To: Interested Parties
From: Paul Gordon, Senior Legislative Counsel, People For the American Way Foundation
Date: October 3, 2016
Re: The Supreme Court Term 2016-2017: A Sabotaged Court Tries to Carry On, With Our Rights in the Balance

With the Senate simply ignoring the nomination of D.C. Circuit Judge Merrick Garland to the Supreme Court for more than half a year, our nation’s highest court begins its new term the same way it spent the second half of the last one: short one member, divided ideologically 4-4 on many issues, and unable to fully function properly.

This is not be the first time the Supreme Court has begun a term short-staffed. But it is the first time a nominee for a Supreme Court vacancy has remained pending across two terms of the Court. And this is happening because the Supreme Court’s ability to carry out its constitutionally mandated role is being deliberately compromised. Even though Justice Antonin Scalia passed away almost a full year before President Obama leaves office, Senate Republicans immediately announced that they would not consider anyone he nominated, no matter who it was, so that the seat could be filled by the next president (who they hope will be a Republican). They transformed the nation’s highest court into a political football, and they are fighting to keep the seat open for Donald Trump to fill.

In June, People For the American Way released The Supreme Court Term 2015-16: Lessons on an Extended Vacancy. In addition, with the Constitutional Accountability Center, PFAW Foundation issued a report on Harming Justice: Effects of an Eight-Justice Supreme Court (and an end-of-term supplement). These demonstrated how the 4-4 split on the Court left critically important constitutional and other legal questions unanswered. They included the constitutionality of the Obama Administration’s immigration executive actions, the legality of its accommodation to religious nonprofits with regard to contraception coverage for employees, and the continued ability of public sector unions to collect fair-share fees from non-members whose interests they are legally required to represent.

This year, more than 200 days after Judge Garland’s nomination, the Court begins its new term with the current vacancy still not filled. Likely because of the ongoing obstruction, the justices began their summer recess last June having accepted only 21 cases so far for the upcoming term, significantly fewer than normal at that point in time. Even with nine new ones accepted at the end of September, the number of cases is still lower than normal for this time. What point is there in accepting a critically important case when the Court is unlikely to be able to resolve the questions being raised?

As Justice Elena Kagan noted while speaking at Harvard Law School, “[p]resumably we're there for a reason. We're there to resolve cases that need deciding, answer hotly contested issues that need resolving, and you can't do that with a tie vote.”

Notably, one of the highest profile cases on the docket so far was accepted for review before Justice Scalia passed away. The Court at that time had no reason to shy away from the religious liberty issues raised in Trinity Lutheran Church of Columbia v. Pauley (see below). But now, even though it has been fully briefed and is ahead of many other cases in line, the Court has not yet scheduled it for oral arguments. The Court appears to recognize that it simply can’t do its job in this case as long as Senate Republicans continue to force it to operate without its congressionally mandated ninth seat.

Most of the cases accepted since Justice Scalia’s passing have been relatively low profile and not ideologically charged, concerning business and criminal law issues. But some of the cases accepted by the Court do raise important, high-profile issues, and there are others waiting in the wings that the Court may choose to hear once the Senate allows them to have their ninth justice.

Many of our rights and liberties will be on hold until the Senate allows the ninth seat on the Court to be filled. The next justice should respect our nation’s constitutional values of liberty, equality, and justice for all, as Merrick Garland’s career shows that he does. Justices that bend the law and twist logic in order to empower the powerful would constitute a major step backward in our nation’s ongoing struggle to live up to the ideals set forth in the United States Constitution. Analyzed below are some significant cases in several important issue areas that the Court has agreed to review or may review in 2016-17.

Religious Liberty

The Court already has one potentially significant religious liberty case on its docket, and it may very well grant certiorari in cases that raise other religious liberty issues.

