Scalia’s absence haunts SC new term


Justice Antonin Scalia will be missing when the Supreme Court opens its 2016 term Monday, but his influence lives on in the cases the court has granted, denied and delayed.

Before Scalia’s death in February, the justices agreed to hear some of the most controversial cases on its calendar affecting insider trading, class action lawsuits and government “takings” of private property. Those are issues the conservative jurist cared deeply about — but without his vote, the odds of his side winning are longer.

Also before his death, the court agreed to hear a Lutheran church’s plea for government funds to resurface a playground, a plea that had a much better chance of being approved with Scalia on the bench. After he was gone, the court refused to consider a Washington State pharmacy’s effort to be exempted from selling emergency contraceptives, another case bearing on religious rights that Scalia likely would have voted to hear.

Beyond the list of cases granted and denied, the court’s month-to-month schedule of oral arguments also appears to have Scalia’s vacancy in mind. Several cases he likely voted to consider — such as the class action, takings and Lutheran church cases — normally would have been heard this fall but have yet to be scheduled. One likely reason: fear that the court could deadlock 4-4, as it did four times last term.

With Senate Republicans refusing to consider President Obama’s nomination of Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia, to replace Scalia, the court is stuck in a holding pattern that could continue for most if not all of its term. Oral arguments will be held from October through April 2017 and all decisions rendered by late June. It could take that long for a new justice to be confirmed and seated.

“We are officially in uncharted territory,” says Kristen Clarke, president of the Lawyers’ Committee for Civil Rights Under Law. “Certainly, this era that we are in now is one that we will read about in the history books.”

The court’s reluctance to take on blockbuster cases has produced a docket without issues such as abortion, affirmative action, health insurance and same-sex marriage.

Not that there won’t be any controversial issues on the court’s agenda this term: The justices could decide to reconsider President Obama’s proposed overhaul of the nation’s immigration laws, on which they deadlocked 4-4 in June. They may accept a Virginia school district’s effort to restrict which bathrooms a transgender boy can use. And same-sex marriage could return yet again, in the form of a Colorado baker’s refusal to serve a gay couple’s wedding or another, similar case.

Even without those cases, the justices will hear disputes involving controversial areas they have tackled before, among them voting rights, immigration, racial discrimination, special education, separation of powers and the death penalty.

Tom Goldstein, publisher of SCOTUSblog and an appellate lawyer who has argued 38 Supreme Court cases, calls them “B and B+ cases that we are not going to be talking about in a decade.”

Here are some of the top cases the court has agreed to hear thus far:

  • Separation of church and state. Trinity Lutheran Church of Columbia v. Pauley is a Missouri church’s appeal of a ruling that upheld the state’s refusal to include it in a grant program that distributed funds to fix playgrounds with recycled tires. “How much more of a secular activity can you get?” says David Cortman, the Alliance Defending Freedom lawyer who will argue the case. But American Civil Liberties Union lawyer Daniel Mach says the lower court was right to reject “a handout from the government.”
  • Election districts. Bethune-Hill v. Virginia State Board of Elections and McCrory v. Harris are cases from Virginia and North Carolina involving Republican state legislatures that redrew state and congressional lines by insisting on 50% or higher percentages of racial minorities in certain districts, which helps to make surrounding districts whiter and more Republican. “All of the rhetoric is about race, but the true, underlying motivation is unquestionably partisanship,” says Nicholas Stephanopoulos, assistant professor and elections expert at the University of Chicago Law School.
  • Racial discrimination. Pena-Rodriguez v. Colorado tests whether the secrecy of jury deliberations can be violated in order to block a racially discriminatory verdict. The defendant, convicted of sexual harassment involving teen-age girls, was convicted, but two jurors later testified that a third juror based his vote on bias against Mexicans. “This is going to be a pretty tough case for the government,”‘ predicts Gregory Katsas, an appellate lawyer and former acting associate attorney general.
  • Insider trading. Salman v. U.S. gives the court a chance to define what constitutes insider trading. The case involves a chain from corporate insider to brother to brother-in-law in which the latter two traded on inside information, but the tipster did not receive compensation. Lower courts are divided on whether helping relatives or friends is compensation enough. “People on Wall Street particularly are watching this case very, very carefully,” says Theodore Olson, a former solicitor general who has argued 62 cases at the high court.
  • Patent infringement awards. Samsung Electronics Co. v. Apple involves Apple’s design patents for its iconic iPhone, which involve features such as curved corners. Samsung has been ordered by lower courts to pay nearly $1 billion in damages, rather than a lesser amount attributable to the non-functioning design features. “The stakes in this case are clearly enormous for the two parties,” says appellate lawyer Kannon Shanmugam, who’s argued 18 high court cases.
  • Derogatory trademarks. Lee v. Tam focuses on a federal law that allows trademarks considered disparaging to be denied federal registration. An Asian American rock band called The Slants won its case in the lower court, and it likely will help decide the Washington Redskins’ similar effort to keep its trademark registrations despite the government’s view that both terms are derogatory. David Strauss, an appellate lawyer and professor at the University of Chicago Law School, said the justices would find the issue “irresistible” because “they’re all Washingtonians now.”
  • Death penalty. Buck v. Davis and Moore v. Texas are the latest of many capital punishment cases to reach the court. A black prisoner seeks resentencing based on incompetent representation after a defense witness testified that African Americans are more likely to be dangerous in the future. And a Texas inmate claiming an intellectual disability says the state must use a more up-to-date definition of the term. “This is part of the problem with the death penalty,” says Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, of the first case. “It produces these kinds of results.”

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