If, as moderator Kimberly Atkins says, the descriptive words for the 2016-2017 Supreme Court term were “unified,” “hamstrung,” “cautious” and “change,” then the likely operative word for the upcoming term that begins in October will be “explosive.”
“Because the court was short-handed with the death of Justice (Antonin) Scalia for more than a year, there were far fewer 5-4, 5-3 decisions, more consensus-building that resulted in a more unified court that took up fewer cases and avoided some cases or kicked over some cases to the next term,’’ said Atkins, who led the panel discussion titled “On The Docket 2017: The 2016-17 Supreme Court Term, held Saturday, Aug. 12, during the ABA Annual Meeting in New York.
Atkins, chief Washington reporter and columnist for the Boston Herald, was joined on the panel by speakers Nicole Austin-Hillery, first director and counsel of The Brennan Center in Washington, D.C.; Thomas Goldstein, partner at Goldstein & Russell PC in Washington, D.C.; Lori A. McGill, partner in the Washington, D.C., office of Wilkinson Walsh & Eskovitz; and Paul M. Smith, vice president of litigation and strategy for the Campaign Legal Center. The program was sponsored by the ABA Standing Committee on Public Education.
The nine-member Supreme Court got back to full strength with the addition of Neil Gorsuch in June and has an aggressive docket of cases for the fall schedule that include voting rights, presidential powers and executive orders, immigration, changing privacy expectations driven by technology advancements, and the intersection of marriage equality and religious freedoms.
Looking back at recent cases, the panel reflected on significant ones involving gerrymandering, separation of church and state, as well as criminal and jurisdiction cases.
Voting and gerrymandering cases
Smith provided a review of these cases. Two big cases were in North Carolina (Cooper v Harris) and Virginia (Bethune-Hill v Virginia State Board of Elections). In both cases the states redrew legislative districts, including majority-minority districts and used rigid percentage (50 percent in North Carolina, 55 percent in Virginia) to ensure a racial minority’s ability to elect a minority candidate. The Supreme Court sent the case back to district court to reexamine the redistricting efforts for signs of racial bias and gerrymandered legislative districts that dilute the impact of the African-American voters.In the North Carolina case, the court ruled that race improperly dominated redistricting efforts.
“What they were doing was gerrymandering under the guise of the Voting Rights Act and this proved to be a strategic mistake because the Supreme Court has spent the last several terms dismantling these maps and don’t like the idea of people using the Voting Rights Acts when using race excessively,’’ Smith said. “So, this was held to be racial gerrymandering. So, maps have to be redrawn as a result.”
North Carolina, as other states have done, has moved to partisan gerrymandering where the districts are reshaped to favor a political party. The Supreme Court will take up the partisan issue in October with a Wisconsin case, Gill v Whitford. There a lower court held it unconstitutional and ordered Wisconsin to redraw the map but that order is on hold pending the Supreme Court case.
“What we may now get an answer is whether partisan gerrymandering, where race is not part of it, is by itself discrimination against one party using the law to its advantage,” Smith said.
McGill talked about three cases – Bristol-Myers, TC Heartland and Microsoft Xbox360. In the Bristol-Myers case, the drug company prevailed in convincing the Supreme Court to limit where patients can seek compensation for harm caused by drugs, overruling a California court’s use of a “sliding-scale” approach to determine specific jurisdiction in the case of nonresidents claims. “This is going to have a huge positive impact for companies because you have states like California and Missouri that have been allowing plaintiffs to forum shop for plaintiff-friendly venues nationwide and the Supreme Court’s decision will put a stop to that.”
In TC Heartland v Kraft Foods, the Supreme Court ruled that patent owners must file suit in a district court in the state where the infringer is incorporated. In the Xbox360 case, a unanimous court ruled in favor of Microsoft saying game owners could not use a procedural tactic to appeal a lower-court decision until a lower court makes a final ruling on the merits of the case.
“Federal courts for years allowed people to file patent suits anywhere they wanted, most of them were filed in Texas,’’ McGill said. “The Supreme Court determined that the Patent Venue Statute does not apply. In the case of Microsoft, the justice’s 8-0 decision clamped down on a loophole and you have to have a final decision before you can go to appeal.”
Criminal justice cases
Austin-Hillery said the court dealt with 22 criminal justice cases this past term and race was in the forefront of most of the cases. “I think the court understands that we have to deal with race head-on in this country,’’ she said, noting the most interesting case involved racial bias in the case of a Hispanic defendant in a Colorado case, Pena-Rodriguez v Colorado. Rodriguez was convicted of sexual assault and it was later learned that a juror during deliberation talked about the defendant being Hispanic and said that should factor into their decision. At issue was may a court not consider evidence of the content of jury deliberations bar evidence of a juror’s racial bias? The Supreme Court ruled a court can’t allow any kind of outside bias to taint the jury process and for that reason reversed and remanded the case. Two other cases involved a death penalty case, Buck v Davis, where an expert witness testified there is ahigh probability the defendant will recidivate because he is an African-American (Court ruled against saying race should not play role in decision-making) and a third case, Beckles v United States, court ruled that sentencing guidelines may not be challenged on vagueness grounds.
Separation of church and state
Goldstein reviewed the Trinity Lutheran Church of Columbia, Mo., which applied for a state grant to resurface a playground with ground up rubber at its preschool and daycare center. The state denied the grant because Trinity was a church. Trinity sued claiming discrimination. State won in the lower courts, but the Supreme Court ruled that excluding churches from state programs for which other charitable groups are eligible is a violation of the Constitution’s protection of the free exercise of religion.
“I think this case is a step in the direction of what we’re going to get in the next five to ten years a major body of law coming out of the Roberts Court,” Goldstein explained. “In the first decade of the Roberts court we’ve seen race, the beginning of gun rights seen action on property rights, but one thing that has not happened so much is this balance of religion.”