Federal Courts and Nominations

Supreme Court, wary of major new cases, to rule on cheerleaders’ outfits and adult diapers

By David Savage

The Supreme Court agreed this week to decide a patent dispute between two makers of adult diapers, not to resolve whether one company stole the design of another, but only whether the rival waited too long before suing.

It was apparently just the kind of case that the ideologically divided eight-member high court is prepared to decide for the rest of this year.

Since Justice Antonin Scalia died in February, leaving a seat open, the remaining justices have voted to take only seven new cases for the fall, about half as many as during the same time last year.

And most of the seven involve technical disputes over patents and copyrights or matters of legal procedure that do not split the justices along conservative and liberal lines.

This week, for example, the justices said they would decide a copyright dispute between two makers of cheerleaders’ outfits and rule on whether bright stripes may be copyrighted as creatively distinctive.

Two weeks ago, however, the high court turned down a potentially momentous copyright clash for the digital era.

The Authors Guild contended that digital giant Google was blatantly infringing the copyrights of the authors when it scanned 20 million books so they could be searched and read online. The justices issued a one-line order dismissing the case.

Lawyers who file appeals regularly at the high court and others who closely follow its work say it is clear the justices, at least for now, are wary of taking on major cases.

“They are taking very few cases, and you have to wonder if they are nervous about taking cases that are likely to sharply divide them. They won’t want to see a 4-4 split,” said Brianne Gorod, chief counsel for the Constitutional Accountability Center, a progressive legal group.

“It also shows how the vacancy is compromising their ability to do the job,” she added.

She referred to the GOP-led Senate’s refusal to consider President Obama’s nomination of Judge Merrick Garland to fill Scalia’s seat.

Republicans in the Senate, led by Majority Leader Mitch McConnell of Kentucky, have vowed not to hold hearings or vote on a new nominee until a new president is elected.

If they stick to that plan, the high court may not have a full contingent until next spring.

“Most of our decisions are not 5 to 4. That number is pretty small,” Roberts said Wednesday  at a judicial conference in Arkansas. “So the decision process is pretty much as it has been.”

From October through April, the court heard arguments in 69 cases and has issued decisions in 34 of them. Only a few were affected by Scalia’s death on Feb. 13.

In March, the court said it was split 4-4 and could not decide a 1st Amendment challenge to the mandatory fees paid by unionized teachers in California and across the nation.

Between mid-May and the end of June, the court is expected to decide the remaining 35 cases. They include disputes involving college affirmative action, abortion, contraceptives, immigration and public corruption.

The justices will continue sifting through appeal petitions to decide which cases they will hear in the new term that begins in October. Unlike most lower courts, they are largely free to choose their cases and set the agenda for the year ahead.

In general, the justices say they look for appeals that highlight how the law in a particular area is confused or uncertain.

For example, if a U.S. appeals court in the West rules that a federal tax or bankruptcy provision means something different from what it meant according to a U.S. appeals court in the East, the justices are likely to take up a case to resolve the issue. 

But in a significant percentage of cases, the conservative and liberal justices see the issues differently.

In recent years, the court’s conservatives, including Scalia, voted to take up cases that challenged federal laws limiting campaign spending and protecting voting rights, as well as ones involving mandatory union fees and affirmative action. On the business front, they repeatedly voted to hear challenges to class-action suits against banks and corporations.

Scalia’s death has changed the calculus. It takes four votes to hear a new case, and with four justices who lean left and four who lean right, neither side can be confident of having a five-member majority to rule in a major case.

The effect was quickly apparent to corporate lawyers. The court in recent weeks turned away a series of class-action cases that were appealed by huge companies like Wal-Mart and Wells Fargo Bank. 

The next test may come on an issue of national importance to both sides in the cultural wars: What’s the scope of the constitutional right to religious liberty?

In a case from Olympia, Wash., two Christian pharmacists, both of them women, have been fighting a state law that would require them to fill prescriptions for certain contraceptives, including “morning after” and  “week-after” pills, that they believe cause early abortions.

In its defense, Washington state says its law, like those in California, Illinois and six other states, ensures that patients can have prescriptions filled without regard to the personal beliefs of the pharmacist on duty.

A federal judge twice ruled for the pharmacists, who objected on religious grounds, and twice, the 9th Circuit Court in San Francisco disagreed and upheld the state’s law.

The Alliance Defending Freedom and the Becket Fund for Religious Liberty appealed to the Supreme Court in January, and 14 other groups have since weighed in to urge the justices to hear the case of Stormans vs. Wiesman.

“As a nation, we have always protected conscientious objectors from being forced to participate in the taking of human life,” said Kristen Waggoner, senior counsel for the Arizona-based ADF. “Why should we do so now especially when then these drugs are so widely accessible?”

Three times in April, the appeal was due to be considered at the justices’ private conference. But each time, the court announced that it was being rescheduled. The case now is on this week’s schedule with dozens of others.


This piece also appeared in at least the following outlets:

  • Honolulu (HI) Star-Advertiser
  • Asheboro (NC) Courier-Tribune
  • Pittsburgh (PA) Post-Gazette

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