Order in the court: Amid drama, Supreme Court gears up for new session

IMAGE: CNS photo/Joshua Roberts, Reuters

By Carol Zimmermann

(CNS) — After the weeks of intense drama focused on Supreme Court nominee
Judge Brett Kavanaugh, the nation’s highest court was ready to get back to
business, full bench or not.

The expression “the show
must go on” certainly applies because the Supreme Court always starts on
the first Monday in October, which this year is Oct. 1.

Over the summer and into
September no one was talking about the court’s upcoming cases. Instead, all
attention has been on who would fill the seat of Justice Anthony Kennedy, who
announced his retirement at the end of June and officially retired July 31.

When President Donald Trump
announced July 9 that Kavanaugh, a federal judge, was his nominee, the divided
nation responded accordingly. Many praised the judge’s qualifications and were
pleased that the president had fulfilled his campaign promise to nominate a
pro-life judge to the Supreme Court, but the choice angered many Americans displeased that
Kavanaugh’s vote could potentially reverse the court’s 1973 Roe v. Wade
decision legalizing abortion.

Crowds on both sides assembled on
the steps of the Supreme Court the night Kavanaugh’s nomination was announced
and they continued to protest during Senate confirmation hearings and the most
recent Sept. 27 hearing concerning Christine Blasey Ford’s allegation of sexual assault against him for an incident she said occurred when she was 15 and he
was 17.

After that daylong hearing, the
Senate Judiciary Committee voted 11-10 Sept. 28 to advance Kavanaugh’s
nomination to the Senate floor. Republicans then approved a proposal by Sen. Jeff Flake,
R-Arizona, that the FBI be given one week to investigate Ford’s
allegation, which the Republicans agreed to do.

But with or
without closure on Kavanaugh, the court is set to resume what it does:
listening to oral arguments and making decisions. An annual Red Mass will be
celebrated at the Cathedral of St. Matthew Sept. 30 offering prayers for this
new term. Washington Cardinal Donald W. Wuerl, who often celebrates this Mass
and has been seen afterward talking with Supreme Court justices in attendance,
will not be there this year. Washington Auxiliary Bishop Mario E. Dorsonville
will be the main celebrant.

As the court
gets back into action, it will not be facing the drama of high-profile cases on
hot button issues. Instead, it will have more basic cases: critical habitats
under the Endangered Species Act, if states are bound by the Eighth Amendment’s
ban on excessive fines and how property owners can challenge government land
acquisitions. It also will examine cases about employment discrimination and
class arbitration and deal with a fair amount of criminal law.

The court usually
hears about 70 cases of the nearly 7,000 that petition for review each year. To
date, it has already agreed to hear 38 cases and will announce more in upcoming

So far, there
is not much on the docket where Catholic leaders are likely to weigh in, but
there are a few cases that the court might take up that would be of interest.

As in previous terms, the court is once again taking on death penalty cases, which
may have an increased interest after Pope Francis made his announcement in
April that he approved changes to the Catechism of the Catholic Church saying
the death penalty is no longer admissible under any circumstances.

The first
death penalty case, Madison v. Alabama, comes up on the
second day of the court’s term. Here the court will consider whether the Eighth Amendment permits the
execution of a prisoner whose mental disability prevents him from remembering
his offense.

other death penalty case, to be argued Nov. 6, examines the rules for
challenging a “method of execution.” The plaintiff in this case suffers
from an unusual medical condition and claims Missouri’s lethal injection
protocol would be more gruesome and cause more suffering than if he were put to
death by lethal gas, which the state lacks a protocol to use.

One case
of interest that the court has not decided yet if it will take regarding the
establishment of religion involves a 40-foot-tall cross memorializing soldiers
who died in World War I that sits at a busy intersection in the Washington
suburb of Bladensburg, Maryland.

Last year,
the 4th U.S. Circuit Court of Appeals based in Richmond, Virginia, ruled 2-1
that the 93-year-old monument is unconstitutional and must be removed or
destroyed. “(It) has the primary effect of endorsing religion and
excessively entangles the government in religion.”

Known as
the Bladensburg Cross or the Peace Cross, the cement and marble memorial was
erected by the Snyder-Farmer Post of the American Legion of Hyattsville,
Maryland, to recall the 49 men of Prince George’s County who died in World War
I. The cross, whose construction was funded by local families, was dedicated
July 13, 1925.

American Humanist Association, a Washington-based group that represents
atheists and others, filed suit against the memorial because it is in the shape
of a cross. It argued that having a religious symbol on government property
violates the establishment clause of the First Amendment.

case the court could take up that will be of interest involves two state
petitions from Louisiana and Kansas asking the court to uphold the termination
of Planned Parenthood’s participation in the state Medicaid program.

an American Bar Association preview of the court’s upcoming term Sept. 25 at
American University, the panelists acknowledged that one big slice of the
picture, the new justice, was still unclear.

Brinkmann, an attorney and partner at Covington & Burling, who has argued
24 cases before the court, said: “It’s probably good they don’t have a lot
of blockbusters and I think they would prefer it that way to get back to a
natural state of affairs.”

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Zimmermann on Twitter: @carolmaczim.

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