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On Monday, September 26, the Supreme Court met for the Long Conference, preceding the official start of the October 2016 Term on October 4. In addition to the 31 already granted cases for the term, the Court granted writs of certiorari for eight more cases from the Long Conference. Of these, Nelson v. Colorado and Lee v. Tam are particularly noteworthy.
Nelson considers a Colorado statute requiring defendants who have their convictions reversed to provide additional clear and convincing evidence of their innocence in order to recover any monetary penalties from their conviction. The question for the Court is whether this policy violates the defendant’s due process rights.
Lee centers on an Asian-American band called “The Slants,” founded by defendant Tam. The band’s name is Tam’s attempt to “reclaim the name” and “divorce The Slants of the slur.” (Read more about the history of The Slants and Tam’s fight against Asian stereotypes, here.) The case itself focuses on the Lanham Act, a section of the U.S. Code, stating a trademark cannot be used as grounds for refusal unless it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” The Court will determine if this provision violates the Free Speech Clause of the First Amendment. Interestingly, the owners of the Washington Redskins filed an amicus brief on June 10, 2016, because the U.S. Patent Trade Office relied on the Lanham Act when it rescinded the Redskins’ patent registrations due to their disparaging nature towards Native Americans.
Greg Stohr of Bloomberg attributes the number and types of cases selected for the October docket to the vacancy left by Justice Antonin Scalia. He argues that the uncertain impact of the upcoming presidential election on the Court has made the justices hesitant to take on particularly divisive issues.
Linda Greenhouse of the New York Times describes the character of the post-Scalia Court by recounting the Court’s recent denial of North Carolina’s emergency request to reinstate discriminatory voter ID provisions that a federal appeals court struck down this summer. “Would it be unseemly to suggest that only Justice Scalia’s death has preserved democracy in North Carolina?” she asks.
October 4 kicks off the October 2016 Term! Come back next Friday for our Weekly Roundup of the first week of the Term.