Diary

The Supreme Court's October 2017 Term

The Supreme Court has finished their business for this term and will reconvene on the first Monday in October.  They have currently accepted 32 cases for argument, not counting those held over for re-argument due to 4-4 ties.  The following are some interesting cases of note for the next term.

Gill vs. Whitford

I previously wrote a more detailed article about this issue which involves partisan gerrymandering.  The case comes out of Wisconsin.  To be sure, the Court has generally in the past been vague in this area with the last foray being a convoluted plurality decision in 2004.  The case perhaps rests on a new concept in electoral analysis called “wasted votes” to determine if partisan gerrymandering has taken place.  To this writer, the most interesting part is the fifth question added by the court: whether such cases even have judicial standing?  There is nothing more political than gerrymandering and the Court has traditionally and should continue to steer themselves out of the political process.

Carpenter vs. United States

These cases are seeing increasing frequency before the Court in the digital age.  This case asks whether the warrantless search and seizure of historical cell phone usage and movements is permissible under the Fourth Amendment.

Trump vs. Hawaii/ Trump vs. International Refugee Assistance Project

The infamous travel ban cases.  The Court may not even have to reach the merit of these cases under their 4th question as it relates to this case.  Since the “ban” was issued in January, it called for a 180-day suspension of travel from certain countries.  This delay was intended to allow US officials to determine whether adequate safeguards existed to prevent the entry of possible terrorists or sympathizers.  By the time this case is heard, that 180-day period will have elapsed.

Regardless of whether the original or subsequent ban was blocked or allowed by a lower court, nothing stopped the Administration from reviewing the vetting procedures.  That process should have continued regardless of the decisions from the 9th and 4th Circuits.  Should they proceed past that hurdle of “mootness,” then they would have to address the Establishment Clause claims.  Hopefully, the Administration’s legal arguments are better before the Supreme Court than they were before the lower courts.

Masterpiece Cakeshop vs. Colorado Civil Rights Commission

The wedding cake for the gay couple case!  The Court is asked whether applying the state’s public accommodation laws compelling the petitioner to create expression that violates a sincerely held religious belief violates the Free Speech or the Free Exercise Clauses.

Gay rights meets Constitutional rights in a nutshell.  First, the Court has long held that they will not nor should they question the religious sincerity of anyone.  However, should those beliefs give way in this case.  Expect to hear a lot about the Hobby Lobby case heading into this one.

National Association of Manufacturers vs. Department of Defense

This is a direct question regarding the definition of “waters of the United States” under the Clean Water Act.  Under the Obama administration, that definition was stretched to include drainage ditches to runoff from parking lots.  Of course, that water goes somewhere, but to what extent, under the CWA, does the government have the jurisdiction to regulate it?

Christie vs. NCAA

As a Jersey resident, this one caught me by surprise.  New Jersey wants sports betting.  The only thing in their way is a federal law banning it.  When that law was originally passed, states that already allowed for sports betting (like Nevada) whether they had it or not were exempt.  A special provision was carved into the law which would have allowed New Jersey to have sports betting.

In a bizarre twist of political intrigue that can only happen in Trenton, the then-Republican Governor (Christine Whitman) essentially held the issue hostage until she received concessions on the state budget.  The window of opportunity closed and New Jersey was left without sports betting.

The Court is now asked whether that federal law which prohibits modification or repeal of state law prohibitions (like betting on sports) takes over, or commandeers, the regulatory power of states.  It is an interesting case involving federalism and states rights to some degree.  Previous decisions in this area have been somewhat vague and this may present the Court with the opportunity to clear up the doctrine of “commandeering.”

It should be noted that there are two immigration-related cases to be re-argued in the next term and both of them originated under the Obama administration.  The first involves the rights of illegal immigrants to a bail hearing.  The second involves a shooting of someone who was “playing” a game at the border and a patrol agent shot him while he was on the Mexican side of the border.  The question is one of immunity for the border patrol agent.

There currently are not enough cases to fill out the entire Court docket.  This past term, the Court heard 64 cases, so the docket is about half full for the next term.  The members return to Washington on September 25th for their “long conference” to consider petitions held over from the 2016 term and new ones that arrived during the summer.  The first oral arguments are set for Monday, October 2nd.