Jul 03, 2017
June Meeting Recap
Professor Rory Little Presents 2017 Supreme Court Year in Review
Jul 03, 2017
By Dotty LeMieux
“There hasn’t been a lower output for the U.S. Supreme Court since 1865,” Hastings Law Professor Rory Little told the sold-out crowd at the annual Supreme Court review membership luncheon on June 28. So began a lively look at the recently-ended term of a Supreme Court that spent much of that term with only eight justices, since the death of Justice Antonin Scalia in February of 2016, until Justice Gorsuch joined the court in April. The scant number of cases that reached decision amounted to roughly seven cases per justice, joked Professor Little, “I bet some judges here are envious of that caseload.”
Because of the absence of Scalia’s conservative vote, the court issued narrowly-tailored “for this case only” decisions in many of its cases to avoid a four-four deadlock. It scheduled re-argument for two cases in the next term, both involving immigration. One, Jennings v. Rodriguez, which Professor Little called a “big case,” involves the length of time an immigrant may be detained without bond. The other, Sessions v. Dimaya, concerns whether the phrase “crime of violence,” which triggers automatic deportation, is unconstitutionally vague. The addition of Neil Gorsuch to the court could make a big difference in these cases. As conservative as Justice Scalia was, says Little, he had a strong libertarian streak and often ruled with the “liberal” wing in criminal cases. In the cases he has participated in so far, Gorsuch has voted with the most conservative member of the court—Clarence Thomas.
The biggest news of the year had to be the granting of review in the “travel ban” case. For now, the stay has been lifted with ambiguous language allowing those with “a credible claim of a bona fide relationship with a person or entity in the United States” to enter, a standard already causing confusion among refugee organizations. Professor Little noted that the timelines in the travel ban will have expired before the case is heard next fall and he speculated that it is possible the Court may not actually reach a decision.
Zigler v. Abbasi, another big case, involved qualified immunity for Federal agents accused of violating the rights of immigrants held in detention after 9/11. An opinion by Justice Kennedy denied almost all of the detainee’s avenues for Bivens damages against the agents, finding that “special factors” weighed against extending Bivens. Another immigration case, Hernandez v. Mesa, involving a cross-border shooting by a border patrol agent, also involved Bivens damages and the Court avoided deciding other constitutional issues in the case by sending the case back to a lower court to consider the Bivens claim in light of Zigler.
Other cases involved issues of race and same-sex marriage. The race cases included racial gerrymandering (North Carolina v. Covington, Gill v. Whitford), striking down districts for using race as the dominant factor; racial bias in jury deliberations (Pena-Rodriguez v. Colorado), opening up jury verdicts to challenge for the first time ever on the basis of what actually transpired in the jury room; and racial testimony in capital cases (Buck v. Davis), holding that the way race was mentioned at Buck’s trial caused sufficient prejudice to vacate the death penalty. In Pavan v. Smith, in a per curiam opinion, the court reversed an Arkansas law that prohibited listing a same-sex spouse on a child’s birth certificate. And the court granted certiorari in Masterpiece Cakeshop v. Colorado, a case involving a baker who refused to bake a cake for a same-sex wedding. That case promises to be one of the blockbuster cases next term.
Professor Little discussed speculation that Justice Kennedy might retire this year, concluding he probably has no such plans but “enjoys the buzz.” But he noted that Clarence Thomas doesn’t particularly like the job and may retire while a conservative occupies the oval office, thereby paving the way for another Trump appointment. In response to a question, Professor Little noted that like Neil Gorsuch, any new Justice appointed by Trump is likely to come from the list put together by the conservative Federalist Society.