Amid prospects that the Supreme Court will still be operating with one fewer Justice well into its next Term, the Justices on Tuesday added eight new cases for hearing and decision after the summer recess, with major controversies among the cases. The Court also put off, probably for many months, a chance to settle the heated controversy over union fees assessed on public employees who do not belong to a union, denying rehearing of a case that had ended with a four-to-four split on that question (Friedrichs v. California Teachers Association). That issue will have to be confronted anew, first by lower courts..
It now appears that the eight added cases, along with others previously accepted for the new Term, will be heard by the Justices before the end of this calendar year, and by only eight Justices. There appears little prospect that a ninth Justice would be approved by the Senate before then.
Perhaps the most significant of the disputes that the Court agreed to hear, in the final orders of the now-ended Term, is a test of who may sue mortgage lenders and housing operators for racial discrimination in housing. The specific issue is whether city governments — here, the city of Miami, Fla. — are among those whom Congress has given permission to sue to enforce the equality guarantees of the Fair Housing Act. That question will be heard in the consolidated cases of Bank of America v. Miami and Wells Fargo & Co. v. Miami. Lower courts are deeply split on the issue.
Another pair of cases, joined for shared review, will test whether major credit card companies can be sued by consumers under federal antitrust law for agreeing among themselves, and with banks, on the fees to be charged when people access their bank accounts by using ATM machines. The consolidated cases are Visa v. Osborn and Visa v. Stoumbos.
The Justices will take on a significant new test of the right to sue for parents of a disabled child who needs assistance while attending schools that receive federal funds. The issue in a case from a small Michigan community (Fry v. Napoleon Community Schools) is whether a disabled child’s family must first try to work out with school officials a dispute over the assistance their child needs, before the parents may sue for damages under federal anti-discrimination law. The dispute in the case involves a claim by a disabled girl’s family that the school would not allow her to bring a service dog to help her during her classes. The Justice Department, asked by the Supreme Court for its views, urged the Justices to hear the case.
Besides taking on the new cases, the Justices turned aside — over the protests of dissenting Justices — two controversial cases.
Without a comment, the Court denied review of Stormans, Inc. v. Wiesman, a case in which a drug store operator sought to gain the right, for religious reasons, to refuse to fill doctors’ prescriptions for birth-control. The challenge was to regulations enforced on pharmacists by the state of Washington. Three Justices dissented; that was one short of the number needed to grant review. (It would almost be a certainty that the case would have been granted if the late Justice Antonin Scalia had remained on the Court.)
Justice Samuel A. Alito, Jr., wrote a strongly worded dissent, joined by Chief Justice John G. Roberts, Jr., and Justice Clarence Thomas. Apparently appealing to the time when a new Justice may join the Court, Alito complained that, if the Court’s denial of this case “is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.”
Again without an explanation, the Court refused to hear a Delaware group’s challenge to a new state law requiring the public disclosure of information about people who gave money to an organization that sought to put out a guide for voters. In Delaware Strong Families v. Denn, Justice Thomas wrote a dissenting opinion for himself alone, arguing that the Court should now reconsider its support for compelled disclosure rules for political donors. Justice Alito separately noted simply that he would have granted review of the Delaware group’s petition.
Following Monday’s ruling striking down a Texas law requiring that doctors who perform abortions must obtain admitting privileges at a hospital near their clinics as part of its decision in Whole Woman’s Health v. Hellerstedt, the Justices simply denied review on Tuesday of two other cases by states seeking to defend similar laws: a Mississippi case, Currier v. Jackson Women’s Health Organization, and a Wisconsin case, Schimel v. Planned Parenthood.
Questions that will be decided by the Court next Term in the five other cases that it accepted Tuesday are summarized here:
** Lynch v. Morales-Santana, an appeal by the federal government, seeks to defend the constitutionality of less favorable treatment, for purposes of U.S. citizenship, of a child born abroad whose father is a U.S. citizen than the treatment given to a child born abroad whose mother is a U.S. citizen.
** Ivy v. Morath, a case pursued by five hearing-impaired Texans, asks the Court to clarify when a state agency is responsible for discrimination against the disabled when the agency farms out a public program to a private vendor. The dispute in the case involves a plea by the disabled individuals to have a sign-language interpreter provided for classes at privately run driver’s education classes. The Court asked the U.S. Solicitor General for the government’s views on the case, and the response urged the Justices to bypass review; review was granted anyway.
** Venezuela v. Helmerich & Payne International, a case filed by the South American nation, seeking to have the Court clarify when a foreign government may be sued in U.S. courts for seizing property located in that country but owned by a U.S. firm. The case grows out of that government’s nationalization of the oil industry six years ago. The U.S. Solicitor General urged the Court to grant review only of the pleading standard required for a claim that a foreign government’s action is not immune from a lawsuit in the U.S. under the doctrine of sovereign immunity. That is the only question that will be considered, under the Court’s order.
** Czyzewski v. Jevic Holding Corp., is a test of whether a bankruptcy court may dismiss a case that has been settled through an agreement that gives payment to lower-ranking creditors ahead of more senior-ranked creditors. Accepting the suggestion of the Solicitor General, the Court agreed to hear the case. The case involved the failure to follow the priority due to former workers’ benefit claims when their New Jersey trucking company filed for bankruptcy after it was taken over by investors in a leveraged buyout. Nineteen states joined in urging the Justices to decide the case. The case raises a major legal question over how bankruptcy courts are to deal with so-called “structural dismissals” — apparently, an increasing phenomenon in bankruptcy practice.
** Lightfoot v. Cendant Mortgage Corp., involves an appeal by two Californians, involved in a mortgage dispute. They asked the Court to spell out when a federal court has the authority to decide a case against “Fannie Mae” — the Federal National Mortgage Association. That is a federally chartered corporation that Congress has given the right to sue, and be sued. The question is what that provision means. This was another petition that the Court accepted for review at the suggestion of the U.S. Solicitor General.
With Tuesday’s eight new controversies on its docket, the Court has now accepted enough cases for review to take it through its December sitting.