WASHINGTON — 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
"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
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
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
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
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
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."