The Incomplete Supreme Court and Some Significant Upcoming Cases

Protesters rally at the Supreme Court in October 2016 to demand the Senate Republicans vote to fill the court vacancy.

Protesters rally at the Supreme Court in October 2016 to demand the Senate Republicans vote to fill the court vacancy.

November 08, 2016

The U.S. Supreme Court has been operating with a vacancy all year long. Unfortunately, that vacancy will continue to hinder the court for the rest of the year — and possibly even longer. When Justice Antonin Scalia passed away in February, members of the Senate vowed to refuse any further nominations to fill the vacancy by President Obama. They have continued refusing for more than 220 days. Senator Richard Burr (R-North Carolina) recently vowed to obstruct any Supreme Court nominee if Hillary Clinton is elected president.

As a result of this political standoff the court has been forced to work shorthanded with only eight members. The court is closely divided on several important legal questions and could deadlock 4–4, decide cases on a narrow basis, or refuse to hear cases until another justice is appointed. Before Justice Scalia’s death in February, 5–4 decisions occurred regularly. Usually, the four liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) dissented from the conservative justices’ (Roberts, Scalia, Kennedy, Thomas, and Alito) position in cases dealing with such issues as class actions, voting rights, and the death penalty. Now the court lacks a fifth vote to break a tie on contentious issues. The justices can end up deadlocked and unable to answer legal questions that are dividing courts across the country. Since many cases come to the court because of a “circuit court split,” a 4–4 decision effectively allows the lower court ruling to stand, which means that some parts of the country could interpret the same law in different ways. This creates dissonance and confusion, and defeats the role of the Supreme Court as a unifier of law.

Despite the incomplete court, the justices must decide on a variety of cases in the coming months, many of which have serious effects on women and girls. The court will be reviewing cases involving such issues as racial bias, students with disabilities, free speech and equal protection, and transgender rights.

Limiting Racial Bias in the Judicial Process

Unfortunately, racial bias is just as prevalent in our justice system as it is in our society. In Buck v. Davis, a death penalty case, the court is deciding whether  a defendant can argue that the assistance he or she received from counsel was ineffective because of racial bias. In 1996, Duane Edward Buck shot and killed two people and wounded his sister. He was charged with capital murder. It was clear that he was guilty, but the sentencing process was muddled. Buck’s own attorney introduced an expert witness who argued that Buck was more likely to commit future crimes because he is black. This racially biased opinion of likelihood of recidivism weighed heavily in this case. In order to impose the death penalty, state sentencing law required the jury to decide unanimously that the defendant would be dangerous in the future. Buck is seeking relief based on ineffective assistance of counsel because racially biased evidence was used in determining his death sentence. He must prove that the ineffective counsel resulted in a prejudiced trial outcome.

While this case shows clear evidence that our judicial system is not free of racial bias, it also highlights the lack of representation of black female lawyers before the Supreme Court. Buck’s lawyer, Christina Swarns, the litigation director of the NAACP Legal Defense and Educational Fund, is the first black woman to argue a U.S. Supreme Court case in three years.

The second case centers on the right to an impartial jury. Miguel Angel Pena-Rodriguez was convicted of unlawful sexual conduct and harassment. However, after the verdict was handed down, two jurors reported that another juror made racially biased comments during jury deliberations. The Supreme Court of Colorado ruled that Pena-Rodriguez had waived his right to impartial jury by failing to adequately question the jurors during jury selection. These two cases raise important questions about racial bias within the judiciary.

Overlapping Laws with Disability Rights

In Fry v. Napoleon Community Schools, a girl with cerebral palsy asked to bring her service dog, Wonder, to aid her at her Michigan school. Instead, the district decided to provide her with an adult human aide. Her parents claim that the refusal to allow Wonder at school violated the Americans with Disabilities Act and the Rehabilitation Act, which guarantee appropriate accommodations to people with disabilities. The school stated that providing a human aide satisfied the obligations under the Individuals with Disabilities Act (IDEA). The district court threw out the suit, stating that students must exhaust legal options under the IDEA before bringing a lawsuit under the U.S. Department of Education’s Office of Civil Rights.

Disability rights groups supporting the Frys argue that requiring children with disabilities to exhaust IDEA requirements can cause significant harm — potentially in the form of lost years of education — while families fight with the school for particular therapies. The issue is not whether a free and accessible education is provided, but rather whether a student’s rights to be free of discrimination based on disability were violated.

Playgrounds: Separation of Church and State

AAUW firmly believes in separation of church and state, which is the main question in this case. 1st Trinity Lutheran Church v. Pauley asks whether a church-sponsored preschool can accept money from a Missouri-state sponsored grant program. The Missouri Department of Natural Resources (DNR) offers grants for tire scraps to be used in playgrounds. The preschool was denied the grant because the Missouri Constitution prohibits state funds going to religious institutions. Trinity argues that the denial of its application violates the Equal Protection Clause of the 14th Amendment and the First Amendment’s protections of freedom of religion. It argues that the grant is “wholly secular” because the money is going to a playground. The government states that the church can make updates to its physical grounds but may not do so with government funding.

Title IX and Transgender Students

G.G. v. Gloucester County School Board concerns the rights of transgender students and a Title IX guidance. Gavin Grimm, a transgender male student, used the boy’s restroom for a couple months without any problems. However, the school board adopted a policy requiring students to use restrooms according to their anatomical sex at birth. A motion was filed asking the court to issue an injunction so that Gavin could use the boy’s restrooms for the start of the school year. This motion was denied, and the court held that Grimm should use the girl’s restrooms or single stall gender-neutral restroom. The Supreme Court then granted an “emergency” stay, barring Gavin from using the boy’s restroom until the court decided to take the case. The court agreed to hear the case on October 28.

AAUW supports the Title IX transgender guidance, and we are particularly concerned about Grimm and students like him who will be subject to damaging policies that violate their rights. It is also concerning if the court accepts this case and reviews the issue of agency deference, particularly since this case involves Title IX.

The decisions from these hearings will profoundly affect racial bias in the courts, disability rights, separation of church and state, and transgender students. All of these cases involve AAUW legislative priorities, and all of these cases will be decided by an incomplete court. Sign our petition to tell our Senate that they need to fill the vacancy now.

This blog post was adapted by Aditi Dinakar, AAUW’s public policy intern, from a Supreme Court call led by Lisa Maatz, the vice president of government relations and advocacy, and Erin Prangley, the associate director of government relations.



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By:   |   November 08, 2016


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