The arrival of June marks the beginning of the homestretch of a relatively quiet U.S. Supreme Court term. But “quiet” doesn’t necessarily mean without possible “surprises.”
The term’s final month — and even its final day — have nearly always brought major decisions in the highest-profile, most difficult cases, as well as dramatic announcements from the bench by the justices. This has been a notable trend ever since John Roberts Jr. became chief justice in 2005.
Consider this sampling of decisions in those final June weeks: the military tribunal system for Guantanamo Bay detainees struck down (2006); Seattle and Louisville school diversity plans invalidated (2007); Second Amendment guaranty of an individual right to possess a firearm (2008); Affordable Care Act upheld (2012); federal marriage definition struck down (2013); constitutional protection of same-sex marriage (2015); Trump travel ban upheld (2018).
This June, three cases are likely “front-page” news because of their potential as landmark decisions. The outcome in two challenges to excessive partisan gerrymandering and one challenge to a citizenship question on the 2020 census may have major implications for our representative democracy.
Partisanship & Gerrymanders
For the second time in one year, the justices have found themselves struggling with whether courts should hear partisan gerrymander cases, in which the political party in power egregiously draws district lines to disadvantage the other party. And if courts do hear these cases, how do they measure when partisanship has so infected redistricting that it violates the Constitution?
The two cases this term involve congressional districts in North Carolina and Maryland. During arguments in March, the justices appeared just as divided as they were a year ago when they ultimately punted in deciding challenges from Wisconsin and Maryland.
Census & Citizenship
In the census case before the justices, a lower court found a “veritable smorgasbord” of violations of the federal Administrative Procedure Act — the rule book on how federal agencies should take action. Three lower courts actually held that the reason given by Trump administration officials for adding a citizenship question to the census — to enforce the Voting Rights Act — was “pretextual,” not a truthful reason.
The case took an unusual turn just recently when lawyers for the challengers produced compelling evidence that, they say, proves the real reason for the citizenship question was because it would be “advantageous to Republicans and Non-Hispanic Whites.”
Whether this new evidence affects the justices’ decision probably won’t be known until they issue their decision.
Speech & Religion
Two very different First Amendment cases are also likely to capture widespread attention when the decisions are issued, one involving a cross and the other a clothing brand name.
In the first case, a huge, 93-year-old cross memorializing soldiers who died in the World War I sits on public land in Prince George’s County, Maryland. The American Humanist Association challenged its presence on public land as a violation of the establishment clause. The association prevailed in the lower court and now it’s up to the justices to decide whether the cross stays or goes. It is not easily moved.
In the second case, free speech and trademark law intersect. The federal Lanham Act has a section prohibiting the registration of “immoral” or “scandalous” trademarks. Erik Brunetti mounted a First Amendment challenge to that provision when he was denied registration of his clothing trademark “FUCT.” He won in the lower court and the government is asking the justices to reverse that ruling.
What to expect
Twenty-seven cases remain to be decided during the next three weeks if the Supreme Court follows its usual schedule of wrapping up cases by the end of June. But a word of caution: Even the “biggest” cases can fizzle in the end if the justices find narrow paths to a decision. And the “smallest” cases, barely blips on the media’s radar, may result in landmark rulings. Stay tuned.