Last term at the Supreme Court ended with a bit of drama from the bench that provided a fitting end to a term marked by more than its fair share of raw emotions in the courtroom.  

The last major decision announcement was Glossip v. Gross, a challenge to Oklahoma’s lethal injection protocol.  Glossip, a prisoner on death row, challenged the 3-drug protocol on the grounds that the first of the drugs, which was designed to anesthetize the prisoner, was of questionable efficacy.  Glossip lost.  A five-justice majority upheld the lower court’s ruling that found the lethal injection protocol did not constitute “cruel and unusual punishment” as prohibited by the Eighth Amendment.  

April’s oral arguments in Glossip produced a particularly heated discussion in the courtroom.  Justice Alito accused anti-death penalty advocates of engaging in a “guerilla war” by pressuring drug companies to get out of the business of supplying drugs used in executions.  Oral arguments also took several macabre turns, as the justices and the lawyers discussed various methods of execution: hanging, gas chambers, firing squads.  At one point the discussion even turned to the constitutionality of execution by being burned alive.  (All agreed that burning as a method of execution was unconstitutional, but Justice Alito was curious about whether the same could be said if the condemned were unconscious and felt no pain.)

An emotional oral argument with wild hypotheticals may not be the norm at the Court, but it is hardly unprecedented.  It was the bench announcements in Glossip—the audio of which was recently released by the Court—that broke new ground for the Roberts Court.  When an opinion is handed down, the author of the majority opinion takes a few minutes to summarize the opinion.  On occasion—usually just a few times a term—the author of a dissenting opinion will also speak from the bench.  But in Glossip, four different justices wanted to talk about their opinions from the bench: a majority opinion, two dissents, and a concurrence.

Justice Alito announced the opinion of the Court rejecting Glossip’s Eighth Amendment claim. Justice Sotomayor followed with a summary of her dissent.  Her bench statement, only her second oral dissent during her six years on the High Court, made clear her vehement disagreement with the majority’s reasoning.  Justice Breyer then announced his dissenting opinion.  Breyer signed onto Justice Sotomayor’s dissent, but he also wrote a bombshell of an opinion, joined only by Justice Ginsberg, in which he went beyond the issue of the constitutionality of this particular method of execution and raised the question of whether the entire death penalty was unconstitutional.  Such a momentous declaration from two Supreme Court justices, Breyer felt, merited the very rare step of having two dissenting opinions announced from the bench.  

But this was not the end of it.  Justice Scalia has long made clear that he has no patience for anyone who would argue that the death penalty violates the Constitution: the Constitution, he points out, includes several references to capital punishment.  He thus felt the need to join the closing-day performance and announce his own concurring opinion dedicated exclusively to refuting Justice Breyer dissent.  (Scalia’s opinion was more of a dissent from a dissent than a concurrence.)  

Scalia took advantage of his platform and offered a brief statement in which he not only denounced Justice Breyer’s challenge to the constitutionality of the death penalty, but also denounced the Court’s same-sex marriage decision that the justices handed down several days earlier.  He argued that the reasoning of both Justice Kennedy’s ruling striking down state bans on same-sex marriage and Justice Breyer’s argument against the death penalty suffer from the same flaw.  In each case, justices decided an issue that, according to Scalia, the Constitution properly left to the democratic process.  Justice Scalia concluded his statement with a line that Justice Breyer used in his bench dissent in the Parents Involved public school desegregation case of 2007: “It is not often in the law that so few have so quickly changed so much.”  

Listen to the bench announcement here.

One week into the new Term at the U.S. Supreme Court, the early conventional wisdom is taking shape, and it’s looking like a good term for the conservatives.  Last term ended on a high note for the liberals.  In addition to the same-sex marriage decision, there were a number of dodged bullets as the four justice liberal bloc were able to get the votes to secure majorities to fight back challenges to the Affordable Care Act and the Fair Housing Act.  The liberals were also in the majority in closely divided opinions on voter redistricting and the regulation of judicial elections.  But now, as the new term gets underway, commentators are predicting that the pendulum is about to swing.

What are the cases in which this conservative comeback will take place?  Here are three cases the Court will hear, plus one that the Court will likely hear, that many see as opportunities for significant conservative victories.  

(1) Friedrichs v. California Teachers Association.  Public-sector unions are back at the Court, and many are predicting the Court’s conservatives will continue down the path they’ve been charting in recent terms and further restrict mandatory fees required by non-union members.  In a line of precedent dating to the 1970s, the Court has held that non-union members may be required to pay a “fair share” fee to unions to cover expenses relating to collective bargaining (but excluding expenses relating to political activity).  In Friedrichs, a group of California teachers challenged the required payment of union fees of any kind.  They argued that collective bargaining is a form of political activity, and being forced to fund the union’s collective bargaining efforts is a violation of the First Amendment’s prohibition on compelled speech.  In recent cases, Court conservatives have been receptive to these kind of First Amendment challenges to mandatory fees.

(2) Fisher v. University of Texas.  Not only is affirmative action in higher education back at the Supreme Court, but Abigail Fisher is back.  In 2012 the Court first heard Fisher’s challenge to the racial preference program at the University of Texas.  The Court issued a decision that offered additional guidelines on when university racial preference programs were constitutionally permissible and remanded the case back to the appeals court.  The lower courts reviewed the case again, upheld UT’s racial preference program again, and Fisher’s lawyers have appealed their ruling yet again.  Texas has a unique hybrid approach to achieving racial diversity in its universities, combining a policy that assures admittance to the university system to those in the top 10% of their high school class with a race-conscious admissions policy.  The question before the Court is whether Texas can sufficiently justify the necessity of the race conscious policy when it achieves substantial diversity with its top 10% plan.

(3) Evenwel v. Abbott. The issue of voting rights returns to the Court in a case that raises the question of how to measure population for purposes of redistricting under the one person, one vote requirement.  Is the proper measure eligible voters or the total number of residents?  Practically all states use total residents, but the challengers in this case argue that only eligible voters should be counted.  In districts with large numbers of residents who are not eligible to vote (legal immigrants who are not citizens, undocumented immigrants, felons), a ruling adopting the challengers argument would be highly consequential, likely tilting political power from cities to rural areas—a change that would benefit Republicans.

(4) And it’s likely that abortion will be back.  The last time the Supreme Court heard a major abortion case was 2007, when it upheld the federal law banning so-called “partial-birth” abortions.  This term the Court is likely to consider a challenge to a 2013 Texas law that requires abortion clinics to meet the same standards for equipment and staffing as hospital-style surgical centers and requires for doctors who provide abortions to have admitting privileges at local hospitals.  These new regulations would result in the shutting down of most of the state’s abortion clinics.  The Fifth Circuit upheld the new regulations.  In June, in a 5-4 vote, the Supreme Court voted to block the Fifth Circuit ruling until they had time to consider the issue—making it likely they will take up the case.