The new Supreme Court Term may not officially start until Monday, but it feels like it’s well underway now with the announcement today of eleven new cases that the Court will be hearing this Term.  And with these eleven grants of review, we see some signs that the tenth Term with John Roberts as Chief might continue a trend that we’ve seen developing over the first nine—namely, an aggressive effort to move the law on race and campaign finance radically to the right. 

As we noted in the introductory chapter of our “Roberts at 10” project, although the story of Chief Justice Roberts’s first decade on the High Court is, at least superficially, a “complicated one,” there are some areas of the law in which John Roberts has “consistently—and successfully—voted to move the law to the right.”  Two of those areas are campaign finance and race.  In Citizen United v. FEC, for example, the Court, in a 5-4 decision with Chief Justice Roberts in the majority, overruled longstanding precedent and began the steady dismantling of the nation’s campaign finance laws.  In reaching this result, the Court also declined to follow its own well-established procedures.  Rather than deciding the question the parties brought to the Court, the Court affirmatively reached out to decide the constitutionality of the provision.  As Justice Stevens wrote in his dissent, “the majority decides this case on a basis relinquished below, not included in the questions presented to us by the litigants, and argued here only in response to the Court’s invitation. This procedure is unusual and inadvisable for a court.” 

In Parents Involved in Community Schools v. Seattle School District No. 1, the Court also disregarded its own recent precedent to hold unconstitutional two school districts’ efforts to ensure that their schools were racially diverse.  Chief Justice Roberts, writing for a plurality, made his views on race clear: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  It was a nice piece of rhetoric, but it ignored our nation’s long history of racial discrimination and the important role that civil rights laws have played in mitigating that history.  As Justice Sonia Sotomayor put it in a decision last Term, “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

Given two of the cases that the Court has just decided to hear this Term, it’s possible that the year ahead may include more of what has come before.  In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., the Court agreed to review a case about the Fair Housing Act, the federal law that forbids discrimination in the selling, renting, and financing of dwellings and other housing-related transactions.  The question is whether people may sue under that law to challenge practices that have a discriminatory effect on racial minorities, even if the practices were not adopted with the goal of discriminating.  The Court has granted cases involving this question twice before, but each time the case settled before the Court could decide the issue, so now the Court is trying yet again.  It’s not surprising that the Court might try again to decide an issue that it wanted to reach before, but what is surprising here is that the Court should be so eager to address this question at all.  This isn’t a situation in which there’s a split of authority in the lower courts or an important constitutional question; this case involves the meaning of a statute, and the issue is one on which every court of appeals to have decided the matter (as well as the agency charged with enforcing the statute) has agreed:   the universal view of the lower courts is that the FHA covers such claims.  If the Supreme Court disagrees this Term, it will be one more instance in which John Roberts and his conservative colleagues have aggressively reached out to advance a radically conservative view of the law in the area of race.

In Williams-Yulee v. The Florida Bar, the Court agreed to hear a case about whether the First Amendment prohibits states from prohibiting candidates for judicial office from personally soliciting campaign funds.  It wasn’t surprising that the Court agreed to hear this case—federal courts of appeals are split on the issue, and it involves a constitutional question—but what the Court does may tell us whether the robust conception of the First Amendment that John Roberts has when it comes to the “speech” of corporations and the wealthy will allow the states to engage in any regulation of judicial elections.  In 2009, the Roberts Court did recognize that campaign contributions in judicial elections can have a pernicious influence on the appearance of judicial impartiality: the Court held, in a 5-4 decision, that there are circumstances in which the Fourteenth Amendment can require a judge’s recusal if one of the parties in the case “had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent.”  But significantly, Chief Justice Roberts was in the minority in that case, writing a vigorous dissent that ended by accusing the majority of imposing a “cure [that] is worse than the disease.” 

As this Term unfolds, we’ll be watching to see where John Roberts is in these two cases, and if he has four votes to join him.  Unfortunately, if past is prologue, there’s reason to worry.