WASHINGTON – Same-sex wedding cakes are on the menu at the Supreme Court. Again.
So are partisan election maps. And naughty trademarks. And an abortion restriction the high court struck down three years ago.
Some cases at the nation’s highest court are destined for the history books. But it often can take more than one draft to get there. This term, the justices seem to have a lot of repeat offenders.
“There are so many different reasons why the same issue and the same cases will recur in the Supreme Court,” says Erwin Chemerinsky, dean of the University of California-Berkeley School of Law, who argued a case in January that the justices first considered in 2003, then in 2016.
“Important constitutional questions aren’t going to be resolved in a single case,” Chemerinsky says. “And there are some legal issues that come up over and over again in the lower courts.”
Demonstrators were outside the Supreme Court in December 2017 as a Colorado baker fought for the right to boycott a gay wedding. He won, but an almost identical case from Oregon is pending before the justices. (Photo: SHAWN THEW, EPA-EFE)
Whatever the reasons, the justices would be excused for feeling like Bill Murray’s character, forced to live the same day over and over, in the 1993 film Groundhog Day.
In February, they blocked the execution of the same Texas prisoner they had spared two years earlier. In March, they bailed out an Alaska moose hunter whose use of a hovercraft first came before them in 2016.
And on Monday, they finally resolved the decades-old court battle between California and Nevada that brought Chemerinsky to the court in January. The issue was whether a state can be forced to defend its actions in another state’s courts. The answer, reversing a 40-year-old precedent: no.
So the question: Doesn’t the highest court in the land, which hears only about 70 cases each term, have better things to do than hear the same ones a second or third time?
Sometimes the problem is that Congress wrote a law with such imprecision that the justices have declared portions of it “unconstitutionally vague.” Rarely does a year go by that the court isn’t asked to interpret the Armed Career Criminal Act, a 1984 product of Congress that left much to the legal imagination on its way to tougher sentences for felons with firearms.
In December, the court ruled that “burglary” under that law applies to mobile homes and recreational vehicles. In January, it ruled that “robbery” under the law applies when a victim puts up resistance.
The Founding Fathers weren’t so clear with the Constitution, either. Why else would the Supreme Court continually be asked to interpret the First Amendment’s religion clauses?
The court’s consideration this term of a 40-foot Latin cross on government land in Maryland was necessary in part because the justices have issued so many entangled opinions in the past on religious displays and government prayer. By their own admission, those rulings left the law in “chaos,” “disarray” and “shambles.”
Let them eat cake?
Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colorado, won his case at the Supreme Court last year, but an almost identical case from Oregon is pending. (Photo: Matthew Staver, for USA TODAY)
Among the court’s self-inflicted reasons for repetition is Chief Justice John Roberts’ penchant for deciding only what must be decided, and no more. Others might call that a punt, but the go-slow approach has enthusiasts on the left and right.
“The court, appropriately I think, issues narrow rulings. The court tries not to get out over its skis,” says John Bursch, a former Michigan solicitor general who has argued 11 cases at the Supreme Court. “By moving the law in small, incremental steps, you make sure that you get the cases right.”
Thus it was last year that the justices ruled in favor of Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colorado, who had refused on religious grounds to design a cake for a gay couple’s wedding celebration. The court did not say that was his right – only that he had been mistreated by state regulators along the way.
Now Melissa and Aaron Klein of Gresham, Oregon, who were fined $135,000 for refusing to create a wedding cake for a lesbian couple, want the court to honor their religious claim. Phillips’ victory didn’t give them cover to ignore the state’s anti-discrimination law. Their petition has been before the justices since early March.
Under that step-at-a-time pace, the court currently is deciding whether a clothing brand that goes by the name FUCT deserves trademark registration. Two years ago, it granted that status to an Asian American dance band called The Slants.
Both cases raised basically the same issue: Are the names in poor taste? But the question for The Slants under a 1946 trademark law was whether the name was “disparaging.” In the case of FUCT, it’s whether the name is “scandalous” or “immoral.”
