Supreme Court 2016-17: Forthcoming Opinion Watch

Like much in government (including the school-year that many of us remember from growing up), the Supreme Court follows a cyclical calendar.  Beginning with the first Monday in October, the Supreme Court has seven argument sessions each year.  Each session is two weeks followed by a recess.  Five of these recesses are for two weeks, but the recesses taken over Christmas and after the January arguments are usually for four weeks.  During these approximately thirty weeks, the Supreme Court is engaged in three basic tasks:  1) reviewing applications from parties that want their cases heard by the Supreme Court; 2) preparing for and holding arguments in those cases that have been accepted; and 3) writing opinions.  Because the task of preparing for arguments (reading the written arguments of counsel and reviewing the record from the trial court to get an idea of the “facts” underlying to which the law has to be applied) is time consuming, opinions tend to slowly dribble out during these first thirty weeks.  As a result, when the arguments end in late April (or early May depending upon the calendar), there are typically a significant number of cases still waiting for opinions.

During this year’s term, as is not unusual, there were a handful of opinions issued in December and January (a total of six) with the number going up slightly during February, March, and April (a total of twenty-one so far with the possibility of several more on Monday before the Supreme Court leaves for its final recess.  However, with arguments for the year having wrapped up this past Wednesday, there are currently thirty-eight cases in which opinions have not yet been issued.  While there are some exceptions to the rule, by this time of year, the Supreme Court has issued opinions in most of the cases heard last Fall.  During the argument portion of the year, it takes between two and six months to get an opinion.  The simple cases in which there is unanimous agreement among the Justices (which represent about half of the cases) tend to come quickly.  When the Justices disagree, the process stretches out as the Justices in the minority draft opinions responding to the majority opinion, and the majority opinion then makes changes to address the issues raised by the minority (and so on until everyone believes that no further changes are needed).    The bottom line is that, at this point of the year, opinions have been issued for all of the October arguments, for about two-thirds of the November and December arguments, for about half of the January and February arguments, and for none of the March and April arguments.  The expectation, especially for the remaining cases from November and December, is that the delay represents some significant disagreement in the early cases.

Before going into the highlights of what is left to come down — either on Monday or more likely between mid-May and the end of June when the Supreme Court returns from its last recess — one point to make.  Justice Gorsuch only participated in the arguments for this last two-week session.  The tradition is that a Justice does not vote in cases heard before the Justice joined the Supreme Court.  However, it is not unusual to schedule a case for re-argument if the a Justice joins the Court after argument and the vote of the eight Justices who heard the case is split 4-4.

The biggest case still hanging around from November involves the City of Miami, two banks, the Fair Housing Crisis, and the mortgage foreclosure crisis from the George W. Bush era.  Basically, the City contends that the banks engaged in mortgage practices that discriminated against minorities which resulted in those home owners being unable to meet the illegally high mortgage payments.  The City contends that it can sue as an injured party because of the effect on the City of the high number of homes that went into foreclosure in minority neighborhoods.  The banks contend that the City does not have the right to sue because it is not an injured party.  There is also a case about whether U.S. citizenship law (which has different rules depending upon which parent is a U.S. citizen for those born out of wedlock) illegally discriminates based on gender.  As noted in past posts, the Supreme Court tends to evenly distribute the opinion-writing duties from each argument session, and we are still waiting for opinions from Justice Breyer and Justice Ginsburg for November.  As such, it is likely that these two Justices have two of the three outstanding cases, but we do not know who is likely to have the third case.  (With December lacking two opinions, and three Justices without an opinion — there were only seven cases in December — it is more likely than not that whomever got two opinions in November did not get an opinion in December.)  [UPDDATE:  The Fair Housing case was one of two in which opinions were issued on Monday.  The other opinion was the third case from November and both opinions were from Justice Breyer making it likely that Justice Ginsburg has the citizenship gender discrimination case.]

The two cases from December both involve potentially hot button issues.  The first involves the posting of bond in deportation cases.  The second involves challenges to redistricting in North Carolina.   The three justices with outstanding opinions from December are Chief Justice Roberts, Justice Alito, and Justice Kagan.  As noted above, one may have one of the cases from November.  Of the five outstanding cases, I can easily see a 4-4 tie on the City of Miami cases and on the redistricting case.  If they are hopelessly tied, we could see an order as early as Monday resetting them for argument or there may still be an effort to reach a limited decision that could get a majority with the big issues punted for a later case.

The big case from January involves an Asian-American band named “The Slants.”  The Slants want to register the trademark for their name, but federal law permits the government to decline to register a trademark for any trademark that is offensive or derogatory.  The same law is the reasons why the government has de-registered the trademark for the Washington Redskins and the result of this case will determine what happens with the Redskins.  The Slants claim that the law infringes on their free speech right.  The government responds that the trademark law does not prevent the Slants from choosing that name or conveying whatever message they wish through their band name and any associated merchandise.  Instead, the law merely allows the government to choose which the messages that receive whatever additional governmental benefits are conveyed by trademark registration and that the First Amendment (while preventing the government from barring speech based on its content) does not require the government to ignore content in conveying such benefits.  There is also a January case (actually three cases that were consolidated together) involving post-9/11 arrests of Muslims and whether those arrests violated the rights of the persons arrested.

February’s cases include a case of a cross-border shooting by a U.S. Border Patrol Officer and a North Carolina law barring internet use by convicted sex-offenders.

At this point, none of the March or April cases have been decided.  The last two months of cases include several potentially significant cases involving:  the rules for determining whether local zoning laws constitute a regulatory taking when the regulation impacts two adjoining parcels with common ownership; the division of military pensions in divorces; church pension plans; the impact of potential immigration consequences on plea bargains; whether the federal Free Exercise clause preempts a state constitutional provision barring funding of churches when the funding in question is for a secular purpose; and whether the government can strip a naturalized citizen of her citizenship for a false statement that was not material to the decision to grant citizenship.

As always, the designation of certain cases as significant is based on whether the cases directly impact the election process or controversial topics that are likely to be emphasized by candidates and officeholders depending on the outcome of the case.  Besides these cases, there are the normal slew of cases involving the ability of the “small guy” to bring cases against big corporations and criminal law issues as well as technical cases involving minute details of existing law that matter mostly to those in the businesses impacted by those regulations.

Over the next two months, many of the decisions will be unanimous.  Last year, two-thirds of the cases were either unanimous or only had one judge in the dissent.  However, the cases that involve major political issues are also the ones that are most likely to result in 6-3, 5-3, or 5-4 decisions.  Over the next two months, the key things to watch are the degree to which the Chief Justice and Justice Kennedy join the three ultra-conservatives in opinions that would have been unthinkable twenty years ago and — in the dozen or so cases heard in April — whether Justice Gorsuch is more like Chief Justice Roberts, Justice Scalia, Justice Alito, or Justice Thomas.  There are also rumors that one of the sitting justices — most likely Justice Kennedy or Justice Thomas — are considering retirement.  If they do, recent custom indicates that they would announce their retirement as the Supreme Court recesses at the end of June.

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