Court Watchers Have Plenty to Track Midway Through Term

By 
Richard Shugrue
The Daily Record

About halfway through the October 2020 term’s list of cases, the U.S. Supreme Court is still speaking with each other and the partisan divide the press is fond of writing about is not quite so partisan.

Yes, there are three Trump justices, and yes, there are some sharp exchanges (witness Elena Kagan v. Brett Kavanaugh in last week’s “unanimous verdict” ruling), but with 35 cases decided (as of my deadline), the widest ideological chasms still have the jurists agreeing 59% of the time (e.g., Clarence Thomas and Sonia Sotomayor).

As usual, many of the bombshell cases are still to be handed down. Just a week ago the Court agreed to take the Mississippi abortion law case, which could mark the end of Roe v. Wade, but that case — Dobbs v. Jackson Womens Health — won’t be heard until the next term.

Despite the pandemic and the use of electronics for the conduct of hearings, this term is well ahead of the October 2019 term’s signed opinions of only 53.  The court has already released rulings in several interesting cases, such as:

• Tanzin v. Tanvir, allowing damages in actions against government officials in Religious Freedom Restoration Act actions.

• Google v. Oracle, drawing lines in copyright cases for application of the fair use doctrine.

• Two major search and seizure cases, Torres v. Madrid (in March) and Caniglia v. Strom (last week).  A third search case, Lange v. California, is pending.  It asks whether probable cause to believe a misdemeanor has been committed is sufficient to enter a home under the exigent circumstances doctrine without a warrant.

• Jones v. Mississippi, announcing when a juvenile may be sentenced to life without parole under the Eighth Amendment.

The cases yet to be released include some potentially divisive political battles and, controversial ones, such as:

• Brnovich v. Democratic National Committee, which pits Arizona “voter suppression” legislation against the Voting Rights Act, and such specific questions as the constitutionality of the ballot harvesting provision, which makes it a felony for ordinary citizens to deliver neighbors’ ballots to election boxes or officials.

• Texas v. California, another battle over the constitutionality of the Affordable Care Act (often called Obamacare).

• Fulton v. Philadelphia. The city denied a new contract for handling child placement because the agency seeking a new deal refused to serve same sex couples wishing to adopt.  The issue is whether the Free Exercise clause of the First Amendment bars such a denial.

The oral arguments end May 4 with Terry v. U.S., which deals with the question of reduced sentencing under the Fair Sentencing Act. The court does not announce when the business of the term —primarily the release of the last opinions for the merits cases — will wrap up.

Court watchers are waiting to see whether Justice Stephen Breyer will announce he is retiring.  Some Democrats have called on him to step down so that a new justice can be named by President Joe Biden while there is a chance for confirmation prior to the 2022 elections, when the Republicans could retake control of the Senate.

Richard Shugrue is a professor emeritus at the Creighton University School of Law and a columnist for The Daily Record.

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