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—Michigan is fighting to preserve a constitutional amendment that bans the use of racial preferences in education after a federal appeals court ruled that the constitutional ban is itself discriminatory. This case, unlike last term's look at a University of Texas admissions plan, does not involve the viability of affirmative action, but rather whether opponents of racial preferences can enshrine that ban in the state constitution.
—Massachusetts is defending a law that creates a 35-foot buffer zone at abortion clinics to limit protesters' ability to interact with patients. The court upheld a buffer zone law in Colorado in 2000, but Roberts and Alito have replaced members of that majority and are considered more sympathetic to the free-speech claims of the protesters.
While several cases call into question high court precedents, the justices will be writing on a blank slate when they take up the president's recess appointment power under the Constitution.
In that case, the court will confront an appeals court ruling that effectively would end the president's ability to make such appointments, if it is left standing.
Former Justice Department official Peter Keisler said that justices often ask a lawyer for the best case in support of his argument. "No one is going to ask that question because 't'aint none.' No Supreme Court decisions are material here," said Keisler, a partner at the Sidley, Austin law firm in Washington.
The impasse that led Obama to install members of the National Labor Relations Board and Consumer Financial Protection Bureau director Richard Cordray in office without Senate confirmation has been resolved. So what remains of the issue is whether Obama and his successors will be constrained in the future.
The topic splits Democrats and Republicans, but their view of the matter is almost entirely dependent on which party controls the White House.