The Supreme Court heard this term’s final day of oral arguments on Wednesday, a day that included a truly ghoulish debate over how states can execute death row inmates. By the first days of July, the justices will depart for their summer vacations. In the weeks in between, they could gut much of the nation’s civil rights law. They could cast many states’ election law into chaos. They could inflame our relations in the Middle East. And they could sentence thousands of Americans to die preventable deaths every year.
Here are major cases the justices are expected to decide by the end of June:
Race Discrimination And Housing
Probably the most undercovered major case this term is Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, a case that could hobble the nation’s ability to combat housing discrimination.
Such discrimination is often very difficult to root out, which is why it persists in the housing sector. A study on behalf of the Department of Housing and Urban Development, for example, found that black and Asian homeseekers are shown or told about 15 to 19 percent fewer homes than whites who have similar credit or housing interests. Similarly, the Federal Reserve determined in 2009 that African Americans are twice as likely as white borrowers to be denied a home loan even when controlling for income and similar criteria. Yet discrimination persists in part because it is difficult to prove in court — banks typically do not produce smoking gun documents announcing that they prefer not to lend money to black people, for example.
Probably the most undercovered major case this term . . . could hobble the nation’s ability to combat housing discrimination.
To overcome this difficulty, the law permits what are known as “disparate impact” discrimination suits, which allow a plaintiff to prove discrimination based on statistical evidence indicating that a particular institution engages in discriminatory practices. If a bank gives the average black borrower significantly worse mortgage terms than similarly situated white borrowers, for example, that can be grist for a disparate impact suit.
Except that the Supreme Court could eliminate these suits under the Fair Housing Act in Inclusive Communities Project. The federal appeals courts that have considered this issue have unanimously agreed that disparate impact suits are permissible, so that the fact that the justices decided to hear this case at all is a bad sign for civil rights law, as there is little reason for them to take the case unless they were looking to change this consensus.
Health Care For Millions
A victory for the plaintiffs in King v. Burwell would be the legal equivalent of detonating a nuclear bomb in the middle of America’s health care system. The American Public Health Association estimates that “over 9,800 additional Americans” will die who otherwise would have lived if the justices side with the plaintiffs in King. Even relatively optimistic studies find that over 8 million Americans will lose health insurance if the plaintiffs win. In the more pessimistic scenarios, a victory for the King plaintiffs sets off a “death spiral” that collapses the individual insurance market in many states.
King asks the justices to read six words of the Affordable Care Act — “an Exchange established by the State” — out of context in a way that would cut off tax credits that enable millions of Americans to afford their health insurance. Their reading of the law ignores the fact that the word “Exchange” is defined elsewhere in the law such that any Exchange, whether operated by a state or by the federal government, “shall be a governmental agency or nonprofit entity that is established by a State.” Thus, the case ultimately boils down to whether nine justices, all of whom have Ivy League law degrees, are capable of reading more than one sentence.
At oral argument, at least two justices — — Justices Antonin Scalia and Samuel Alito — seemed convinced that reading just one sentence is enough when it comes to Obamacare. Fortunately for the thousand of Americans who will die if Scalia and Alito’s apparent reading of the law prevails, Justice Anthony Kennedy, one of the Court’s five Republicans, expressed concerns that the plaintiffs’ reading of the Affordable Care Act would unconstitutionally coerce the states by threatening to destroy much of their insurance market unless the states comply with a federal demand. Thus, Kennedy suggested, the law should be read in a way that avoids this constitutional problem.
Arizona’s congressional districts are drawn by an independent commission — a fact that prevented the state’s Republican-controlled legislature from gerrymandering the state during the last redistricting cycle. This led that legislature to file a lawsuit, known as Arizona State Legislature v. Arizona Independent Redistricting Commission, which seeks to declare this commission unconstitutional.
The case hinges upon a provision of the Constitution which provides that “[t]he times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof.” As the commission was created by a state ballot initiative, the state lawmakers behind this suit claim that, when the Constitution uses the word “Legislature,” it refers exclusively to the state’s representative bodies. The Commission, citing Supreme Court precedents that support this reading, claim that this word is used more broadly to refer to “the power that makes the laws.”
Should this lawsuit succeed in invalidating the Commission, it could throw many state’s election law regimes into chaos.
Should this lawsuit succeed in invalidating the Commission, it could throw many state’s election law regimes into chaos. As Justice Elena Kagan noted at oral argument, there are “zillions” of state election laws that were enacted by a ballot initiative, including “the 2011 law in Mississippi adopting voter ID requirements” a 2007 Oregon law adopting “voting by mail” and a 1962 Arkansas law involving the “use of voting machines.” If the Supreme Court strikes down this Commission, it could effectively force states to go through their election law, crossing out random lines that happened to be enacted through a process that was considered entirely constitutional for decades.
The Supreme Court’s “true threat” doctrine is one of the most incoherent areas of First Amendment law. In 2003, the Court explained that true threats — that is, threatening statements that constitutionally may be prosecuted — “encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Since then, however, lower courts have struggled to apply this vague standard to actual cases. One question, that is now before the Court in Elonis v. United States, is whether prosecutors wishing to convict someone for threatening statements must prove “the defendant’s subjective intent to threaten” or whether it is sufficient to “show that a ‘reasonable person’ would regard the statement as threatening.”
There are weighty interests on both sides of this question. On the one hand, as anyone who has experienced online harassment can testify, it rapidly escalates to rape threats and other deeply disturbing threats of violence that feel very real to the victim even if the person making the threat has no intention of actually committing an act of physical violence. Anthony Elonis, the party in the case before the Court, made truly horrific statements directed towards his ex-wife. Posting under the pseudonym “Tone Dougie,” Elonis composed threats in the form of rap lyrics such as “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”
On the other hand, violence is a common theme in American art and literature. Elonis himself claims that he is “just an aspiring rapper who likes the attention,” and, during oral argument, Chief Justice John Roberts quoted lyrics from the hip-hop artist Eminem which also could be read as the rapper threatening his ex-wife. A too-restrictive legal standard could potentially criminalize legitimate works of art by potentially subjecting musicians and writers who incorporate violence language into their works to criminal prosecution.
