On Monday, the Supreme Court released a long list of cases it won’t hear for arguments during its new term, and three cases we previewed last week didn’t make the cut.
Each year, the Court considers nearly 2,000 submissions and appeals that accumulate over the summer. Usually, in separate orders from the Court, a small number of cases are selected to be argued in front of the Justices by next May.
For the Court to accept a case, at least four Justices need to agree to hear it. Over the summer, their clerks decided which cases to recommend to them for acceptance.
Last Thursday, the Court granted new five cases of its 2018 term, which started today. Most likely, the Court will add more cases in the next few weeks. (Last October, a second list of cases granted for certiorari was issued by the Court two weeks after its first list of the term.)
Among this year’s potential cases last week were several that had received some publicity. All three were denied certiorari on Monday. In Martins Beach v. Surfrider Foundation, the Supreme Court considered if a California law, that requires a landowner to get a permit to exclude public access to a private beach, is, in fact, a taking under the Fifth Amendment.
There was also an appeal related to a Supreme Court decision in 2017. In Hernandez v. Mesa, the Supreme Court considered first a case where a Mexican teen was shot and killed while standing on Mexico's territory by a U.S. border patrol agent on the United States side of the border in El Paso, Texas. That case was sent back to the Fifth Circuit to consider a question that hadn’t been addressed originally. In March 2018, an en banc Fifth Circuit panel ruled that the teen’s family couldn’t pursue a civil lawsuit against the border agent in Texas.
And there was another case about vehicle searches up for consideration. In Johnson v. United States, the question was about the ability of the police to use probable cause to search a motor vehicle when its driver appears to have committed a non-moving parking infraction. The petitioner claimed such tactics were Fourth Amendment violations.
One case still alive in the appeals process and to watch for when the next orders list is released is a likely combined case: Maryland-National Capital Park and Planning Commission v. American Humanist Association and The American Legion v. American Humanist Association.
Here, the Court is considering if a World War I memorial in the shape of a cross in Maryland can remain on public property. The memorial was erected on private property in 1925 by the American Legion, but the planning commission later acquired the property due to traffic concerns. A split federal appeals court ordered the cross’s removal from the current property. The petitioners argue that Court misapplied a constitutional test in that decision.
Scott Bomboy is editor in chief of the National Constitution Center.
