Justice, One Short: The Supreme Court's Difficulties in the New Term

by B. Lana Guggenheim It has been seven months since President Obama nominated DC Circuit Court Chief Judge Merrick Garland to the Supreme Court, and in an unprecedented move, the Senate has refused to even hold hearings to determine whether to confirm his choice.

President Obama has successfully appointed two other Justices to the Supreme Court over the course of his two terms in office: Sonia Sotomayor and Elena Kagan. What is different this time? It has nothing to do with Garland himself, who is well respected on either side of the aisle. It has to do with the fact that Justice Scalia died towards the end of Obama’s second term.

Senate Majority Leader Mitch McConnell said that filling this vacancy should be left to the next president, leaving the seat empty from May 2016 until at least January 20, 2017, refusing to confirm Judge Garland in a lame-duck session, even if Secretary Clinton does win the election. The Democratic minority lashed out, saying their colleagues were shirking their Constitutional duty. The GOP responded that this is standard political gamesmanship, but in fact, such a thing is entirely unprecedented, and has noticeably hampered the ability of the Supreme Court to do its job. And while most of the time the justices are unanimous in their rulings, it’s the hair-splitting cases that grab public attention, and often highlight the faults in the nation’s ongoing culture wars.

The Supreme Court, even hobbled, is far from useless. They are not able to issue precedent-setting rulings, but they are able to rule narrowly to generate consensus on at least some cases on their docket. And some of the cases the justices sent back to lower courts or chose to have deferred hearings on were ones that the late Justice Scalia might have favored hearing - but without him would have divided the court in a 4-4 deadlock.

The Supreme Court in 2010

Cases from Previous Term

Among the cases that likely require a full court (and thus are bounced back to the lower courts or put on hold) include the relevance of race in drawing district lines. The issue of gerrymandering is especially pressing, as there are multiple lawsuits against Republican state legislators about voter suppression, which mostly affects minorities and young people, who tend to vote Democratic, such as a federal strike-down of a 2013 North Carolina law that hugely reduced black voter turnout. North Carolina appealed the ruling to the Supreme Court in McCrory v Harris, which was hung on a 4-4 split without issuing an explanation, which meant that the federal court’s ruling was upheld, and the law remained overturned. However, this meant that there was no precedent or legal standard set on voter suppression that might have been applied nationwide.

Another gerrymandering case is Bethune-Hill v Virginia State Board of Elections, where a federal district court rejected the argument that Virginia had used race to draw district lines for its House of Delegates. There are 12 districts whose residents were majority African-American, and the districting was designed so that each district would have a population that was 55% African-American of voting age. Because this didn’t help repress minority voter turnout, it was upheld, and 11 out of the 12 districts were not found to have violated Section 5 of the Voting Rights Act. But others contend that this reduced the power of African-American votes, and so the issue has landed before the Supreme Court - though they have yet to hear the case. But in both cases, race and redistricting are the core issues - and the Supreme Court cannot make a precedent to stand for the rest of similar cases in their docket.

Other major cases bounced back to the lower courts include a case concerning unions and their rights to levy fees to non-members, with the deadlock effectively granting victory to the unions, particularly teacher’s unions and unions for public sector employees. The original case concerned the ability of public-sector unions to collect fees from workers who didn’t join and didn’t want to pay for the union’s collective bargaining. While he was alive, Justice Scalia asked questions hostile to the union, and it seemed that the court’s conservative majority would rule that forcing those who didn’t join the union to pay fees would violate their First Amendment rights. But when Justice Scalia died, the court was split 4-4 on the issue. Throwing the issue back to the lower court effectively granted the unions victory, but it set no precedent on the issue.