Trinity Lutheran Church of Columbia v. Pauley: Direct State Financial Grants to Churches

As noted above, the Court agreed to hear this case before Justice Scalia’s passing but is clearly not scheduling it until they hope they will have a ninth justice. Assuming the Court has nine justices in time, this case has the potential to weaken church-state separation provisions in the U. S. Constitution and in numerous state constitutions.

Missouri has a competitive grant program for organizations to improve their playgrounds. Trinity Lutheran Church operates a religious preschool and daycare program that infuses sectarian instruction throughout the day. Trinity applied for a grant to improve the children’s playground despite the state constitution’s clear mandate for the separation of church and state. It explicitly prohibits the government from providing funds to churches, either directly or indirectly. It also specifically prohibits funding to help or sustain a religious school. So Trinity’s grant application was rejected.

Trinity, represented by the Alliance Defending Freedom, sued the state, claiming that denying it funds for its playground because it is a religious entity violates the U.S. Constitution’s Equal Protection and Free Exercise Clauses. According to the church, Missouri targeted religion for disadvantageous treatment, which can be justified only if the grant program is narrowly tailored to achieve a compelling government interest. Trinity claims there is no such compelling state interest, because (Trinity argues) the grant would be permissible under the federal Establishment Clause. Trinity also argues that the program forces adherents to choose between their religion and receiving a generally available public benefit, which denies them full and equal participation in the community and violates the Free Exercise Clause. Trinity gave no assurances to state officials that it would not use the taxpayer-funded playground for religious purposes. The Eighth Circuit rejected Trinity’s arguments.

PFAW Foundation joined an amicus brief authored by the ACLU pointing out the serious defects in Trinity’s legal argument. A fundamental principle of the First Amendment’s Establishment Clause is that states may not award direct grants to houses of worship. The Court has upheld indirect grants such as vouchers, where parents rather than the state decide whether to spend taxpayer funds on a religious or a secular school. But direct grants to houses of worship contravene the clear meaning and intent of the Establishment Clause. The Founders recognized that churches would either support themselves or not, and that religious liberty would be threatened, not enhanced, if the government could use its taxing and spending powers to favor certain religions or religion in general. In contrast, despite the Establishment Clause, Trinity and its allies would have the Court require state support of churches and other houses of worship.

In a similar case challenging state constitutional “no aid” provisions, the Court is considering whether to grant certiorari in New Mexico Association of Nonpublic Schools v. Moses. There, the state constitution states that no funds spent for educational purposes can be spent on “any sectarian, denominational or private school, college or university.” This covers all private institutions, not just religious ones. Based on that provision, the state supreme court struck down a program in which the state purchases non-religious educational material selected by public and private schools and lends them to qualified students in either public or private schools, which allows those schools to divert funds they would have otherwise used to obtain the material. The New Mexico Association of Nonpublic Schools, represented by the Becket Fund for Religious Liberty, filed a certiorari petition with the Court, not asking it to take the case immediately, but rather to hold on to it pending resolution of Trinity Lutheran Church. It asserts the New Mexico constitutional provision violates the federal Free Exercise and Equal Protection Clauses.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission: Religion as a sword to deny other people their legal rights

The Court has not yet decided whether to hear this case involving the ability of a bakery to refuse services to a same-sex couple. Masterpiece Cakeshop is another vehicle used by the religious right to portray LGBT equality as inherently inconsistent with religious liberty. It is also an effort to expand their efforts to transform religious liberty from a shield designed to protect rights into a sword designed to strip others of their rights. The case relies on claims under the Free Exercise Clause as well as the First Amendment’s free speech provision.

The bakery is owned by Jack Phillips, who practices a version of Christianity deeply hostile to LGBT equality. When two men asked him to design and make a wedding cake for a local celebration after their planned marriage in Massachusetts (Colorado did not permit them to marry at that time), the bakery owner refused, saying his religion disapproved of their marriage and so he would not create wedding cakes for same-sex couples. However, Colorado prohibits discrimination in public accommodations on the basis of sexual orientation, and as a business open to the general public, the bakery was ordered to end its policy of discrimination.

