Supreme Court Quietly Enters the Final Stretch of Closely Watched Term

June 11, 2019 by Dan McCue
The U.S. Supreme Court building, June 2019. (Photo by Dan McCue)

In its long history, the Supreme Court likely hasn’t had a term quite like this one. It began with the emotionally wrenching confirmation hearings for Associate Justice Brett Kavanaugh, and will end with a series of rulings that could have dramatic repercussions on the politics and policy of the next decade.

On Monday, however, the justices entered the homestretch of the term in a relatively quiet fashion.

The most noteworthy announcement of the day was the court’s decision not to take up a challenge to federal regulation of gun silencers, and that decision was announced without comment or explanation by the justices.

The appeal to the high court had been filed by two Kansas men who were convicted of violating a federal law regulating silencers. The men had wanted their convictions voided on the grounds that they believe their constitutional right to “bear arms” includes silencers.

The justices on Monday also sided with an Alabama technology company over the U.S. Postal Service in a patent dispute.

Birmingham-based Return Mail had patented a system that uses barcodes, scanning equipment and computer databases to process returned mail almost entirely automatically. The Postal Service expressed interest in using Return Mail’s technology, then developed its own, very similar system.

Also noteworthy was the court’s decision to reject an appeal from a Yemeni man who has been held without charges at the U.S. Navy base in Cuba for more than 17 years.

Detainee Moath Hamza Ahmed Al-Alwi maintained he is effectively consigned to life in prison after his capture in Pakistan and transfer to Guantanamo Bay in January 2002.

He asked the justices to decide whether the 2001 congressional authorization to fight al-Qaida and the Taliban following the Sept. 11 attacks permits his ongoing detention.

The Justices also added five cases to its docket for the  2019-2020 term, which begins on October 7, 2019, and runs through mid-June 2020, including one involving an international child custody dispute.

The other cases slated to be heard next fall include an appeal by a death row inmate in Arizona; racial discrimination claims filed against Comcast by an African American owned media company; an employment dispute between Intel Corp. and a retired Intel engineer; and a dispute over whether residents of two Montana communities can continue their decade-long effort to get the Atlantic Richfield Co. to pay for a more thorough cleanup of arsenic left on properties after a century of copper smelting.

Left undecided Monday was whether the court will take up Klein v. Oregon Bureau of Labor and Industries, a high profile case involving an Oregon couple who declined on religious grounds to bake a custom wedding cake for a same-sex marriage.

The case has been considered during nine of the justices’ weekly conferences, only to be punted to the next.

Nothing else is expected to be heard from the justices this week, meaning that going into next Monday, there will still be 27 cases left to be decided, and whichever way the court rules in at least two of those cases, the outcomes are likely to be debate fodder for the balance of the summer and beyond.

Those cases ask whether the Trump administration can add a citizenship question on the 2020 census, and whether federal courts can strike down election district maps found to be excessively partisan.

The Census Question

Commerce Secretary Wilbur Ross wants to reinstate the practice, discontinued in 1950, of asking about the citizenship of every person participating in the census. The administration says, among other things, that asking the question would help the Justice Department enforce the Voting Rights Act.

But opponents of the proposal claim the secretary’s decision to bring back the question was arbitrary and capricious, intended to intimidate minorities, and violated the constitution.

At the opponents’ request, a federal judge in New York authorized depositions of executive branch officials in an attempt to determine Ross’s motivation for bringing the question back.

That decision led to a series of appeals that eventually wound their way to the Supreme Court. The justices blocked a deposition of Ross, but allowed the others to proceed.

The judge ultimately concluded that Ross ignored evidence that the question would reduce participation among non-citizens and Hispanics.

The High Court heard oral arguments on the Trump administration’s appeal in April, with the court’s conservative block appearing to suggest that they will vote to uphold Ross’s decision and let the question stand.

Since then, documents discovered on the hard drive of a Republican operative who died last year seemed to breathe new life into claims Ross’s desire to add a citizenship question to the 2020 census began as a plan to help Republicans and hurt Democrats in elections for seats in state legislatures and Congress.

No one knows what impact the new information will have on how the Supreme Court handles the case.

Speaking at the Second Circuit Judicial Conference in New York last week, Justice Ruth Bader Ginsburg appeared to suggest that a number of 5-4 rulings are about to be handed down by the court.

The justice went so far as to liken the pending census case to 2018 fight over the Trump administration’s travel ban. In that case, the court’s 5-4 conservative majority sided with the White House.

“Speculators about the outcome note that last year, in Trump v. Hawaii, the court upheld the so-called ‘travel ban,’ in an opinion granting great deference to the executive,” Ginsburg said.

Saying the case is of “huge importance,” Ginsburg said opponents of adding the citizenship question to the 2020 census believe another ruling in the administration’s favor “would stretch

deference beyond the breaking point.”

Partisan Gerrymandering

While the Supreme Court has ruled repeatedly on the issue of racial gerrymandering, it has never struck down an election district map on the grounds that it is so partisan that it violates the Constitution.

In March, the justices combined a pair of legal challenges — one of a North Carolina congressional map, drawn by Republicans to retain their political advantage, and a Maryland voting district drafted by Democrats to eliminate a Republican lawmaker’s district and create a new, safe district for a Democratic candidate.

Chief Justice John Roberts has long sought to keep the high court out of such disputes. But the frequency with which challenges to these districts have made their way to the court in recent years ultimately force its hand.

If a majority of the justices decides federal courts should stay out of disputes over partisan gerrymanders, the immediate beneficiary would be the Republican party, which took over legislatures across the country in the 2010 elections and were able to draw the current maps in their respective states to tighten their hold on power.

A decision declaring partisan gerrymandering unconstitutional would begin to erode that power, and play a major role in shaping the politics of the next decade.

“However one comes out on the legal issues, partisan gerrymandering unsettles the fundamental premise that people elect their representatives, not vice versa,” said Ginsburg at the Second Circuit Judicial Conference.

Other Cases of Note

While nowhere near as sweeping, the justices are also poised to answer the long disputed question of whether the Constitution permits a40-foot cross to serve as a World War I memorial on public land in a Maryland intersection, and whether the U.S. Trademark office can refuse to grant legal protections to marks which officials find lewd or vulgar, the case involving the “FUCT” clothing line.

Another question that will be answered in the coming days is whether to expand constitutional protections against double jeopardy by scrapping a decades-old doctrine that lets a state and the U.S. government press separate prosecutions involving the same conduct.

The so-called “separate sovereigns exception” provides that a person can be tried twice for the same offense if the prosecutions occur in state and federal courts. The rationale is that the states and the federal government are different sovereigns. The judges heard the case throwing this principle into question last November.

It was brought by Terance Gamble, an Alabama man who was convicted of second-degree robbery in 2008 and 2013. Following his release, a patrolman found a gun in Gamble’s car during a traffic stop.

Both federal and state law forbid a convicted felon from possessing a firearm. After convictions in both federal and state courts, Gamble said that his dual convictions unfairly prolonged his incarceration by three years.

An appeals court ruled against him citing Supreme Court precedent which, the court said, “has determined that prosecution in federal and state court for the same conduct does not violate the Double Jeopardy Clause because the state and federal governments are separate sovereigns.”

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