Too much order in the Supreme Court? No thrills in upcoming docket

IMAGE: CNS/Jonathan Ernst, Reuters

By Carol Zimmermann

WASHINGTON (CNS) — The expression “in like a lion out like
a lamb” turns on its head when comparing the end of the Supreme Court’s last
term to the start of its new one Oct. 3.

The end
of the court’s last term ended with a flurry of decisions on high-profile cases
on abortion, immigration and contraception that had the rapt attention of
Catholics and the general public alike.

But as
the court readies for its next term — always on the first Monday in October —
that same sense of urgency is nowhere in sight. The court will take its usual
load of about 80 cases, but it is not taking on cases likely to entice massive
crowds to the building’s white steps with placards and megaphones.

“In
previous years I’ve said: ‘What a blockbuster year we have ahead.’ But this
year, not so much,” said Caroline Fredrickson, president of the American
Constitution Society, during a Supreme Court overview Sept. 21 at the National
Press Club in Washington.

Fredrickson
and other panelists said a key factor to the lackluster cases on tap this term is
because the court is still not functioning at full capacity since the death of
Justice Antonin Scalia Feb. 13.

Sept. 23
marks the 222nd day since Scalia’s death and it also is the 191st day since Merrick
Garland was nominated by President Barack Obama to fill that vacancy. If the seat
remains vacant until a nomination by the next president, the court might go through
the entire oral argument session without a ninth justice while the confirmation
process occurs.

The
court is in “unchartered territory,” said Kristen Clarke, president
of Lawyers’ Committee for Civil Rights Under Law, noting the longtime absence
of a justice has not happened in more than five decades.

“I’m
concerned about the integrity of the Supreme Court,” she said, noting that
it is in a “state of paralysis” without the ninth vote.

Paul
Smith, a partner at the Washington law firm Jenner & Block, who has argued
multiple cases before the Supreme Court, similarly said the prospect of more
four-four tie votes from this court makes it “unfunctional.”

But
that view isn’t shared by everyone. Nicholas Quinn Rosenkranz, law professor at
Georgetown University’s law school, said Scalia’s absence is a notable,
particularly since he was “a larger than life figure in the court.” He
didn’t think the court was “dramatically hindered” by having one less
justice, but he still said “the court is better with a full
complement.”

Another
factor to consider is whoever fills Scalia’s seat could likely be on the bench
for decades.

Still,
in its ever steady and slow fashion, the court will not change dramatically no
matter who fills the spot. As Smith said, the court doesn’t work that way and it
doesn’t like to override previous decisions.

So far,
the court has agreed to hear 31 cases and will add more after a late September
conference. Nineteen cases are scheduled for oral argument in October and
November and more will be added in the coming months. Key upcoming cases for
Catholic court watchers are two death penalty cases and a religious liberty
case about a church being excluded from a state’s grant program.

Cases the
court might take up but hasn’t decided yet include: challenges on voting laws
from several states; another issue over the Affordable Care Act; trademark
battles involving an Asian-American rock band and the Washington Redskins
football team; and a high school transgender bathroom case.

The
death penalty cases from Texas will be argued in the court’s first month. The
case of Buck v. Stephens, involves Duane Buck, who was sentenced to death for the
murders of his ex-girlfriend and another man in front of her children in
Houston in 1995. A psychologist who spoke at the punishment phase of his trial
said that because Buck is African-American, there was a stronger likelihood that
he could present a danger to society.

The court
will examine if that part of his trial was ineffective because the witness who
made this remark was called forth by the defense. But if the court rules in
Buck’s favor, he will only get a new sentencing hearing, not a new trial
establishing guilt or innocence.

The
other death penalty case is Moore v. Texas, involving Bobby James Moore, convicted of killing a grocery store clerk during a botched robbery in 1980. Moore says he is intellectually disabled, a claim the state appeals court has rejected.
However, his attorneys argue the state used outdated medical standards in their
evaluation.

Meg
Penrose, professor of constitutional law at Texas A&M University’s School
of Law, said if either case ends with a 4-4 vote, both men will be executed
since the lower and appeals courts ruled against them and these decisions will
stand. Both cases are decades old and Penrose said they prove “if society
is going to inflict the ultimate penalty, it needs to be sure it has done so in
a just manner.”

Clarke,
from the civil rights law group, said the stakes are high with these death
penalty cases and she feels “unsettled that they will only be heard by
eight justices.”

The religious
liberty case before the court, but not given a date yet, is Trinity Lutheran
Church of Columbia v. Pauley about a religious preschool that was rejected from
a Missouri program that provides reimbursement grants for the purchase of tire
scraps used at the base of playgrounds.

The
church says its exclusion violates the Constitution because it discriminates
against religious institutions. The state argues that it didn’t violate rights
saying the church can still worship or run its day care as it wishes, but the
state will not pay for the resurfaced playground.

Rosenkranz
pointed out that both sides are relying on the Supreme Court’s 2004 decision in
Locke vs. Davey, which said that states do not have to provide tax-funded
scholarships to college students who are pursuing careers in ministry.

The
church in the playground case said the grant they applied for had nothing to do
with religion, like the scholarship did, while opponents insist the state simply
should not be providing any financial support to religious institutions.

At
another Supreme Court briefing sponsored by Alliance Defending Freedom, C.
Kevin Marshall, a partner with the Washington law firm Jones Day, said how the
court responds to the playground case will have a broad effect.

He said
the case raises religious liberty questions but is “less contentious”
than last term’s Zubik v. Burwell, which challenged the Affordable Care Act’s
contraceptive requirement for employers.

As he
put it: “We can get to basics here.”

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Follow
Zimmermann on Twitter @carolmaczim.

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