For the first time since 1988, the Supreme Court will be missing a member when it begins its 2016-17 term on Monday.
It has now been 201 days since President Barack Obama nominated Merrick Garland, chief judge of the D.C. Circuit Court of Appeals, to the Supreme Court vacancy after Justice Antonin Scalia died on Feb. 13. Garland has waited longer for confirmation than any nominee in history, with Senate Majority Leader Mitch McConnell refusing to hold hearings until Obama’s replacement is inaugurated in January. There’s a genuine possibility Scalia will not be replaced until next summer.
But while we wait for his replacement, the Supreme Court continues to hear cases. Although the docket is free of high-profile subjects like abortion and LGBTQ rights, several cases pending before the court raise social justice issues, especially involving race. With only eight members, there’s an especially high chance the court will split 4-4 on these cases, leaving questions unresolved.
Here are some to keep an eye on over the next few months:
This term brings two death penalty cases coming out of Texas.
The first, Buck v. Davis, centers on the testimony of Dr. Walter Quijano, a discredited psychological expert who testified in multiple cases that African-American and Latinx defendants were more likely to be violent in the future because of their race. All but one of these defendants have been granted new sentencing hearings, though Texas has opposed resentencing in the case of Duane Buck, a black man.
Buck claims he was denied his constitutional right to effective counsel (credible, as his lawyer was the subject of a scathing New York Times profile that began, “A good way to end up on death row in Texas is to be accused of a capital crime and have Jerry Guerinot represent you.”) The Fifth Circuit Court of Appeals, however, denied Buck’s appeal because his attorneys previously failed to raise the ineffective assistance of counsel claim; the Supreme Court will now decide if Buck can raise the claim before he’s executed. Scalia’s vacancy is particularly important, here, as Justice Stephen Breyer—usually associated with the court’s liberal wing—has expressed reservations about Buck’s case because Buck’s own attorney, rather than prosecutors, called Quijano as a witness. (Quijano initially testified that there was a lower chance Buck would be a continuing threat to society because of the circumstances of his case. Under cross-examination by prosecutors, however, Quijano testified that African-American defendants were more likely to commit crimes in the future.)
Oral arguments are scheduled for Wednesday.
The second death penalty case, Moore v. Texas, concerns whether Texas can use its own standard for evaluating intellectual disability—one based on outdated guidelines from 1992 and which expressly compares defendants to Lennie from John Steinbeck’s Of Mice and Men, a childlike man with mental disabilities who can’t understand abstract concepts.
Under existing Supreme Court precedent, executing people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishments. Without action by the Supreme Court, Texas and other states will be able to continue executing people simply because they don’t match outdated stereotypes of intellectual disability.
Oral arguments have not yet been scheduled.
The Supreme Court will also consider two cases about the constitutionality of racial gerrymanders: Bethune-Hill v. Va. Board of Elections and McCrory v. Harris. In both cases, voters challenged redistricting plans that set minimum quotas of African-American residents for existing majority-minority districts (55% for Virginia House of Delegates districts in Bethune-Hill and a simple majority for North Carolina congressional districts in McCrory).
In a 5-4 decision last year, the Supreme Court held that the Alabama legislature engaged in unconstitutional racial gerrymandering by requiring majority-minority districts to have at least the same percent of African-American residents as the prior electoral map (effectively setting an individual racial quota for each district). If that majority holds, the court will likely rule the maps in both Bethune-Hill and McCrory unconstitutional; but if a single justice switches their vote, the District Court decisions will stand, leading to nonsensical results: North Carolina’s map, which set a simple majority quota, would be an unconstitutional racial gerrymander, while Virginia’s map, which used a more stringent 55% quota, would not. This would lead to significant uncertainty for the round of redistricting set to begin after the 2020 census.
Oral arguments have not yet been scheduled in either case.
Racially biased juries
Also at issue this term is whether criminal convictions can be overturned based on racist statements made by jurors. In Pena-Rodriguez v. Colorado, a former police officer on the jury made repeated statements during deliberations that he believed the defendant had committed sexual harassment of two teen girls because “Mexican men take whatever they want,” and are “physically controlling of women.” The Colorado Supreme Court rejected a new trial because statements made by jurors could not be used to challenge a guilty verdict.
An evenly divided court would uphold the Colorado Supreme Court’s decision, allowing jurors to make racist statements with impunity in many states. Like the racist expert witness in Buck v. Davis, racist jurors undermine the promise of a fair trial. Without action, overt racism could become more common in America’s jury rooms, especially in the post-Trump era.
Oral arguments are scheduled for Oct. 11.
Other cases to watch for
Lynch v. Morales-Santana: At issue is whether naturalization law can treat children born abroad of citizen fathers differently from those of citizen mothers. Oral arguments are scheduled for Nov. 9.
Bank of America Corp. v. City of Miami and Wells Fargo & Co. v. City of Miami: The Supreme Court will decide if the City of Miami can sue banks for predatory home loans made in violation of the Fair Housing Act. Oral arguments are scheduled for Nov. 8.
Fry v. Napoleon Community Schools: The Supreme Court will decide if a child with cerebral palsy can sue her school district for refusing to let her bring her service dog to school, in violation of the Americans with Disabilities Act. Oral arguments are scheduled for Oct. 31.
Charles Paul Hoffman writes about comics, pop culture, and the law. He enjoys talking about Michel Foucault and how culture constructs societal norms.