Deadlock also occurred on a case concerning religious exemptions for employers under the Affordable Care Act to provide contraception to their employees. Once Justice Scalia died, the court also refused to consider the case brought by a  Washington state pharmacy, which claimed exemption from selling emergency contraceptives on religious grounds. That case (and others like it) was meant to have been resolved thanks to an accommodation that allowed the religious to avoid paying for contraception coverage, and avoid fines if they informed their insurers or the government that they wanted the religious exemption. The tab would be picked up by the government or the insurance in those cases. But some religious groups objected, saying that even providing the required notice still made them complicit in what they considered a sin. The case landed before the Supreme Court, and they tried to bridge the divide by saying that the gap in coverage could be covered without notice given by the religious groups themselves. Making that work however would require a lot of finagling over details, and probably demand new federal regulations. On the part of religious employers however, they only need buy a health plan that doesn’t cover contraceptives, an option all parties agreed could work. Technically, the court didn’t actually decide anything, something they made clear in a published opinion. Both religious groups and the White House welcomed this decision, as it means women could get the coverage they needed, and the religious groups could claim they had no part in it, and would not be obligated to cover it. That might be ‘all’s well that ends well’ for that particular case of deadlock, but others weren’t so lucky.

The deadlock effectively killed the implementation of President Obama’s immigration plan by throwing it back to the lower court and refusing to rehear the issue. The 4-4 split prevented Obama’s forgiveness plan, which would have shielded as many as 5 million undocumented immigrants, and allowed them to work in the United States legally, something that Obama hoped to leave as part of his legacy. The case, United States v Texas, concerned an executive action by the president, a program called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA for short. But a coalition of 26 states, led by Texas, challenged the plan as unlawful, saying that it ignored administrative procedures for changing rules and abusing (and attempting to expand) his power as President by circumventing Congress. The White House argued that previous presidents of both parties used similar executive authority in applying immigration laws. Texas sued on the basis that it suffered direct and concrete injury, namely that it would be on the hook for the millions of dollars it would cost to print driver’s licenses to those affected by the policy, along with being forced to change state laws that link eligibility for licensing to be tied to federal standards. A judge in a lower court ultimately granted the case on the side of Texas, in part because the Obama administration failed to give notice and seek public comments on the program, which are required in the cases of programs that affect so many categories of people. The appeals court affirmed this ruling and added that the program exceeded the President’s statutory authority. The Supreme Court was set to hear the final appeal, but when they threw the case back to the lower court, the ruling on the side of Texas was upheld. Upon this result, Obama placed the blame on Senate Republicans for refusing to confirm the President’s nominee, Merrick Garland, as a justice to fill the empty spot on the Court, and thus prevent such splits. A more longer lasting result may be that future presidents will need to seek congressional approval before attempting to overhaul immigration laws by Presidential fiat.

Other hot-button cases include a challenge to a Virginia school’s refusal to let a transgender boy use the boy’s restroom. A lower court ruled in the boy’s favor, but the Supreme Court temporarily blocked the lower court’s order, and has not yet agreed to hear the case. Transgender rights have been in the spotlight lately, since a directive from the Obama administration threatened schools with loss of federal money for discrimination based on gender identity, a directive that has been challenged in over 20 states, including North Carolina. In fact, North Carolina state law obligates transgender people to use restrooms according to the gender they were assigned at birth, which itself has drawn much ire, including protests and lawsuits. This specific case concerns one Gavin Grimm, a transgender high school boy. At first, he was allowed to use the boy’s bathroom, but the local school board adopted a policy in line with North Carolina’s, forcing students to use bathrooms according the gender assigned at birth, adding that “students with gender identity issues” should be allowed to use private bathrooms. Gavin sued, and while a lower court ruled in Gavin’s favor, the case was appealed. The school board submitted an emergency application to the Supreme Court, which asked them to allow the school to continue to bar Gavin from the boy’s restroom until the court decided whether they would hear the case or not, which was granted 5-3, which Justices Ginsburg, Sotomayor, and Kagan dissenting. Until they decide, this case is held in legal limbo.

Religious liberty is at the heart of a different case that is also held in limbo. A day-care facility at Trinity Lutheran Church in Missouri sought a grant given to institutions that use recycled tires as playground surfacing to improve child safety. The state granted the funds to other non-profits, but denied this day-care as ineligible because the Missouri State Constitution bars state funding to churches. Lawyers for the church argue that this is an unconstitutional violation of the free exercise of religion and equal protection clauses, arguing that it prohibits church members ability to equally participate in public life. In other words, the Trinity Church argues that Missouri Constitutional law violates their free exercise of religion and denies them equal protection. The twist? This case was granted space on the docket in January, just before the death of Justice Scalia, but it has yet to be put on the calendar. That is possibly because Chief Justice John Roberts expects a 4-4 split on the issue, and wants to hold off on hearing arguments until the Court is once again at full strength.

