Saturday, October 1, 2016

Supreme Court Justices Return to Face Volatile Docket

I was just thinking about the Court's new term this week, since I'm doing civil liberties in my classes and I thought I might show my students an article or two or the coming term, which starts (each year) at the beginning of October.

So, what do you know?

See the New York Times, "Supreme Court Faces Volatile, Even if Not Blockbuster, Docket":
WASHINGTON — The Supreme Court, awaiting the outcome of a presidential election that will determine its future, returns to the bench this week to face a volatile docket studded with timely cases on race, religion and immigration.

The justices have been shorthanded since Justice Antonin Scalia died in February, and say they are determined to avoid deadlocks. That will require resolve and creativity.

“This term promises to be the most unpredictable one in many, many years,” said Neal K. Katyal, a former acting United States solicitor general in the Obama administration now with Hogan Lovells.

There is no case yet on the docket that rivals the blockbusters of recent terms addressing health care, abortion or same-sex marriage. But such cases are rare, whether there are eight justices or nine.

“This term’s cases are not snoozers,” said Elizabeth B. Wydra, the president of the Constitutional Accountability Center, a liberal group. “This term features important cases about racial bias in the criminal justice system, voting rights and redistricting, immigration and detention, and accountability for big banks that engaged in racially discriminatory mortgage lending practices.”

There are, moreover, major cases on the horizon, including ones on whether a transgender boy may use the boys’ restroom in a Virginia high school and on whether a Colorado baker may refuse to serve a same-sex couple.

“If either of these cases is taken, it will almost immediately become the highest profile case on the court’s docket,” said Steven Shapiro, the legal director of the American Civil Liberties Union.

There is also the possibility that a dispute over the outcome of the presidential election could end up at the Supreme Court, as it did in 2000 in Bush v. Gore.

“That is the doomsday scenario in some respects of having an eight-member court,” said Carter G. Phillips, a lawyer with Sidley Austin. A deadlocked Supreme Court would leave in place the lower court ruling and oust the justices from their role as the final arbiters of federal law.

Race figures in many of the new term’s most important cases, including two to be heard in October, and that seems to be part of a new trend. “The court hasn’t had a lot of cases recently dealing with race in the criminal justice system,” said Jeffrey L. Fisher, a law professor at Stanford.

In June, a dissent from Justice Sonia Sotomayor brought a new perspective to the issue. Citing James Baldwin’s “The Fire Next Time” and Ta-Nehisi Coates’s “Between the World and Me,” she insisted that the brutal history and contemporary reality of racism in the United States must play a role in the court’s analysis.

That dissent may prove influential, said Justin Driver, a law professor at the University of Chicago. “One item to keep an eye on this term,” he said, “is the extent to which the Black Lives Matters movement makes its presence felt on the court’s docket.”

On Wednesday, the court will hear arguments in Buck v. Davis, No. 15-8049. It arose from an extraordinary assertion by an expert witness in the death penalty trial of Duane Buck, who was convicted of the 1995 murders of a former girlfriend and one of her friends while her young children watched. The expert, presented by the defense, said that black men are more likely to present a risk of future danger.

The justices will decide whether Mr. Buck, who is black, may challenge his death sentence based on the ineffectiveness of the trial lawyer who presented that testimony.

“The Buck case raises questions that could not be more relevant to ongoing conversations sparked by police shootings about implicit bias and stereotyping of African-American men as violent and dangerous,” Ms. Wydra said. “The Roberts court, and particularly the chief justice himself, has often been reluctant to acknowledge the reality of systemic racism in this country, but the egregious facts of the Buck case make it impossible to avoid.”

On Oct. 11, the court will consider another biased statement, this one ascribed to a juror during deliberations in a sexual assault trial. “I think he did it because he’s Mexican, and Mexican men take whatever they want,” the juror said of the defendant, according to a sworn statement from a second juror.

The question in the case, Peña Rodriguez v. Colorado, No. 15-606, is how to balance the interest in keeping jury deliberations secret against the importance of ridding the criminal justice system of racial and ethnic bias.

Race also figures in cases on redistricting, fair housing and malicious prosecution...
Well, that's a lot of stuff on race and criminal justice, but I can't wait to see the Court take up the transgender restroom issue, to say nothing of the homosexual wedding cakes. You gotta ask how far is the culture war going to succeed in rending our country into that which is totally unrecognizable.

But keep reading. We'll certainly know in due time.