The Supreme Court will gavel in a new term on Tuesday with a thin docket of cases overshadowed by looming questions concerning the future tilt of the court.
The justices — still at reduced strength of eight — are in a holding pattern of sorts on the issues that closely divide them. If last term is any guide, they will get their work done, ruling narrowly at times to achieve consensus, while the political branches feud over which president will choose the next justice.
Not only does the seat left by Justice Antonin Scalia remain open, but the fact that three of the justices are in their late 70s or early 80s means talk on the campaign trail about how the next president can shape the court’s future isn’t just hyperbole.
Last term, progressives scored victories in the areas of abortion rights and affirmative action. If another justice were to join the liberal wing, the court could swing left on other cases concerning voting rights, campaign finance, immigration, access to the courts, and gun control. If a Donald Trump nominee were to be confirmed, the conservative majority on those issues might solidify.
“If the next president is able to make multiple appointments we could see a real paradigm shift,” said Jeffrey B. Wall, of Sullivan & Cromwell, who frequently argues before the court. He notes that since the late 1990’s there have been a fairly cohesive bloc of four liberals on the court and a less cohesive block of five more conservative justices. “No matter what happens in the election, the center of the court is likely to shift,” he said and added that if President Barack Obama’s nominee, Judge Merrick Garland, were to be confirmed, for instance, he could replace Justice Anthony Kennedy as the new center of the court.
But Paul Smith of Jenner & Block cautions that change on the court does not necessarily happen overnight. “The court doesn’t like to overrule prior decisions,” he said. If the majority were to swing left, the change would likely be reflected in a narrowing or undermining of previous opinions.
The justices like to remind the public that they are often unanimous in their rulings, but it is the closely divided cases that grab people’s attention.
While 4-4 splits are still a possibility, the justices demonstrated last term that they could find more narrow ways to rule on certain cases in order to seek consensus. They also managed to deal with one controversial case concerning the so-called contraceptive mandate, by simply sending it back to the lower court and urging the parties to find consensus.
Notably, after Scalia’s death in February, justices took up fewer cases to be heard this term, perhaps in an effort to stall until the court is at full strength.
For now, public interest groups on both side of the political spectrum are also moving cautiously, fearful of pushing a particular issue and risking bad precedent until they are sure which way the court might swing on hot button issues.
The cases that are currently on the docket may not present the constitutional blockbusters of recent years, but they explore significant issues ranging from voting rights, to the death penalty, religious liberty, and racial bias in juries.
There are also patent disputes covering everything from the bezel of the iPhone to the chevron found on a cheerleader’s uniform.
The court could also add cases over the term. Lurking on that list is a case concerning a Virginia transgender male teenager who seeks to use the boys’ bathroom. A lower court cleared the way for Gavin Grimm to use the bathroom that corresponds to his gender identity, but last summer the Supreme Court froze that opinion while it decides whether to take up the appeal.
Voting rights and gerrymandered districts
The voting rights cases concern claims of racial gerrymander — or how states draw district lines. Civil rights groups and Democrats are challenging redistricting plans in North Carolina and Virginia that they say packed African-Americans in districts that already had a high percentage of African-Americans, thus diluting their presence in other districts.
But attorneys for North Carolina and Virginia argue that the states find themselves in a bind. The Voting Rights Act requires that the legislature take race into consideration when drawing lines. At the same time, the equal protection clause prevents race from being the dominant factor in those decisions.
Justices this week will hear a case concerning Duane Buck, an African-American, who was sentenced to death after his own lawyer introduced an expert who testified that Buck was more likely to be dangerous in the future because he is black. Texas law requires a finding of “future dangerousness” before a death sentence is imposed.
Lawyers for Buck argue that, “no constitutional rule is more important than the dictate that race must play no role in a criminal sentence, much less a capital sentence.”
Texas Attorney General Ken Paxton responds in court papers that an ineffectiveness of counsel claim is procedurally barred in the case and that the assessment of the death penalty was not made solely on the testimony of one witness.
Religious liberty is another issue the court will examine in a case out of Missouri concerning a day care facility run by the Trinity Lutheran Church. The church sought a state grant given to facilities that use recycled tires as a surface for playgrounds to improve safety.
Missouri awarded the grants to other non-profits, but said that the day care facility was ineligible because the Missouri Constitution bars state funding to churches.
Lawyers for the church say the state’s action is an unconstitutional violation of both the free exercise and equal protection clauses. In court papers they argue, “A categorical ban on religion here is merely an overbroad and unconstitutional restriction on the faithful’s ability to participate on equal terms in public life.”
One interesting twist in the case is that although it was granted in January, just before the death of Justice Antonin Scalia, it has yet to be put on the calendar. Court watchers speculate that Chief Justice John Roberts might be expecting a 4-4 split in the case so he is trying to delay arguments until there are once again nine justices on the court.
The justices will also hear the case concerning jury bias that pits the secrecy of jury deliberations against the 6th Amendment’s guarantee of an impartial jury.
A jury in Colorado found Miguel Angel Pena Rodriguez guilty of unlawful sexual contact and harassment. But after the verdict was released, two jurors explained that during deliberations another juror — “H.C.” — had expressed racial bias toward Pena Rodriguez. According to the jurors, “H.C.” said that the defendant “did it because he’s Mexican and Mexican men take whatever they want.” Pena Rodriguez seeks a retrial.
Insider trading and copyrights
The justices will hear major disputes that are less likely to divide them down familiar lines. There’s an insider trading case concerning the personal benefit that must be established when an insider gives information to a “tippee.”
In Star Athletica v. Varsity Brands, the justices will decide whether the stripes and chevrons of a cheerleading outfit can be subject to copyright protection. In Samsung v. Apple the Court will discuss the $399 million award Apple won in the court below in a patent dispute with Samsung.
If Hillary Clinton were to win in November, there is a possibility that Obama’s pick, Garland, could go before Congress during the lame duck session. But so far, Senate Republicans are ruling out that possibility. That means it would be Clinton’s choice whether to push forward with Garland or to choose her own nominee after her inauguration. She would come under some pressure to choose someone younger with a more liberal record.
“If I have the opportunity to make any Supreme Court appointments, I am going to look broadly and widely for people who represent the diversity of our country, who bring some common-sense, and real-world experience,” she said last month on the Tom Joyner radio show.
It would be the first time since May of 1969 that the court has had five members appointed by Democratic presidents.
“We had not even walked on the moon the last time a majority of the Justices had been appointed by a Democratic President,” said Steve Vladeck, CNN Supreme Court analyst and professor of law at the University of Texas School of Law.
Vladeck pointed out that if Donald Trump were to win he could “cement a new Republican majority — both by replacing Justice Scalia and, perhaps down the road, Justices Ginsburg or Breyer as well.”
Trump has put forward his own list of potential nominees for the court. His list is made up mostly of current federal and state judges, but he also suggested he would consider Utah Sen. Mike Lee, a stalwart conservative and close friend of Trump’s former presidential rival, Sen. Ted Cruz.