Justice Antonin Scalia

Justice Scalia was very interested in hearing some controversial cases concerning insider trading, class-action lawsuits, and government assuming control of private property, all issues Scalia cared deeply about. One such case, accepted onto the docket while he yet lived, was Salman v US, a case about insider trading. Insider trading means having access to confidential information to trade stocks to one’s own advantage, and is outlawed because it is seen as inherently unfair to the rest of the market. This case in particular concerns Bassam Salman, who traded based on information given to him by his brother-in-law-to-be, Maher Kara, who worked for Citigroup healthcare’s banking investment group.  In order to be victorious, prosecutors need to prove that Kara, the “insider,” gained benefit from sharing this information. Had Kara been the one who traded, it would have been a clear-cut case. Insider trading is when securities are purchased or sold based on information not generally accessible, and involves the insider benefitting at the expense of those to whom a fiduciary duty is owed. But Salman isn’t such an insider, and so far, it’s been tricky to decide what counts as a “benefit,” as the tipster didn’t receive compensation. Instead, the lower courts argued about whether aiding friends or family is considered compensation on its own merits. Depending how the Supreme Court decides, traders on Wall Street could be greatly affected.

There are also a number of cases accepted before Justice Scalia’s demise that concern insider trading and copyright issues. That makes for some highly technical reading, but the results could alter how business functions in this country for some of the largest corporations in the country - and our wealthiest individuals as well. The results of these rulings are likely to be as highly technical as the suits themselves, but the results on how we do business will be long-lasting.

One of these cases is about cheerleader uniforms. Star Athletica LLC v Varsity Brands Inc is a suit over the stripes and chevrons of a cheerleader uniform, which Varsity brought against Star under the notion that the designs were too similar, and thus easily confused for each other, thus violating Varsity’s intellectual property rights. It is difficult to obtain clothing design copyrights, and those that are obtained are limited in scope, since most of the time clothing designs are basic or utilitarian. After all, the point of clothing design is to cover the human body. But the ornamental or artistic value of accessories and garb is much less utilitarian, and thus could possibly fall under copyright protection, providing designers the protection they need for their works.

Copyrighting clothing designs requires them to pass the “separability test” - which allows copyright only if the design incorporates elements of features that are separate from the utilitarian aspects of the garment. But that’s a pretty fuzzy definition, and there’s no test to determine separability. That’s where this case comes in: plaintiff Varsity Brands had received copyright protections for several of its cheerleading uniforms for “two-dimensional artwork,” which include stripes, chevrons, and color blocks. And Varsity Brands is accusing Star Athletica of cribbing their design, as the latter sold uniforms that were similar in appearance, and is now suing them for copyright infringement. But Star Athletica responded that the copyright registrations were invalid, not only because clothes are a useful article, but that the designs are utilitarian in signaling that this uniform was a cheerleader’s apparel to the casual observer. The fight has gone back and forth, and most recently, Varsity Brands prevailed in the Sixth Circuit court. The court set forth a five-question litmus test to determine if features of a given design are utilitarian, or copyrightable design elements conceptually separate from the garment, the most relevant being: What are the utilitarian aspects of the useful article?

This is where the Sixth Court deviated from the previous court; they ruled that the Varsity Brands’ uniforms had the function to cover the body, wick away moisture, and withstand the athletic movements of the cheerleader wearing it. It rejected the notion that utility includes broadcasting information to the casual observer that the person wearing it is a cheerleader. They also rejected the argument that graphic designs on clothing could serve a utilitarian function, reasoning that this would render all clothing artwork unprotectable, and thus render copyright fairly useless in the fashion field. The court also ruled that cheerleading uniforms do not all need to look alike in order to function according to their purpose and design. They also noted that Varsity Brands’ copyright is more akin to copyrighting a fabric pattern imprinted on the fabric, rather the generally unprotectable “dress designs,” which usually refer to the cut or shape of a garment. The law is not exactly codified, which is how this case landed in the Supreme Court in the first place. Right now, most high-value fashion designs need a blend of copyright, trademark, and patents to protect their designs from being pirated. The final result of this case will have long-lasting impact on intellectual property protection under the law, especially for the high-value, fast-evolving world of fashion.