Masterpiece argues that creating and baking a wedding cake is an expressive act signifying his approval of the marriage being celebrated. Therefore, compliance with the anti-discrimination law would be unconstitutional compelled speech he does not agree with, under the First Amendment.

The problem with this argument is that there is no indication that the cake would contain a message that the baker would be offended or repulsed by (such as a written racist, political, or religious message on the cake). The Eighth Circuit concluded that operating a public bakeshop that designs and sells wedding cakes in compliance with anti-discrimination laws does not convey a celebratory message by the baker himself. Any pro-equality message that an observer might interpret from the cake would be attributed to the couple, rather than to the baker. In addition, the court ruled that simply obeying a law does not express agreement with it.

Masterpiece also claims that enforcement of the law violates the bakery owner’s rights under the Free Exercise Clause. (There is no RFRA claim, because that is a federal law, and Colorado has no state-level equivalent.) Under the 1990 Employment Division v. Smith case (which weakened the Free Exercise Clause and led to the passage of RFRA in response), the Free Exercise Clause does not excuse a person from complying with a valid and neutral law of general applicability on the ground that it prohibits or requires conduct in violation of their religious beliefs.

The 5-4 Hobby Lobby case showed that five justices were willing to transform the concept of religious liberty into a weapon to deprive others of their legal rights. But one of those in the majority was Justice Scalia, so the Court is divided 4-4 on this fundamental issue. Last term’s Zubik v. Burwell failed to resolve the issue in the context of the Affordable Care Act’s accommodation for religious nonprofits with regard to contraception coverage; the Court essentially punted the issue back to the lower courts. But this is a question that will come up over and over again in the lower courts, until a ninth justice takes their seat and can help resolve the current impasse.

As with Trinity Lutheran Church, the bakery in this case is represented by the Alliance Defending Freedom.

LGBT Equality

Religious liberty cases like Masterpiece Cakeshop clearly implicate LGBT equality, since that community is a major target of the Far Right’s effort to redefine religious liberty. But LGBT equality issues have traditionally been raised in other contexts, and one such case may be heard by the Court this term.

Gloucester County School Board v. G.G.: Transgender equality under Title IX

This case – which the Supreme Court has not yet decided whether to take – involves a public school board’s efforts to prohibit G.G., a transgender boy, from using the boys’ bathroom at school. At issue is whether Title IX requires schools to allow transgender students to use the restrooms that are appropriate for their gender identity.

Title IX prohibits discrimination on the basis of sex in any educational program or activity receiving federal funding. So, for example, girls’ bathrooms and boys’ bathrooms must be comparable. The Department of Education’s Office of Civil Rights has interpreted this to require schools providing separate boys’ and girls’ bathrooms to generally treat transgender students consistent with their gender identity.

A district court rejected this interpretation and ruled in favor of the Virginia school district without a trial, but on appeal, a three-judge panel of the Fourth Circuit reversed the lower court and held that Title IX can be interpreted as the Department of Education does. The school district has appealed this ruling to the Supreme Court, which has stayed the appeals court ruling while it decides whether to take the case.

If the Court takes the case and rules that the DoE’s interpretation is reasonable but not the only possible one, then a future administration would likely be able to reverse it. A ruling that the department’s interpretation is the only correct one would cement the policy in place.

Voting Rights

Weeks before the 2016 term even began, the Court took interim actions having significant impacts on the right to vote in three states:

• In August, the Court rejected North Carolina’s request to let it enforce provisions of a voter suppression law struck down by the Fourth Circuit, pending the outcome of the state’s appeal to the High Court.
• In early September, the Court rejected Michigan’s request to enforce its new law banning automatic straight-ticket voting (where a voter can easily vote for all candidates of the same party running for any office). This will allow many voters to cast their ballots far more quickly and reduce lines at polling places.
• Several days later, the Court declined to put a temporary hold on a lower court’s ruling striking down Ohio’s “Golden Week,” when voters can both register and vote at the same time. This period is used particularly by African Americans, but it will be unavailable to them this fall.

