Civil and Human Rights

Supreme Court Faces Volatile, Even if Not Blockbuster, Docket

By Adam Liptak

The Supreme Court, awaiting the outcome of a presidential election that will determine its future, returns to the bench this week to face a volatile docket studded with timely cases on race, religion and immigration.

The justices have been shorthanded since Justice Antonin Scalia died in February, and say they are determined to avoid deadlocks. That will require resolve and creativity.

“This term promises to be the most unpredictable one in many, many years,” said Neal K. Katyal, a former acting United States solicitor general in the Obama administration now with Hogan Lovells.

There is no case yet on the docket that rivals the blockbusters of recent terms addressing health care, abortion or same-sex marriage. But such cases are rare, whether there are eight justices or nine.

“This term’s cases are not snoozers,” said Elizabeth B. Wydra, the president of the Constitutional Accountability Center, a liberal group. “This term features important cases about racial bias in the criminal justice system, voting rights and redistricting, immigration and detention, and accountability for big banks that engaged in racially discriminatory mortgage lending practices.”

There are, moreover, major cases on the horizon, including ones on whether a transgender boy may use the boys’ restroom in a Virginia high school and on whether a Colorado baker may refuse to serve a same-sex couple.

“If either of these cases is taken, it will almost immediately become the highest profile case on the court’s docket,” said Steven Shapiro, the legal director of the American Civil Liberties Union.

There is also the possibility that a dispute over the outcome of the presidential election could end up at the Supreme Court, as it did in 2000 in Bush v. Gore.

“That is the doomsday scenario in some respects of having an eight-member court,” said Carter G. Phillips, a lawyer with Sidley Austin. A deadlocked Supreme Court would leave in place the lower court ruling and oust the justices from their role as the final arbiters of federal law.

Race figures in many of the new term’s most important cases, including two to be heard in October, and that seems to be part of a new trend. “The court hasn’t had a lot of cases recently dealing with race in the criminal justice system,” said Jeffrey L. Fisher, a law professor at Stanford.

In June, a dissent from Justice Sonia Sotomayor brought a new perspective to the issue. Citing James Baldwin’s “The Fire Next Time” and Ta-Nehisi Coates’s “Between the World and Me,” she insisted that the brutal history and contemporary reality of racism in the United States must play a role in the court’s analysis.

That dissent may prove influential, said Justin Driver, a law professor at the University of Chicago. “One item to keep an eye on this term,” he said, “is the extent to which the Black Lives Matters movement makes its presence felt on the court’s docket.”

On Wednesday, the court will hear arguments in Buck v. Davis, No. 15-8049. It arose from an extraordinary assertion by an expert witness in the death penalty trial of Duane Buck, who was convicted of the 1995 murders of a former girlfriend and one of her friends while her young children watched. The expert, presented by the defense, said that black men are more likely to present a risk of future danger.

The justices will decide whether Mr. Buck, who is black, may challenge his death sentence based on the ineffectiveness of the trial lawyer who presented that testimony.

“The Buck case raises questions that could not be more relevant to ongoing conversations sparked by police shootings about implicit bias and stereotyping of African-American men as violent and dangerous,” Ms. Wydra said. “The Roberts court, and particularly the chief justice himself, has often been reluctant to acknowledge the reality of systemic racism in this country, but the egregious facts of the Buck case make it impossible to avoid.”

On Oct. 11, the court will consider another biased statement, this one ascribed to a juror during deliberations in a sexual assault trial. “I think he did it because he’s Mexican, and Mexican men take whatever they want,” the juror said of the defendant, according to a sworn statement from a second juror.

The question in the case, Peña Rodriguez v. Colorado, No. 15-606, is how to balance the interest in keeping jury deliberations secret against the importance of ridding the criminal justice system of racial and ethnic bias.

Race also figures in cases on redistricting, fair housing and malicious prosecution.

On Thursday, the court agreed to decide another charged case, Lee v. Tam, No. 15-1293, which asks whether the government may deny federal protection to a trademark said to disparage Asian-Americans. The case will probably effectively decide a separate one concerning the Washington Redskins football team.

The court will also decide, in Moore v. Texas, No. 15-797, whether Texas may use an idiosyncratic standard in deciding who must be spared execution because of intellectual disability. The state relies in part on what one judge there called the “Lennie standard,” which exempts defendants who resemble Lennie Small, the dim, hulking farmhand in John Steinbeck’s “Of Mice and Men.”

At some point this term, the court will hear a significant religion case, Trinity Lutheran Church v. Pauley, No. 15-577. It poses the question of whether states must provide aid to churches in at least some circumstances even if their state constitution forbids such assistance.

The court agreed to hear the case on Jan. 15, about a month before Justice Scalia died. Other cases granted that day were argued and decided by the end of the last term in June. In the ordinary course, the religion case would have been scheduled for argument in the last term or in October, and certainly not later than November.

But the case has yet to be scheduled. “The most logical inference,” said Paul D. Clement, a former solicitor general in the Bush administration now with Kirkland & Ellis, “is that this is a case where the court is going to take its time scheduling this in the hopes that they will have nine justices to decide the case in the end because this is a case that could be closely divided.”

The case started when officials in Missouri rejected an application from a Lutheran church for a grant to use recycled tires to resurface a playground.

The Missouri Constitution bars spending public money “in aid of any church,” and the State Supreme Court has called for “a very high wall between church and state.”

The church argues that the State Constitution violates equal protection principles and the First Amendment’s guarantee of free exercise of religion.

The court has three immigration cases on its docket, involving detentions, deportations and how children born abroad to an American parent may obtain citizenship.

The court has already granted a stay in Gloucester County School Board v. G.G., No. 16-273, temporarily barring Gavin Grimm, a transgender boy, from using the boys’ bathroom in a Virginia high school. The justices are scheduled to decide whether to hear the case on Oct. 14, and the stay suggests that they may be ready to enter the national debate over transgender rights.

Later this term, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111, the justices will decide whether to take up a baker’s contention that he should not be compelled to create a cake for a same-sex wedding.

Mr. Clement, at a briefing at the Heritage Foundation, a conservative group, said the justices will most likely be cautious in granting contentious cases until they are back at full strength.

“The court seems to be reluctant,” he said, “to add cases to their docket that they think in advance may well divide them 4 to 4.”

But the court may feel it has to try to resolve a dispute arising from the presidential election.

“Would they take the case?” Mr. Phillips mused at the same briefing, referring to one along the lines of Bush v. Gore. “My guess is they might. Whether they would ultimately decide anything, who knows?”



This piece appeared in at least the following additional outlets:

  • Santa Fe (NM) New Mexican

  • The Buffalo (NY) News

  • The Schenectady (NY) Daily Gazette

  • The Cleveland (OH) Plain Dealer

  • The Columbus (OH) Dispatch

  • The Columbia (SC) State

  • The Dallas (TX) Morning News

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