October 5 is four weeks away. So what? Well, in 2015 October 5 happens to be the First Monday in October, and that means we’ll have a chance to watch the United States Supreme Court in action again. (In fact, although the Court is at recess from July through September, the justices deal with many administrative matters during the recess, and also address some substantive issues, like rejecting County Clerk Kim Davis’ attempt to draw the Court into her petty drama in Kentucky.)
So what can we expect in 2015-16? Plenty, of course. Scotusblog.com has listed the 30+ cases the Court has already accepted for review. From among them, here are a few which we likely here much about:
- Hurst v. Florida, No. 14-7505; Kansas v. Gleason, No. 14-452 (and related cases Kansas v. Carr, No. 14-449, and Kansas v. Carr, No. 14-450) all deal with death penalty jurisprudence. The Florida case deals with a man whose claims relate to both his mental disabilities and the fact that Florida’s death penalty procedure does not require a unanimous jury verdict in favor the death penalty. The three Kansas cases focus on how the jury gets instructed on death penalty burden of proof issues, while the two Carr cases also involve the right of co-defendants—in this case, the brothers Carr—to have separate trials.
- Evenwel v. Abbott, No. 14-940, addresses a huge issue: What does “one person-one vote” really mean? Do we count all people for purposes of apportioning legislative districts, or only eligible voters? Lyle Denniston’s piece, The new look at “one person, one vote,” made simple provides an excellent overview (and also puts another voting case—Harris v. Arizona Independent Redistricting Commission, No. 14-232—in context.) Nathaniel Persily’s piece, Symposium: Evenwel v. Abbott and the Constitution’s big data problem, really nails the problem. Key takeaway sentences?
Leaving aside the weighty and contested philosophical arguments concerning the proper basis for legislative representation, a constitutional rule of redistricting based on citizenship or eligible voters presents insurmountable logistical difficulties. These difficulties are of constitutional import because no national database of citizenship exists at the level of granularity necessary to draw legislative districts that comply with one person, one vote.
- Fisher v. University of Texas at Austin, No. 14-981, brings us, once again, Abigail Noel Fisher. Ms. Fisher did not get accepted by UT-Austin in 2008. She sued. Her case went to the Court in 2013. The Court remanded the case, directing the lower courts to apply strict scrutiny to the UT-Austin affirmative action plan. (The plan, by the way, guarantees slots for in-state students in the top 10% of their graduating class. Race plays some role in a holistic evaluation of applicants for the 20% or so of the spots still open after taking account of the 10%-ers.) Affirmative action plans are not supposed to be able to meet the strict scrutiny test, but the very conservative Fifth Circuit said UT-Austin’s plan survived. So we’re back. Lyle Denniston goes deep, this time in The mystery of Fisher II review. Lots of evident mootness in this matter.
Expect abortion to be on the agenda, too, as well as the Affordable Care Act’s mandate that insurance plans provide for contraceptives. And with that observation, plus ça change, plus c’est le même chos comes to mind. Or as Yogi Berra might say, “it seems like déjà vu all over again.”