This Term at the Supreme Court—What Remains?

June marks the home stretch for the Supreme Court, the closing month of the annual term that began the previous October. No more cases are to be argued. From now until the Court finishes its work for the year, the justices convene the Court at least once a week (more as the end gets closer) to reveal cases they will be hearing next term and to announce the decisions from cases heard this term. We know the cases the Court still has left to decide; from here until the Court wraps up its business for the term we’re playing a process of elimination game.

Here are some of the major cases from this term still left to be decided:

Same-Sex Marriage (Obergefell v. Hodges). This is the big one. Will the Court use this case to declare state prohibitions on same-sex marriage a violation of the Constitution? Most observers believe the time is right for the Court to issue what will immediately become a landmark decision. Yet even assuming this is the likely outcome, questions remain: On which side will Chief Justice Roberts be? Will Justice Kennedy have the opportunity to continue his streak of writing the Court’s major gay rights opinions? What will be the legal reasoning the Court uses in justifying the ruling? How will the dissenters present a position that they surely know will not go down well in the history books?

Health Care (King v. Burwell). Although the same-sex marriage case has attracted more of the public’s attention, the challenge to the Affordable Care Act might be even more consequential. If a majority of the justices agree with the challenger’s reading of the law, the health care coverage for millions of people would be affected. Anyone living in a state that has not created its own health care “exchange,” and has instead allowed the federal government to run the exchange, would no longer be eligible for federal subsidies. The legal issue in the case is narrow and technical—it comes down to the proper way to interpret a handful of words in a law that is thousands of pages long—but its consequences are monumental.

Housing & Racial Discrimination (Texas Dept. of Housing & Community Affairs v. Inclusive Communities Project). The Court has long held that the Constitution’s Equal Protection Clause does not prohibit racially neutral policies that have racially disparate effects. But certain federal civil rights laws can be used to challenge these kinds of policies as racially discriminatory. Among these is the Fair Housing Act of 1968, which prohibits racial discrimination in the renting and selling of property. Now the Court is reconsidering whether the FHA should be read to prohibit race neutral policies that have racially disparate effects. This would, in effect, align the federal law with the narrower constitutional standard, a change that some of the conservatives on the Court have been openly advocating. Such a ruling would substantially limit the kinds of policies that could be challenged as violating the FHA.

Lethal Injections (Glossip v. Gross). The Court is considering a challenge to the three-drug lethal injection protocol Oklahoma uses for its executions. Challengers argue that the procedure violates the ban on “cruel and unusual punishments” found in the Eighth Amendment of the U.S. Constitution. Oklahoma was forced to abandon it previous lethal injection protocol, which the Court upheld in 2008, because the manufacturer of one of the drugs used in that protocol, under pressure from death penalty opponents, refused to allow its product to be used in executions. (At oral argument, Justice Alito described this as the product of a “guerrilla war against the death penalty.”) As a result, Oklahoma adopted a new procedure, which critics say causes unnecessary suffering.

Raisin Farmers & Property Rights (Horne v. U.S. Department of Agriculture). The court will decide whether it is a “taking” of private property for a government-created committee of raisin farmers to seize as much as one-third of a raisin farmer’s annual crop, thereby removing the product from the market in order to prop up prices. The challengers seek to undo one of the last New Deal-era farm programs designed to allow farmers to pool their resources in order to combat market fluctuations. If the required seizure of raisins is held to be a taking, then the government is responsible for ensuring that the farmer receives just compensation. The government argues that the program is a regulatory measure, not a taking, and thus does not require compensation.

Politics & Redistricting (Arizona State Legislature v. Arizona Independent Redistricting Commission). In an effort to limit partisan wrangling over the drawing of congressional district lines, the voters of Arizona approved a referendum giving an independent commission control over redistricting. Members of the state legislature have challenged the independent commission, arguing that the Constitution gives the state legislature authority over congressional redistricting. The challengers point to the “Elections Clause” (Article I, Section 4), which reads: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” The legal question the justices face is whether the “legislature” referenced in this constitutional provision can be understood to include the people of a state when they act to delegate control of this issue to an independent commission, or whether it gives exclusive control of the issue to the state assembly. 

License plates and Confederate flags (Walker v. Texas Division, Sons of Confederate Veterans). The question before the Court is whether state-issued specialty license plates should be treated as the speech of the state or its motorists. The Texas Department of Motor Vehicles refused to issue a specialty license plate to the Sons of Confederate Veterans, citing its authority to “refuse to create a new specialty license plate if the design might be offensive to any member of the public.” (The proposed design included a confederate flag.) If the license plate is considered a form of state speech, then the government has considerable latitude under the 1st Amendment in choosing the content of its own speech. If the license plate is considered a form of individual speech, then the First Amendment places strict limits on government regulation of the content of that speech.

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