Confederate Flag License Plates
Walker v. Texas Division, Sons of Confederate Veterans is another genuinely difficult First Amendment case. Texas permits outside groups to submit license plate designs that they would like to display on their official state-issued plate, and the state has historically been quite permissive in approving these plate designs. Nevertheless, the state denied a proposed design by the Sons of Confederate Veterans (SCV), who wanted to display plates that incorporate the Confederate battle flag.
As a general rule, states may not engage in viewpoint discrimination, so if Texas attempted to ban pro-Confederate displays erected by private citizens using private resources, that would be unconstitutional. States, however, are allowed to express their own viewpoint without having to give equal time to the opposite view — that is why the government could fund a campaign urging children to “just say no” to drugs without also having to fund a counter-campaign urging the same kids to get high. The most difficult issue presented by Walker is whether state-issued license plates that private citizens have historically had a great deal of leeway to design constitute private speech or government speech.
If the Court holds that Texas must allow the SCV to display a symbol of a traitorous regime that waged war against its own country in defense of slavery, the state warns that other offensive plates will proliferate. “A State is fully within its rights to exclude swastikas, sacrilege, and overt racism from state-issued license plates that bear the State’s name and imprimatur,” Texas argues in its brief, adding that a “State that issues ‘Fight Terrorism’ specialty plates is not required to offer specialty plates with messages that praise al Qaeda.”
At the same time, however, offensive speech is exactly the kind of speech that the First Amendment is supposed to protect, as the kind of speech that does not offend typically does not get censored. The Court has historically been very protective even of the most offensive speakers. Four years ago, for example, the Supreme Court sided with Westboro Baptist Church, the anti-gay congregation that protested a fallen marine’s funeral with signs reading “Thank God for Dead Soldiers,” “Don’t Pray for the USA,” and “God Hates Fags.”
On the surface, very little is at stake in Zivotofsky v. Kerry. Menachem Binyamin Zivotofsky is an American citizens who was born in the city of Jerusalem. Currently, his passport identifies that city as his place of birth. His parents are now suing because they want the passport to say that he was born in “Israel.”
Yet this battle over a single word is part of a much larger proxy war over who controls American foreign policy and whether the United States should take sides in a simmering Middle East conflict. Every president since Truman, who was in office when the State of Israel was formed, has maintained a policy of neutrality over whether Jerusalem is part of Israel or some other nation. As the George W. Bush administration explained this policy, “[a]ny unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise the ability of the United States to work with Israelis, Palestinians and others in the region to further the peace process.”
In 2002, however, Congress enacted a law providing that U.S. citizens born in Jerusalem may be issued a passport listing “Israel” as their birthplace. This provision was enacted under the heading “UNITED STATES POLICY WITH RESPECT TO JERUSALEM AS THE CAPITAL OF ISRAEL,” and is widely viewed as an attempt to undermine the executive branch’s longstanding policy.
Justice Antonin Scalia outright dismissed concerns that a decision in the Zivotoskys’ favor could inflame relations in the Middle East, asking “what difference does it make whether it antagonizes foreign countries?”
A federal appeals court resolved this case in the executive’s favor, quoting Supreme Court decisions providing that the president is the “sole organ of the nation in its external relations, and its sole representative with foreign nations,” and that if “the executive branch . . . assume[s] a fact in regard to the sovereignty of any island or country, it is conclusive on the judicial department.” At oral arguments, however, most of the Court’s Republican members seemed inclined to side with the Zivotofskys. At one point, Justice Antonin Scalia outright dismissed concerns that a decision in the Zivotoskys’ favor could inflame relations in the Middle East, asking “what difference does it make whether it antagonizes foreign countries?”
The oral argument in Glossip v. Gross was one of the most morbid spectacles that has occurred at the Supreme Court in a long time. Oklahoma wants to execute three inmates using a three-drug execution protocol that begins with the drug midazolam. Attorneys for the inmates argue that midazolam, which is supposedly used to ensure that the inmates do not suffer excruciating pain during their executions, does not sufficiently dull this pain in order to comply with the Constitution’s prohibition on cruel and unusual punishment. If the inmates win, Oklahoma will still be able to proceed with their executions, it will just need to use a different method.
The oral argument, however, rapidly degenerated into a debate between liberal justices — led by Justice Elena Kagan, who suggested that a state cannot use a method of executing inmates if they are unsure whether those inmates will experience unconstitutional pain — and conservative justices, led by Chief Justice John Roberts and Justice Samuel Alito, who suggested that the paramount concern in this case was making sure that people sentenced to die are killed. At one point, Alito accused death penalty opponents of waging a “guerrilla war against the death penalty” by seeking to make various potential methods of executing inmates unavailable.
If the inmates prevail, once again, the only consequence will be that they will have to be executed in some other way — and the state has already passed a law enabling them to be asphyxiated by nitrogen gas. If Oklahoma prevails, however — and this outcome seems likely given the questions asked by swing-Justice Anthony Kennedy at oral arguments — the Court could do serious violence to the rule prohibiting death row inmates from experiencing intense pain during their executions.
Finally, in one of the most closely watched cases of the term, the Supreme Court is expected to decide in Obergefell v. Hodges whether the Constitution forbids anti-gay marriage discrimination. Though nothing is certain, the questions asked at oral arguments suggest that equality is likely to prevail, but only by a 5–4 vote.