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After a year in which the Supreme Court held Obamacare in place and legalized same-sex marriage nationwide, the big decisions this year might seem like a disappointment.
The absence of late conservative Justice Antonin Scalia looms large over the Court this year. It's already affecting what cases the Court takes on, and how far it's willing to set a precedent on important cases. Even though it took on big cases on immigration and abortion this term, the Court may suddenly find itself taking a quieter approach.
It's possible that the Court will ask for further evaluation from lower courts, possibly avoiding issuing rulings until a ninth justice joins the bench, unless it’s absolutely necessary for the justices to weigh in.
We saw this when they unanimously punted the cases involved in Zubik v. Burwell back down to lower courts. The case — which still could have major implications — asks whether religiously affiliated nonprofits and colleges can be exempt from providing contraceptive coverage through employee insurance plans if they consider contraception antithetical to their religious practices, which is something religious organizations can do.
When the Court ruled on this birth control case, instead of addressing the merits, the justices sent the seven involved cases back to federal appeals courts, asking for a better resolution for religiously affiliated institutions and the women who receive either employee or student health insurance and want contraception.
As with Zubik and Friedrichs v. California Teachers Association a few weeks ago, it seems the Court may be extra cautious in establishing precedent without a full bench. The Court risks a few 4-4 splits this term, which would mean the lower courts’ rulings in those cases will be upheld and no precedent is set.
All of this makes it clear that the Court needs its ninth justice. Whether Merrick Garland, President Barack Obama’s nominee for the job, will be the one to fill that seat still seems hazy. Senate Majority Leader Mitch McConnell seems to have dug in his heels on blocking Obama's nomination, even if he sees a Donald Trump presidency on the horizon.
No matter what, however, the Court will continue to cycle through its cases this term. Here are the few that could still result in major consequences.
Fisher v. Texas
The case: The Supreme Court justices must be suffering from some déjà vu: This is the second time in three years that it will issue a decision on Fisher v. Texas. The lawsuit, on behalf of Abigail Fisher, a white student rejected from the University of Texas, challenges the use of race in college admissions decisions.
The University of Texas Austin admits most of its students by taking the top 10 percent of every Texas high school class, but it does use race as one factor in considering its other applicants. In 2013, the Court sent the case back to the Fifth Circuit for further review. The circuit court found in UT Austin's favor, and Fisher has appealed to the Supreme Court again.
Appellate court ruling: In favor of UT Austin, allowing the use of race in admissions to continue. However, Supreme Court Justice Elena Kagan has recused herself from this case, so only seven judges will decide it. That's enough to set a precedent.
What's at stake: The future of race-based affirmative action in college admissions. The Fifth Circuit, when reviewing the case a second time, essentially called the Supreme Court's bluff: In order to rule in Fisher's favor, the judges wrote, the Court would have to overturn its previous rulings on considering race in college admissions. Those precedents have held affirmative action to be acceptable if it was on a student-by-student basis and if it was needed to create a diverse student body.
Upholding the Fifth Circuit's decision would allow affirmative action at colleges to continue under the existing rules. Overturning it could produce a narrow decision based on the University of Texas's specific policy — which creates diversity at colleges by exploiting segregation at high schools — or a broader condemnation of the constitutionality of considering race in college admissions in the first place. — Libby Nelson
Whole Woman's Health v. Hellerstedt
The case: In what may be the most consequential abortion rights case in decades, the Court is weighing whether two major anti-abortion provisions, passed in Texas in 2013, are constitutional. Pro-life advocates say these laws make abortion safer for women, but the overwhelming consensus from doctors is that they have no medical benefit, and actually make abortion less safe because they force quality clinics to close for no compelling reason.
To provide abortions at any stage of pregnancy, the provisions force doctors to have "admitting privileges" with a nearby hospital (which are very hard to get for abortion providers specifically), and force clinics to undergo often expensive renovations to become an "ambulatory surgical center."
The central constitutional question is: Does it put an "undue burden" on women when they are forced to drive hundreds of miles because their nearest clinic has closed due to regulatory hurdles?
Appellate court ruling: The Fifth Circuit Court of Appeals overturned a district court injunction that had blocked the admitting privileges and ambulatory surgical center requirements from going into effect. If the Supreme Court hadn't intervened, this ruling would have immediately closed 10 clinics in the state. The Fifth Circuit did allow a limited exception to the admitting privileges requirement for one clinic in McAllen, Texas, but it only applied to one 75-year-old physician, who would have then become the only abortion provider in four counties.