This is demonstrative of the Court’s strategy to deal with their restricted ability to function. The Court has established something of a holding pattern, changing the way they are doing business for this term, which began this October 3rd, as they are forced to assume that they will remain a member short for its duration. The court accepted only eight new cases, five fewer than last year. They are deliberately picking cases that are less likely to split the court, and holding off on those that might. However, that doesn’t mean the Court is entirely toothless, and the cases on their docket have serious impact, even if they aren’t headline-grabbing constitutional blockbusters.

The new cases

This article cannot hope to cover all eight of the cases added to the docket, nor all the ones that remain unresolved from last year. Rather, we can examine a few of each to determine how things have changed since the death of Justice Scalia, and make predictions for the impact of the court’s rulings for the coming term. One case in particular may have long-lasting impact on our nation’s cultural icons. Lee v Tam seems like it might be small potatoes, as it concerns the name of a music group. The case concerns Simon Tam, leader of the all Asian-American music group The Slants, who was refused registration of his band’s name because the US Patent and Trademark Office deemed it disparaging for those of Asian ancestry. Tam is fighting back, saying this violates his First Amendment rights. Another group whose trademark the PTO cancelled recently is watching this case closely: the Washington Redskins football team. They have urged the justices that if Tam’s case is taken on, theirs should be as well. The results of this case may end up setting a precedent concerning the legality of naming franchises or groups, which would be a First Amendment nightmare.

Another free speech case that looks small at first but isn’t concerns credit card swipe fees. Expressions Hair Design v Schneiderman details the clash between a group of merchants challenging the current law, and the state that wants to keep it as is. Merchants pay a small fee when customers use a credit card, and many merchants would prefer to describe this fee as a surcharge in order to steer the customers to paying cash instead. The problem? New York allows merchants to give discounts to customers who pay cash, but disallow surcharges for credit cards, and so barred the merchants from describing the services in this manner. But the 2nd Circuit court disagreed, and said that NY law only describes how to regulate prices, not how merchants can describe them - making this another case to do with free speech. An appeals court struck down a similar law in Florida, and now this case has landed before the Supreme Court. Depending how this one falls, a lot of states with similar laws on the books will be forced to scramble, and figuring out how to dodge fees (no matter how they are described) might become more confusing for the customer - but easier to defend in the court. While not as splashy as Tam v Lee, both cases could have serious impact on speech laws in this country, and that’s a big deal.

Endrew F. v Douglas County School District concerns what benefits schools are obligated to provide to disabled children. The petitioner is a child with autism whose parents, dissatisfied with the education he received in his local public school, enrolled him in a private school. Now, they seek reimbursement for the cost of tuition. The Individuals with Disabilities Education Act means those children are entitled to a free appropriate public education, usually implemented by an IEP, or individualized education plan. But how effective the IEP must be varies from state to state; some say it must only provide a non-trivial benefit, while other states rule that it must be a robust addition, and yet others fall somewhere in the middle. In this case, the Supreme Court asked the federal government to weigh in, which it did back in August, in a brief that argued that a review of the case be granted. The brief also urged the court to reverse the 10th Circuit Court’s ruling that an IEP must only grant a non-trivial improvement, as non-trivial progress does not render said progress sufficient benefit for the child in question.

Lynch v Dimaya is a case that is very relevant to the current political climate, as it concerns immigration and criminal immigrants. Republican candidate Donald Trump has mentioned criminal acts and terrorism as reasons to crack down on immigration to the United States. He has famously argued that there should be a border wall between the United States and Mexico, and that the Syrian refugee population was likely to include terrorists, and so there should be a ban on Muslim immigration. Trump is not a politician, and so doesn’t have a record of previous acts in government. But his running mate, Indiana Governor Mike Pence, had his own skirmish with this issue while governing his state. He tried to halt all government resettlement of Syrian refugees within his state, arguing that he feared for the safety of the state’s residents, and that there wasn’t strict vetting of these refugees before they entered the country (there is). But his directive was overturned by a district court as unconstitutional, as it discriminated based on national origin. In the end, all Pence could actually do was turn down federal grant money for specific social services, though it’s illegal to accept federal aid money, and then not use it to aid the refugees. Judge Richard Posner wrote that “(Pence) argues that his policy of excluding Syrian refugees is based not on nationality and thus is not discriminatory, but is based solely on the threat he thinks they pose to the safety of residents of Indiana," Posner wrote. "But that's the equivalent of his saying (not that he does say) that he wants to forbid black people to settle in Indiana not because they're black but because he's afraid of them, and since race is therefore not his motive he isn't discriminating. But that of course would be racial discrimination, just as his targeting Syrian refugees is discrimination on the basis of nationality." But the notion of criminal immigrants continues to worry Americans and the issue dogs this election season.

