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A behind-the-scenes look at what the justices will consider when deciding whether to hear the Milwaukee voucher program case
BY Kevin Hasson
With the opening of another U.S. Supreme Court term Oct. 5, many court observers are discussing the fate of Milwaukee's school voucher program. On June 10, the Wisconsin Supreme Court upheld the constitutionality of the program, under which Milwaukee gives vouchers to needy children. Schoolchildren can use those vouchers to attend any school their parents choose for them, including religious schools.
A variety of secularist groups and teachers' unions sued to block the plan, claiming that it unconstitutionally established reli- gion, in violation of the First Amendment. The Wisconsin Supreme Court rejected that argument and upheld the voucher program. Now, the opponents of school choice have filed a petition, asking the U.S. Supreme Court to take the case. This action is probably the most closely watched petition among those on file at the Supreme Court. Observers are wondering whether the court will review the program's constitutionality, or simply let stand the Wisconsin Supreme Court's ruling upholding the program. The court will probably announce its decision in the next several weeks.
A SUPREME COURT PRIMER
Here's what you need to know to follow the discussion and to understand the court's decision.
The Supreme Court, unlike lower federal courts, is not obliged to hear cases that are brought to it. Instead, it chooses those cases which it wishes to hear, and rejects the rest. There are a very few exceptions to this rule; a case that will be argued on Nov. 20, concerning the method for the next census, is one such exception. But, in the overwhelming majority of cases, the court chooses the cases it will hear. In fact, the court refuses to hear about 70 cases for every one it accepts.
What happens to a case the court refuses to hear? It is treated as if a Supreme Court review had never been sought; the decision of the court from which review was sought remains in place. Is the case a precedent? Yes and no. The lower court's decision is a precedent for that court, but only for that court. The Supreme Court's refusal to hear a case sets no national precedent, one way or the other. So, for example, if the Supreme Court were to refuse to hear the Milwaukee vouchers case, the Wisconsin Supreme Court decision would still be binding in Wisconsin, and schoolchildren there could still use their vouchers in religious schools, but courts in other states would remain free to agree or disagree. On the other hand, if the Supreme Court were to hear the case and rule on it, either affirming the lower court's ruling or reversing it, then that ruling would apply nationwide.
TO HEAR OR NOT TO HEAR?
In theory, the court accepts cases in order to resolve questions of exceptional import or to resolve a disagreement among different lower courts. These factors are indeed important. But there are other, unwritten factors that also come into play. For example, the court is often reluctant to take the first case that presents an important issue. The justices often prefer to let several lower courts wrestle with a question first. That way, the court can reap the benefit of their different analyses when it finally chooses a case that presents that issue.
The court also tends to prefer cases where the issue is presented clearly, without the burden of other, less interesting issues specific to the case that would also have to be decided. Because the justices can choose the cases they wish to hear, there is no difficulty in passing up one case that presents an interesting issue, in order to wait for a different case that better presents the same issue. The reputations of the lawyers who are bringing the case also play a role. The court will more readily agree to hear a difficult case if the lawyers on both sides are experienced.
SCORPIONS IN A BOTTLE
The Supreme Court's power to pick its cases also makes for some interesting politics among the justices. The Supreme Court is not famous for its collegiality. (The late Justice Jackson once described it as “nine scorpions in a bottle.”) It does not decide cases by consensus, but by hard-fought majority vote. The justices all have strong personalities, and are sharply divided ideologically. Moreover, neither the liberal nor conservative wing has a majority. There are four generally liberal justices — John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. There are three solidly conservative justices, Chief Justice William Rehnquist, and Antonin Scalia and Clarence Thomas. Finally, there are two swing votes, Sandra Day O'Connor and Anthony Kennedy. This means that, for either the liberal or conservative faction to decide an issue, they must attract the swing votes. Thus, justices with a firm view on how a particular issue should be decided, will prefer a case that presents that issue sympathetically.
Since there are nine justices on the court, it takes five votes to decide a case on the merits. But, under the court's internal procedures, it takes only four votes to agree to hear the case in the first place. That means four justices could vote to take a case, hoping it comes out one way, only to be outvoted at the merits stage by the other five justices. This is obviously something all the justices work hard to avoid; far better not to review a case at all, than to have it come out the “wrong” way. So another key element in the court's agreeing to takeacase is the belief of four justices that they can attract a fifth vote at the merits stage. All of these factors — the importance of the issue; the reputation of the opposing counsels; the Justices' ideological leanings; whether the issue is idiosyncratic, or likely to come up again — are the tea leaves court watchers attempt to read.
And just how do the tea leaves look for the Milwaukee vouchers case? Mixed. On the one hand, this is a very important issue that is crisply presented and is being handled by experienced counsel. All of these factors argue in favor of taking the case. On the other hand, it is the first case of its kind to come up, and there are several others close behind. Moreover, it is a very ideological issue that promises to divide the court, probably 5 to 4. If there are any doubts among the justices about their ability to persuade a majority of the court, they may well decide discretion is the better part of valor. But then again, those justices who favor vouchers may believe that the current case constitutes a more sympathetic presentation of the issue than those which are likely to follow. As a result, it is a case in which court watchers are divided in their views.
REASON FOR HOPE
Nevertheless, the future looks bright for vouchers, in general. In a recent case, Agostini v. Felton, five justices voted to uphold allowing publicly paid tutors to help needy parochial school students inside the parochial schools themselves. The majority's reasoning was that, because the public aid flowed to parochial school students according to neutral criteria, and since the only reason that the aid arrived in the parochial schools in the first place could be traced to the free choices of individual parents to send their children to those schools, the Constitution was not violated. That reasoning should also apply to vouchers. Thus, it may only be a matter of time until the court approves school choice, in one case or another. Still, which case and how much time, are factors that are tactically important for the school choice movement. Thus, from any perspective, there is much at stake in the court's decision whether to take the Milwaukee case. Stay tuned.
Kevin Hasson is president and general counsel of the Becket Fund for Religious Liberty in Washington, D.C.