What's at stake: A 4-4 split is probably the most the pro-life movement can hope for, and it will be less than the sweeping, nationwide validation of anti-abortion lawmaking they would have liked.
It will, however, mean that those 10 clinics in Texas will probably close for good. It also spells trouble for Louisiana abortion providers, since Louisiana is also in the Fifth Circuit's jurisdiction and has passed similar laws (which are also currently blocked by the Supreme Court). And it will mean inconsistent nationwide policy, where some states are allowed to pass laws like these and others aren't.
If the Court rules 5-3 in favor of reproductive rights advocates, it could be a huge victory for the pro-choice movement. Depending on how the ruling is written, it could prevent any states from passing admitting privilege or ambulatory surgical center laws — which are some of the most popular tools that anti-abortion lawmakers currently use to limit the procedure at the state level. It could even spell trouble for other anti-abortion laws among the hundreds that states have passed in the past five years.
Justice Anthony Kennedy, in typical fashion, will likely be the Court's swing vote. He's voted to uphold abortion rights in the past, more or less, but he also really hates abortion. — Emily Crockett
United States v. Texas
The case: In 2014, President Obama announced that he’d allow about 5 million unauthorized immigrants to apply for temporary protection from deportation and work permits (by expanding one existing program known as Deferred Action for Childhood Arrivals, or DACA, and creating a new one known as Deferred Action for Parents of Americans, or DAPA). A coalition of states, led by Texas, sued over the legality of the programs.
Appellate court ruling: In 2015, a district court, followed by the Fifth Circuit, put an injunction on the Obama administration's programs, stopping them before they could go into effect. The lower courts held that the programs were probably illegal, though the reasoning has gotten broader and broader as the case has moved through the courts; the Supreme Court is considering everything from the technical procedures required by the Administrative Procedures Act to whether President Obama violated the Constitution's "take care clause." The lower courts also endorsed the states' legal ability to sue the federal government over the programs (which is very much an open question).
What's at stake: The Supreme Court is set to either reverse the lower courts’ decisions and allow the program to go forward — giving millions of immigrants the opportunity to change their lives — or uphold the lower courts' decision (either directly or via a 4-4 tie), killing the program for the duration of the Obama administration. Along the way, the Court will end up setting significant precedents for when states can sue the federal government and how much leeway the president has when it comes to enforcing immigration laws. — Dara Lind
Wittman v. Personhuballah
Decided on May 23: The Supreme Court ruled unanimously that a group of Virginia Republican lawmakers appealing over a court-ordered redistricting plan didn't have the legal standing to bring their case. This ends a long argument over redrawing Virginia's third congressional district without implying that incumbent lawmakers have the right to a fair shot at reelection.
The case: Two big questions are at issue as the Supreme Court reviews Wittman v. Personhuballah, a challenge to Virginia's redistricting plan in 2012 that increased the share of black voters in one congressional district. The first is about racial gerrymandering in that district: Did race play too big a role when Virginia redrew its boundaries? The second is about the fight that ensued over that district: Should politicians get to sue over a plan that might hurt their electoral chances, even if the contested district in question isn't the district they represent?
Appellate court ruling: A federal district court ruled that Virginia's third congressional district was formed from an improper "racial gerrymander" and would need to be redrawn.
What was stake: If the Supreme Court had overturned the district court's decision, ruling that Virginia's map, which increased the share of black voters in the third congressional district from 53 percent to 56 percent, wasn't an unconstitutional form of racial gerrymandering, it could have rewritten the rules for drawing new districts.
But the justices were also grappling with whether the Virginia legislators who challenged the district court's ruling — Republicans who argued that redrawing the boundaries yet again would push black voters into their district and make it more difficult for them to be reelected — had the standing to challenge the case at all. Deciding that the legislators could bring a case would have meant acknowledging that incumbent lawmakers have a right to not have their reelection chances tanked by a new legislative map. — Libby Nelson
Betterman v. Montana
Decided on May 19: The Supreme Court unanimously ruled that once a defendant is found guilty or pleads guilty to a crime, the "speedy" part of the constitutional Sixth Amendment's "right to a speedy and public trial" no longer applies.
The case: This case decided whether the "speedy" part of the constitutional Sixth Amendment's "right to a speedy and public trial" applies to delays from the time a defendant pleads to the time of actual sentencing.
