July | August 2017







Supreme Court Preview for the States

Lisa Soronen, Executive Director, State and Local Legal Center
The U.S. Supreme Court’s October 2015 term is one to watch not only because the court has accepted numerous cases on controversial topics but also because many of the Supreme Court’s decisions this term, including a number of cases affecting the states, are likely to be discussed by the 2016 presidential candidates as the election heats up.
Here is a preview of the most significant cases for the states that the court has agreed to decide so far. 
The “one-person, one-vote” principle of the U.S. Constitution’s Equal Protection Clause requires that voting districts have roughly the same population so that votes in each district count equally. But what population is relevant—total population or total voting population—and who gets to decide? The court will answer these questions in Evenwel v. Abbott.
Public-Sector Collective Bargaining
In Friedrichs v. California Teachers Association the Supreme Court will decide whether to overrule a nearly 40-year-old precedent requiring public-sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. More than 20 states have enacted statutes authorizing “fair share.”
If the court doesn’t overrule Abood v. Detroit Board of Education (1977), it may instead rule that public employees should be allowed to opt-in rather than required to opt-out of paying “nonchargeable” union expenditures, in which case presumably fewer would opt-in.  
Affirmative Action
For the second time, the court has agreed to decide whether the University of Texas at Austin’s race-conscious admissions policy is unconstitutional in Fisher v. University of Texas at Austin. Per Texas’s Top Ten Percent Plan, the top ten percent of Texas high school graduates are automatically admitted to UT Austin, which in 2008 filled about 80 percent of the incoming class. Most of the other applicants are evaluated through a holistic review where race is one of a number of factors.
Juvenile Life in Prison
In 2012, in Miller v. Alabama, the Supreme Court ruled 5-4 that states may not mandate that juvenile offenders be sentenced to life in prison with the possibility of parole without considering mitigation evidence about the defendant’s youth. In Montgomery v. Louisiana the Supreme Court will decide whether Miller is retroactive. This decision may affect more than 2,000 prisoners.
States Sued in Other State’s Courts
In Franchise Tax Board of California v. Hyatt the court may overrule Nevada v. Hall (1979), holding that a state may be sued in another state’s courts without consent. If it doesn’t, the court will decide whether states must extend the same immunities that apply to them to foreign states sued in their state courts. However, if the court overrules Nevada v. Hall, the question will be moot.   
ERISA Preemption
Vermont and at least 16 other states collect health care claims data. In Gobeille v. Liberty Mutual Insurance Company, the court will decide whether the Employee Retirement Income Security Act preempts Vermont’s all-payers claims database law. ERISA applies to most health insurance plans and requires them to report detailed financial and actuarial information to the Department of Labor.
In FERC v. Electric Power Supply Associationthe court will decide whether the Federal Energy Regulatory Commission, or FERC, may regulate “demand response” payments offered to electric utility customers to reduce their electricity use during periods of high demand.
States may save money through participating in demand response programs. But the Electric Power Supply Association argued, and the D.C. Circuit Court of Appeals agreed, that demand response encroaches on states’ regulatory authority.
For a longer analysis on these cases, see the State and Local Legal Center’s Preview for the States.



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