Postponing the Controversial

OT18

The most important characteristic of this U.S. Supreme Court term is the issues that are not being heard.

At its conference on Friday, the justices considered petitions for review in a stunning number of cases presenting controversial, significant questions. The court took eight cases, but none of the ones about topics like DACA, abortion, sexual orientation, discrimination, religion, and guns. The obvious explanation is that the court is shying away from divisive issues and has chosen instead to have a relatively low-key term. But this raises the question of whether the court should choose what cases to take, or not, on that basis.

It is possible, but seems unlikely, that the court still could take some of these cases for this term. By taking eight cases on Jan. 11, the court filled all of the argument slots for its April argument calendar, the last of this term. Of course, the court could create additional argument slots, but what is more likely is that any cases taken from now on will be heard in October Term 2019.

The range of cases presented to the court for its Jan. 11 conference, but not taken is striking. For example, the court had on its conference list the petition for a writ of certiorari in Department of Homeland Security v. Regents of the University of California, concerning whether President Donald Trump violated the law in rescinding the DACA ("Deferred Action for Childhood Arrivals") program. The federal district court enjoined President Trump's action and the 9th U.S. Circuit Court of Appeals affirmed.

A number of potential crucial questions concerning LGBT rights were on the conference list. Bostock v. Clayton County, Georgia and Altitude Express Inc. v. Zarda raise the question of whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination "because of ... sex" within the meaning of Title VII of the Civil Rights Act of 1964. The circuits have split on the question of whether employment discrimination based on sexual orientation is a form of sex discrimination in violation of federal law.

There are three different cases -- Trump v. Stockton, Trump v. Jane Doe 2, and Trump v. Karoski -- which involve the validity of President Trump's executive order barring transgender individuals from the military. Also, R.G. and G.R. Harris Funeral Homes Inc v. Equal Employment Opportunity Commission raises the related question of whether Title VII's prohibition of sex discrimination includes a person's gender identity so as to protect people from discrimination based on their transgender status.

Of course, no issue is more controversial than abortion rights. In Gee v. Planned Parenthood and Andersen v. Planned Parenthood, the court earlier this term denied review over whether state Medicaid programs can refuse to pay for non-abortions services provided by Planned Parenthood. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.

The court did not take Box v. Planned Parenthood of Indiana and Kentucky, Inc., which involves the constitutionality of an Indiana law prohibiting abortions performed solely because of the race, sex or disability of the fetus. The statute also requires facilities to dispose of fetal remains in the same manner as other human remains, by burial or cremation, rather than as medical waste. This would be the first abortion case with Justices Neil Gorsuch and Brett Kavanaugh and would be looked to as a signal of how they would likely handle abortion issues.

Also, the court did not take Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation, and The Presbyterian Church in Morristown v. Freedom from Religion Foundation. (Disclosure: I am counsel for the Freedom from Religion Foundation in this case in the Supreme Court). The New Jersey Supreme Court unanimously ruled that it violated the New Jersey Constitution for Morris County, New Jersey to give public funds for the preservation of historic building for restoration of churches. In 2017, in Trinity Lutheran of Columbia Missouri v. Comer, the court held that it violated free exercise of religion for a state to refuse to provide parochial schools funds for surfacing playgrounds when the same money was available to secular private schools. The question is whether this analysis extends for money for churches.

One more example of a controversial case not yet taken is New York State Rifle & Pistol Association, Inc. v. City of New York, New York. This case involves a New York City law that limits handgun owners to possessing their guns at the address listed on their handgun license, with the sole exception of transporting the gun "directly to and from" one of approximately seven "authorized small arms range/shooting club[s], unloaded, in a locked container, the ammunition to be carried separately."

As of Friday, the court had not denied review in any of these cases. But it also had not accepted review despite the opportunity to do so. The cases being heard in October Term 2018 thus largely lack potential blockbuster decisions. The only real exception is the two cases taken on Jan. 4, Rucho v. Common Cause and Lamone v. Benisek, which involve whether federal courts can hear challenges to partisan gerrymandering and if so, when it violates the Constitution. Both of these cases come from three-judge federal district courts and Supreme Court review is mandatory.

The conclusion is inescapable that the court has made a deliberate choice to stay away from the most divisive, controversial issues. Perhaps in light of the bruising confirmation fight over the nomination of Justice Kavanaugh, the court has decided to have a lower profile this term.

On the one hand, I am happy to see the conservative Roberts court stay away from these issues. I am fearful of how these issues will fare when addressed by the justices. On the other hand, I don't believe that the court should be taking or deciding cases with an eye towards public reaction. Especially where there are splits among the circuits and the states, the Supreme Court's role is to resolve these and provide clarity in the law.

Besides, the cases remain on the docket and the issues remain undecided. I assume the court will end up granting review in most of these cases. It likely means that next term, October 2019, will be extraordinary in the number of cases presenting highly controversial issues.