Any one of these cases could eventually be considered on the merits by the Court. Perhaps the most important of these is the North Carolina case.

North Carolina v. NC Conference of the NAACP: North Carolina has not yet submitted its petition for certiorari in this case.

In July, a three-judge panel of the Fourth Circuit Court of Appeals reversed a lower federal court and struck down North Carolina’s notorious voter ID law, as well as its provisions curtailing or eliminating early voting, same-day registration, out-of-precinct voting, and preregistration of 16 and 17 year-olds. The court concluded that not only did the law have a racially discriminatory impact, it was actually intended to make voting harder for African Americans. The judges concluded that provisions of the new law “target African Americans with almost surgical precision” without remedying the alleged problems the state claims were their justifications.

Struck down were the elimination of one of two Sunday early voting days (which have been used as “souls to the polls” voting turnout efforts by African Americans); a strict new photo ID law; same-day registration; out-of-precinct voting; and preregistration of 16 and 17 year-olds. All these provisions targeted voting methods more frequently used by African Americans, or required photo IDs that African Americans are less likely to have.

The Fourth Circuit ruling was an enormous victory for the right to vote. However, given the important issues raised, the lower court’s ruling on a constitutional basis, and the high profile of the case, it seems likely that the case will be appealed to and heard by the Supreme Court.

As noted above, the state had asked the Court to stay the Fourth Circuit’s ruling and allow enforcement of the new law during the November election, pending resolution of North Carolina’s as-yet-unfiled certiorari petition. On the preregistration provision, the Court split 7-1, with only Justice Thomas voting to let the state enforce it. But on all the other provisions at issue, the Court split 4-4. Without a majority, the petition was denied.

That 4-4 split suggests that if the case is ultimately decided by the Supreme Court, the identity of the ninth justice will be of enormous importance. Had Merrick Garland been granted timely consideration by the Senate, he likely would have been on the Court in time to provide a tie-splitting vote on North Carolina’s stay application.

Bethune-Hill v. Virginia Board of Elections and McCrory v. Harris: Racial redistricting.

The Court will be hearing two cases involving redistricting plans adopted after the 2010 elections that are challenged as racial gerrymandering.

In McCrory v. Harris, North Carolina appeals a decision by a three-judge district court that two of the Congressional districts created after the 2010 Census are racial gerrymanders in violation of the Equal Protection Clause.

The lower court said that strict scrutiny applies to race in redistricting only when race is the “dominant and compelling” consideration in drawling lines. In this case, the court ruled, race was the predominant consideration with respect to CD1 and CD 12, and the state legislature did not narrowly tailor those districts to serve a compelling interest. Plaintiffs in this case are two voters, one from each district, who claim that North Carolina used the Voting Rights Act’s Section 5 preclearance requirement (then in effect) as a pretext to pack African American voters into the two districts, thereby reducing their influence in other districts.

Bethune-Hill v. Virginia State Board of Elections addresses Equal Protection challenges to twelve state legislative districts. In this case, the lower court upheld the redistricting. It concluded that race was not the predominant factor in motivating the state legislature’s boundary choices in 11 of the 12 districts, and that they all survived the lower level scrutiny applicable in that situation. The court did find that race was the predominant factor in shaping one district (House District 75), but that the legislature had a compelling interest (compliance with the VRA), and its use of race was narrowly tailored to achieve that interest.

Improper redistricting is one way that the electoral influence of communities of color can be diminished. These cases may help lower courts determine when race has been used unconstitutionally.

Disability Rights

The Court has accepted three cases that could have a significant impact on people with disabilities.

