Assuming the government shutdown doesn’t get in their way, the justices also will deal with a case that goes to the heart of the partisan impasse in Washington: whether and when the president may use recess appointments to fill key positions without Senate confirmation.
The court was unaffected for the first few days of the government shutdown and there was no expectation that arguments set for October would have to be rescheduled.
The new term that starts Monday may be short on the sort of high-profile battles over health care and gay marriage that marked the past two years. But several cases ask the court to overrule prior decisions — bold action in an institution that relies on the power of precedent.
“There are an unusual number of cases going right to hot-button cultural issues and aggressive briefing on the conservative side asking precedents to be overruled,” said Georgetown University law professor Pamela Harris, who served in President Barack Obama’s Justice Department.
Paul Clement, a frequent advocate before the court and the top Supreme Court lawyer under President George W. Bush, agreed that the opportunity exists for dramatic precedent-busting decisions. But Clement said each case also offers the court “an off-ramp,” a narrower outcome that may be more in keeping with Chief Justice John Roberts’ stated desire for incremental decision-making that bridges the court’s ideological divide.
There is a familiar ring to several cases the justices will take up.
Campaign finance, affirmative action, legislative prayer and abortion clinic protests all are on the court’s calendar. The justices also will hear for the second time the case of Carol Anne Bond, a woman who was convicted under an anti-terrorism law for spreading deadly chemicals around the home of her husband’s mistress.
The justices probably will decide in the fall whether to resolve competing lower court decisions about the new health care law’s requirement that employer-sponsored health plans include coverage of contraceptives.
An issue with a good chance to be heard involves the authority of police to search the contents of a cellphone found on someone they arrest. Justice Ruth Bader Ginsburg said over the summer that the right to privacy in the digital age “is bound to come up in many forms” in the years ahead.
The court may hear its first abortion case since 2007, a review of an Oklahoma law that would restrict the use of certain abortion-inducing drugs such as RU-486.
The campaign finance argument on Tuesday is the first major case on the calendar. The 5-4 decision in the Citizens United case in 2010 allowed corporations and labor unions to spend unlimited sums in support of or opposition to candidates, as long as the spending is independent of the candidates.
The new case, McCutcheon v. Federal Election Commission, is a challenge to the overall limits on what an individual may give to candidates, political parties and political action committees in a two-year federal election cycle, currently $48,600 to candidates and $123,600 in total. The $2,600 limit on contributions to a candidate is not at issue.
Since the Buckley v. Valeo decision in 1976, the court has looked more favorably on contribution limits than on spending restrictions because of the potential for corruption in large contributions. The big issue in the current case is whether the justices will be just as skeptical of limits on contributing as on spending.
Three justices, Anthony Kennedy, Antonin Scalia and Clarence Thomas, have signaled their willingness to do so. It remains to be seen whether Roberts and Justice Samuel Alito, the other two members of the Citizens United majority, are willing to go along.