Federal Courts and Nominations

How Will the Justices Rule?

The Supreme Court is considering important cases this term on a variety of hot-button issues

Before its current term ends in June, the Supreme Court will have the potential to reshape U.S. law—and American life—on a host of hot-button issues. Cases on the docket include important ones about immigration, gun rights, gay rights, and jury trials. Adding to the potential drama: The rulings are expected early next summer, just as the presidential election will be heating up.

“Although the Court will carry on with a sense of normalcy,” says Lisa S. Blatt, a Washington, D.C., lawyer who often argues cases there, “it will be hard for them to ignore the polarization in the country.”

The Court’s newest member, Justice Brett Kavanaugh, took his seat last fall and cemented what is now a solid conservative majority. Kavanaugh, appointed by President Trump, replaced Justice Anthony Kennedy, who was often a swing vote between the Court’s liberal and conservative wings. Experts say Chief Justice John Roberts could be the new swing vote. Here’s what you need to know to understand some of the key cases.

Will young undocumented immigrants be subject to deportation?

Department of Homeland Security v. Regents of the State of California

For seven years, nearly 800,000 young men and women who were brought to the United States illegally as children have lived in limbo, protected from deportation but without the guarantee of a permanent future in the U.S.

The federal program that has protected them is called Deferred Action for Childhood Arrivals, or DACA. In 2012, then-President Barack Obama created DACA by executive order. Obama and immigration advocates said the children shouldn’t be penalized for their parents’ decisions to come illegally to the U.S.

President Trump wants to end the program, which he called an “end run around Congress.” He said Obama’s use of executive authority to protect the young immigrants violated “the core tenets that sustain our Republic.” Now the Supreme Court will decide whether Trump can carry out his plan.

Lower courts have so far blocked the Trump administration’s attempts to do away with DACA, saying that the government’s rationale for ending the program was “arbitrary and capricious.”

However the Court rules, the DACA decision could affect the 2020 election.

“This is hugely important,” says David Cole, legal director of the ACLU, the country’s largest civil liberties organization, “because this one legal decision will directly affect 800,000 lives.”

However the Court rules, its decision could roil the presidential election. Allowing the Trump administration to end the program could energize Democratic voters and immigration advocates to campaign even more aggressively against the president. If the Court prevents Trump from ending DACA, that could fire up his base of voters, many of whom see the program as a kind of amnesty for undocumented immigrants.

Must a jury be unanimous to convict someone in a criminal case?

Ramos v. Louisiana

In 2014, Evangelisto Ramos, a Louisiana boat worker, was accused of killing a woman in New Orleans. Prosecutors were able to convince only 10 of 12 jurors of Ramos’s guilt, but that was enough for a conviction; he was sentenced to life in prison without parole. Ramos, now 46, maintains his innocence.

Louisiana has since prohibited nonunanimous jury verdicts. But the change applies only to crimes committed after 2018, so it doesn’t help Ramos, whose case is now before the Supreme Court. One other state, Oregon, continues to permit convictions by a jury vote of 10 to 2.

The Court is now considering whether that practice is constitutional. Louisiana’s solicitor general, Elizabeth Murrill, argues that since the Sixth Amendment, which protects the rights of the accused, doesn’t explicitly require a unanimous jury, the 10-to-2 verdicts already on the books should be allowed to stand. Joshua Marquis, a former district attorney in Oregon, says requiring agreement among just 10 jurors makes for a more efficient justice system. “Pretty much the only difference is that we have fewer hung juries,” he says. He adds that since only 10 votes are needed for either conviction or acquittal, the rule favors neither the defense nor the prosecution.

However, the idea of a unanimous jury is a legal principle that traces back to British law before the founding of the United States. In 1972, the Supreme Court ruled that unanimous juries are required in all federal court convictions but not necessarily in state courts.

Louisiana’s practice of allowing conviction without a unanimous jury dates to its Jim Crow past.

In 1898, after the Supreme Court ruled that states couldn’t exclude black people from juries, Louisiana held a constitutional convention whose purpose, as the chairman of its judiciary committee put it, was “to establish the supremacy of the white race in this state to the extent to which it could be legally and constitutionally done.”

The new state constitution replaced a unanimity requirement with one that said the votes of 9 jurors out of 12 were enough to convict criminal defendants. In 1973, the constitution was amended to require 10 jurors to agree.

“They came up with a system to make sure that black jurors’ votes would not count,” says Calvin Duncan, an African American law student who worked for years to get the Supreme Court to address this issue. “If a black did get on a jury, whatever they said would not count anyway. It’s like the last of the Jim Crow-era laws.”

Does federal law protect people from getting fired for being gay?

Bostock v. Clayton County

For 10 years, Gerald Bostock worked for a government program that helped neglected and abused children in Clayton County, Georgia, just south of Atlanta.

“My employer loved the job I was doing,” says Bostock. “I got favorable performance reviews. We had great success.”

But Bostock, 55, says that all began to change in January 2013, when he joined a gay recreational softball league. “Within months of that, there were negative comments about my sexual orientation,” he says.

In June 2013, he was fired. Bostock says he lost his job because of his sexual orientation, and he argues that’s in violation of federal laws against discrimination. Jack Hancock, a lawyer for Clayton County, denies that Bostock’s firing was based on his sexuality. But the county also argues that it would be justified in firing someone because of their sexual orientation.

“When Congress prohibited sex discrimination in employment approximately 55 years ago,” Hancock says, “it did not simultaneously prohibit discrimination on the basis of sexual orientation.”

Despite a string of Supreme Court victories for the gay rights movement over the past two decades, in more than half of U.S. states, businesses can still fire employees for being gay.

In the Bostock case, the Court will consider whether Title VII of the Civil Rights Act of 1964, which protects employees from workplace discrimination on the basis of race, sex, and religion, also provides that guarantee to gay and transgender people.

It will be the court’s first case on L.G.B.T.Q. rights since the retirement last year of Justice Kennedy, who wrote the majority opinions in all four of the Court’s major gay-rights decisions, siding with the Court’s liberal justices

Will the Court expand Second Amendment rights?

New York State Rifle & Pistol Association v. City of New York

The Second Amendment protects the right to “bear arms.” In 2008 and 2010, the Supreme Court ruled that the amendment safeguards an individual’s right to own a gun. Now the question is what kinds of gun-control measures are acceptable.

New York City has some of the strictest gun laws in the nation. One of those restrictions was a law that prohibited licensed gun owners from taking their guns to second homes or shooting ranges outside the city, even when the guns were unloaded and remained locked in containers separate from their ammunition.

Gun rights advocates are challenging the constitutionality of those restrictions.

What kinds of gun-control measures are acceptable?

The ruling could be momentous. With two new conservative-leaning justices on the Supreme Court since 2010, when it last considered a Second Amendment case, the Court could sharply limit the scope of gun-control laws.

“This case is important because it might determine the standard that courts should use when considering Second Amendment challenges,” says David Gans of the Constitutional Accountability Center, a liberal think tank in Washington, D.C. “It might make it much harder for local governments to pass reasonable gun regulations.”

But it’s possible that the gun case won’t be argued. After the Supreme Court agreed in January to hear the case, New York City repealed the regulation in an effort to make the court challenge moot. The city was trying to prevent a Court ruling that might significantly limit gun-control efforts. The Court will decide at oral arguments in December if the case will proceed.

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