Specifically, the case refers to Brandon Thomas Betterman, who was given his seven-year prison sentence 14 months after he initially pleaded guilty to felony bail jumping in a Montana state court. The question left for the Supreme Court was whether sentencing is part of the "trial" in a "speedy trial."
Appellate court ruling: The Montana Supreme Court ruled that "speedy trial" does not apply after conviction in Betterman's case.
What was at stake: Betterman v. Montana was seemingly a cut-and-dry constitutional law case with a simple question: Does the Sixth Amendment's "speedy trial" apply to sentencing delays? However, this question also left room for the Supreme Court to settle some details over due process. As Rory Little wrote for SCOTUSblog, it is in the high court's benefit to provide as much specificity as possible:
The Supreme Court takes cases on discrete constitutional topics so infrequently, and in so few cases, that an essential part of its role is to provide as much guidance as possible to assist lower state and federal courts in deciding, and thousands of lawyers in litigating, the thousands of cases they collectively confront on the topic every year. We’ll see how much guidance, beyond the binary constitutional question presented, the Court can agree on here.
The Supreme Court took the opportunity to raise – but not rule on – additional questions about protections afforded under separate due process clauses. While "the speedy trial right — like other similarly aimed measures — loses force upon conviction," Betterman may have had "other recourse" under the due process clauses of the Fifth and 14th Amendments, the opinion said. — Tara Golshan
United States Army Corps of Engineers v. Hawkes Co. Inc.
Decided on May 31: The Supreme Court ruled that United States Army Corps of Engineers-issued determinations of regions protect by the Clean Water Act can be challenged in court.
The case: This case determined whether the United States Army Corps of Engineers' decisions on which regions are protected by the Clean Water Act can be challenged in court.
The US Army Corps of Engineers is responsible for determining whether a property has "waters of the United States" or "navigable waters" — waters that are protected by the federal Clean Water Act. The corps makes these judgments by issuing jurisdictional determinations, or JDs, which regulate whether property owners need additional permits to use wetlands or other protected lands — processes that can often be long and expensive.
In this specific case, USACE determined that one of the Minnesota properties of Hawkes Co.'s — a mining company — had areas protected by the Clean Water Act, requiring the company to undergo an extensive permitting process to mine the land. Hawkes attempted to challenge the determination, arguing that the judgment would cost the company hundreds of thousands of dollars. Whether or not Hawkes could challenge the corps' determination was taken to court, eventually carrying the case to the nation's highest court.
Appellate court ruling: The US Court of Appeals for the Eighth Circuit ruled that JDs can be challenged in court, citing them as "final agency actions," or federal agency rulings, which under the federal Administrative Procedure Act can be taken up in court.
What was at stake: While this case directly revolves around the more administrative and judicial procedures (whether or not JDs are like other decisions from other federal agencies), the Supreme Court's decision could influence the strength of the Clean Water Act. Since the court determined that JDs are in fact like other federal agency actions, and can be challenged in court, it opens the door for more companies to try to overturn or delay USACE determinations of which waters should be protected and which shouldn't. — Tara Golshan
Foster v. Chatman
The case: The Supreme Court is reviewing a death penalty case from Georgia that could change existing rules for how race influences which jurors lawyers can have removed from a trial. Under existing law, lawyers on both sides can get a certain number of jurors kicked off the case for essentially no reason.
But in Batson v. Kentucky in 1986, the Supreme Court looked at how race affected these "peremptory challenges," which prosecutors often used to remove black jurors from a case when a defendant was black. The Court ended up establishing a test to make sure the reasons for kicking out a juror were race-neutral, but prosecutors have largely found ways to get around the test and have black jurors removed anyway.
The defense in Foster v. Chatman claims that's exactly what happened in their case, in which an 18-year-old black man, Timothy Tyrone Foster, who was accused of killing a 79-year-old white woman was sentenced to death by an all-white jury. Underlying the case is a major racial disparity in the criminal justice system: Black defendants are more likely to be executed than their white counterparts, especially by an all-white jury.
Appellate court ruling: The Georgia Supreme Court denied Foster's writ of habeas corpus, effectively rejecting his challenge.
What's at stake: Depending on how the Supreme Court rules, the case could potentially make it a lot harder for prosecutors to get an all-white jury in the first place. Or it could make it a lot easier. — German Lopez
