“The liberties of none are safe unless the liberties of all are protected.” — Justice William O. Douglas
“More important than your obligation to follow your conscience, or at least prior to it, is your obligation to form your conscience correctly.” — Justice Antonin Scalia
The 2019-2020 term of the Supreme Court of the United States is underway. Oral arguments have already been held in several cases, and the first few, mostly unanimous, decisions will be begin to trickle out soon. The most difficult cases will be heard and decided late in the term, with the final decisions coming in the last weeks of June. As has been a tradition for the full 15 years this column has appeared in the Gazette, it’s time to take a brief look at some of the more momentous cases that the High Court will hear this term.
• Kahler v. Kansas was argued on October 7th. It asks whether individual states can choose to eliminate the insanity defense, or whether the 8th Amendment, applied to the states through the 14th Amendment, requires such a defense by way of its language prohibiting ‘cruel and unusual punishment.’ This will likely be one of the first cases decided by the Court this term, and if last year’s decisions are any guide, is a case in which it is quite possible that Justice Gorsuch could join Justices Ginsburg, Sotomayor, Breyer and Kagan.
• Bostock v. Clayton County, Georgia was argued on October 8th. It asks whether the word ‘sex’ in the Civil Rights Act of 1964 prohibits discrimination against an employee because of sexual orientation. The retirement of Justice Kennedy weighs heavily in this case. Look for the Court’s originalists to conclude that Congress is free to prohibit such discrimination, but did not intend the law to mean that in 1964, pushing the Chief Justice into a decisive vote.
• Kansas v. Glover will be argued on November 4th. It asks whether it is reasonable for a police officer to assume that a person who is driving a car during a traffic stop is the owner of the car, unless the officer has information to the contrary. The issue seems narrow, but could have major implications for vehicle searches, warrant arrests and several other criminal law issues.
• Trump v. NAACP, to be argued on November 12th, asks whether the Department of Homeland Security may lawfully end the DACA program, and whether the federal court system even has jurisdiction to review the action. This is simultaneously a question of whether DACA is lawful, and whether these plaintiffs have ‘standing’ — a right to bring the action because it personally affects them. Four Justices had to vote to accept review of the case, but five could still ‘punt,’ and find that they shouldn’t hear the matter at all. Dissenting opinions are likely to be lengthy in this case whichever way it is decided.
• New York State Rifle & Pistol Association Inc. v. City of New York, New York will be argued in early December and pits the 2nd Amendment against local regulatory control in what may well be a landmark 2nd Amendment decision.
• June Medical Services LLC v. Gee, not yet set for argument, asks whether it is proper for a state to require that a doctor performing abortions have admitting privileges at a local hospital. Proponents of the law argue that it is necessary to protect the health of the mother should complications arise. Opponents argue that it is a pretext to limit abortion access. The Court will likely set an oral argument date after the new year, and decide this case very late in the term.
• Opati v. Republic of Sudan, also without a set argument date, asks whether federal law permitting plaintiffs to recover against foreign nations for state-sponsored terrorism can be applied retroactively, such that the plaintiff in this case may sue the nation of Sudan to recover damages for the 1998 bombing of the U.S. embassies in Kenya and Tanzania.
There are 60 cases set before the Court in all, and others may be added before the term ends. Those cases cover many other very important issues, but are simply too numerous to detail in this limited space.
There are a number of great websites to find summaries, analysis, and copies of filed briefs in cases. Among them are www.scotusblog.com, and www.oyez.org. The latter site also has an excellent database of audio recordings of oral arguments in past cases.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas.