top of the list is a case to be argued later this week that tests aggregate limits on campaign contributions.
In 1976, in the aftermath of the Watergate scandal, the court upheld an earlier version of these contribution limits, drawing a line between contributions to candidates and parties, on the one hand, and spending by independent groups on the other. In the decades since then the court has repeatedly said that direct limits on contributions to candidates are constitutional because unlimited contributions create the potential for corruption and the appearance of corruption.
Those opposed to limits on campaign contributions are now seeking to obliterate that line, and there is ample reason to believe that the conservative majority may agree. On the question of abortion, there is no direct challenge to Roe versus Wade, but there are cases that could allow the court to chip away at the right to abortion. In addition, the court is revisiting its 13-year-old decision that allows buffer zones to limit protesters from close contact with patients entering abortion clinics.
The court will hear cases on religious questions as well. One will test whether prayers may be offered by private clergy at city council meetings. There's also a case in which several for-profit companies are challenging the Affordable Care Act on its requirement that insurance policies include contraceptive coverage for women.
On civil rights, affirmative action is back - in a way. The issue is not whether there can be affirmative action in higher education. Instead, the question is whether voters can ban affirmative action in higher education by referendum. Another civil rights case involves the Fair Housing Act. It tests the use of statistics to prove that minorities are treated differently.
Because proving discriminatory intent is very difficult, statistics have been used to enforce a variety of laws by proving that a particular action has a discriminatory effect on minorities. Two cases provide important tests of executive and congressional power. One asks what, if any limits, there are on congressional power to pass legislation implementing treaties.
The other case tests what constitutes a congressional recess. The Constitution allows the president to make recess appointments when the Senate is not in session to vote on confirmation. At issue is whether Republicans can use 30 second pro forma sessions to prevent such appointments, and whether President Obama can circumvent those pro forma sessions by making appointments during a three day recess.
Although it turns on a detail, that case has enormous ramifications in the current political climate, since both parties have made hundreds of recess appointments since the founding of the republic.
Nina Totenberg, NPR News, Washington.
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