Fry v. Napoleon Community Schools addresses the interplay among four federal laws designed to remove obstacles preventing people with disabilities from participating as full members of our society: the Handicapped Children’s Protection Act of 1986 (HCPA), the Individuals with Disabilities Act (IDEA), the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act. In this case, a student with cerebral palsy was prohibited from bringing her service dog with her to school, which provided a human aide instead. At issue is whether her parents can sue for damages, which are not available under the IDEA, under the ADA and Section 504 without first going through all the state-level resolution efforts required by IDEA and HCPA.

Ivy v. Morath addresses efforts by five hearing-impaired Texans to get drivers’ licenses, but the basic legal question could have a much larger impact. Texas will not give out drivers’ licenses to anyone under 25 unless they first provide a driver’s education certificate. The problem is that the only entities that provide such certificates are private companies licensed by the state, and none would provide a sign-language interpreter for the students. They initiated a class action lawsuit against the state agency to get it to comply with the ADA. The major legal issue is whether, under the ADA, the state is liable for discrimination in a program when it has delegated responsibility to private contractors.

In Endrew F. v. Douglas County School District, the Court is being asked to resolve the level of benefit that school districts are required to provide to children with disabilities under the IDEA. Circuit courts have split on the issue. As a result, districts in some parts of the country only need to provide “some educational benefit,” while those in other parts of the country must provide a “meaningful educational benefit.”

Housing Discrimination

Bank of America Corp. v. City of Miami and Wells Fargo v. City of Miami raise questions about Miami’s efforts to hold lenders accountable for the long-term effects of their discriminatory policies. The Court has accepted and consolidated the two cases. Lenders are asking the Court to decide whether the Fair Housing Act (FHA) allows cities to be among those who can sue because of racial discrimination in housing committed by others against city residents. Also at issue is whether the term “aggrieved person” in the FHA just means an Article III injury, or whether it requires something more than that. The lenders are also challenging how far down the cause-and-effect line one can go before you can no longer say that the defendant’s actions were the “proximate cause” of a bad result, as required by the FHA.

Other Important Issues

Other important legal issues that will be decided this term – unless the Court splits 4-4 because the current vacancy remains unfilled – include:

• Must certain acting government officials who have been nominated (but not yet confirmed) to positions requiring Senate confirmation step down from their acting position once nominated? This is not a constitutional case, but one interpreting a statute setting forth rules for filling higher-level vacancies in the government. In an era of partisan obstruction of executive nominees, this could have a significant impact. (National Labor Relations Board v. SW General)

• Some state laws prohibit merchants from charging a surcharge when customers use credit cards, but allow them to offer discounts to those who pay by cash. Does it violate the merchants’ First Amendment free speech right to describe their cash/credit disparity as a “surcharge” rather than a “discount for cash” in order to discourage customers from using credit cards? This could be an important case, since the Roberts Court has in the past used the First Amendment as a way to strike down ordinary economic and business laws, just as the Due Process Clause was used for that purpose in the Lochner Era. (Expressions Hair Design v. Schneiderman).

• The Court has accepted three cases that could have an impact on some immigrants. Lynch v. Morales-Santana challenges a federal law treating (for the purposes of citizenship) children born abroad with only one citizen parent, depending on whether the citizen was the child’s mother or their father. Jennings v. Rodrigues addresses various aspects of bond hearings for non-citizens in detention. Lynch v. Dimaya asks whether the term “crime of violence” in immigration law is so too vague and therefore unconstitutional.

Conclusion

The Supreme Court’s decisions affect everyone: individuals and communities, businesses and consumers, employers and employees. As Citizens United and Shelby County show, they can have profoundly dangerous consequences for the health of our democracy. But as Obergefell and Whole Women’s Health show, the Court can hold the key to undoing unjust and oppressive laws that violate people’s basic rights.

The type of Court we have going forward will depend on who is chosen to fill its vacancies. No matter what issues one cares about, the Supreme Court is critically important in that area.

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