U.S. Supreme Court

Chemerinsky: Is court delaying some oral arguments in hopes of 9th justice?

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Erwin Chemerinsky

Erwin Chemerinsky.

As the U.S. Supreme Court prepares to begin its second month of oral arguments, which start Monday, Oct. 31, the effect of the court having only eight justices is clearly evident.

At the end of its first month, the court had only 39 cases on its docket, significantly fewer than usual for this point of the term. The thin docket is reflected in its December oral argument calendar: Four of the six days that the court is hearing arguments, the justices will hear only one case, rather than the two, or occasionally three, cases usually heard per day.

Unless the justices grant review at a much faster pace between now and mid-January, the court is unlikely to match last year’s total of 63 cases decided after briefing and oral argument, and that was the fewest in decades.

The presence of only eight justices on the bench also appears to have affected the scheduling of oral arguments. It seems clear that the court is waiting to schedule oral argument in some of the cases in the hope that there might be a ninth justice on the bench. There are three cases where review was granted last January, which are fully briefed and ready for argument, but that have not yet been scheduled:

Trinity Lutheran Church of Columbia, Missouri v. Pauley concerns whether it violates free exercise of religion or denies equal protection for a state to give aid (the material for the bottom of playgrounds) to public and secular private schools, but not to religious schools.

Wisconsin v. Murr involves the takings clause and how it is determined whether adjacent pieces of property should be deemed to be one or two pieces of property, which can be crucial in deciding whether there is a “regulatory taking.”

Microsoft v. Baker involves whether plaintiffs can appeal the denial of class certification by dismissing their suit.

By contrast, there are cases in which review was granted in late June that will be heard in November. For example, review was granted on June 28 in Bank of America v. City of Miami and Wells Fargo v. City of Miami—which involve whether a city can sue banks over their allegedly discriminatory lending practices—and these cases will be heard on Nov. 8. The other cases where review was granted in June are being heard in November and December. The delay in scheduling oral argument in cases granted in January probably reflects the justices anticipating a likely 4-4 deadlock and doing their best to avoid that.

Since returning from their summer recess, the justices have granted review in 11 additional cases, joining the 28 which were taken by the end of June. Some of these involve very controversial issues, belying the sense that the justices are shying away from such matters until they are joined by a ninth justice.

For example, Lee v. Tam, which was taken on Sept. 28, involves whether the Trademark Office can deny a trademark on the ground that it might be regarded as “disparaging.” The case involves a rock band, comprised of Asian-Americans, that calls itself “The Slants,” a derogatory term about Asians. The Lanham Act, 15 U.S.C. 1052(a), provides that no trademark shall be refused registration on account of its nature unless it “[c]onsists of…matter which may disparage…persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” The issue is whether it violates the First Amendment for the band to be denied a trademark for its name which is regarded as a derogatory term. Interestingly, the court had a petition for review posing the same issue concerning the Washington Redskins, but the court did not grant review and instead is holding that case pending its decision in Lee v. Tam.

On Oct. 11, the court granted review in two potentially high profile cases that pose issues concerning when government officers can be sued and when they are protected by immunity. Hernandez v. Mesa involves whether a federal Border Patrol officer can be sued for fatally shooting a boy across the United States-Mexican border. Sergio Hernandez, a 15-year-old boy, was playing in a culvert on the Mexican side of the border and was shot by a Border Patrol agent, Jesus Mesa. The New Orleans-based 5th U.S. Circuit Court of Appeals held that there could not be a suit for excessive force in violation of the Fourth Amendment, because that constitutional provision does not apply outside the United States. In addition to granting review of the Fourth Amendment issue, the court also asked for briefing as to whether there is a cause of action for money damages against a federal officer under these circumstances, and whether the defendant is protected by qualified immunity.

There likely will be only six justices on the bench when the high court hears Ziglar v. Turkmen, Ashcroft v. Turkmen, and Hasty v. Turkmen, which will be consolidated for oral argument. Justice Sonia Sotomayor recused herself, probably because the cases were in the Second Circuit when she was a judge there. Justice Elena Kagan recused herself, most likely because she was involved in the matter as Solicitor General of the United States. The case involves a suit by men of Middle Eastern descent who were arrested and detained after the 9/11 attacks.

The plaintiffs contend that the defendants—including the United States Attorney General and the FBI Director—detained and denied them their liberty solely because of race and without any evidence of a connection to terrorist activity. The complaint alleges that the defendants knew that “they were subjecting individuals with no ties to terrorism to unnecessary and punitive conditions of confinement.” There are several issues presented, including whether the men can sue for money damages and whether the defendants are protected by qualified immunity.

There are no cases on the docket involving the most controversial constitutional issues, such as abortion, affirmative action, campaign finance, death penalty or guns. But these recently granted cases show a court that is willing to take on difficult issues that are likely to divide the justices even though it is very uncertain when there will be a ninth justice.

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).

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