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Law Office Management

Oct. 2, 2014

Big Issues Loom at the U.S. Supreme Court

Cases on the upcoming SCOTUS docket, and those sure to be added, promise another pivotal term.

Writing a preview of the upcoming term at the U.S. Supreme Court is a challenge when the high court has not yet acted on certiorari petitions in the most interesting and controversial cases. But between now and January, the justices are likely to grant review in cases involving the most divisive legal issues in society: abortion, affirmative action, the Affordable Care Act, and marriage equality for gays and lesbians. And once cert is granted, the ultimate decisions will issue by the end of June 2015.

Coming Attractions
Among the cases headed to the Court are a pair of Fifth Circuit decisions - one that upheld a Texas statute, and another that struck down a law in Mississippi - that greatly restricted abortions by requiring doctors who perform the procedure at clinics to have admitting privileges at local hospitals. (Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 748 F.3d 583 (5th Cir. 2014); Jackson Women's Health Org. v. Currier, 2014 WL 3730467 (5th Cir.).)

Indeed, the Fifth Circuit has been busy. It also upheld a University of Texas affirmative action plan in a case that was remanded from the Supreme Court. (Fisher v. Univ. of Texas, 2014 WL 3442449 (5th Cir.).)

As to the Affordable Care Act, a single day in July produced two conflicting decisions. The D.C. Circuit rejected, and the Fourth Circuit approved, an I.R.S. interpretation of the statute that is crucial to its implementation - allowing tax credits for those who buy insurance on exchanges created by the federal government. (Halbig v. Burwell, 2014 WL 3579745 (D.C. Cir.); King v. Burwell, 2014 WL 3582800 (4th Cir.).)

And marriage equality is likely to be on the Court's docket again as the Fourth Circuit struck down the Virginia law and the Tenth Circuit invalidated the Utah and Oklahoma laws prohibiting same-sex marriage. (Bostic v. Rainey, 2014 WL 3702493 (4th Cir.); Kitchen v. Herbert, 2014 WL 2868044 (10th Cir.); Bishop v. Smith, 2014 WL 3537847 (10th Cir.).)

It seems likely that at least some, if not all, of these cases will be added to the docket, joining a number of important cases in which review already has been granted.

In the Hopper
Fourth Amendment. In the area of search and seizure, the Court will consider whether a police officer's legal error can provide the individualized suspicion that the Fourth Amendment requires for a traffic stop. (Heien v. North Carolina, 366 N.C. 271 (2012), cert. granted, 134 S.Ct. 1872 (2014).) In Heien, the police stopped Maynor Javier Vasquez because one of the brake lights on his vehicle was not working. The officer mistakenly believed that under North Carolina law a car must have two working brake lights. The car was searched, and drugs were found. The issue is whether the search was constitutional in light of the fact that it followed a stop based on the police officer's mistaken understanding of the law.

Freedom of speech. The Supreme Court has long held that the First Amendment does not protect "true threats." But the Court has never developed a standard for determining what constitutes a true threat, an issue that comes up with increasing frequency because of the Internet and social media. But this term, the Court will consider whether a conviction for threatening another person requires proof of the defendant's subjective intent to threaten, or whether it is enough to show that a reasonable person would regard the statement as threatening. (Elonis v. United States, 730 F.3d 321 (3d Cir. 2013), cert. granted, 134 S.Ct. 2819 (2014).)

In this case, after Anthony Elonis's wife and two children moved out of their home, she obtained a protective order from a Pennsylvania state court in response to his threatening and abusive posts on Facebook. In the days and weeks that followed, Elonis's posts became even more venomous and explicit. Subsequently, Elonis posted threats to employees of his former workplace, FBI agents, and even a local kindergarten class. He was convicted of violating a federal law (18 U.S.C. § 875(c)) that makes it a crime to "transmit in interstate commerce communications containing a threat to injure another person." The Third Circuit held that Elonis's speech was not protected by the First Amendment because a reasonable person would regard it as a threat.

Federal courts. The Court will again face a question of enormous importance to the federal courts that it ducked last year: If the parties consent, may a bankruptcy court issue a final judgment as to a state law claim? (Wellness Intern. Network Ltd. v. Sharif, 376 F.3d 720 (7th Cir. 1013), cert. granted, 134 S.Ct. 2901 (2014).) Three years ago in Stern v. Marshall (131 S.Ct. 2594 (2011)), the Court held that bankruptcy courts cannot issue final judgments over state law claims. The various circuits have split, though, as to whether consent can cure this.

The issue was briefed and argued last year (see Executive Benefits Ins. Agency v. Arkison, 134 S.Ct. 2165 (2014)). But the Court avoided the question by holding that because there had been de novo review in the federal district court, a bankruptcy court could decide the state law claim. At the end of the term, the Court granted review in Wellness, which poses the same issue. Its ultimate ruling will be significant for bankruptcy judges, magistrate judges, and the workload of federal district courts.

Pregnancy discrimination. The Court will consider whether an employer violates the federal Pregnancy Discrimination Act when it provides accommodations to non-pregnant employees who have physical work limitations, but refuses to make the same accommodations for pregnant employees. (Young v. United Parcel Service, 707 F.3d 437 (4th Cir. 2013), cert. granted, 134 S.Ct. 2898 (2014).) United Parcel Service offers light work duty (no lifting of heavy packages) to employees who are injured on the job or who suffer from a permanent injury recognized under the Americans with Disabilities Act - but not to pregnant women who need it. The issue is whether this is pregnancy discrimination in violation of federal law.

Religion. In Holt v. Hobbs (509 Fed. Appx. 561 (2013), cert. granted, 134 S.Ct. 1512 (2014)), the Court will decide whether an Arkansas Department of Corrections grooming policy prohibiting a prisoner from growing a half-inch beard in accord with his religious beliefs violates the federal Religious Land Use and Institutionalized Persons Act.

Separation of powers. The question "Where were you born?" would seem unlikely to provoke a high court argument, but it's part of a dispute over the territorial status of Jerusalem. The Court will consider whether Congress impermissibly intruded upon executive powers by enacting a law that directs the Secretary of State, upon request, to record Israel as the birthplace of an American citizen born in Jerusalem. The Obama administration claims that such a directive oversteps the executive prerogative to conduct diplomatic relations, noting that it had decided against trying to resolve the highly contested issue of whether Jerusalem is part of Israel. The D.C. Circuit declared the statute unconstitutional. (Zivotofsky v. Kerry, 725 F.3d 197 (D.C. Cir. 2013), cert. granted, 134 S.Ct. 1873 (2014).)

Voting. The Court will return to the issue of when the government may use race in drawing election districts. (See Alabama Legislative Black Caucus v. Alabama, 989 F. Supp. 2d 1227 (M.D. Ala. 2013), cert. granted, 134 S.Ct. 2695, 2697 (2014).) The plaintiffs in these consolidated cases argued below that Alabama "packed" minority voters into districts where they already had political control, thus reducing their chance of having influence elsewhere in the state. The question is whether this denied minority voters equal protection.

Traditionally, the Court sets half the docket for the coming year before it adjourns in June and grants certiorari in the remaining cases between September and January. With all the cases that have been granted and all that are fast approaching those marble steps on First Street, it promises to be another big year at the Supreme Court.

Erwin Chemerinsky is the dean and a professor at the UC Irvine School of Law. Fawn Bekam and James Miller provided excellent research assistance.

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Kari Santos

Daily Journal Staff Writer

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