Under the Immigration Nationality Act (INA), immigrants can be deported if they commit a crime of due severity, namely “a crime of violence.” James Garcia Dimaya, a permanent resident originally from the Philippines, was found guilty of burglary, sentenced to prison for two years, and flagged by the Department of Homeland Security for removal. But he sued, citing a previous Supreme Court ruling of Johnson v United States.

Back in 2015, Johnson v United States resulted in the definition of “crime of violence” being labeled as so vague that it is unconstitutional, which relied on the wording of the so-called “residual clause” in the Armed Career Criminal Act’s definition of a “violent felony,” which was likewise unconstitutionally vague. This act said that if a person is convicted of a crime involving use of a firearm, and also has three or more previous convictions for a “serious drug offense” or “violent felony,” the resulting prison term must be a minimum of 15 years, and a maximum of a life sentence. A violent felony was defined as any crime punishable by imprisonment for more than one year that includes the use or threat of physical force, or burglary, arson, extortion, explosives, or “otherwise involves conduct that presents a serious potential risk of physical injury to another.” But it’s that residual clause that makes the entire thing too vague to be unconstitutionally vague. In Welch v United States, the Supreme Court had ruled that this applied retroactively to sentences before Johnson was decided - meaning that a lot of final sentencings were now rendered void under the due process clause of the Fifth Amendment.

Based on this, the 9th Circuit Court had ruled that the definition of a “crime of violence” according to the INA fit the same criteria, and the federal government asked the Supreme Court to decide the issue once and for all, precisely because “crime of violence” has not demonstrated the widespread confusion and interpretive failures that occurred with the ACCA clause, and thus casts reasonable doubt on the 9th Circuit Court’s decision.

But perhaps the most attention-grabbing headline concerns the case of Duane Buck, whose attorney recently gave an oral argument before the Supreme Court. Buck was put on death row after being convicted in the murder of his ex-girlfriend and her friend, but now he contends that the verdict was due to a racist defense witness, a psychologist who had claimed that Black people were “statistically more inclined to be violent.” This allowed for a unanimous Texas jury to determine that Buck was a violent risk to society due at least in part to his race, and sentence him to death. Buck’s case is one of six that have been reviewed due to allegations of miscarriage of justice due to racial bias, but Buck’s is the one that is most likely to have its death-row sentence overturned.

Issues of bias also concern a case from Colorado, where Miguel Angel Pena Rodriguez was found guilty of unlawful sexual contact and harassment. The issue here concerns not just racial bias in the jury, but the tension between the secrecy of jury deliberations and the Sixth Amendment’s guarantee to an impartial trial. After the verdict was released, two jurors explained that one of their fellows expressed explicitly racist sentiments towards the defendant, saying “he did it because he’s Mexican.” As a result, Rodriguez seeks a re-trial.

While neither of these cases will set a precedent, a great many of these cases reflect the nation’s growing concern with addressing racial bias in the justice system, a contentious topic that is one of the flashpoints in the nation’s ongoing culture wars. While no one argues that racial injustice can be exclusively addressed in the courts, it is noteworthy how issues of race so deeply affect the execution of justice, and this is likely to remain a factor in many cases in the future.

These case studies show us how the Court is hampered in their ability when they are one Justice short, and this narrow way of operating is what we are likely to see throughout the rest of the term. It’s frustrating, but it may yet end up being a good thing, as it forces bipartisan cooperation to rule on a case. When a court has a majority conservative or a majority liberal set, the rest of the judges can be much more easily ignored or overruled. When the court is evenly split, ordinary partisan politics are forced to take a back-seat in order for a decision to be reached. That seems like it might be a good thing when it comes to imposing a ruling on the rest of the country, which is similarly split among political lines, and goes a bit farther to ensuring that any ruling is one that is essential to rule of law in line with the Constitution.