Chemerinsky: What to look for in the new Supreme Court term
For the first time in almost 30 years, the Supreme Court will begin its new term on Oct. 3 with only eight justices, and the empty seat on the bench may be what most defines it.
Usually the court grants review in about half the cases for a term before it adjourns for summer recess at the end of June. But the court granted review in only 28 cases before taking its hiatus, and none are in the most high-profile or controversial areas of the law. In recent years, the court has averaged about 70 decisions a term. It may well be that the presence of only eight justices explains the smaller docket and its content.
The reality is that the court may go all of this term with only eight justices. If Donald Trump wins the presidency, even if he nominated someone quickly, hearings would not likely be held until spring. Of course, there is the possibility that if Trump wins, but the Democrats take control of the Senate, they could confirm Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit between Jan. 3 (when the Senate changes) and Jan. 20 (when the next president is inaugurated).
If Hillary Clinton wins in November, it is even harder to assess when the vacancy might be filled. If Democrats also take control of the Senate, it is easy to imagine Senate Republicans confirming Garland in a lame-duck session in December. They could decide that they would rather confirm Garland—who then will be 64, and by all accounts is moderate—than take their chances on a younger liberal.
If Clinton wins and Republicans control the Senate, Clinton could decide to renominate Garland rather than expend political capital early in her presidency on a more controversial nominee. But if none of this happens and Clinton nominates someone besides Garland—and she already has indicated that is possible—then, too, the court likely will go almost all of this term with only eight justices.
Of the 28 cases that the court took before the end of June, there are many that could be quite important even if they are not in the most controversial areas of law. Several deal with issues of race. Pena-Rodriguez v. Colorado concerns whether a jury verdict can be reconsidered after it is learned that one of the jurors expressed racial bias during deliberations. After the trial, the defense lawyer learned that during deliberations one of the jurors said that the defendant was likely guilty “because he’s Mexican and Mexican men take whatever they want,” and that the jury should disbelieve an alibi witness because the witness was Hispanic. In Colorado, and in most jurisdictions, there is a rule that a jury verdict cannot be impeached based on statements made during deliberations. But does the Constitution, and its guarantee of a fair trial, require an exception here?
There are two cases on the docket that involve the use of race in drawing election districts. In Shaw v. Reno (1993) and Miller v. Johnson (1995), the court held that the government cannot use race as a predominant factor in drawing election districts to make it easier to elect racial minorities unless the government can meet strict scrutiny, proving that this is necessary to achieve a compelling government interest. But how is it determined if race, as opposed to permissible considerations like protecting incumbents or creating a political advantage, is the predominant factor in districting?
In Bethune-Hill v. Virginia State Board of Elections, a three-judge federal district court rejected the argument that Virginia had impermissibly used race in drawing districts for its House of Delegates. There are 12 districts that had a majority of residents who were African-American. The goal in districting was that each of these would have a population that was 55 percent African-Americans of voting age. The three-judge court, in 2-1 decision, found that in 11 of the districts the predominant purpose was not the use of race and in the other district the use of race was needed to comply with the Voting Rights Act.
By contrast, in McCrory v. Harris, the three-judge federal district court found that the use of race in drawing congressional districts in North Carolina violated equal protection. In a 2-1 decision, the court concluded that race was the predominant factor in drawing two districts and that government failed to meet strict scrutiny. Although the facts and many of the specific issues in the two cases are different, the underlying question is the same: When is race a predominant factor in districting and what is enough to justify it?
Finally, in Bank of America v. City of Miami and Wells Fargo v. City of Miami, the high court will consider what allegations are sufficient for a city to sue banks for predatory lending in violation of the Fair Housing Act. (I am co-counsel for the City of Miami in both cases.) The City of Miami alleges that Bank of America and Wells Fargo targeted residents of predominately minority communities with high risk loans, knowing of a high likelihood of defaults. The city contends that the predictable foreclosures undermined their efforts to achieve fair housing policy and imposed economic costs. The United States Court of Appeals ruled that these allegations were sufficient to withstand a motion to dismiss, but the banks argue to the Supreme Court that the city is not aggrieved within the meaning of the Fair Housing Act and should not be able to sue.
From a practical perspective, few Supreme Court cases in recent years have had a greater effect in the federal courts than its ruling in Johnson v. United States that the residual clause of the Armed Career Criminal Act is void on vagueness grounds. The Armed Career Criminal Act provides that if a person is convicted of a crime involving the use of a firearm and the individual has three or more earlier convictions for a “serious drug offense” or a “violent felony,” the prison term is a minimum of 15 years and a maximum of life. The act defines violent felony as: “any crime punishable by imprisonment for a term exceeding one year … that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”
The last category—“or otherwise involves conduct that presents a serious potential risk of physical injury to another”—is known as the residual clause. In Johnson v. United States, the Supreme Court, in an 8-1 decision, declared that this provision was unconstitutionally vague. In Welch v. United States, last term, the court held that this applies retroactively to those whose sentences were final before Johnson was decided.
In Beckles v. United States, now pending before the court, the issue is whether Johnson invalidates a provision of the United States Sentencing Guidelines that uses language identical to that in the residual clause and whether this applies retroactively to those were sentenced pursuant to this provision.
In Moore v. Texas, the high court again will return to the issue of how it is to be determined whether a person is intellectually disabled and thus cannot be executed. In Atkins v. Virginia (2002), the court held that it is cruel and unusual punishment to impose the death penalty on an intellectually disabled person. In Hall v. Florida (2014), the court held that a state could not deem all with a I.Q. above 70 to be eligible for the death penalty. In Moore v. Texas, the Texas Court of Criminal Appeals acknowledged that some of the defendant’s IQ scores are in the intellectually disabled range, but found that the “Atkins claim fails because he has not proven by a preponderance of the evidence that he has significant and related limitations in adaptive capacity.” Is this the appropriate test for Eighth Amendment purposes?
In Trinity Lutheran Church of Columbia v. Pauley, the court will consider whether a state may deny aid to parochial schools that it provides to public and secular private schools in the state. Missouri provides material to schools for playgrounds, but excludes religious schools from receiving this assistance pursuant to a provision of Missouri Constitution. Does this denial violate free exercise of religion or deny equal protection?
In Murr v. Wisconsin, the issue is how to determine what constitutes a parcel of land for purposes of the takings clause of the Fifth Amendment. The Supreme Court has held that there is a regulatory taking if the government prevents all economically viable use of a piece of property. This case involves two contiguous parcels of land. If they are considered separately, the government’s preventing the development of one is a taking. If they are considered as a whole, the government is not preventing all development by imposing limits as to just one. How this is determined matters in many cases under the takings clause.
These, of course, are only some of the cases where review was granted by the end of June. The justices returned from their summer recess on Sept. 26 and considered the long list of petitions for certiorari that accumulated over the summer. In this conference and in those occurring through mid-January, the court will continue to grant review in cases to be heard this term. There is no doubt that in everything, from what cases the court takes to what happens at oral argument to how the cases are decided, the empty seat on the bench will loom large.
Erwin Chemerinsky is Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).