The National Review Institute and the Pacific Legal Foundation organized a panel discussion earlier today with some of the top Supreme Court litigators in the country on what to expect in the coming term. Michael Carvin of Jones Day, which hosted the event in its building, Kannon Shanmugam of Williams & Connolly, and Paul Smith of Jenner & Block covered a lot of ground in a short time. (I moderated.)
Carvin started the discussion by previewing what he called the most important case of the term: Friedrichs v. California Teachers Union, where he’s the lead counsel challenging the constitutionality of forcing non-members of the union to pay dues to it. Justice Alito has made it pretty clear that he would like to reverse Abood v. Detroit Board of Education, a 1977 ruling that upheld the practice. Shanmugam predicted, albeit without a high degree of confidence, that Alito would finally prevail on the issue in this case.
Fisher v. University of Texas would be an important case if the Court used it to strike down racial preferences in state university admissions—reversing the Grutter ruling of 2003, in which then-Justice Sandra Day O’Connor gave such preferences 25 more years to live. As Smith pointed out, though, this Court has declined opportunities to undo those decisions. Carvin noted that the Court could make them moot without overruling them by requiring universities to offer evidence that a particular quantum of additional minority students would yield educational benefits. (His assumption is that this cannot be done.)
Evenwel v. Abbott concerns the Court’s decades-old requirement that state legislative districts be drawn to reflect the principle of “one person, one vote.” Does that mean that states have to make sure that districts include equal numbers of potential voters, or equal numbers of people? A majority of the panel thought that the rationale of the classic one-person-one-vote cases militated in favor of the former alternative. But an overlapping majority thought that the Court was unlikely to require states to follow that rule, both because it would break with decades of practice and because the data available might not allow it to be done. The Court might, however, say, that either approach is permissible.
Among the other questions presented in cases on the docket: Whether the Georgia courts erred in failing to recognize that black jurors were being excluded in a death-penalty case; whether a city may demote an employee based on his perceived political views; and whether it’s permissible to draw legislative districts with slight differences in population (either of voters or people!) for partisan advantage or to get Justice Department approval under the Voting Rights Act. (Smith is representing the Arizona Independent Redistricting Commission in this case.)
The panelists also speculated that the Court might take up cases concerning abortion regulation and the Obama administration’s contraceptive mandate—and a case brought by PLF, one of the panel’s sponsors, challenging Obamacare under the clause of the Constitution that stipulates that “all Bills for raising Revenue shall originate in the House of Representatives.”
The panel, which included discussion of several other cases, is expected to be on CSPAN over the weekend.
Update: Here’s the CSPAN video.