Supreme Court Hard at Work on Interesting Docket This Term

By 
Richard Shugrue
The Daily Record

While you have been distracted by the passage of the COVID-19 relief bill, the reopening of the economy in many states, the nip by President Joe Biden’s dog and “The Interview” by Oprah of Meghan and Harry, the Supreme Court has been hard at work dealing with a very interesting docket.

First, Justice Amy Coney Barrett wrote her first majority opinion. The case was an unglamorous one, an FOIA dispute as to whether preliminary determinations by an agency have to be disclosed. In U.S. Fish & Wildlife v. Sierra Club, the Court’s newest justice sided with the bureaucrats.

Barrett’s opinion is intelligent and clear. Her role model in all matters judicial is the late Justice Antonin Scalia. Unlike him, however, her writing is economical. This opinion is a mere 11 pages. Compare Scalia in D.C. v. Heller, 554 U.S. 570 (2008) which ran 64 pages!

A Supreme Court tradition is that a new justice’s first effort would be in a unanimous opinion.  Forget that. This case was 7-2 with Justices Breyer and Sotomayor dissenting.

There are some attention-grabbing issues this term. Take, e.g., Uzuegbunam v. Preczewski, 19-968, a First Amendment case handed down nine days ago.  It involved an evangelical Christian student distributing materials on a Georgia public college campus who was banned by an official, claiming that the conduct was disturbing the peace.

The student graduated, the school changed its policy and the litigation nevertheless went ahead, including a prayer for nominal damages.

Justice Clarence Thomas ruled for an 8-1 court that the case was not moot and that the action could continue, since the plaintiff had, indeed, been injured, a critical element in such litigation.

Chief Justice Roberts was in a rare spot, being the lone dissenter.

This term’s cases include the almost obligatory reproductive rights matter, Dobbs v. Jackson Women’s Health Org., 19-1392.  Standing is a key issue here along with whether all pre-viability prohibitions on elective abortions are unconstitutional.

There is an Eighth Amendment case, Johnson v. Precythe, 20-287, from our own Eighth Circuit, involving the death penalty.  The matter was previously handed back to the appellate court, which then wrote an opinion participated in by Judge Arlen Beam of Nebraska.

The use of race in college admissions is once again back at the Court in Students for Fair Admissions v. Harvard, 20-1198. Here an effort is being made to eradicate a 40-year-old rule allowing race to be considered as a factor in admissions.

As of this writing, the Supreme Court has heard 46 cases. The pace of opinions has not yet picked up. New petitions are still being considered. Last term, the “Term of COVID,” the court only handed down 53 signed opinions.  It usually hears anywhere from 100 to 150 matters per term.

A couple other thoughts:

• You should know that all justices have received their COVID-19 shots. There is no plan, however, for the court to be open for business, and public hearings are not scheduled.

• I hope you all had a very happy and safe St. Patrick’s Day. Very soon people of goodwill will lift a glass of cheer to friends everywhere!

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

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