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And then there were seven:  The remaining cases, in Plain English 

Yesterday the Justices were back in the Courtroom to issue four decisions in major cases involving the Fourth Amendment, patent royalties, the Constitution’s Takings Clause, and claims that prison officials used excessive force against arrestees.  With those four cases now in the history books, the Justices have only seven more opinions to issue before they head out for their summer vacations.  At least one of those opinions could prove to be a blockbuster for the ages, but they are all likely to be, at the very least, highly significant.  Let’s talk about those cases in Plain English. 

The oldest case on the Court’s docket is Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.  The issue in this case is whether you can bring a lawsuit under the Fair Housing Act, which prohibits housing discrimination “because of” race, by claiming that a law or policy has a “disparate impact” – that is, it has a discriminatory effect, even if it wasn’t motivated by an intent to discriminate.  This question has been before the Court in two earlier cases, but both of those cases settled before the Court could weigh in.  The settlements weren’t a coincidence:  civil rights groups and the federal government were worried that the conservatives on the Roberts Court would hold that the FHA does not allow disparate-impact lawsuits.  Such a result, they were concerned, would in turn make it much harder to prevail in cases alleging housing discrimination, because lawmakers and landlords almost never come right out and admit that they intended to discriminate.

The Fair Housing Act case was argued in January.  Because the Justices make a strong effort to distribute the opinion-writing workload evenly not just over the course of the year, but also from month to month, we can sometimes predict who will write an opinion based on who has (or has not) written opinions in a particular month.  This is one such case:  Justice Anthony Kennedy is the only Justice who has not yet had a majority opinion from January, so he seems like a good bet to be writing on behalf of the majority.  Justice Kennedy is one of the Justices who has been most likely to join the Court’s four more liberal Justices in closely divided cases, but on the other hand he has been skeptical about the use of affirmative action in college admissions, so both sides are likely to be nervous until they actually hear the result.

There are two decisions left from the Court’s February sitting.   (A “sitting” is the two-week period in each month from October until April in which the Justices hear oral arguments.  Although the February sitting this Term started on February 23, it spilled over into March, so both of these cases are considered part of the February sitting even though they were argued in early March.)

Arizona State Legislature v. Arizona Independent Redistricting Commission is a lawsuit filed by the Arizona legislature that challenges an amendment to the state constitution, passed by the state’s voters in 2000, which took the power to draw boundaries for federal congressional districts away from the legislature and gave it to an independent redistricting commission.  The legislature argues that the transfer of redistricting control to the commission violates the U.S. Constitution’s Elections Clause, which provides that the “Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof.”  Voters and state legislators in California, which uses a similar independent commission, are also watching this case carefully.

King v. Burwell is yet another case arising out of the Affordable Care Act.  In 2012, the Court rejected a challenge to the ACA’s individual mandate, which requires everyone in the United States to obtain health insurance or pay a penalty.  Many people get health insurance through their employers, but the people who don’t – because they are self-employed or unemployed, for example – can purchase it through an online marketplace, known as an “exchange.”  The drafters of the ACA had originally expected each state to set up its own exchange, but after many states declined to do so, the federal government stepped in to create them instead.

Here’s the core of the dispute:  to ensure that everyone can afford the health insurance that they are now required to buy, the ACA also provides for subsidies for people who buy their health insurance through an exchange.  But one provision of the ACA indicates that subsidies are only available if you purchase your health insurance on an exchange “established by the State.”  The plaintiffs in this case argue that subsidies are therefore not available if you are one of the roughly seven million people who buy their health insurance on an exchange established by the federal government, because the federal government is not a “State.”  Defending the subsidies, the federal government argues that, if you look at the entire ACA and its history, it is clear that the subsidies are available to everyone who purchases insurance on an exchange, no matter who created it – including because the plaintiffs’ reading could mean the end not just of the subsidies, but the entire health-insurance system created by the ACA.

There is only one decision remaining from the Court’s March sitting.  It will come from a trio of cases, argued together, that will go by the name of Michigan v. Environmental Protection Agency because that case was filed first.  (For the same reason, the same-sex marriage cases, which I will discuss below, will go by the name of Obergefell v. Hodges.)  This is a dispute between the federal government, on the one hand, and states and industry groups, on the other, that arises from the EPA’s efforts to regulate pollution – and in particular mercury – from power plants.  The question before the Court is whether, when deciding whether it is going to regulate the emissions from power plants, the EPA must also consider how much it will cost the power plants to comply with the new regulations.  States and industry groups had argued that the EPA is required to consider compliance costs at the outset, while the EPA argued that it does not have to consider costs until later in the process, when it issues specific pollution standards.  Justice Antonin Scalia is the only Justice who has not yet written a majority opinion for March, so he is likely to be writing this one – good news for the states and industry groups, in all likelihood.