Then there are cases the Supreme Court has to hear by law but simply isn’t ready to decide. Last year, that applied to challenges raised by Wisconsin Democrats and Maryland Republicans to one-sided election maps drawn by their states’ majority party.
For more than 30 years, the justices have wrestled with whether such blatant partisanship belongs in their court, and the 2018 cases were no different. Rather than decide once and for all, they found procedural faults in both cases and returned them to lower courts.
“Gerrymandering is a primary ‘punt’ area,” says Paul Smith, vice president at the liberal Campaign Legal Center, who has argued three Supreme Court cases against partisan maps since 2004.
It didn’t take long for Maryland’s case to return, along with one from North Carolina, and in March the justices appeared slightly closer to a decision – most likely against the challengers. This time, Smith predicts, “they’ve probably run out of punts.”
Abortion restrictions redux
Pro-choice and anti-abortion advocates demonstrate outside the Supreme Court in 2016, when the justices heard a major case from Texas on abortion restrictions. An almost identical case from Louisiana is pending now. (Photo: Drew Angerer, Getty Images)
The justices definitely didn’t punt on abortion in 2016. Shorthanded following Associate Justice Antonin Scalia’s death, they nonetheless ruled 5-3 that two Texas abortion restrictions imposed an undue burden on women and were therefore unconstitutional.
One of those restrictions – requiring doctors who perform abortions to have admitting privileges at nearby hospitals – was later imposed by Louisiana and upheld by a federal appeals court. The Supreme Court temporarily blocked that ruling from taking effect and now must decide whether to strike it down or hear the case.
Lawyers for Louisiana argue that the specific impact on women, doctors and clinics there makes it a unique law worthy of being upheld. The Center for Reproductive Rights claims the earlier Texas ruling is all the high court needs to strike it down.
“Lower courts just will not swallow what the Supreme Court has sent down,” says Travis Tu, the center’s lawyer in the Louisiana case. “The Supreme Court will have to police its own ruling.”
No claims of uniqueness apply to the cases of Bobby James Moore, Gilbert Hyatt or John Sturgeon, all of which made return appearances to the court this term after earlier, narrow rulings. In two of them, the justices had returned the cases to lower state or federal courts with instructions, but those courts refused to budge.
‘We had this case before’
Texas death row inmate Bobby Moore won a reprieve from the Supreme Court not once, but twice over his claim of intellectual disability. (Photo: AP)
In February, the justices struck down for the second time a Texas court’s ruling that Moore could be executed despite cognitive deficits. A majority of justices said Texas twice relied on “lay stereotypes of the intellectually disabled.”
“That did not pass muster under this court’s analysis last time,” Chief Justice John Roberts wrote. “It still doesn’t.”
In March, they struck down for a second time a federal appeals court’s ruling that Sturgeon cannot operate his hovercraft on an Alaska river running through federal park land. The moose hunter, who won both cases unanimously, was sent off with the court’s best wishes for “good hunting.”
“The suit has a complicated history; in fact, this is the second time it’s reached this court,” Associate Justice Elena Kagan wrote. “But now, we finally resolve it for good by saying that Sturgeon can take his hovercraft out of storage.”
On Monday came the court’s verdict in Hyatt’s tax battle with California, where he once lived. The case had turned into a dispute over one state’s right to haul another state into its court system.
The justices ruled in 2003 that California was not immune to the lawsuit. California fought back, but Scalia’s death in 2016 produced a deadlock, which left Nevada the winner.
At oral argument in January, Associate Justice Stephen Breyer noted his familiarity with the history “because we had this case before.” He emerged on the losing end of a 5-4 decision written by Associate Justice Clarence Thomas.
Such repetition, former Texas solicitor general Scott Keller says, can be fortuitous.
“The Supreme Court only wants to be deciding issues that it actually has to decide to rule on the case before it on that day,” says Keller, who has argued 11 cases there. “Instead of making broad, sweeping generalizations about the law, often the court will take an incremental approach and be cautious.
“And that’s a good thing.”
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