Chemerinsky: What to expect from the upcoming SCOTUS term
Erwin Chemerinsky.
The U.S. Supreme Court’s summer recess is over and the justices will return to the bench for oral arguments on Monday. The court traditionally sets half the docket for the coming year before it adjourns in early July, and grants the remaining cases between late September and mid-January.
The cases that had been granted prior to the summer recess presented many important issues, but there were no likely blockbusters among them. The court had on its list for the traditional long, end-of-the-summer conference on Monday several cases presenting the question of whether state laws prohibiting same-sex marriage violate the Constitution.
However, unlike the past, the court this year did not release orders the next day. Later this fall, the court will also decide whether to take an important case concerning the Affordable Care Act and whether low-income individuals who purchase insurance from an exchange created by the federal government can qualify for a tax credit.
On the horizon, but likely not for this term, are important cases concerning abortion rights and affirmative action. In recent months, the 5th U.S. Circuit Court of Appeals upheld a Texas law and struck down a Mississippi law greatly restricting abortions by requiring doctors at clinics to have admitting privileges at local hospitals. Also, the 5th Circuit upheld the University of Texas affirmative action plan in a case on remand from the Supreme Court. But en banc petitions are pending and it is unlikely that the cases will be presented to the court in time for briefing and argument in the coming term.
Revisiting familiar issues
Some of the cases in which review has been granted present familiar issues or are even familiar cases:
• Executive power: Zivotofsky v. Kerry is back before the court for a second time. Earlier the court ruled the case did not pose a political question and now the court will consider whether Congress impermissibly intruded upon executive powers by enacting a law that directs the U.S. secretary of state, on request, to record the birthplace of an American citizen born in Jerusalem as having “Israel” as a birthplace.
The Obama administration claims that it is executive prerogative to conduct the nation’s diplomatic relations, and that it had made the judgment not to resolve the highly contested issue of whether Jerusalem is a part of Israel. On remand from the Supreme Court, the U.S. Court of Appeals for the District of Columbia Circuit declared the statute unconstitutional and the Supreme Court granted certiorari.
• Bankruptcy: In Wellness Intern. Network Ltd. v. Sharif the court will again face an issue of enormous importance to the federal courts that it ducked last year: May a bankruptcy court issue a final judgment as to a state law claim with consent of the parties? In Stern v. Marshall the court held that bankruptcy courts cannot issue final judgments over state law claims unless they stem from the bankruptcy itself. The circuits have split, though, as to whether consent can cure this.
The issue was briefed and argued last year in Executive Benefits Insurance Agency v. Arkison. But the court avoided the question by holding that there had been de novo review in the federal district court and that this was sufficient to permit a decision by a bankruptcy court on the state law claim. At the end of the term, the court granted review in another case posing this issue, which is significant for bankruptcy judges, magistrate judges, and the workload of federal district courts.
• Religious freedom: Having ended last term with a major issue about religious freedom, the court will return to it in Holt v. Hobbs . The court granted review to decide whether the Arkansas Department of Corrections grooming policy violates the federal Religious Land Use and Institutionalized Persons Act in prohibiting a prisoner from growing a half-inch beard in accordance with his religious beliefs.
• Voting Rights: Once more, the court will have a voting rights case on its docket. In Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama the court will return to the issue of when the government may use race in drawing election districts. The challengers argued that Alabama “packed” minority voters into districts where they already were in political control, thus reducing their chance of having influence elsewhere in the state. The question is whether this denied minority voters equal protection.
• Employment discrimination: Although last term there were no employment discrimination cases, in Young v. United Parcel Service the court will consider whether it violates the federal Pregnancy Discrimination Act when an employer provides accommodations to non-pregnant employees with work limitations, but refuses to accord the same accommodations to pregnant employees. United Parcel Service offers light work duty, which does not involve lifting heavy packages, to employees injured on the job or who are suffering from a permanent injury recognized under the Americans with Disabilities Act. But it refuses to provide this same accommodation to pregnant women who need this. The issue is whether this is pregnancy discrimination in violation of federal law.
• Fourth Amendment: And, of course, as always, there is a major Fourth Amendment case. In Heien v. North Carolina the court will consider whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires for a traffic stop. The police stopped Javier Vasquez because one of his brake lights was not working. The officer mistakenly believed that under North Carolina law a car must have two working brake lights. A search was done of the car and drugs were found. The issue is whether the search was constitutional in light of the fact that it followed a stop based on the police officers’ mistake as to the law.
Facing a new issue
The Supreme Court long has held that “true threats” are not protected by the First Amendment. But the court never has developed a standard for determining what is a true threat. It is an issue that has come up with ever greater frequency because of the Internet and social media.
In Elonis v. United States the court will consider whether a conviction for threatening another person requires proof of the defendant’s subjective intent to threaten, or whether it is enough to show that the reasonable person would regard the statement as threatening.
After Anthony Elonis’ wife, Tara, moved out with the two children, she obtained a protection from abuse order from the state court in response to his threatening and abusive Facebook posts. In the days and weeks following the order, Elonis’ posts became even more venomous and explicit. Subsequently, Elonis posted threats to employees of his former workplace, FBI agents—and even a local kindergarten class.
Elonis was convicted of violating a federal law, 18 U.S.C. Section 875(c), which makes it a crime to “transmit in interstate commerce communications containing a threat to injure another person.” The 3rd U.S. Circuit Court of Appeals held that Elonis’ speech is not protected by the First Amendment, because a reasonable person would regard it as a threat. This is a potentially very significant case about the First Amendment and social media.
These, of course, are just some of the cases in which review was granted by the court before its summer recess. Even with half the docket still to be set, it likely that it will be another important year in the Supreme Court.
Erwin Chemerinsky, Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.
