By Carol Zimmermann Catholic News Service
WASHINGTON (CNS) — The expression “in like a lion out like a lamb” turns on its head when comparing the end of the Supreme Court’s last term to the start of its new one Oct. 3.
The end of the court’s last term ended with a flurry of decisions on high-profile cases on abortion, immigration and contraception that had the rapt attention of Catholics and the general public alike.
But as the court readies for its next term — always on the first Monday in October — that same sense of urgency is nowhere in sight. The court will take its usual load of about 80 cases, but it is not taking on cases likely to entice massive crowds to the building’s white steps with placards and megaphones.
“In previous years I’ve said: ‘What a blockbuster year we have ahead.’ But this year, not so much,” said Caroline Fredrickson, president of the American Constitution Society, during a Supreme Court overview Sept. 21 at the National Press Club in Washington.
Fredrickson and other panelists said a key factor to the lackluster cases on tap this term is because the court is still not functioning at full capacity since the death of Justice Antonin Scalia Feb. 13.
Sept. 23 marks the 222nd day since Scalia’s death and it also is the 191st day since Merrick Garland was nominated by President Barack Obama to fill that vacancy. If the seat remains vacant until a nomination by the next president, the court might go through the entire oral argument session without a ninth justice while the confirmation process occurs.
The court is in “unchartered territory,” said Kristen Clarke, president of Lawyers’ Committee for Civil Rights Under Law, noting the longtime absence of a justice has not happened in more than five decades.
“I’m concerned about the integrity of the Supreme Court,” she said, noting that it is in a “state of paralysis” without the ninth vote.
Paul Smith, a partner at the Washington law firm Jenner & Block, who has argued multiple cases before the Supreme Court, similarly said the prospect of more four-four tie votes from this court makes it “unfunctional.”
But that view isn’t shared by everyone. Nicholas Quinn Rosenkranz, law professor at Georgetown University’s law school, said Scalia’s absence is a notable, particularly since he was “a larger than life figure in the court.” He didn’t think the court was “dramatically hindered” by having one less justice, but he still said “the court is better with a full complement.”
Another factor to consider is whoever fills Scalia’s seat could likely be on the bench for decades.
Still, in its ever steady and slow fashion, the court will not change dramatically no matter who fills the spot. As Smith said, the court doesn’t work that way and it doesn’t like to override previous decisions.
So far, the court has agreed to hear 31 cases and will add more after a late September conference. Nineteen cases are scheduled for oral argument in October and November and more will be added in the coming months. Key upcoming cases for Catholic court watchers are two death penalty cases and a religious liberty case about a church being excluded from a state’s grant program.
Cases the court might take up but hasn’t decided yet include: challenges on voting laws from several states; another issue over the Affordable Care Act; trademark battles involving an Asian-American rock band and the Washington Redskins football team; and a high school transgender bathroom case.
The death penalty cases from Texas will be argued in the court’s first month. The case of Buck v. Stephens, involves Duane Buck, who was sentenced to death for the murders of his ex-girlfriend and another man in front of her children in Houston in 1995. A psychologist who spoke at the punishment phase of his trial said that because Buck is African-American, there was a stronger likelihood that he could present a danger to society.
The court will examine if that part of his trial was ineffective because the witness who made this remark was called forth by the defense. But if the court rules in Buck’s favor, he will only get a new sentencing hearing, not a new trial establishing guilt or innocence.
The other death penalty case is Moore v. Texas, involving Bobby James Moore, convicted of killing a grocery store clerk during a botched robbery in 1980. Moore says he is intellectually disabled, a claim the state appeals court has rejected. However, his attorneys argue the state used outdated medical standards in their evaluation.
Meg Penrose, professor of constitutional law at Texas A&M University’s School of Law, said if either case ends with a 4-4 vote, both men will be executed since the lower and appeals courts ruled against them and these decisions will stand. Both cases are decades old and Penrose said they prove “if society is going to inflict the ultimate penalty, it needs to be sure it has done so in a just manner.”
Clarke, from the civil rights law group, said the stakes are high with these death penalty cases and she feels “unsettled that they will only be heard by eight justices.”
The religious liberty case before the court, but not given a date yet, is Trinity Lutheran Church of Columbia v. Pauley about a religious preschool that was rejected from a Missouri program that provides reimbursement grants for the purchase of tire scraps used at the base of playgrounds.
The church says its exclusion violates the Constitution because it discriminates against religious institutions. The state argues that it didn’t violate rights saying the church can still worship or run its day care as it wishes, but the state will not pay for the resurfaced playground.
Rosenkranz pointed out that both sides are relying on the Supreme Court’s 2004 decision in Locke vs. Davey, which said that states do not have to provide tax-funded scholarships to college students who are pursuing careers in ministry.
The church in the playground case said the grant they applied for had nothing to do with religion, like the scholarship did, while opponents insist the state simply should not be providing any financial support to religious institutions.
At another Supreme Court briefing sponsored by Alliance Defending Freedom, C. Kevin Marshall, a partner with the Washington law firm Jones Day, said how the court responds to the playground case will have a broad effect.
He said the case raises religious liberty questions but is “less contentious” than last term’s Zubik v. Burwell, which challenged the Affordable Care Act’s contraceptive requirement for employers.
As he put it: “We can get to basics here.”
– – –
Follow Zimmermann on Twitter @carolmaczim.