Don’t Call This Supreme Court Term a ‘Sleeper’

By Marcia Coyle

The U.S. Supreme Court wrapped up oral arguments for the term on Wednesday. What will the next two months bring? Will there be 4-4 deadlocks? What cases might get orders for reargument? Will a justice retire?

Before the high court formally closes the term, litigation over the Trump administration’s immigration ban executive order could reach the justices. The full U.S. Court of Appeals for the Fourth Circuit will hear arguments on the ban on May 8, and the Ninth Circuit takes up a Hawaii ruling on May 15. Depending on how quickly those courts rule, the losing side is almost certain to head to the Supreme Court.

“In some ways we’re still seeing a court defined by the vacancy that has been there for most of the term,” said Brianne Gorod, chief counsel to the Constitutional Accountability Center. “It didn’t have the kind of blockbusters we saw over the past several terms.”

Gorod cautioned against calling the term a “sleeper,” however. “The Supreme Court decides important cases and a number of important ones have been decided and will be decided through June.”

Judging by the pace of decision-making, June will be a particularly busy month for a bench that only became full strength just over two weeks ago. Justice Neil Gorsuch officially began his tenure on the high court on April 10 after Senate Republicans won a bitter battle to ensure a conservative successor to Justice Antonin Scalia who died last year.

The justices have issued 26 decisions out of the 64 argued cases (counting consolidated cases as one). At this point last term, the court had eased past the 30-decision mark. Of the 26 decisions, 15, or 57.6 percent are unanimous.

The justices have divided 5-3, so far, in only two cases. In Moore v. Texas, Justice Ruth Bader Ginsburg led the majority in holding that the Texas Court of Criminal Appeals applied the wrong diagnostic standard to determine a death-row inmate’s intellectual disability. Chief Justice John Roberts Jr. wrote the dissent, joined by Justices Clarence Thomas and Samuel Alito Jr.

Justice Anthony Kennedy wrote the majority opinion in Pena-Rodriguez v. Colorado in which the majority held that the so-called no-impeachment rule protecting jury deliberations must give way when there is evidence a juror has relied on racial stereotypes or animus to convict a criminal defendant. Alito, joined by Roberts and Thomas, wrote the dissent.

The court’s quest for unanimity is always tested toward the end of a term when some of the most difficult cases await decision. This term is no different.
One potential candidate for a deadlocked high court has been pending since November: Bank of America v. City of Miami.

The city sued the banks under the federal Fair Housing Act, alleging the banks engaged in predatory lending practices targeting minorities with high-risk loans. When those loans defaulted, the city was left with vacant properties, lost property tax revenue and other costs. The banks argue that the city does not have standing under the Fair Housing Act.

Hogan Lovells partner Neal Katyal argued for the banks. The city’s counsel was Robert Peck of the Center for Constitutional Litigation.

Other key cases awaiting decision include:

Lee v. Tam: whether the Lanham Act’s “disparagement” provision, used to prevent the trademark registration of the American Asian band, The Slants, violates the First Amendment.

TC Heartland v. Kraft Foods: whether patent infringement actions are limited to judicial districts where the defendant resides, or has committed acts of infringement and has a regular and established place of business.

Ashcroft, Ziglar, Hasty v. Abbasi: can former top Bush administration officials be held personally liable for civil rights violations of a group of Muslim and Arab men arrested and jailed following the Sept. 11 terrorist attacks in the United States.

Hernandez v. Mesa: whether the Fourth Amendment’s prohibition on the use of unjustified deadly force applies to a cross-border shooting by a border patrol officer on U.S. territory who killed a Mexican teen on Mexican territory.

Microsoft v. Baker: whether a federal appellate court can review an order denying class certification after plaintiffs voluntarily dismiss their claims.

Dignity Health v. Rollins (and two other cases): whether religious nonprofit health organizations are entitled to the “church plan” exception to the Employee Retirement Income Security Act.

Kokesh v. SEC: whether a five-year statute of limitations applies to U.S. Securities and Exchange Commission actions for disgorgement.

Trinity Lutheran Church v. Comer: whether a state’s exclusion of churches from a neutral state grant program violates the equal protection clause and the First Amendment’s free exercise clause.