Anticipated Cases

My plan is to offer a post every month or so with all the cases coming up that should be relatively interesting and accessible, or in other words, everything except the highly technical and relatively boring procedural issues.  But I thought I would also direct your attention to a few particularly significant cases that are coming up this term.

Two important cases are coming up in the first week, regarding religious liberty in prison and unconstitutional stops.Religious liberty cases are always significant, and especially so given last term’s Hobby Lobby ruling, the full scope of which is still being worked out and should be clarified by the decision in this case.  The Court also has been on a bit of a trend in restricting warrantless searches (see 2012’s GPS monitoring case and 2014’s case involving looking through an arrestee’s cell phone).  In addition, it should be interesting to see how Justice Scalia responds to this case; he is often quite protective of traditional 4th Amendment rights, contrary to what some people might expect of him.

I already wrote about the above cases.  I’ll say more about each of the following cases in the weeks before arguments, but as a preview:

The next high-profile case will be viewed as an Israel-Palestine issue, although the legal question is one of separation of powers.  Long-standing State Department policy is that when a US Citizen is born in a disputed territory, the consular report of birth abroad and passport should list the city or area only (without choosing a country).  The plaintiffs’ child was born in Jerusalem in 2002, and the consulate, citing this policy, refused their request to add “, Israel” after the city name.  This gets legally complicated because Congress has enacted a law that directs State to comply with such a parental request.  Traditionally, recognition of states, especially in disputed territories, and all manner of international relations has been within the scope of Presidential powers.  It is an open question whether Congress can direct an executive branch agency like State to go against the President’s determination of foreign policy.  In signing the bill into law, President Bush stated that this provision would not be interpreted as mandatory because otherwise it would “interfere with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.”  The Obama Administration has taken the same position. This case will be argued November 3.

The issue of state secrets and whistleblower protection is raised in an interesting lawsuit by a former TSA worker.  His publication of the TSA plan to cut back on air marshals led to public outcry, Congressional investigation, and eventual abandonment of the plan, but he was fired nonetheless.  Whistleblower protection does not apply if the information made public was “specifically protected by law from exposure,” but the plaintiff argues that this is intended to cover highly classified information under Congressionally enacted law, not a staffing plan that is made private only by TSA-issued regulation.  The unusual twist is that this is a law enforcement official, disclosing information in order to obtain greater levels of security, but of course the ruling will have implications for whistleblowers seeking to curtain the scope of “national security” measures.  This case will be argued November 4.

The racial gerrymandering case to be argued on November 12 comes with the interesting twist that the state accused of race discrimination had been arguing that Section 5 of the Voting Rights Act prohibited them from drawing districts any differently–but last term the Court, to the dismay of voting rights advocates, rendered that provision inoperable.

An important case involving the Pregnancy Discrimination Act, to be argued December 3, really shouldn’t be a tough call

These are the cases that I find particularly compelling and that, as of this posting, have been scheduled for argument. The Court has granted cert. in but not yet scheduled arguments for a few other cases, and it is still considering whether or not to grant other petitions for cert.  No arguments beyond December 10 have been scheduled yet, but the Court will presumably hear cases through April, as usual.  Many commentators anticipate an abortion case, revisiting birth control coverage, and perhaps even a marriage discrimination case, but we’ll have to wait and see.