The Supreme Court — Year in Review; Year yet to Come

The big court story of 2016 was the February death of Justice Antonin Scalia.  In an unseemly display, before the body was even buried, the Republican leadership in the Senate announced that they would not confirm any nominee made by President Obama.  However, while they did not make any official announcement about other judicial vacancies, the Republicans’ approach to the Supreme Court vacancy was consistent with their approach to the judiciary in general.  The outgoing Senate only confirmed 22 judicial nominees over the last two years and did not confirm anybody nominated after September 2015 (with the last confirmation vote occurring before the July 2016 recess).  By comparison, in the last two years of the George W. Bush Administration, a Democratic Senate confirmed 67 judicial nominees with the last confirmation vote occurring in September 2008 for a person nominated in July 2008.

At the end of the day, the Democrats lost a golden opportunity to bring an end to four decades of Republican control of the Supreme Court.  A win this past November would have led to a solid Democratic majority for the next two or three decades.  However, the reality is that for the past forty years, moderately conservative Republicans on the court have formed a barrier to the more extreme positions in the Republican party winning on several issues.  As such, controlling the Supreme Court has mattered more to Republican leaners than to Democratic leaners.  (Several conservatives argued that Republicans should hold their noses and vote for Trump to keep control of the Supreme Court.)  At some point, Democrats may wake up and find a court in which Justice Samuel Alito is the swing vote, but we are not there yet.  The Republican stand on the Supreme Court probably made some Republican Senate seats more vulnerable than they would have been, but Democrats failed to explain why control of the Supreme Court matters.  Democratic voters may soon suffer for this failure of leadership.

The death of Justice Scalia impacted the Supreme Court in several significant ways.  First, it led to several cases ending in a 4-4 tie.  (More on this below.)  Second, and harder to quantify, the absence of Scalia altered the internal dynamics of the Supreme Court.  While Justice Thomas and Justice Alito often reached the same result as Justice Scalia, the way that each justice analyzes a case is different and Scalia’s analysis might have been more persuasive to Chief Justice Roberts or Justice Kennedy on cases in which one or both of them went with the four liberals on the court.  Third, there are several cases that were accepted for argument before Justice Scalia’s death that are on hold (More on this below.)  Finally, and again hard to quantify, the Supreme Court seems to have taken fewer cases while waiting for the vacancy to be filled.

On the 4-4 ties, the most significant case probably has to do with union dues.  Under current laws, in “closed shop” states, unions can collect dues for collective bargaining from all employees that the union represent but can’t require employees to pay for political activities.  Conservatives have been arguing that — for public employees — there is no distinction between collective bargaining and political activity because the employer is the government and all governmental decisions are political.   After argument last January, it looked like the conservatives were going to get their wish, thereby crippling the unions that represent public employees (a growing segment of the labor movement).  After Justice Scalia died, the justices were split 4-4.  This issue will come back again after the vacancy is filled, and the labor movement will live to regret this year’s election “bigly.”

The norm for the Supreme Court is that cases are argued in roughly the order in which the cases are accepted for argument.  Given the time frame for briefing, some cases accepted in January will make the April argument session and some will be bumped to the fall for argument in October.  There are currently three cases granted in January 2016 which have still not been set for argument.  (The Supreme Court has already posted the February 2017 argument calendar.)  This delay of over 400 days between accepting a case and argument is highly unusual.   Given the current time table, there is a chance that these case might not even make this term’s argument calendar.  These three cases all involve significant issues — a takings issue, class actions, and a free exercise claim.

Looking forward to 2017, at some point in time, the vacancy will be filled.  Unless Trump goes nuts, this nomination will probably not be worth a significant fight.  At worst, the nominee will be mostly like Scalia, and Democrats will need to save their fire until Justice Kennedy retires.

There are, however, two significant legal issues that the court will be examining this year.  First, the Supreme Court is returning to questions concerning immigration.   President Trump’s approach to immigration is inconsistent with the basic law governing immigration, and the Supreme Court is not all that comfortable with current immigration law.  There are two cases related to immigration pending at the present time.  One has already been argued — concerning bond for deportation hearings.  However, the argument focused mostly on statutory interpretation and the Supreme Court has asked for supplemental briefing on constitutional issues.  The other concerns the effect of erroneous advice to a criminal defendant about potential deportation.  Several years back, the Supreme Court found that counsels had to give accurate advice to their clients about immigration matters.  This case involves whether the case was so hopeless that the erroneous advice did not make any difference.

The second big issue concerns the intersection between government benefits and the First Amendment.  The Supreme Court has been rather inconsistent on this issue.  One case — a January 2016 — grant involves whether the government can set up a program to provide funding for secular goals, but bar churches from participating in that program (to avoid indirectly funding religious activities).   The second — to be argued this month — involves trademark law.

A trademark is something by which a group or company is recognized.  A  group has a common law trademark even if the executive branch does not recognize that trademark.  Once a group has a trademark in a name, they can prevent other people from using that name.  Federal law, however, allows groups to formally register their trademark (helping them prove that they have a trademark).  However, the law does not allow the government to recognize a trademark if the trademark is offensive.   The current case involves an Asian rock band called “the Slants” who claim that denying them a trademark infringes on their free speech rights (implicitly arguing that having government protection for your speech is part of your free speech rights).  Literally standing on the sidelines waiting for the ruling is the NFL and Washington Redskins.   The argument by the band is something like some of the arguments that we have seen in campaign finance cases claiming that it infringes on the plaintiffs’ free speech rights for the government to prefer and give benefits to other points of views.  It will be interesting to see how wild some of the hypothetical names might get during oral argument.  I would expect to see the liberal Justices trying to push the envelope of what names might be permissible.

The next four years are going to be less than optimal from the Supreme Court.  We can only hope that Donald Trump’s first nominee is outrageous enough to convince Justice Kennedy to postpone any retirement plans and that Justice Ginsburg and Justice Breyer stay health.  If any of these three retires, the opportunity for a Democratic majority on the court may not come again for another two decades, and we may even more decisions — like Shelby County and Citizens United — that we never thought would happen.

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