As noted in Part One of this series, the Supreme Court has not yet announced its December argument schedule. However, they have eleven cases that they have accepted for review and six argument dates in December. While it is possible that the Supreme Court might postpone some of these cases to January, there are enough available argument slots in December to hear all of the cases currently on the argument docket.
Looking at the cases accepted, there are the three cases from last January that have been postponed to December (discussed more below). In addition from the cases accepted in June, there are two re-districting cases, an intellectual property case, a bankruptcy case, a capital punishment case, an anti-trust case involving credit cards, an immigration case, and a federal criminal case. The contentiousness of these eleven cases might result in some of these cases being pushed even further back in the hope that a ninth justice might arrive this term.
The most potentially significant of the three cases accepted last January is Trinity Lutheran. Missouri, like many other states, has an enhanced Establishment Clause in its state constitution barring any government funds from going to religion. The church in this case seeks state funds that it would be eligible to receive if it was a secular charity. The argument — feeding off of some recent free speech cases — is that the denial of government funds infringes on the free exercise of religion. (Given that for three decades legal scholars have been arguing about whether religion’s tax exemption violates the Establishment Clause, this claim that the Free Exercise Clause compels the provision of treatment similar to other charities is somewhat out of the mainstream.) Another claim being made in this case has an equal protection flavor to it — namely that many states adopted these provisions out of animus to Catholic immigrants. The irony of this argument is hard to miss — today’s anti-immigrant Republican Party needs the vote of the decedents of immigrants from the 1870s to pass new anti-immigrant legislation so they are claiming that state constitutional provisions pushed by the anti-immigrant Republican Party violate the Constitution.
Another case coming from the right wing of the Republican Party that the conservative wing of the Supreme Court decided to take while they had five apparent votes is Murr v. Wisconsin. This case involves a forty-year old doctrine that measures the impact of a partial regulatory taking (i.e. that laws restricting the use of property deprived the owner of part of the value). Under existing case law, the impact is calculated on the whole of the property. In this case, the owner owns two adjoining parcels. The issue is whether you consider both parcels (which will in many cases minimize the impact) or just the one that the owner claims is harmed by the regulation.
The final case accepted from the Scalia era is Microsoft v. Baker. The issue in this case concerns class-actions (the ability of a small group of plaintiffs to sue on behalf of a larger group). One technique used by companies to bust up class actions is to try to settle with the individual plaintiffs and have them dismiss their individual claim. The technical issue in this case is whether, if the individual plaintiffs dismiss their individual claims, can the plaintiffs still appeal the order denying permission to proceed on the class claims.
The two redistricting cases (one from Virginia and one from North Carolina) raise similar issues. In both states, the Republican legislatures followed the old practice of packing and cramming minority voters into solidly Democratic districts, purportedly to comply with the Voting Rights Act. The issue in both cases (in which the trial courts reached opposite results) is whether — in light of recent decisions on this issue — race improperly predominated the redistricting decisions.
Jennings deals with bond eligibility in immigration cases. Basically, during deportation proceedings, whether an immigrant can post bond pending their hearing depends upon the reason underlying the government’s request to deport the immigrant. If the deportation is based on a serious crime, the immigrant is ineligible for bond. The immigrants seek to have a right to a bond hearing (including periodic review if bond is denied or too high) at which the government would have to prove — based on flight risk or danger to the community — that bond should be denied even if the deportation proceedings are based on conviction for a serious crime.
The last of the high profile cases still awaiting an argument date is Moore v. Texas. About a decade ago, the Supreme Court decided that states could not execute a murderer if the murderer had a severe intellectual disability (using the old terminology was mentally retarded). However, the Supreme Court left it to the states to develop standards. In the past several years, several individuals who claim that they suffer from such a disability have challenged their state’s standards claiming that the standards adopted fail to comply with that earlier decision. (There are similar cases in the pipeline from other states. They will probably be put on hold and sent back to the lower courts in light of whatever the Supreme Court says about Texas’s standard.)
Looking at these seven cases, it is clear that the Supreme Court has (probably consciously) put off the explosive cases until after the election. It is also probable that some of these cases will either end up 4-4 or the Supreme Court will find a way to evade deciding the central issue in the case in order to get a majority leaving the dirty work for some future date when the Senate can find its way to hold hearing and confirm a ninth Justice. Some of these case may end up being reargued after the new Justice takes his or her seat sometime in 2017.