There are three decisions still outstanding from the Court’s April sitting.  The first is Johnson v. United States, a case that was originally argued last fall.  It arises out of the Armed Career Criminal Act, a federal law which imposes a mandatory minimum sentence of fifteen years on a federal firearms offender who has three convictions for a “violent felony.”  The question before the Court the first time around was whether having a sawed-off shotgun is a “violent felony.”  But after the first oral argument, the Court ordered new briefing and a new oral argument on a second question:  whether the part of the ACCA (known as the “residual clause”) which outlines what kinds of crimes should be treated as violent felonies is so vague that it actually violates the Constitution.  This is a question that has long troubled Justice Antonin Scalia, and after the oral argument it seemed that other Justices may share his concerns as well.  It’s not same-sex marriage or ACA subsidies, but it is potentially an important criminal law case, because a decision striking down the residual clause could affect thousands of prisoners, and it could eliminate an important advantage that prosecutors have in plea bargaining.

No matter how it rules, the Court’s decision in Obergefell v. Hodges will go down as one of the biggest cases in recent memory.  There are actually two questions before the Court in the four cases, which hail from Kentucky, Ohio, Tennessee, and Michigan:  whether the Constitution allows states to prohibit same-sex marriage; and whether states can refuse to recognize, or give effect to, the marriages of same-sex couples who were married in another state where same-sex marriage is legal.

Two years ago, Justice Kennedy joined the Court’s four more liberal Justices to strike down a provision of the federal Defense of Marriage Act that defined marriage, for purposes of over a thousand federal laws and programs, as a union between a man and a woman only.  So all eyes were on him at the oral arguments in April.  He was hard to read, with tough questions for both sides, but supporters of same-sex marriage can take some comfort from the fact that he had virtually no questions during the section of the argument devoted to the question whether states have to recognize same-sex marriages performed elsewhere – after all, that question only matters if the Court rules that there is no right to same-sex marriage.   Will Kennedy join the more liberal Justices again and solidify his position as an “unlikely gay rights icon” by ruling in favor of same-sex marriage?  We will know soon enough.

In 2008, the Court rejected a challenge to the three-drug protocol that Kentucky used to carry out executions by lethal injection, holding that it did not violate the Eighth Amendment’s prohibition on cruel and unusual punishment.  In that case, inmates had unsuccessfully argued that there was a risk of serious pain if the protocol was not followed properly.  Nearly seven years later, the Court agreed to hear a new lethal injection challenge, this time to Oklahoma’s lethal injection protocol.  In Glossip v. Gross, the question before the Court is the state’s use of midazolam, a sedative which is used to treat anxiety, as the first drug in the protocol; two other drugs, which are not at issue in the case, are then used to paralyze him and stop his heart.  A group of death-row inmates argue that the use of midazolam as the first drug violates the Constitution because it cannot reliably render the inmate unconscious; if he is not unconscious when the second and third drugs are administered, he will suffer serious pain from the third drug, but no one will know because the second drug will prevent him from moving at all.

After a series of highly publicized botched executions, including one in Oklahoma last year, death penalty opponents welcomed the Court’s announcement that it would review this new lethal injection challenge.  Perhaps, the conventional wisdom went, the Justices were finally so frustrated with how lethal injections were being carried out that they would step in and require states to make changes.  There was indeed plenty of frustration at the oral argument, but much of it came from the Court’s more conservative Justices.  They seemed to regard the lethal injection challenges as a “guerilla war” on the death penalty itself:  if death penalty opponents can’t convince lawmakers and the public to abolish the death penalty, they can at least try to stop the states from actually carrying out executions.  In this case, Justices Alito and Scalia emphasized, the only reason that Oklahoma was having to use midazolam as the first drug in its lethal injection protocol was that other, more reliable drugs are no longer available as a result of earlier lethal injection challenges and public pressure on the drug manufacturers to refrain from selling them to the states for use in executions.

The Justices don’t announce in advance which decisions they will issue, or how many.  But given how important all seven of these cases are, we’re bound to get something good on Thursday morning.  Stay tuned!

Recommended Citation: Amy Howe, And then there were seven:  The remaining cases, in Plain English , SCOTUSblog (Jun. 23, 2015, 8:06 PM),