The Supreme Court picks, one case at a time, the issues it will decide and leaves it to scholars, journalists and other observers to see trends. No one on the outside can explain, with any confidence, why some disputes get the Justices’ attention and others simply get bypassed.Still, each October-to-June sitting of the court develops patterns and reveals the shifting alignment of the Justices’ votes and philosophies. The latest term ended on Tuesday morning with the release of final orders, but some of the Justices were already packing to leave town for summer journeys. Those final orders helped set some of the tone for the next term, which opens on October 3.
The just-closed term, of course, had months of uncertainty about how eight Justices would operate after the death in February of Justice Antonin Scalia – in many ways, the court’s most dominant member, intellectually and otherwise. With only eight Justices for much of the term, a few of the biggest controversies of the term ended in 4-to-4 splits – essentially, non-decisions – on such issues as immigration policy and labor union fees for public sector workers.
But the court also did reach major rulings, even on the most controversial questions of the term, such as abortion and college affirmative-action plans, plus a compromise on the Affordable Care Act’s birth-control mandate. And the overall result, at least in the eyes of some journalistic analysts, was that the court’s four-member liberal bloc had more conspicuous success than the three most-conservative bloc of Justices, partly because of Justice Scalia’s death, and partly because the liberals more often attracted the often-decisive vote of the “swing” Justice, Anthony M. Kennedy.
It was quite noticeable, as the term moved through its final weeks, that the court was making some attempt to avoid taking on new controversies likely to split the court, perhaps out of uncertainty over when a ninth Justice might join the bench and return business to normal. The current political situation in the Senate does make it appear that a ninth Justice may not be approved and ready to work until next February at the earliest, after the new term already had passed its mid-point. And the identity of that Justice, it seemed, would depend entirely on who the voters chose as president, with the opportunity to replace Justice Scalia and perhaps swing the balance of voting power on the court.
The court has already agreed, though, to decide 29 new cases in the next term. All of those are likely to be heard by the end of December, and that probably would mean that only eight Justices would hear them. If some of those case are not decided by the time a new Justice did arrive, however, that colleague could still take part in the final ruling.
So far, the highest visibility case the Justices have selected for the next term involves an old standby of controversy: church-state relations. The court is currently divided deeply over constitutional issues involving religion, and may well be again when it considers the new case of Trinity Lutheran Church v. Pauley. That involves the question of whether religiously affiliated schools can be constitutionally denied equal access to a government benefit, even if the benefit has nothing to do with matters of faith. At issue is a program in Missouri that provides rubberized material for school playgrounds, made out of old tires. Missouri’s constitution bars parochial schools from such public benefits.
Other issues already scheduled for review involve the question of racial gerrymandering in drawing up new election districts for state legislatures, racial bias in criminal tries for murder, the right of city governments to sue mortgage lenders over racial discrimination in home loans, the rights of consumers to sue major credit card companies over the ways they set fees when their customers use bank ATM machines to get cash, the rights of parents of a disabled child to sue the school for money damages for alleged discrimination against their child, a claim of sex discrimination in access to U.S. citizenship for children born abroad of parents -- when only one of the parents is a U.S. citizen, the reach of a law that can be a nemesis to Wall Street traders – the law making it a crime to trade on corporate inside information, a high-stakes patent controversy over the design of smartphones, and a dispute over legal protection for the designs of cheerleaders’ costumes.
There are a good many other highly visible controversies that could reach the court in the next term, some of which are already there awaiting the Justices’ attention, and others developing in lower courts. It could be that two of the major cases that ended in ties in the prior term would return.
One of those – testing the legality of President Obama’s ambitious plan to postpone deportation of millions of undocumented immigrants – might be back but is now shrouded in uncertainty, depending upon how that policy fares in a coming trial in a Texas federal court, and upon who the next president is.
The other – on the constitutionality of charging any union fees to workers in state and local government jobs when they do not join the union – is developing in sequel cases in lower courts, and is almost certain to reach the Justices again in coming months.
The court also may be drawn for the first time into the legal controversy over the rights of transgender people, which looms as the next “new” civil rights struggle. The first case could be an appeal by a public school board in Virginia, seeking to have transgender students use only unisex bathrooms.
The ever-present controversy over laws that regulate abortions may return in follow-up cases to the Justices’ end-of-term decision striking down two laws in a major case from Texas.
Also developing are an increasing number of cases over the scope of gun rights under the Second Amendment, especially the question of how far the right to have a gun extends outside one’s home. Another criminal law issue sure to return is the type of gun that can be banned without violating the Second Amendment. And a lingering dispute over the government’s use of data taken from cellphone towers to aid in investigating crime is shaping up in new cases.
There will also be a cultural dispute over whether some trademarks are illegal because they are offensive to particular groups – an issue made famous by the controversy over the Washington pro football team’s name (Redskins), although the first case to get reviewed may involve a rock band group’s trademark, offensive to Asian people.
The court also may confront the question of whether universities with big-time football and basketball programs may legally refuse to provide some form of pay for the student athletes – an issue that has arisen under antitrust law.
By the time some of those developing cases reach the court, it is possible – though not predictable – that the court would be back to a full bench of nine Justices, more capable of generating majority outcomes.Lyle Denniston is currently the National Constitution Center's constitutional literacy adviser. Later this summer, Denniston will become our full-time Supreme Court correspondent based in the Washington, D.C. area.
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