Eight jus­tices be­gin term with low-pro­file cases on cal­en­dar

The Washington Times Weekly - - National - BY ALEX SWOYER

The list of cases pend­ing on the Supreme Court’s cal­en­dar this year lacks block­busters, but court watch­ers say they are hope­ful some of the big ones are added be­fore the end of the term.

The jus­tices con­vened their 2018-2019 ses­sion last week with far more drama over who will be the ninth mem­ber of the court than over the cases on the sched­ule.

Oc­to­ber’s cases in­clude a fight over prop­erty rights, whether a death row in­mate can be ex­e­cuted if he can’t re­mem­ber com­mit­ting the crime af­ter a stroke, and the ex­tent of the En­dan­gered Species Act and un­oc­cu­pied pri­vate land.

All sides are hop­ing the court will be ready to ac­cept some of the more con­se­quen­tial is­sues per­co­lat­ing in the lower ap­peals courts once a ninth jus­tice is con­firmed.

Op­tions in­clude gay rights in the work­place, trans­gen­der rights in the mil­i­tary, the le­gal­ity of Pres­i­dent Obama’s De­ferred Ac­tion for Child­hood Ar­rivals de­por­ta­tion amnesty and Pres­i­dent Trump’s at­tempted phase­out of the pro­gram, the draw­ing of con­gres­sional dis­tricts ahead of the 2020 cen­sus, and abor­tion rights for il­le­gal im­mi­grant teens.

“The real key to the com­ing term is what is in the pipe­line,” said Noel Fran­cisco, the so­lic­i­tor gen­eral.

The court could be suf­fer­ing a hang­over from its term that ended in June. Mr. Fran­cisco called it the most con­se­quen­tial term in years, with de­ci­sions up­end­ing 40 years of prece­dent on manda­tory union dues, le­gal­iz­ing sports gam­bling across the na­tion and up­hold­ing Pres­i­dent Trump’s travel ban.

The term also ended with Jus­tice An­thony M. Kennedy’s re­tire­ment af­ter three decades.

Jus­tice Kennedy was con­sid­ered a swing vote on cases in­volv­ing how con­gres­sional district lines are drawn in states and how much of a role pol­i­tics can play.

The court last year sent sev­eral such cases back to lower courts for more de­vel­op­ment. One of those could soon be back. “A big one to watch is a North Carolina case that could bring the ques­tion of the con­sti­tu­tion­al­ity of par­ti­san ger­ry­man­der­ing back to the court,” said Bri­anne Gorod, chief coun­sel at the Con­sti­tu­tional Ac­count­abil­ity Cen­ter.

An­other case work­ing its way through lower courts in­volves whether Ti­tle VII of the Civil Rights Act pro­tects gay em­ploy­ees from work­place dis­crim­i­na­tion.

Lower courts have tra­di­tion­ally ruled that gay rights aren’t part of sex dis­crim­i­na­tion as en­vi­sioned in the law, but a hand­ful of ap­peals courts have ruled that the law does in fact cover LGBT claims from em­ploy­ees who say they were fired be­cause of their sex­ual ori­en­ta­tion.

Pres­i­den­tial pow­ers could be tested as the Trump ad­min­is­tra­tion, Repub­li­can-led states and im­mi­grant rights ad­vo­cates bat­tle over Mr. Obama’s 2012 DACA pol­icy grant­ing ten­ta­tive le­gal sta­tus to il­le­gal im­mi­grant “Dream­ers,” and Mr. Trump’s de­ci­sion last year to phase out the pro­gram.

One district judge has ruled the orig­i­nal Obama-era DACA il­le­gal, but sev­eral other courts have ruled Mr. Trump’s at­tempt to phase out DACA as il­le­gal.

That has left a le­gal mine­field that is be­ing de­bated in sev­eral ap­peals courts and could reach the jus­tices.

The Trump ad­min­is­tra­tion is also fac­ing a le­gal bat­tle in the U.S. Cir­cuit Court of Ap­peals for the District of Co­lum­bia over whether the fed­eral gov­ern­ment must fa­cil­i­tate abor­tion ser­vices to il­le­gal im­mi­grant mi­nors.

None of th­ese cases is guar­an­teed for this Supreme Court term.

One case the jus­tices have agreed to hear is that of a Penn­syl­va­nia woman whose 90-acre farm might hold a cen­turies-old ceme­tery. Rose Mary Knick claims a Scott Town­ship law giv­ing the pub­lic some ac­cess to ceme­ter­ies is an abuse of her pri­vate prop­erty rights.

She brought her bat­tle to state court, ar­gu­ing that Scott Town­ship can’t take her prop­erty with­out just com­pen­sa­tion, but the court dis­missed her case be­cause she hadn’t been fined.

Ms. Knick ar­gues that she should be able to take her case to fed­eral court with­out hav­ing to wait for a state court to hear her prop­erty chal­lenge against the lo­cal gov­ern­ment.

Ilya Shapiro, a se­nior fel­low at the Cato In­sti­tute, said the case will go a long way to­ward telling fu­ture plain­tiffs where to fight their prop­erty cases.

“This is un­usual be­cause no other con­sti­tu­tional right works this way,” he said, adding that Sec­ond Amend­ment chal­lenges go straight to fed­eral court.

Crim­i­nal de­fense cases al­ways loom large on the court’s docket, and one for this term in­volves a man who has served his sen­tence for a heroin-deal­ing con­vic­tion but is chal­leng­ing the state’s at­tempt to for­feit his Land Rover.

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